June 5, 2000
MEMORANDUM OPINION AND ORDER
Petitioner Robert Kenneth Leasure has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application is denied.
Petitioner was convicted of aggravated sexual assault of a child and sentenced to life imprisonment. His conviction was reversed due to ineffective assistance of counsel at sentencing and the case was remanded for a new punishment hearing. Leasure v. State, No. 05-95-01763-CR (Tex.App.-Dallas, Oct. 1, 1997). Upon retrial, petitioner received a life sentence and was fined $10,000. He filed a notice of appeal which was later withdrawn. Leasure v. State, No. 05-98-01824-CR (Tex.App. — Dallas, Nov. 19, 1998). Instead, petitioner collaterally attacked his conviction and sentence in an application for writ of habeas corpus. The trial court made written findings and recommended that the application be denied. The Texas Court of Criminal Appeals denied habeas relief without written order. Ex parte Leasure, No. 40,740-01 (Tex.Crim.App. March 31, 1999). Petitioner then filed this action in federal court.
This is the third time petitioner has sought habeas relief in federal court. His first petition was dismissed without prejudice for lack of subject matter jurisdiction. Leasure v. Bowles, No. 3-98-CV-1652 (N.D. Tex. Oct. 13, 1998), findings adopted, (Oct. 26, 1998). The second case was dismissed without prejudice for failure to exhaust state remedies. Leasure v. State, No. 3-98-CV-2604 (N.D. Tex. Nov. 5, 1998), findings adopted (Dec. 2, 1998).
II.Petitioner challenges his state court conviction on six grounds. He contends that: (1) he was denied a speedy trial; (2) the prosecutor engaged in numerous acts of misconduct; (3) his retrial after dismissal of his first federal habeas petition constituted double jeopardy; (4) he received ineffective assistance of counsel; (5) his due process rights were violated; and (6) the evidence was insufficient to support his conviction.
The standard of review in federal habeas proceedings is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Under the AEDPA, a petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding 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 Supreme Court of the United States] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). An "unreasonable application" of clearly established federal law is one in which "the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoners s case." Id. A state court decision is entitled to deference unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).
A Dallas County grand jury indicted petitioner for aggravated sexual assault of a child under 14 years of age. The indictment was returned on March 14, 1994. Petitioner was taken into custody on or about July 19, 1994. He remained incarcerated for 16 months before the case proceeded to trial on November 13, 1995. Petitioner now contends that this delay violated his right to a speedy trial under the Sixth Amendment to the United States Constitution.
There is no direct evidence of the date petitioner was arrested. However, the judgment reflects that he was given credit on his sentence from July 19, 1994. (App. Tr. at 64).
The Sixth Amendment guarantees a defendant in a criminal case the right to a speedy trial. U.S. CONST. amend VI; Barker v. Wingo, 407 U.S. 514, 519-22, 92 S.Ct. 2182, 2186-88, 33 L.Ed.2d 101 (1972). The court must consider four factors in order to determine whether this right has been violated: (1) the length of delay; (2) the reason for the delay; (3) when the defendant asserted his right; and (4) prejudice to the defendant resulting from the delay. Id., 92 S.Ct. at 2192; United States v. Lucien, 61 F.3d 366, 371 (5th Cir. 1995). The threshold inquiry is the length of delay. Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 2690-91, 120 L.Ed.2d 520 (1992). If the delay between the date of arrest or indictment and the date of trial is presumptively prejudicial, the court must make specific findings regarding the other three factors. Robinson v. Whitley, 2 F.3d 562, 568 (5th Cir. 1993), cert. denied, 114 S.Ct. 1197 (1994).
Petitioner was not tried until 20 months after his indictment and 16 months after his arrest. The Fifth Circuit has held that such a delay is presumptively prejudicial. Robinson, 2 F.3d at 568 (delay of more than one year between date of arrest or indictment and date of trial is presumptively prejudicial); United States v. Garcia, 995 F.2d 556, 560 (5th Cir. 1993) (same). Therefore, the Court must examine the other Barker factors.
The reasons for the delay are not adequately explained by either party. The record shows that petitioner's case was set for trial three times — October 31, 1994, February 13, 1995, and June 26, 1995. (App. Tr. at 5). A jury was finally empaneled and sworn on November 13, 1995. ( Id.). Respondent suggests that a reasonable inference can be drawn that the trial was delayed due to the pendency of a related case. (Resp. Answer at 8). Petitioner does not controvert this explanation or offer one of his own. In any event, there is no evidence that the delay was a deliberate attempt by the state to hamper the defense. It is more likely that the delay was occasioned by negligence or an overcrowded docket. Such a neutral reason should be weighed less heavily against the state. See Barker, 92 S.Ct. at 2192; Lucien, 61 F.3d at 371.
Petitioner was charged by separate indictment with sexually assaulting Shannon Meeks, the sister of the complaining witness in this case. The Meeks case was tried on June 28, 1995. (Habeas Tr. at 35).
The Court further notes that petitioner did not assert his right to a speedy trial until July 24, 1995. (App. Tr. at 6). A second motion was filed on August 22, 1995. (Id. at 10). The case proceeded to trial less than three months later. Petitioner's silence for more than a year after his arrest is a factor weighing against him. Robinson, 2 F.3d at 569, citing United States v. Palmer, 537 F.2d 1287, 1288 (5th Cir. 1976), cert. denied, 98 S.Ct. 738 (1978).
Although petitioner claims that he instructed his attorney to file a motion for speedy trial three months after his arrest, he learned a short time later that no such motion had been filed. (Pet. Brief at 8). Petitioner makes no attempt to explain why he waited until July 24, 1995 to file his own motion for speedy trial.
Finally, petitioner argues that he was prejudiced by the delay in bringing him to trial. Three types of prejudice may result from post-indictment delay: (1) oppressive pretrial incarceration; (2) anxiety and concern of the accused; and (3) the possibility that the defense will be impaired. Doggett, 112 S.Ct. at 2692; Cowart v. Hargett, 16 F.3d 642, 647 (5th Cir.), cert. denied, 115 S.Ct. 227 (1994). Petitioner offers no evidence that his pretrial incarceration was oppressive or that he experienced undue anxiety and concern. Rather, petitioner contends that his ability to present a defense was impaired by the delay. At issue is the testimony of three alibi witnesses. According to petitioner, two of the witnesses disappeared and the other witness died while this case was pending.
Indeed, it would be difficult for petitioner to establish prejudice based on these factors since he also was in custody on charges in a related case. See Cowan, 16 F.3d at 647; Russell v. Lynaugh, 892 F.2d 1205, 1216 (5th Cir. 1989), cert. denied, 111 S.Ct. 2909 (1991).
Petitioner brought this matter to the trial court's attention after the state rested its case-in-chief. He told the judge:
I would like — in the last 18 months I have been incarcerated, two of my main character witnesses, R.C. Miller, C.D. Cole, have disappeared. Can't find them. The woman that was supposed to testify today and possibly in the other court case, she's dying, due to the time I have been incarcerated. I would like to ask for a dismissal — not dismissal, but a dismissal of this Court under the conditions that I have been treated as being prejudiced against.
(SF-II at 100). Defense counsel was unable to comment on R.C. Miller or C.D. Cole. However, he confirmed that Lou Hanlin was in a nursing home suffering from terminal emphysema. ( Id. at 100-01). The prosecutor noted that none of these witnesses were called to testify in a companion case tried six months earlier. ( Id. at 101). The trial court declined to dismiss the charges on that basis. ( Id.).
The Court is unable to conclude that petitioner was prejudiced due to the unavailability of Miller, Cole, or Hanlin. First, neither petitioner nor his attorney took adequate steps to preserve the testimony of these witnesses for trial. See Robinson, 2 F.3d at 571 (no harm from delayed trial where defendant failed to take adequate steps to preserve testimony). Moreover, there is no offer of proof as to the content of the missing testimony. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (court cannot grant habeas relief unless petitioner makes affirmative showing of missing evidence or testimony). Under the facts presented, petitioner has failed to establish a violation of his constitutional right to a speedy trial. See also United States v. Crosby, 713 F.2d 1066, 1078-79 (5th Cir.), cert. denied, 104 S.Ct. 506 (1983) (speedy trial violation under Sixth Amendment requires proof of actual, substantial prejudice or evidence of intentional, tactical delay by prosecution).
Next, petitioner contends that the prosecutor violated his right to a fair trial by failing to disclose exculpatory evidence and presenting false testimony. This claim fails for at least two reasons. First, petitioner does not identify the evidence allegedly withheld or the witnesses who allegedly perjured themselves. Second, there is no showing that this evidence was favorable to the defense or that the prosecutor knew the testimony was false. See Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993) (petitioner must prove that prosecutor withheld favorable evidence in order to establish Brady violation); Blackmon v. Scott, 22 F.3d 560, 565 (5th Cir.), cert. denied, 115 S.Ct. 671 (1994) (grant of habeas relief based on use of perjured testimony requires showing that testimony was actually false, prosecutor knew it was false, and evidence was material). Petitioner's conclusory assertions of prosecutorial misconduct are insufficient to support a claim for habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
Petitioner further maintains that his retrial after dismissal of his first federal habeas petition constituted double jeopardy. This claim is patently frivolous. The record shows that petitioner sought federal habeas relief after his conviction was reversed by the state court of appeals. This Court dismissed the petition as moot because "petitioner is no longer in custody under the judgment he seeks to attack. Rather, he is in custody pending retrial on the same charges." Leasure v. Bowles, No. 3-98-CV-1652 (N.D. Tex. Oct. 13, 1998), findings adopted, (Oct. 26, 1998). Thereafter, petitioner was resentenced at a second punishment hearing. It is clear that only a single punishment has been imposed for this offense. Consequently, there is no double jeopardy violation. See United States v. Dixon, 509 U.S. 688, 695-96, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993) (double jeopardy clause prohibits multiple punishments for the same offense).
Finally, petitioner contends that: (1) he received ineffective assistance of counsel; (2) his due process rights were violated; and (3) the evidence was insufficient to support his conviction. Respondent argues that these claims are procedurally barred from federal habeas review.
A federal court may not consider the merits of a habeas claim if a state court has denied relief due to a procedural default. Sawyer v. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992); Ellis v. Lynaugh, 873 F.2d 830, 837-38 (5th Cir.), cert. denied, 110 S.Ct. 419 (1989). Only procedural rules that are firmly established and regularly followed by state courts can prevent habeas review of federal constitutional rights. Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426, 72 L.Ed.2d 824 (1982); Smith v. Black, 970 F.2d 1383, 1386 (5th Cir. 1992), cert. denied, 115 S.Ct. 151 (1994). Under Texas law, a defendant cannot challenge the sufficiency of the evidence in an application for writ of habeas corpus. Ex parte McClain, 869 S.W.2d 349, 350 (Tex.Crim.App. 1994). A state prisoner who fails to present such a claim to the Texas Court of Criminal Appeals in a petition for discretionary review is procedurally barred from raising the issue in state court and cannot obtain federal habeas relief on that basis. See Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991).
Similarly, article 11.071 of the Texas Code of Criminal Procedure prohibits a second habeas petition if the petitioner urges grounds therein that could have been, but were not, raised in his first habeas petition. See TEX. CODE CRIM. PROC. ANN. art. 11.071, § 5 (Vernon Supp. 2000) This statute constitutes an adequate state procedural bar for purposes of federal habeas review. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied, 115 S.Ct. 2603 (1995), citing Ex parte Barber, 879 S.W.2d 889, 892 n. 1 (Tex.Crim.App. 1994), cert. denied, 115 S.Ct. 739 (1995). The procedural bar doctrine also applies to unexhausted claims if the state court would likely dismiss a successive habeas petition under article 11.071. See Coleman, 111 S.Ct. at 2557 n. 1 (1991) (procedural default occurs when prisoner fails to exhaust available state remedies and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred."); Nobles v. Johnson, 127 F.3d 409, 422-23 (5th Cir. 1998), cert. denied, 118 S.Ct. 1845 (1998).
The statute provides, in relevant part, that:
(a) If a subsequent application [for writ of habeas corpus] is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent . . . application unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable: (A) on the date the applicant filed the previous application; or . . .
Petitioner did not challenge the sufficiency of the evidence in a petition for discretionary review and is procedurally barred from seeking federal habeas relief on that basis. McClain, 869 S.W.2d at 350; see also Exparte Williams, 634 S.W.2d 815 (Tex.Crim.App. 1982). Moreover, petitioner did not present his other two claims to the Texas Court of Criminal Appeals in a petition for discretionary review or an application for writ of habeas corpus. The Court finds that a Texas court, presented with a successive habeas petition under these circumstances, would likely find it barred under article 11.071. Consequently, federal habeas relief is not proper. See Coleman, 111 S.Ct. at 2557 n. 1; Nobles, 127 F.3d at 422-23.
Petitioner's application for writ of habeas corpus is denied. The Court will enter a final judgment by separate order.
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(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; . . .
TEX. CODE CRIM. PROC. ANN. art. 11.071, § 5(a).