Sharper v. Dretke

Full title: CALVIN SHARPER, Petitioner, v. DOUGLAS DRETKE, Director, Texas Department…

Court: United States District Court, N.D. Texas, Dallas Division

Date published: May 12, 2004

No. 3:01-CV-1405-P (N.D. Tex. May. 12, 2004)

Opinion

No. 3:01-CV-1405-P.

May 12, 2004

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

IRMA C. RAMIREZ, 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 : Petitioner and a co-defendant were involved in an armed bank robbery and subsequent chase and shootout with various law enforcement personnel. See Sharper v. State, 22 S.W.3d 557, 558 (Tex.App. — Texarkana 2000) (setting forth brief summary of the basis for petitioner's convictions). On March 27, 1997, the State arrested petitioner for his alleged involvement in these events. See Reporter's Record, Vol. IV at 125-28 [hereinafter cited as RR-volume # at page]. On March 19, 1998, the State re-indicted¹ him for aggravated robbery with a deadly weapon (Cause No. F98-00768) and three counts of aggravated assault of a public servant with a deadly weapon (Cause Nos. F98-00760, F98-00766, and F98-00767). TR-760² at 2-4; TR-766 at 2-4; TR-767 at 2-4; TR-768 at 2-4. On April 14, 1998, petitioner's trial on these counts commenced. RR-I at 1. Prior to voir dire on April 14, 1998, several witnesses testified regarding various evidentiary matters, including the pretrial identification of petitioner. Id. at 5-93. On April 15, 1998, the trial court conducted a separate identification hearing. RR-II Supp.³ at 3-12. On April 20, 1998, after hearing testimony and receiving evidence, a jury convicted petitioner of all counts against him, and assessed punishment at ninety years imprisonment and a $10,000 fine. See RR-V at 101.

1 It is uncertain when the State first indicted petitioner.

2 "TR" refers to the state trial records. In this case, the Court further specifies the particular state case with the last three digits of the state cause number.

3 "RR-II Supp." refers to the Reporter's Record that includes the Identification Hearing conducted by the trial court. The Reporter's Record also finishes the testimony of Larry Sprague and commences the testimony of Brian Parrish.

On March 28, 2000, the court of appeals affirmed petitioner's convictions. Sharper v. State, 22 S.W.3d 557, 560 (Tex.App. — Texarkana 2000) (Cause No. F98-00760); Sharper v. State, No. 06-99-00032-CR, 2000 WL 309132, at *1 (Tex.App.-Texarkana Mar. 28, 2000) (Cause No. F98-00766); Sharper v. State, No. 06-99-00033-CR, 2000 WL 309133, at *1 (Tex.App.-Texarkana Mar. 28, 2000) (Cause No. F98-00767); Sharper v. State, No. 06-99-00034-CR, 2000 WL 309134, at *1 (Tex.App.-Texarkana Mar. 28, 2000) (Cause No. F98-00768).⁴ Petitioner contended on appeal that the trial court erred in denying a request for mistrial after the State revealed to the jury that he was in jail, and when it entered a deadly weapon finding outside his presence. Sharper, 22 S.W.2d at 558. The court of appeals found no error by the trial court. Id. at 558-60.

4 The three Westlaw cases recognize that the four appeals were consolidated and raised identical issues. For ease of reference, the Court will hereinafter simply cite to the published appellate decision.

On March 30, 2001, petitioner filed a state application for writ of habeas corpus for each of his convictions. See S.H. Tr.⁵ at 5, 15, 25, 35. On June 13, 2001, the Texas Court of Criminal Appeals denied the applications without written order. See Ex parte Sharper, No. 49,495-01, slip op. at 1 (Tex.Crim.App. June 13, 2001).

5 "S.H. Tr." denotes the state habeas records attached to Ex parte Sharper, No. 49,495-01, slip op. (Tex.Crim.App. June 13, 2001).

Petitioner contends that he placed the instant federal writ of habeas corpus into the prison mailing system on July 7, 2001. (Pet. for Writ of Habeas Corpus (Pet.) at 9.) The Court received the federal writ on July 23, 2001. ( Id. at 1.) On August 10, 2001, the Court received a motion for leave to supplement the original petition with an attached supplement that appears to raise claims not in the original petition. ( See Mot. for Leave to Supp.) On August 27, 2001, the Court granted petitioner leave to supplement⁶ his federal petition, but specifically declined to indicate a position on the issue of statute of limitations. ( See Order Granting Leave to Supp.) On November 8, 2001, respondent filed an answer that urges the Court to dismiss the federal petition as untimely because it was not filed until July 18, 2001. ( See Answer at 5-6.)

6 Such supplementation is not technically a supplement within the meaning of Fed.R.Civ.P. 15(d) because the document does not set forth matters which occurred after the filing of the original petition. The supplement is more in the nature of an amendment which adds additional facts and claims to the original petition rather than supercedes or supplants the original petition. For ease of reference, the Court will continue to refer to the filed document as a supplement.

On June 30, 2003, the Court recognized the disagreement regarding the date petitioner filed the instant petition, and directed respondent to provide a copy of the prison mail logs for the relevant time period. ( See Order dated June 30, 2003.) On July 18, 2003, respondent produced the mail logs which indeed show a mailing to this Court on July 18, 2001. ( See Advisory to the Court and attached mail logs.) On July 22, 2003, the Court received a reply to that advisory in which petitioner specifically asserts that he placed his federal writ in the hands of a correctional officer on July 7, 2001. ( See Petitioner's Reply.)

On December 5, 2003, the Court denied petitioner leave to further amend or supplement his federal petition. ( See Order Denying Leave to Amend/Supp.) That same day, the Court directed respondent to file an amended answer because an evidentiary hearing appeared necessary to determine the actual date petitioner placed his federal petition into the prison mail system, such "hearing may or may not provide relevant evidence to support or disprove the competing contentions", and an evidentiary hearing might be necessary to resolve the merits of petitioner's claims, if the Court found the petition timely. ( See Order Directing Resp. to File Am. Answer at 2.) The Court specifically indicated that no additional briefing was required on the limitations issue. ( Id. at 3 n. 1.) On March 7, 2004, respondent filed an amended answer in which he addresses some of petitioner's claims on the merits and seeks denial of other claims as procedurally barred. ( See Am. Answer.) On March 30, 2004, the Court determined that certain state court records had not been provided to it, and thus ordered respondent to provide the omitted state court records. On April 19, 2004, respondent filed the missing records.

D. Substantive Issues : In his original federal petition, petitioner asserts that he is being held unlawfully because (1) his sentence is illegal and the trial court denied him due process; (2) he was denied a fair trial due to trial court error during voir dire; (3) he received ineffective assistance of counsel; (4) the State used suggestive identification procedures; (5) the evidence is insufficient to support his convictions; and (6) he was denied his right to a speedy trial. (Pet. at 7-8 and attached page.) Petitioner provides no supporting facts for any of these claims in his original petition. ( Id.) Instead, he refers to a "Brief in Support" but provides no brief in support. ( Id.) Nevertheless, he raised the same six claims in each of his state habeas petitions which set forth some facts supporting the claims. See S.H. Tr. at 10-12, 20-22, 30-32, 40-42. He also provided a memorandum of law with his state petitions that set forth his arguments on these claims. Id. at 45-75. He therein clarified that his attorney rendered ineffective assistance when he failed to object to the prosecutor's reference to matters outside the trial record during closing argument at punishment. Id. at 11, 21, 31, 41, 60-63.

In his supplement to the original petition, petitioner asserts that he received ineffective assistance of counsel when his trial attorney failed to file a motion for severance and failed to object to the introduction of an inadmissible juvenile criminal record. (Supp. at 1-7.) He further asserts that he was denied due process by the following improper investigative procedures of the State: (1) placing him in the third slot during pretrial identification lineups; (2) manufacturing circumstantial evidence; and (3) imposing duress upon several witnesses. ( Id. at 8-13.) He also asserts that he was denied a fair trial by the following prosecutorial misconduct: (1) improper jury argument; (2) improper argument for enhanced sentence; (3) improper bolstering of witnesses; and (4) improper admission of juvenile criminal record and extraneous offense evidence. ( Id. at 14-23.)

E. Procedural Issues : Respondent contends that petitioner has not sufficiently exhausted his state remedies with respect to his claim of insufficiency of the evidence and the claims raised in his supplement. (Am. Answer at 4-10.) Respondent argues that these claims are procedurally barred from federal habeas review. ( Id. at 5.) He does not seek dismissal for the failure to exhaust, but rather on the related ground of procedural bar. ( Id.) Respondent also seeks dismissal of the entire federal petition as barred by the statute of limitations. (Answer at 4-5.)

II. APPLICABLE LAW

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA or the Act), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date, which is the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after the effective date of the AEDPA, 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 adjudicated the claims before it on their merits. See Sharper v. State, 22 S.W.3d 557, 557-60 (Tex.App.-Texarkana 2000). The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply to the claims that petitioner presented to the state courts.

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." 529 U.S. at 413; see also, 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; see also, 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).

III. STATUTE OF LIMITATIONS

Respondent urges the Court to dismiss the instant federal petition because petitioner failed to file it within the applicable statute of limitations. (Answer at 5-6.) He contends that the petition is untimely because petitioner failed to file it before July 11, 2001.⁷ ( Id. at 5.) Petitioner, on the other hand, contends that the petition is timely because he gave it to a prison correctional officer on July 7, 2001. (Reply at 1; Pet. at 9.) Petitioner thus argues that the prison mailbox rule recognized in Houston v. Lack, 487 U.S. 266 (1988) makes his petition timely.

7 No one disputes that the one-year limitations period expired on July 11, 2001. The Court's independent analysis under 28 U.S.C. § 2244(d) confirms that expiration date.

"Under the `mailbox rule,' a prisoner's federal habeas corpus petition is deemed filed when he delivers the petition to prison officials for mailing to the district court." See Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (citing Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998) and relying on Houston and its progeny). Thus, to the extent petitioner delivered his original federal petition to prison officials for mailing prior to July 11, 2001, the petition is timely. However, the Court has only the certification of petitioner that he placed his federal petition in the prison mailing system on July 7, 2001. Respondent has submitted prison mail logs that show a mailing to this Court on July 18, 2001. A mailing on that date compares favorably to the date this Court received the petition — July 23, 2001. Nevertheless, nothing of record contradicts petitioner's assertion that he placed his federal writ in the hands of prison officials on July 7, 2001. The Court will thus assume, without deciding, that petitioner filed the instant action on July 7, 2001. Under that assumption, the claims raised in the original federal petition are timely.

The assumption, however, does not necessarily make the claims raised in petitioner's supplement timely. There is no doubt that petitioner filed the supplement after July 11, 2001. For claims raised in the supplement to be timely, they must relate back to the date of the original petition. See Fed.R.Civ.P. 15(c). Because Rule 15 is not inconsistent with the Rules Governing Section 2254 Cases in the United States District Courts, the rule applies in habeas actions filed pursuant to 28 U.S.C. § 2254. See Rule 11 of Rules Governing Section 2254 Cases in the United States District Courts; Newell v. Hanks, 283 F.3d 827, 835 (7th Cir. 2002). The Fifth Circuit, furthermore, has specifically held that Fed.R.Civ.P. 15, including subparagraph(c), applies in the related context of motions filed pursuant to 28 U.S.C. § 2255. See United States v. Saenz, 282 F.3d 354, 355-56 (5th Cir. 2002).

Rule 15(c)(2) provides that an amendment "relates back to the date of the original pleading when . . . the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." While the Fifth Circuit has not addressed what claims relate back under Fed.R.Civ.P. 15(c) in the context of a collateral attack to a federal or state conviction under 28 U.S.C. § 2254 or § 2255, this Court has held that claims do not relate back merely because they arose from the same trial or sentencing proceeding. See Hanna v. United States, Nos. 3:01-CV-2197-H, 3:99-CR-085-H, 2003 WL 203177, at *1 (N.D. Tex. Jan. 27, 2003); Olivares-Martinez v. United States, Nos. 3:01-CV-1413-P, 00-CR-0312-P, unpub. op. (N.D. Tex. Nov. 26, 2002).

For the claims raised in petitioner's supplement to relate back to the date he originally filed his original federal petition, there must be some commonality between them and the claims he initially raised. The claims raised in the supplement appear separate and distinct from the claims initially raised by petitioner. They do not share commonality beyond the fact that they arose out of the same court proceedings. The supplement does not simply supplement or amplify the facts already alleged, but attempts to introduce new legal theories on facts different from those underlying the original claims. Although "an amendment offered for the purpose of adding to or amplifying the facts already alleged in support of a particular claim may relate back, one that attempts to introduce a new legal theory based on facts different from those underlying the timely claims may not." United States v. Hicks, 283 F.3d 380, 388 (D.C. Cir. 2002) (citations omitted). "A prisoner should not be able to assert a claim otherwise barred by the statute of limitations merely because he asserted a separate claim within the limitations period." United States v. Duffus, 174 F.3d 333, 338 (3d Cir. 1999).

In this instance, the claims raised in the supplement do not relate back to the date petitioner filed his initial federal petition and are thus untimely in the absence of equitable tolling or some other valid reason for tolling or disregarding the statute of limitations. Nothing in the petition indicates that rare and exceptional circumstances warrant equitable tolling in this case. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (recognizing that statute of limitations is subject to equitable tolling). Further, petitioner has given no basis for otherwise tolling or disregarding the statute of limitations. Consequently, the claims raised in the August 2001 supplement fall outside the statutory period and should be deemed untimely.

IV. PROCEDURAL BAR

Respondent also argues that the claims raised in petitioner's supplement, as well as his claim of insufficiency of the evidence, were not sufficiently exhausted, and are now procedurally barred from federal habeas review. (Am. Answer at 4-10.)

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). Furthermore, when a claim has not been reviewed by the state's highest court, 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. A. Insufficiency of the Evidence

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). Furthermore, 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 denied the state petition without stating its reasons. See West v. Johnson, 92 F.3d 1385, 1398 n. 18 (5th Cir. 1996).

Although petitioner did not present his insufficiency-of-the-evidence claim in a petition for discretionary review, he did present the claim to the Texas Court of Criminal Appeals in his state writs. See S.H. Tr. at 12, 22, 32, 42. The trial court made no findings with respect to those writs. See generally, S.H. Tr. at 1-108. The Texas Court of Criminal Appeals denied petitioner's state habeas applications without explanation. See Ex parte Sharper, No. 49,495-01, slip op. at 1 (Tex.Crim.App. June 13, 2001). Its silence generally 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"). The habeas court in this case, however, rendered no decision on the state habeas petitions. There is thus no decision that provides a basis for finding procedural default of the insufficiency claims.

This Court has only one indication of the basis for the ruling on the state habeas applications — the one-line statement from the Texas Court of Criminal Appeals that "APPLICATION DENIED WITHOUT WRITTEN ORDER." By denying the applications rather than dismissing them, the Texas Court of Criminal Appeals indicates that its decision was on the merits, rather than based upon some procedural basis. 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). Under these circumstances, it is not clear that the state court actually relied on the procedural bar as an independent basis for its disposition of the case.

Moreover, "if it fairly appears that the state court rested its decision primarily on federal law, this Court may reach the federal question on review unless the state court's opinion contains a plain statement that [its] decision rests upon adequate and independent state grounds." See Harris v. Reed, 489 U.S. 255, 261 (1989) (quoting Michigan v. Long, 463 U.S. 1032, 1042 (1983), internal quotation marks omitted). In the absence of a clear, expressed "reliance on an adequate and independent state-law ground, this Court may address a federal issue considered by the state court." Id. at 263. In other words, "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Id. (citations and internal quotation marks omitted). This "plain statement" rule "achieves the important objective of permitting the federal court rapidly to identify whether federal issues are properly presented before it." Id. at 265. When the state court appears to have considered the merits of a claim and does not explicitly rely on a procedural bar to resolve such claim there is no procedural default. Dowthitt v. Johnson, 230 F.3d 733, 757 n. 36 (5th Cir. 2000). "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 state court did not clearly and expressly rely upon an adequate and independent state ground to resolve the insufficiency claims. There is absolutely no indication that the state court resolved the claims on a procedural basis. Under the circumstances of this case, the claims are 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 the claim on the merits, then federal courts are also free to review the merits of claim). B. Claims Raised in Supplement

Respondent also contends that the claims raised in petitioner's supplement are procedurally barred. (Am. Answer at 4-8.) Petitioner has indeed not presented these claims to the Texas Court of Criminal Appeals. See S.H. Tr. at 10-12, 20-22, 30-32, 40-42 (setting forth the claims raised in the state habeas applications). 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, § 4.⁸ 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. Consequently, unless petitioner can overcome the procedural bar, the claims raised in his supplement will not be further considered.

8 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.

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." Smith v. Johnson, 216 F.3d 521, 524 (5th Cir. 2000) (quoting Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997)).

Petitioner has shown no cause for his failure to present his supplemental claims to the Texas Court of Criminal Appeals. He makes no attempt to explain this failure. The Court finds no adequate reason for the failure. Petitioner has also shown no actual prejudice from the alleged violations of his constitutional rights. 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)). Petitioner has not shown that, factually, he did not commit the crimes for which he was convicted. He has thus not overcome the state procedural bar. Accordingly, the procedural default doctrine bars federal habeas relief on the claims raised in his supplement. For that reason, the Court will not review those claims.⁹

9 The Court has already found these claimed barred by the statute of limitations because they did not relate back to the date petitioner filed his original federal petition. The procedural bar provides another basis for denying habeas relief on the claims.

The Court will review petitioner's other claims under AEDPA standards enumerated in 28 U.S.C. § 2254(d).

V. SPEEDY TRIAL

Petitioner alleges that the State denied him his right to a speedy trial. (Pet. at attached page); S.H. Tr. at 70-74. The Sixth Amendment to the United States Constitution guarantees every defendant in a criminal case the right to a speedy trial. U.S. Const. amend. VI; Barker v. Wingo, 407 U.S. 514, 519-22 (1972). The Supreme Court identified four factors "which courts should assess in determining whether a particular defendant has been deprived of his right" to a speedy trial: (1) length of delay, (2) the reason for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether he has been prejudiced by the delay. Barker, 407 U.S. at 530. The courts first look to the length of delay because "to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from `presumptively prejudicial' delay." Doggett v. United States, 505 U.S. 647, 651-52 (1992). "Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker, 407 U.S. at 530. If the Court finds a presumptively prejudicial delay, it then weighs "the length of the delay, the reason for the delay, and defendant's diligence in asserting his or her rights . . . against the prejudice to the defendant." United States v. Bergfeld, 280 F.3d 486, 488 (5th Cir. 2002), accord United States v. Serna-Villarreal, 352 F.3d 225, 230 (5th Cir. 2003), cert. denied, ___ U.S. ___, No. 03-9232, 2004 WL 434397 (Apr. 5, 2004).

A. Presumptively Prejudicial Delay

In this instance, the State arrested petitioner on March 27, 1997. RR-IV at 126-27. The State re-indicted him on March 19, 1998. TR-760 at 2-4; TR-766 at 2-4; TR-767 at 2-4; TR-768 at 2-4. Because the date of arrest occurred prior to any indictment,¹⁰ March 27, 1997, is the "starting point" for determining whether the delay is presumptively prejudicial. See Gray v. King, 724 F.2d 1199, 1202 (5th Cir. 1984). Thus there was a nearly thirteen-month delay between petitioner's arrest on March 27, 1997, and commencement of trial on April 14, 1998.

10 The date of the original indictment necessarily occurred after petitioner's arrest because he was arrested the same day that the alleged offenses occurred.

"Depending on the nature of the charges, the lower courts have generally found postaccusation delay `presumptively prejudicial' at least as it approaches one year." Doggett, 505 U.S. at 652 n. 1. Nevertheless, "because of the imprecision of the right to speedy trial, the length of delay that will provoke [inquiry into the Barker factors] is necessarily dependent upon the peculiar circumstances of the case . . . the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Barker, 407 U.S. at 530-31. Although a bright-line rule appears inconsistent with Barker, the Fifth Circuit has held that, "[i]f the delay reaches the threshold level of one year, it is `presumptively prejudicial' and requires the court to engage in the speedy trial analysis, balancing the remaining factors." United States v. Cardona, 302 F.3d 494, 497 (5th Cir. 2002). Consistent with Cardona, the Court will consider the instant delay of approximately twelve and one half months to be presumptively prejudicial.

B. Balancing Test

Upon finding a presumptively prejudicial delay in bringing the petitioner to trial, the Court proceeds to weigh the first three Barker factors, i.e., the length of that delay, the reasons for it, and petitioner's diligence in asserting his right to a speedy trial, against the fourth Barker factor — the prejudice that the delay caused to petitioner. It considers "the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the [Speedy-Trial] claim" because "the presumption that pretrial delay has prejudiced the accused intensifies over time." Doggett v. United States, 505 U.S. 647, 652 (1992). Furthermore, "[t]he defendant's assertion of his speedy trial right . . . is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Barker v. Wingo, 407 U.S. 514, 531-32 (1972). In fact, the "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Id. at 532.

With respect to the second Barker factor — reasons for the delay — the courts accord different weights to different reasons depending upon the diligence exercised by the government and whether the delay results from an intentional governmental attempt to gain an "impermissible advantage at trial." Id. at 656. "The middle ground between diligent prosecution and bad-faith delay is government negligence in bringing an accused to trial." United States v. Cardona, 302 F.3d 494, 497 (5th Cir. 2002).

Although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused's defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun. And such is the nature of the prejudice presumed that the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows. Thus, our toleration of such negligence varies inversely with its protractedness, and its consequent threat to the fairness of the accused's trial.

Doggett, 505 U.S. at 657 (citation omitted). "A more neutral reason such as negligence . . . should be weighted less heavily [against the government than bad faith] but nevertheless should be considered since the ultimate responsibility for such circumstances [as judicial delay or negligence] must rest with the government rather than with the defendant." Barker, 407 U.S. at 531.

"Under Doggett and Bergfeld, the first three [ Barker] factors `should be used to determine whether the defendant bears the burden to put forth specific evidence of prejudice (or whether it is presumed).'" United States v. Cardona, 302 F.3d 494, 498 (5th Cir. 2002) (quoting United States v. Bergfeld, 280 F.3d 486, 488 (5th Cir. 2002)). "Depending on how heavily the first three factors weigh for or against the defendant, prejudice is presumed in some cases, relieving the defendant of any burden to show actual prejudice. One lesson from Doggett is that the longer the delay, the greater the presumption of prejudice." Bergfeld, 280 F.3d at 488 (citation omitted).

1. Consideration of First Three Factors

In this instance, the records of the trial court reveal no assertion by petitioner of his right to a speedy trial. See, generally TR-760, TR-766, TR-767, TR-768. Neither petitioner's state habeas application nor the memorandum in support of such applications provide any indication that he ever asserted such right. See S.H. Tr. at 12, 22, 32, 42, 70-74. His federal petition contains no such indication, either. (Pet. at attached page.)

With respect to the reasons for the delay, petitioner contends that, without justification, "[t]he State postponed numerous court proceedings which caused the unnecessary delay." S.H.Tr. at 74. He asserts that the record supports that contention. Id. However, the state trial records provide no definitive reason as to why it took the State nearly thirteen months to bring petitioner to trial. See, generally TR-760, TR-766, TR-767, TR-768. Nevertheless, on March 30, 1998, the trial court held a hearing in which it continued the scheduled trial to April 14, 1998. See, generally RR of Mar. 30, 1998. The transcript of that proceeding shows that the case had "been set for trial a few times", and that due to the re-indictment of petitioner in March 1998, petitioner invoked his statutory right to a ten-day continuance of the trial. Id. at 21. Despite the recognition in the transcript that there had been several trial settings, the transcript provides no explanation for the various delays, other than the ten-day continuance sought by petitioner himself. In its amended answer in this case, the State explains that "it is entirely reasonable that a trial with two co-defendants facing four charges each would take a year to prepare for." ( See Am. Answer at 17.) Although such reasoning perhaps appears more pertinent to the determination of the presumptively prejudicial threshold envisioned by Barker, see 407 U.S. at 530-31, it appears reasonable to also consider such reasons in the context of the Barker balancing test. The delay in bringing petitioner to trial does not appear inordinate when considered in light of the nature of the charges against him, i.e., one count of armed robbery with a deadly weapon and three counts of aggravated assault of a public servant with a deadly weapon — it was merely two to three weeks over the presumptively prejudice threshold established by the Fifth Circuit. The Fifth Circuit, furthermore, has held that a delay of three and a half years "does not weigh heavily" in the petitioner's favor. See United States v. Serna-Villarreal, 352 F.3d 225, 232 (5th Cir. 2003), cert. denied, ___ U.S. ___, No. 03-9232, 2004 WL 434397 (Apr. 5, 2004). The thirteen month delay in this case is thus accorded even less weight.

Based on consideration of the first three Barker factors, the Court will not presume prejudice. Rather, petitioner has the burden to affirmatively demonstrate actual prejudice.

2. Claimed Prejudice

Petitioner claims that "the unnecessary delay prejudiced [him] because witnesses for the State, after the delay, gave conflicting statements. Their prior statements aided the defense, whereas their latter ones aided the State." S.H. Tr. at 74. He further claims that the delay "tainted the recollection of witnesses", thus biasing him and depriving him of a fundamentally fair trial. Id.

Prejudice from an "unreasonable delay between formal accusation and trial" can take on many forms, "including `oppressive pretrial incarceration,' `anxiety and concern of the accused,' and `the possibility that the [accused's] defense will be impaired' by dimming memories and loss of exculpatory evidence." Doggett v. United States, 505 U.S. 647, 654 (1992) (citations omitted). Of course, the most serious form of prejudice arises from possible impairment of the accused's defense "because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Id. (quoting Barker 407 U.S. at 532).

In this instance, petitioner provides no support for his allegation that witnesses gave conflicting statements after the delay, whereas earlier statements were favorable to him. He directs the Court to no initially favorable statement that over the course of time changed to his detriment. In fact, two specific witnesses, Comedra Stiggers and Demond Shofner, may have made initial statements to law enforcement personnel detrimental to petitioner's case that were later changed at trial. See RR-III at 206-13; RR-IV at 10-15, 27-28, 61-70, 81-85. A review of the state court records reveals no support for petitioner's allegation that the delay caused a change in trial testimony to his detriment.

Petitioner also provides no support for his allegation that the delay "tainted the recollection of witnesses." See S.H. Tr. at 74. A review of the record reveals no reduced recollection that was detrimental to petitioner's case.

For all of these reasons, petitioner has failed to carry his burden to show prejudice from the delay in bringing him to trial. Mere conclusory allegations of prejudice do not suffice when the burden rests with petitioner to prove demonstrable prejudice.

3. Balancing Prejudice Against Other Factors

The balancing of the various factors weighs almost entirely against petitioner — the delay was not unduly lengthy, the complexity of the case adequately explains the delay, petitioner never asserted his right to a speedy trial, and petitioner has not carried his burden to show prejudice. The record, furthermore, does not support the alleged prejudice. Even if the Court were to find some prejudice to petitioner caused by the delay in bringing him to trial, it would find such prejudice minimal when weighed against the other factors. Consequently, petitioner is entitled to no habeas relief on his speedy trial claim.

VI. SUFFICIENCY OF THE EVIDENCE

Petitioner also claims that no evidence supports his convictions. (Pet. at attached page.) In his state writs he claimed that insufficient or no evidence supports his convictions because the State presented no evidence which showed that he was at the crime scene or committed said offenses. S.H. Tr. at 12, 22, 32, 42. The Texas Court of Criminal Appeals denied those writs. See Ex parte Sharper, No. 49,495-01, slip op. at 1 (Tex.Crim.App. June 13, 2001).

By his claim that "no evidence" supports his convictions, petitioner challenges the legal sufficiency of the evidence. See Haley v. Cockrell, 306 F.3d 257, 266-67 (5th Cir. 2002) (noting that a claim of "no evidence" is the same as a claim of insufficiency of the evidence governed by Jackson v. Virginia, 443 U.S. 307 (1979)). On federal habeas review, the standard for reviewing the sufficiency of the evidence is supplied by Jackson v. Virginia, 443 U.S. 307 (1979). That standard applies whether the evidence is direct or circumstantial. United States v. Scott, 159 F.3d 916, 920 (5th Cir. 1998).

In this instance, the state disposition of the insufficiency claim of petitioner appears consistent with the governing Supreme Court precedent set forth in Jackson. "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. 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. 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).

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 challenging the sufficiency of the evidence to support 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)).

A. Aggravated Robbery Conviction

In Cause No. F98-00768, a jury convicted petitioner of aggravated robbery. See RR-V at 101. Petitioner claims that no evidence supports this conviction. (Pet. at attached page.) In his state writ which challenged this conviction, he claimed that insufficient or no evidence supports the conviction because no evidence showed that he was at the crime scene or committed said offense. S.H. Tr. at 42.

The indictment for this offense generally charged petitioner with aggravated robbery with a deadly weapon. See TR-768 at 2. It specifically charged that, on or about March 27, 1997, in Dallas County, Texas, petitioner

unlawfully, then and there while in the course of committing theft and with intent to obtain and maintain control of the property of RACHEL KUSTER, hereinafter called complainant, the said property being current money of the United States of America, without the effective consent of said complainant and with intent to deprive the said complainant of said property, did then and there knowingly and intentionally threaten and place the said complainant in fear of imminent bodily injury and death, and the defendant did then and there use and exhibit a deadly weapon, to-wit: a firearm.

Id. The trial court, furthermore, read the following charge to the jury:

Our law provides that a person commits the offense of robbery if, in the course of committing theft, as that term is hereinafter defined, and with intent to obtain and maintain control of property of another, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

The offense is aggravated robbery if the person committing robbery uses or exhibits a deadly weapon.

TR-768 at 13.

"Under Texas law, there are essentially two substantive elements which the state must prove to convict a defendant of aggravated robbery: (1) that the defendant committed robbery; and (2) that the defendant used or exhibited a deadly weapon." Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991) (footnote omitted). A person commits robbery when he "in the course of committing theft . . . and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." TEX. PENAL CODE ANN. § 29.02(a) (Vernon 2003). The statute defines "in the course of committing theft" as "conduct that occurs in an attempt to commit, during the commission, or in the immediate flight after the attempt or commission of theft." Id. § 29.01(1). The use or exhibition of a deadly weapon transforms robbery into aggravated robbery. See id. § 29.03(a)(2).

Although the state court denied petitioner's state applications for writ of habeas corpus, it provides no details as to the reasons for denying the legal-sufficiency claim. See Ex parte Sharper, No. 49,495-01, slip op. at 1 (Tex.Crim.App. June 13, 2001). Nevertheless, that denial appears consistent with Jackson. The denial, furthermore, involves no unreasonable application of Jackson.

In this instance, petitioner attacks the sufficiency of the evidence on grounds that there was no evidence that he was at the crime scene or committed the charged robbery. The alleged aggravated robbery occurred during an alleged armed robbery of Bank One in Mesquite, Texas. Ava Smith testified that she loaned petitioner's co-defendant, Kevin Beasley, her blue Thunderbird, on March 26, 1997. RR-IV at 87-89. She further testified that the car had no bullet holes when she loaned it to Beasley. Id. at 117. Another witness, Kevin McGuyer, testified that, on the day before the robbery, Beasley, accompanied by petitioner, purchased a Mac 90, military style rifle from his place of employment — the Ammo Depot. RR-II at 116-17, 121. A third witness, Carolyn Webb, stated that she saw petitioner near Bank One around 8:45 a.m. the day before and the day of the robbery. Id. at 27-34.

Witnesses from Bank One testified that, on March 27, 1997, at approximately 10:00 a.m., two individuals with firearms entered the bank and robbed it. Id. at 63-64, 80-81, 89, 151-52. Bank surveillance captured video and photographs of two black males carrying firearms entering the bank at 10:01 a.m. and leaving at 10:02 a.m. Id. at 71-73, 79-81. They took current money of the United States from Rachel Kuster without her consent, and placed her in fear of imminent bodily injury and death. Id. at 151, 154, 158-59. Ms. Kuster placed a "dye pack" in the bag of money. Id. at 155, 161. One robber wore dark clothes, a ski mask, and gloves, and carried a hand gun. Id. at 64-65, 91-92, 153. The second robber wore a motorcycle helmet, T-shirt, long-sleeved T-shirt, and carried a rifle. Id. at 93, 158. They joined a third individual and left the robbery in a dark blue, late 1980's model Buick. Id. at 97.

Angela Carroll, a resident of Oakwood Village Apartments, testified that she saw three men in a blue Buick in her apartment complex between 10:00 and 10:15 a.m. on March 27, 1997. Id. at 165, 167-68. She also saw the three men a few moments later near a dark Thunderbird. Id. at 169-71. Not long thereafter, the men and Thunderbird were gone, but the Buick was still there. Id. at 174-75.

Larry Sprague, Assistant Chief of Police of the Mesquite Police Department, testified that, on the morning of March 27, 1997, while in an unmarked police vehicle, he spotted a blue Thunderbird coming out of the Oakwood Village Apartments which made him suspicious because he had recently heard that suspects in a bank robbery were in a blue vehicle. Id. at 183-86. He requested a marked police vehicle to stop the Thunderbird and check out the occupants. Id. at 186. Officer Brian Parrish thereafter arrived, attempted to stop the vehicle, and pursued it when it sped away. Id. at 186-87; RR-II Supp. at 20-22. During the ensuing chase, petitioner shot at pursuing officers with a "mini-14." RR-II at 188; RR-II Supp. at 16, 22-24; RR-III at 10-11, 43-48, 87-88. Police officers returned fire. RR-III at 76-77, 99. The Thunderbird successfully eluded its pursuers. Id. at 99-100. A later search of the scene turned up .223 rifle casings on the highway. RR-IV at 197-98. Furthermore, Chief Sprague and Officer Parrish both identified petitioner as the shooter. RR-II at 190; RR-II Supp. 15-16, 38-39; RR-III at 9, 15-17, 22, 36.

At 10:30 a.m. witness Juan Carrillo spotted petitioner and Beasley walking along railroad tracks near Santa Fe and Cameron streets. Id. at 129-43. The witness positively identified petitioner at trial and from a photo lineup prior to trial. Id. at 130-31, 150-53.

Mike Parker of the Mesquite Police Department testified that he located the getaway car in the Oakwood Village Apartment complex at approximately 10:35 a.m. Id. at 170-72, 176.

John McClure of the Mesquite Police Department testified that, at around 12:16 p.m. on March 27, 1997, he arrived at Cameron and Santa Fe in Dallas where other officers had found a blue Thunderbird. RR-IV at 211-12. The vehicle had a hole in the right front quarter panel that was consistent with a gunshot hole. Id. at 214. It also contained live .223 cartridges, a blue ski mask, a screwdriver, latex gloves, and a dark wallet containing identification cards of Kevin Beasley and a business card from the Ammo Depot. Id. at 214-15, 218, accord RR-III at 174-76. William Sipes of the same police department testified that he participated in the search of the Thunderbird and the recovery of "a pair of blue Dickey's coveralls" size 46 by 48 and a shirt "on the opposite side of the railroad tracks from where the car was abandoned." RR-IV at 187-90.

Ava Smith testified that Beasley told her on March 27, 1997, that the Thunderbird "had broken down", and that she should "report it stolen." RR-IV at 92. When he picked her up from work later that afternoon, he was listening to "a walkie-talkie type scanner", and took her down around "Santa Fe" to look for the car, because he had "left his wallet in the car." Id. at 93. When they could not find the car, he told her to call the police and tell them it had been towed. Id. at 93-94. They then went to Beasley's home, picked up petitioner, and proceeded to a gas station. Id. at 94-95. Agents of the Federal Bureau of Investigation (FBI) pulled them over as the left the gas station and arrested them. Id. at 95.

Testimony from an FBI agent also shows that petitioner and Beasley were arrested near a gas station on March 27, 1997. Id. at 126-27. The FBI found a "magazine to a .45 semi-automatic pistol" in Beasley's pocket during their search incident to arrest. Id. at 127.

At 9:00 to 9:30 p.m. on March 27, 1997, law enforcement personnel searched Beasley's parents' home and surrounding area, including an outlying shed. Id. at 176. They found .223 rifle cartridges that can be fired from a mini-14; ammunition for a .45 caliber pistol and a Mac 90 rifle, a rifle box for a Mac 90, latex gloves, and "a Dickey's clothing tag" showing size 46 by 48. Id. at 150-52, 177-85, 190.

Officer Jeff French later investigated the shooting scene and found .223 rifle casings on the highway. Id. at 197-98. A trace evidence analyst testified that she found red dye material consistent with an exploding dye pack on "tapings" from the Buick and the recovered Dickey coveralls. RR-IV at 235-38. Furthermore, an FBI agent testified that he reviewed the bank surveillance and determined that the rifle used during the bank robbery was a Mac 90 with the safety off. RR-IV at 246. He also testified that the ski mask found in the Thunderbird as "very similar" to the one used in the robbery. Id. at 252.

A resident of Santa Fe Avenue testified that he and his son found "some sort of assault rifle" in their back yard on May 12, 1997. Id. at 157-58. Two police officers identified the rifle as a "mini-14" that had been found hidden in the bushes at a residence on Santa Fe. Id. at 161, 163-64. Further evidence showed that the casings found by Officer French had been fired from this mini-14. Id. at 205, 210. The casings also came from the same source as the .223 ammunition found at Beasley's parents' home. Id. at 207.

Although there is no direct evidence of petitioner's participation in the bank robbery, the above circumstantial evidence provides sufficient evidence to support the conviction. The evidence provides a chain of events which creates a supportable inference that petitioner participated in the armed robbery of the bank. The evidence is sufficient to prove beyond a reasonable doubt every element of aggravated robbery.

B. Aggravated Assault Convictions

Petitioner also claims that no evidence supports his convictions for aggravated assault of a public servant with a deadly weapon in Cause Nos. F98-00760, 00766, and 00767. ( See Pet. at attached page.) As he did when he challenged his aggravated-robbery conviction on state habeas review, petitioner claimed in his state writs which challenged the aggravated-assault convictions, that insufficient or no evidence supports the convictions because no evidence showed that he was at the crime scene or committed said offenses. S.H. Tr. at 12, 22, 32.

The indictments for the aggravated-assault offenses generally charged petitioner with aggravated assault on a public servant with a deadly weapon. TR-760 at 2; TR-766 at 2; TR-767 at 2; RR-Arraignment at 3-6. They specifically charged that, on or about March 27, 1997, 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, towit: a firearm, during the commission of the assault, and said complainant was at the time of the offense a public servant, namely, a MESQUITE POLICE OFFICER engaged in the lawful discharge of an official duty, and said defendant knew that complainant was a public servant.

TR-760 at 2 (complainant P.J. Burke); TR-766 at 2 (complainant B.L. Pennings); TR-767 at 2 (complainant B.L. Parrish); RR-Arraignment at 3-6. The trial court, furthermore, 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.

Such assault is aggravated assault of a public servant when the actor uses or exhibits a deadly weapon during the offense and the offense is committed against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty.

TR-760 at 19; TR-766 at 18; TR-767 at 18.

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). An aggravated assault is a first degree felony, if the offense is committed "against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty." Id. § 22.02(b)(2). An actor, furthermore, "is presumed to have known the person assaulted was a public servant if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant." Id. § 22.02(c).

Although the state court denied petitioner's state applications for writ of habeas corpus, it provides no details as the reasons for denying the legal-sufficiency claim. See Ex parte Sharper, No. 49,495-01, slip op. at 1 (Tex.Crim.App. June 13, 2001). Nevertheless, that denial appears consistent with Jackson. The denial, furthermore, involves no unreasonable application of Jackson.

In this instance, petitioner attacks the sufficiency of the evidence on grounds that there was no evidence that he was at the crime scene or committed the charged assaults. The alleged aggravated assaults occurred during a police chase whereby it was alleged that petitioner shot at pursuing officers. Chief Sprague of the Mesquite Police Department viewed the initial part of the chase from his unmarked squad car, and saw petitioner shoot at Officer Parrish as Officer Parrish followed petitioner in a marked police car with sirens and lights activated. See RR-II at 183-190. Officers Parrish, Pennings, Kalota, and Burke of the Mesquite Police Department testified that, while acting in the course of official duty while uniformed in the typical garb of such police officers, and while in marked police cars with either sirens blaring or lights flashing or both, they pursued petitioner and another individual while petitioner shot a firearm at Officers Parrish, Pennings, and Burke, thus placing them in imminent fear of bodily injury or death. See RR-II Supp. at 16, 20-30; RR-III at 10-11, 37-50, 75-78, 85-89, 97-100. Chief Sprague and Officer Parrish both identified petitioner as the shooter. RR-II at 190; RR-II Supp. 15-16, 38-39; RR-III at 9, 15-17, 22, 36. The testimony of these five officers constitute sufficient evidence to support petitioner's convictions for aggravated assault of a public servant, namely Officers Parrish, Pennings, and Burke.

VII. PRETRIAL IDENTIFICATION

Petitioner further claims that the State denied him due process when it used impermissibly suggestive identification procedures. (Pet. at 8); S.H. Tr. at 64-66. He contends that pretrial lineups were impermissibly suggestive due to a practice within the police department to place suspects in the third slot of photo lineups. S.H. Tr. at 64. He further contends that his lineup was impermissibly suggestive because his photo shows him in a white prison jumpsuit, he was the tallest potential suspect, "his number was underlined, and a triangle appeared over only his number." Id. at 66. He argues that the pretrial identifications tainted the in-court identifications of the witnesses. Id. at 64.

To evaluate whether "an improper pretrial identification was made", the courts look to the standard enunciated in Simmons v. United States, 390 U.S. 377 (1968). See United States v. Burbridge, 252 F.3d 775, 780 (5th Cir. 2001). In Simmons, the Supreme Court held "that convictions based on eyewitness identification at trial following" a challenged pretrial identification "will be set aside on that ground only if the . . . identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 390 U.S. 377, 384 (1968). The courts employ "[a] two-step analysis" to determine whether there is a Simmons violation: "first, we determine whether the identification procedure was impermissibly suggestive; if it was, we determine whether, under the totality of the circumstances, the suggestiveness led to a substantial likelihood of irreparable misidentification." Burbridge, 252 F.3d at 780.

Stated another way, the second prong requires the courts to "determine whether the in-court identification is reliable, notwithstanding the impermissibly suggestive pretrial [identification]." United States v. Honer, 225 F.3d 549, 553 (5th Cir. 2000). In Neil v. Biggers, 409 U.S. 188 (1972), the Supreme Court set forth factors pertinent to determine the reliability of an in-court identification under the totality of the circumstances. Honer, 225 F.3d at 553.

[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Neil, 409 U.S. at 199-200.

"[T]he constitutionality of the pretrial identification procedures used in this case is a mixed question of law and fact. . . ." Sumner v. Mata, 455 U.S. 591, 597 (1982). Alleged unconstitutional pretrial identification procedures are thus reviewed under 28 U.S.C. § 2254(d)(1), which precludes relief unless the state court's determination was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court. Background fact findings made in the course of determining the identification issues are, nevertheless, subject to the presumption of correctness of § 2254(e)(1) and under the AEDPA may be rebutted by clear and convincing proof.

In this instance, petitioner moved for the trial court to determine the admissibility of identification testimony of witnesses Juan Carrillo, Brian Parrish, Carolyn Webb, and Kevin McGuyer,¹¹ and the trial court made the following written findings:

11 Although the written findings mention witness "Kevin Guyer", TR-760 at 18; TR-766 at 17; TR-767 at 17; TR-768 at 12, the correct name is "Kevin McGuyer", see RR-II at 107 (showing witness spelling his name).

(1) the above named witnesses have identified the defendant in this cause as being the person who committed the offense alleged in the indictment;

(2) the in-court identifications were not influenced either by the witnesses having seen photographs of the defendant or by the witnesses having viewed the defendant in a lineup conducted by law enforcement authorities;

(3) the in-court identifications were based solely on the witnesses having viewed the defendant at the time and place where the offense was committed, as alleged in the indictment.

See TR-760 at 14-18; TR-766 at 13-17; TR-767 at 13-17; TR-768 at 8-12. With respect to these witnesses, the trial court also made oral findings on the record after taking testimony regarding their identification of petitioner. RR-I at 91-92; RR-II at 21; RR-II Supp. at 12; RR-III at 128. It found that the witnesses had identified the defendant, such identification was based on viewing him at or near the time and place of the commission of the alleged offense as named in the indictment, and that the identification testimony will be admitted before the jury if offered. RR-I at 91-92; RR-II at 21; RR-II Supp. at 12; RR-III at 128.

When called to testify before the jury, Officer Parrish specifically identified petitioner as the person who shot at him on March 27, 1997. RR-II Supp. at 38-39; RR-III at 9, 36. Officer Parrish testified that he had a decent view of the shooter's face. RR-III at 9. He also testified about his pretrial identification of petitioner on the evening of March 27, 1997. Id. at 14-17, 22. He testified that he had no advance knowledge that petitioner's photo would be in the third slot of the photographic array. Id. at 16. He testified that he had no knowledge of any policy or practice of placing suspects in the third slot. Id. He testified that his in-court identification was based solely on his viewing of petitioner at the place of the offense. Id. at 17.

Mr. Carrillo also specifically identified petitioner as the man he saw walking near railroad tracks soon after the alleged offenses occurred on March 27, 1997. RR-III at 130-31. He testified that he was about fifteen or twenty feet from petitioner when he first observed petitioner. Id. at 143, 160. His testimony shows continued observation for a short period of time. Id. at 143-44. He testified that "[t]he sun was out." Id. at 144. He further testified that, although he made a pretrial identification of petitioner from a photographic array on April 1, 1997, his in-court identification was based solely on what he observed on March 27, 1997. Id. at 152-53, 166. He testified that he was unaware of any practice or policy regarding where a suspect would be placed within the array. Id. at 167.

Ms. Webb likewise made an in-court identification of petitioner. RR-II at 30-31. She testified that she had seen petitioner twice near Bank One and made eye contact with him once as he walked pass her car. Id. at 26-31, 48. She watched him for a few minutes. Id. at 42. She had an unobstructed view. Id. at 46. She identified only petitioner. Id. at 49. As soon as she saw his picture in the lineup, she knew that petitioner was the one she had seen near the bank. Id. at 50. She further testified that she had previously selected petitioner from a photographic lineup shown to her at 1:00 p.m. on March 27, 1997. Id. at 33-34, 44.

Mr. McGuyer also identified petitioner as an individual who came into the Ammo Depot on March 26, 1997, when Kevin Beasley purchased the Mac 90. RR-II at 116-17. He further testified that, although he had previously selected petitioner from a photographic lineup a week or two after seeing petitioner, his in-court identification was based upon seeing petitioner at the Ammo Depot. Id. at 135, 142. He further testified that he knew of no practice to put suspects in the third slot of photo arrays. Id. at 136.

In this instance, each identifying witness identified petitioner in open court. Under the totality of circumstances, the Court finds their in-court identifications reliable, even if their pretrial identifications were impermissibly suggestive.¹²

12 The Court need not determine whether the pretrial identification procedures used in this case were actually impermissibly suggestive. For purposes of these findings and recommendation, the United States Magistrate Judge assumes without deciding that the pretrial identification procedures were impermissibly suggestive.

Pursuant to § 2254(e)(1) the Court presumes the following facts to be correct: (1) the in-court identifications of petitioner were based solely upon seeing him at or near the time of the offenses alleged against petitioner and (2) the in-court identifications were not influenced by any out-of-court identification or by seeing any photographs of petitioner. Petitioner has not rebutted the presumption of correctness accorded to these fact findings.

In addition to those facts, the undisputed evidence adduced at trial and at the identification hearing shows that no more than a couple of weeks elapsed between the eyewitness observations and the respective pretrial identifications. Furthermore, each witness had a reasonable opportunity to see petitioner's face at the moment of their eyewitness observation. Each witness was certain that petitioner was the person they saw. No witness identified anyone else. From the witnesses' testimony it is clear that they paid close attention to the person that they later identified as the person they observed.

Under the totality of the circumstances, as set forth in the preceding paragraphs, the Court finds the in-court identifications of Mr. Carrillo, Officer Parrish, Ms. Webb, and Mr. McGuyer reliable, even were it to find that their pretrial identifications were impermissibly suggestive. Under the facts of this case, the identification procedures did not give rise to a very substantial likelihood of irreparable misidentification. Consequently, there has been no constitutional violation in the identification procedures used and petitioner is entitled to no habeas relief on this claim.

VIII. TRIAL COURT ERROR

Petitioner claims that he was denied due process and received an illegal sentence when the trial court instructed the jury regarding release on mandatory supervision and good conduct time consistent with TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4(a). (Pet. at 7); S.H. Tr. at 55-59. He further claims that the trial court denied him a fair trial when it improperly discussed court procedures with the venire panel thus reducing the number of jurors who participated in voir dire. (Pet at 7); S.H. Tr. at 51-54.

Evidentiary rulings and rulings made during a state trial regarding the instructions to be given to the jury are matters of state law that are not subject to re-examination by the federal courts. It is not "the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A petitioner is thus entitled to federal habeas relief due to trial error only if "the error `had substantial and injurious effect or influence in determining the . . . verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); accord Trevino v. Johnson, 168 F.3d 173, 184-85 (5th Cir. 1999) (applying the Brecht standard to a habeas petition filed after enactment of the AEDPA).

[U]nder Brecht, a constitutional trial error is not so harmful as to entitle a defendant to habeas relief unless there is more than a mere reasonable possibility that it contributed to the verdict. It must have had a substantial effect or influence in determining the verdict. We recognize, however, that if our minds are "in virtual equipoise as to the harmlessness," under the Brecht standard, of the error, then we must conclude that it was harmful.

Mayabb v. Johnson, 168 F.3d 863, 868 (5th Cir. 1999) (quoting Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th Cir. 1996)). To be entitled to federal habeas relief due to a trial error, petitioner must show the error actually prejudiced him. Brecht, 507 U.S. at 637.

A. Jury Instruction

Petitioner claims that the trial court erred when it instructed the jury regarding release on mandatory supervision and good conduct time as set forth in TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4(a). S.H.Tr.at 55-59. "Improper jury instructions in state criminal trials do not generally form the basis for federal habeas relief." Tarpley v. Estelle, 703 F.2d 157, 159 (5th Cir. 1983) (citing Cupp v. Naughten, 414 U.S. 141, 146 (1973)). "A state prisoner seeking federal habeas relief for erroneous jury instructions faces a heavy burden." Reddix v. Thigpen, 805 F.2d 506, 512 (5th Cir. 1986). "Before a federal court may overturn a conviction resulting from a state trial" on a challenge to the instructions given to the jury, "it must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp, 414 U.S. at 146; Reddix, 805 F.2d at 512. That an instruction is "allegedly incorrect under state law is not a basis for habeas relief." Estelle, 502 U.S. at 71-72. "In examining habeas claims of improper jury instructions, the `inquiry is not whether there was prejudice to the [petitioner], or whether state law was violated, but whether there was prejudice of constitutional magnitude.'" Galvan v. Cockrell, 293 F.3d 760, 764 (5th Cir. 2002) (quoting Sullivan v. Blackburn, 804 F.2d 885, 887 (5th Cir. 1986)). On habeas review, federal courts must only determine "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147). Thus, the "harmless-error analysis [applies] to cases involving improper instructions." See Neder v. United States, 527 U.S. 1, 9 (1999).

At punishment in this case, the trial court instructed the jury that:

Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

. . .

You may consider the existence of parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

You are instructed that in determining the punishment in this case, you are not to discuss among yourselves how long the defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas and are no concern of yours.

TR-760 at 29-30; TR-766 at 27-28; TR-767 at 28-29; TR-768 at 24-25.

The Fifth Circuit Court of Appeals has found the first sentence of this instruction to be "an incorrect statement of law, as inmates do not earn time off of the period of incarceration, but rather, earn the right to be considered for earlier release due to the award of good time." See Galvan v. Cockrell, 293 F.3d 760, 765 (5th Cir. 2002). Nevertheless, even assuming that "such an instruction amounts to a constitutional error, it still does not entitle a defendant to habeas relief unless there is more than a mere reasonable possibility that it contributed to the verdict." Id. Petitioner must carry the heavy burden to show that the error was not harmless. Id. "Moreover, the jury is presumed to have followed the trial court's instruction prohibiting consideration of the extent to which good conduct time might be awarded to or forfeited by [petitioner]." Id.

In this instance, petitioner has shown no prejudice, let alone prejudice of constitutional magnitude, from the inaccurate instruction. He has offered nothing to establish a causal link between the alleged unconstitutional instruction and the length of his sentence. Conclusory allegations do not suffice. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (noting that conclusory allegations are insufficient to obtain habeas relief); Schlang v. Heard, 691 F.2d 796, 799 (5th Cir. 1982) (same). Petitioner has also not overcome the presumption that juries follow the instructions given them. The jury in this case was specifically instructed not to consider the extent that parole or good conduct time might impact the imposed sentence. Petitioner has not shown that the inaccurate instruction had a substantial or injurious effect on the jury's decision. Consequently, he is entitled to no habeas relief on this claim.

B. Voir Dire Discussions

Petitioner also claims that, by discussing hypothetically complex cases in the central jury room¹³ prior to conducting voir dire questioning, the trial court frightened jurors into fabricating excuses so as to avoid participation on the jury panel. S.H. Tr. at 53-54. This claim raises no violation of the United States Constitution or federal law. Petitioner, furthermore, has not shown that the trial court erred in conducting or allowing such pre-voir dire discussions. Nor has he shown that he was prejudiced by such practice. "Absent evidence in the record, a court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition (in state and federal court), unsupported and unsupportable by anything else contained in the record, to be of probative evidentiary value." Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983). This conclusory claim does not entitle petitioner to habeas relief.

13 In Dallas County, potential jurors first meet in a "Central Jury Room" where a judge gives them information about the court system and shows them a video. RR-I at 99.

IX. INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner also claims that his attorney rendered ineffective assistance when he failed to object to the prosecutor referring to matters outside the trial record during closing argument of the punishment phase of trial. S.H. Tr. at 11, 21, 31, 41, 60-63. He argues that his attorney should have objected to the following statement by the prosecutor: "And look at Calvin Sharper. First it was stealing, then it was drugs, then it was weapons, then it was assaulting police officers, and then it was this. You don't really need to know about all of these other convictions to know what to do with these two guys." Id. at 62 (citing RR-V at 89) (emphasis added). He contends that the italicized language is "incorrect because there were no other convictions left" — the "Prosecutor had covered all of the convictions" that the petitioner ever had. Id.

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).

In this instance, the deficiency prong is sufficient to deny habeas relief. Petitioner takes the prosecutor's statement out of context and misconstrues its meaning. The above-quoted language is followed by:

You knew when you heard the evidence in this case. You knew when you realized it was Kevin Beasley in there with that gun. You knew when you realized it was Calvin Sharper back there with this gun. And when it was him hanging out of the window of that Thunderbird firing his gun at police officers who were trying to protect the citizens of Dallas County.

RR-V at 89. The additional language places the allegedly objectionable statement of the prosecutor in the proper context. The prosecutor is clearly not referring to any unnamed other convictions. He is simply stating that, after hearing the evidence at the guilt and innocence stage, the jury did not need to know about petitioner's criminal history. By using the phrase "other convictions", the prosecutor was simply separating the current convictions from petitioner's prior convictions. There was no need for counsel to object to the prosecutor's statement regarding other convictions. Consequently, the claim of ineffective assistance of counsel fails. Attorneys do not render deficient performance when they fail to assert meritless objections. See Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997).

X. STATE CONSIDERATION OF CLAIMS

Petitioner raised each of his non-barred federal claims in his state writs. The Texas Court of Criminal Appeals denied those writs and thus adjudicated the claims on the merits. The decision to deny habeas relief at the state level is consistent with applicable Supreme Court precedent. The decision involved no unreasonable application of Supreme Court precedent. The adjudication of the claims did not result in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented to the state court. Under applicable Supreme Court standards and the AEDPA standards, petitioner is entitled to no habeas relief on the claims raised in the instant petition.

XI. 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.

XII. 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. The claims raised in petitioner's supplement to his original federal habeas petition are procedurally barred and untimely. The claims raised in the original federal petition fail on their merits.

INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b) (1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).