Opinion
No. 4:02-CV-1030-Y
April 17, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 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 are as follows:
I. FINDINGS AND CONCLUSIONS 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 Daniel Leroy Allen, Sr., TDCJ-ID #924929, is in custody of the Texas Department of Criminal Justice, Institutional Division, in Amarillo, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
In 2000, Allen was charged by indictment in state court with the attempted capital murder and attempted murder of his ex-wife B.P. (Clerk's R. at 3.) At the guilt/innocence phase of trial, B.P. testified that on the morning of March 19, 1999, as she was driving to work, Allen pulled up beside her car and fired three shots toward the driver's side window. (5Rep. R. at 35-48.) The state also introduced evidence that, after B.P. informed Allen that she was going to file for a divorce, Allen made harassing phone calls to her daughter's house where B.P. was living, drove past the house, fired three shots into the house on one occasion, followed her to and from work, and threw rocks at her car. (4Rep. R. at 16-51; 5Rep. R. at 16-20.)
The jury found Allen not guilty of attempted capital murder, but guilty of attempted murder and assessed his punishment at twenty years' imprisonment. (Clerk's R. at 95, 106.) Allen appealed his conviction, and the Second Court of Appeals affirmed the trial court's judgment in a published opinion on March 15, 2001. Allen v. State, 47 S.W.3d 47 (Tex.App.-Fort Worth 2000, pet. ref'd). On August 1, 2001, the Texas Court of Criminal Appeals refused Allen's petition for discretionary review. Allen v. State, No. 859-01 (Tex.Crim.App. Aug. 1, 2001) (not designated for publication). Allen then filed a state application for writ of habeas corpus, which the Texas Court of Criminal Appeals denied without written order. Ex parte Allen, No. 53, 371-01, at cover (Tex.Crim.App. Nov. 27, 2002). He filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on December 17, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Allen raises the following claims:
1. The court of appeals erred in holding that he had not met the second prong of the Strickland standard as to trial counsel's failure to request a reasonable doubt instruction concerning extraneous offenses and bad acts during the punishment phase of trial;
2. The court of appeals erred in holding that he was not egregiously harmed by the trial court's failure to give a reasonable doubt instruction concerning extraneous offenses and bad acts during the punishment phase of trial; and
3. Trial counsel was ineffective by failing to discover and investigate scientific testing conducted by the state and admitted into evidence at trial. (Insert to Pet.)
E. RULE 5 STATEMENT
Cockrell believes that Allen has not sufficiently exhausted available state remedies on the third issue presented and contends that his unexhausted claim is procedurally barred. (Resp't Answer at 5-6.) Applicants seeking habeas corpus 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 court of the state. O'Sullivan v. Boerekel, 526 U.S. 838, 842-48 (1999); Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). For purposes of exhaustion, the Texas Court of Criminal Appeals is the highest court in the state. Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985). Thus, a Texas prisoner may satisfy the exhaustion requirement by presenting both the factual and legal substance of a claim to the Texas Court of Criminal Appeals in either a petition for discretionary review or a state habeas corpus proceeding pursuant to article 11.07 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2003).Allen raised his ineffective assistance claim under ground three in his brief on appeal, but the Second Court of Appeals rejected the claim. Allen, 47 S.W.3d at 54. Thereafter, he failed to raise the claim in his petition for discretionary review or his state writ application. Thus, the claim has not been properly exhausted in state court. 28 U.S.C. § 2254(b)(1)(A); Alexander v. Johnson, 163 F.3d 906, 908-09 (5th Cir. 1998).
Nevertheless, under the Texas abuse of the writ doctrine, Allen cannot now return to the Texas courts for purposes of exhausting the unexhausted claim. See Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994). This doctrine is an adequate state procedural bar for purposes of federal habeas review. See Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997). Under these circumstances, federal habeas corpus relief is unavailable 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); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
Allen has failed to establish cause for failing to raise his third claim in the state's highest court in either his petition for discretionary review or his state writ application for purposes of exhausting the claim. He has not given an explanation to excuse his default of the claim or demonstrated that failure to consider the claim will result in a miscarriage of justice, i.e., that he is innocent of the crime for which he was charged and convicted. Accordingly, Allen's third ground not previously exhausted is procedurally barred from federal habeas review. See Coleman, 501 U.S. at 750-51.
F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C. § 2254(d), 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 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 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). A state court decision will be an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
Further, federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. 28 U.S.C. § 2254(e)(1). The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. Id. 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. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Reasonable Doubt Instruction
In his first ground, Allen contends the state appellate court erred in holding that he failed to make a sufficient showing of prejudice, so as to satisfy the second prong of Strickland, regarding trial counsel's failure to request an instruction on the reasonable doubt standard concerning extraneous offenses and bad acts during the punishment phase of trial as required by article 37.07, § 3(a) of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 2003).
The state introduced evidence of the extraneous offenses and bad acts during the guilt/innocence phase to show motive in support of its theory of attempted capital murder, but did not introduce evidence of extraneous offenses and bad acts during the punishment phase. Allen, 47 S.W.3d at 49. The state appellate court did not find this distinction material because the state referred to evidence of Allen's extraneous offenses and bad acts against B.P. during it closing argument and the trial court included the following instruction in the charge: "In arriving at your verdict on the issue of punishment, you may take into consideration all the facts shown by the evidence admitted before you and the law as submitted to you in this charge." (Clerk's R. at 102.)
A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. CONST. amend. VI; Strickland v. Washington, 466 U.S. 668, 688 (1984). An ineffective assistance claim is governed by the standards set forth in Strickland. 466 U.S. at 688. To establish ineffective assistance of counsel a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 688. Where, as here, a petitioner's ineffective assistance claim has been reviewed on its merits and denied by the state courts, federal habeas relief will be granted only if the state courts' decision was contrary to or involved an unreasonable application of the standard set forth in Strickland. Santellan v. Cockrell, 271 F.3d 190, 198 (5th Cir. 2001), cert. denied, 122 S.Ct. 1463 (2002).
Allen's ineffective assistance claim was raised in his appellate brief and his state writ application, and, in both instances, the state courts rejected the claim on the merits. (State Habeas R. at 7, 12-16, 99-100) Ex parte Allen, No. 48, 211-02, at cover; Allen, 47 S.W.3d at 54-55. Thus, the court must only decide whether the state courts' adjudication of Allen's claim involved an objectively unreasonable application of Strickland. See Bell v. Cone, 122 S.Ct. 1843, 1852 (2002).
Article 37.07, § 3(a)(1) of the Texas Code of Criminal Procedure provides, in relevant part:
(a)(1) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
TEX. CODE CRIM. PROC. ANN. 37.07, § 3(a)(1) (emphasis added). Under this provision, the state trial court would have been required to give a reasonable doubt instruction concerning extraneous offenses and bad acts had Allen's counsel requested it. See Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App. 1996). On this basis, the appellate court concluded counsel's performance in failing to request the instruction constituted deficient performance under the first prong of Strickland. Allen, 47 S.W.3d at 54-55. Nevertheless, after reviewing the totality of the evidence and the record as a whole, the court determined that Allen's sentence was supported by the record even in the absence of the extraneous offenses and bad acts evidence, and, thus, it held that he had failed to satisfy the second prong of Strickland-that the result would have been different had the instruction been requested.
Assuming arguendo that counsel was deficient in failing to request the reasonable doubt instruction, to show prejudice in the sentencing context, a petitioner must demonstrate that the failure to object or to request a reasonable doubt instruction created a reasonable probability that his sentence would have been less harsh. See Glover v. United States, 531 U.S. 198, 200 (2001); Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993).
The punishment range for attempted murder is 2 to 20 years' imprisonment and an optional fine not to exceed $10,000. See TEX. PENAL CODE ANN. §§ 12.33, 15.01, 19.02 (Vernon 2003). Allen urges that the fact that there were no eyewitnesses to identify him as the person who shot at Pagel's daughter's house and the fact that the jury found him not guilty of attempted capital murder indicates the jury had a reasonable doubt about whether he committed the prior bad act. Without a reasonable doubt instruction, however, he argues the jury, influenced by the extraneous offense evidence, returned the maximum sentence of 20 years in the penitentiary. The state appellate court disagreed, and, in rejecting Allen's argument, it took note of the nature and circumstances surrounding the convicted offense, Allen's "reckless disregard for human life" as demonstrated by the facts of the offense, and the victim's expressed concern for her life if Allen were released from custody. See Allen, 47 S.W.3d at 52.
In its opinion, the state appellate court specifically noted:
The shooting occurred on a city street in moderate traffic at approximately 6:30 in the morning. [Pagel] was driving between 35 and 40 miles per hour when [Allen] pulled up beside her and fired three shots directly at the driver's side window of her car. [Allen] was driving his car at the same time he was shooting at [Pagel]. These facts show that [Allen] endangered not only Pagel's life, but also the lives of other nearby passing motorists. This evidence tends to support the twenty-five year sentence the jury imposed.Allen, 47 S.W.3d at 51.
Allen presents no compelling argument to rebut the state court's determination, and there is nothing in the record to suggest that, but for trial counsel's omission in requesting a reasonable doubt instruction, the jury would have imposed a lower sentence. Thus, having independently reviewed Allen's ineffective assistance claim in conjunction with the state court records, this court cannot say that the state courts' application of Strickland's prejudice prong was objectively unreasonable. See Bell, 122 S.Ct. at 1852.
In his second ground, Allen contends the state court of appeals erred in holding that he was not egregiously harmed by the trial court's failure to give a reasonable doubt instruction concerning extraneous offenses and bad acts at the punishment phase sua sponte as required by Huizar v. State, 12 S.W.3d 479 (Tex.Crim.App. 2000). Allen argues that "egregious harm" is shown based on (1) the fact that he was probation eligible with no prior convictions, and (2) the fact that he was acquitted of capital murder during the guilt/innocence phase, in which the jury was instructed generally on proof beyond a reasonable doubt, but assessed the maximum punishment for murder at the punishment phase based on essentially the same evidence in the absence of a reasonable doubt instruction.
On this issue, the state appellate court conducted an Almanza harm analysis for nonconstitutional charge error. Allen, 47 S.W.3d at 50-51. It noted that the reasons stated above lent credit to the jury's imposition of the maximum sentence and that the proof tying Allen to the extraneous offenses and bad acts diminished the harm he suffered by failing to receive a reasonable doubt instruction to the jury. Id. Thus, the court concluded that the trial court's failure to instruct the jury on the reasonable doubt standard was not so egregious that Allen did not receive a fair and impartial trial. Id. at 51.
See Almanza v. Texas, 686 S.W.2d 157 (Tex.Crim.App. 1985) (op. on reh'g) (holding standard of review for nonconstitutional jury charge error is whether error is so egregious and created such harm that defendant did not receive fair and impartial trial).
Only violations of federal law-not violations of state law-constitute grounds for relief in a § 2254 petition. Improper jury instructions in a state criminal trial do not generally form the basis for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); Galvan v. Cockrell, 293 F.3d 760, 764 (5th Cir. 2002). The federal constitution does not require an instruction to the jury during the punishment phase on the reasonable doubt standard concerning extraneous offenses and bad acts, and the state appellate court correctly acknowledged that the charge error in question was nonconstitutional error. Allen, 47 S.W.3d at 50. The relevant inquiry then is whether the failure to give the instruction by itself so infected the punishment phase that the result of the proceeding violates due process- i.e., that there is a reasonable probability that Allen's sentence might have been less severe had the trial court given a reasonable doubt instruction. See Galvan, 293 F.3d at 764-65. After a thorough review of the record in this case, for the same reasons noted by the state appellate court and supported by the state court record, the omission of a reasonable doubt instruction was harmless and did not amount to a denial of due process.
3. Summary
In sum, Allen is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. The state courts' determination that Allen was not entitled to relief is not contrary to or involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of fact in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Allen's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until May 9, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 9, 2003, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.