Opinion
No. 3:02-CV-1704-G (Consolidated with No. 3:02-CV-1705-G)
February 24, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 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 follow:
FINDINGS AND CONCLUSIONS
I. NATURE OF THE CASE
Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
II. PARTIES
Petitioner is an inmate in the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID"). Respondent Douglas Dretke is Director of the TDCJ-CID. III. PROCEDURAL BACKGROUND
Petitioner was convicted in the 283rd Judicial District Court, Dallas County, Texas, of unlawful possession of firearm by a felon with enhancement paragraphs of two prior convictions, and felony driving while intoxicated with enhancement paragraphs of two prior convictions. Petitioner pled not guilty to both charges and not true to the enhancement paragraphs. Petitioner was found guilty of both charges and the jury found the enhancement paragraphs true. Petitioner was sentenced to twenty-five years imprisonment in each cause number.
On July 3, 2001, the Fifth District Court of Appeals affirmed the convictions. Worthy v. State, Nos. 05-00-00072-CR, 05-00-00106-CR (Tex.App.-Dallas, July 3, 2001 pet ref d). On November 21, 2001, the Texas Court of Criminal Appeals denied Petitioner's petition for discretionary review. Worthy v. State, PDR 1566-01, 1567-01.
On January 23, 2002, Petitioner filed two state applications for habeas relief challenging both of his convictions. Ex part Worthy, Nos. 51,803-01, -02. On March 13, 2002, the Texas Court of Criminal Appeals denied the applications without written order on the findings of the trial court.
On August 7, 2002, Petitioner filed two federal petitions for habeas relief. These petitions have been consolidated into this action. Petitioner argues his conviction is unlawful because:
(1) the confession should have been suppressed because it was coerced;
(2) the handgun should have been suppressed because it was found as a result of an illegal arrest and illegal search;
(3) there was no probable cause for his arrest;
(4) the prior DWI convictions were dismissed, which made the enhancement paragraphs invalid;
(5) the jury was illegally impaneled because there were biased jurors on the panel;
(6) his trial counsel was ineffective because:
(a) counsel failed to subpoena witnesses;
(b) counsel gave the prosecutor improper evidence who then gave it to the jury during deliberations;
(c) counsel failed to call witnesses during the punishment phase;
(7) the trial court failed to provide defense counsel with enough time to prepare for the punishment phase;
(8) the evidence was insufficient to prove a valid breathalyzer test;
(9) the police officer's testimony was perjured;
(10) the affidavit is invalid to support the arrest;
(11) the arrest was invalid to support a DWI because he was not driving when he was approached;
(12) the trial court erred in not granting a motion for new trial;
(13) the indictment was false;
(14) the arrest was illegal because he was at his residence when the arrest occurred;
(15) the trial judge allowed the foreperson to mislead the jury.
(16) the prosecutor used race to inflame the jury;
(17) he was falsely accused of evading arrest;
(18) there was police brutality;
(19) the trial transcripts were tampered with;
(20) the arrest was a pretext;
(21) he was denied effective assistance of counsel on appeal;
(22) the appellate court erred by:
(a) finding that the inventory search was valid;
(b) finding the arrest valid;
(c) not reviewing the record.
IV. FACTUAL BACKGROUND
Officer Nelson of the Dallas Police Department testified that he observed Petitioner driving a car and weaving in the lane. (Tr. Vol. 4, p. 35). Officer Nelson turned his car around and began to follow Petitioner. ( Id.) After following Petitioner for a short distance, Petitioner continued to weave and Nelson turned on his overhead lights and continued to follow Petitioner. (Id. at 36-37). Petitioner did not immediately pull over. Id. at 37-38). Petitioner eventually pulled into a gravel parking area, got out of his car, locked it leaving his headlights on, and started walking briskly away. ( Id. at 41). Nelson approached Petitioner, grabbed his arm, stated that he needed to talk to him, and then smelled alcohol on his breath. ( Id. at 42-43). Officer Nelson testified that Petitioner would not cooperate with the administration of the gaze field sobriety test, and the ground was not proper for administering other field sobriety tests. ( Id. at 45). Nelson made a determination that Petitioner was intoxicated and he arrested Petitioner.
( Id.), Nelson impounded Petitioner's vehicle and performed an inventory search. ( Id. at 46). During the inventory search, Nelson found a gun in the glove compartment of Petitioner's car. ( Id.),
Nelson testified that on the way to the jail, Petitioner began thrashing and kicking in the back of the squad car. ( Id. at 48-49). Nelson testified that when they arrived at the jail Petitioner managed to undo his seatbelt and open the door himself. ( Id. at 49). Officer Nelson then sprayed him with mace. ( Id.),
Once inside the jail, Officer Reinert processed Petitioner and conducted the breathalyzer test. ( Id. at 111-17). Officer Reinert testified that after he read Petitioner the statutory warning consisting of his Miranda rights, Petitioner stated he had five to six sixteen ounce beers, that he was drunk, and that he had a loaded gun in his vehicle. ( Id. at 115-117). Petitioner was administered two breathalyzer tests. One test measured his alcohol level at .160 and the other test measured a level of .142. ( Id. at 126-127). Ronald Oliver, breath alcohol technical supervisor, testified regarding the accuracy of the tests and the breathalyzer machine. ( Id. at 137-169).
After the prosecution rested, Petitioner was questioned outside the presence of the jury. ( Id. at 184-85). Petitioner's attorney asked whether he wanted to testify, and Petitioner declined. ( Id. at 185). Petitioner's attorney also asked if there was any evidence or potential witnesses that could benefit his defense, and Petitioner stated there was none. ( Id.), The defense rested. The jury found Petitioner guilty of both charges and sentenced him to twenty-five years imprisonment. (Tr. Vol. 6 at pp. 5-8). V. DISCUSSION
A. Procedural Bar
Respondent argues that Petitioner's claims four, six(a) and (b), seven, nine through fourteen, sixteen through eighteen and twenty through twenty-two (b) and (c) are procedurally barred.
Federal courts may not review a state court decision that rests on an adequate and independent state procedural default, unless the habeas petitioner shows cause for the default and "prejudice attributable thereto" or demonstrates that the failure to consider the federal claim will result in a "fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989). When the last state court to review a claim clearly and expressly states that its judgment rests on a procedural bar, the procedural default doctrine generally bars federal review. Id; Lowe v. Scott, 48 F.3d 873, 875 (5th Cir. 1995).
In this case, Respondent urges the Court to find these claims procedurally barred for failure to present them to the Texas Court of Criminal Appeals either in a petition for discretionary review or a state writ. When a claim has not been reviewed by the state's highest court, this Court may find such claim procedurally barred. See Coleman v. Thompson, 501 U.S. 722 n. 1 (1991). The general rule that a state court must explicitly apply a procedural bar to preclude federal review does not apply when a petitioner has not presented his claims to the highest court of the state and the state court to which he would be required to present his claims would now find the claims procedurally barred. Id.
Respondent argues that claims twenty-two (b) and (c) are procedurally barred because although Petitioner presented these claims in his PDR, he did not raise them on direct review or in his state habeas petitions. See Myers v. Collins, 919 F.2d 1074, 1077 (5th Cir. 1990).
Petitioner admits he has not presented these claims to the Texas Court of Criminal Appeals. ( See Pet. p. 11). If this Court required him to do so, the claims would be subject to dismissal under the Texas abuse-of-the-writ doctrine. Tex. Code Crim. Pro. Ann. art. 11.07, § 4. That doctrine "prohibits a second [state] habeas petition, absent a showing of cause, if the applicant urges grounds therein that could have been, but were not, raised in his first habeas petition." Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997) (footnote omitted). "[A]rticle 11.07 § 4 is an adequate and independent state procedural ground to bar federal habeas review and . . . has been strictly and regularly applied since 1994." Smith v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000). When such a state procedural ground exists, "federal courts ordinarily will not review questions of federal law. . . . " Id. (citing Coleman v. Thompson, 501 U.S. 722, 729 (1991)).
Petitioner does not admit he failed to raise claim four before the state courts. A review of the record, however, shows this claim was not raised.
To overcome the procedural bar established by the abuse-of-the-writ doctrine, a petitioner must demonstrate: (1) cause for the procedural default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider his claims will result in a fundamental miscarriage of justice." Id. at 524. Petitioner has shown no cause for his failure to present these claims to the Texas Court of Criminal Appeals.
Petitioner has also failed to demonstrate the need to prevent a miscarriage of justice. This exception is "confined to cases of actual innocence, `where the petitioner shows, as a factual matter, that he did not commit the crime of conviction.'" Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999). To establish the required probability that he was actually innocent, a petitioner must support his allegations with new, reliable evidence that was not presented at trial and must show it was more likely than not that no reasonable juror would have convicted him in light of the new evidence. Id. (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)). Petitioner has presented no new, reliable evidence showing that it was more likely than not that no reasonable juror would have convicted him. Petitioner has not overcome the state procedural bar. Accordingly, the procedural default doctrine bars federal habeas relief on these claims.
B. Standard of Review
The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254, provide:
d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted 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 a State court proceeding.28 U.S.C.A. § 2254(d). Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus 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 from the United States Supreme Court on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 380-84 (2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. See Williams, 529 U.S. at 307.
This amendment applies to all federal habeas corpus petitions which were filed after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2049, 138 L.Ed.2d 481 (1997). The petition in this case is subject to review under the AEDPA.
C. Confession
Petitioner argues his statements while in the intoxilyzer room that he was drunk and that he had a loaded gun in the car should have been suppressed because they were coerced. He states that he terminated the custodial interrogation by saying "I'm guilty, I'm guilty, you don't have to say anything else." (Mem. p.l). It appears Petitioner is arguing that by his statement, he invoked his right to remain silent. Once Miranda warnings are given, if a suspect "indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogations must cease." Miranda v. Arizona, 384 U.S. 436, 473-74 (1966). Petitioner's statement, however, does not show that he invoked his right to remain silent. See West v. Johnson, 92 F.3d 1385, 1403 (5th Cir. 1996) (finding detective's testimony that suspect said he "didn't want to tell us anything about it," was not an invocation of the right to remain silent but rather a denial of involvement in the crime); see also Barnes v. Johnson, 160 F.3d 218, 224-25 (5th Cir. 1998) (holding that when suspect answered "no" to question of whether he waived his right, this was not invocation because it was evident he misunderstood the question and continued to talk); Burket v. Angelone, 208 F.3d 172, 200 (4th Cir. 2000) (holding statements such as "I just don't think I should say anything," are not clear assertions); Soffar v. Cockrell, 300 F.3d 588, 593 (5th Cir. 2002) (finding officer's statement that he had "hit a brick wall" in trying to talk to suspect does not show suspect invoked his right to remain silent). Petitioner did not clearly invoke his right to remain silent. His claims should be denied.
Petitioner also argues his confession was coerced because he was sprayed with mace when he arrived at the jail. To establish that a confession was involuntary, a defendant must show that it resulted from coercive police conduct and that there is a link between the coercive conduct and the confession. See Colorado v. Connelly, 479 U.S. 157, 163-65 (1986). In this case, Officer Nelson testified that Petitioner was thrashing and kicking around in the back of the squad car while on the way to the jail. (Tr. Vol. 4, pp. 48-49). Once they arrived at the jail, Petitioner managed to unlock the door and exit the car. ( Id. at 49). Officer Nelson testified that Petitioner was maced at that point to get him under control. ( Id.), Petitioner has not shown any connection to his being maced while exiting the squad car and his later decision to make admissions while in the intoxilyzer room. Petitioner's claims should be denied.
D. Fourth Amendment Claims
Petitioner argues: (1) there was no probable cause for his arrest; (2) evidence of the handgun should have been suppressed because it was found as the result of an illegal arrest and illegal search; and (3) the appellate court erred when found the inventory search of his car to be a valid search.
A federal court cannot entertain a Fourth Amendment claim brought by a habeas petitioner attacking his state court conviction if the petitioner had an opportunity for full and fair litigation of that claim in the state courts. Stone v. Powell, 428 U.S. 465, 495 (1976); Jones v. Johnson, 171 F.3d 270, 278 (5th Cir. 1999). The Fifth Circuit has held that the Stone bar applies even when the state court erred in deciding the merits of the defendant's Fourth Amendment claim. Swicegood v. Alabama, 577 F.2d 1322, 1324-25 (5th Cir. 1978).
An "opportunity for full and fair litigation" means just that: an opportunity. If a state provides the processes whereby a defendant can obtain full and fair litigation of a fourth amendment claim, Stone v. Powell bars federal habeas corpus consideration of that claim whether or not the defendant employs those processes.Carver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978).
In this case, Petitioner had a full and fair opportunity to challenge the legality of his arrest, the search of his car and the gun evidence at trial and in a motion to suppress. Petitioner's Fourth Amendment challenges are therefore barred from consideration under Stone and Carver.
E. Biased jurors
Petitioner argues that jury members were biased because they were victims of drunk drivers. The record reflects that a number of prospective jurors had experiences with intoxicated drivers. (Tr. Vol. 3 pp. 143-49). Only one of these prospective jurors, Ms. Carrington, was actually selected as a juror. ( Id. at 168). Juror Carrington stated that seventeen years earlier she was in a car that was rear-ended by a drunk driver. ( Id. at 146). Juror Carrington stated that the incident would not influence her in reaching a decision in the case. ( Id.), Petitioner has not shown that this juror was biased. Petitioner's conclusory allegations fail to raise a colorable basis for habeas corpus relief. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (emphasizing that mere conclusory allegations do not raise constitutional issues in habeas proceedings). Petitioner's claim should be denied.
F. Miscellaneous Claims
Petitioner makes a number of unsupported allegations. He argues the trial judge selected juror Sellers as foreperson so that Sellers could mislead the jury. Petitioner does not state any evidence regarding this claim and he does not state how Juror Sellers allegedly misled the jury. Petitioner also argues the trial transcripts were tampered with and that the police officers offered perjured testimony. Petitioner submits no evidence on any of these claims. Petitioner's conclusory allegations fail to raise a colorable basis for habeas corpus relief. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (emphasizing that mere conclusory allegations do not raise constitutional issues in habeas proceedings). Petitioner's claims should be denied.
G. Ineffective Assistance of Counsel
To sustain a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), Petitioner must show that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense so gravely as to deprive Petitioner of a fair trial. Id. at 687. In Strickland, the Court stated that "[j]udicial scrutiny of counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689. Courts, therefore, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.
Even if counsel is proven deficient, a petitioner must prove prejudice. To prove such prejudice, Petitioner must show "a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional errors." Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999) (citing Strickland, 466 U.S. at 694). "[T]he mere possibility of a different outcome is not sufficient to prevail on the prejudice prong." Id. "Rather, the defendant must demonstrate that the prejudice rendered sentencing `fundamentally unfair or unreliable.'" Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).
In this case, Petitioner claims his counsel was ineffective because counsel gave "illegal" evidence to the prosecutor and the jury. (Pet. Mem. p. 14). Petitioner does not state what this evidence was or why it was "illegal." Petitioner also does he submit any evidence on this claim. Petitioner's conclusory allegations fail to raise a colorable basis for habeas corpus relief. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (emphasizing that mere conclusory allegations do not raise constitutional issues in habeas proceedings). Petitioner's claim should be denied.
H. Conclusion
Petitioner has not shown that the state court's decision to deny relief is either contrary to clearly established federal law, or is unreasonable in light of the evidence presented. The petition should therefore be denied. RECOMMENDATION
For the foregoing reasons, the Court recommends the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied with prejudice for failure to make a substantial showing of the denial of a federal right.