Opinion
No. 3:03-CV-2657-L, (Consolidated with 3:03-CV-2664-G).
May 25, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
Parties
Petitioner Jeffrey Michael Ott is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Factual and Procedural History
As recited by the state court of appeals, the facts of the underlying offenses are as follows:
Early in the morning on October 27, 1999, Erika Ruiz and her roommate Angela Martin were asleep in their apartment. Ms. Ruiz was awaken[ed] by Christopher Grindele, Ott's accomplice, tying up her arms. Jeffrey Ott then entered Ms. Ruiz's bedroom, with a black-handled knife in his hand, and turned on the lights. Ms. Ruiz started screaming and Ott told her to be quiet or "what happened to the other girl would happen to [her]." Ms. Ruiz believed they would hurt or kill her. Ott retied her arms and asked where the drugs and money were. Ms. Ruiz said she did not have any drugs, but told them where her money was. Both men went all around the house stealing various items. When she heard them drive away, Ms. Ruiz untied her feet, locked the door, and went into Ms. Martin's room. Ms. Martin helped Ms. Ruiz untie her hands. They tried to use the phone, but the lines were cut. The outside light was also not working. They got help from a neighbor.
Ms. Martin said that Ott opened her bedroom door and jumped on her bed. He had a black-handled knife in his hand. Ms. Martin feared she would be hurt or killed. Ott told her not to look at him and tied her hands up with pantyhose. Ms. Martin saw Grindele come to her bedroom door, but he never entered the room. They turned on the lights after she was tied up. The first man asked her for money, her keys, and her cell phone while going through her things. When they found her license, one of the men said, "We've got the right one, Angela Martin." They said they had seen her at Hooters, where she worked, but Ms. Martin did not remember either man. Once the lights were turned on, she was able to get a good look at the man in her room, paying attention to his face. She identified Ott in court as the man who tied her up that night, stating she was "absolutely positive" he was the person. Ott exposed one of her breasts and made a comment about it. He started to untie her shorts but stopped when she began to panic. Both men then left. They took a ring from Ms. Ruiz and one from Ms. Martin, both women's cell phones, the television, the stereo, a picture frame, money, both women's keys, and Ms. Martin's silver Camaro.
Ms. Martin was later shown photographic arrays from which she was able to identify Ott as the man who tied her up and molested her. Ms. Martin was able to see Ott's face clearly because her television had been on when he first entered her room and he was only 12 to 18 inches from her. She was able to see him even more clearly when the bedroom lights were turned on. Ms. Ruiz was not able to identify either man because Ott directed her to keep her face in her pillow.
Ott and Grindele were arrested in Waxahachie. They were found with the stolen car, and Grindele had a black-handled knife. At their home, officers found Ms. Martin's driver's license, and numerous other items taken from the victims' home.Ott v. State, Nos. 5-00-1840-41-CR, 2002 WL 55551 (Tex.App. — Dallas Jan. 16, 2002, pets. ref'd) (not designated for publication).
A jury found Ott guilty of two counts of aggravated robbery and assessed his punishment at 35 years' confinement for each offense, to be served concurrently. (1 State Habeas R. at 563; 2 State Habeas R. at 540.) The Fifth District Court of Appeals affirmed the trial court's judgments, and the Texas Court of Criminal Appeals refused Ott's pro se petitions for discretionary review on April 24, 2002. Id.
Ott filed two state applications for habeas corpus relief, challenging his convictions, which the Court of Criminal Appeals denied without written order on the findings of the trial court without a hearing. Ex parte Ott, Nos. 56,659-01 -02 (Tex.Crim.App. Sept. 10, 2003) (not designated for publication). Ott filed two federal petitions for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on October 27, 2003. See RULES GOVERNING SECTION 2254 CASES 3(d) (mandating timeliness determined by date petition placed in institution's internal mailing system); Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing). The District Court consolidated the two petitions. (2657 Docket Entry No. 8; 2664 Docket Entry No. 12.) TEX. R. CIV. P. 42(a).
Issues
Ott raises seven issues:
1. The trial court erred by admitting the impermissibly suggestive photo lineup without conducting a hearing.
2. Martin's in-court identification should have been excluded because it was tainted by the photo lineup.
3. The State engaged in prosecutorial misconduct.
4. The State withheld Brady evidence.
5. Trial counsel was constitutionally ineffective.
6. The evidence was legally insufficient to show the knife was a deadly weapon.
7. Ott is actually innocent.
Exhaustion of State Court Remedies
Dretke believes Ott has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.
Standard of Review
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law 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. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002) (en banc per curiam), cert. denied, 537 U.S. 1104 (2003).
Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
Identification Procedures
Ott argues that because the photo lineup was unconstitutionally suggestive, the trial court should have held a hearing on its admissibility and excluded it. (Federal Pets. at 7; Pet'r Mem. in Supp. at 16-19.) Ott points to the fact that, in comparison to the other five pictures in the lineup, his photo was taken from a greater distance, the background is darker, and his entire photo is brighter, which combine to highlight his photo. Ott also asserts that Martin's in-court identification of him should also have been excluded because it was tainted by the pretrial photo lineup. (Federal Pets. at 7; Pet'r Mem. in Supp. at 19-22.)
The Supreme Court has held that in the case of an eyewitness identification at trial that follows a pretrial photographic identification, the conviction will only be set aside "if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968); see also United States v. Sutherland, 428 U.S. 1152, 1155 (5th Cir. 1970) (holding impermissibly suggestive photo lineup requires the exclusion of any resultant in-court identification), cert. denied, 409 U.S. 1078 (1972). "It is the likelihood of misidentification that violates the defendant's right to due process." Neil v. Biggers, 409 U.S. 188, 198 (1972). To determine whether a pretrial identification and in-court identification should have been excluded, the district courts must decide whether (1) the procedures followed were impermissibly suggestive and (2) they created a substantial risk of misidentification. United States v. Henderson, 489 F.2d 802, 805 (5th Cir. 1973), cert. denied, 417 U.S. 913 (1974). Due process is not violated if the identification possesses sufficient aspects of reliability. Manson v. Brathwaite, 432 U.S. 98, 106 (1977). To assess identification reliability, courts are to consider the opportunity of the witness to view the perpetrator at the time of the crime, the degree of the witness's attention, the accuracy of the witness's prior description of the criminal, the witness's level of certainty at the time of confrontation, and the length of time between the crime and confrontation. Neil, 409 U.S. at 200-01.
The state court of appeals held that the photo lineup was not impermissibly suggestive:
It included six photographs, all of men with features very similar to Ott's. Like Ott, the men have very short hair, as well as facial hair. Each one is standing before the same plain brick wall, with no height chart behind them, and no book-in numbers shown in front of them. Under the totality of the circumstances, this pretrial photographic lineup was not impermissibly suggestive. . . . Therefore, the trial court did not err in admitting Ms. Martin's in-court identification of Ott.Ott, 2002 WL 55551, at *4. Ott has failed to overcome the presumption of correctness of these findings. 28 U.S.C. § 2254(e)(1). Further, based on the facts as stated above regarding Martin's identification of Ott reviewed in conjunction with the state court records and Ott's submissions, the state courts' decision was not contrary to and did not involve an unreasonable application of federal law, and there is no indication it was based on an unreasonable determination of the facts as presented in the state court proceedings. 28 U.S.C. § 2254(d); e.g., United States v. Credit, 95 F.3d 362, 364 (5th Cir.), cert. denied, 519 U.S. 1138 (1996); Conner v. State, 67 S.W.3d 192, 200 (Tex.Crim.App. 2001).
Prosecutorial Misconduct
Ott argues that the State committed prosecutorial misconduct when the State (1) "sponsored" the suggestive photo lineup and (2) misled the jury through the perjurious testimony of the investigating officer and through subsequent jury argument by asserting there was no evidence to support Ott's contention that the robberies were committed by Grindele when, in fact, the State knew the police report contained Grindele's statement that corroborated Ott's account. (Federal Pets. at 7; Pet'r Mem. in Supp. at 22-26.) To merit habeas corpus relief, prosecutorial misconduct must have infected the trial with unfairness so as to make the resulting conviction a denial of due process. Greer v. Miller, 483 U.S. 756, 765 (1987). In other words, the conduct must have rendered the trial fundamentally unfair. Darden v. Wainwright, 477 U.S. 168, 179-81 (1986). A trial will be deemed fundamentally unfair only in the most egregious situations and only if there is a reasonable probability that the verdict might have been different had the trial been properly conducted. Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir. 2000), cert. denied, 531 U.S. 1134 (2001); Ortega v. McCotter, 808 F.2d 406, 410-11 (5th Cir. 1987). With perjury, the Due Process Clause is violated if a petitioner shows that the State knowingly presented materially false evidence to the jury or allowed untrue testimony to go uncorrected. Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir.), cert. denied, 519 U.S. 995 (1996); Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990). To obtain relief, the petitioner must show that (1) the testimony was actually false, (2) the state knew it was false, and (3) the testimony was material. Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th Cir. 1993).
Ott's first complaint is meritless because, as discussed above, the identification procedures were not impermissibly suggestive; thus, the State's "sponsorship" of the photo lineup and Martin's in-court identification could not equate to a due-process violation.
Ott's second complaint is, likewise, unavailing. As pointed out by the State in its response to Ott's state habeas applications and as relied on by the state courts in denying Ott state habeas relief, the police report narrative relative to Grindele's statement was inadmissible hearsay and could not have been relied on by the State. (1 State Habeas R. at 533, 556; 2 State Habeas R. at 511, 533.) Further, Ott has failed to meet his burden of proof that the State knowingly presented materially false evidence to the jury or allowed untrue testimony to go uncorrected. E.g., United States v. Martinez-Mercado, 888 F.2d 1484, 1492 (5th Cir. 1989) (holding the omission of certain facts from reports and written statements of State's witnesses is not adequate either to put the prosecution on notice of perjury or to establish perjury).
Brady Violation
Ott argues that the State withheld the investigative officer's narrative of Grindele's confession, which was exculpatory Brady evidence. (Federal Pets. at 8; Pet'r Mem. in Supp. at 26-30.) A petitioner's due-process rights are violated when the State suppresses impeachment or exculpatory evidence where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the State. Strickler v. Greene, 527 U.S. 263, 280 (1999); Brady v. Maryland, 373 U.S. 83, 87 (1963). Even inadmissible evidence may be material for Brady purposes. Spence v. Johnson, 80 F.3d 989, 1005 n. 14 (5th Cir.), cert. denied, 519 U.S. 1012 (1996). To establish a Brady violation, Ott must prove that: (1) the State suppressed or withheld evidence (2) that was favorable and (3) material to guilt or punishment. Moore v. Illinois, 408 U.S. 786, 794-95 (1972); Vega v. Johnson, 149 F.3d 354, 363 (5th Cir. 1998), cert. denied, 525 U.S. 1119 (1999). Undisclosed evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Wood v. Bartholomew, 516 U.S. 1, 5 (1995). A reasonable probability of a different result is shown when nondisclosure puts the case in a different light so as to undermine confidence in the jury verdict. Kyles v. Whitley, 514 U.S. 419, 434-35 (1995).
As a preliminary matter, Dretke is correct that the investigating officer's narrative of Grindele's statement would have been inadmissible hearsay evidence. TEX. R. EVID. 802, 803 (8)(B). But disclosure of the evidence would not have created a reasonable probability that the result of the proceeding would have been different. First, the fact that Grindele had a part in the robberies was certainly within Ott's knowledge; thus, this fact could not have been suppressed or withheld. United States v. Newman, 849 F.2d 156, 161 (5th Cir. 1988). Second, Ott's version of events — that Grindele and possibly someone else committed the robberies — was before the factfinder. (6 R.R. at 118-19.) Trial counsel did not call Grindele as a witness because Grindele's attorney told him Grindele would testify that "he and Ott had committed the robberies together and that they had made up the story about Ott not being involved in order to protect Ott." (1 State Habeas R. at 558; 2 State Habeas R. at 535.) Not only does this indicate that counsel and Ott were aware of Grindele's prior assertions that Ott was not involved, but it negates any finding that the statement was material. E.g., Felder v. Johnson, 180 F.3d 206, 212-13 (5th Cir.), cert. denied, 528 U.S. 1067 (1999); United States v. Marrero, 904 F.2d 251, 261 (5th Cir. 1990), cert. denied, 498 U.S. 1000 (1990); Adanandus v. Johnson, 947 F. Supp. 1021, 1063-65 (W.D. Tex. 1996), aff'd, No. 96-50798, 114 F.3d 1181 (5th Cir. Apr. 7, 1997) (unpublished table opinion).
There is no evidence to contradict the state courts' finding on state habeas that Brady was not violated. (1 State Habeas R. at 555; 2 State Habeas R. at 532.) A federal habeas court is bound by a state court's finding that exculpatory evidence was not suppressed in violation of Brady. Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998), cert. denied, 526 U.S. 1118 (1999). Thus, Ott is not entitled to habeas relief because he has failed to overcome the statutory presumptions. 28 U.S.C. § 2254(d), (e)(1).
Ineffective Assistance of Counsel
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions; rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct, and is presumed to have been adequate. Id. at 689-90. Strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Id. at 690-91.
Ott's complaints about trial counsel were reviewed and rejected during state collateral review proceedings and on direct appeal. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state court's rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d).
Ott asserts that trial counsel was constitutionally ineffective when he did not conduct an adequate investigation and discover the investigating officer's report with Grindele's statement and failed to call Grindele as a witness. (Federal Pets. at 8a; Pet'r Mem. in Supp. at 31-35.) On state habeas review, counsel submitted an affidavit averring that he did investigate and that he did not call Grindele as a witness as a matter of trial strategy:
My investigator on these cases, Jay Monych, and I prepared extensively for Mr. Ott's trial beginning in March of 2000 up until the trial in late October of that year. During that time we were given full discovery by the prosecution including all arrest reports and supplements. At the beginning, Mr. Ott wanted us to try and secure Grindele's supposed favorable testimony. Grindele was also facing the same aggravated robbery charges and was represented by a Dallas attorney named William Ashe. I spoke with Mr. Ashe on the first of many occasions in early March. He indicated that his client wanted to negotiate a plea bargain with the prosecutor and did not wish to speak with me about Ott. In late March the cases were set for a July 10, 2000 trial.
My investigator and I continued to pursue the paths that Mr. Ott felt would be useful at trial (speaking with witnesses we had and attempting to find others) all the time trying to secure Grindele's testimony about the events of the night of the crimes. After repeatedly speaking with Mr. Ashe about his client's intentions, in early June he informed me that far from being prepared to help Ott at trial, Grindele planned to testify that he and Ott had committed the robberies together and that they had made up the story about Ott not being involved in order to protect Ott. They apparently originally felt that Grindele would get probation on a guilty plea and that he could tell the court of Ott's innocence during the plea. They felt that Ott was certain to not be offered probation as part of a plea bargain given his criminal record and that this was the only way to minimize the risk to each of them. When it became apparent that the prosecutor had no intention of offering Grindele probation, he decided to testify against Ott in order [to] better his position.
I told Ott of this development and we talked at length about our options. I told him that I felt Grindele could be successfully impeached at our [trial] by pointing out to the jury that he had changed his story to simply help himself. However, given the fact that no witness could corroborate Ott's version, Ott ultimately felt that calling Grindele was simply too much of a risk. This was a calculated trial decision arrived at by both myself and Mr. Ott.
(1 State Habeas R. at 557-58; 2 State Habeas R. at 534-35.) Based on this affidavit, the state habeas courts concluded that counsel was not ineffective. (1 State Habeas R. at 554-555; 2 State Habeas R. at 531-32.) Ott has failed to overcome the presumption of correctness of these findings. 28 U.S.C. § 2254(e)(1). Further, the strategic decision not to call Grindele as a witness cannot be second-guessed. Strickland, 466 U.S. at 689-91.
Sufficiency of the Evidence
Ott argues that the evidence is legally insufficient to show that the knife, in the manner it was used, was a deadly weapon. (Federal Pet's at 8a; Pet'r Mem. in Supp. at 35-38.) However, this claim is procedurally barred.
Ott raised his insufficiency challenge in his state habeas corpus applications. (1 State Habeas R. at 7; 2 State Habeas R. at 7.) In its responses to Ott's applications, the State asserted that the sufficiency-of-the-evidence claim was barred from habeas review because it was not raised on direct appeal. (1 State Habeas R. at 534; 2 State Habeas R. at 512.) The state trial court ruled that there were no controverted, previously unresolved facts material to the legality of Ott's confinement regarding this issue. (1 State Habeas R. at 556; 2 State Habeas R. at 533.) The Court of Criminal Appeals denied the application without written order on this finding.
Although the Court of Criminal Appeals stated no explicit reasons when it denied habeas relief, that court has long held that the sufficiency of the evidence may only be raised on direct appeal and may not be raised in a state habeas proceeding. West v. Johnson, 92 F.3d 1385, 1389 n. 18 (5th Cir. 1996), cert. denied, 520 U.S. 1242 (1997); Ex parte McLain, 869 S.W.2d 349, 350 (Tex.Crim.App. 1994). Indeed, the Court of Criminal Appeals recently reaffirmed that where a state habeas applicant challenges the sufficiency of the evidence in a state habeas application and the court subsequently disposes of the application by entering a denial without written order, the applicant's sufficiency claim was denied because it was not cognizable. Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex.Crim.App. 2004). Thus, this procedural default in the state courts is an adequate state procedural ground barring federal habeas review. Ylst v. Nunnemaker, 501 U.S. 797, 801-07 (1991).
In any event, the evidence was legally sufficient to show that the knife was a deadly weapon. While assaulting Martin, Ott held a small knife in his hand close to her body. (4 R.R. at 46.) Martin felt that she possibly could have been injured or killed. ( Id. at 47.) A crime lab examiner testified that the knives found with Grindele and Ott were capable of being used as deadly weapons. (5 R.R. at 61.) This is sufficient to support a finding that the intended use for the knife was that it was capable of causing death or serious bodily injury; thus, it was a "deadly weapon" for purposes of aggravating element of aggravated robbery. TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (Vernon Supp. 2004-05), § 29.03(a)(2) (Vernon 2003); McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000).
Actual Innocence
Ott argues that he is actually innocent. (Pet'r Submission of Ev. at 3-6.) Actual innocence based on new evidence relevant to the guilt of a state prisoner is not cognizable on federal habeas corpus absent an independent constitutional violation occurring in the state trial. Herrera v. Collins, 506 U.S. 390, 400 (1993); Jacobs v. Scott, 31 F.3d 1319, 1324 (5th Cir. 1994), cert. denied, 513 U.S. 1067 (1995). However, this exception does not apply to "freestanding" actual-innocence claims, but only applies when actual innocence supplements an otherwise barred constitutional claim. Herrera, 506 U.S. at 404-05; Lucas, 132 F.3d at 1074-75. An independent actual-innocence claim is properly raised in either the state habeas process or in the executive clemency process. Robinson v. Johnson, 151 F.3d 256, 267 n. 7 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999); Lucas v. Johnson, 132 F.3d 1069, 1075 (5th Cir.) cert. dismissed, 524 U.S. 965 (1998). Ott's actual-innocence claim is not cognizable.Summary
Ott is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Ott was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
Recommendation
This Court recommends that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be DENIED.