Opinion
Civil Action No. 98-0171-CB-L
November 29, 2000
REPORT AND RECOMMENDATION
Michael Coley O'Shields, a state prisoner currently in the custody of the respondent, filed his complaint for habeas corpus relief pursuant to 28 U.S.C. § 2254 on February 19, 1998 (Doc. 1). After service of that complaint, respondent filed an answer on May 11, 1998 (Doc. 9). This case was transferred to the undersigned on January 5, 2000.
This action has been referred to the undersigned for entry of proposed findings of fact and a recommendation as to the appropriate disposition of the issues in the complaint 28 U.S.C. § 636 (b)(1)(B); 28 U.S.C. foll. § 2254, Rule 8(b)(1). After a complete review of this action, the undersigned determines that O'Shields's petition should be denied.
FINDINGS OF FACT
1. Petitioner is attacking his May 24, 1995, conviction in the Circuit Court of Dallas County on the charge of murder in the first degree. (Doc. 1, page 3.)
2. Petitioner was represented during trial by P. Vaughan Russell, and on appeal by Blanchard McLeod, both appointed counsel.
3. The trial was conducted May 22-24, 1995 (Doc. 10, Exhibit A), and the petitioner testified on his own behalf. Id After being found guilty, petitioner was sentenced on August 18, 1995 to life in prison, and he was ordered to pay $100 to the Alabama Crime Victims' Compensation Fund. (Doc. 10, Exhibit A, Vol. I, p. 81.)
4. On direct appeal, petitioner raised four issues:
(i) Whether the appellant's confessions should have been suppressed because it was unconstitutionally obtained after O'Shields had invoked his right to counsel;
(ii) Whether the state proved the necessary elements of corpus delicti to sustain a valid conviction;
(iii) Ineffective assistance of trial counsel where trial counsel failed to move for a mistrial after an alleged outburst directed at O'Shields by a member of the victim's family in the presence of the jury venire.
(iv) Trial court error by denying motions for directed verdict and judgment of acquittal because of insufficient evidence.
(Doc. 10, Exhibit B.)
5. The Alabama Court of Criminal held that O'Shields's confession should have been suppressed because it was obtained after he had invoked his right to counsel. O'Shields v. State, 689 So.2d 227 (Ala.Cr.App. 1996), reh. denied November 22, 1996, cert. denied February 21, 1997. However, the Court of Criminal Appeals also ruled that
The evidence in support of the state's case, based primarily on the testimony of Nichols, Hemphill, Kynard, and David O'Shields, was sufficient to prove beyond a reasonable doubt that the appellant committed the crime charged. The trial court's admission of the appellant's confession was harmless beyond a reasonable doubt.Id., at 231. The Court also rejected O'Shields's second issue on sufficiency of the evidence. "Viewing the evidence in the light most favorable to the state, we conclude that there was sufficient evidence to support the jury's verdict." Id., at 232. As to petitioner's third issue, the Court concluded, after reviewing the appropriate law, that "the state presented sufficient circumstantial evidence to prove the corpus delicti of the murder charge. The trial court correctly submitted the case to the jury." Id. Finally, the Court rejected O'Shields's claim of ineffective assistance of counsel relating to the failure to move for mistrial after an alleged outburst. "The appellant has not shown that the performance of his counsel was deficient, therefore he could make no showing that his defense was prejudiced by deficient performance." Id.
6. Certificate of final judgement was issued in petitioner's case on February 21, 1997. (Alabama Supreme Court 1960343.)
7. On application for rehearing in an unrelated case, Cothren v. State, 705 So.2d 849 (Ala.Cr.App. 1997), the Alabama Court of Criminal Appeals overruled the first issue presented in O'Shields v. State, 689 So.2d 227 (Ala.Cr.App. 1996), invocation of right to counsel:
[Cothren] argues that this court's ruling in its original opinion in this case contradicts its holding in O'Shields [citation omitted]. In O'Shields, we held that the phrase "I think I may need a lawyer" was an unequivocal request for a lawyer and that the defendant's subsequent confession should have been suppressed. We also held in O'Shields that the failure of the trial court to suppress the defendant's confession was harmless error, because the remaining evidence against the defendant was overwhelming.
It should be noted that then Presiding Judge Taylor wrote both the O'Shields opinion and the original opinion in this case. It is clear that in this opinion, Judge Taylor engaged in further analysis of the relevant caselaw. He specifically considered Davis v. United States, 512 U.S. 452 (1994), Edwards v. Arizona, 451 U.S. 477 (1981), Brown v. State, 668 So.2d 102 (Ala.Cr.App.), cert. denied 668 So.2d 105 (Ala. 1995) and concluded that the appellant's statement was not an unequivocal request for legal counsel.
Insofar as O'Shields conflicts with this opinion [in Cothren] and with the opinion written by Judge Taylor, O'Shields is overruled.Cothren, 705 So.2d at 861.
7. The petitioner did not file a Rule 32 collateral attack on his conviction. (Doc. 1.)
8. Petitioner's present habeas petition presents four issues:
The grounds listed are quoted from O'Shields's petition, Doc. 1, p. 7.
(i) Conviction obtained by use of a coerced confession during interrogation by law enforcement authorities after O'Shields's invocation of Fifth Amendment right to counsel.
(ii) State did not prove corpus delicti in this conviction, not to a moral certainty;
(iii) O'Shields was denied evidentiary hearing by Circuit Court once prima facie case of ineffective assistance of counsel was shown;
(iv) State did not carry burden of proof with regard to offenses on indictment trial. Trial court denied directed verdict of acquittal.
CONCLUSIONS OF LAW
In the present case, the respondent has stated that O'Shields has exhausted his state remedies since all four issues raised in the current habeas petition were presented on direct appeal and have been addressed on the merits by the Alabama Court of Criminal Appeals, 689 So.2d 227, with certiorari denied by the Alabama Supreme Court on February 21, 1997. O'Shields's petition is also timely, because it was filed on February 19, 1998, with one year after certificate of judgment was issued in petitioner's case and thus within the one-year statute of limitations set by 28 U.S.C. § 2244 (d)(1). Therefore, the Court will consider the merits of petitioner's claims.The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) "amended 28 U.S.C. § 2254 by establishing a more deferential standard for federal court review of state court adjudications." Fugate v. Turpin, 8 F. Supp.2d 1383, 1385 (M.D. Ga. 1998). The § 225, as amended, apply in this action, since it was filed after the effective date of the AEDPA, April 24, 1996. Neelley v. Nagle, 138 F.3d 917, 92 1-922 (11th Cir. 1998), cert. denied, 480 U.S. 926, 119 S.Ct. 811, 142 L.Ed.2d 671 (1999).
The pertiment portions of amended § 2254 are:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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.
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.28 U.S.C. § 2254 (West Supp. 1999).
The Supreme Court has recently explained the application of § 2254(d) in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000). The Court stated that "state-court judgments must be upheld unless, after the closest examination of the state-court judgment, a federal court is firmly convinced that a federal constitutional right has been violated." Williams, at 1511. The court further stated:
[T]he most important point is that an unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s 'unreasonable application' clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.Id., at 1522 (emphasis added). In applying the Williams standard, the Eleventh Circuit in McIntyre v. Williams, 2000 WL 873301 (11th Cir. 2000), indicated that a writ of habeas corpus should be issued only if "the state court's decision was contrary to, or involved an objectively unreasonable application of, the governing Federal law set forth by Supreme Court cases." McIntyre, at *2. Moreover, the Supreme Court has more recently stated, "A state determination may be set aside under [the Williams] standard if, under clearly established federal law, the state court was unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled." Ramdass v. Angelone, ___ U.S. ___, 120 S.Ct. 2113, 2120 (2000).
1. RIGHT TO COUNSEL
The petitioner's first claim is that his conviction in unconstitutional because it was the result of a coerced confession after he had invoked his Fifth Amendment right to counsel. Specifically, the petitioner claims that when he was being interviewed by police that he requested counsel but that the interview proceeded and it was at this point that the confession was given which was admitted into evidence at trial.
The transcript of the May 12, 1994 interview between Selma detectives Harrell and Freine and the petitioner reflects that petitioner was mirandized at the beginning of the interview. (Doc. 10, Exhibit A, Vol. II, at 188.) Also at the beginning of the interview, the petitioner executed a written waiver which he initialed in five places and signed twice. (Doc. 10, Exhibit A, Vol. I, at 154.) Approximately halfway through the morning interview, the following exchange occurred:
DETECTIVE HARRELL: What I'm saying is I want to hear — there is two sides to everything.
DETECTIVE FREINE: Are you willing to tell us what happened, Mike?
PETITIONER: No, I think I better talk to a lawyer. You know, I'm not trying to be smart or short or anything else.
According to the transcript, the petitioner said, "No, I think I better talk to a lawyer," while the Alabama Court of Criminal Appeals characterized the statement as "I think I may need a lawyer." O'Shields, 689 So.2d at 229. The Court's analysis under Davis is no different despite this semantic difference.
FRIENE: Well, that's your right. I'd probably be smart too.
PETITIONER: I've just been heard — you know, I've just been told since day one from everybody that seemed like they had my interest at heart in this, don't talk to nobody. Don't admit to nothing. Talk to a lawyer and let him advise you.
FRIENE: Well, that's fine. That's your right, and I want you to do that. Just remember this, I came and gave you the opportunity.
(Doc. 10, Exhibit A, Vol. III, at 207.)
However, after Detective Freine made this statement, the petitioner continued to talk to the detectives. He did not confess but rather rambled about mainly unrelated subjects. Id., 207-240. The interview ceased when petitioner was taken to lunch.
After he returned from lunch, petitioner executed another waiver of rights, which he initialed five times and signed twice. (Doc. 10, Exhibit A, Vol. I, at 155.) This interview was videotaped and later transcribed. Before petitioner executed the second waiver, the following exchange occurred:
DET. CARMICHAEL: You are giving this statement of your own free will?
O'SHIELDS: My conscience bearing and the good Lord bearing on me, yes sir, I want to give this statement.
( Id., at 159.) The petitioner went on to provide a narrative of the murder of Ruby Oliver, in which he stated, "I got on top of Ruby and with these two hands, forgive me God, with these two hands I choked her to death." Id., at 160. Petitioner went on to answer the detectives' questions about how he disposed of the victim's body in the Alabama River.
The Supreme Court's holding in Williams v. Taylor requires this Court to determine whether the state court's interpretation and application of Davis v. United States, 512 U.S. 452, 114 S.Ct2350, 129 L.Ed.2d 363 (1994), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), to petitioner's claim that his confession should have been suppressed because it was obtained after he invoked his right to counsel, was unreasonable.
In Edwards, the Supreme Court held that a custodial interrogation must cease once a suspect has clearly asserted his right to have counsel present during custodial interrogation. Edwards, 451 U.S. at 484, 485. In the more recent Davis case, the Court confronted the issue of "how law enforcement officers should respond when a suspect makes a reference to counsel that is insufficiently clear to invoke the Edwards prohibition on further questioning." Davis, 512 U.S. at 454. In Davis, the accused waived his right to counsel, both orally and in writing. However, ninety minutes into a custodial interrogation, the suspect stated, "Maybe I should talk to a lawyer." Id., at 455. When one of the interviewing agents began to cease the interrogation, the accused recanted, saying, "No, I'm not asking for a lawyer." Id. The Supreme Court found Davis's statements ambiguous, not a clear request for counsel. The Court stated, "the suspect must unambiguously request counsel". Id. at 459. The Court further stated:
We held in Edwards that if a suspect invokes the right to counsel at any time, the police must immediately cease questioning him until an attorney is present. But we are unwilling to create a third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer. Unless the suspect actually requests an attorney, questiornng may continue.Davis, 512 U.S. at 462.
A review of the entire transcript from both interviews reveals that petitioner's reference to a lawyer was made in the morning interview when he stated, "I think I better talk to a lawyer." After this statement was made the petitioner was again given the opportunity to request counsel and specifically waived it in writing. Analyzing the statement under the Supreme Court's holding in Davis, this Court concludes, that the Alabama Court of Criminal Appeals in determination in Cothren that the petitioner's remark was not a clear request for counsel that should have caused the interview to cease is not an unreasonable application of Davis. Rather, like Davis, O'Shields did not actually request a lawyer and once an ambiguous statement was made the investigators clarified it by informing him of his rights and obtaining a second waiver of those rights. While it may be debatable whether the state court in Cothren correctly extended Davis and Edwards to the facts of the O'Shields case, the application was not unreasonable. O'Shields has therefore failed to state a viable ground for habeas corpus relief on his first issue.
The Alabama Court of Criminal Appeals initially relied upon harmless error to affirm petitioner's conviction. However, this court does not reach the question of harmless error, because the state court superseded its own holding when it applied Davis and Edwards to the petitioner's case in Cothren, expressly overruling its earlier holding in O'Shields. See Cothren, 705 So.2d at 861.
2. SUFFICIENCY OF THE EVIDENCE
In grounds two and four of his petition, petitioner basically claims that the evidence was insufficient to convict him of murder. Specifically he states that the State did not prove the corpus delicti or produce sufficient evidence to sustain his conviction.
Petitioner states that the "[s]tate did not prove corpus delicti in this conviction, not to a moral certainty. Appellant found guilty of murder without any physical evidence, any eye witness to alleged crime, no proof of alleged death of alleged victim and no corpse of the alleged victim has ever been produced [ sic]." (Doc. 1, p. 8).
State did not carry burden of proof with regard to offenses on indictment. Trial court denied directed verdict of acquittal. [Supporting facts:] State did not produce sufficient evidence at trial to sustain conviction. Reversible error for trial court to deny defense motion for directed verdict of acquittal as well as the defense's motion for judgment of acquittal [ sic].
This court reviews petitioner's sufficiency of the evidence claims under Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In Jackson, the Supreme Court held that the crucial question for federal courts reviewing sufficiency of the evidence claims on habeas review is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319.
The Alabama Court of Criminal Appeals reviewed the evidence on direct appeal concerning petitioner's sufficiency of the evidence claim and stated as follows:
The state's evidence tended to show that in March 1990 the appellant murdered his ex-wife, Ruby Oliver. Betty Hemphill testified that she had attended Riley College with Ruby in 1990. She stated that one Wednesday in March 1990 the appellant picked Ruby up at school around noon and that she did not see the victim after that day. [Tr. 386, 387.]
Michael Alston Nichols, a friend of the appellant's, testified that one afternoon in March 1990 he went to the appellant's trailer and the appellant told him that he had killed Ruby. [Tr. 427.] Nichols further testified that at the time he did not believe what the appellant was telling him. [Tr. 427.] The appellant then directed Nichols to his bedroom where, Nichols said, the appellant had Ruby's body wrapped in a blanket. [Tr. 414-416.] Nichols testified that he told the appellant that he would not telephone the police and he then left. [Tr. 429.] Nichols stated that the appellant came to his house with Ruby's body about 10:30 p.m. that evening to get some cement blocks. [Tr. 430-31.] He said that he accompanied the appellant when he dumped Ruby's body with cement blocks into the Alabama River. [Tr. 431-32.] Ruby's body was never recovered.
O'Shields, in his confession, stated that he picked Ruby up at Riley College one day in March 1990 so that Ruby could get some things from his trailer. [Doc. 10, Exhibit A, Vol. I, at 160.] They got into a heated discussion, O'Shields said, concerning her relationship with someone else. [ Id.] He stated that Ruby told him that she was in love with the other person and that she did not care for him anymore. [ Id.] O'Shields further confessed that Ruby told him that he "did nothing" for her sexually. O'Shields stated that he "lost it," knocked her down, choked her to death, and then threw her body in the Alabama River. [ Id.]
David O'Shields, the appellant's uncle, testified that the appellant, who was white, had told him that he had strangled his ex-wife because she was dating a black man and had thrown her body in the river. [Tr. 500.]
Mike Kynard, a friend of the appellant's, testified regarding three conversations he had with O'Shields. Kynard testified that in 1990 O'Shields told him that he had threatened Ruby after learning that she was dating a black man, and that she had left town. [Tr. 517.] A month later, Kynard stated, O'Shields told him that he had ties to the Mafia and that he had traded someone in the Mafia a Thunderbird automobile to have Ruby killed. [Tr. 519.] Kynard testified that two weeks after that conversation O'Shields confessed to him that he had killed Ruby and had thrown her body in a river. [Tr. 520.]O'Shields, 689 So.2d at 228.
This Court has reviewed the transcript and finds the Alabama Court's summary of the evidence to be accurate. Citations to the transcript have been inserted into the citation from petitioner's direct appeal.
The Alabama Court of Criminal Appeals considered petitioner's sufficiency of the evidence claim on direct appeal and stated as follows:
"When reviewing a challenge to the sufficiency of evidence, we accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable the the prosecution. (Citations omitted). When the court is reviewing a conviction based upon circumstantial evidence, the question that must be answered is whether "the evidence adduced is consistent with guilt and inconsistent with any reasonable hypothesis that the [defendant] is innocent. (Citations omitted) . . . .
[O'Shields] further contends that the state failed to prove the necessary elements of the corpus delicti in order to sustain his conviction.
"[T]he Alabama rule is that circumstantial evidence by itself is often satisfactory proof of the corpus delicti of a murder, if the totality of the facts presented would allow the jury to 'reasonably' infer the crime. In such cases the questions of a defendant's guilt must be submitted to the jury for their decision. Johnson v. State, 247 Ala. 271, 24 So.2d 17 (1945); Phillips v. State, 248 Ala. 510, 28 So.2d 542 (1946); Hoback v. State, Ala.Cr.App., 338 So.2d 439, cert. denied, Ala., 338 So.2d 444 (1976); Scroggins v. State, Ala.Cr.App., 341 So.2d 967, cert. denied, Ala., 341 So.2d 972 (1977)." Taylor v. State, 405 So.2d 946, 949 (Ala.Cr.App.), writ quashed, 405 So.2d 951 (Ala. 1981). See also Tarver v. State, 500 So.2d 1232 (Ala.Cr.App.), aff'd, 500 So.2d 1256 (Ala. 1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987).
Here, the state presented sufficient circumstantial evidence to prove the corpus delicti of the murder charge. The trial court correctly submitted the case to the jury.O'Shields, supra, at 231-232. The court further stated, "The evidence in support of the state's case, based primarily on the testimony of Nichols, Hemphill, Kynard, and David O'Shields, was sufficient to probe beyond a reasonable doubt that the appellant committed the crime charged. . . . Viewing the evidence in the light most favorable to the state, we conclude that there was sufficient evidence to support the jury's verdict." O'Shields, 689 So.2d at 231, 232.
Petitioner was indicted, tried, and convicted for the murder of Ruby Ann Oliver (Doe. 10, Exhibit A., Vol. 1 at 3), a violation of Alabama Code § 13A-6-2, which states in relevant part' "A person commits the crime of murder if: (1) with intent to cause the death of another person, he causes the death of that person or another person." ALA. CODE. § 13A-6-2(a) (Michie 1990). After a review of the facts and the law applied, this Court finds no basis to conclude that the state court adjudication was contrary to federal law or that Supreme Court precedent was unreasonably applied. Viewing the evidence in the light most favorable to the prosecution, this Court finds that "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, supra, 443 U.S. at 319 (citations omitted). Petitioner's grounds two and four thus present no basis for habeas corpus relief.
3. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner's third claim is, presumably, that he was denied effective assistance of counsel. Specifically, the petitioner states that:
Appellant denied evidentiary hearing by Circuit Court once prima facie case of ineffective assistance of counsel was shown. [Supporting facts:] Action by alleged victim's family member during voir dire tainted jury venire. Incident not recorded due to trial court counsel. Family member pointed finger at appellant as if it were a gun and shouted `Bang, Bang' in full view of jury venire.
(Doc. 1, at 8.)
The Alabama Court of Criminal Appeals considered petitioner's claim of ineffective assistance of counsel and stated:
The appellant next contends that he was denied effective assistance of counsel. Specifically, he contends that his trial counsel failed to move for a mistrial or to preserve a record of alleged prejudicial conduct of members of the victim's family that occurred in the presence of the venire.
"For the appellant to succeed on his argument that his trial counsel was ineffective, he must meet the two-pronged test promulgated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The appellant must show 1) that his trial counsel's performance was deficient and 2) that such deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Furthermore, 'when this court is reviewing a claim of ineffective assistance of counsel, we indulge a strong presumption that counsel's conduct was appropriate and reasonable.' Hallford v. State, 629 So.2d 6, 8 (Ala.Cr.App. 1992). The burden is on the appellant to show that his counsel's performance was deficient. Luke v. State, 484 So.2d 531 (Ala.Cr.App. 1985)." Williams v. State, 641 So.2d 1305, 1307 (Ala.Cr.App. 1994). The alleged conduct the appellant contends occurred is not contained in the record. The record reveals that the trial court acknowledged "two instances" that occurred during jury selection. The trial court informed the attorneys that they would be responsible for the actions of their witnesses. The record is silent as to what occurred during the proceedings.
"'This court cannot predicate error on matters not shown by the record, nor can we presume error from a silent record.' Smelcher v. State, 520 So.2d 229 (Ala.Cr.App. 1987); Abbott v. State, 494 So.2d 789 (Ala.Cr.App. 1986). 'Where the record is silent on appeal, it will be presumed that what ought to have been done was not only done, but rightly done.' Jolly v. State, 405 So.2d 76 (Ala.Cr.App. 1981); Watson v. State, 398 So.2d 320 (Ala.Cr.App. 1980), writ denied, 398 So.2d 332 (Ala.), cert. denied, 452 U.S. 941, 101 S.Ct. 3085, 69 L.Ed.2d 955 (1981)."0wens v. State, 597 So.2d 734, 736 (Ala.Cr.App. 1992).
The appellant has not shown that the performance of his counsel was deficient, therefore he could make no showing that his defense was prejudiced by deficient performance.
Further, "[e]very court has power to preserve and enforce order in its immediate presence; to prevent interruption, disturbance, or hindrance to its proceedings; and to control all persons connected with a judicial proceeding before it." Clark v. State, 280 Ala. 493, 497, 195 So.2d 786 (1967), appeal dismissed, cert. denied, 387 U.S. 571, 87 S.Ct. 2071, 18 L.Ed.2d 967 (1967).O'Shields, at 232-233.
The Supreme Court's holding in Williams v. Taylor requires this Court to determine whether the state court's interpretation and application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), was unreasonable. The two-part Strickland test requires the petitioner to show (1) that his trial counsel's performance was deficient, and (2) prejudice to the petitioner resulting from the deficient performance. Strickland, 466 U.S. at 687. Furthermore, the Supreme Court's stated that "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel." Strickland, 466 U.S. at 688-89. Courts must "Judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct," id., at 690, and "[j]udicial scrutiny of counsel's performance must be highly deferential," id., at 689.
The first question under Strickland, is whether counsel's performance was deficient. The Court of Criminal Appeals concluded that petitioner made no showing of deficient performance because there was no record of the outburst of which petitioner complained. O'Shields, at 232-233. Even if this court assumes that such an incident occurred, there are no facts even alleged to support this court second guessing why defense counsel, if he was even aware of the incident, did not choose to make an issue of the incident.
Moreover, other than his assertion in the petition that trial counsel's failure to preserve an objection concerning the alleged incident amounted to a "prima facie case of ineffective assistance of counsel," petitioner has made no attempt to show that his counsel's allegedly deficient conduct resulted in any prejudice to the petitioner. Therefore, the state court's application of Strickland and determination that the petitioner had not shown ineffective assistance of counsel was not unreasonable. As such, Petitioner's ground three presents no basis for habeas corpus relief.
CONCLUSION
The undersigned recommends that petitioner's request for habeas corpus relief be DENIED.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.