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CIVIL ACTION NO. 4:02-CV-1036-A.
July 21, 2003.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Tommy Raymond Phillips, TDCJ-ID #784714, is in custody of the Texas Department of Criminal Justice, Institutional Division, in Kenedy, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
On April 11, 1997, a jury found Phillips guilty of murdering Irish Thomas and assessed his punishment at fifty years' confinement. (Tr. at 77.) On July 30, 1998, the Second District Court of Appeals affirmed the trial court's judgment in an unpublished opinion. Phillips v. State, No. 2-97419-CR (Tex.App.-Fort Worth July 30, 1998) (not designated for publication). Phillips did not timely seek discretionary review from the Texas Court of Criminal Appeals.
On May 1, 2001, Phillips filed a state application for writ of habeas corpus arguing, among other things, that his appellate counsel was ineffective by failing to inform him of his right to file a pro se petition for discretionary review (PDR). On February 13, 2002, the Court of Criminal Appeals granted habeas relief to the extent it allowed Phillips to file an out-of-time PDR. Exparte Phillips, No. 74,282 (Tex.Crim.App. Feb. 13, 2002) (not designated for publication). Thereafter, Phillips filed a PDR, which was refused by the Court of Criminal Appeals on August 15, 2002. Phillips v. State, No. 0593-02 (Tex.Crim.App. Aug. 15, 2002) (not designated for publication).
On December 10, 2002, Phillips filed the instant federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, and the action was subsequently transferred to the Fort Worth Division. Cockrell filed a motion to dismiss the petition on limitations grounds, to which Phillips filed an "Objection." On March 31, 2003, the United States Magistrate Judge entered his Findings, Conclusions, and Recommendation, wherein he recommended that the petition be dismissed as time-barred. 28 U.S.C. § 2244(d). The United States District Judge, on April 3, 2003, accepted the Findings, Conclusions, and Recommendation, and entered ajudgment dismissing the petition as time-barred. On May 7, 2003, the District Judge, having reconsidered the limitations issue and determining that Phillip's petition was timely filed, vacated the April 23, 2003 judgment, reinstated this action, and again referred the action to the Magistrate Judge for further proceedings.
See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
The District Judge has indicated that, for the same reasons stated in his May 7, 2003 memorandum opinion and order in Gibbons v. Cockrell, No. 4:02-CV-960-A, 2003 WL 21056749 (N.D. Tex. May 7, 2003), that Phillips's out-of-time PDR "constituted part of the `direct review' process for purposes of 28 U.S.C. § 2244(d)(1)(A)," thus tolling the running of the limitations period, and that Phillips's petition was therefore timely. The Fifth Circuit Court of Appeals, in Salinas v. Cockrell, No. 02-41721, has granted a certificate of appealability on the same or similar limitations issue presented in this case.
D. ISSUES
In his petition, Phillips alleges he was denied due process when the appellate court (1) denied his claim of trial court abuse of discretion, (2) denied his claim of actual innocence, (3) denied his claim of "no evidence to support the conviction," and (4) denied his claim of prosecutorial misconduct. (Pet. at 7-8.)E. RULE 5 STATEMENT
Cockrell contends that Phillips's second, third, and fourth grounds are unexhausted and, thus, the petition should be dismissed. (Resp't Answer at 7-11.) See Rose v. Lundy, 455 U.S. 509, 522 (1982). Nevertheless, she addresses the merits of the claims, which are considered herein. 28 U.S.C. § 2254(b)(2).
F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C. § 2254(d), 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 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 Supreme Court of the United States 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 is an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08. Further, federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. 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 the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
2. Sufficiency of the Evidence/Actual Innocence
Phillips's grounds one, two, and three involve the sufficiency of the evidence to support his conviction and are discussed together. (Pet. at 7.) In his first ground, Phillips contends he "was denied due process of law when the appellate court denied his claim of trial court abuse of discretion." (Pet. at 7.) Specifically, he contends the trial court abused its discretion when it refused to grant his motion for directed verdict as to the elements of identity and corpus delicti. (Id.; Pet'r Mem. in Support at 1-2.) In his second and third grounds, he contends he "was denied due process of law when the appellate court denied his claim of actual innocence" and "w then the appellate court denied his claim of `no evidence to support the conviction.'" (Pet. at 7; Pet'r Mem. in Support at 3-5.) As to the latter contention, he alleges there was no proof that he "intentionally or knowingly" caused Thomas's death by shooting her with a deadly weapon. (Id. at 4-5).
Phillips was charged with murdering Thomas, his girlfriend, on January 15, 1996, by shooting her twice, once in the left side of the chest and once in the right side of the head. (6 Rep. R. at 236, 255.) Apparently, at least one more shot was fired that grazed the T-shirt she was wearing at the time. (Id. at 236-37.) The investigation began as a "suicide investigation." Phillips called 911 after the shooting and told the police that Thomas had committed suicide in his presence. (Id. at 9495.) Phillips cooperated with the police and agreed to be interviewed at the police station. At the station, the detective assigned to the case learned of a second gunshot wound to the victim and obtained Phillips's written statement. (6 Rep. R. at 189, 235.) In his statement, Phillips alleged that he and Thomas were wrestling in bed and that Thomas had his arms pinned under her knees when she pulled his gun from under the bed and shot herself in the head. He alleged that the gun went off again when he "grabbed her," and that he knocked the gun to the floor, and the two rolled off the bed. (9 Rep. R. at State's Ex. 43.) He was subsequently charged with murder.
The state appellate court summarized the state's evidence offered to show that Phillips's murdered Thomas as follows:
The victim was shot at least three times — once in the head, once in the chest, and one time where the bullet merely grazed her shirt.
The victim had an abrasion above her right eyebrow that had probably been caused just before her death.
The victim was found in [Phillips's] home, and no one else was there.
The murder weapon was found under a table on the opposite side of the bed from where the victim was found.
The victim's head injury was on the right side, just above and in front of her right ear.
The victim's chest injury was on the left side of her body.
Contrary to [Phillips's] story, the victim was shot first in the chest and then in the head. The victim would not have been able to voluntarily move after the shot to her head and therefore, would not have been able to pull the trigger a second time.
[Phillips's] statement was inconsistent with blood found at the foot of the bed.
Contrary to [Phillips's] statement, and based on the number of shots that were fired, the gun would had to have been partially reloaded at some point.
The medical examiner and criminalist in this case both testified that [Phillips's] explanation that the victim shot herself was not consistent with the physical evidence.
In support of his sufficiency-of-the-evidence and actual innocence claims, Phillips, who did not testify at trial, alleges he did not commit the crime and emphasizes the facts that his fingerprints were absent from the "murder weapon," that gunshot residue tests were inconclusive as to swabs taken from his hands, and that Dr. Krouse, the deputy chief medical examiner, testified that Thomas's death could have been caused by accident, suicide, or homicide. (Pet'r Mem. in Support at 2-3.) He further argues that, given the circumstantial nature of the evidence, it is just as likely that Thomas committed suicide, which presents an equally reasonable hypothesis other than his guilt. (Id.)
Phillips mischaracterizes the medical examiner's testimony. His testimony was that a gunshot wound can be inflicted in three different ways: accident, homicide or suicide. (6 Rep. R. at 287.) He testified that, in his opinion, the manner of death in this case was homicide. (Id. at 274.).
A criminal defendant has a federal due process right to be convicted only upon evidence that is sufficient to prove beyond a reasonable doubt the existence of every element of the offense. Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). Federal courts, nevertheless, have extremely limited habeas review of claims based on the sufficiency of the evidence. When reviewing such claims, the relevant question 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. Jackson, 443 U.S. at 319. When faced with a record of historical facts that supports conflicting inferences federal courts must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution. Id. at 326. The standard of review enunciated in Jackson applies whether the evidence is direct or circumstantial. United States v. Scott, 159 F.3d 916, 920 (5th Cir. 1998).
Having conducted an independent inquiry as to sufficiency under the Jackson v. Virginia standard, the state courts' disposition of the matter appears consistent with Jackson and is entitled to the appropriate deference. See Jackson v. Virginia, 443 U.S. 307 (1979). Viewing the evidence presented at Phillips's trial, albeit largely circumstantial, in the light most favorable to the prosecution, the evidence was such that any rational jury could have found that he shot Thomas with the requisite intent to kill or inflict serious bodily injury. TEX. PENAL CODE ANN. § 19.02(b)(1)-(2). Thus, as a matter of due process, the evidence is constitutionally sufficient to support his conviction. The fact that Phillips's fingerprints were not on the weapon and that the gunpowder residue test rendered an indeterminate result are not necessarily favorable to Phillips. The forensic serologist testified that no identifiable prints were detected on the weapon, and the forensic chemist testified that typically with a .22 caliber weapon there will be no gunshot residue and that gunshot residue can be wiped off. (300-03, 308-09, 329.) Further, as a matter of state law, criminal intent or knowledge maybe inferred from the circumstances of the crime, including the method of committing the crime and the nature of the wounds inflicted on the victim, and the accused's conduct, words, and acts. See Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002); Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App. 1999). Where, as here, a deadly weapon is fired at close range, and death results, the law presumes an intent to kill. Womble v. State, 618 S.W.2d 59, 64 (Tex.Crim.App. [Panel Op.] 1981). Moreover, Phillips alternative suicide theory appears inconsistent with the medical and forensic evidence presented at trial. (6 Rep. R. at 273-74; 7 Rep. R. at 366-90.)
Finally, to be credible, a claim of actual innocence must be based on reliable evidence not presented at trial. Calderon v. Thompson, 523 U.S. 538, 540 (1998); Schlup v. Delo, 513 U.S. 298 324 (1995). Actual innocence means "factual innocence" and not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623-24 (1998); Sawyer v. Whitley, 505 U.S. 333, 339 (1992); United States v. Jones, 172 F.3d 381, 384 (5th Cir. 1999). Thus, where a petitioner asserts his actual innocence of the crime, he must show, as a factual matter, that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence presented in his habeas petition. Calderon, 523 U.S. at 559; Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999). Examples of new, reliable evidence that may establish factual innocence include exculpatory scientific evidence, credible declarations of guilt by another, trustworthy eyewitness accounts, and certain physical evidence. Phillips presents no new evidence that would raise a substantial doubt as to his guilt.
3. Prosecutorial Misconduct
In his fourth ground, Phillips contends he was denied due process when the state appellate court denied his claim of prosecutorial misconduct. (Pet. at 8; Pet'r Mem. in Support at 6-7.) More specifically, he alleges the prosecutor mislead the jury and presented a false picture when she made the following argument:
Ladies and gentlemen, that gun went off. And I would submit to you that he shot at her and missed. And then he shot at her and he got her. And as she fell to the floor, he — something came to him. He knew he could not leave her that way. He had to make sure she was dead. She might not die. He had to make sure she was dead. So he delivers, as Dr. Krouse told you, the coup de grace, the finishing blow. He finishes her off. Puts that gun to her head and finishes her off. That's cold. (7 Rep. R. at 413.)
In a habeas corpus proceeding, a claim of improper jury argument by the state during a state trial does not present a claim of constitutional magnitude unless it is so prejudicial that the state court trial was rendered fundamentally unfair. Jones v. Butler, 864 F.2d 348, 356 (5th Cir. 1988). To establish that a prosecutor's remarks are so inflammatory, the petitioner must demonstrate that the misconduct is persistent and pronounced or that the evidence of guilt was so insubstantial that the conviction would not have occurred but for the improper remarks. Id.
Having reviewed the closing arguments in toto, it cannot be said that Phillips has met his burden to show that the complained-of argument was so flagrant or inflammatory or that the evidence of his guilt was so insubstantial that his conviction would not have occurred but for the remarks. Moreover, in Texas, proper jury argument includes, both, summation of the evidence presented at trial and reasonable deductions drawn from that evidence. Coble v. State, 871 S.W.2d 192, 204 (Tex.Crim.App. 1993). The prosecutor was thus permitted to summarize and draw any reasonable inferences consistent with the circumstances and facts proven.
II. RECOMMENDATION
Phillips's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until August 11, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until August 11, 2003, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.