Opinion
7:98-CV-085-R
May 14, 2001
MEMORANDUM OPINION AND ORDER
Came on to be considered the papers and pleadings filed in this action and the Court finds and orders as follows:
This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by an inmate currently confined in the Hughes Unit of the Texas Department of Criminal Justice in Gatesville, Texas. Upon his plea of not guilty to the charge of solicitation of capital murder as charged in the indictment returned in Clay County Cause No. 93-11-0039-CR, Petitioner was tried by jury, found guilty and, on May 19, 1994, sentenced to thirty-years confinement. Petition p. 1; Ex parte Decker, App. No. 23, 091-06, pp. 53.169. Decker did not file a direct appeal. However, he has filed four art. 11.07 state applications for habeas relief without success.
The Court notes that, on October 9, 1997, in Decker's third art 11.07 proceeding, the trial court judge entered findings of fact and determined that Decker had been denied effective assistance of counsel. Ex parte Decker, app. No. 23, 091-11 ( see p. 2 — "original transcript . . . mislaid"); but see Clerk's Record Volume 1 of 9, Trial Court Cause No. 93-11-0039C-CR-D at p. 244. The Court of Criminal Appeals dismissed the application for abuse-of-the-writ. Because the findings were not adopted by the Court of Criminal Appeals, this Court can not apply a presumption of correctness to the trial court's findings of fact. Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or "the Act"), Pub.L. 104-132, 110 Stat. 1217, under which we now have a heightened standard of review in federal habeas corpus proceedings. Title I of the Act substantially changed the way federal courts handle such actions. The AEDPA applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 2063 (1997). Petitioner filed the instant petition after the effective date of the AEDPA. Therefore, Title I of the Act applies to his petition.
The AEDPA provides in pertinent part:
(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) (West 2001).
Section 2254(d)(1), the "contrary to" clause, concerns pure questions of law and mixed questions of law and fact. Penry v. Johnson, 215 F.3d 504, 507 (5th Cir. 2000), petition for cert. granted, ___ U.S. ___, 121 S.Ct. 563 (Nov. 27, 2000). Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus 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 from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct 1495, 1523 (2000); Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.), cert. denied, ___ U.S. ___, 121 S.Ct. 508 (2000). Under § 2254(d)(2), the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court (1) unreasonably applies the correct legal rule to the facts of a particular case or (2) it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Penry, 215 F.3d at 507-08 (quoting Williams, 529 U.S. at 407, 120 S.Ct. at 1520). The standard for determining "whether a state court's application was unreasonable" is an objective one. Id. at 508.
This standard of review applies to all federal habeas corpus petitions which, like the instant case, 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). Upon a finding of state court compliance with the "contrary to" clause of 28 U.S.C. § 2254(d)(1), federal courts give deference to the state court's findings unless such findings violate the "unreasonable application" clause of 28 U.S.C. § 2254(d)(2). Chambers, 218 F.3d at 363. The "unreasonable application" clause concerns only questions of fact Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), petition for cert. filed, No. 00-5947 (August 28, 2000). The resolution of factual issues by the state court are afforded a presumption of correctness and will not be disturbed unless the habeas petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 771 (1981).
In support of the instant petition, Decker presents the following grounds for relief:
1. His conviction was obtained by use of a coerced confession;
2. His privilege against self-incrimination was violated;
3. The prosecutor failed to disclose exculpatory evidence;
4. The trial judge was without authority to hear the case;
5. Ineffective assistance of counsel for the following reasons:
a. Counsel failed to seek or obtain a hearing on his motion to suppress statements made to and recorded by the undercover investigator, Roger Demney, who was the principal witness against him at trial;
b. Counsel failed to pursue the defense of insanity at the time of the offense and failed to seek testimony from a medical expert on this issue;
c. Counsel failed to perfect a direct appeal;
d. Decker could not assist counsel at trial because he was heavily medicated against his will;
e. Counsel failed to file and obtain rulings on numerous defense motions in a timely manner which precluded state compliance with the court's orders;
f. Counsel failed to pursue the defense of entrapment, and;
g. Counsel failed to obtain and inspect witness statements and reports.
6. Petitioner was insane at the time of the offense;
7. Denial of the right to file a direct appeal;
8. Denial of due process of law;
9. The trial court failed to charge the jury on the defense of insanity;
10. He was denied his right of allocution;
11. Fundamental error in the jury charge, and
12. Failure of prosecutors to disclose a promise of early release made to an informant.Petition p. 2; Supplemental Petition pp. 1-2.
Decker's conviction for solicitation of capital murder arose primarily out of an investigation conducted by an undercover investigator for the Texas Department of Criminal Justice named Roger Demney. After Decker's fellow inmate, Harold Nunley, informed TDCJ authorities that Decker was attempting to hire someone to kill Decker's ex-wife, Roger Demney became involved in the investigation. Demney corresponded with Decker on several occasions and, posing as a hitman, visited him twice in prison. Demney testified at trial that Decker offered to pay him $7000 to kill Decker's former wife.
In his first and second grounds for relief, Decker claims that his statements made to the undercover investigator were made in violation of privilege against self-incrimination, that the statements were coerced and that his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966) were violated. Attachment to Petition pp. 6-8,
It is well established "the Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a suspect during custodial interrogation without a prior warning." U.S. v. Gonzales, 121 F.3d 928, 939-40 (5th Cir. 1997) (quoting Illinois v. Perkins, 496 U.S. 292, 296, 110 S.Ct. 2394, 2396-97 (1990)), cert. denied, 522 U.S. 1063, 118 S.Ct. 726 (1998), and cert. denied, 522 U.S. 1131, 118 S.Ct 1084 (1998). "The Supreme Court has defined "custodial interrogation" as 'questioning initiated by law enforcement officers after a person has been taken into custody . . .'" Id. (quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612 (1966)). A suspect is "in custody" for purposes of Miranda when he is arrested or "when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest." United States v. Pofahl, 990 F.2d 1456, 1487 (5th Cir. 1993) (quoting United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir.) (en banc), cert. denied, 488 U.S. 924, 109 S.Ct. 306 (1988)), cert. denied, 510 U.S. 898, 114 S.Ct. 266 (1993), and cert. denied, 510 U.S. 996, 114 S.Ct. 560 (1993). However, the undercover questioning of an individual who is already in prison does not require a Miranda warning if the suspect does not know that he is talking with a government agent and he is not in custody for reasons related to the crime being investigated. As long as questioning by undercover investigators does not rise to the level of compulsion or coercion, "[p]loys to mislead a suspect or lull him into a false sense of security . . . are not within Miranda's concerns." United States v. Ingle, 157 F.3d 1147, 1151 (8th Cir. 1998) (quoting Illinois v. Perkins, 496 U.S. at 297, 110 S.Ct. at 2397).
Decker's statements to Demney were made during two separate meetings in which Demney posed as a hitman. See State v. Decker, Statement of Facts, Volume 6, pp. 345-372, Testimony of Roger Demney. A review of the record in this case reflects nothing which would indicate that Decker's statements were, in any way, coerced by Demney. See id; Petition, Appendix A, Exhibit F-1 (partial transcript of the taped conversation between Decker and Demney). Decker alleges no facts or circumstances which might support a conclusion that his statements were made to Demney in violation of his right against self-incrimination or in violation of Miranda. See Petition pp. 6-8. His conclusory allegations of coercion fail to raise a colorable basis for habeas corpus relief in light of the record in this case. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (emphasizing that mere conclusory allegations do not raise constitutional issues in habeas proceedings).
Petitioner claims that his Fifth and Sixth Amendment rights were violated prior to and during his hearing on competency to stand trial. Petition p. 17. While he was confined as an inmate in a psychiatric unit of the Texas Department of Criminal Justice, the Skyview Unit, Decker was evaluated by a state employed psychiatrist named Dr. Lawrence Taylor. Statement of Facts, Competency Hearing, Vol. 3 of 9, pp. 195-96. Decker claims that Taylor conducted the evaluation without a court order and without notice to counsel in an effort to covertly gain confidential information about Decker to undermine his insanity defense. Petition p. 17. Respondent argues that, prior to trial, Decker notified the court of his intention to pursue the defense of insanity and that, by putting his mental state at issue, Decker cannot object to an examination by the state's expert, Respondent's Answer at p. 6.
It is well established in the Fifth Circuit that, when a defendant raises a defense of insanity, he is on notice that the state may, and probably will, introduce psychiatric testimony in an attempt to rebut the defense. E.g. Griffin v. Lynaugh, 823 F.2d 856, 864 (5th Cir. 1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1059 (1988); Williams v. Lynaugh, 809 F.2d 1063, 1068 (5th Cir.), cert denied, 481 U.S. 1008, 107 S.Ct. 1635 (1987); Vardas v. Estette, 715 F.2d 206, 211 (5th Cir. 1983), cert. denied, 465 U.S. 1104, 104 S.Ct 1603 (1984). When the state's evidence is limited to rebuttal of issues raised by the defense, the defendant waives his Fifth and Sixth Amendment objections to the state's psychiatric testimony. Id. In the case at bar, Decker complains that, because Dr. Taylor improperly conducted the examination at the request of prosecutors without a court order and without notice to his attorney, he did not waive his Fifth and Sixth Amendment rights.
A review of the record reflects that Decker is correct in his assertion that the examination by Dr. Taylor was conducted without a court order and without notice to counsel. Statement of Facts, Competency Hearing, Vol. 3 of 9, pp. 196-198. At his competency hearing, Decker's attorney objected to Dr. Taylor's testimony on Fifth and Sixth Amendment grounds. Id. The objection was sustained by the trial judge and Dr. Taylor was not permitted to use any part of his examination of Decker as a basis for his testimony. Id. at p. 202. Dr. Taylor's testimony was limited to his assessment based upon Decker's medical records and his personal observations of Decker with the exception of those observations made during the examination. Id. at pp. 202-203. Therefore, any impropriety that may have occurred was cured by the trial judge. Because Dr. Taylor was not permitted to testify as to his observations or assessment of Decker during the psychiatric examination, Decker cannot complain that his constitutional rights were violated. The prosecution was entitled to put on expert testimony to rebut Decker's insanity defense. Decker makes no claim that the trial judge's ruling with regard to Dr. Taylor's testimony was violated and he has not directed this court to any part of the record which would indicate that his Fifth or Sixth Amendment rights were violated as a result of Taylor's examination.
Decker next claims that the prosecution failed to disclose exculpatory evidence as required under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) ("Brady claim"). Specifically, Decker claims that prosecutors failed to disclose evidence of a deal made for the early release of an inmate, Harold Nunley, in exchange for his testimony against Decker at trial. Petition pp. 11-12, Decker also claims that the state failed to disclose relevant medical evidence relating to his psychiatric history. Petition, pp. 15-16.
Federal courts may not review a state court decision that rests on an adequate and independent state procedural default, unless the habeas petitioner shows (1) cause for the default and actual prejudice resulting from the alleged violation of federal law or (2) demonstrates that the failure to consider his federal claim will result in a fundamental miscarriage of justice. E.g. Smith v. Johnson, 216 F.3d 521, 524 (5th Cir. 2000); Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997); Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct 1038, 1043 (1989). "[T]he fundamental miscarriage of justice exception is confined to cases of actual innocence, where the petitioner shows, as a factual matter, that he did not commit the crime of conviction." Smith, 216 F.3d at 524 (quoting Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999)). When the last state court to review a claim clearly and expressly states that its judgment rests on a procedural bar, the procedural default doctrine generally bars federal review. Id.; Lowe v. Scott, 48 F.3d 873, 875 (5th Cir. 1995). A federal court conducting a habeas review may raise the issue of procedural default sua sponte. Magouirk v. Phillips, 144 F.3d 348, 357-58 (5th Cir. 1998).
A review of the state records in the case at bar reflects that Decker failed to present his Brady claim in his first art. 11.07 application challenging this conviction. Ex parte Decker, App. No. 23, 091-06 (pp. 4-22). His next three state habeas applications were dismissed by the Court of Criminal Appeals pursuant to Texas Code of Criminal Procedure, art 11.07 § 4. Ex parte Decker, App. No. 23, 091-08 at cover; Ex parte Decker, App. No. 23, 091-11 at cover, Ex parte Decker, App. No. 23, 091-14 at cover. Texas Code of Criminal Procedure art. 11.07 § 4 embodies the state habeas abuse-of-the-writ doctrine. The statute provides as follows:
Sec. 4. (a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, 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 an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or
(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.
(b) For purposes of Subsection (a)(1), a legal basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the legal basis was not recognized by and could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.
(c) For purposes of Subsection (a)(1), a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.
Tex. Code Crim. Proc. Ann. Art 11.07 § 4 (Vemon 2001). The Texas abuse-of-the-writ doctrine "represents an adequate state procedural bar for the purposes of federal habeas review." Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert denied, 523 U.S. 1139, 118 S.Ct. 1845 (1998). Even on the date Decker's second state application was filed, December 2, 1996, the law in the Fifth Circuit was establish in holding that a dismissal for abuse-of-the-writ by the Texas Court of Criminal Appeals constitutes a procedural bar for purposes of federal habeas review. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied, 515 U.S. 1153, 115 S.Ct. 2603 (1995). When, as in the case at bar, a petitioner presents a ground for relief to the state courts for the first time in a petition that is dismissed for abuse-of-the-writ, the federal court is precluded from reviewing the claim absent a showing of cause and prejudice or a miscarriage of justice. Smith v. Johnson, 216 F.3d 521, 523-24 (5th Cir. 2000). Decker has made no such showing.
"Once a federal district court elects to raise procedural bar sua sponte, the court should consider whether justice requires that the habeas petitioner be afforded with notice and a reasonable opportunity to present briefing and argument opposing dismissal." Fisher v. Texas, 169 F.3d 295, 301 (5th Cir. 1999). "Likewise, the district court should consider whether the state's failure to raise the defense is merely inadvertence or the result of a purposeful decision to forego the defense." Id. For the following reasons, this Court finds that notice to the parties and briefing on the issue of procedural bar, raised sua sponte in the instant case, would not serve in furtherance of justice.
It is well established that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution," Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 1196-97 (1963). To establish a Brady violation, a petitioner must demonstrate that (1) the prosecution suppressed or withheld evidence that (2) was favorable to the defendant and (3) material to guilt or punishment. 373 U.S. at 87, 83 S.Ct. at 1196-97; East v. Johnson, 123 F.3d 235, 237 (5th Cir. 1997); Allridge v. Scott, 41 F.3d 213, 217 (5th Cir. 1994), cert. denied, 514 U.S. 1108, 115 S.Ct. 1959 (1995). Evidence is material "only where there exists a 'reasonable probability' that had the evidence been disclosed the result at trial would have been different." Felder v. Johnson, 180 F.3d 206, 212 (5th Cir. 1999) (quoting Wood v. Bartholomew, 516 U.S. 1, 5, 116 S.Ct. 7, 10 (1995)), cert. denied, 528 U.S. 1067, 120 S.Ct. 630 (1999). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome of the trial. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383 (1985); Martin v. Cain, 246 F.3d 471 (5th Cir. 2001).
Decker's claims regarding suppression of evidence relating to his medical history is without merit. Obviously, Decker and his attorney were well aware of his history of psychiatric problems and treatment. The failure of the prosecution to disclose evidence known to the defense and readily available to the defense does not result in a Brady violation. The government is not obligated to furnish information that is fully available to the defendant or could have been obtained through reasonable diligence. Kg. United States v. Mmahat, 106 F.3d 89, 94 (5th Cir.), cert. denied, 522 U.S. 848, 118 S.Ct. 136 (1997); United States v. Aubin, 87 F.3d 141, 148-49 (5th Cir. 1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 965 (1997); Williams v. Scott, 35 F.3d 159, 163 (5th Cir. 1994), cert. denied, 513 U.S. 1137, 115 S.Ct. 959 (1995); Blackmon v. Scott, 22 F.3d at 560, 564-65 (5th Cir. 1994); May v. Collins, 904 F.2d 228, 231 (5th Cir. 1990), cert. denied, 498 U.S. 1055, 111 S.Ct 770 (1991).
Similarly, Decker's claim regarding the failure of prosecutors to disclose evidence of a deal made with a key witness must fail. Decker's former fellow inmate, Harold Nunley, testified against him at trial. Decker claims that prosecutors failed to disclose a fee arrangement and a deal they made with Nunley to secure his early release from prison in exchange for his testimony against Decker. Petition pp. 11-12. Decker argues that such evidence could have been used to impeach Nunley's testimony. Id. In support of his allegations, Decker cites his Petition, Appendix A, Exhibit H which is dated May 4, 1994 and seems to indicate that Nunley was granted executive clemency and released from prison. However, the document does not reflect any deal made with prosecutors in exchange for Nunley's testimony.
Prior to trial, Decker's attorney filed a Brady motion which was granted. Statement of Facts, Pretrial Motions, Vol. 4 of 9, pp. 25-26. At trial, Nunley was cross-examined by Decker's attorney regarding agreements sometimes made with prosecutors in exchange for testimony. Statement of Facts, Vol. 5 of 9, pp. 229-230. Nunley indicated that there was no incentive for him to cut a deal with prosecutors because he was already scheduled for release within one or two months of the date he contacted authorities regarding Decker's solicitation of murder. Id. On direct examination, Nunley stated that nobody had offered or givenhim anything or any special consideration in exchange for his testimony. Id. at p. 233. The record reflects that, at the time of Decker's trial, Nunley had already been released on parole. Id. at p. 229. There is nothing before this court, except Decker's allegations, to indicate that Nunley received any consideration or favors in exchange for his testimony. Decker's conclusory allegation of a deal between Nunley and prosecutors, without more, fails to raise a colorable basis for habeas corpus relief. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (emphasizing that mere conclusory allegations do not raise constitutional issues in habeas proceedings); accord Koch v. Puckeit, 907 F.2d 524, 531 (5th Cir. 1990). For these reasons and for those reasons previously discussed, Decker's Brady claims are without merit and are procedurally barred. Therefore, notice to the parties and briefing on the issue of procedural bar are not necessary. Because Decker's Brady claim fails on the merits as well as being procedurally barred, it is not necessary for this court to determine whether the state's failure to raise the defense was merely inadvertence or the result of a purposeful decision to forego the defense.
Next, Decker claims that the trial judge was without jurisdiction to preside over his trial. Decker argues that Judge Thornton failed to take his oath of office as a state district judge and, therefore, had no authority to act in his case. Petition p. 23. Decker also claims mat the record in his case is silent as to the statutory authority for the appointment of Judge Thornton. Id. Decker failed to present this claim in his first state habeas application and, as previously noted, his next three state applications were dismissed for abuse-of-the-writ. Therefore, this ground for relief is procedurally barred. See Smith v. Johnson, 216 F.3d 521, 523-24 (5th Cir. 2000); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert denied, 523 U.S. 1139, 118 S.Ct. 1845 (1998); Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied, 515 U.S. 1153, 115 S.Ct. 2603 (1995). The Court further finds that notice to Petitioner and an opportunity to respond to the procedural bar is not warranted on this ground for relief. Decker's conclusory allegation that Judge Thornton failed to take an oath is insufficient to state a ground for habeas relief. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (emphasizing that mere conclusory allegations do not raise constitutional issues in habeas proceedings); accord Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990).
The Court further finds that Respondent's failure to raise the procedural bar on this ground for relief was inadvertent because Respondent construed this jurisdictional challenge as a challenge to the sufficiency of the indictment, a claim which Decker did present in his first state habeas application. Therefore, the Court will also address this claim.
Decker's challenge to the sufficiency of the indictment fails to present a meritorious basis for federal habeas corpus relief as this allegation raises only a matter of state law which is peculiarly within the province of Texas state courts to determine. When the question of the sufficiency of an indictment has been presented to the state's highest court of appeals, consideration of the question is foreclosed in federal habeas corpus proceedings. See Morlett v. Lynaugh, 851 F.2d 1521, 1523 (5th Cir. 1988), cert. denied, 489 U.S. 1086, 109 S.Ct. 1546 (1989); Alexander v. McCotter, 775 F.2d 595, 599 (5th Cir. 1985), cert denied, 489 U.S. 1086, 109 S.Ct. 1546 (1989).
The Texas Court of Criminal Appeals is the highest court in the state which has jurisdiction to review a petitioner's conviction. Tex. Code Crim. Proc. Ann. art. 4.04 § 2 (Vemon Supp. 2001). The record reflects that Decker presented his claim regarding the sufficiency of the indictment to the Texas Court of Criminal Appeals in his first state habeas application. Ex parte Decker, No. 23, 091-06 at p. 12. The Court of Criminal Appeals denied the application without written order, thereby, rejecting his claim. Because the highest state court of appeals denied Decker's challenge to the indictment, he is foreclosed from seeking relief on this ground in a federal habeas proceeding. By refusing to grant habeas relief, the Texas Court of Criminal Appeals necessarily, though not expressly, held that the trial court had jurisdiction and that the indictment was sufficient for that purpose. See Alexander v. McCotter, 775 F.2d at 599; Smith v. McCotter, 786 F.2d 697, 702 n. 3 (5th Cir. 1986).
Next Decker claims that he was denied effective assistance of counsel at trial. Specifically, Decker claims that his attorney was ineffective for the following reasons:
1. Counsel failed to seek or obtain a hearing on his motion to suppress statements made to and recorded by the undercover investigator, Roger Demney, who was the principal witness against him at trial;
2. Counsel failed to pursue the defense of insanity at the time of the offense and failed to seek testimony from a medical expert on this issue;
3. Counsel failed to perfect a direct appeal;
4. Decker could not assist counsel at trial because he was heavily medicated against his will;
5. Counsel failed to file and obtain rulings on numerous defense motions in a timely manner which precluded state compliance with the court's orders;
6. Counsel failed to pursue the defense of entrapment, and;
7. Counsel failed to obtain and inspect witness statements and reports.
In a claim of ineffective assistance of counsel on appeal, a petitioner must demonstrate both that "counsel's errors were so serious that counsel was not functioning as the counsel guaranteed to the defendant by the sixth amendment" and "that the particular lapse was prejudicial, meaning that there is a reasonable probability that but for the error the ultimate result would have been different." McCrae v. Blackburn, 793 F.2d 684, 688 (5th Cir.), cert. denied, 479 U.S. 965, 107 S.Ct 466 (1986). This is the same standard set forth under Strickland for ineffective assistance of counsel at trial.
The Sixth Amendment of the United States Constitution guarantees a criminal defendant "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). When a convicted defendant seeks habeas corpus relief on the ground of ineffective assistance of counsel, he must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different Strickland, 466 U.S. at 687-91 694, 104 S.Ct. at 2064-66 2068. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
"It is well settled that effective assistance is not equivalent to errorless counsel or counsel judged ineffective by hindsight, [citations omitted]. Rather, inquiry must be made into the totality of the circumstances surrounding counsel's performance to determine whether reasonably effective representation was provided." Tijerina v. Estelle, 692 F.2d 3, 7 (5th Cir. 1982). A court reviewing an ineffectiveness claim must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional competence or that, under the circumstances, the challenged action might be considered sound trial strategy. Gray v. Lynn, 6 F.3d 265, 268 (5th Cir. 1993); Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir. 1988).
A review of the state court records reflects no findings of fact upon which this court may rely with regard to Decker's ineffective assistance claim. The papers and pleadings currently on file in the instant action fail to provide sufficient facts upon which this court can make an informed decision as to the merits of Decker's claim. The issue of ineffective assistance of counsel is a mixed question of fact and law. Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001). Therefore, the court must determine whether an evidentiary hearing is appropriate under the circumstances of this case. The necessity of an evidentiary hearing in a federal habeas proceeding is governed by 28 U.S.C. § 2254(e)(2), which provides, in pertinent part:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence . . .
Decker does not allege that his ineffective assistance claims rely on a new rule of constitutional law or a hidden factual predicate. Therefore, an evidentiary hearing is not available to him if he failed to develop the factual basis of his claims in the state court proceedings. As previously noted, there was no factual development in the state courts upon which this court may rely with regard to this claim. Decker's first state petition was denied without written order. Ex parte Decker, App. No. 23, 091-06 at cover. A hearing was not held and no findings of fact were entered. Id. at p. 1. His next three state applications were dismissed by the Court of Criminal Appeals for abuse-of-the-writ pursuant to Texas Code of Criminal Procedure, art 11.07 § 4. Ex parte Decker, App. No. 23, 091-08 at cover; Ex parte Decker, App. No. 23, 091-11 at cover, Ex parte Decker, App. No. 23, 091-14 at cover. Where undeveloped facts are not the result of a petitioner's own decision or omission, the petitioner cannot be said to have "failed to develop" the factual basis of his claim. McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998). Otherwise, "a state could insulate its decisions from collateral attack in federal court by refusing to grant evidentiary hearings in its own courts." Id. (quoting Burris v. Parke, 116 F.3d 256, 259 (7th Cir.), cert. denied, 522 US. 990, 118 S.Ct. 462 (1997)). Thus, it appears that a hearing may be necessary on Decker's claims of ineffective assistance of counsel. For that purpose, this case will be referred to the United States Magistrate Judge under separate order.
Decker next alleges that he was insane at the time of the offense. This defense was raised prior to trial and, upon motion by the defense, the court appointed a clinical psychologist, Dr. Walter Y. Quijano, to examine Decker as to the question of insanity at the time of the offense. Clerk's Record, Trial Court Cause No. 93-11-0039C-CR-D, Vol. 1 of 9. pp. 119-122 129-130. The examiner was directed to file a written report separate from any report regarding Decker's competency to stand trial. Id. at p. 130, The report was to "include a description of the procedures used in the examination and the examiner's observations and findings pertaining to the insanity defense." Id. In his report dated May 3, 1993, Dr. Quijano found Decker competent to stand trial and sane at the time of the offense. Petitioner's Objection to Respondent's Original Answer, Exhibit K. Quijano later submitted an updated report, dated August 2, 1993, in which he found Decker incompetent to stand trial. Ex parte Decker, App. No. 23.091-08 pp. 10-17. In the updated report, there is no mention of any evaluation relating to sanity at the time of the offense. See id. In his earlier report, Quijano stated that "[t]he question [of insanity at the time of the offense] could not be discussed since [Decker] denied being charged with Capital Murder and having done anything to merit it." Petitioner's Objection to Respondent's Original Answer, Exhibit K, p. 5.
Decker was alleged to have solicited the murder of his ex-wife on or about February 6, 1992. Clerk's Record, Trial Court Cause No. 93-11-0039C-CR-D, Vol. 1 of 9. p. 92. Records submitted by Decker indicate that he was confined as an inmate in the psychiatric unit of the Texas Department of Criminal Justice, the Skyview Unit, in early 1992, around the time of the offense. Petition, Appendix A, Exhibit B. The records reflect that Decker suffered major depression with psychotic features, that he suffered hallucinations, that he had been confused, paranoid and delusional and that he was medicated. Id. at Exhibits B-1 through B-15. Further review of the record reflects that counsel did not pursue the defense of insanity at the time of the offense.
At this time, there remain questions of fact surrounding Petitioner's claim of insanity at the time of the offense. See Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087 (1985); Bouchillon v. Collins, 907 F.2d 589 (5th Cir. 1990). Thus, it appears that a hearing may be necessary on this ground for relief. For that purpose, this case will be referred to the United States Magistrate Judge under separate order.
Decker next claims that he was denied due process of law. Petition ¶ 12, p. 2. Other than possibly being a general restatement of Decker's belief that he was unfairly tried and convicted, it is unclear as to the specific claim that Decker intends to present under this ground for relief. Therefore, this ground for relief must fail. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (emphasizing that mere conclusory allegations do not raise constitutional issues in habeas proceedings).
In his ninth and tenth grounds for habeas relief, Decker claims that the trial court failed to charge the jury on the defense of insanity and that he was denied the right of allocution before sentencing. Petition ¶ 12, pp. 2 21. Respondent argues that these two grounds are procedurally barred because Decker failed to present the claims to the state courts in his first art. 11.07 application. Respondent's Answer p. 5. Review of Decker's first state habeas application reflects that Respondent is correct. Decker failed to raise these two grounds for relief. Ex Parte Decker, App. No. 23, 091-06 pp. 4-22. He is, therefore, procedurally barred from raising these grounds in the instant proceeding.
On November 9, 2000, Decker filed a supplement to his petition in which he raises two more grounds for relief. First, he complains that the jury charge was defective because there was a fatal variance between the language of the indictment and the charge. Motion for Leave to File Supplemental Petition pp. 1-2. In his ninth ground for relief, Decker challenged the validity of the jury charge. Respondent correctly argued that the claim was procedurally barred. Thus, it is apparent that, if directed to respond to Decker's new claims, Respondent would raise the issue of procedural bar. Review of Decker's first state application reflects that he failed to raise this ground for relief. Therefore, the claim is procedurally barred.
In his second supplemental ground for habeas relief, Decker complains that the state railed to disclose information regarding the promise of early release to a witness against him, Decker's former fellow inmate, Harold Nunley. This is a restatement of Decker's third ground for relief which the Court has already addressed in this opinion. For the reasons previously stated, this ground is without merit.
The Texas Court of Criminal Appeals considered and denied Petitioner's claims for habeas relief. Ex parte Decker, App. No. 23, 091-06. With regard to the claims addressed in this opinion, Decker has failed to demonstrate that the state court's decision was contrary to or involved an unreasonable application of federal law or that the decision was based upon an unreasonable determination of the facts in this case.
As previously noted, Decker's claims of ineffective assistance of counsel and insanity at the time of the offense will be referred by separate order to the United States Magistrate Judge for review.
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is DENIED IN PART, All grounds for relief except those of ineffective assistance of counsel and insanity at the time of the offense are hereby DENIED.
The Clerk of Court shall transmit a true copy of this Order to Petitioner and to Counsel for Respondent.
SO ORDERED.