Opinion
Civil Action No. 6:00-CV-012-C
June 12, 2002
ORDER
On this day the Court considered the Petition for Writ of Habeas Corpus by a Person in State Custody filed pursuant to 28 U.S.C. § 2254 by Petitioner Steven Edward Myers ("Myers") on February 2, 2000. Respondent Cockrell has filed an Answer with Brief in Support and copies of Petitioner's relevant state court records. Petitioner has filed a response and objections to the answer.
Respondent has lawful custody of Petitioner pursuant to a judgment and sentence from the 119th Judicial District Court of Tom Green County, Texas, in Cause No. B-95-470-S, styled The State of Texas v. Steven Edward Myers. In Cause No.B-95-470-S, Myers was indicted for the felony offense of robbery and one prior conviction was alleged to enhance punishment. Although Myers pleaded not guilty, a jury found him guilty of the offense. Myers then pleaded true to the enhancement paragraph and on July 17, 1996, he was sentenced to 27 years' imprisonment in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID").
Myers appealed his conviction and sentence, arguing that (1) there was insufficient evidence to support the conviction and (2) the trial court erroneously admitted copies of letters written by Myers to a codefendant and copies of grievances written while he was incarcerated in the county jail. The Third Court of Appeals overruled both points of error and affirmed the conviction and sentence in an unpublished opinion issued on August 13, 1998. See Myers v. The State of Texas, No. 03-97- 00590-CR, 1998 WL 476515 (Tex.App.-Austin, Aug. 13, 1998).
Myers' first notice of appeal was dismissed as untimely on December 19, 1996. He subsequently filed a state application for a writ of habeas corpus requesting, in part, that he be allowed to file an our of time appeal. On August 13, 1997, the Texas Court of Criminal Appeals granted the writ to the extent that it requested permission to file an out of time appeal. The state court did not address the other issues raised by Myers in State Application No. 34,546-01.
Myers filed, his second state application for a writ of habeas corpus on June 18, 1999. In application no. 34,546-02, he argued that (1) trial counsel was ineffective because he failed to advise Myers of the correct range of punishment, he failed to call an impeachment witness, and. he failed to request limiting instructions regarding evidence of extraneous offenses; (2) appellate counsel was ineffective because he failed to argue on appeal that the trial court erred when it admitted evidence of an extraneous offense: and (3) the trial court abused its discretion by admitting evidence of letters written by Myers which described an extraneous offense of theft of beer and made threats against a man alleged to be having an affair with his wife. The state trial court determined that a hearing was unnecessary, made findings of fact and conclusions of law based on the record, and recommended that the application be denied. The Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court without a hearing on December 22, 1999.
GROUNDS FOR REVIEW
The Court understands Myers to raise the following grounds for review in his federal petition:
1. Trial counsel was constitutionally ineffective because he did not advise Myers of the maximum punishment that could be imposed if his sentence was enhanced by a prior conviction; he did not properly impeach one of the prosecution's witnesses; and he failed to request a limiting instruction regarding extraneous offense evidence.
2. Appellate counsel was constitutionally ineffective because he failed to present and argue the correct facts on appeal regarding the erroneous admission of extraneous offenses.
3. The trial court abused its discretion when it admitted copies of Myers' letters to a codefendant that contained prejudicial; irrelevant material and evidence of extraneous offenses.
4. The prosecution engaged in prosecutorial misconduct by offering perjured testimony without pointing out that it was false.
This Court has jurisdiction of the parties and subject matter pursuant to 28 U.S.C. § 2241 and 2254.
STANDARD OF REVIEW
Myer's petition was filed after April 24, 1996; therefore, his petition is subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or "the Act"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997) (determining that AEDPA applies to noncapital habeas petitions filed after April 24, 1996, the effective date of the statute). The AEDPA enacted the present 28 U.S.C. § 2254(d), which provides that a state prisoner may not obtain federal habeas relief
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an. unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
"In the context of federal habeas proceedings, a resolution (adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). "When faced with a silent or ambiguous state habeas decision, , the federal court should `look through' to the last clear state decision on the matter," to determine whether the state court decision was procedural or substantive. Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir. 1999).
For cases found to have been adjudicated on tile merits in state court, the Supreme Court has determined that a federal court may grant a writ under the § 2254(d)(1) "contrary to" clause, only "if the state court arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decide[d] a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause [of§ 2254(d)(1)], a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the [Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case" Id. at 413. "Distinguishing between an unreasonable and an incorrect application of federal law, [the Supreme Court] clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable." Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 1918 (2001) (citing Williams v. Taylor, 529 U.S. at 410-11).
Pure questions of law and mixed questions of law and fact should be reviewed under § 2254(d)(1) while pure questions of fact should be reviewed under § 2254(d)(2) Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000); Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir. 1998).
Findings of fact made by the state courts should be presumed correct unless the petitioner rebuts such findings with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). See Jackson v. Anderson, 112 F.3d 823, 824 (5th Cir. 1997) (holding that the burden of rebutting the presumption was made more onerous by the AEDPA's amendment to § 2254).
DISCUSSION
The "denial" of a habeas application by the Texas Court of Criminal Appeals ordinarily signifies that the court addressed and rejected the merits of a claim, while the "dismissal" of an application indicates that the court declined to consider the claim for reasons unrelated to the merits. Ex parte Torres, 943 S.W.2d 469, 474 (Tex.Crim.App. 1997). See Miller v. Johnson, 200 F.3d at 281; Jackson v. Johnson 150 F.3d 520, 524 (5th Cir. 1998) (both holding that in Texas writ jurisprudence, a "denial" rather than a "dismissal" of a habeas application by the Texas Court of Criminal Appeals usually serves to dispose of the merits). But see Singleton v. Johnson, 178 F.3d at 384 (finding a "denial" of a state application by the Court of Criminal Appeals was inconclusive for purposes of determining whether there was an adjudication on the merits). To the extent that Myers raised his claims in the state courts, this Court finds that they were adjudicated on the merits.
1. Ineffective Assistance of Trial Counsel
To establish a claim for ineffective assistance of counsel at trial, Myers must demonstrate that (1) his counsel's performance was objectively deficient and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Id. at 700 (emphasis added).
To demonstrate "deficient performance," Myers must show that his attorney's performance was "professionally unreasonable in light of all the circumstances" at the time of the performance. Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999). The Supreme Court has determined that "[j]udicial scrutiny of counsel's performance must be highly deferential" because
[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.
Strickland v Washington, 466 US. at 689 (internal quotations and citations omitted). See Neal v. Puckett, 239 F.3d 683, 687 (5th Cir. 2001) (holding that in considering whether an attorney's performance was objectively reasonable, a court "must determine whether there is a gap between what counsel actually did and what a reasonable attorney would have done under the circumstances").
To demonstrate "prejudice," Myers must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Thus, the allegation of a mere possibility of a different outcome would not permit a court to find prejudice. Lamb v Johnson, 179 F.3d 352, 358 (5th Cir. 1999). Myers must affirmatively prove prejudice; simply alleging prejudice will not suffice. Deville v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994).
A state court's findings of fact made in the course of deciding a claim of ineffective assistance of counsel are entitled to a presumption of correctness, but the "ultimate conclusion that counsel did not render ineffective assistance . . . is a legal question which must be reviewed de novo. Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995); Wheat v. Johnson, 238 F.3d 357, 362 (5th Cir. 2001). Thus, the ultimate determination whether counsel was constitutionally effective is a mixed question of law and fact that is reviewed wader subsection (d)(1) of § 2254. Kitchens v. Johnson, 190 F.3d 698, 700 (5th Cir. 1999).
An evidentiary hearing is not necessary to resolve claims of ineffective assistance of counsel if the state court record adequately supports disposition of the claims. Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999).
Myers specifically complains that his trial counsel's performance was constitutionally ineffective because he failed to advise him of the maximum punishment that could be imposed; he erroneously advised him that his sentence would not be enhanced with a prior conviction; he did not call a witness to present testimony regarding a prior inconsistent statement by one of the state's witnesses; and he failed to request a limiting instruction when either evidence of the extraneous offense was admitted or the jury charge was being drafted.
The state habeas court addressed these claims and made the following findings of fact:
(1) On April 2, 1996. the trial court arraigned Myers and specifically advised him that the maximum sentence that could be imposed under the indictment was 5 to 99 years' or life imprisonment.
(2) Myers conceded that the trial court specifically advised him on April 2, 1996, that "this was the last time the court would accept any plea bargain."
(3) The arraignment took place 3 1/2 months before Myers entered his plea of not guilty.
(4) The state's witness admitted at trial that he had made prior inconsistent statements.
(5) Texas Rule of Criminal Evidence 612 prohibits using extrinsic evidence to show prior inconsistent statements when the witness has admitted to making the statements.
(6) Counsel made no requests for limiting instructions either during trial or when objecting to the jury charge.
Myers' argument that, but for his attorney's statement his sentence would not be enhanced by a prior conviction, he would have accepted the plea bargain offer of 5 years incarceration because he believed that he was only subject to a twenty-year sentence is wholly incredulous. The record clearly supports the state court findings that the trial court advised Myers of the maximum sentence that could be imposed, that is, 5 to 99 years or life, on April 2, 1996, and specifically informed him that this date was his last opportunity to plead guilty. Moreover, the recordhows that the indictment in cause number B-95-470-S charged Myers with the felony offense of robbery and alleged a prior conviction to enhance his sentence; the indictment was filed on July 31, 1995, eleven months before he was arraigned on April 2, 1996; and a certified copy of the indictment was served on Myers on August 3, 1995. Thus, even if trial counsel incorrectly advised Myers that his sentence would not be enhanced, the record demonstrates that Myers was informed that his sentence wasp in fact, going to be enhanced with a prior conviction; therefore, he cannot demonstrate that he was prejudiced by such allegedly erroneous advice.
As for Myers' claim that counsel erroneously failed to call a witness solely to prove that one of the state's witnesses made a prior inconsistent statement, the record clearly supports the trial court's finding that such evidence was not admissible because the witness admitted to making inconsistent statements. Because the Texas Rules of Criminal Evidence would have prevented trial counsel from calling the witness, his failure to call the witness was not objectively deficient See Tex. R. Crim. Evid. 612(a) (providing that if a witness u equivocally admits making a prior inconsistent statement, extrinsic evidence of the prior inconsistent statement may not be admitted). See also United Statss v. Devine, 934 F.2d 1325, 1344 (5th Cir. 1991) (holding that a prior inconsistent statement is admissible to impeach a witness, but "[p]roof of such a statement maybe elicited by extrinsic evidence only if the witness on cross-examination denies having made the statement."). Counsel's performance is not objectively deficient when he simply fails to proffer inadmissible evidence. Capps v. Collins, 900 F.2d 58, 61 (5th Cir. 1990).
Rule 612 was recodified at Tex. R. Evid. 613(a) effective September 1, 1998.
Finally, Myers claims that his trial counsel was ineffective because he failed to request an instruction limiting the jury's use of extraneous offense evidence. The trial court found that counsel did indeed fail to request a limiting instruction, but that Myers failed to show that he was prejudiced by this deficient performance. Myers argues that the evidence of his threat to harm a party not involved in the trial or offense and the evidence of a misdemeanor theft of beer by one of his codefendants was so prejudicial, and the evidence that he committed the offense of robbery was so weak, that trial counsel's failure to insure that a limiting instruction was given to the jury resulted in his conviction for "being a criminal."
This Court has examined the record and finds that the prosecution did not argue the extraneous offenses and the evidence that Myers committed the robbery was net "so weak" that evidence of the misdemeanor theft and threats did not result in his conviction for merely being a criminal. Myers has failed to demonstrate that but for his counsel's failure to request a limiting instruction, the outcome of his trial would have been different. Thus, he has not demonstrated that he was prejudiced by his counsel's alleged failure to request a limiting instruction regarding the evidence of extraneous offenses.
For these reasons, Myers has failed to demonstrate that the state court's adjudication of his ineffective assistance of trial counsel claims "resulted in a decision that was contrary to, or involved an unreasonable application of;, clearly established Federal law."
2. Ineffective Assistance of Appellate Counsel
To establish ineffective asstance of counsel on direct appeal where the appeal is a matter of right under state law, Myers must demonstrate that (1) his counsel's performance was objectively deficient and (2) the deficient performance prejudiced his defense. Evitts v. Lucey, 469 U.S. 387, 395 (1985); Strickland v. Washington, 466 U.S. at 687.
Myers' counsel argued on appeal that the evidence was insufficient to sustain the verdict and that handwritten letters and grievances were unlawfully and prejudicially admitted into evidence during the trial. Myers alleges that appellate counsel argued that the letters contained prejudicial statements, but he should have argued that the letters contained evidence of extraneous offenses and he was prejudiced by the state's reference to extraneous offenses during closing arguments.
The state habeas court determined first that evidence regarding the theft of beer came in during Myers' own testimony on direct examination as well as through his letters, and second, that no "improper inferences were drawn from the theft of beer incident." Moreover, when the state appellate court considered his complaints about the admission of the extraneous offense evidence, that court determined that the admission of the evidence was harmless error.
Because Myers cannot demonstrate that he was prejudiced by counsel's failure to argue the issue on appeal, he cannot demonstrate that his appellate counsel's performance was constitutionally deficient. See Mayabb v. Johnson, 168 F.3d 863, 869 (5th Cir. 1999) ("When we do not find prejudice from the trial error, by extension, we cannot find prejudice from appellate error predicated on the same issue."); Gochicoa v. Johnson, 238 F.3d 278, 386 (5th Cir. 2000) (holding that erroneously admitted testimony was harmless error and therefore precluded a finding that counsel's failure to object to such testimony was prejudicial under Strickland). See also Part 3, infra.
3. Extraneous Offense Evidence
In his third ground for review, Myers complains that the trial court abused its discretion when it allowed the state to introduce copies of letters that Myers had written to a codefendant following the offense and copies of grievances that Myers had written while he was incarcerated in the county jail. He first argues that the letters and grievances were not relevant because the prosecutor failed to explain why they were admitted and second, they were more prejudicial than probative because they contained evidence of extraneous offenses.
"Evidentiary rulings are only reviewable on habeas to the extent the `trial judge's error was so extreme it constituted denial of fundamental fairness.'" (Green v. Johnson, 160 F.3d 1029, 1047 (5th Cir. 1998) (quoting Mattheson v. King, 751 F.2d 1432, 1445 (5th Cir. 1985)). See Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995) (holding that it is not the federal court's function in a habeas proceeding to review a state's interpretation of its own law and the federal court will defer to state court's interpretation); Castillo v. Johnson, 141 F.3d 218, 222 (5th Cir. 1998) (holding federal habeas review is limited to errors of constitutional dimension). Indeed, "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Myers is not entitled to federal habeas relief due to these alleged trial errors unless he can show that such errors "had substantial and injurious effect or influence in determining the jury's verdict." Woods v. Johnson, 75 F.3d 1017, 1026 (5th Cir. 1996) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v United States, 328 U.S. 750, 776 (1946))).
The state habeas court considered this issue and determined that it did not qualify for habeas relief because Myers had failed to demonstrate that he had been harmed by the admission of the evidence. See Expane Dutchover, 779 S.W.2d 76, 78 (Tex.Cr.App. 1989) ("In a collateral attack, . . . where the burden is upon the applicant to establish the illegality of his restraint, we deem it appropriate to require an applicant to plead and prove facts showing the error did in fact contribute to his conviction or punishment."). The habeas court noted that this issue had also been raised on appeal. The Third District Court of Appeals conducted a harm analysis; determined that although rite letters were incriminating in a sense, they `made no contribution to the conviction'; and overruled the complaint.
After reviewing the trial record and petitioner'; pleadings, this Court finds that Myers has failed to demonstrate that "there is more than a reasonable possibility" that the admission off the letters and grievances "contributed to the verdict." Woods v. Johnson, 75 F.3d at 1026 (emphasis omitted). Thus, he has failed to demonstrate that the state court adjudication was contrary to or involved an unreasonable application of clearly established federal law.
4. Prosecutorial Misconduct
Myers finally complains that the prosecutor engaged in misconduct because he allowed one of the state's witnesses to testify falsely and he failed to correct the testimony. Specifically, he argues that a witness testified differently at trial than he did at Myers' parole revocation hearing and the prosecutor failed to correct this information.
Myers, however, failed to present this claim of "prosccutorial misconduct" to the state courts and has therefore failed to exhaust the claim as required by 28 U.S.C. § 2254(b)(1). See Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1997) ("The exhaustion requirement is satisfied when the substance of the federal claim has been fairly presented to the highest state court."). Moreover, if Myers attempted to present this claim to the state courts in a subsequent state habeas application, the Texas Court of Criminal Appeals would find the claim to be procedurally barred from review by the Texas abuse-of-the-writ doctrine codified in Article 11.07, § 4 of the Texas Code of Criminal Procedure. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995). When a petitioner's federal habeas claim relies upon grounds that were not exhausted in the state courts but state procedural rules would bar subsequent presentation of the claim, the petitioner has procedurally defaulted his claim. Little v. Johnson, 162 F.3d 855, 859 (5th Cir. 1998). See Jones v. Jones, 163 F.3d 285, 296 (5th Cir. 1998) (holding that a federal habeas claim may be "technically" exhausted if a petitioner has "allowed his state law remedies to lapse without presenting his claims to the state courts" and thus, there is "no substantial difference between nonexhaustion and procedural default") Thus, Myers' claim regarding prosecutorial misconduct is barred from review under the procedural default doctrine unless he can demonstrate "cause and prejudice" or that a failure to review the claim will result in a fundamental miscarriage of justice. See Fuller v. Johnson, 158 F.3d 903, 908 (5th Cir. 1998) (holding that a petitioner had procedurally defaulted his federal habeas claim because it was barred from review in state court by the Texas abuse-of-the-writ rule).
Respondent raised the procedural default bar in his answer, but Myers attempted to show neither "cause and prejudice" nor his "actual innocence." See Glover v. Cain, 128 F.3d 900, 904 (5th Cir. 1997) (holding that a prisoner must assert actual innocence to show a fundamental miscarriage of justice). Rather, Myers argues that his claim was addressed by the state court because he "filed a supplement" to his habeas application in the trial court and the supplement was forwarded to the Court of Criminal Appeals on December 17, 1999, with a notation that the supplement contained "nothing new . . . which would alter the recommendation" made in the original order. The state court had issued its findings of fact and order recommending denial of the state application on November 29, 1999. Notwithstanding the procedural bar, however, the Court has examined this allegation and finds that Myers has failed to demonstrate that he is entitled to federal habeas relief
"To establish a due process violation based on the government's use of false or misleading testimony, the defendant must show (1) that the witness's testimony was actually false, (2) that the testimony was material, and (3) that the prosecution knew the witness's testimony was false." Fuller v. Johnson, 114 F.3d 491, 496 (5th Cir. 1997). The testimony or "[e]vidence is false if, inter alia, it is specific misleading evidence important to the prosecution's case in chief." Barrientos v. Johnson, 221 F.3d 741, 753 (5th Cir. 2000) (quoting Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997)). "False evidence is material only if there is any reasonable likelihood that [it] could have affected the jury's verdict." Id. (alteration in the original).
The Court has reviewed the complete record and finds that Myers has offered no evidence other than his conclusory allegations to support his claim that the witness did in fact testify falsely and that the prosecutor knew the testimony was false. Sec Fuller v. Johnson, 114 F.3d at 496 (holding that merely disputing testimony "is not to prove that it is `false'"). "Although pro se habeas petitions must be construed liberally, `mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue.'" Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (quoting United States v. Woods, 870 F.2d 285, 288 n. 3 (5th Cir. 1989)).
CONCLUSION
For the reasons stated above, the Court finds that Myers' Petition for Writ of Habeas Corpus should be denied and dismissed with prejudice.
All relief not expressly granted is denied and any pending motions are hereby denied.