Opinion
CIVIL ACTION NO. 4:02-CV-1034-A
May 13, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner David Ross Sutherlin is in custody of the Texas Department of Criminal Justice, Institutional Division.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
Brandi Melder and Sutherlin dated for almost four years, but broke up in early 1998. (8 Rep. R. at 7-10, 16.) On April 6, 1998, Melder spent the night at her new boyfriend's apartment. ( Id. at 23.) Sutherlin broke one of the apartment's windows and shot Melder multiple times. (6 Rep. R. at 64, 82; 8 Rep. R. 27-30.) Melder survived the attack. (7 Rep. R. at 32-36.) Sutherlin was indicted with burglary of a habitation with intent to commit aggravated assault with a deadly weapon. (State Habeas R. at 49.) Sutherlin pleaded guilty to a jury in exchange for the State abandoning other charges. (Clerk R. at 98-100.) After a trial on punishment, a jury assessed his punishment at 55 years' confinement. (State Habeas R. at 51.)
The Second District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused his petition for discretionary review. Sutherlin v. State, No. 2-99-081-CR (Tex.App.-Fort Worth Jan. 4, 2001, pet. ref'd) (not designated for publication). Sutherlin filed a state application for habeas corpus relief challenging his conviction, which the Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Sutherlin, No. 53,854-01 (Tex.Crim.App. Dec. 18, 2002) (not designated for publication). Sutherlin filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on December 23, 2002.
D. ISSUES
Sutherlin raises five issues:
1. He was denied a fair trial when the jury received outside evidence during deliberations.
2. The State's psychology expert's testimony should have been excluded as a violation of the attorney-client privilege, his Sixth Amendment right to counsel, the Texas Constitution, and the Due Process Clause.
3. The trial court's agent's action in telling the State about Sutherlin's psychology expert violated the Due Process Clause and the Texas Constitution.
4. Trial counsel was rendered ineffective when the State suppressed the fact that two guns were used during the offense, which also denied him due process.
5. He was denied due process and the right to counsel when the State's psychology expert was called as a witness without notice to Sutherlin.
Although Sutherlin refers to both his and the State's experts as psychiatrists, they were psychologists. (10 Rep. R. at 34; 11 Rep. R. at 26.)
Although Sutherlin refers to both his and the State's experts as psychiatrists, they were psychologists. (10 Rep. R. at 34; 11 Rep. R. at 26.)
E. RULE 5 STATEMENT
Cockrell argues that Sutherlin's second and third claims as listed above have not been exhausted and asserts that they have been procedurally defaulted; however, Cockrell believes that Sutherlin's remaining allegations have been properly exhausted.F. DISCUSSION
1. Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002), cert. denied, 123 S.Ct. 963 (2003).
Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Jury Misconduct
Sutherlin contends that his trial was fundamentally unfair when one of the jurors introduced "other evidence" into the deliberations. TEX. R. Ape. P. 21.3(f). (Federal Pet. at 9-14.) The jury foreman took notes on the trial at home and referred to them during jury deliberations. (12 Rep. R. at 10-12, 20.) About one week after the jury returned its punishment assessment, Sutherlin moved for a new trial based on jury misconduct. (Clerk R. at 126-27.) After a hearing in which the foreman and two other jurors testified about the foreman's notes, the motion was denied by operation of law. Id. 21.8(a), (c).
The Constitution guarantees the right to trial by an impartial jury. U.S. CONST. amend. VI. A federal court must initially presume that a jury was impartial. De La Rosa v. Texas, 743 F.2d 299, 306 (5th Cir. 1984), cert. denied, 470 U.S. 1065 (1985). However, a presumption of prejudice arises when an outside influence on the jury, such as evidence that was not admitted before the jury, is brought to the attention of the trial court, which the government must rebut by proving the harmlessness of the breach. Drew v. Colllns, 964 F.2d 411, 415 (5th Cir. 1992), cert. denied, 509 U.S. 925 (1993); United States v. Luffred, 911 F.2d 1011, 1014 (5th Cir. 1990). When it appears one or more of the jurors themselves have violated an instruction of the court, the presumption does not arise, and the defendant must show that the jury misconduct prejudiced his right to a fair trial. Drew, 964 F.2d at 415-16. In this case, one scenario is presented: the jury foreman violated the court's instructions by keeping notes on the trial. See, e.g., Hines v. State, 3 S.W.3d 618, 623 (Tex.App.-Texarkana 1999, pet. ref'd) (holding information gathered by a juror is not an outside influence).
The Second Court of Appeals held that the "notes in question did not constitute `other evidence,' and were received by the jury when the jury foreman referred to them during jury deliberations"; thus, the trial court did not abuse its discretion in failing to grant Sutherlin a new trial. Sutherlin, No. 2-99-081-CR, slip op. at 4-5. Because the Court of Criminal Appeals refused Sutherlin's petition for discretionary review raising this claim, this court should "look through" to the last clear state decision on the matter by the intermediate appellate court. Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir. 1999) (quoting Lott v. Hargett, 80 F.3d 161, 164 (5th Cir. 1996)), cert. denied, 529 U.S. 1027 (2000). This last clear decision is entitled to a presumption of correctness. Hoover v. Johnson, 193 F.3d 366, 368 (5th Cir. 1999). Indeed, based on the jurors' testimony, the trial court could have reasonably found that the foreman's notes did not result in an unfair trial prejudicial to Sutherlin, E.g., Drew, 964 F.2d at 416; United States v. Bassler, 651 F.2d 600, 601-03 (8th Cir. 1981), cert. denied, 454 U.S. 1151 (1982).
3. Psychology Experts
Sutherlin argues that three events surrounding the State's psychology expert violated his constitutional rights. First, the admission of her false testimony violated the attorney-client privilege, his Sixth Amendment right to counsel, the Texas Constitution, and his due-process rights. Second, by receiving improper notice that Sutherlin had a psychology expert, the State knew it needed a similar expert for trial, which violated his due-process rights and the Texas Constitution. Third, he was denied due process and the right to counsel when the State gave Sutherlin no notice that it was going to call a psychology expert. (Federal Pet. at 15-16, 44-45.)
a. Procedural default
Cockrell argues that Sutherlin's claims regarding the exclusion of the State's psychology expert's testimony and the State's advance knowledge of Sutherlin's psychology expert have not been exhausted and are, thus, procedurally defaulted. Applicants seeking habeas relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. Picard v. Connor, 404 U.S. 270, 275-76 (1981); Fisher, 160 F.3d at 302. This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
Sutherlin argued in his state habeas application that the admission of the psychology expert's testimony violated his Sixth Amendment right to counsel and his Fourteenth Amendment right to due process. (State Habeas R. at 8, 14, 35-36, 41.) He also argued that the trial court's agent giving the State improper notice of Sutherlin's expert violated his due-process rights. ( Id. at 8, 41.) Thus, these claims are sufficiently exhausted.
But Sutherlin did not raise in his state habeas application or his petition for discretionary review his claim that the admission of the expert's testimony violated the attorney-client privilege and the Texas Constitution. He also failed to previously argue that the agent's action in giving the State improper knowledge of Sutherlin's expert violated the Texas Constitution. Thus, he seeks federal habeas relief on factual allegations that were never made in the Texas courts, which renders these claims unexhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001). However, Sutherlin cannot return to the Texas courts to cure this deficiency. The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20.
Even if Sutherlin's claims under the Texas Constitution had been exhausted, they would not be subject to review on federal habeas corpus. 28 U.S.C. § 2254(a); Dickerson v. Guste, 932 F.2d 1142, 1145 (5th Cir.), cert. denied, 502 U.S. 875 (1991).
Sutherlin has not given any credible explanation to excuse his default. Indeed, any problems with the psychology experts were known to Sutherlin before he filed his state habeas corpus application. E.g., Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999). Thus, these claims are unexhausted and procedurally defaulted. 28 U.S.C. § 2254(b)(2).
b. Psychology experts
Sutherlin argues that false testimony by the State's psychology expert, the State's improper, advance knowledge of Sutherlin's expert, and the absence of any notice that the State was going to call a psychology expert violated the Sixth and Fourteenth Amendments.
First, Sutherlin asserts that the State's expert's testimony should have been excluded because she stated that Sutherlin could get psychology services in prison (11 Rep. R. 33, 38-39), which was untrue. Other than baldly asserting that his Sixth and Fourteenth Amendment rights were violated by the expert's false testimony, Sutherlin fails to argue how or why the testimony was either false or unconstitutional. (Federal Pet. at 44-52.) This conclusory and unsupported allegation is insufficient to merit habeas relief. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 531 U.S. 849 (2000); Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983).
Next, Sutherlin contends that the State's expert's testimony should have been suppressed because the State received improper notice that Sutherlin was consulting a psychologist. (Federal Pet. at 20-27, 45-52.) On November 5, 1998, Sutherlin filed a sealed motion requesting permission to travel to Abilene for psychological consultations and evaluations. (Clerk R. at 17; 9 Rep. R. at 201.) The trial court granted the motion, and Sutherlin traveled to Abilene to see his psychologist on November 13, 1998. (9 Rep. R. at 201-03.) Even though the trial court told the supervisory probation department that the information was not to be shared with the State, a probation officer told Melder about the trip. (9 Rep. R. at 194, 209-10, 214.) During the third day of trial, the State filed a motion requesting to voir dire any expert witness called by Sutherlin. (Clerk R. at 5, 103.) See TEX. R. EVID. 705(b). The next day, Sutherlin subpoenaed many court officials because it seemed the State had improperly received notice of Sutherlin's sealed motion and the fact that he was consulting a psychologist. (9 Rep. R. at 3-7.) At the hearing on Sutherlin's allegations, Sutherlin's counsel revealed that Sutherlin had seen Dr. Mark Cunningham for psychological treatment. ( Id. at 199; Def's Ex. 9A.) The prosecutors averred that they had not been told before trial that Sutherlin had seen a psychologist. They filed the Rule 705(b) motion on a hunch after discovering that one of Sutherlin's witnesses could attend the trial only on a certain day. (9 Rep. R. at 8-10.) Although one of the prosecutors heard before trial that Sutherlin had traveled to Abilene, he did not understand the significance of the trip until after filing the Rule 705(b) motion. ( Id. at 9.) During trial, the State got its own expert the day after learning at the hearing that Sutherlin planned to call Dr. Cunningham. (11 Rep. R. at 10.) Although it appears that the probation officer wrongly alerted Melder about Sutherlin's trip, that error did not benefit the State to Sutherlin's detriment. In other words, the State did not have advance knowledge that Sutherlin planned to call a psychologist as an expert witness until Sutherlin's counsel revealed that fact during the course of the trial. Sutherlin has failed to show that his due process rights were violated and has, thus, failed to rebut the presumption of correctness afforded to the state appellate court's findings that the State did not unconstitutionally benefit from any prior knowledge of Sutherlin's expert witness. E.g., Self v. Collins, 973 F.2d 1198, 1214 (5th Cir. 1992), cert. denied, 507 U.S. 996 (1993); May v. Collins, 955 F.2d 299, 312 (5th Cir.), cert. denied, 504 U.S. 901 (1992).
As a condition of Sutherlin's pretrial bond, he was not allowed to leave his house. (Clerk R. at 13; 9 Rep. R. at 5.)
Finally, Sutherlin argues that his rights to due process and counsel were violated when the State called its psychology expert with no notice to Sutherlin. Under Texas law, the State was not required to give notice that it would call a rebuttal expert witness. Jaubert v. State, 74 S.W.3d 1, 5 n. 6 (Tex.Crim.App.), cert. denied, 123 S.Ct. 495 (2002). Further, Sutherlin has failed to overcome the presumption of correctness afforded the state court's findings that Sutherlin was not denied due process. (State Habeas R. at 48.)
4. Ineffective Assistance of Trial Counsel
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. In the case of ineffective assistance during the punishment phase, prejudice is established if a petitioner demonstrates that his sentence was increased by the deficient performance of his attorney. Glover v. United States, 531 U.S. 198, 200, 203-04 (2001). The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
Sutherlin asserts that because counsel was required to render assistance under circumstances where competent counsel could not, the less strict standard announced in Cronic should apply and prejudice should be presumed. United States v. Cronic, 466 U.S. 648, 658-61 (1984). (Federal Pet. 36-41.) However, the fact that a State's witness testified that two guns were used did not place counsel in a position where he could not defend his client properly at punishment. See Bell v. Cone, 122 S.Ct. 1843, 1851 (2002) (holding attorney's failure must be complete for prejudice to be presumed); see also Johnson v. Cockrell, 301 F.3d 234, 238 (5th Cir. 2002), cert. denied, 71 U.S.L.W. 3679 (U.S. Apr. 28, 2003) (No. 02-8853).
Sutherlin's complaint about counsel was reviewed and rejected during state collateral review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state court's rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d)(2).
Sutherlin argues that counsel was rendered ineffective when the State suppressed evidence showing two guns were used during the offense. Sutherlin fails to argue what action or inaction by counsel was deficient, which is required even under Cronic. E.g., Roe v. Flores-Ortega, 528 U.S. 470, 471 (2000); Johnson, 301 F.3d at 237-38. Further, even if counsel were deficient under Strickland, Sutherlin cannot show prejudice given that he pleaded guilty to a violent first-degree felony and the jury's sentence of 55 years' confinement was in the mid-range of statutory punishments available. In other words, there is no showing that but for trial counsel's unnamed error, the jury would have imposed a lower sentence. Cf. Spriggs v. Collins, 993 F.2d 85, 88-89 (5th Cir. 1993) ("In deciding whether prejudice occurred, a court should consider a number of factors: the actual amount of the sentence imposed on the defendant by the sentencing judge or jury; the minimum and maximum sentences possible under the relevant statute or sentencing guidelines, the relative placement of the sentence actually imposed within that range, and the various relevant mitigating and aggravating factors that were properly considered by the sentencer."). Thus, the state courts' rejection of this claim is presumed correct.
TEX. PENAL CODE ANN. §§ 12.32, 30.02(d) (Vernon 2003).
5. Exculpatory evidence
Sutherlin further argues that the State's actions in failing to disclose the fact that two guns were used during the crime denied him due process. (Federal Pet. at 42-44.) A petitioner's due-process rights are violated when the State suppresses impeachment or exculpatory evidence where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the State. Strickler v. Greene, 527 U.S. 263, 280 (1999); Brady v. Maryland, 373 U.S. 83, 87 (1963). To establish a Brady violation, Sutherlin must prove that: (1) the State suppressed or withheld evidence (2) that was favorable and (3) material to guilt or punishment. Moore v. Illinois, 408 U.S. 786, 794-95 (1972); Vega v. Johnson, 149 F.3d 354, 363 (5th Cir. 1998), cert. denied, 525 U.S. 1119 (1999). The evidence is material only if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 684 (1985). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. at 678. Whether evidence must be produced and whether it is material under Brady is a mixed question of law and fact. Brown v. Cain, 104 F.3d 744 750 (5th Cir.), cert. denied, 520 U.S. 1195 (1997).
After one of the State's witnesses testified that two guns were used in the offense, Sutherlin's counsel moved for a limiting instruction to the jury that they were not to consider the testimony. (7 Rep. R. at 3-4.) Sutherlin's counsel stated that the limiting instruction was needed because the information would possibly cause the jury to consider a larger sentence than if the information had not been disclosed. (6 Rep. R. at 183.) Sutherlin has failed to demonstrate that the evidence regarding two guns was exculpatory or favorable to his case. Further, he has not shown that the evidence was material to his punishment because he cannot prove that the outcome of the proceeding would have been different if the evidence had been disclosed. In his petition, Sutherlin claims that had the evidence been disclosed, he would not have pleaded guilty and is now entitled to a new trial. (Federal Pet. at 44.) However, after the evidence was revealed at trial and after the trial court denied the requested limiting instruction, Sutherlin refused to request a mistrial because the State would have then withdrawn the plea bargain and Sutherlin would have been subject to multiple prosecutions for his actions. (7 Rep. R. at 24-26.) His Brady claim fails.
5. Summary
In sum, Sutherlin is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Sutherlin was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Sutherlin's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until June 3, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until June 3, 2003 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.