Opinion
No. 3:01-CV-1102-H
June 23, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:
Parties:
Petitioner is an inmate in the custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
Procedural History:
Petitioner challenges Respondent's custody of him pursuant to a conviction for unlawful possession with the intent to deliver a controlled substance, heroin. State v. Dean, No. F96-48442-SM (194th Judicial Dist Court of Dallas County, Tex. March 26, 1997). Petitioner pled true to the enhancement paragraphs and the jury assessed punishment at life imprisonment to run concurrently with his other sentences. Petitioner's conviction was affirmed on appeal. Dean v. State, No. 05-97-00647-CR (Tex.App.-Dallas 1999). Dean's petition for discretionary review was refused on October 13, 1999. He filed a state habeas petition, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court without a hearing. Ex parte Dean, Application No. 8593-08 (Tex.Crim.App. April 18, 2001).
Petitioner is serving a thirty-five year sentence for possession of a controlled substance with intent to deliver. State v. Dean, No. F87-77763-JH (Crim. Dist. Court No. 1 of Dallas County, Tex. Feb. 5, 1988). Petitioner is also in custody and serving a twenty-five year sentence for possession of a controlled substance, heroin. State v. Dean, No. F-96-50299-VM.(194th Dist. Court of Dallas County, Tex. March 31, 1997). Additionally, he is serving a twenty-five year sentence for possession with intent to deliver a controlled substance, cocaine. State v. Dean, No. F-96-02832-RM (194th Dist Court of Dallas County, Tex. March 31, 1997).
Exhaustion of State Court Remedies:
Respondent does not move to dismiss for failure to exhaust state court remedies.
Issues:
Petitioner raises the following claims:
1. Judge Zimmerman had no authority to preside over his case; therefore, the challenged conviction and sentence are void;
2. Petitioner's counsel rendered ineffective assistance at trial; and
3. Petitioner was denied effective assistance of counsel on appeal.Standard of Review:
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The pertinent terms of the AEDPA provide:
(d) An application for 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 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 a state court proceeding.28 U.S.C.A. § 2254(d).
The AEDPA applies to all federal habeas corpus petitions which were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). Petitioner's state habeas application was denied on the merits.
Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if a state court arrives at a conclusion opposite to one reached by the United States Supreme Court on a question of law. The writ can also be granted if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362,412 (2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 412. Federal habeas corpus review encompasses errors of constitutional magnitude and habeas corpus relief may not be based upon errors of state law. 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67 (1991). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. A claim of ineffective assistance of counsel is a mixed question of law and fact. This claim should be reviewed under the "contrary to" and "unreasonable application" prongs of 28 U.S.C. § 2254(d). Valdez v. Cockrell, 274 F.3d 941, 946 (citing Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000); Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997)).
The terms of 28 U.S.C. § 2254(a) provide that a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution, laws or treaties of the United States.
Statement of Facts:
The facts are taken from state appellate court's opinion:
In the evening of July 18, 1996, Dallas police officer Robert Wilkerson noticed a teal green Ford Ranger pickup going over fifty miles an hour in a thirty-five-mile-per-hour zone. Without signaling, the pickup made a right turn. The driver was later identified as appellant (Dean). Intending to ticket the driver for failing to signal, Wilkerson turned on his squad car's emergency lights and siren. The pickup did not immediately pull over; instead, it slowed down and began weaving somewhat. Wilkerson observed appellant attempting to rearrange things inside the cab. The pickup turned into a liquor store parking lot, and Wilkerson followed. Appellant got out of the pickup and walked toward Wilkerson. Wilkerson drew his weapon and ordered appellant back into the pickup. Wilkerson walked over to appellant and asked to see his driver's license and proof of insurance. Appellant had neither. Wilkerson decided to arrest appellant for failing to signal a turn, failing to provide proof of insurance, and driving without a driver's license.
At Wilkerson's request, appellant got out of the pickup. During a pat-down of appellant, Wilkerson discovered $1,640 on his person. After ordering appellant into the squad car, and giving him his Miranda warnings, Wilkerson searched the pickup. In the middle of the seat he found an unzipped brown tote bag. The bag contained several hundred empty crack baggies, small zip-lock baggies, about half an inch long and half an inch wide, commonly used to package crack cocaine. The bag also contained several hundred empty plastic capsules, thirty-three capsules of heroin, thirty-nine capsules of cocaine, a set of scales, and a piece of paper. The piece of paper was torn in the upper lefthand corner, but it directed a probationer, whose first name was Robert, to report to the Volunteer Center for "service restitution." The piece of paper identified the case number as F95-52459M. It gave the date on which "Robert" was placed on probation, the date on which probation was to expire, and the offense for which "Robert" received probation. Bottles of dormin and mannitol were also seized.
Appellant was indicted for knowingly and intentionally possessing, with intent to deliver, a controlled substance, to-wit: heroin, in an amount by aggregate weight, including any adulterants or dilutants, of four grams or more but less than two hundred grams. He was convicted, however, of the lesser-included offense of possessing, with intent to deliver, heroin in an amount of one gram or more but less than four grams.Dean v. State, No. 05-97-00647-CR at 2-3 (Tex.App.— Dallas 1999).
Appellant filed a motion to suppress this information in the trial court complaining that "[a]ll matters seized by law enforcement officers on . . . July 18, 1996, were obtained illegally." He did not complain on appeal about the seizure of the $1,640. He has therefore procedurally defaulted any complaint about the money's seizure.
The paper was torn in such a way that the upper parts of the digits "2" and "4" were missing, but Maggie Hernandez, the probation officer who identified the paper when it was admitted into evidence, testified that the last three digits of the case number were 4-5-9, thus identifying Petitioner.
Discussion:
1. In Petitioner's first claim, he alleges that Judge Zimmerman did not have judicial authority to preside over the trial because he had not taken and filed an oath of office. Specifically, Petitioner alleges:
1. Judge Zimmerman was constitutionally and statutorily disqualified from presiding over Dean's trial, because he had not taken the "Oath" of office nor had he subscribed to and filed an anti-bribery statement.
2. Judge Zimmerman, without having taken the oaths prescribed by Texas law, cannot sit as a Judge de jure or a Judge de facto.
3. Judge Zimmerman failed to take the two oaths required by Texas law; thus, he had no judicial authority and because of such, his actions were void.
4. Dean's right to a duly authorized judicial officer during his trial was violated because Judge Zimmerman failed to take the two oaths prescribed in the Texas Constitution.
5. The trial court did not have jurisdiction to hear Dean's trial because for Judge Zimmerman was not authorized to preside over the court.
6. Dean's judgment is void.
7. Judge Zimmerman's actions failed to abide with requirements set out in article 16 of the Texas Constitution.
The state courts found that the judge who presided over Petitioner's trial had the required authority. Ex pane Dean, No. 8, 593-08 at Supplemental Record ("Supp. Rec.") at 12. Petitioner's claims with respect to failure to take and file required oaths of office are based entirely upon state law. An error under state law does not provide grounds for federal habeas corpus relief. Engle v. Isaac, 456 U.S. 107, 119 (1982). Moreover, federal courts will defer to state courts' interpretation of their own laws. Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995).
Plaintiff does not state a federal constitutional claim. Qualifications of a judge are not a constitutional question except in cases where a petitioner is claiming actual bias against the defendant by a state tribunal or that the judge had an interest in the outcome of the case. Aetna Life Ins. Co. v. Lavois, 475 U.S. 813, 828 (1986). Such questions are answered by common law, statute or the professional standards of the bench and bar. See, e.g., Aetana, 475 U.S. at 820-821; Tuney v. Ohio, 273 US. 510, 523 (1927). Petitioner's claims that he is entitled to habeas corpus relief based upon the state judge's failure to take or file required oaths of office are not cognizable on federal habeas corpus review. Petitioner has failed to show that the state court decision 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. Also, Petitioner has failed to show the decision was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding. Petitioner is not entitled to habeas corpus relief based upon these claims.
The Texas Constitution requires that all elected and appointed officers of the State, before taking the oath of office, shall swear or affirm that they have not paid, promised any money, thing of value, promised public office or employment to assure votes or an appointment (the "anti-bribery oath"). Each officer must also take the oath of office in which the officer swears to faithfully execute his or her duties and preserve, protect, and defend the Constitutions of the United States and of Texas. Tex. Const, art. XVI, § 1. Petitioner has presented no proof the state court judge in question did not take the required oaths of office.
2. The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. U.S. CONST., art. VI. To merit relief of a claim of ineffective assistance of counsel pursuant to § 2254, a petitioner must demonstrate that his trial counsel's performance fell below an objective standard of reasonableness and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 691 (1984). 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 or that under the circumstances, the challenged action might he considered sound trial strategy. Strickland, 466 U.S. at 689.
A petitioner's failure to establish either prong of the Strickland test requires the court to find that counsel's performance was not constitutionally ineffective. Therefore courts are free to review ineffective assistance claims in any order and need not address both the "deficient" and "prejudice" prong if one component is found lacking. Strickland, 466 U.S. at 697. The prejudice prong of the Strickland test requires the petitioner to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694.
2a. Petitioner alleges that counsel provided ineffective assistance by failing to file a pretrial motion requesting that Judge Zimmerman recuse himself. However, Petitioner does not show that such a motion would have changed the outcome of the trial. Additionally, counsel is not required or expected to file a frivolous motion. The motion Petitioner claims counsel should have filed would have been futile. Counsel exercised sound trial strategy by not seeking the trial courts recusal. The state court held that Petitioner was not in any way denied his right to effective assistance of counsel by his attorney's failure to request that the trial court to recuse itself. Additionally after considering the entire record, the state court found that counsel exercised all of the skill and expertise which one could reasonably expect of an attorney.
2b. Dean's second ineffective assistance claim is that his counsel failed to investigate the facts and research the law. These are conclusory allegations. Counsel's actions are usually based, quite properly, on information supplied by the defendant. Whether an investigation decision is reasonable depends critically on such information. Strickland, 466 U.S. at 691. Petitioner fails to present admissible evidence of counsel's alleged omissions. The trial court found that counsel filed pretrial motions, conducted voir dire of the jury, cross-examined the state's witnesses, made numerous objections during the course of the trial, made arguments to the jury at both the guilt or innocence and punishment phases of the trial, preserved Dean's right of appeal, and performed numerous other functions of a competent and experienced criminal defense lawyer. Ex parte Dean, No. 8,593-08, Supp. Rec. at 12. Further, the state courts' decisions to uphold Dean's conviction and deny his claims under the Sixth Amendment are not contrary to, or do not involve an unreasonable application Strickland. 28 U.S.C. § 2254(d)(1). Therefore, Dean's ineffective assistance of counsel claims based upon counsel's failure to investigate the facts and research the law should be denied.
2c. Petitioner claims his trial counsel was ineffective for failing to file a motion to quash the indictment. The indictment charged Petitioner with possession with intent to deliver a controlled substance: heroin in an amount of more than 4 grams but less than 200 grams. The jury convicted him of possession with intent to deliver a controlled substance: heroin of 1 gram or more, but less than 4 grams. Ex parte Dean, No. 8, 593-08 Supp. Rec. at 3, 6. Petitioner claims that because the jury convicted him of a lesser included offense, counsel should have challenged the indictment that charged him with a first degree felony. The sufficiency of a state indictment is not a matter for federal habeas corpus relief unless it can be shown that the indictment is so defective that the convicting court had no jurisdiction. McKay v. Collins, 12 F.3d 66, 68 (5th Cir. 1994); Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir. 1980) (citing Meyer v. Estelle, 621 F.2d 769 (5th Cir. 1980)). Further, when the state courts have held implicitly or explicitly as a matter of state law that an indictment is sufficient to confer jurisdiction on the trial court, a federal habeas court should inquire no further. McKay, 12 F.3d at 69; Lavernia v. Lynaugh, 845 F.2d 493 (5th Cir. 1988). To prevail on a claim that his attorney was ineffective for failing to quash the indictment, Dean would have to show the indictment was so defective as to deprive the state court of jurisdiction. Dean has failed to meet this burden. The state courts held that trial counsel did not provide ineffective assistance. Ex parte Dean, No. 8, 593-08 Supp. Rec. at 13. Petitioner has failed to establish that the state court's decision that counsel's performance was neither deficient nor prejudicial resulted in a decision that was contrary to, or involved an unreasonable application of, Strickland; or 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.
2d. Petitioner asserts that counsel was ineffective because he did not object, during the punishment phase of the trial, to the introduction of three prior capital offenses. Counsel is not required to make futile motions or objections. Clark v. Collins, 19 F.3d 959, 964 (5th Cir. 1994); Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990). Petitioner does not show that the evidence was inadmissible. The state appellate court found that none of the convictions in question were used to enhance Petitioner's sentence and that even if they had been, counsel would not have provided ineffective assistance by failing to object to admissible evidence. Dean v. State, slip op. at 12. Petitioner again has failed to establish the state court's decision resulted in a decision that was contrary to or involved in an unreasonable application of Strickland. Further, Petitioner has failed to show that the decision was based on unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
3. Petitioner claims appellate counsel should have raised an additional claim on appeal. A claim of ineffective assistance based on the failure to argue an issue on appeal is governed by the familiar two-part Strickland test, which requires the court to determine whether: (1) the attorneys performance was deficient, and (2) the deficiency prejudiced the defendant. See Roe v. Flores-Ortega, 528 U.S. 470,476 (2000) (citing Strickland, 466 U.S. at 687). An appellate counsel is not deficient for not raising frivolous issues on appeal or even for not raising every non-frivolous issue. Strickland, 466 U.S. at 688. Instead, to be deficient, the decision not to raise an issue must fall "below an objective standard of reasonableness." Id.
Petitioner claims that his appellate counsel was ineffective for not raising state's failure to prove the validity of his prior convictions that were used to enhance his sentence. Petitioner pled true to the second and third paragraphs of the enhancement, thus eliminating the need for more proof. Ex parte Dean, No. 8, 593-08, Supp. Rec. at 3. On appeal, Petitioner's counsel presented the following grounds for relief:
1. The trial court erred in allowing the prosecutor to exercise peremptory strikes against venire members of Dean's race;
2. The trial court erred in denying Dean's motion to suppress evidence because the police lacked probable cause to conduct the search which produced the evidence;
3. The trial court erred in overruling Dean's motion for an instructed verdict;
4. The evidence was factually and legally insufficient to support his conviction;
5. The trial court erred in allowing extraneous offense evidence from his probation officer; and
6. Dean was denied effective assistance of counsel during the punishment phase of his trial.
Dean has not shown that his appellate counsel performed deficiently. Moreover he has not shown a reasonable probability that raising the additional claim would have changed the appeal's outcome. Counsel's sound strategy in bringing good colorable arguments and issues before the appellate court are sufficient reasons for not raising additional issues. His performance did not fall below an objective standard of reasonableness. Considering the record and Petitioner's arguments, the Court concludes that the state court decision is not contrary to Strickland. Additionally, it does not involve an unreasonable application of Strickland. Finally, the state court decision is not based on an unreasonable determination of the facts, in light of the evidence in the state court proceedings. 28 U.S.C. § 2254(d). Petitioner's claim regarding appellate counsel's ineffectiveness does not entitle him to habeas corpus relief in this court.
RECOMMENDATION
The Court recommends that the petition for writ of habeas corpus be DENIED.