Opinion
No. 3:02-CV-338-H.
October 5, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ( With Special Instruction to the Clerk of Court in Footnote 1 )
Pursuant to 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. Parties : Petitioner Chima Agim is an inmate currently incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division. Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
In the state courts and this Court, Petitioner has been referred to as "Chima Agim" and "Agim Chima." (Federal Pet. at 9; Pet'r Mem. in Supp.; Resp't Answer; Pet'r Traverse; Clerk R. at 2, 68.) In this proceeding, he will be referred to as Chima Agim, which is the name he was convicted under and how he was mainly referred to in the state courts. (Clerk R. at 2; State Habeas R. at 17; App. to Proceed IFP at 3.) The Clerk of Court is ORDERED to change Petitioner's name to Chima Agim on the docket of this case.
C. Factual and Procedural History : On April 27, 1998, seven-year-old J.D. told her mother that Agim had touched and rubbed his penis against her genitalia. (2 Rep. R. at 97, 221-24, 226, 228, 230; 3 Rep. R. at 9.) The child also claimed that Agim told her he would cut off her head with a knife if she told anyone about the assaults. ( Id. at 95-96, 100.) Agim was subsequently indicted for aggravated sexual assault of a child. (State Habeas R. at 23.)
At trial, a video that the police had made of J.D. was admitted into evidence. On the video, J.D. said Agim had sexually assaulted her eight times, but she was unable to identify specific dates. (3 Rep. R. at 76-78, 84-86.) Agim testified that he had never been alone with J.D. or touched her inappropriately. (4 Rep. R. at 31-32, 34-35.) He believed that J.D.'s accusations were motivated by conflicts he had with her aunt, whom he was dating. ( Id. at 36-37; 2 Rep. R. at 80.) The jury found Agim guilty and assessed punishment at 25 years' confinement. (Clerk R. at 65.)
The Dallas Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Agim's petition for discretionary review. Agim v. State, No. 5-99-307-CR (Tex.App.-Dallas Feb. 16, 2000, pet. ref'd) (not designated for publication). On April 27, 2001, Agim filed a state application for habeas corpus relief, challenging his conviction. (State Habeas R. at 2.) The State filed a response to Agim's application on May 11, 2001. On September 21, 2001, Agim filed a motion for leave to file an original petition for writ of mandamus, arguing that the trial court should be compelled to rule on his state habeas application and his motion for DNA testing. (Mandamus R. at 3-7.) TEX.R.APP.P. 72.1. The trial court's failure to act on Agim's state habeas application within 20 days after the State responded constituted a finding that there were no controverted, previously unresolved facts material to the legality of the Agim's confinement; thus, the trial court clerk forwarded the application to the Court of Criminal Appeals on November 1, 2001. TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3(c) (Vernon Supp. 2004). (State Habeas R. at 26.) Six days later, the Court of Criminal Appeals denied the motion for leave to file a writ of mandamus. In re Chima, No. 50,463-01 (Tex.Crim.App. Nov. 7, 2001) (not designated for publication). The Court of Criminal Appeals then denied the state habeas application without written order on the findings of the trial court. Ex parte Agim, No. 50,463-02 (Tex.Crim.App. Jan. 2, 2002) (not designated for publication). Agim filed his federal Petition for a Writ of Habeas Corpus in the United States District Court for the Northern District of Texas, Dallas Division, on February 1, 2002 ("Pet."). See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. Issues : Agim argues that (1) the video of J.D. was unconstitutionally taken and should not have been admitted, (Pet. at 4, Mem. at 14-15); (2) the State failed to subpoena favorable witnesses and disclose Brady evidence (Pet. at 4, Mem. at 18-20); (3) the jury was unconstitutionally selected (Pet. at 4); (4) trial counsel was constitutionally ineffective (Pet. at 7-8, Mem. at 7-9.); (5) appellate counsel was constitutionally ineffective and labored under a conflict of interest (Mem. at 1-6, 25-26); (6) the evidence was legally insufficient to support his conviction (Mem. at 10-13, 16-17); (7) the jury charge was defective (Mem. at 12-13); (8) the jury was biased (Mem. at 16-17); and (9) the trial court erred in denying his motion for continuance (Mem. at 21-24).
Although petitioner lists four issues in his federal petition and eleven issues in his memorandum in support of his petition, some of the issues overlap or are mistitled. The Court determines that petitioner raised nine separate claims.
E. Exhaustion : Dretke argues that Agim's claims regarding (1) the video, (2) Brady evidence, (5) appellate counsel's performance, (7) the jury charge, (8) jury bias, and (9) the continuance motion have not been exhausted and are procedurally defaulted. He also asserts that some of Agim's specific allegations attacking counsel's performance at trial (claim 4) have likewise not been exhausted and are procedurally defaulted. Dretke concedes that Agim's remaining allegations have been properly exhausted.
II. EXHAUSTION AND PROCEDURAL DEFAULT
Applicants seeking habeas relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. Picard v. Connor, 404 U.S. 270, 275-76 (1981); Fisher, 169 F.3d at 302. This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
A. Claims Not Raised in State Court
Agim did not raise the following claims in either his petition for discretionary review or his state habeas corpus application: (1) the video was unconstitutionally taped and should not have been admitted; (2) the State failed to subpoena favorable witnesses and disclose Brady evidence; (4) trial counsel was ineffective for (a) forcing him to plea bargain; (b) failing to call the arresting officer as a witness; (c) failing to make timely objections and preserve error for appeal; (5) appellate counsel was constitutionally ineffective and labored under a conflict of interest; (7) the jury charge was defective; (8) the jury was biased; and (9) the trial court erred in denying his motion for continuance. Agim seeks federal habeas relief on factual allegations that were never made in the Texas courts, which renders these claims unexhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
However, Agim cannot return to the Texas court to cure this deficiency. The Texas abuse-of-the-writ doctrine, TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4, prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20.
Agim argues that these claims are not procedurally barred because to bar the claims would result in a miscarriage of justice. (Traverse at 20.) This miscarriage-of-justice argument is necessarily a procedural claim of actual innocence. Schlup v. Delo, 513 U.S. 298, 314 (1995). In other words, this claim of innocence is not an independent constitutional claim, but is a "gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim[s] considered on the merits." Herrera v. Collins, 506 U.S. 390, 404 (1993). Agim must support his miscarriage-of-justice claim with new evidence of his actual innocence. Schlup, 513 U.S. at 316, 324, 329-30. Agim, however, fails to proffer any new, direct evidence that was not admitted at trial to show his actual innocence. Accordingly, these claims are unexhausted and procedurally defaulted. 28 U.S.C. § 2254(b)(2).
Agim does not effectively attempt to excuse his default and, thus, cannot meet the cause-and-prejudice test. Coleman, 501 U.S. at 750.
B. Sufficiency of the Evidence (Claim 6)
Agim argues that the evidence is legally insufficient to support his conviction because J.D.'s accusations were uncorroborated and because the State failed to prove the date, place, and location of the offense. (Mem. at 10-13, 16-17; Traverse at 26-33.) Agim raised his insufficiency challenge solely in his state habeas corpus application. (State Habeas R. at 8.) In its response to Agim's application, the State asserted that sufficiency of the evidence cannot be raised for the first time on collateral review. ( Id. at 20.) See Ex parte McLain, 869 S.W.2d 349, 350 (Tex.Crim.App. 1988) (holding evidentiary sufficiency claims not cognizable in post-conviction, collateral attack); Ex parte Williams, 703 S.W.2d 674, 677 (Tex.Crim.App. 1986) (same). The state trial court made no express ruling on Agim's application; instead, it was forwarded to the Court of Criminal Appeals with an implied finding that there were no controverted, previously unresolved facts material to the legality of the Agim's confinement. The Court of Criminal Appeals denied the application without written order "on the findings of the trial court." Dretke argues that Agim's sufficiency claim is procedurally barred based on the state procedural default that sufficiency of the evidence is not cognizable on post-conviction review, which was necessarily the reason relied on by the Court of Criminal Appeals in denying Agim's application. (Resp't Answer at 13-14.)
Although the Court of Criminal Appeals stated no reasons when it denied habeas relief, that court has long held that the sufficiency of the evidence may only be raised on direct appeal and may not be raised in a state habeas proceeding. West v. Johnson, 92 F.3d 1385, 1389 n. 18 (5th Cir. 1996); McLain, 869 S.W.2d at 350. Indeed, the Court of Criminal Appeals recently reaffirmed that where a state habeas applicant initially challenges the sufficiency of the evidence in a state habeas application and the court subsequently disposes of the application by entering a denial without written order, the applicant's sufficiency claim was denied because it was not cognizable. Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex.Crim.App. 2004). Thus, this procedural default in the state courts procedurally bars this court from addressing the merits of Agim's sufficiency claim.
III. STANDARD OF REVIEW
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings 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 United States Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002) (en banc per curiam), cert. denied, 537 U.S. 1104 (2003).
Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Torres, 943 S.W.2d at 472.
IV. JURY SELECTION
Agim argues that the jury was unconstitutionally selected and empaneled because the trial judge excused for cause veniremember Fay Bruner when she stated she would require medical evidence that a sexual assault occurred before she could convict a person of sexual assault. (Pet. at 8; Mem. at 21-24; Traverse 22-23; 1 Rep. R. at 89-90, 175-76, 179-80.) The state court of appeals held that the trial court erred in sustaining the State's challenge, but further held that no harm had been shown from the error. Agim, No. 5-99-307-CR, slip op. at 7-8. The Court of Criminal Appeals refused Agim's petition for discretionary review raising this same issue. Agim has failed to show that this decision was an objectively unreasonable application of clearly established precedent. E.g., United States v. Parker, 133 F.3d 322, 327 (5th Cir.), cert. denied, 523 U.S. 1142 (1998).
Although Agim states that he is also challenging the selection of the grand or petit jury, his factual allegations relate solely to the jury-selection procedures at his trial.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697.
In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions; rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct, and is presumed to have been adequate. Id. at 689-90. Strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Id. at 690-91.
Agim's remaining complaints about counsel were reviewed and rejected during state collateral review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state court's rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254(d). Agim asserts that trial counsel was constitutionally ineffective when he:
1. would not allow him to make bond;
2. forced him to sign an application for probation;
3. failed to call Uzoma Duru or Deanna as witnesses; and
4. would not allow Agim to take a DNA test to prove his innocence. (Pet. at 8; Mem. at 7-9.)
First, Agim cannot meet the prejudice requirement of the Strickland test. The evidence overwhelmingly establishes Agim's guilt; thus, he cannot show that the result of the trial would have been different had counsel acted differently. Johnson v. Cockrell, 301 F.3d 234, 239 (5th Cir. 2002), cert. denied, 538 U.S. 1001 (2003); Creel v. Johnson, 162 F.3d 385, 396 (5th Cir. 1998), cert. denied, 526 U.S. 1148 (1999).
Second, Agim has failed to show deficient performance. Other than Agim's self-serving allegations, there is no record support for his claims that counsel refused to seek Agim's release on bond, forced Agim to sign a probation application, and would not allow Agim to take a DNA test. These allegations are conclusory and cannot support habeas relief. Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001); Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 531 U.S. 849 (2000); Lincecum v. Collins, 958 F.2d 1271, 1279 (5th Cir), cert. denied, 506 U.S. 957 (1992).
Likewise, Agim's contention that counsel was ineffective for failing to call Duru or Deanna as witnesses fails. Ineffective-assistance-of-counsel complaints regarding uncalled witnesses are not favored on federal habeas corpus review because of their highly speculative nature. Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986), cert. denied, 479 U.S. 1030 (1987); see also Sayre, 238 F.3d at 635-36. For Agim to demonstrate Strickland prejudice, he must show not only that the testimony would have been favorable, but also that the witness would have testified. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). Agim has failed to provide an affidavit or other evidence from the witnesses. The limited and conclusory information Agim provides fails to establish either deficient performance or prejudice. Sayre, 238 F.3d at 636; United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983), cert. denied, 467 U.S. 1251 (1984); United States v. Lang, 159 F.Supp.2d 398, 400 (N.D. Tex. 2001).
Agim has failed to establish ineffective assistance as required by Strickland, and the state courts' rejection of the claim did not involve an unreasonable application of the law to the facts.
VI. SUMMARY
Agim is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Agim was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
VII. EVIDENTIARY HEARING
Upon review of the pleadings filed and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.
VIII. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY the request for habeas corpus relief brought under 28 U.S.C. § 2254.