Powell v. Dretke

Full title: EDMOND H. POWELL, Petitioner, v. DOUGLAS DRETKE, DIRECTOR, TEXAS…

Court: United States District Court, N.D. Texas, Fort Worth Division

Date published: Jan 28, 2005

Civil Action No. 4:04-CV-653-A (N.D. Tex. Jan. 28, 2005)

Opinion

Civil Action No. 4:04-CV-653-A.

January 28, 2005

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER

CHARLES BLEIL, Magistrate Judge

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 Edmond H. Powell, TDCJ-ID #1048117, is a state prisoner in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Richmond, Texas.

Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.

C. FACTUAL AND PROCEDURE HISTORY

Powell was charged by indictment in the 213^th District Court of Tarrant County, Texas, with aggravated robbery of an armored car guard at a Home Depot in Euless, Texas. (Clerk's R. at 3.) On May 25, 2001, the presiding judge of the 213^th District Court assigned the case to the 372^nd District Court of Tarrant County, in which senior judge R.E. Bob Thornton was presiding. ( Id. at 12.) On June 5, 2001, Powell entered a plea of guilty to the offense to a jury, and, on June 7, 2001, the jury found him guilty and assessed his punishment at twenty years' confinement. ( Id. at 4-5, 26.) Thereafter, Powell sought direct review of his conviction, however, the Second District Court of Appeals affirmed the trial court's judgment and, in turn, the Texas Court of Criminal Appeals refused Powell's petition for discretionary review. Powell v. Texas, No. 2091-278-CR, slip op. (Tex. App-Fort Worth, Mar. 28, 2002) (not designated for publication); Powell v. Texas, PDR No. 934-02. Powell did not file a petition for writ of certiorari. (Petition at 3.)

Powell also sought postconviction collateral review. He filed three state applications for writ of habeas corpus. The first was denied by the Texas Court of Criminal Appeals without written order. Ex parte Powell, Application No. 55,284-01, at cover. The second and third applications were dismissed by the Texas Court of Criminal Appeals as successive. Ex parte Powell, Application Nos. 55,284-02 55,284-03. Powell filed this federal petition for writ of habeas corpus on September 2, 2004. See Spotville v. Cain, 149 F.3d 374, 377 (5^th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).

D. ISSUES

In his petition, Powell contends that (1) he received ineffective assistance of trial counsel, and (2) the trial judge had not taken the oath of office. (Petition at 7.)

E. EXHAUSTION AND PROCEDURAL DEFAULT

Dretke believes that Powell has sufficiently exhausted available state remedies as required by 28 U.S.C. § 2254(b)(1) with regard to his first issue, but that he has failed to do so with regard to his second issue. (Resp't Answer at 4.)

Applicants seeking habeas corpus relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5^th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest court of the state. O'Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999); Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5^th Cir. 1982). This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Depuy v. Butler, 837 F.2d 699, 702 (5^th Cir. 1988).

For purposes of exhaustion, the Texas Court of Criminal Appeals is the highest court in the state. Richardson v. Procunier, 762 F.2d 429, 431 (5^th Cir. 1985). Thus, a Texas prisoner may satisfy the exhaustion requirement by presenting both the factual and legal substance of his claims to the Texas Court of Criminal Appeals in either a petition for discretionary review or a post-conviction habeas corpus proceeding pursuant to article 11.07 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2005); Anderson v. Johnson, 338 F.3d 382, 388 n. 22 (5^th Cir. 2003).

Powell sufficiently raised his ineffective assistance claims on appeal and in his first state habeas application. Thus, his ineffective assistance claims under his first issue were properly exhausted for purposes of 28 U.S.C. § 2254(b)(1). Powell did not, however, raise his claim under his second issue until he filed his second and third state habeas applications, both of which were dismissed as successive by the Texas Court of Criminal Appeals under article 11.07, § 4 of the Texas Code of Criminal Procedure. That provision prohibits an applicant from filing a successive state habeas application raising issues that existed at the time of a previous habeas application and could have been raised therein, unless the factual or legal basis for the claim was unavailable to the applicant. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a)(1); Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994). A factual basis of a claim is unavailable if it was not ascertainable through the exercise of due diligence on or before the date the previous application was filed. TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(c).

Procedural default bars federal habeas review if a state court clearly and expressly bases its dismissal of a prisoner's claims on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal. See Coleman v. Thompson, 501 U.S. 722, 729 (1991); Nobles v. Johnson, 127 F.3d 409, 420 (5^th Cir. 1997). The Fifth Circuit has recognized that article 11.07, § 4 is an adequate and independent state procedural ground to bar federal habeas review. See Smith v. Johnson, 216 F.3d 521, 523 (5^th Cir. 2000); Fearance v. Scott, 56 F.3d 633, 642 (5^th Cir. 1995); see also Stewart v. Smith, 536 U.S. 856, 857-61 (2002) (holding Arizona court's dismissal of petitioner's successive petition for state postconviction relief was independent of federal law). To overcome the procedural bar, a petitioner must 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. Coleman, 501 U.S. at 750-51; Smith, 216 F.3d at 524.

In an effort to demonstrate cause for his default, Powell asserts that the "oath shortcomings" were unknown to him until August 11, 2003, when a fellow inmate told him it was likely that the judge had not taken the oath office. (Pet'r Rebuttal at 2 Attached Affidavit of William C. Middleton.) In support of his assertion, Powell presents the inmate's November 22, 2004 affidavit, wherein the inmate states that he informed Powell of this fact in the summer of 2003 and that Powell's family thereafter investigated the matter with the Texas Secretary of State. ( Id.) The factual basis for Powell's claim, however, could have been discovered at or near the time of his conviction through the exercise of due diligence. Accordingly, Powell's second issue is procedurally barred from this court's review.

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 legal conclusion in direct conflict with a prior decision of the Supreme Court 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 (5^th Cir. 2000). A state court decision will be 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). 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. See Neal v. Puckett, 286 F.3d 230, 235 (5^th Cir. 2002), cert. denied, 537 U.S. 1104 (2003); Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997). Under these circumstances, a federal court may assume that the state court applied correct standards of federal law to the facts, unless there is evidence that an incorrect standard was applied, and imply fact findings consistent with the state court's disposition. Townsend v. Sain, 372 U.S. 293, 314 (1963);¹ Catalan v. Cockrell, 315 F.3d 491, 493 n. 3 (5^th Cir. 2002); Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5^th Cir. 2001); Goodwin v. Johnson, 132 F.3d 162, 183 (5^th Cir. 1997).

1 The standards of Townsend v. Sain have been incorporated into 28 U.S.C. § 2254(d). Harris v. Oliver, 645 F.2d 327, 330 n. 2 (5^th Cir. 1981).

Here, Powell contends his trial counsel was ineffective by failing (1) to properly object and request a hearing regarding the admissibility of evidence of two extraneous offenses, (2) to file a motion to suppress challenging the search of his apartment following his arrest, (3) to conduct an independent investigation into his case, and (4) to preserve error for appellate review.

Once a knowing and voluntary guilty plea has been entered by a criminal defendant, all nonjurisdictional defects in the proceedings preceding the plea are waived, including all claims of ineffective assistance of counsel that do not attack the voluntariness of the guilty plea. Smith v. Estelle, 711 F.2d 677, 682 (5^th Cir. 1983); Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5^th Cir. 1981). Therefore, to the extent Powell complains trial counsel failed to conduct an independent investigation into his case, a matter unrelated to the voluntariness of his plea, the claim is nonjurisdictional and is waived by the plea. See United States v. Broce, 488 U.S. 563, 573-74 (1989).

The remainder of Powell's claims of ineffective assistance occurred during the punishment phase of trial and are addressed herein. Because the state courts have already considered and rejected the claims, federal habeas relief will be granted only if the state courts' decision was contrary to or involved an unreasonable application of Strickland, or if the state courts' decision is based on an unreasonable determination of the facts in light of the evidence before the court. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Pondexter v. Dretke, 346 F.3d 142, 145-46 (5^th Cir. 2003), cert. denied, 124 S. Ct. 2160 (2004); Haynes v. Cain, 298 F.3d 375, 379-82 (5^th Cir. 2002). Under this standard, the state courts' application of Strickland must be shown to be not only erroneous, but objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 4 (2003).

Powell contends counsel was ineffective by failing to object and request a hearing outside the presence of the jury regarding the admissibility of evidence linking him to two other armed robberies at different Home Depot locations. The state court record reflects that counsel filed a motion in limine, in which she requested that the state be required to approach the bench and the judge make a ruling before any mention or introduction of the unadjudicated extraneous offenses, and that the motion was heard by the trial court before commencing voir dire. (Clerk's R. at 16; Rep. R., Master Index, vol. 3.) The record does not, however, reflect that the trial court entered a written order ruling on the motion and the reporter's record of the voir dire proceedings was sealed and has not been provided by the parties. Thus, it is impossible to determine whether the trial court, in fact, ruled on the motion and what that ruling might have been. Nevertheless, Powell asserts that the trial judge denied the motion and ruled that the evidence was admissible. (Pet'r Supplement at 1-2.)

Assuming Powell's assertion to be true, he cannot show deficient performance on the part of counsel. As acknowledged by Powell himself, counsel attempted to discredit the evidence through cross-examination of the state's witnesses and correctly argued to the jury the burden of proof regarding unadjudicated extraneous offense evidence. (Pet'r Memorandum at 5.-6.) Nor can he satisfy the second prong of the Strickland standard. In the case of ineffective assistance during the punishment phase, prejudice is established only if a petitioner demonstrates that his sentence was increased by the deficient performance of his attorney. See Glover v. United States, 531 U.S. 198, 200 (2001). In other words, the petitioner must show that counsel's deficiencies created a reasonable probability that his sentence would have been less harsh. See id. at 200. Powell plead guilty to and was found guilty of aggravated robbery, a first degree felony; thus, he was subject to a punishment range of 5 to 99 years' confinement. TEX. PENAL CODE ANN. §§ 12.32(a), 29.03 (Vernon 2003). The jury's 20-year sentence was at the low to mid-range of statutory punishment available. Given the evidence, it cannot be said with any degree of certainty that the extraneous offense evidence likely resulted in Powell receiving a higher sentence. The jury could have reached its decision to assess a 20-year sentence on the basis of the facts surrounding the instant offense alone. See Glover, 531 U.S. at 204 (in discretionary sentencing system, holding amount by which a defendant's sentence is increased may be a factor to consider in determining whether counsel was ineffective and implying it could bar prejudice showing); Spriggs v. Collins, 993 F.2d 85, 88-89 (5^th Cir. 1993) (stating "[i]n deciding whether prejudice occurred, a court should consider a number of factors: the actual amount of the sentence imposed on the defendant by the sentencing judge or jury, the minimum and maximum sentences possible under the relevant statute or sentencing guidelines, the relative placement of the sentence actually imposed within that range, and the various relevant mitigating and aggravating factors that were properly considered by the sentencer").

Powell contends counsel was ineffective by failing to file a motion to suppress evidence linking him to the two other Home Depot robberies obtained from his apartment pursuant to a search warrant following his arrest. According to Powell, counsel should have challenged the search warrant affidavit on the basis that it failed to develop probable cause. (Pet'r Memorandum at 7.) However, Powell cites no authority and presents no evidence to show that counsel had a legal or factual basis upon which to pursue a motion to suppress or that she would have prevailed on the motion. He concedes that copies of the search warrant and supporting affidavit are not included in the state court records but nevertheless contends the affidavit would have likely asserted insufficient "evidence" to support a probable cause finding. Without substantiation in the record, a court cannot consider a habeas petitioner's mere assertions on a critical issue in his pro se petition to be of probative evidentiary value. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5^th Cir. 1983).

Finally, Powell contends counsel was ineffective by failing to preserve his asserted errors for appellate review. This claim is conclusory and thus fails to raise a constitutional issue. See id. Further, Powell has not demonstrated that he had grounds for appeal that would have been meritorious if preserved.

Having independently reviewed each of Powell's claims raised in state court in conjunction with the state court records, and assuming the Texas Court of Criminal Appeals applied Strickland in denying relief, it appears the state courts' adjudication of Powell's ineffective assistance claims was reasonable.

II. RECOMMENDATION

Powell'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 February 18, 2005. 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 (5^th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5^th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until February 18, 2005, 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.