Opinion
CIVIL ACTION NO. 5:02-CV-031-C
May 8, 2003
ORDER
Petitioner, Paul Ervin Williams (Williams), filed a Petition for Writ of Habeas Corpus by a Person in State Custody. Respondent filed an Answer, together with relevant state court records, and Williams filed a response.
Respondent has lawful custody of Williams pursuant to a judgment and sentence of the 140th Judicial District Court of Lubbock County, Texas. Williams was found guilty by a jury of the felony offense of murder. The jury assessed punishment on August 2, 1996, at 50 years' incarceration in the Texas Department of Criminal Justice, Institutional Division.
Williams' conviction was affirmed by the Seventh Court of Appeals of Texas on February 26, 2000. He initially failed to file a petition for discretionary review (PDR); however, his first state habeas application was granted and he was allowed to file an out-of-time PDR. The Texas Court of Criminal Appeals refused the PDR on October 4, 2000.
Williams filed a second state habeas application on October 8, 2001. The Texas Court of Criminal Appeals denied the application without written order on February 6, 2002. A review of the second state habeas application reveals that the state court issued a Certificate of Decision on November 20, 2001, in which it found that "applicant has failed to plead any facts to establish his claims or support the prejudice requirement of ineffective assistance of counsel."
Williams has raised five ineffective-assistance-of-counsel claims in this federal habeas action. Williams was convicted of murder. He does not deny shooting the victim; however, he argues that he acted in self-defense. His ineffective-assistance-of-counsel claims revolve around his self-defense argument.
Williams' 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 rebutting 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.
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, Williams 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, Williams 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, Williams 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).
The allegation of a mere possibility of a different outcome will not permit a court to find prejudice. Lamb v. Johnson, 179 F.3d 352, 358 (5th Cir. 1999). Williams must affirmatively prove prejudice; simply alleging prejudice will not suffice. Deville v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994).
A defendant must show "actual prejudice" as a result of his counsel's deficient performance. Moody v. Johnson, 139 F.3d at 482. Williams 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; Clark v. Johnson, 227 F.3d 273, 282 (5th Cir. 2000).
"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).
"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." Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983); Moore v. Johnson, 194 F.3d 586, 591-92 (5th Cir. 2000) (court must indulge a strong presumption that defense counsel's "strategic or tactical decisions, made after an adequate investigation, fall within the wide range of objectively reasonable professional assistance").
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 order to establish that counsel was rendered ineffective by virtue of a failure to investigate, a convicted defendant must do more that merely allege a failure to investigate — he must state with specificity what the investigation would have revealed and how it would have altered the outcome of the case; United States v. Glinsey, 209 F.3d 386, 393 (5th Cir. 2000) ( citing United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989)).
Moreover, even if any investigation would have turned up admissible evidence, that fact is in itself insufficient to show prejudice. Gray v. Lucas, 677 F.2d 1086, 1092 (5th Cir. 1982). As a result, Williams' broad-based claims of failure to investigate do not entitle him to habeas relief
"Complaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified are largely speculative." Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978); Boyd v. Estelle, 661 F.2d 288, 390 (5th Cir. 1981). "[H]ypothetical or theoretical testimony will not justify the issuance of a writ . . ." Martin v. McCotter, 796 F.2d 813, 819 (5th Cir. 1986) [internal quotations and citations omitted]. "In order for the appellant to demonstrate the requisite Stickland prejudice, the appellant must show not only that this testimony [of an uncalled witness] would have been favorable, but also that the witness would have testified at trial." Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985).
This Court has examined Williams' pleadings and find that he has wholly failed to support his claim of ineffective assistance of counsel with proof of prejudice. See Gochicoa v. Johnson, 238 F.3d 278, 285 (5th Cir. 2000) (quoting Goodwin v. Johnson, 132 F.3d 162, 176 n. 10 (5th Cir. 1997)) ("When the defendant receives at least some meaningful assistance, he must prove prejudice in order to obtain relief for ineffective assistance of counsel.").
If a petitioner fails to establish any error, there is nothing to cumulate. United States v. McIntosh, 280 F.3d 479, 484 (5th Cir. 2002); Yohey v. Collins, 985 F.2d 222, 229 (5th Cir. 1993) (explaining that because certain errors were not of constitutional dimension and others were meritless, petitioner "has presented nothing to cumulate").
This Court has reviewed the entire state court records, Williams' petition, together with the affidavits attached thereto, the Respondent's answer, Williams' response, and the affidavit of Williams' trial attorney.
Williams has failed to show that his trial attorney was ineffective under the Strickland standards. This Court cannot conclude that the state habeas court unreasonably applied Strickland to the facts of Williams' 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).
For the reasons stated above and the facts and law set forth in Respondent's answer, the Court finds that Williams' petition for writ of habeas corpus should be denied and this case dismissed with prejudice.
SO ORDERED.
JUDGMENT
For the reasons stated in the Court's Order of even date,
It is ORDERED, ADJUDGED, AND DECREED that Petitioner's petition for writ of habeas corpus is DENIED and DISMISSED with prejudice.