Opinion
No. 3:02-CV-0439-L.
August 5, 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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties : Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural and Factual History : On February 5, 1998, petitioner exhibited a knife during an altercation with an individual named Hector Granado. See Runnels v. State, No. 05-98-01590-CR, 2000 WL 1256305, at *1 (Tex.App.-Dallas Sept. 6, 2000, pet. ref'd) (setting forth appropriate summary of facts). On February 25, 1998, the State indicted petitioner for aggravated assault with a deadly weapon stemming from that altercation. See TR at 2. The case against petitioner proceeded to trial on September 21, 1998. Reporter's Record, Vol. II at 1 [hereinafter cited as RR-volume # at page].
"TR" refers to the state trial record in Cause No. F98-44393-MR.
The State called Mr. Granado and Officer William Cowley in its case in chief. See RR-III at 3-61. Both witnesses testified that during an attempt to arrest petitioner for shoplifting from a grocery store, petitioner ran, they chased him, and petitioner pulled a knife and made stabbing motions toward Granado when Granado tried to apprehend him. See id. Petitioner testified that he acted in self-defense. Id. at 66-99. He testified that he had heard that Granado was looking for him with a gun because of a previous altercation between them. Id. at 70-71. He testified that he ran from the store and he drew his knife in self-defense because he feared Granado. Id. at 75-79. He specifically testified that he never opened the knife. Id. at 76.
Upon completion of the trial, the jury found petitioner guilty of aggravated assault with a deadly weapon. Id. at 121. Petitioner thereafter pled true to two enhancement paragraphs. RR-IV at 3. On September 23, 1998, after hearing testimony from petitioner, the court sentenced him to thirty years imprisonment. Id. at 9.
On September 6, 2000, the court of appeals affirmed petitioner's conviction. See Runnels v. State, No. 05-98-01590-CR, 2000 WL 1256305, at *1 (Tex.App.-Dallas Sept. 6, 2000, pet. ref'd). In March 2001, petitioner filed a state application for writ of habeas corpus. See S.H. Tr. at 2. On October 31, 2001, the Texas Court of Criminal Appeals denied the application without written order on findings of the trial court without a hearing. See Ex parte Runnels, No. 39,507-05, slip op. at 1 (Tex.Crim.App. Oct. 31, 2001).
"S.H. Tr." denotes the state habeas records attached to Ex parte Runnels, No. 39,507-05, slip op. (Tex.Crim.App. Oct. 31, 2001). Petitioner filed four previous state writs that are immaterial to this case. See Ex parte Runnels, No. 39,507-01, slip op. (Tex.Crim.App. Nov. 18, 1998) (dismissing writ of habeas corpus because petitioner's direct appeal was still pending); Ex parte Runnels, No. 39,507-02, slip op. (Tex.Crim.App. Dec. 16, 1998) (denying writ of habeas corpus related to Cause No. F93-45108-TV); Ex parte Runnels, No. 39,507-03, slip op. (Tex.Crim.App. Jan. 13, 1999) (denying writ of habeas corpus related to F83-92320-JS); Ex parte Runnels, No. 39,507-04, slip op. (Tex.Crim.App. Sept. 26, 2001) (denying motion for leave to file writ of mandamus).
Petitioner executed the instant federal writ of habeas corpus on February 19, 2002. (Pet. at 9.) Respondent filed an answer on September 9, 2003. (See Answer at 1.) The Court received a traverse from petitioner on September 29, 2003. (See Traverse at 1.)
D. Substantive Issues : Petitioner asserts that he is being held unlawfully by respondent because (1) the evidence is factually and legally insufficient to support his conviction; (2) the trial court failed to instruct the jury on a lesser included offense; (3) his trial attorney rendered ineffective assistance by failing to (a) provide information so that petitioner could intelligently participate in decisions related to his representation, (b) cross-examine complainant Granado, and (c) object to perjured testimony of Officer Cowley; (4) the prosecutor made improper closing argument; (5) the charging indictment was fundamentally defective; and (6) Officer Cowley gave perjured testimony at trial. (Pet. at 7-8 and attached pages, 7A through 7J.)
E. Exhaustion : Respondent contends that petitioner has not sufficiently exhausted his state remedies as to his claims of insufficiency of the evidence and ineffective assistance of counsel by failing to cross-examine the complainant and to object to testimony from Officer Cowley. (Answer at 2-3, 5-6, 10-11.) Respondent argues that these claims are procedurally barred from federal habeas review. ( Id. at 3.) He does not seek dismissal for the failure to exhaust, but rather on the related ground of procedural bar. ( Id.) Alternatively, he asserts that the sufficiency claims fail on their merits. ( Id. at 6.)
II. PROCEDURAL BAR
Respondent asserts that petitioner's claims of legal insufficiency of the evidence (Claim 1) and ineffective assistance in failing to cross-examine the complainant and to object (Claims 3(b) and (c)) are procedurally barred. ( See Answer at 7-8.) Federal courts may not review a state court decision that rests on an adequate and independent state procedural default unless the habeas petitioner shows "cause" for the default and "prejudice attributable thereto" or demonstrates that the failure to consider the federal claim will result in a "fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989). When the last state court to review a claim clearly and expressly states that its judgment rests on a procedural bar, the procedural default doctrine generally bars federal review. See id.; Lowe v. Scott, 48 F.3d 873, 875 (5th Cir. 1995).
A. Sufficiency of the Evidence
Respondent urges the Court to find petitioner's legal-sufficiency-of-the-evidence claim procedurally barred because petitioner did not raise the claim in his petition for discretionary review. ( See Answer at 6). Relying upon Renz v. Scott, 28 F.3d 431 (5th Cir. 1994), he states: "Because Runnels failed to present his no-evidence complaint to the Court of Criminal Appeals for direct review and then attempted to raise the issue by means of state writ application, he has procedurally defaulted on his claim." ( Id.)
Under Texas law, a defendant cannot challenge the sufficiency of the evidence in a state application for writ of habeas corpus. Ex parte McClain, 869 S.W.2d 349, 350 (Tex.Crim.App. 1994). The failure to raise such a challenge on direct appeal constitutes "a procedural default under state law." Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994). The procedural default doctrine provides an adequate reason to deny federal claims based upon sufficiency of the evidence when the state habeas court has relied upon the procedural default and the Texas Court of Criminal Appeals has denied the state petition without stating its reasons. See West v. Johnson, 92 F.3d 1385, 1398 n. 18 (5th Cir. 1996). However, "the mere fact that a federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent this Court from reaching the federal claim: `[T]he state court must actually have relied on the procedural bar as an independent basis for its disposition of the case.'" Harris v. Reed, 489 U.S. 255, 261-62 (1989) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985)).
Respondent reads Renz too broadly. A claim is not necessarily procedurally barred from federal habeas review merely by a petitioner's failure to raise the claim in his petition for discretionary review. When the petitioner has raised the claim in his state writ, and the State court did not rely upon any procedural default to dispose of the claim, this Court may properly consider the claim. "The state must `clearly and expressly' rely on the adequate and independent state ground" before the federal courts are prohibited from considering the claim due to procedural bar. Barrientes v. Johnson, 221 F.3d 741, 758 (5th Cir. 2000).
In this instance, the Court of Appeals for the Fifth District of Texas at Dallas considered the legal-insufficiency claim on the merits. See Runnels v. State, No. 05-98-01590-CR, 2000 WL 1256305, at *2-3 (Tex.App.-Dallas Sept. 6, 2000, pet. ref'd). The state habeas court specifically concurred with the appellate court's opinion. S.H. Tr. at 45-46. It stated:
Applicant's first [(sufficiency claims)] and second [(claim related to lesser included offense instruction)] were presented to the Court of Appeals in the direct appeal of Applicant's conviction to said Court. The Court of Appeals in its written opinion affirming [his] conviction expressly found said allegations to be without merit. . . . Applicant has not, in the instant Application for Writ of Habeas Corpus, presented this Court with any new facts or citations of authority which would require a reconsideration of these issues. This Court concurs with and is bound by the prior opinion of the Court of Appeals with regard to the disposition of Applicant's first and second allegations.Id. The state habeas court did not rely on any procedural default to dispose of the sufficiency claim.
The Texas Court of Criminal Appeals specifically denied the state petition on the findings of the state trial court. See Ex parte Runnels, No. 39,507-05, slip op. at 1 (Tex.Crim.App. Oct. 31, 2001). While that denial was without written order, the silence of the Texas Court of Criminal Appeals implies that it accepted the reasoning of the underlying opinion. See Bledsue v. Johnson, 188 F.3d 250, 255-57 (5th Cir. 1999) ("looking through" the state-court denial to "the last state court to render a reasoned decision"). Under these circumstances, the claim is not procedurally barred from federal habeas review. See Bennett v. Whitley, 41 F.3d 1581, 1582-83 (5th Cir. 1994) (if the last state court to reach the issue addresses claim on the merits, then federal courts are also free to review merits of claim). The Court will therefore consider the legal-insufficiency claim on the merits.
B. Ineffective Assistance of Counsel
Respondent also urges the Court to find two of petitioner's three claims of ineffective assistance of counsel procedurally barred. He asserts that petitioner has not presented Claims 3(b) and (c) to the Texas Court of Criminal Appeals. ( See Answer at 10-11.) Because petitioner did not raise these claims on direct appeal, see Runnels v. State, No. 05-98-01590-CR, 2000 WL 1256305, at *1-5 (Tex.App.-Dallas Sept. 6, 2000, pet. ref'd), or in his only relevant state writ, see S.H. Tr. at 9, 22-25, the Court must determine whether the claims are procedurally barred from federal habeas review.
When a claim has not been reviewed by the highest court of the state, this Court may find such claim procedurally barred. See Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991). The general rule that a state court must explicitly apply a procedural bar to preclude federal review does not apply when a petitioner has not presented his claims to the highest court of the state and the state court to which he would be required to present his claims would now find the claims procedurally barred. Id.
Petitioner has not presented Claims 3(b) and (c) to the Texas Court of Criminal Appeals. Were this Court to require him to do so, the claims would be subject to dismissal under the Texas abuse-of-the-writ doctrine, TEX. CODE CRIM. PRO. ANN. art. 11.07, § 4. That doctrine "prohibits a second [state] habeas petition, absent a showing of cause, if the applicant urges grounds therein that could have been, but were not, raised in his first habeas petition." Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997) (footnote omitted). "[A]rticle 11.07 § 4 is an adequate and independent state procedural ground to bar federal habeas review and . . . has been strictly and regularly applied since 1994." Smith v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000). When such a state procedural ground exists, "federal courts ordinarily will not review questions of federal law." Id. To overcome the procedural bar established by the abuse-of-the-writ doctrine, a petitioner must demonstrate "(1) cause for the procedural default and actual prejudice as a result of the alleged violation of federal law or (2) that failure to consider his claims will result in a fundamental miscarriage of justice." Id. at 524 (quoting Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997)).
Texas also has an abuse of writ doctrine specifically applicable to capital cases. See Tex. Code Crim. P. Ann. art. 11.071, § 5(a). No material difference exists between the rules or their analysis. Emery v. Johnson, 139 F.3d 191, 195 n. 3 (5th Cir. 1997). The Court may thus freely cite to either capital or non-capital cases that address the abuse of writ doctrine.
Petitioner has shown neither cause for nor prejudice from his failure to present Claims 3(b) and (c) to the Texas Court of Criminal Appeals. Nor has he demonstrated a need to prevent a miscarriage of justice. The latter exception is "confined to cases of actual innocence, `where the petitioner shows, as a factual matter, that he did not commit the crime of conviction.'" Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (quoting Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)).
Although he has filed a traverse, petitioner makes no attempt to explain why he did not present Claims 3(b) and (c) to the Texas Court of Criminal Appeals. He instead asserts that he raised the claims at the state level. However, the state documents belie this assertion. Although petitioner raised Claim 3(a) in his state writ, he did not raise Claims 3(b) or (c). He provides no basis from which to construe the specific claim of ineffective assistance of counsel raised in his state writ as also raising Claims 3(b) and (c). The Court finds no adequate reason for petitioner's failure to present these claims to the Texas Court of Criminal Appeals.
Petitioner has also not shown that, factually, he did not commit the crime for which he was convicted. In fact, nowhere in his federal filings does he even assert he is actually innocent of the crime. He instead relies upon his claims of factual and legal insufficiency. Such claims, however, do not equate with a claim that he did not commit the crime for which he was convicted. Petitioner has not overcome the state procedural bar. Accordingly, the procedural default doctrine bars federal habeas relief on Claims 3(b) and (c), and the Court will not review those claims. It thus proceeds to the merits of petitioner's other claims, including his insufficiency-of-the-evidence claim.
III. APPLICABLE LAW
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after its effective date, the Act applies to his petition.Title I of the AEDPA substantially changed the way federal courts handle habeas corpus actions. Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief
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.
"In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). In this case, the denial of petitioner's state writ constitutes an adjudication on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) (holding that a denial, rather than a dismissal, signifies an adjudication on the merits). The court of appeals also considered the merits of petitioner's claims raised on direct appeal. See Runnels v. State, No. 05-98-01590-CR, 2000 WL 1256305, at *1-5 (Tex.App. — Dallas Sept. 6, 2000, pet. ref'd). The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply.
Section 2254(d)(1) concerns pure questions of law and mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A decision is contrary to clearly established Federal law, within the meaning of § 2254(d)(1), "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
With respect to the "unreasonable application" standard, Williams instructs that a writ must issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413; accord Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." 529 U.S. at 407. "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; accord Penry, 532 U.S. at 793.
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were `based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
IV. SUFFICIENCY OF THE EVIDENCE
Petitioner also claims that the evidence presented against him at trial is factually and legally insufficient to support his conviction. (Pet. at 7, 7A-7C.) Specifically, he asserts that the State failed to prove aggravated assault beyond a reasonable doubt and failed to disprove his self-defense theory. ( Id.)A. Factual Sufficiency
Texas state appellate courts are imbued with the authority to conduct factual sufficiency reviews of the evidence. The authority to conduct factual sufficiency reviews derives from the Texas Constitution and statutory authority, and not from any federal constitutional right. Clewis v. State, 922 S.W.2d 126, 129-30 (Tex.Crim.App. 1996). Thus, the Texas courts' more exacting factual sufficiency standard does not implicate federal constitutional concerns. See Woods v. Cockrell, 307 F.3d 353, 358 (5th Cir. 2002). Neither the United States Supreme Court nor the Fifth Circuit Court of Appeals has recognized factual insufficiency as a valid basis for habeas relief. Accordingly, petitioner's factual sufficiency claim fails because he has shown no deprivation of any federally-secured right.
B. Legal Sufficiency
Although a factual sufficiency claim raises no Constitutional deprivation, a claim that the evidence is legally insufficient to support the conviction raises a claim that is subject to federal habeas review. "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 have extremely limited habeas review of claims based on the sufficiency of the evidence, and the standard for reviewing such claims is supplied by Jackson v. Virginia, 443 U.S. 307 (1979). When reviewing such claims against the underlying conviction, 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 [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. Further, under Jackson, "the assessment of the credibility of witnesses is generally beyond the scope of review." Schlup v. Delo, 513 U.S. 298, 330 (1995). "Determining the weight and credibility of the evidence is within the sole province of the jury." United States v. Martinez, 975 F.2d 159, 161 (5th Cir. 1992). Courts view "any required credibility determinations in the light most favorable to the guilty verdict." United States v. Wise, 221 F.3d 140, 154 (5th Cir. 2000). They do not "second-guess the weight or credibility given the evidence." United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999). The Jackson standard applies whether the evidence is direct or circumstantial. United States v. Scott, 159 F.3d 916, 920 (5th Cir. 1998).
Federal courts apply the "standard looking to the state's substantive law, giving great weight to the state court's determination." Miller v. Johnson, 200 F.3d 274, 286 (5th Cir. 2000). State case law and statutes bind the courts in their determination of the elements needed to be proven. Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). In reviewing a challenge to the sufficiency of the evidence supporting the underlying conviction, " Jackson requires . . . that the review occur `with explicit reference to the substantive elements of the criminal offense as defined by state law.'" Bledsue v. Johnson, 188 F.3d 250, 259 (5th Cir. 1999) (quoting Jackson, 443 U.S. 324 n. 16). The federal courts must "independently analyze the governing statute, the indictment, and the jury charge to measure the constitutional sufficiency of the evidence and determine what are the essential elements required by the Jackson sufficiency inquiry." Id. at 260. When considering a claim of insufficient evidence to support the underlying conviction on federal habeas review, this Court should only determine "whether the evidence was constitutionally sufficient to convict [petitioner] of the crime charged." Id. at 262 (quoting Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991)).
In this case, the State charged petitioner with aggravated assault with a deadly weapon. TR at 2. Under Texas law, a person commits assault when he "intentionally or knowingly threatens another with imminent bodily injury." TEX. PENAL CODE ANN. § 22.01(a)(2) (Vernon 2003). The use or exhibition of a deadly weapon during an assault transforms simple assault into aggravated assault. See id. § 22.02(a)(2). The State specifically charged that, on or about February 5, 1998, in Dallas County, Texas, petitioner "unlawfully then and there knowingly and intentionally threaten [complainant] with imminent bodily injury, and said defendant did use and exhibit a deadly weapon, to-wit: a KNIFE, during the commission of the assault." Id. At the conclusion of the trial, the trial court read the following charge to the jury: "Our law provides that a person commits an assault if the person intentionally or knowingly threatens another with imminent bodily injury. An assault is aggravated assault when it is committed with a deadly weapon." Id. at 28.
At trial, Officer Cowley and Hector Granado testified that petitioner ran from the grocery store, and when Granado tried to apprehend petitioner at Cowley's direction, petitioner drew a knife and made stabbing motions toward Granado. See RR-III at 3-61. Granado testified that petitioner had a knife in his hand when he caught up to petitioner, and that "every time I went to grab him, he dr[ew] it back like I thought maybe he was going to try to stab me." Id. at 55. Granado further testified that petitioner swung at him twice with the knife. Id. at 56. He testified that he jumped back so that petitioner could not stab him. Id. He testified that he was threatened and afraid that petitioner would stab him and thus cause imminent serious bodily injury. Id. at 60. Officer Cowley specifically testified that the knife could be used as a deadly weapon. Id. at 15. He testified that they focused on taking the knife from petitioner because it "was the thing that c[ould] harm us." Id. at 17. He testified that he asked Granado to assist in arresting petitioner, and that Granado acted at his direction. Id. at 12, 38, 49. He further testified that Granado's actions were reasonable under the circumstances. Id. at 50.
The testimony of Officer Cowley, in conjunction with that of Hector Granado, is sufficient to support the conviction for aggravated assault with a deadly weapon. Although petitioner presented testimony that he was acting in self-defense, the jury made its credibility determination and found the State's witnesses more credible than petitioner. Viewed in a light most favorable to the prosecution, the Court finds that the record supports the jury verdict. From the evidence, a rationale jury could conclude that petitioner intentionally or knowingly threatened another with imminent bodily injury, and that he used or exhibited a deadly weapon during the assault on Granado. A rational trier of fact could have found the essential elements of the aggravated-assault offense beyond a reasonable doubt. A rational jury could also have found against petitioner on his self-defense theory. The Court finds that the evidence was constitutionally sufficient to convict petitioner of the crime charged. See Bledsue, 188 F.3d at 262.
Petitioner has failed to carry the heavy burden imposed by 28 U.S.C. § 2254(d), as interpreted by Williams v. Taylor, 529 U.S. 362, 412-13 (2000), to show that the state court determination of this issue was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding or that such 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. Accordingly, petitioner is entitled to no federal habeas relief on his claim that the evidence is legally insufficient to support his conviction.
V. TRIAL COURT ERROR
Petitioner claims that the trial court erred when it failed to instruct the jury on a lesser included offense. ( See Pet. at 7, 7C, and 7D.) He contends that the evidence supported an instruction on terroristic threat as a lesser included offense of aggravated robbery. ( Id.)
In some circumstances, the offense of terroristic threat may be a lesser-included offense of aggravated assault. See Salinas v. State, 888 S.W.2d 93, 99-100 (Tex.App.-Corpus Christi 1994). "A person commits this offense `if he threatens to commit any offense involving violence to any person or property with intent to: (2) place any person in fear of imminent serious bodily injury.'" Id. (quoting TEX. PENAL CODE ANN. § 22.07(a)(2)). Nevertheless, "whether an offense is a lesser included offense of the charged offense requires a case-by-case determination." Bartholomew v. State, 871 S.W.2d 210, 212 (Tex.Crim.App. 1994).
In this instance, the court of appeals specifically found "that the crime of terroristic threat is not a lesser included offense of aggravated assault as charged in the indictment and that the trial court did not err in refusing [petitioner's] requested instruction on the crime of terroristic threat." See Runnels v. State, No. 05-98-01590-CR, 2000 WL 1256305, at *4 (Tex.App. — Dallas Sept. 6, 2000, pet. ref'd). The state habeas court specifically deferred to this finding, see S.H. Tr. at 45-46, and the Texas Court of Criminal Appeals denied petitioner's state writ on the findings of the state habeas court, see Ex parte Runnels, No. 39,507-05, slip op. at 1 (Tex.Crim.App. Oct. 31, 2001). The state courts clearly concluded that an instruction on terroristic threat was unwarranted. "Absent a violation of the Constitution, we defer to the state court interpretation of its law for whether a lesser-included-offense instruction is warranted." Creel v. Johnson, 162 F.3d 385, 390-91 (5th Cir. 1998). Furthermore, the Fifth Circuit Court of Appeals has repeatedly held that there is no federal constitutional right to an instruction on a lesser included offense in a noncapital state trial. See id. at 390; Valles v. Lynaugh, 835 F.2d 126, 127 (5th Cir. 1988); Alexander v. McCotter, 775 F.2d 595, 601 (5th Cir. 1985); Easter v. Estelle, 609 f.2d 756, 758 (5th Cir. 1980). This claim thus provides no basis for federal habeas relief.
VI. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner claims that his attorney rendered ineffective assistance when he failed to provide information so that petitioner could intelligently participate in decisions related to his representation. ( See Pet. at 7, 7E, and 7F.) To successfully state a claim of ineffective assistance of counsel under Supreme Court precedent, petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to establish either prong of this test requires a finding that counsel's performance was constitutionally effective. Id. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000).
As stated in Section II, petitioner's claims of ineffective assistance of counsel in failing to cross-examine the complainant and to object to perjured testimony (Claims 3(b) and (c)) are procedurally barred. Accordingly, the Court does not address those claims.
To determine whether counsel's performance is constitutionally deficient, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691.
To establish prejudice, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The prejudice component of the Strickland test "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Williams v. Taylor, 529 U.S. 362, 393 n. 17 (2000) (citations and internal quotation marks omitted). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96.
Petitioners must "affirmatively prove prejudice." Id. at 693. To establish prejudice, they must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. They cannot satisfy the second prong of Strickland with mere speculation and conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Conclusory allegations, furthermore, are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
The trial court found the allegations that trial counsel rendered ineffective assistance groundless. See S.H. Tr. at 46-47. In making that finding, it considered an affidavit of defense counsel in which he denied all allegations that he rendered ineffective assistance. Id. at 46, 58-59. Counsel averred that, although petitioner had informed him that the only three witnesses were himself, Officer Cowley, and Mr. Granado, counsel had an investigator confirm that no one else saw the events which led to petitioner's conviction. Id. at 58. Counsel further averred:
I told Runnels that he did not have the legal right of self defense to prevent being detained for a crime. We discussed his testimony, the lack of witnesses and trial strategy. My advice was to try and make a plea bargain but Mr. Runnels was adamantly opposed to anything but a jury trial.Id. at 58-59.
The trial court found counsel "trustworthy" and the statements in his affidavit "worthy of belief." Id. at 46. Such credibility finding is presumed correct unless petitioner rebuts it with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Petitioner has not shown clear and convincing evidence that overcomes the presumption of correctness. This Court thus defers to that credibility finding.
From the affidavit of counsel, it appears that counsel provided petitioner with information so that he could intelligently participate in decisions related to his representation. Petitioner has not overcome the strong presumption that counsel's conduct falls within the wide range of reasonable assistance. The Court finds no deficiency of counsel. Nor has petitioner affirmatively shown prejudice from the alleged deficiency of counsel. He has not shown how providing him additional information would have created a reasonable probability that the outcome of his trial would have differed. He presents nothing to undermine confidence in the verdict or sentence. Accordingly, his claim of ineffective assistance of counsel does not entitle him to habeas relief.
VII. IMPROPER CLOSING STATEMENTS
Petitioner further claims that the prosecutor erred by going outside the record in closing statements. ( See Pet. at 7F-7G.) He specifically asserts that a prosecutor may not "point to a lack of evidence that only [the petitioner] can supply." ( Id. at 7G.) While framing the jury issue as one of credibility between petitioner and the State's witnesses, the following occurred:
[Prosecutor]: And guess what, you know, cross-examination is the area where defense lawyers can examine that potential bias and motivation. I don't remember hearing anything about it. Matter of fact, they didn't even cross-examination Mr. Granado. Didn't have to. Where was the defense lawyer up here going, "Now, Officer, that's a lie, isn't it? That didn't happen —
[Defense Counsel]: Your Honor, I'm going to object that he's striking at the defendant over the shoulders of the defense attorney.
[Prosecutor]: I'm just recalling the testimony, Judge.
[The Court]: To the extent the jury perceived it that way, I'll sustain the objection.
RR-III at 104.
"Prosecutorial misconduct implicates due process concerns." Foy v. Donnelly, 959 F.2d 1307, 1316 (5th Cir. 1992). Statements of a prosecutor may violate due process in two ways: "They may abridge a specific right conferred by the Bill of Rights, or may constitute a denial of due process generally, thus constituting a `generic substantive due process' violation." Id. (quoting Rogers v. Lynaugh, 848 F.2d 606, 608 (5th Cir. 1988)). The Court should "first determine the type or types of misconduct alleged, because `[t]he case law supplies a different test for each kind of due process violation.'" Id. (quoting Rogers, 848 F.2d at 608). In this case, petitioner testified at trial, so the prosecutor's statements cannot be construed as a specific attack on a defendant's right not to testify. Thus, it appears that petitioner alleges a general violation of due process.
When a petitioner asserts a generic due process violation, the Court asks whether the prosecutorial comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In the habeas context, the appropriate standard of review for such allegations is "the narrow one of due process, and not the broad exercise of supervisory power." Id. (quoting Donnelly 416 U.S. at 642).
In federal habeas actions, improper jury argument by the state does not present a claim of constitutional magnitude unless it is so prejudicial that the petitioner's state court trial was rendered fundamentally unfair within the meaning of the Fourteenth Amendment's Due Process Clause. To establish that a prosecutor's remarks are so inflammatory as to prejudice the substantial rights of a defendant, the petitioner must demonstrate either persistent and pronounced misconduct or that the evidence was so insubstantial that (in probability) but for the remarks no conviction would have occurred.Felde v. Blackburn, 795 F.2d 400, 403 (5th Cir. 1986) (citations omitted). "A trial is fundamentally unfair if there is a reasonable probability that the verdict might have been different had the trial been properly conducted." Foy, 959 F.2d at 1317 (internal quotation marks omitted).
This is the only test necessary to apply for generic violations of due process. If the alleged misconduct rises to the level of constitutional error, the Court need not apply a harmless error test. Darden, 477 U.S. at 183 n. 15. The Fifth Circuit Court of Appeals has observed, furthermore, that application of a harmless error test would be "superfluous" after a determination that the trial was rendered fundamentally unfair. Kirkpatrick v. Blackburn, 777 F.2d 272, 280 (5th Cir. 1985).
Habeas relief is not warranted for petitioner's claim that the statements of the prosecutor violated his rights to due process in the general sense. The trial court sustained an objection to the statements of the prosecutor. The statements did not render petitioner's trial fundamentally unfair, and petitioner has shown no persistent misconduct by the prosecutor.
Furthermore, in response to petitioner's state habeas application, the trial court found no prosecutorial misconduct. See S.H. Tr. at 47. It also found that the prosecutor's closing statements did not deny petitioner his right to a fair trial. Id. The Texas Court of Criminal Appeals rejected this claim on the merits when it denied the state petition without written order on the findings of the trial court. Neither exception to the general prohibition against habeas relief for claims adjudicated on the merits appears to apply to the instant petition. The decision on the merits appears consistent with clearly established federal law of the United States Supreme Court. It involves no unreasonable application of clearly established federal law. It also appears based on a reasonable determination of the facts. The record firmly supports the denial of the claim. Under 28 U.S.C. § 2254(d), petitioner may obtain no federal relief on his claim of prosecutorial misconduct, as it was adjudicated on the merits by the state courts.
VIII. DEFECTIVE INDICTMENT
Petitioner claims that his indictment was fundamentally defective because it fails to comply with provisions related to examining trials. ( See Pet. at 7G.)
"The sufficiency of a state indictment is not a matter for federal habeas corpus review unless it can be shown that the indictment is so defective that the convicting court had no jurisdiction." Alexander v. McCotter, 775 F.2d 595, 598 (1985). Federal courts, nevertheless, will not consider claims that a state indictment is insufficient to confer jurisdiction upon the trial court when the issue "was squarely presented to the highest court of the state" and it can reasonably be inferred that that court passed on the merits of the sufficiency issue. Id. at 598-99. In a habeas proceeding, this Court does not sit in review of a state court's interpretation of its own law. Creel v. Johnson, 162 F.3d 385, 395 (5th Cir. 1998); Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995).
Petitioner raised this issue in his state writ. See S.H. Tr. at 13. The Texas Court of Criminal Appeals denied that writ on the findings of the trial court. See Ex parte Runnels, No. 39,507-05, slip op. at 1 (Tex.Crim.App. Oct. 31, 2001). The trial court specifically found that the indictment "was in no way fundamentally defective." S.H. Tr. at 47. This Court will not review that explicit finding. See Alexander, 775 F.2d 598-99. Thus, this claim entitles petitioner to no federal habeas relief.
IX. PERJURY
Petitioner claims that Officer Crowley committed perjury while testifying at trial. ( See Pet. at 7I-7J.) He asserts that "the Prosecutor should have been aware of the perjury, once [petitioner] was cross-examined and recross-examined." ( Id. at 7I.)The Due Process Clause of the Fourteenth Amendment to the United States Constitution "forbids the State from knowingly using perjured testimony where there is a reasonable likelihood that such testimony will affect the verdict." Knox v. Johnson, 224 F.3d 470, 482 (5th Cir. 2000) (citing Giglio v. United States, 405 U.S. 150, 153-54 (1972)).
Although this rule is stated in terms that treat the knowing use of perjured testimony as error subject to harmless-error review, it may as easily be stated as a materiality standard under which the fact that testimony is perjured is considered material unless failure to disclose it would be harmless beyond a reasonable doubt.United States v. Bagley, 473 U.S. 667, 679-80 (1985) (footnote omitted).
To obtain habeas relief based upon use of perjured testimony, petitioner must show that the testimony was actually false, the prosecutor knew it was false, and the evidence was "material, i.e., a highly significant factor reasonably likely to have affected the jury's verdict." Blackmon v. Scott, 22 F.3d 560, 565 (5th Cir. 1994); accord Hafdahl v. Johnson, 251 F.3d 528, 532-33 (5th Cir. 2001). The United States Supreme Court has "treated `reasonable likelihood' as synonymous with `reasonable possibility' and thus ha[s] equated materiality in the perjured-testimony cases with a showing that suppression of the evidence was not harmless beyond a reasonable doubt." See Strickler v. Greene, 527 U.S. 263, 299 (1999) (Souter, J., concurring). The Supreme Court has defined the harmless-beyond-a-reasonable-doubt standard as no "`reasonable possibility' that trial error contributed to the verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
In this instance, petitioner has not established that any testimony from Officer Cowley was actually false. Petitioner merely infers perjury from perceived inconsistencies between the Officer's trial testimony and his police report, and from contradictory trial testimony from petitioner himself. However, perjury is not established merely by contradictory testimony from witnesses, inconsistencies within a witness's testimony, or conflict between reports, written statements, and the trial testimony of a prosecution witness. See Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990) (holding that "contradictory trial testimony . . . merely establishes a credibility question for the jury" and does not suffice to establish perjury); United States v. Martinez-Mercado, 888 F.2d 1484, 1492 (5th Cir. 1989) (holding that "[t]he omission of certain facts from the reports and written statements of the prosecution's witnesses, alone, is certainly not adequate to put the prosecution on notice of perjury on their part, much less to establish that such perjury in fact occurred").
Moreover, even assuming that Officer Cowley lied at trial, petitioner is still not entitled to habeas relief because he has not shown that the prosecutor knew or should have known that such testimony was false. Petitioner merely suggests that the prosecution should have known of the perjury after the prosecution cross-examined petitioner about the police report. Such suggestion, however, does not demonstrate that the prosecutor knew or should have known Officer Cowley's testimony was false. Contradictory testimony between a defendant and a police officer does not provide a sufficient basis to put the prosecution on notice of perjury by the police officer. Petitioner's claim of perjury by Officer Cowley entitles him to no habeas relief.
X. EVIDENTIARY HEARING
Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.
XI. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.