Opinion
Civil Action No. 5:01-CV-152-C
May 10, 2002
ORDER
The Court has considered the "Petition for Writ of Habeas Corpus of a Person in State Custody" filed by Petitioner, Philip Thomason (Thomason). The Respondent filed her Answer, together with relevant state court records. Thomason's attorney filed a response to the answer and Thomason filed a pro se response.
Respondent has lawful custody of Thomason pursuant to a judgment and sentence of the 99th District Court of Lubbock County, Texas. Thomason was charged with the felony offense of aggravated sexual assault of a child. The indictment alleged, in pertinent part, that on or about January 22, 1996, Thomason did "intentionally and knowingly cause the sexual organ of Summer Howard, a child who was . . . younger than 14 years of age, and not the spouse of the said defendant, to contact the mouth of the said defendant." The victim was five years old at the time of the alleged offense and six years old at the time of trial.
Thomason entered a plea of not guilty and was tried by a jury. The jury found Thomason guilty and punishment was assessed at 60 years' incarceration.
Thomason's conviction was affirmed by the Seventh Court of Appeals on November 2, 1998. His motion for rehearing was overruled on December 28, 1998. The Texas Court of Criminal Appeals refused Thomason's petition for discretionary review on August 18, 1999.
A state application for writ of habeas corpus challenging his conviction was filed on September 21, 2000. On April 11, 2001, the Texas Court of Criminal Appeals denied the state habeas application without written order on the findings of the trial court without a hearing.
STANDARD OF REVIEW
Thomason's petition is subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997). The AEDPA enacted the present 28 U.S.C. § 2254(d), which provides that a state prisoner may not obtain federal habeas 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 proceedings.
Thus, § 2254(d) applies only to claims "adjudicated on the merits" in the state courts. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.), cert. denied, 121 S.Ct. 122 (2000). "The term `adjudication on the merits,' . . . refers solely to whether the state court reached a conclusion as to the substantive matter of a claim, as opposed to disposing of the matter for procedural reasons." Valdez v. Cockrell, 274 F.3d 941, 950 (5th Cir. 2000), reh'g denied Apr. 12, 2002.
For cases found to have been adjudicated on the merits in state court, the Supreme Court has determined that a federal court may grant a writ under the § 2254(d)(1) "contrary to" clause, only "if the state court arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decide[d] a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." William v. Taylor, 529 U.S. 362, 413 (2000). "Under the `unreasonable application' clause [of § 2254(d)(1)], a federal habeas court may grant the writ 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 prisoner's case." Id. "Distinguishing between an unreasonable and an incorrect application of federal law, [the Supreme Court has] clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable." Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 1918 (2001) (citing Williams v. Taylor, 527 U.S. at 410-11).
Pure questions of law and mixed questions of law and fact should be reviewed under § 2254(d)(1), while pure questions of fact should be reviewed under § 2254(d)(2). Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000); Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir. 1998).
The "denial" of habeas relief by the Texas Court of Criminal Appeals serves, under Texas law, to dispose of the merits of the state habeas claim. Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998). See Ex parte Torres, 943 S.W.2d 469, 474 (Tex.Crim.App. 1997) (holding that "denial" signifies the court addressed and rejected the merits of a claim, while "dismissal" means the court declined to consider the claim for reasons unrelated to the merits). If faced "with a silent or ambiguous state habeas decision, the federal court should `look through' to the last clear state decision on the matter" to determine whether the state court decision was procedural or substantive. Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir. 1999).
"When one reasoned state court decision rejects a federal claim . . ., orders upholding that judgment or rejecting the same claim are considered to rest on the same ground as did the reasoned state judgment." Bledsue v. Johnson, 188 F.3d 250, 256 (5th Cir. 1999). This "look through" doctrine enables a federal habeas court "to ignore — and hence, look through — an unexplained state court denial and evaluate the last reasoned state court decision." Id.
In reviewing a state prisoner's habeas petition, "a determination of a factual issue made by a state court shall be presumed to be correct," and the petitioner "shall have the burden of rebuffing the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Davis v. Johnson, 158 F.3d 806, 812 (5th Cir. 1998).
"The presumption of correctness . . . now simply provides that unless the petitioner can rebut the findings of fact through clear and convincing evidence, those findings of fact are presumed to be correct." Valdez v. Cockrell, 274 F.3d at 949.
ISSUES
Thomason raises five claims of ineffective assistance of trial counsel. Specifically, he alleges that trial counsel
(1) failed to file a motion in limine and to timely object to the opinion testimony of the complainant's mother that the complainant was telling the truth about the sexual abuse;
(2) failed to object to the opinion of a former CPS caseworker that the complainant was telling the truth about the sexual abuse;
(3) failed to object to the prosecutor's argument that the complainant's testimony regarding the elements of the offense were uncontroverted; and
(4) incorrectly advised him that if he testified, his testimony would open the door to the admission of rebuttal testimony that he previously molested another child.
Thomason's fifth claim is that he rejected a plea bargain offer of 10 years as a result of deficient advice from his trial counsel.
INEFFECTIVE ASSISTANCE OF COUNSEL
The Supreme Court, in Strickland v. Washington, 466 U.S. 668, 687 (1984), established a two-prong standard for ineffective-assistance-of-counsel claims. First, Thomason must demonstrate that his counsel's performance was deficient and, second, that the deficient performance prejudiced the defense. To show that the performance was deficient, Thomason must show that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. To show prejudice, Thomason must show that his counsel's "errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. Deficient performance will be found to be prejudicial only upon a showing that, but for counsel's errors, there is a reasonable probability that the final result would have been different and that confidence in the reliability of the verdict is undermined. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); Armstead v. Scott, 37 F.3d 202, 206-07 (5th Cir. 1994).
A defendant must show "actual prejudice" as a result of his counsel's deficient performance. Moody v. Johnson, 139 F.3d 477, 482 (5th Cir. 1998). Thomason is required to show "that the attorney's errors were so deficient as to render the verdict fundamentally unfair or unreliable." Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997). This "performance inquiry" is to be made applying a reasonableness standard; i.e., was counsel's assistance reasonable under all the circumstances, making the assessment, not in hindsight, but evaluating the conduct from counsel's perspective at the time of the conduct. Thus, the reviewing court is to be highly deferential in scrutinizing counsel's performance. Strickland, 466 U.S. at 688-89.
"The failure to prove either deficient performance or actual prejudice forecloses an ineffective assistance claim." Green v. Johnson, 160 F.3d 1029 (5th Cir. 1998), cert. denied, 525 U.S. 1174 (1999). See Goodwin v. Johnson, 132 F.3d 162, 174 (5th Cir. 1997) (stating that the presence or absence of prejudice at either trial or appellate level hinges upon the fairness of the trial and the reliability of the verdict). It is not necessary, however, for a district court to address both requirements of the conjunctive Strickland standard when addressing an ineffective-assistance claim; such a claim may be disposed of solely on a petitioner's failure to meet either requirement. Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995).
A petitioner must affirmatively prove and not merely allege prejudice. Mangum v. Hargett, 67 F.3d 80, 84 (5th Cir. 1995); Deville v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994). See Armstead v. Scott, 37 F.3d 202, 207 (5th Cir. 1994) (stating that the Fifth Circuit requires an appreciable showing of prejudice).
Conclusory allegations unsupported by any specific facts do not merit a federal court's attention. Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) ("mere conclusory allegations on a critical issue are insufficient to raise a constitutional claim"); Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994) (finding "speculation" of ineffective assistance to be no basis for habeas relief).
In the state habeas proceeding, Thomason submitted affidavits from three criminal law attorneys to support his claims that he received ineffective assistance of counsel. A review of those affidavits indicates that none of the attorneys had reviewed the trial record but based their opinions on the allegations stated in the state habeas application.
Thomason also submitted an affidavit from his trial attorneys and his own affidavit.
The trial court entered findings of fact and conclusions of law and found that Thomason had failed to establish any grounds that would entitle him to habeas relief. Specifically, the trial court found that
(1) Thomason could not establish prejudice as to issue number one;
(2) trial counsel's performance was not deficient as to issue number two;
(3) trial counsel's performance was not deficient as to issue number three;
(4) trial counsel's performance did not fall below an objective standard of reasonableness under prevailing professional norms as to issue number four; and
(5) trial counsel advised Thomason to plead guilty and he rejected their advice.
The Texas Court of Criminal Appeals denied the state habeas application without written order on the findings of the trial court without a hearing. This was an adjudication on the merits.
This Court has reviewed the entire state court records, Thomason's petition, the Respondent's answer, and both responses filed on Thomason's behalf. Thomason has failed to show that his trial attorneys were ineffective under the Strickland standards. This Court cannot conclude that the state habeas court unreasonably applied Strickland to the facts of Thomason's case. The state court's determination was not contrary to, nor did it involve an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1).
CONCLUSION
Based upon the foregoing and the facts and law set forth in Respondent's answer, the Court finds that Thomason's federal habeas petition should be denied and this case dismissed with prejudice.
SO ORDERED.