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Gradney v. Cockrell

United States District Court, N.D. Texas, Lubbock Division
Apr 22, 2002
Civil Action No. 5:00-CV-0160-C (N.D. Tex. Apr. 22, 2002)

Opinion

Civil Action No. 5:00-CV-0160-C

April 22, 2002


ORDER


Petitioner Grayling T. Gradney ("Petitioner"), acting pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 complaining that there was insufficient evidence to support his conviction and sentence for murder and his trial counsel provided ineffective assistance of counsel. Respondent filed an Answer with Brief in Support and copies of Petitioner's relevant state court records. Petitioner has filed a response and objections to the answer.

Respondent has lawful and valid custody of Petitioner pursuant to a judgment and sentence of the 132nd Judicial District Court of Scurry County, Texas, in cause no. 6807, styled The State of Texas v. Grayling Thomas Gradney. Petitioner was charged by indictment in cause no. 6807 with the felony offense of murder. A jury subsequently found him guilty of murder and on January 17, 1996, sentenced him to ninety-nine (99) years' incarceration in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"). Petitioner's conviction and sentence were affirmed on direct appeal by the Eleventh District Court of Appeals on June 8, 1998. The Texas Court of Criminal Appeals refused his petition for discretionary review on December 8, 1999. Although Petitioner filed a state application for a writ of habeas corpus on December 23, 1999, the Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court without a hearing on March 29, 2000.

STANDARD OF REVIEW

Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"); therefore, the AEDPA standards apply. See Lindh v. Murphy, 521 U.S. 320 (1997) (holding that all non-capital federal writs of habeas corpus filed on or after April 24, 1996, are subject to the AEDPA). The AEDPA enacted the present 28 U.S.C. § 2254(d) which provides that a state prisoner may not obtain federal 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 proceeding.

"Adjudication on the merits" is a habeas term of art which refers to the state court's disposition; that is, whether the state court's disposition was substantive or procedural as opposed to the quality of the review. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). In Texas writ jurisprudence, a "denial" of relief usually serves to dispose of the merits of claims. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). See Exparte Torres, 943 S.W.2d 469, 474 (Tex.Crim.App. 1997) (holding that "denial" signifies the Court of Criminal Appeals addressed and rejected the merits of a state habeas claim, while "dismissal" signifies the Court declined to consider the claim for reasons unrelated to the merits).

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." Williams v. Taylor, 529 U.S. 362, 412-13 (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. at 413. "Distinguishing between an unreasonable and an incorrect application of federal law, [the Supreme Court] 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, 529 U.S. at 410, 411).

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).

Findings of fact made by the state courts should be presumed correct unless the petitioner rebuts such findings with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). See Jackson v. Anderson, 112 F.3d 823, 824 (5th Cir. 1997) (holding that the burden of rebutting the presumption was made more onerous by the AEDPA's amendment to § 2254).

DISCUSSION

The Court understands Petitioner to complain that there was insufficient evidence to support his conviction and sentence for murder and his counsel was constitutionally ineffective because he failed to investigate, interview witnesses, communicate with the Petitioner, prepare for trial, make a Batson objection at the close of voir dire, give an opening statement, discover mitigating evidence, and thoroughly conduct direct examination of Petitioner when he testified.

(1) Insufficient Evidence

Petitioner complains that the prosecution failed to present sufficient evidence to support his conviction for the felony offense of murder. He raised this claim on direct appeal and argued that the shooting was an accident and therefore the evidence was insufficient to prove that he knowingly or intentionally shot the victim. The Eleventh District Court of Appeals summarized the facts as follows:

[Gradney] and Carolyn Carr, the victim, were living together in Snyder. On August 25, 1995, [Gradney], the victim, and [Gradney's] 10-year old son went to the store to rent a movie. On the way, [Gradney] and the victim began arguing. When [Gradney] refused to pull over, the victim jumped out of the van while it was going about 45 miles per hour. [Gradney] stopped, but he could not see the victim and continued on to the video store. On the way back, [Gradney] and his son pulled over and looked around the area. They did not find the victim. After a while, [Gradney] phoned the victim's daughter, Jacqueline Carr, to tell her what happened. While [Gradney] was on the phone, the victim came in limping and bleeding. The victim was yelling and cursing and refused to talk to her daughter on the phone. Jacqueline heard her mottier say that she was packing her clothes and going home. The arguing continued, and [Gradney's] son was asked to go outside and play. From that time until the victim's death, there was no one in the trailer house except for [Gradney] and the victim.
When officers arrived at the scene, appellant told them that "Carolyn killed herself." [Gradney] told Officer Patrick Coggins that the victim had dared him to shoot her. In his written statement, [Gradney] said that "[he] kind of grabbed the gun with both hands . . . her head was real close to [his] head . . . maybe a foot or two. . . . As soon as the gun hit [his] arm, it went off." Officer Jerry Cowin found the shotgun to be 51 inches in length, over 36 inches from the trigger to the end of the barrel. While the evidence showed that [Gradney] had no blood or brain matter on his clothing, [he] did have the victim's blood on his hands. [Gradney] stipulated that there was shotgun residue on the palms of his hands and only on the back of the victim's right hand.
[Gradney] testified that, after his son went outside, the victim went into the bedroom and got the shotgun out of the closet. She then carried it "barrel-up" under her arm through the trailer house to the back bedroom. [Gradney] testified that he followed her and that, when he entered the bedroom, the victim turned and swung the butt of the gun up at him. The gun caught him on the arm and "went off." [Gradney] also testified that he could not really recall what had happened that night. He did not remember details that were written in his statement. He did riot remember talking to officers at the scene.
There was conflicting testimony regarding whether the gun was already loaded. Richard D. Crumley, a firearm and toolmark expert, testified that there was difficulty in loading the gun and that he could not get it to misfire during the tests he conducted on the gun. Dr. Sparks P. Veasey, III, the medical examiner, testified that, based on the bloodstain pattern, the injuries were inconsistent with [Gradney's] version of how the gun discharged. Tom Bevel, a bloodstain pattern expert, also testified as to the position of the victim at the time of the shooting. Bevel believed that the victim would have been bent over at the waist, looking away from [Gradney]. The primary bloodstain was on the bedroom wall, approximately 32-35 inches from the floor.
. . . [T]he wound was an "angled near contact wound." Only [Gradney] and the victim were present at the time of the shooting. The "entrance wound" was in the upper left neck, under the jaw. The "exit wound" was from the victim's nose up into her hair on the right side of her head. The bloodstain on the wall was less than three feet from the floor. [Gradney] had "metal tracings" on his hand, the victim did not. . . .

The state appellate court then determined that a "person commits the offense of murder if he intentionally or knowingly causes the death of an individual." See Tex. Penal Code § 19.02(b)(1) (West 1994). Using the standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979), the state appellate court determined that the evidence was "legally . . . sufficient to support the jury's verdict."

Petitioner also challenged the sufficiency of the evidence in his state habeas application. The state habeas court concluded that because the appellate court thoroughly considered the issue on direct appeal and determined that "the evidence was both legally and factually sufficient to support the jury's finding that [Petitioner] committed the offense of murder," Petitioner could not raise the issue of sufficiency in his state habeas application. See West v. Johnson, 92 F.3d 1385, 1398 n. 18 (5th Cir. 1996) (noting that the Texas Court of Criminal Appeals "has long held that the sufficiency of the evidence may only be raised on direct appeal, and may not be raised in state habeas"). Because the claim was raised on direct appeal and considered on the merits by the state appellate court, however, this Court finds that the claim was clearly adjudicated on the merits.

"Habeas relief under section 2254 on a claim of insufficient evidence is appropriate only `if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" West v. Johnson, 92 F.3d at 1393 (quoting Jackson v. Virginia, 443 U.S. at 317). "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 by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Carter v. Johnson, 131 F.3d 452, 460 (5th Cir. 1997).

Petitioner has failed to present clear and convincing evidence to rebut the presumption that the state-court findings of fact are correct. Although he argues that there were conflicts in the evidence which should have been resolved in his favor, "a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not appear affirmatively in the record — that the trier of fact resolved any such conflicts in favor of the prosecution," and the federal habeas court "must defer to that resolution." Jackson v. Virginia, 443 U.S. at 326.

After reviewing the facts as determined by the state appellate court "in the light most favorable to the prosecution," this Court finds that "any rational trier of fact could have found the essential elements of the [felony offense of murder] beyond a reasonable doubt." See Donahue v. Cain, 231 F.3d 1000, 1004 (5th Cir. 2000) (internal quote and citations omitted) (holding that a federal habeas court must determine "whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt").

Accordingly, the Court finds that Petitioner has failed to demonstrate that the state court adjudication was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).

(2) Ineffective Assistance of Counsel

Petitioner next complains that his counsel was constitutionally ineffective. He specifically argues that his trial counsel "made no attempts to investigate the crime scene or interview reliable witnesses"; failed to develop the fact that the shotgun had excessive oil on it preventing the lifting of fingerprints; met with Petitioner so few times that he could not adequately prepare for trial; failed to object to a venire person's removal for cause from the jury panel and did not raise a Batson challenge to the jury; called witnesses to testify who damaged his defense; inadequately conducted direct examination of the Petitioner and allowed the prosecution to "grill and badger" Petitioner "for well over (30) thirty into nearly (40) forty pages of cross-examination . . ."; failed to advise Petitioner of the defense strategy and the pretrial motions; and committed numerous trial errors.

To establish a claim for ineffective assistance of counsel, Petitioner must demonstrate that his counsel's performance was both objectively deficient and prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). "Failure to make the required showing ofeither deficient performance or sufficient prejudice defeats the ineffectiveness claim." Id. at 700 (emphasis added).

To demonstrate "deficient performance," he must show that his attorney's performance was "professionally unreasonable in light of all the circumstances" at the time of the performance. Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999). The Supreme Court has determined that "[j]udicial scrutiny of counsel's performance must be highly deferential" because

[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.
Strickland v. Washington, 466 U.S. at 689 (internal quotations and citations omitted). See Neal v. Puckett, 239 F.3d 683, 687 (5th Cir. 2001) (holding that in considering whether an attorney's performance was objectively reasonable, a court "must determine whether there is a gap between what counsel actually did and what a reasonable attorney would have done under the circumstances").

To demonstrate "prejudice," Petitioner must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Simply alleging prejudice will not suffice; the petitioner must affirmatively prove prejudice. Deville v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994). Thus, the allegation of a mere possibility of a different outcome would not permit a court to find prejudice. Lamb v. Johnson, 179 F.3d 352, 358 (5th Cir. 1999).

A state court's findings of fact made in the course of deciding a claim of ineffective assistance of counsel are entitled to a presumption of correctness, but the "ultimate conclusion that counsel did not render ineffective assistance . . . is a legal question which must be reviewed de novo. Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995); Wheat v. Johnson, 238 F.3d 357, 362 (5th Cir. 2001). The ultimate determination whether counsel was constitutionally effective is therefore a mixed question of law and fact that is reviewed under subsection (d)(1) of § 2254. Kitchens v. Johnson, 190 F.3d 698, 700 (5th Cir. 1999).

The state habeas court considered Petitioner's claims of ineffective assistance of counsel and determined that "[f]rom the court's review of the record, the court's independent recollection of the trial of this case, and the affidavit furnished the court by trial counsel, the court finds that the applicant's complaint regarding the effectiveness of his trial counsel is without merit."

This Court has examined Petitioner's pleadings carefully and finds that he has failed to affirmatively demonstrate that his counsel's performance, even assuming that it was objectively deficient, prejudiced his defense. See Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995) (holding that an ineffective assistance claim may be disposed of solely on a petitioner's failure to meet either of the Strickland requirements). For example, Petitioner's argument "that a minimum of investigation and preparation and communicative efforts would have altered the outcome in the trial proceedings" is vague and unsupported by specific facts. Although he lists several "facts" which he claims could have been discovered if his attorney had conducted a thorough investigation, Petitioner fails to demonstrate that such facts would have altered the outcome of the trial. See Lockett v. Anderson, 230 F.3d 695, 713 (5th Cir. 2000) (quoting United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989) ("A defendant who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial.")). Petitioner likewise names several witnesses that could have been called to testify, but he does not state exactly what their testimony would have been or demonstrate that such testimony would have been favorable to his defense. See Alexander v. McCoter, 775 F.2d 595, 602 (5th Cir. 1985) (holding that claims of ineffective assistance for failure to call a witness must be supported by evidence of the witness's identity and the content of the witness's testimony; a demonstration that such testimony would have been favorable; and an allegation that such witness would have testified). In light of the evidence presented at trial and his failure to provide specific facts showing how the alleged deficiencies could have altered the outcome of his trial, Petitioner has demonstrated, at most, that there is a mere possibility that but for his counsel's performance, the outcome of his trial would have been different.

"Proving an allegation of ineffective assistance of counsel requires a very strong showing by the defendant." United States v. Samuels, 59 F.3d 526, 529 (5th Cir. 1995). Petitioner has failed to make this showing because his conclusory allegations of prejudice are insufficient to support his claim of ineffective assistance of counsel. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (citing Ross v. Estelle, 694 F.2d 1008, 1013 (5th Cir. 1983) (holding that conclusory allegations unsupported by any specific facts do not merit a federal court's attention)).

Accordingly, the Court finds that Petitioner has failed to demonstrate that the state court's adjudication of his claim of ineffective assistance was "contrary to, or involved an unreasonable application of, clearly established Federal law. . . ." 28 U.S.C. § 2254(d)(1).

CONCLUSION

For the reasons stated above, the Court finds that Petitioner's Petition for Writ of Habeas Corpus should be DENIED and dismissed with prejudice.

SO ORDERED.


Summaries of

Gradney v. Cockrell

United States District Court, N.D. Texas, Lubbock Division
Apr 22, 2002
Civil Action No. 5:00-CV-0160-C (N.D. Tex. Apr. 22, 2002)
Case details for

Gradney v. Cockrell

Case Details

Full title:GRAYLING T. GRADNEY, Petitioner, v. JANIE COCKRELL , Director, Texas…

Court:United States District Court, N.D. Texas, Lubbock Division

Date published: Apr 22, 2002

Citations

Civil Action No. 5:00-CV-0160-C (N.D. Tex. Apr. 22, 2002)