Opinion
Civil Action No. 4:04-CV-0512-Y.
December 28, 2004
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 Kevin Linday Cross, TDCJ #1140113, is a state prisoner in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Huntsville, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
In August 2001, Cross was charged by separate indictment with the capital murder of Emma London and of Francis Hodges in the 29th Judicial District Court of Palo Pinto County, Texas. (1State Habeas R., Instrument 2; 2State Habeas R., Instrument 2.) On November 6, 2002, a jury found Cross guilty of the offenses, and the trial court assessed an automatic life sentence in each case. (1State Habeas R., Instrument 3; 2State Habeas R., Instrument 3.) Cross appealed his convictions, but the Eleventh Court of Appeals of Texas affirmed the trial court's judgments on May 22, 2003. Cross v. Texas, Nos. 11-02-00352-CR 11-02-00353-CR, slip op. (Tex.App.-Eastland May 22, 2003) (not designated for publication). Cross did not seek further direct review. (Petition at 3.)On December 17, 2003, Cross filed two state applications for writ of habeas corpus, one for each conviction, raising the sufficiency-of-the-evidence claim(s) presented herein, which the Texas Court of Criminal Appeals denied without written order on June 23, 2004. Ex parte Cross, Application Nos. 58,623-02 58,623-03, at cover. Cross filed this federal petition for writ of habeas corpus on July 8, 2004.
Typically, a prisoner's pro se habeas petition is deemed "filed" when it is handed over to prison authorities for mailing. 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). Cross is not given the benefit of the so-called "prison mailbox rule," however, because he did indicate on his petition the date he placed his petition in the prison mailing system. (Petition at 9.)
D. ISSUES
In one ground, Cross contends the evidence is insufficient to support his convictions as the primary actor or as a party to the offenses. (Petition at 7; Pet'r Memorandum in Support at 7.)E. PROCEDURAL DEFAULT
Cross raised a sufficiency-of-the-evidence challenge on direct appeal and in his state habeas corpus application. (1State Habeas R., Instrument 1; 2State Habeas R., Instrument 1.) Cross, Nos. 11-02-00352-CR 11-02-00353-CR, slip op. at 1-5. In his answer to Cross's petition, Dretke asserts that the sufficiency-of-the-evidence claim is barred from habeas review because it was raised and rejected on direct appeal. (Resp't Answer at 4-6.) The state trial court ruled that there were no controverted, previously unresolved facts material to the legality of Cross's confinement. (1State Habeas R., Instrument 4; 2State Habeas R., Instrument 4.) The Texas Court of Criminal Appeals denied the applications without written order. Dretke argues that Cross's sufficiency claim is procedurally barred based on the state procedural default that sufficiency of the evidence is not cognizable on habeas corpus review, which was, presumptively, the reason relied on by the Court of Criminal Appeals in denying Cross's applications. (Resp't Answer at 4-6.)
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. See West v. Johnson, 92 F.3d 1385, 1389 n. 18 (5th Cir. 1996); Ex parte McLain, 869 S.W.2d 349, 350 (Tex.Crim.App. 1994). Indeed, the Court of Criminal Appeals recently reaffirmed that where a state habeas applicant 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 state court is an adequate state procedural ground barring federal habeas review. See Ylst v. Nunnemaker, 501 U.S. 797, 801-07 (1991). Absent a showing of cause and prejudice or a miscarriage of justice, such showing not having been demonstrated, Cross's sufficiency claim is procedurally barred from this court's review.
The only reason that can be gleaned from the record for Cross's failure to properly raise his sufficiency claim in the state's highest court via a petition for discretionary review is Cross's assertion that he lacked the knowledge to do so. (Petition at 8.) Cross's ignorance, however, does not constitute cause. See Woods v. Whitley, 933 F.2d 321, 323 (5th Cir. 1991) (providing cause requires showing that some objective factor external to defense impeded effort to raise claim in state court). Nor has Cross demonstrated that he is actually innocent of the crimes for which he was convicted.
II. RECOMMENDATION
Cross'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 January 18, 2005. The United States District Judge need only make 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 January 18, 2005, 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.