Opinion
Civil Action No. 4:02-CV-716-A
January 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 Roland Albert Warren, TDCJ-ID #892255, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Coffield Unit in Tennessee Colony, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
The Fort Worth Police Department received an anonymous drug complaint regarding Warren. (2 Rep. R. at 10, 24.) Without a warrant, officers went to Warren's house and asked if they could search his home. ( Id. at 10, 13.) The officers stated that Warren gave verbal consent to the search after refusing to give written consent, and the officers found marihuana and cocaine. ( Id. at 14-21, 47.) Warren was indicted for possession of 4 grams or more but less than 200 grams of cocaine. (Clerk R. at 3.) The indictment included an enhancement paragraph for a 1992 conviction for possession of less than 28 grams of cocaine and a habitual-offender notice citing a 1990 conviction for possession of less than 28 grams of cocaine. ( Id.) Warren's first trial ended in a mistrial after the jury could not agree on a verdict. ( Id. at 117.) On September 15, 1999, a jury found Warren guilty. ( Id. at 159-60.) The trial court then found the enhancement and habitual-offender paragraphs true and sentenced Warren to 45 years' confinement. ( Id.)
Warren and his daughter, who was present during the search, denied that he gave verbal consent. (2 Rep. R. at 98, 104, 143-44.)
The Second District Court of Appeals affirmed the trial court's judgment. Warren v. State, No. 2-99-0469-CR (Tex.App.-Fort Worth July 27, 2000, no pet.) (not designated for publication). Warren did not file a petition for discretionary review. Warren filed a state application for habeas corpus relief seeking an out-of-time petition for discretionary review because appellate counsel failed to inform him of the appellate court's decision. The Court of Criminal Appeals, after remanding the issue to the trial court for an evidentiary hearing, denied the application without written order. Ex parte Warren, No. 48, 595-01 (Tex.Crim.App. Nov. 28, 2001) (not designated for publication). Warren filed another state habeas application challenging his conviction, which the Court of Criminal Appeals denied without written order. Ex parte Warren, No. 48, 595-02 (Tex.Crim.App. July 31, 2002) (not designated for publication). Warren 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 August 15, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Warren raises five issues:
1. The State used perjured testimony at his trial.
2. The State falsified evidence introduced at trial.
3. The State failed to disclose favorable evidence to the defense.
4. His conviction was based on evidence that was seized as a result of an unlawful search and seizure.
5. Trial counsel was constitutionally ineffective.
E. RULE 5 STATEMENT
Cockrell believes Warren has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.
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), cent. 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, ___ S.Ct. ___ (Jan. 13, 2003) (No. 01-10886).
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). Warren argues that because the Court of Criminal Appeals did not conduct a full and fair hearing of his state habeas corpus applications, the statutory presumptions and standards of review do not apply to his case. (Pet'r Reply at 5.) But a full and fair hearing is not a precondition to according § 2254(e)(1)'s presumption of correctness to state habeas court findings of fact nor to applying § 2254(d)'s standards of review. Valdez v. Cockrell, 274 F.3d 941, 948-51 (5th Cir. 2001), cert. denied, 123 S.Ct. 106 (2002). Thus, the statute applies.
2. Perjured Testimony and Falsified Evidence
Warren argues that the State used perjured testimony and falsified evidence to convict him. Specifically, Warren complains that Officer Dennis Alise, one of the arresting officers, testified that there were six officers, including an Officer Armani, at the arrest. Because other evidence at trial showed that there were only five officers present when the drugs were seized and Warren was arrested, Warren concludes that the State knowingly used perjured testimony. (Federal Pet. at Ground One Attach. pp. 1-3; Pet'r Reply at 14-15.) He further infers that the consent-to-search form, which the officers signed after they claimed Warren gave verbal consent to a search of his home, was falsified because there were only five officers' signatures and because Officer Armani's signature was added after the arrest. (Federal Pet. at Ground One Attach. pp. 1-4 Ground Three Attach. p. 14.)
A conviction obtained through the knowing use of perjured testimony or false evidence is fundamentally unfair and must be overturned if there is a reasonable likelihood that the false testimony or evidence could have affected the jury's verdict. United States v. Agurs, 427 U.S. 97, 103 (1976). To establish such a due-process violation based on the State's knowing use of false or misleading evidence, Warren must show that the evidence was false and material and that the State knew that the evidence was false. Giglio v. United States, 405 U.S. 150, 153-54 (1972); Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). But contradictory testimony from witnesses, inconsistencies in a witness's testimony, and conflicts between a prosecution's witness and other evidence does not establish perjury. Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990).
The evidence Warren relies on to establish Officer Alise's perjury reveals mere inconsistencies about the number of officers at the arrest, which does not rise to the level of perjury. Kutzner v. Johnson, 242 F.3d 605, 609 (5th Cir. 2001); United States v. Jones, 614 F.2d 80, 82 (5th Cir.), cert. denied, 466 U.S. 945 (1980). (2 Rep. R. at 11, 16, 27, 51.) Further, such a discrepancy is not material to Warren's conviction, and Warren has not shown that the State knew that the testimony was false. Nobles, 127 F.3d at 416-17; United States v. Washington, 44 F.3d 1271, 1282 (5th Cir.), cert. denied, 514 U.S. 1132 (1995); Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th Cir. 1993). Likewise, Warren's claim that the State introduced a falsified consent-to-search form must fail. The alleged discrepancy Warren relies on was not material to his conviction and has not been shown to be either false or knowingly used by the State. Nobles, 127 F.3d at 415-17.
3. Brady Violation
Warren asserts that the State failed to disclose favorable evidence, i.e., that Officer Armani was not present at the search and, thus, signed the consent-to-search form after the arrest. (Federal Pet. at Ground One Attach. at 2-4 Ground Three Attach. at 14.)
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, Warren 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.
The consent form, signed by Officer Armani, would not have aided Warren in his cross-examination of Officer Alise as Warren argues. (Federal Pet. at Ground One Attach. at 4.) Officer Alise testified that Officer Armani was present at the search and the arrest. (2 Rep. R. at 16.) Impeaching Officer Alise with the signed consent form would not have changed his statement as to Officer Armani's presence. Thus, the completed consent form was not favorable to Warren's case for impeachment purposes. Further, the signed consent form was not material to Warren's guilt or innocence because the evidence was before the jury; therefore, the alleged suppression of the consent forms did not undermine confidence in the trial's outcome. E.g., Jackson v. Johnson, 194 F.3d 641, 650 (5th Cir. 1999), cert. denied, 529 U.S. 1027 (2000); Westley v. Johnson, 83 F.3d 714, 725 (5th Cir. 1996), cert. denied, 519 U.S. 1094 (1997); Edmond v. Collins, 8 F.3d 290, 293-94 (5th Cir. 1993).
4. Unlawful Search and Seizure
Warren also argues that his conviction was unconstitutional because it was based on drugs that were seized as a result of an unlawful search and seizure. (Federal Pet. at Ground Two Attach. pp. 1-3.) Federal courts have no authority to review a state court's application of Fourth-Amendment principles in habeas corpus proceedings unless the petitioner was denied a full and fair opportunity to litigate his claim in state court. Stone v. Powell, 428 U.S. 465, 494 (1976). The trial court conducted a hearing on Warren's pro se pretrial motions to suppress the seized evidence and denied the motions. (Clerk R. at 10, 101.) This claim was also raised in Warren's second state habeas corpus application. (2 State Habeas R. at 7, 10.) Because Warren was provided a full and fair opportunity to litigate his Fourth-Amendment claim in state court, it is barred from federal habeas corpus review.
5. Ineffective Assistance of 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. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions; rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct, and is presumed to have been adequate. Id. at 689-90.
Warren's complaints about counsel were 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 courts' rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d).
Warren asserts that trial counsel was constitutionally ineffective because she:
1. did not file a motion to suppress or otherwise challenge the search;
2. did not request a jury instruction on the legality of the search;
3. did not object to the admission of prior-bad-act evidence at guilt-innocence and punishment;
4. failed to introduce favorable evidence at trial; and
5. failed to object to the State's use of Officer Alise's perjured testimony.
For the following reasons, Warren has failed to establish ineffective assistance as required by Strickland; thus, the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
Warren first asserts that counsel was ineffective for failing to file a motion to suppress the evidence seized after the search. (Federal Pet. at Ground Three Attach. pp. 1-4.) However, Warren filed pro se motions to suppress raising the same arguments he raises in this court. (Clerk R. at 10-15, 94-100.) The trial court heard and denied Warren's motions. ( Id. at 10, 101.) Thus, Warren was not prejudiced by counsel's failure to file a motion to suppress. Cf. Smith v. Maggio, 696 F.2d 365, 367 (5th Cir.) (holding counsel not deficient for failing to investigate when investigation was, in fact, conducted), cert. denied, 464 U.S. 831 (1983).
Warren's next claim is that counsel was ineffective for failing to request a jury instruction on the legality of the search based on the fact that Warren and his daughter testified that he did not consent to the search. (Federal Pet. at Ground Three Attach. pp. 4-5.) Once again, Warren has failed to show any prejudice from counsel's performance, even if deficient. During her opening statements, counsel raised the issue of illegal search and seizure. (2 Rep. R. at 91-92.) In her cross-examination of three of the arresting officers, counsel thoroughly probed the validity of Warren's consent to search his home. ( Id. at 29-39, 54-61, 71-77.) Counsel again focused on Warren's consent during the presentation the defense's case. ( Id. at 96-98, 104-09, 141-44, 146-48.) Both she and the State argued during closing arguments that lack of consent was an issue in the case and tied it the reasonable-doubt instruction. (3 Rep. R. at 3-4, 8-12, 16-23.) During deliberations, the jury sent the trial court a note requesting to see the consent form. (Clerk R. at 158.) It is clear that the jury considered the consent issue in reaching its guilty verdict. Thus, an additional instruction would not have revealed to the jury anything that had not already been heard and considered. Cf. Kinnamon v. Scott, 33 F.3d 462, 465 (5th Cir.) (holding no prejudice shown where additional jury instruction would not have changed trial's outcome), cert. denied, 513 U.S. 1054 (1994).
Warren asserts that counsel was ineffective for failing to object to the State's proffer of testimony about the packaging and distribution of cocaine and introduction of the marihuana seized from Warren's home. (Federal Pet. at Ground Three Attach. p. 6.) Under state law, this evidence was admissible as part of the same transaction and to place the offense in context. Hoffert v. State, 623 S.W.2d 141, 144 (Tex.Crim.App. 1981); Tyra v. State, 496 S.W.2d 75, 77 (Tex.Crim.App. 1973); Miller v. State, 469 S.W.2d 180, 181 (Tex.Crim.App. 1971); Garcia v. State, 170 Tex.Crim. 328, 340 S.W.2d 803, 804 (1960). Counsel was not deficient. See, e.g., Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997) (holding counsel not deficient for failing to request competency hearing where there was no indication of incompetency), cert. denied, 523 U.S. 1099 (1998); Lauti v. Johnson, 102 F.3d 166, 170 (5th Cir. 1996) (holding counsel not deficient for failing to object to proper jury instruction), cert. denied, 521 U.S. 1126 (1997); Marshall v. Cabana, 835 F.2d 1101, 1103 (5th Cir. 1988) (holding counsel not deficient for failing to make meritless argument).
Warren contends that counsel should have introduced the copies of the consent-to search form that were not signed by Officer Armani because they were favorable to his case. (Federal Pet. at Ground Three Attach. pp. 7-9.) Warren argues that they would have been favorable to his case because they showed that he did not consent to he search and that the signed consent form was fabricated. (Pet'r Reply at 26-27.) However, the issue of the length of the search and the circumstances surrounding the signatures on the consent form were raised at trial. (2 Rep. R. at 31, 36-37, 39, 57-59, 60-63, 76-77.) It is unclear what additional information would have been revealed if the unsigned consent forms had been introduced into evidence. Further, this court cannot say that the failure to introduce the copies of the consent form was not the result of a reasoned trial strategy. Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984).
Finally, Warren argues that because counsel was not familiar with the facts of his case, she did not object to the State's use of Officer Alise's perjured testimony. (Federal Pet. at Ground Three Attach. pp. 10-11.) As discussed above, Officer Alise's testimony was not perjurious; thus, any objection on this basis would have been futile. Counsel was not deficient. Marshall, 835 F.2d at 1103.
6. Summary
In sum, Warren is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Warren 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
Warren'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 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, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until February 3, 2003. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to, proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); 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 February 3, 2003 to serve and file, not merely place in the mail, 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.