Opinion
No. 3:02-CV-839-M
December 30, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for habeas corpus relief brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is an inmate confined at the Clements Unit of the Texas Department of Criminal Justice, Institutional Division at Amarillo, Texas, serving a conviction for the offense of murder.
The Respondent is the Director of the Texas Department of Criminal Justice, Institutional Division.
Statement of the Case: Upon his plea of not guilty to the offense of murder as charged in the indictment returned in Cause No. F-98-2765-LP Washington was tried by a jury which returned a verdict of guilty. Thereafter upon his plea of true the trial court found that he had been convicted of the two prior felony offenses alleged for enhancement and assessed his sentence at a term of life imprisonment. Petitioner appealed his conviction which was affirmed by the Fifth Court of Appeals at Dallas on November 7, 2002. His pro se petition for discretionary review as subsequently refused by the Texas Court of Criminal Appeals.
Findings and Conclusions: In response to the petition Respondent contends that Washington has failed to exhaust state remedies with respect to his first two grounds for relief However, a similar argument is not asserted with respect to his third ground, to wit: ineffective assistance of counsel. Therefore, the magistrate judge will first address his final ground.
Petitioner's ineffective assistance of counsel claim is predicated on his trial attorney's failure to obtain all of his medical records from Parkland Hospital prior to his criminal trial. The additional records were obtained and presented in conjunction with Washington's motion for new trial. See Vol. 1, Statement of Facts, May 20, 1999 — hearing on motion for new trial and attached exhibits. At the conclusion of the hearing the trial court denied the motion without comment. Id. at 21.
Texas procedural law prohibits a trial judge from including any discussion of the reasons for denying a motion for new trial. See Texas Rule of Appellate Procedure 21.8 (formerly art. 40.07, Texas Code of Criminal Procedure). Under Texas law to do so constitutes error, but is not reversible error unless a defendant suffers harm. E.g. Baker v. State, 625 S.W.2d 840, 842 (Tex.App.-Amarillo 1981, no pet).
Washington raised this issue in his direct appeal and in his petition for discretionary review.
In addressing this issue in its opinion affirming Petitioner's conviction the Fifth Court of Appeals specifically applied the Supreme Court's opinion in Strickland v. Washington, 466 U.S. 668 (1983) and found that Washington's Sixth Amendment right to effective assistance of counsel was not abridged. See No. 05-99-00497-CR, opinion filed on November 7, 2000, at pages 5-7. The court appears to have addressed only the prejudice prong of the Strickland test.
1n order to establish an ineffective assistance of counsel claim a convicted person must establish both "cause" and "prejudice" and the failure to establish either forecloses relief Strickland at 688.
The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). The Act places new constraints on the power of federal courts to grant state prisoners' petitions for habeas corpus relief Specifically 28 U.S.C. § 2254(d), as amended by the AEDPA, forecloses federal habeas corpus relief unless the state courts' determination was contrary to or involved an unreasonable application of established law as determined by the United States Supreme Court or was based on an unreasonable determination of the facts. In the instant case the Fifth Court of Appeals specifically relied on the Supreme Court's decision in Strickland and found an absence of prejudice.
Since Washington has not sought relief pursuant to art. 11.07, Texas Code of Criminal Procedure, and the trial court was barred from expressing its reasons for denying his motion for new trial see n. 1,supra, and the Texas Court of Criminal Appeals refused his petition for discretionary review, the Fifth Court's opinion constitutes the last andonly reasoned state court opinion addressing Petitioner's Strickland claim. Ylst v. Nunnemaker 501 U.S. 797, 111 S.Ct. 2590 (1991).
The Fifth Court found that trial counsel's failure to obtain Washington's additional records from Parkland Hospital did not prejudice him because the content of undisclosed records would not if timely presented — have in reasonable probability required the trial court to have held a competency hearing. The appellate court's determination does not implicate either exception to § 2254(d). See Williams v. Taylor, 529 U.S. 362, at 404-13, 120 S.Ct. 1495 (2002); see also Foster v. Johnson, 293 F.3d 766, 776-784 (5th Cir. 2002), cert. denied, ___ S.Ct. ___, 2002 WL 31261750 (December 2, 2002). Therefore Petitioner is not entitled to relief on his third ground for relief.
In his first ground for relief Washington claims that the state trial court erred in failing to conduct a competency hearing. Respondent claims that this ground is unexhausted because he relied on state law in raising this issue in his direct appeal.
In his objection filed on September 10, 2002, Washington correctly observes that he is not required to seek both a petition for discretionary review as well as seek relief pursuant to art. 11.07 in order to exhaust state remedies. However, to satisfy the exhaustion requirement a state prisoner must have presented the factual and legal basis for relief in the state courts. See Picard v. Conner, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971); Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277 (1982).
An examination of his direct appeal brief in the Fifth Court of Appeals as well as his petition for discretionary review reflects that the error now alleged in his first ground for relief was predicated on the trial court's failure to comply with the requirements of state law, i.e. art. 46.02 Section 2, Texas Code of Criminal Procedure. As made clear by the Texas Court of Criminal Appeals in Casey v. State, 924 S.W.2d 946, 949 (Tex.Crim.App. 1996), the requirements embodied in this provision are predicated on the state statute and state court rules. Therefore it is clear that Petitioner's claim that the state trial court erred in failing to conduct a competency hearing is unexhausted.
Although a federal court cannot grant habeas corpus relief on an unexhausted claim, it may deny relief on an unexhausted claim. See § 2254(b)(1)(A) and (b)(2). Under the facts presented the court should deny relief on this ground.
A defendant cannot be tried for a criminal offense unless he is competent. The constitutional standard which must be met is that set out in United States v. Dusky, 362 U.S. 402, 80 S.Ct. 788 (1960). Indeed theDusky standard is expressly incorporated in art. 46.02, Section 1. However, whether a court is required to inquire into a defendant's competency to stand trial is informed by the Supreme Court's decision inPate v. Robinson, 383 U.S. 375, 86 S.Ct. 836 (1966). Speciflcally when a court is presented with evidence which raises a bona fide doubt as to a defendant's competence to stand trial a court is obligated to determine whether the defendant is in fact competent.
In the present case the record reflects that the court was not presented with any information which raised doubt about Washington's competence. Although his trial counsel obtained the reports from two psychiatrists, in the course of a pretrial hearing his attorney advised that he did not wish to disclose the results of the examinations for tactical reasons. See Statement of Facts Vol. 3 at pages 5; 7-8. There was nothing else presented except for Petitioner's statement to the court that he had been diagnosed at Parkland Hospital as a paranoid schizophrenic in 1987 and 1988 approximately ten years before the murder. The information presented to the court did not raise a bona fide doubt about Washington's competence on March 15, 1999. Therefore no constitutional error is presented. Accord see Ramsey v. State, 563 S.W.2d 616 (Tex.Ct.Crim.App. 1978) — holding no requirement for competency hearing where the inference from counsel's remarks to the court was that the results of the psychiatric examination were unfavorable to the accused.
At the hearing on Petitioner's motion for new trial, his trial attorney advised the court of the results of the examinations. See Vol. 1 Statement of Facts, May 20, 1999, at 13-15.
In his second ground for relief Washington complains of an evidentiary ruling of the trial court in admitting autopsy photographs of the decedent. His point of error on appeal in this regard is premised on a violation of Rule 403, Texas Rules of Evidence. Therefore this ground is also unexhausted. However, because he has failed to raise a colorable basis for federal habeas corpus relief I am of the opinion that it should also be denied on the merits.
The well-established rule in this circuit is that an evidentiary ruling of a state court does not present a ground for federal habeas corpus relief unless it is of such magnitude as to constitute a denial of fundamental fairness under the due process clause and is material in the sense of a crucial, critical, highly significant factors. E.g. see Pemberton v. Collins, 991 F.2d 1218, 1227 (5th Cir.) cert. denied, 510 U.S 1025, 114 S.Ct. 637 (1993).
In addressing this issue in the context of Washington's direct appeal the Fifth Court of Appeals found that no error occurred in admitting the autopsy photographs. No. 05-99-00497-CR, opinion at pages 4-5. Although Rule 403, Texas Rules of Evidence, is identical to the language of Federal Rule of Evidence 403, the interpretation and application of the Texas rule is a matter of Texas state law. It is equally relevant that Petitioner can show no prejudice caused by the admission of the autopsy photographs. The jury only considered the issue of guilt-innocence The evidence that he committed the murder was overwhelming. Thus, he cannot show that the autopsy photographs played a crucial, highly significant role in the jury's verdict. He elected to have the court decide the issue of punishment. See No. 05-99-00497-CR [F-98-02765-LP] Record, Volume 1 at 07; Statement of Facts Vol. 5 at 39, et seq. Therefore there is no basis for a claim that the jury was prejudiced by the admission of the photographs.
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition be denied and dismissed.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failute to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.