Opinion
EP-03-CA-0091-DB
April 21, 2004
On this day, the Court considered Petitioner Milton Alexander Thomas' ("Petitioner") Application for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254, filed March 14, 2003; the Respondent's Answer to Application, filed May 21, 2003; and Petitioner's Response to the Respondent's Answer, filed July 15, 2003. After due consideration, the Court finds that the Petitioner is not entitled to federal habeas corpus relief under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").
I. FACTS PROCEDURAL HISTORY
On November 30, 1999, a jury in the 168th District Court of El Paso County, Texas, convicted Petitioner of sexual assault in cause no. 980D04192, styled The State of Texas vs. Milton Thomas, No. 08-00-00384-CR. The jury assessed punishment at ten years in prison. Petitioner's conviction was affirmed on direct appeal, Thomas v. State, No. 08-99-00462-CR, 2001 WL 459067 (Tex.App.-El Paso May 2, 2001) (not designated for publication) (no pet. filed). His state post-conviction writ application was denied without written order on the trial court's findings, without a hearing. Exparte Thomas, No. 52, 012-03.
Petitioner filed the instant Application on March 10, 2003. He essentially raises the following six claims for relief: (1) his trial counsel and appellate counsel rendered ineffective assistance; (2) no physical evidence supports his conviction; (3) through various actions, the trial court and the prosecution violated his due process rights; (4) hearsay testimony was improperly admitted and used to convict him and to increase the severity of his sentence; (5) the introduction of unadjudicated extraneous offense evidence at punishment violated the Double Jeopardy Clause; and (6) the indictment was void. For the reasons stated below, the Court finds that Petitioner is not entitled to federal habeas relief under the AEDPA regarding any of these claims.
With attachments, Petitioner's Petition is twenty-three pages long. Only the first nine pages are numbered. The Court will refer to the last fourteen, unnumbered pages (pages ten through twenty-three) in the order they are attached to the Petition.
II. APPLICABILITY OF THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996
Because Petitioner filed his federal habeas corpus action after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), insofar as the state courts adjudicated his claims on the merits, the AEDPA governs this Court's review of those claims.
See Penry v. Johnson, 532 U.S. 782, 792 (2001).
Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause concerning any claim that was adjudicated on the merits in state court proceedings unless the adjudication of that claim either: (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.
See Wiggins v. Smith, ___ U.S. ___, ___, 123 S.Ct. 2527, 2534 (2003); Price v. Vincent, U.S. ___, ___, 123 S.Ct. 1848, 1852-53, (2003); Williams v. Taylor, 529 U.S. 362, 404-05 (2000); 28 U.S.C. § 2254(d).
The Supreme Court has concluded the "contrary to" and "unreasonable application" clauses of Title 28 U.S.C. § 2254(d)(1) have independent meanings. Under the "contrary to" clause, a federal habeas court may grant relief if: (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or (2) the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the petitioner's case. A federal court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." The focus of this inquiry is whether the state court's application of clearly established federal law is objectively unreasonable, rather than merely incorrect.
See Bell v. Cone, 535 U.S. 685, 694 (2002); Penry v. Johnson, 532 U.S. at 792; Williams v. Taylor, 529 U.S. at 404-05.
See Price v. Vincent, ___ U.S. at ___, 123 S.Ct. at 1853, ("a decision by a state court is `contrary to' our clearly established law if it `applies a rule that contradicts the governing law set forth in our cases' or if it `confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent'"); Bell v. Cone, 535 U.S. at 694; Penry v. Johnson, 532 U.S. at 1918, ("A state court decision will be `contrary to' our clearly established precedent if the state court either `applies a rule that contradicts the governing law set forth in our cases,' or `confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'"); and Williams v. Taylor, 529 U.S. at 404-06.
See Wiggins v. Smith, ___ U.S. at ___, 123 S.Ct. at 2534-35; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002); Bell v. Cone, 535 U.S. at 694; Penry v. Johnson, 532 U.S. at 792; and Williams v. Taylor, 529 U.S. at 407-08.
In Williams, the Supreme Court expressly reserved for another day the issue of how federal habeas courts should determine whether a state court erroneously extended a legal principle into a new realm or erroneously refused to extend existing legal principle into a new area. See Williams v. Taylor, 529 U.S. at 408-09.
See Wiggins v. Smith, ___ U.S. at ___, 123 S.Ct. at 2535; Woodford v. Visciotti, 537 U.S. at 25; Penry v. Johnson, 532 U.S. at 793; Williams v. Taylor, 529 U.S. at 409-11.
See Wiggins v. Smith, ___ U.S. at ___, 123 S.Ct. at 2535; Price v. Vincent, ___ U.S. at ___, 123 S.Ct. at 1853, ("it is the habeas applicant's burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner."); Woodford v. Visciotti, 537 U.S. at 25; Bell v. Cone, 535 U.S. at 694; Penry v. Johnson, 532 U.S. at 793; Williams v. Taylor, 529 U.S. at 410-11.
The AEDPA significantly restricts the scope of federal habeas review of state court fact findings, requiring that a petitioner challenging state court factual findings establish by clear and convincing evidence that the state court's findings were erroneous.
See Foster v. Johnson, 293 F.3d 766, 776 (5th Cir. 2002), cert. denied, 537 U.S. 1054 (2002); Rudd v. Johnson, 256 F.3d 317, 319 (5th Cir. 2001), cert. denied, 534 U.S. 1001 (2001) ("The presumption is particularly strong when the state habeas court and the trial court are one and the same."); Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000), cert. denied, 532 U.S. 915 ( 2001); Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000), cert. denied, 531 U.S. 849 (2000), (holding state court fact findings are presumed correct and the petitioner has the burden of rebutting the presumption by clear and convincing evidence) ; Hicks v. Johnson, 186 F.3d 634, 637 (5th Cir. 1999), cert. denied, 528 U.S. 1132 (2000), (holding the AEDPA requires federal habeas courts to accept as correct state court factual determinations unless the petitioner rebuts same by clear and convincing evidence); Morris v. Cain, 186 F.3d 581, 583 (5th Cir. 1999); Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998), cert. denied, 526 U.S. 1074 ( 1999); Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998), cert. denied, 526 U.S. 1041 (1999); Williams v. Cain, 125 F.3d 269, 277 (5th Cir. 1997), cert. denied, 525 U.S. 859 (1998), (recognizing that under the AEDPA, state court factual findings "shall be presumed correct unless rebutted by `clear and convincing evidence'"); Hernandez v. Johnson, 108 F.3d 554, 558 n. 4 (5th Cir. 1997), cert. denied, 522 U.S. 984 (1997), (holding that under the AEDPA, the proper forum for the making of all factual determinations in habeas cases will shift to the state courts "where it belongs" and recognizing that the AEDPA clearly places the burden on the federal habeas petitioner "to raise and litigate as fully as possible his potential federal claims in state court"); and 28 U.S.C. § 2254(e)(1).
With the foregoing principles in mind, this Court turns to the merits of Petitioner's claims for federal habeas corpus relief. III. THE MERITS OF PETITIONER'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS FOR RELIEF
Petitioner alleges twenty-six instances in which trial counsel rendered ineffective assistance and four instances in which appellate counsel rendered ineffective assistance. The examples are factually and thematically repetitive. For analytical purposes, therefore, the Court will group and examine these instances as different facets of his overarching ineffective assistance claim.
The Court understands Petitioner to argue that his trial counsel rendered ineffective assistance when he failed to: (1) strike biased jurors; (2) interview potential defense witnesses; (3) show jurors that no physic al evidence corroborated the victim's accusation and that her vaginal abrasions were caused by her monthly menstrual cycle; (4) impeach the victim through her statements and actions after the alleged assault; (5) object to hearsay testimony about Petitioner's post-arrest statement and various unadjudicated bad acts; (6) object to the prosecutor's comment at the punishment phase that Petitioner should be imprisoned for his "crimes"; and (7) inform Petitioner that, if he testified, the prosecution could inquire into extraneous, unadjudicated bad acts. Petitioner further argues that he was denied effective assistance because: (8) his original trial attorney withdrew from the case and was replaced by an inexperienced and unqualified advocate; (9) trial counsel made derogatory comments about Petitioner to Petitioner's wife; and (10) appellate counsel did not raise the issues that Petitioner directed him to raise on appeal. Respondents argue that Petitioner has not met his burden regarding any of these allegations under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). For the reasons discussed below, the Court concludes that Respondent is correct.
Ineffective Assistance of Counsel ("IAC") Claims 13-15. See Pet. at 11-12.
IAC Claims 1 29. See Pet. at 7, 14.
IAC Claims 2, 4, 7, 9. See Pet. at 10.
IAC Claims 6, 8, 10, 11. See Pet. at 10-11.
IAC Claims 3, 24-27. See Pet. at 10, 13.
IAC Claims 12, 17, 28. See Pet. at 11, 12, 14.
IAC Claim 16. See Pet. at 12.
IAC Claims 18-19. See Pet. at 12.
IAC Claim 30. See Pet. at 14.
IAC Claims 20-23. See Pet. at 12-13.
A. Legal Standard for Ineffective Assistance of Counsel Claims
1. Ineffective Assistance of Trial Counsel
The Supreme Court established the legal principles that govern ineffective assistance of counsel claims in Strickland v. Washington. In Wiggins v. Smith, the Supreme Court reiterated that:
466 U.S. 668(1984).
___ U.S. ___, 123 S. Ct.2527, 2535 (2003).
An ineffective assistance of counsel claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense. To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness." We have declined to articulate specific guidelines for appropriate attorney conduct and instead have emphasized that "the proper measure of attorney performance remains simply reasonableness under prevailing professional norms."
Wiggins, ___ U.S. at ___, 123 S.Ct. at 2535 (internal citations omitted).
Petitioner bears the burden of proof in a habeas proceeding attacking trial counsel's effectiveness; he must demonstrate the alleged ineffectiveness by a preponderance of the evidence.
Montoya v. Johnson, 226 F.3d 399, 408 (5th Cir. 2000); Martin v. Maggio, 711 F.2d 1273, 1279 (5th Cir. 1983).
To establish that counsel's representation fell below an objective standard of reasonableness, a convicted defendant must overcome a strong presumption that his trial counsel's conduct fell within a wide range of reasonable professional assistance. Reviewing courts are extremely deferential in scrutinizing counsel's performance, making every effort to eliminate the distorting effects of hindsight. It is strongly presumed that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law, are virtually unchallengeable. Counsel is required neither to advance every non-frivolous argument, nor to investigate every conceivable matter, nor to assert patently frivolous arguments Moreover, a criminal defense counsel is not required to exercise clairvoyance during the course of a criminal trial. A "conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness."
See Darden v. Wainwright, 477 U.S. 168, 184 (1986); Strickland, 466 U.S. at 687-91; Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997); Belyeu v. Scott, 67 F.3d 535, 538 (5th Cir. 1995).
See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372 (1993); Burger v. Kemp, 483 U.S. 776, 789 (1987); Strickland, 466 U.S. at 689; Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997).
See Strickland, 466 U.S. at 690; Duff-Smith, 973 F.2d at 1182; Drew, 964 F.2d at 422.
See Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir. 1996) (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel was concerned that such testimony would not be viewed as mitigating by the jury and that the prosecution might respond to such testimony by putting on its own psychiatric testimony regarding the defendant's violent tendencies); West v. Johnson, 92 F.3d 1385, 1406-09 (5th Cir. 1996) (holding that a trial counsel's failure to conduct further investigation into the defendant's head injury and psychological problems was reasonable where interviews with the defendant and the defendant's family failed to produce any helpful information); compare Wiggins, ___ U.S. at ___, 123 S.Ct. at 2536 (in capital case, counsel's decision not to expand its mitigation-defense investigation beyond PSI and DSS records, despite suggestions that additional, significant mitigating evidence existed, was itself unreasonable and fell below professional standards).
See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) ("Counsel cannot be deficient for failing to press a frivolous point."); United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (stating that "[c]ounsel is not required by the Sixth Amendment to file meritless motions."); Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992) (stating that "[t]he defense of a criminal case is not an undertaking in which everything not prohibited is required. Nor does it contemplate the employment of wholly unlimited time and resources").
See Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997) (citing Garland v. Maggio, 1 17 F.2d 199, 207 (5th Cir. 1983) (holding that clairvoyance is not a required attribute of effective representation).
Cotton v. Cockrell, 343 F.3d 746, 753 (5th Cir. 2003); Garland v. Maggio, 717 F.2d at206 (a "conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.").
However, even if counsel's performance falls below an objective standard of reasonableness, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Accordingly, "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." To establish that he has sustained prejudice, the convicted defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." The Court must consider not merely whether the outcome of the defendant's case would have been different, but also whether counsel's deficient performance caused the outcome to be unreliable or the proceeding to be fundamentally unfair.
Strickland, 466 U.S. at 691.
Id. at 692.
Strickland, 466 U.S. at 694; see also Loyd, 977 F.2d at 159; Cantu v. Collins, 967 F.2d 1006, 1016 (5th Cir. 1992).
Lockhart v. Fretwell, 506 U.S. 364, 368-73 (1993) (emphasis added) ("[u]nreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him"); Lackey v. Johnson, 116 F.3d at 152.
Because a convicted defendant must satisfy both prongs of the Strickland test, his failure to establish either deficient performance or prejudice under that test makes it unnecessary to examine the other prong. Therefore, a convicted defendant's failure to establish that his counsel's performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice. Similarly, it is also unnecessary to consider whether counsel's performance was deficient where there is an insufficient showing of prejudice. Moreover, mere conclusory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue.
Strickland, 466 U.S. at 700; Green, 116 F.3d at 1122; see also Burnett v. Collins, 982 F.2d at 928 (holding that the defendant bears the burden of proof on both prongs of the Strickland test).
Hoskins, 910 F.2d at 311; Thomas, 812 F.2d at 229-30.
See Black, 962 F.2d at 401; Pierce, 959 F.2d at 1302.
See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994) (holding that a petitioner's speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief).
Because an ineffective assistance of counsel claim is a mixed question of law and fact, the Court reviews the state habeas decision according to the "unreasonable application" standard set forth in § 2254(d)(1). The Texas Court of Criminal Appeals denied Petitioner's state writ application rather than dismissed it, and therefore, such action constitutes an adjudication on the merits. 2. Ineffective Assistance of Appellate Counsel
See Strickland, 466 U.S. at 698.
See Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997).
See Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999).
To show ineffective assistance on appeal, Petitioner must satisfy Strickland's two-part test Smith v. Robbins, 528 U.S. 259, 285 (2000). Counsel is ineffective when his errors are prejudicial, that is, when there is a reasonable probability that but for counsel's error, the ultimate result would have been different. Strickland, 466 U.S. at 694. To prevail on a claim of appellate prejudice, a petitioner must show that, but for his appellate counsel's deficient performance, he would have prevailed on appeal. Smith v. Robbins, 528 U.S. at 285-86. Appellate counsel's failure to raise certain issues on appeal does not deprive a petitioner of effective assistance of counsel where the petitioner did not show the existence of any trial errors with even arguable merit. Hooks v. Roberts, 480 U.S. F.2d 1196, 1198 (5th Cir. 1973). Nor must counsel consult his client about the legal issues to be presented on appeal. Id. at 1197.
With the foregoing strictures in mind, this Court will consider the merits of Petitioner's claim that he was denied ineffective assistance of counsel.
B. Failure to Strike Certain Jurors
Petitioner contends that counsel performed deficiently because he failed to strike four prospective jurors who were ultimately empaneled: Hatch; Gutierrez; Delgado; and an unidentified black female juror. He complains that Juror Hatch was biased against him because Hatch was friends with one of the prosecutors, Ms. Hill. He alleges that Juror Gutierrez was allowed to serve on the jury although she stated that someone in her family had been sexually assaulted and told the judge that she could not be a fair juror. He complains that Juror Delgado was empaneled, although Delgado stated that if Petitioner did not testify, he would believe the victim. He lastly alleges that an unidentified African-American female was allowed to serve on the jury although she fell asleep during jury selection and during parts of the trial.
Petitioner identifies only "a white male juror" in his Petition. In his Response to the Attorney's General's Response, Petitioner further identifies the juror as "Mr. Delgado."
Petitioner did not object to this juror in his Petition. He mentions the unidentified juror for the first time in his Response to the Attorney's General's Response.
In the state habeas proceeding, the prosecution argued that the record showed that Juror Hatch affirmatively stated that his acquaintance with the trial prosecutor would not affect his ability to be fair and impartial. The prosecution further suggested that, because Hatch and Petitioner were both African-American, trial counsel may have had sound strategic reasons for wanting to keep Hatch on the jury. Regarding Juror Gutierrez, the prosecution argued that she affirmatively stated that she could be fair, although she knew people who had been raped. Regarding Juror Delgado, the prosecution argued that, although the juror said he would believe the victim if Petitioner chose not to testify, the juror's statement was rendered moot because Petitioner did, in fact, testify. The State also offered trial counsel's affidavit in which he stated that, although he would defer to the record, he did not recall allowing unfit members of the venire panel to serve as jurors.
Although this is perhaps not the strongest argument the State could have presented, the Court has reviewed the record and determined that it supports a finding that Delgado clarified his understanding of the law to the trial judge's satisfaction.
In its findings of fact and conclusions of law, the state habeas court determined that during voir dire, trial counsel fairly and properly examined all prospective jurors and that all jurors stated that they could be fair and impartial. The state habeas court also concluded that Petitioner had failed to demonstrate that trial counsel should have struck any juror from the panel, and therefore, failed to demonstrate that counsel's failure to strike the jurors constituted deficient performance or improper trial strategy.
See supra note 44.
Before this Court, the State emphasizes the state habeas court's findings of fact and conclusions of law and argues that Petitioner has not proffered any evidence to counter the strong presumption that counsel's actions or omissions constituted sound trial strategy. In response, Petitioner offer two exhibits, which appear to be two lists of petit venire members at Petitioner's trial. One list appears to reflect the results of an initial round of jury selection. Some sixteen out of eighty names are marked with a line through them. Juror Hatch's name is not one of them. In the other list, thirty-four out of eighty names are crossed out. In addition, Juror Hatch's name has a line through it, which then appears to have been scratched out, as if to indicate that his name was crossed out by mistake. Petitioner argues that these two lists "prove that trial counsel intended to strike Mr. Hatch because every other juror who was empaneled . . . did not have a line crossed [through] their names."
See Pet. Ex. C D; see also Ex parte Thomas at 241-52.
Pet. Ex. D.
Pet. Ex. C.
In the absence of any clear and convincing evidence to the contrary, this Court must presume that the state habeas court's factual findings were correct. The two lists offered above do not overcome that presumption. Although Petitioner implies that counsel marked the lists, there is no indication on the document to support that implicit assertion. Moreover, assuming that counsel marked the lists, the line through Hatch's name on the first list appears to be nothing more than a mistake, which was contemporaneously discovered and corrected. The document certainly does not show that counsel intended to strike Hatch or that there were grounds on which to do so, nor does it present any evidence to support Petitioner's allegations regarding the other three jurors of which he complains. For these reasons, this Court independently concludes that, regarding this aspect of Petitioner's ineffective assistance claim, Petitioner has satisfied neither of Strickland's two prongs.
C. Failure to Interview Potential Defense Witnesses
Petitioner complains that counsel failed to interview certain potential defense witnesses. In his affidavit to the state habeas court, counsel stated that he did attempt to interview the potential witnesses Petitioner named, but that Petitioner himself, as well as the information he provided, often proved to be unreliable or led counsel's investigators to individuals who proved to be unsuitable as witnesses. For example, Petitioner was at times difficult to locate; in one instance, counsel stated, Petitioner moved from El Paso to Houston, violating the conditions of his personal recognizance bond. Counsel also stated that his investigators had trouble finding two potential witnesses that Petitioner named, based on the information that he had provided. Another witness informed counsel that Petitioner had told her what to say and that she actually had no first-hand knowledge of the events at issue. Counsel also noted that, given that consent was his ultimate theory of the case, it was not particularly necessary to speak with these purported witnesses.
The state habeas court determined that Petitioner failed to produce his purported witnesses, or that the witnesses failed to keep appointments, or that the proffered individuals proved to be unsuitable as witnesses. Based on the evidence before it, it concluded that Petitioner had failed to meet his burden of demonstrating that his counsel's performance was deficient.
When the only evidence regarding an absent witness' purported testimony comes from the defendant, a federal court sitting in review should approach the ineffective assistance claim with great caution. A reviewing federal court should dismiss an unsupported claim as a conclusory allegation. To demonstrate prejudice under Strickland, a petitioner must show not only that the witness' testimony would have been favorable, but also that the witness would have testified at trial. Such complaints are disfavored because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified to are largely speculative. Mere hypothetical or theoretical testimony will not justify the issuance of a writ
Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986).
Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).
Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985).
Boyd v. Estelle, 661 F.2d 388, 390 (5th Cir. 1981).
Martin v. McCotter, 796 F.2d 813, 819 (5th Cir. 1986).
Here, regarding his allegedly missing witnesses, Petitioner first fails to show that the unidentified witnesses would have testified, and second, fails to allege the substance of their testimony. Moreover, to the extent that Petitioner complains that trial counsel failed to investigate the case against him, Petitioner must not merely allege that trial counsel failed to investigate in order to show that counsel's assistance was rendered ineffective. Rather, he must specifically state what the investigation would have revealed and how the information would have changed the case's outcome. The Court finds that Petitioner has failed to do either. Accordingly, this Court independently concludes that Petitioner has failed to demonstrate that trial counsel performed deficiently.
See Alexander, 775 F.2d at 602.
See United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989).
Id.
D. Trial Counsel Was Ineffective Because He Did Not Show the Jury That No Physical Evidence Corroborated the Victim's Accusation
Petitioner contends that trial counsel rendered ineffective assistance because he did not show the jury that no physical evidence corroborated the victim's accusation. There is no factual basis in the record for this allegation. The transcript of trial counsel's closing argument at the guilt-innocence phase of the proceedings clearly shows that counsel repeatedly emphasized the lack of evidence to show that intercourse had been nonconsensual.
To the extent Petitioner argues that his trial counsel was ineffective for mounting a consent defense, the Court finds that he has utterly failed to show deficient performance. In his affidavit to the state habeas court, trial counsel stated that, based on his review of the case file and his interviews with Petitioner (in which Petitioner repeatedly acknowledged having had sexual intercourse with the complainant), he formulated a defensive strategy on the theory that the complainant had actually consented to intercourse. Trial counsel further asserted that his strategy seemed to be proceeding well until Petitioner took the stand, against trial counsel's advice, and denied that he had engaged in sexual intercourse with the complainant. Trial counsel recalled that Petitioner's denial appeared to damage Petitioner's credibility with the jury.
The state habeas court found that, after trial counsel told the venire panel members during voir dire that Petitioner would present a defense based on consent, Petitioner testified at trial that he had never penetrated the complainant. The state habeas court further found that trial counsel's strategy was proper and plausible and that Petitioner destroyed the consent defense by denying that he had penetrated the complainant. The state habeas court concluded that petitioner had "wholly failed in his burden of showing that he was denied ineffective assistance of counsel." Other than a conclusory statement that he told counsel that he did not have intercourse with the victim, Petitioner has failed to present any evidence to overcome the presumption the trial court's factual findings were correct and that counsel's actions and decisions were the result of sound trial strategy.
E. Trial Counsel Was Ineffective Because He Failed to Impeach the Victim Through Her Statements and Actions after the Alleged Assault.
Petitioner faults trial counsel for failing to show that the victim went to the mall before reporting the assault and seeing a doctor, and deficient for failing to show that the victim told the doctor that there had been no penetration. There is no factual basis for this claim in the record. Counsel attempted to undermine the victim's credibility by eliciting testimony from the victim herself as well as other witnesses about the victim's actions after the assault, her delay in reporting the assault, and her statement that nothing had been inserted into her vagina. It was then for the jury to decide whether the victim's behavior after the alleged assault was consistent with her claim that the encounter was nonconsensual. The Court concludes that Petitioner has failed to show that counsel performed deficiently in this regard.
Defense counsel emphasized this statement in his closing argument. The State, in its rebuttal, clarified that the victim made this statement in response to the examining physician's question whether any foreign objects ( i.e., objects other than Petitioner's penis) had been inserted into her vagina.
F. Trial Counsel Was Ineffective Because He Failed to Object to Hearsay Testimony Regarding Petitioner's Incriminating Post-Arrest Statement and Unadjudicated Bad Acts
Petitioner complains that trial counsel was ineffective because he failed to object to the hearsay testimony of the arresting officer, Detective Antonio Gutierrez, and punishment phase witness Denise Baker. The Court's review of the trial record reveals that after the defense rested its case-in-chief, the State offered the testimony of Det. Gutierrez to rebut Petitioner's consent defense. The detective testified that, after he was arrested, Petitioner gave police a voluntary oral statement in which he admitted having had sexual intercourse with the complainant and said that she did in fact tell him "no." According to Gutierrez, Petitioner further stated that the complainant told him no, "but he thought that she was just playing rough and that it was part of a game, so he just kept having sexual intercourse with her." The State asserted that the statement attributed to Petitioner was not hearsay because it was not offered for its truth, but to challenge Petitioner's credibility, because he had previously testified that he did not have sexual intercourse with the complainant. The record reveals that trial counsel did, in fact, object to and sought to limit the use of Gutierrez' testimony, but was overruled.
Furthermore, trial counsel would not have performed deficiently even if he had not objected to the introduction of Petitioner's post-arrest statement. Petitioner's statement was admissible under Federal Rule of Evidence 801(d)(1)(A). Trial counsel can not be deemed to have erred for not making a frivolous objection. For these reasons, this Court independently concludes that Petitioner has failed to show that trial counsel performed deficiently regarding Det. Gutierrez' testimony.
See 1 J. STRONG, MCCORMICK ON EVIDENCE §§ 33, at 123-24 (5th ed. 1999) (noting that credibility may be attacked through, among other things, prior inconsistent statements, proof of bias, evidence of character, capacity to observe, and proof of contrary facts); see also Fed.R.Evid. 608, 609, 801(d)(1)(A).
United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (counsel is not required to make frivolous objections, arguments, or motions).
Regarding Baker's testimony at the punishment phase, the record flatly contradicts Petitioner's allegation, revealing that counsel did object to her testimony, twice on hearsay grounds and once for lack of notice. Further, even if counsel had not objected, Petitioner has not come forward with any evidence to overcome the strong presumption that counsel's decision not to object was anything other than sound trial strategy. Accordingly, the Court finds that Petitioner has failed to show that counsel was ineffective for not objecting to hearsay testimony.
Baker testified regarding an incident in which Petitioner's then-wife appeared on her doorstep, bruised and beaten, apparently the victim of domestic violence.
G. Failure to Object to Prosecutor's Closing Argument at the Punishment Phase of the Proceedings
Petitioner alleges that trial counsel was deficient for failing to object to the prosecutor's closing argument to the jury during the trial's punishment phase, that Petitioner should be imprisoned for his "crimes." At the punishment phase, under Texas Code of Criminal Procedure article 37.07, section 3, the prosecution introduced evidence of various extraneous unadjudicated offenses. Assuming that her argument was improper, Petitioner has offered no evidence to overcome the presumption that counsel made a reasoned, strategic decision not to object. In the absence of evidence to the contrary, and given the fact that an objection, even if successful, would have drawn undue attention to the prosecutor's comment, the Court concludes that Petitioner has not overcome the presumption that counsel rendered constitutionally adequate assistance. See Strickland, 466 U.S. at 691.
H. Trial Counsel Was Ineffective Because He Failed to Explain to Petitioner That the Prosecution Could Inquire into Extraneous Bad Acts if Petitioner Testified in His Own Defense
The prosecution cannot introduce evidence of unadjudicated offenses merely because a defendant takes the stand. Therefore, counsel cannot be ineffective for not making an erroneous statement of law to his client. To the extent that Petitioner is arguing that counsel failed to warn him about the potential dangers of testifying on his own behalf, he has failed to come forward with any evidence to suggest there is a factual basis for his allegation. In light of counsel's affidavit that he advised Petitioner against taking the stand and in the absence of any evidence to the contrary, the Court concludes that Petitioner has failed to overcome the presumption that counsel rendered adequate legal assistance.
I. Petitioner Was Denied Effective Assistance Because Original Trial Counsel Withdrew and Was Replaced by an Inexperienced Attorney
Petitioner is apparently referring to the withdrawal of Randolph J. Ortega on or about June 23, 1998, some seventeen months before his trial began. Petitioner has not shown how withdrawing from representation, well before trial, at the client's insistence, and with the court's blessing, constitutes ineffective assistance. Neither has he shown any factual basis for his claim that replacement counsel was inexperienced and unfamiliar with Petitioner's case. The Court concludes that Petitioner has failed to show deficient performance.
J. Trial Counsel Made Derogatory Comments to Petitioner's Wife
Petitioner alleges that, after trial, counsel made comments to Petitioner's wife to the effect that counsel did not care what happened to a rapist. Petitioner offers only rank hearsay within hearsay to prove that counsel ever made such a statement, not does he show how the making of such a statement proves that counsel did not provide effective representation. The Court concludes that Petitioner has failed to show that counsel performed deficiently.
K. Appellate Counsel Was Ineffective Because He Did Not Raise the Points of Error That Petitioner Directed Him to Raise
Petitioner alleges that his appellate counsel was ineffective because he declined to present the issues on appeal that Petitioner wanted him to argue. The essence of Petitioner's complaint is that appellate counsel did not confer with him on the contents of the appellate brief. However, because appellate counsel had no duty to consult with Petitioner and likewise had no duty to raise the issues that Petitioner wanted him to raise, even if the Court were to accept Petitioner's allegations as true, the Court cannot find that appellate counsel has rendered ineffective assistance. Therefore, the Court finds that Petitioner has failed to meet his burden under Strickland to show both deficient performance and prejudice.
Because this Court has independently concluded that Petitioner has failed, regarding any of his ineffective assistance claims, to satisfy one or both prongs of Strickland, it further concludes that the state habeas court's rejection of his ineffective assistance claims on the merits was neither contrary to, nor an unreasonable application of, clearly established federal law concerning ineffective assistance, nor based on an unreasonable determination of the facts from the evidence before it. Therefore, the Court concludes that Petitioner is not entitled to federal habeas corpus relief under the AEDPA for any of his ineffective assistance of counsel clams.
IV. THE MERITS OF PETITIONER'S REMAINING CLAIMS
A. No Physical Evidence Supports Petitioner's Conviction
Petitioner contends that his conviction was illegal because there was no physical evidence to support the victim's claim that Petitioner sexually assaulted her. He argues that the physician who examined the victim could not confirm that the victim was sexually assaulted and all lab results were negative.
The record shows that Petitioner failed to raise his no-evidence claim on direct appeal. Although he attempted to raise this claim in his state writ application, by not raising it in his direct appeal, Petitioner has procedurally defaulted his claim under Texas law. Because procedural default provides an independent and adequate state-law ground for the conviction and sentence, it thus prevents federal habeas corpus review of the defaulted claim, unless Petitioner can demonstrate cause and prejudice for the default. "The existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." "Objective factors that constitute cause include interference by officials that makes compliance with the State's procedural rule impracticable, and a showing that the factual or legal basis for a claim was not reasonably available to counsel." Because Petitioner has not even attempted to demonstrate cause and prejudice for his default, the Court concludes that his no-evidence claim is not entitled to federal habeas corpus review.
Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994); Clark v. Texas, 788 F.2d 309, 310 (5th Cir. 1986).
See Gray v. Netherland, 518 U.S. 152, 162; Teague v. Lane, 489 U.S. 288, 298 (1989); Isaac, 456 U.S. at 126, n. 28, 129; Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977).
Murray v. Carrier, 477 U.S. 478, 488 (1986).
McCleskey v. Zant, 499 U.S. 467, 494 (1991) (internal quotation marks and citation omitted).
Moreover, Petitioner's emphasis on the absence of physical evidence ignores the fact that he could have been convicted on the basis of testimonial evidence alone. See Peters v. Whitley, 942 F.2d 937, 941-2 (5th Cir. 1991) (mentally retarded victim's testimony by itself was sufficient to support defendant's conviction for rape).
B. Petitioner Was Denied Due Process
Petitioner alleges that he was denied due process because: (1) the prosecutor told various witnesses not to speak to defense counsel; (2) four members of the jury were biased against him; (3) he was denied favorable lab and medical reports and physical evidence; (4) at the punishment phase of the trial, the State improperly introduced evidence of extraneous unadjudicated offenses; and (4) the prosecutor made improper remarks at the punishment phase.
1. Witnesses Were Told Not to Speak with Defense Counsel
Petitioner alleges that, before the trial, the prosecution told a potential witness, Flor Caribe Martinez, not to talk to defense counsel. In support of his allegation, Petitioner offers an affidavit from Alberto Nevarez, an investigator for the El Paso County Public Defender's Office. Nevarez' affidavit was presented to the trial court as part of as pre-trial motion asking the trial court to order the district attorney to stop advising witnesses not to speak to the defense team. In his affidavit, Nevarez stated that, when he tried to interview Martinez, she told him that an assistant district attorney had told her not to talk to the investigator. Nevarez further stated that he could not recall the name of the assistant district attorney who purportedly told Martinez not to cooperate with the defense team.
Although substantial state interference with a defense witness' decision to testify may violate a defendant's due process rights, after review, the Court concludes that Petitioner utterly failed to present the state habeas court with any evidence suggesting that prosecutorial interference occurred. Nevarez' affidavit constitutes rank hearsay; it is not an affidavit from Martinez herself, nor does it even identify the assistant district attorney who purportedly made the statement. Furthermore, as the State argues, Martinez did testify and was subject to cross-examination. Nothing in that cross-examination elicited testimony that Martinez was pressured to change or alter her account of events surrounding the offense. Nor does Petitioner point to any evidence to suggest that, even if Martinez was pressured to testify in a certain way, she actually succumbed and altered her testimony as a result. In sum, Petitioner has presented nothing but hearsay and speculation to support the factual basis for his claim. Accordingly, the Court concludes that Petitioner has not shown that he was denied due process in this respect.
United States v. Whittington, 783 F.2d 1210, 1219 (5th Cir. 1986).
2. Juror Bias
As discussed regarding Petitioner's related ineffective assistance claim, the state habeas court determined that he had failed to demonstrate that trial counsel should have struck any juror from the panel. Petitioner has failed to come forward with any, let alone clear and convincing, evidence to overcome the presumption that the state habeas court's factual finding was correct. Thus, this Court must defer to the state habeas court's factual determination that there was no juror bias. The Court concludes that Petitioner has not shown that he was denied due process in this regard.
3. Favorable Evidence Withheld
Petitioner alleges that his right to due process was violated because he was denied access to lab results, medical reports, and other records favorable to him. After reviewing the record, however, the Court concludes that it does not support his contention. In fact, the lab results and medical reports of which he speaks were admitted at trial. Because Petitioner's claim rests on an erroneous factual basis, the Court concludes that he is not entitled to federal habeas corpus relief.
4. Perjury
Petitioner claims that Det. Gutierrez perjured himself when he testified regarding Petitioner's post-arrest statement ( i. e., that Petitioner had sexual intercourse with the complainant after she told him to stop). Alternatively, Petitioner appears to argue that his statement was coerced and therefore involuntary.
To establish a due process violation based on perjury, Petitioner must show that the prosecution knowingly presented materially false evidence to the jury. Perjury is not established merely by contradictory testimony from witnesses, inconsistencies within a witness' testimony, and conflicts between reports, written statements and the trial testimony of prosecution witnesses.
Koch v. Puckett, 907 F.3d 524, 531 (5th Cir. 1990).
Id.
Here, Petitioner has not presented any evidence that the detective's testimony was inaccurate or untruthful and has similarly failed to show that, even if the detective were lying, the prosecutor knew that his testimony was false. Nor did he present the state habeas court with evidence that the trial court's determination, that his statement was voluntary, was incorrect. Therefore, the Court concludes that Petitioner has failed to show that the state habeas court's rejection of his claim was contrary to, or an unreasonable application of, clearly established Federal law, or an unreasonable determination of the facts in light of the evidence before it.
To the extent that Petitioner argues that his statement was not obtained in accordance with state law, this is a state law issue which is not cognizable on federal habeas review.
5. Extraneous Unadjudicated Offenses at Punishment
Texas law allows for the introduction of unadjudicated extraneous offense evidence at the punishment stage of both capital and noncapital trials. The introduction of unadjudicated extraneous offenses at the punishment stage does not implicate constitutional concerns. Accordingly, Petitioner's claim for relief is not cognizable on federal habeas corpus review.
Givens v. Cockrell, 265 F.3d 306, 309 n. 3 (5th Cir. 2001)
See Williams v. Lynaugh, 814 F.2d 205, 207 (5th Cir. 1987).
6. Counsel's Deficiencies
Petitioner alleges that he was denied due process because counsel constructed a defense based on a theory of consent, although Petitioner told counsel that he and the complainant did not have sexual intercourse. After review, the Court concludes that Respondent is correct that Petitioner has provided no law to support the proposition that counsel's ineffective assistance can give rise to an independent due process claim. Moreover, Teague principles bar this Court from considering this novel claim. Further, Petitioner's claim rests on the theory that counsel performed deficiently in formulating a consent defense. As discussed above, this Court has independently determined that Petitioner failed to show that counsel performed deficiently in this regard or that Petitioner was prejudiced by any purported error.
Teague v. Lane, 489 U.S. 288, 316 (1989). With two narrow exceptions (which are not implicated herein), habeas corpus cannot be used to create new constitutional rules of criminal procedure. See id.
G. Evidentiary Sufficiency
As discussed earlier in this Opinion, Petitioner failed to raise his no-evidence claim in his direct appeal, and thus has procedurally defaulted his claim under Texas law. Because the procedural default provides an independent and adequate state-law ground for the conviction and sentence, it thus prevents federal habeas corpus review of the defaulted claim, unless Petitioner can demonstrate cause and prejudice for the default. Because Petitioner has not even attempted to demonstrate cause and prejudice for his default, the Court concludes that his no-evidence claim is not entitled to federal habeas corpus review.
Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994); Clark v. Texas, 788 F.2d 309, 310 (5th Cir. 1986).
See Gray v. Netherland, 518 U.S. 152, 162; league, 489 U.S. at 298; Engle v. Isaac, 456 U.S. 107, 126 n. 28, 129; Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977).
H. Speedy Trial
Petitioner alleges that he was denied a speedy trial, in violation of his right to due process. The basis for his claim is that he was not tried until nineteen months after his arrest. He claims that the delay prejudiced him because witnesses who were in the military became unavailable during that time.
Under Barker v. Wingo, a court determines whether a defendant's right to a speedy trial was violated by balancing four factors: (1) the length of delay; (2) the reason for the delay, (3) whether the defendant asserted his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay. Unless the delay is presumptively unreasonable, a court need not inquire into the three remaining factors. The time period is measured from the date of arrest, or indictment, whichever occurred first. In the absence of extreme prejudice or a showing that the State wilfully delayed the defendant's trial in order to hamper the defense, a delay of less than a year is insufficient to trigger an inquiry into the Barker factors.
407 U.S. 514, 530-2 (1972).
See Gray v. King, 724 F.2d 1199, 1202 (5th Cir. 1984).
See id. at 1202.
See Cowart v. Haggart, 16 F.3d 642, 647 (5th Cir. 1994).
The nineteen-month delay Petitioner asserts is sufficient to trigger Barker inquiry. The record shows that Petitioner was arrested on April 26, 1998. In June 1998, approximately two months after Petitioner was arrested, his original counsel withdrew from the case because the attorney-client relationship had deteriorated. In January 1999, about seven months later and a month before trial was scheduled to begin, the State requested a continuance in order to conduct additional investigation. The trial was reset for June 21, 1999. Petitioner then requested a continuance, and the trial court rescheduled the trial to begin on September 13, 1999. The trial actually began in late November 1999.
It appears that Petitioner was responsible for at least two of the delays. Thus, the second Barker factor does not weigh in his favor. Moreover, there is no evidence in the record to suggest that Petitioner asserted his right to a speedy trial any earlier than in his state habeas writ. The Court concludes that the third Barker factor weighs against Petitioner. As for the last Barker factor, prejudice, Petitioner merely asserts that certain unidentified witnesses became unavailable during the time before trial. He does not state what these witnesses would have said or present affidavits from the would-be witnesses themselves. Thus, the Court concludes that the last Barker factor also weighs against Petitioner. This Court independently concludes that Petitioner failed to show that his right to a speedy trial was violated. Therefore, it further concludes that Petitioner has failed to show that the state habeas court's rejection of this claim was contrary to, or an unreasonable application of, clearly established Federal law, or an unreasonable determination of the facts in light of the evidence before it.
I. Prosecutor's Comments
Petitioner argues that the prosecutor's reference to his "crimes" at the punishment phase violated his right to due process. In reviewing Petitioner's direct appeal, the Eighth District Court of Appeals determined that he failed to object to the State's argument and therefore failed to preserve this complaint for appellate review. Because the contemporaneous objection rule constitutes adequate and independent state-law grounds for Petitioner's conviction and sentence, it thus prevents federal habeas corpus review of his unpreserved claim unless he can demonstrate cause and prejudice for the default. To the extent that Petitioner argues that trial counsel's deficient performance caused the default, this Court has already rejected his argument, finding that Petitioner failed to show that trial counsel performed deficiently in this regard.
Thomas v. State, No. 08-99-00462-CR, at 8-9.
See Gray v. Netherland, 518 U.S. 152, 162; Teague v. Lane, 489 U.S. 288, 298 (1989); Isaac, 456 U.S. at 126, n. 28, 129; Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977).
Moreover, even if this Court were to review Petitioner's claim on the merits, it would find that he has not shown that he is entitled to federal habeas corpus relief. The habeas standard of review for claims of improper argument by the prosecution is a narrow one of due process and not a broad exercise of supervisory power. The critical inquiry is whether the prosecutor's comments so infected the trial with unfairness that the resulting conviction constituted a denial of due process. Only an egregious case will constitute a defect of constitutional proportion.
Darden v. Wainwright, 477 U.S. 168, 181 (1986).
Id.
Wilson v. Butler, 813 F.2d 664, 676 (5th Cir. 1987).
Assuming that the prosecutor's remark was improper, Petitioner has failed to show that this single comment rose to the level of an egregious error of constitutional dimension, rendering the entire trial a denial of due process. Furthermore, as the state court of appeals noted, any error was harmless because the jurors were properly instructed regarding the extent to which they could consider Petitioner's extraneous offenses in assessing punishment.
Thomas v. State, No. 08-99-00462-CR, at 8-9.
J. Double Jeopardy
Petitioner argues that the prosecution's introduction of evidence of extraneous unadjudicated offenses at the punishment stage violated the Double Jeopardy clause. However, a trial court's consideration, at sentencing, of prior uncharged criminal conduct does not constitute punishment for such conduct for double jeopardy purposes.
See Witte v. United States, 515 U.S. 389, 400 (1995).
K. Indictment
Petitioner alleges that his indictment was void. The sufficiency of a state court indictment is not cognizable on federal habeas review unless the indictment is so defective that it deprives the state court of jurisdiction. A federal district court must give due deference to a state court's own interpretations of its own state law that a defect of substance in an indictment does not deprive a state trial court of jurisdiction. Under Texas law, the presentment of an indictment or information to a Texas court invests that court with jurisdiction over the cause. Where a state writ application raises the issue of the sufficiency of a state indictment and the Texas Court of Criminal Appeals denies the application without written order, the Court of Criminal Appeals has implicitly determined that the indictment was sufficient under state law.
McKay v. Collins (5th Cir. 1994).
Id. at 69.
Id.
Id. at 70.
Petitioner raised the claim that his indictment was defective in his state writ application. The Court of Criminal Appeals denied the application without written order. Therefore, the Court concludes that the Court of Criminal Appeals determined that the indictment was sufficient under state law.
For the foregoing reasons, this Court concludes that the state courts' rejection of Petitioner's due process claims was not contrary to, or an unreasonable application of, clearly established Federal law, or an unreasonable determination of the facts in light of the evidence before it. Therefore, the Court concludes that Petitioner is not entitled to federal habeas corpus relief regarding any of his due process claims.
IV. CONCLUSION
In sum, the Court concludes that Petitioner has not shown that he is entitled to federal habeas relief under the AEDPA regarding any of his claims. Accordingly, IT IS ORDERED that Petitioner Milton Alexander Thomas' Application for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254, filed March 14, 2003, is DENIED.
FINAL JUDGMENT
On this day the Court entered an Order denying Petitioner Milton Alexander Thomas' Petition for Writ of Habeas Corpus by a Person in State Custody filed pursuant to 28 U.S.C. § 2254. The Court now enters its Final Judgment pursuant to Federal Rule of Civil Procedure 58.Accordingly, IT IS HEREBY ORDERED that Petitioner Milton Alexander Thomas' Petition for Writ of Habeas Corpus by a Person in State Custody, filed pursuant to 28 U.S.C. § 2254 is DENIED AND THIS ACTION IS DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that all other pending motions, if any, are DENIED AS MOOT.