Opinion
No. 3:03-CV-125-D.
August 26, 2004
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 Larry Lee Powell 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.
Procedural History
On April 18, 2002, Powell was found guilty of aggravated assault and sentenced to five years' confinement. (State Habeas R. at 23.) Powell did not appeal. (Federal Pet. at 3.) Powell filed a state application for habeas corpus relief, challenging the sufficiency of the evidence to support his conviction, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Powell, No. 53,694-01 (Tex.Crim.App. Oct. 16, 2002) (not designated for publication). Powell filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on January 12, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
Issue
Powell argues that the evidence is legally and factually insufficient to support his conviction.
Exhaustion of State Court Remedies
Dretke believes Powell has sufficiently exhausted available state remedies on the issue presented and, thus, does not move for dismissal on this ground.
Discussion
Powell's legal-sufficiency claim is procedurally barred from federal review. Federal review of a claim is procedurally barred if the last state court to consider the claim clearly based its denial on the fact that a state procedural requirement was not met. Ylst v. Nunnemaker, 501 U.S. 797, 802-04 (1991); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman, 501 U.S. at 750; Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001).
Under Texas law, a challenge to the legal sufficiency of the evidence can only be raised on direct appeal, not in a state habeas corpus proceeding. West v. Johnson, 92 F.3d 1385, 1398 n. 18 (5th Cir. 1996), cert. denied, 520 U.S. 1242 (1997); Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994); Ex parte McLain, 869 S.W.2d 349, 350 (Tex.Crim.App. 1994). Such a claim is not cognizable in a post-conviction, collateral attack. West, 92 F.3d at 1398 n. 18; McLain, 869 S.W.2d at 350. Failure to raise a legal-sufficiency claim on direct appeal constitutes a procedural default under state law. Renz, 28 F.3d at 432; McLain, 869 S.W.2d at 350. In this case, the trial court, citing McLain, held that Powell "cannot, by way of Application for Writ of Habeas Corpus, challenge the sufficiency of the evidence upon which the conviction is based." (State Habeas R. at 18.) The Court of Criminal Appeals explicitly adopted the trial court's finding of procedural default when it denied Powell's state application on the findings of the trial court. Ylst, 501 U.S. at 803. Thus, this claim is procedurally barred.
Powell's factual-insufficiency argument is likewise unavailing because it is not cognizable on federal habeas corpus review. Fox v. Johnson, No. 4:00-CV-291-Y, 2001 WL 432247, at *2 (N.D. Tex. Apr. 20, 2001), adopted, 2001 WL 540215 (N.D. Tex. May 17, 2001). Additionally, this claim is procedurally barred based on the state habeas courts' holding that it was procedurally defaulted. (State Habeas R. at 18.)
Powell has not attempted to excuse the state procedural default with evidence of either cause and prejudice or a miscarriage of justice. Thus, the claim is procedurally barred from this court's review.
Summary
Powell is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Powell 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.