Opinion
CIVIL ACTION NO. 4:02-CV-0960-A
July 29, 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 Ronnie Lewis Gibbons, TDCJ-ID #860445, 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 1998 Gibbons was charged by indictment with murdering George Morris, a friend and cohort in the illegal drug business. (Clerk's R. at 3; 4Rep. R. at 42, 69; 5Rep. R. at 146, 149.) The testimony at trial showed that three days before the murder, Morris and Shelly Sube went to Gibbons's mobile home. (4Rep. R. at 17.) Gibbons "fronted" some "speed" to Morris and told him that if he did not come back with the money for the "dope," $900, later that day, he would "put a bullet" in Morris. (4Rep. R. at 22-23; 5Rep. R. at 154; 6Rep. R. at 6.) Shortly after leaving Gibbons's trailer, Morris and Sube were stopped by local law enforcement officers. (4Rep. R. at 2425.) Morris was released, but Sube was held on an outstanding traffic warrant. (Id. at 25-26.) The next day, Sube contacted Gibbons about paying the outstanding ticket. (Id. at 26-27, 49.) Gibbons told Sube that he had given the money for the ticket to Morris to pay. (Id. at 26-27, 52.) Sube next saw Gibbons several days later at the "Pot of Gold," where she worked. (Id. at 27.) Gibbons was looking for Morris and told Sube that he and Becky Ewing, Gibbons's girlfriend, were going to Morris's house later that night. (Id. at 28.) Gibbons's told Sube that he wished she had not overheard his earlier threat to Morris. (Id. at 28-29.) Sube asked Gibbons not to shoot or kill Morris, and Gibbons laughed and said, "I'll just shoot him in the kneecaps." (Id. at 30.) Sube told Gibbons that Morris probably had the money, and Gibbons responded, "Well, it's probably not going to matter. . . . [H]e's got it coming." (Id. at 30.) Sube begged Gibbons to wait for her to get off work so she could go with them to Morris's to return Morris's clothes and his beeper. (Id. at 31.) Gibbons's asked Sube, "Does he have a suit," which Sube interpreted as a threat that Morris "was going to be having a funeral." (Id. at 31.) Sube's friend, Karen Siples, also heard the comment. (Id. at 66.) Sube learned the next day that Morris had been shot and killed. (Id. at 32-33.) Sube admitted that Morris was "known to hit his girlfriends and he had hit [her] a couple of times." (Id. at 37.) However, she had never heard him threaten anyone's life. (Id. at 38.) She was also aware that Morris collected knives, usually carried a pocketknife on his person, and often "fiddled" with his knife. (Id. at 48, 59.)
James Graham, a friend of both Morris and Gibbons and a drug addict, testified that on the night in question, Gibbons and Ewing picked him up at a bar. Ewing was driving, Gibbons sat in the front passenger seat, and he sat in the back seat. (Id. at 86.) On their way to Graham's brother-in-law's house, they saw Morris's motorcycle at a Fina station. (Id. at 77-78, 82.) According to Graham, Gibbons told Ewing to pull into the station. As they were pulling in, Gibbons rolled down his window, pulled out a shotgun between the seats, and loaded the gun. (Id. at 82, 113, 126-28.) They stopped in front of Morris's motorcycle, blocking it in. (Id. at 87; 5Rep. R. at 4, 32, 46.) Morris walked up to the passenger window of the car, and Gibbons asked Morris if he had the money. (4Rep. R. at 90.) Morris replied that he did, and Gibbons shot Morris. (Id.) Gibbons then told Ewing "to go." (Id. at 92-93.) Ewing pulled forward, knocking Morris's motorcycle over, and then backed up and left. (5Rep. R. 6, 33, 49.) Gibbons asked Ewing and Graham, "Did he say yeah, he had it," and Graham replied, "Yeah, he did." (4Rep. R. at 92-93.) Gibbons then said, "Well, I think he had a pocketknife in his hand." (Id.) Graham, however, did not see a knife and said that Morris was "just standing there" when Gibbons shot him. (Id. at 90-91.) Graham did not hear or see Morris threaten Gibbons in any way or slam a knife on the top of or the hood of the car. (Id. at 97, 127.) Later, Gibbons threw the shotgun out the window, and they abandoned the car. (Id. at 9496.) Graham then went to Morris's and Gibbons's houses and "cleaned out all the dope and stuff." (Id. at 120.) Although it was not true, he told Gibbons's son that Gibbons had shot someone protecting himself. (Id. at 121.)
A bystander, Angela Baxley, testified that she was on a pay phone outside the Fina station at the time of the shooting. (5Rep. R. at 4-5.) She saw Morris fall to the ground, but she did not see anything in his hands or hear any threats or argument between Morris and Gibbons before the shooting. (Id. at 5, 8.) Two other bystanders, Aisha Quarteman and her brother James Taylor, testified similarly. Neither of the witnesses saw Morris carrying anything as he approached Gibbons's car, saw him make any kind of aggressive movement, or heard any argument or any words spoken before the shooting occurred. (Id. at 35-36, 47, 50, 54.) All the witnesses testified that the incident happened very quickly. (4Rep. R. at 91; 5Rep. R. at 8, 40, 60.)
Law enforcement officers arrived and found a pocketknife with a 3 1/2 inch blade in the parking lot of the station. (5Rep. R. at 64-72.) Later that night, the local fire department was alerted to a car fire, which appeared to have been started by an accelerant. (Id. at 115-16.) The car was traced back to Gibbons. (Id. at 110.) An arrest warrant was issued for Gibbons on July 25, 1998, and he remained a fugitive for three months. (Id. at 123.) In October, Gibbons was located and arrested at Greg Lawrence's house in Rendon, Texas. Lawrence testified that Gibbons told him about the shooting but said that he had not meant to shoot Morris and that Morris had a pocketknife and had approached the car in a threatening manner. (Id. at 132-33.)
Gibbons, who testified on his own behalf, stated that he never threatened Morris on the morning of the drug transaction. (6Rep. R. at 7-8.) According to his version of the events, when Morris saw Gibbons's car, Morris got out his knife, "whipped" it open, and held it beside his leg as he approached the car. (5Rep. R. at 173, 176.) It was then that Gibbons pulled the loaded shotgun from under the seat and "cocked it." (5Rep. R. at 173, 176, 212; 6Rep. R. at 47.) Morris leaned on the car, and Gibbons asked him if he had the money. (5Rep. R. at 180.) Morris replied that he did not, and he came towards Gibbons. (Id.) Gibbons thought Morris was "fixing to cut his throat." (Id. at 181.) In fear for his life, Gibbons pulled the trigger. (Id. at 181-87, 190, 204; 6Rep. R. at 4344, 52.) Gibbons stated that he did not shoot Morris to collect the money but "to get out of the way of harm." (5Rep. R. at 198; 6Rep. R. at 24-26.) He admitted that Morris had never attacked him before and that he did not attempt to help Morris or contact the police after the shooting. (5Rep. R. at 190-93; 6Rep. R. at 27-29, 52.) He also admitted to burning the car and hiding out for three months. (5Rep. R. at 196; 6Rep. R. at 35.) Finally, he conceded that he had two prior felony convictions for possession of amphetamine and a prior felony conviction for burglary of a building. (5Rep. R. at 213-14.)
Becky Ewing testified similarly concerning the events of the night in question. According to Ewing, Morris approached their car that night with a knife in his hand. (6Rep. R. at 75-76.) She thought Morris had been fidgeting with the knife or cleaning his fingernails with it. (Id. at 101-02.) Morris leaned over the car at the passenger window. (Id. at 102.) Gibbons asked Morris if he had the money, and Morris stated that he did not and "banged the knife down on the car" in a threatening manner. (Id. at 76-77, 109-10.) She did not recall seeing Morris lunge at Gibbons with the knife or reach into the car with the knife, but believed Gibbons shot Morris in self defense. (Id. at 83, 92.) After Gibbons was arrested, she surrendered to authorities. (Id. at 86-87.)
Based on the testimony and other evidence adduced at trial, on February 12, 1999, a jury found Gibbons guilty of murder and assessed his punishment at life imprisonment and a $10,000 fine. (Clerk's R. at 51, 64.) On January 13, 2000, the Second District Court of Appeals affirmed the trial court's judgment. Gibbons v. State, No. 2-99-090-CR (Tex.App.-Fort Worth Jan. 13, 2000) (not designated for publication). Gibbons did not timely seek discretionary review from the Texas Court of Criminal Appeals; thus, his conviction became final on February 12, 2000-30 days after the court of appeals rendered its judgment. TEX. R. APP. P. 68.2(a).
A petition for discretionary review must be filed within 30 days after either the day the court of appeals' judgment was rendered or the day the last timely motion for rehearing was overruled by the court of appeals. TEX. R. APP. P. 68.2(a).
On March 5, 2001, Gibbons filed a state application for writ of habeas corpus arguing, among other things, that his appellate counsel was ineffective by failing to timely inform him of the appellate court's affirmance and of his right to pursue a pro se petition for discretionary review. The Court of Criminal Appeals granted habeas relief to the extent it allowed Gibbons to file an out-of-time petition for discretionary review. Exparte Gibbons, No. 74,164 (Tex.Crim.App. Sept. 12, 2001) (not designated for publication). Gibbons filed a petition for discretionary review, which was refused by the Court of Criminal Appeals on January 9, 2002. Gibbons v. State, PDR No. 2220-01.
Thereafter, Gibbons filed two more state writ applications on January 28, 2002 and June 10, 2002. The first was dismissed on May 15, 2002 because his direct appeal remained pending, and the second was denied without written order on October 16, 2002. Exparte Gibbons, Nos. 49,873-02 49,873-03, at cover. On November 16, 2002, Gibbons filed the instant federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division. Cockrell filed an answer including a motion to dismiss the petition on limitations grounds, to which Gibbons replied. On April 9, 2003, the United States Magistrate Judge entered his Findings, Conclusions, and Recommendation, wherein he recommended that the petition be dismissed as time-barred. 28 U.S.C. § 2244(d). The United States District Judge rejected the Findings, Conclusions, and Recommendation in his memorandum opinion and order dated May 7, 2003. Gibbons v. Cockrell, No. 4:02-CV-960-A, 2003 WL 21056749 (N.D. Tex. May 7, 2003). The District Judge concluded that Gibbons's out-of-time PDR "constituted part of the 'direct review' process for purposes of 28 U.S.C. § 2244(d)(1)(A)," and that Gibbons's petition was therefore timely. The District Judge has again referred the action to the Magistrate Judge for further proceedings. Cockrell has since filed an answer with supporting documentation, to which Gibbons has filed a reply.
See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
The Fifth Circuit Court of Appeals, in Salinas v. Cockrell, No. 02-41721, has granted a certificate of appealability on the same or similar limitations issue presented in this case.
D. ISSUES
In three grounds, Gibbons alleges that he was denied due process and a fair trial by cumulative errors at trial and that he received ineffective assistance of trial and appellate counsel. (Pet. at 7.)
E. RULE 5 STATEMENT
Cockrell believes that Gibbons has sufficiently exhausted his state remedies with regard to the claims presented as required by 28 U.S.C. § 2254(b) (c). (Resp't Answer at 4.)
F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). 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), cert. denied, 532 U.S. 1039 (2001). 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.
The Act further requires that 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. The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Typically, 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. Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002), cert. denied, 123 S.Ct. 963 (2003); Exparte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Due Process
In his first ground, Gibbons contends he was denied due process and a fair trial by cumulative errors that occurred at trial. (Pet. at 7; Pet'r Mem. at i.) More specifically, he contends the prosecutor engaged in prosecutorial misconduct by inflaming the jury with extraneous offense evidence, by making prejudicial statements, and by urging the jury to base his sentence on "the demands of the community." (Id. at 7.) Under this ground, he also complains of the "lack of jury charges." (Id.)
As to his first claim, Gibbons argues the prosecutor improperly informed the jury that he was a drug dealer and had been previously convicted of felony offenses. (Pet'r Mem. at 13.) However, Gibbons, himself, testified on direct examination that he was a drug dealer, had spent time in prison, and had several "run-ins" with the police in the past. (5Rep. R. at 149, 191-92.) Thus, he opened the door to these, perhaps, otherwise irrelevant matters. See Prescott v. Texas, 744 S.W.2d 128, 130-31 (Tex.Crim.App. 1988); Lucas v. Texas, 479 S.W.2d 314, 315 (Tex.Crim.App. 1972). Nevertheless, the lives of the key witnesses in this case were saturated with illicit drug use and drug trafficking. As such, introduction of these matters most likely had little, if any, effect on the outcome of Gibbons's trial. See Blankenship v. Estelle, 545 F.2d 510, 516-17 (5th Cir. 1977).
As to Gibbon's claim of improper jury argument, he complains of the following argument by the prosecutor during closing argument of the punishment phase:
The victims, ladies and gentlemen, in this community, not only of the murder that this man committed, but the victims of his drug dealing demand life. His crime, his character and his community demand life. (7Rep. R. at 54-55.)
In a habeas corpus proceeding, a claim of improper jury argument by the state during a state trial does not present a claim of constitutional magnitude unless it is so prejudicial that the state court trial was rendered fundamentally unfair. Jones v. Butler, 864 F.2d 348, 356 (5th Cir. 1988). To establish that a prosecutor's remarks are so inflammatory, the petitioner must demonstrate that the misconduct is persistent and pronounced or that the evidence of guilt was so insubstantial that the conviction would not have occurred but for the improper remarks. Id.
In Texas, proper jury argument includes pleas for law enforcement. Coble v. State, 871 S.W.2d 192, 204 (Tex.Crim.App. 1993). However, to the extent the prosecutor asked the jury to assess a life sentence because the of the demands of the community, the argument was apparently outside the realm of proper argument. See Cortez v. Texas, 683 S.W.2d 419, 421 (Tex.Crim.App. 1984); Prado v. Texas, 626 S.W.2d 775, 776 (Tex.Crim.App. 1982). However, Gibbons has not met his burden to show that the argument was so flagrant or inflammatory or that the evidence of his guilt was so insubstantial that his sentence would have been less harsh but for the remarks.
Gibbons's final claim under this ground also fails. He contends he was entitled to jury charges on the following issues: sudden passion and self-defense, lesser included offenses, accomplice-witness testimony, and extraneous offense evidence. (Pet'r Mem. at 9-12.) First, it is noted that the failure of a state trial court to give a lesser included offense instruction does not raise a federal constitutional issue. (Resp't Answer at 12.) See Alexander v. McCotter, 775 F.2d 595, 601 (5th Cir. 1985). It is further noted that the jury, in fact, received an instruction on the issue of self-defense at the guilt/innocence phase and on the issue of extraneous offense evidence at both the guilt/innocence and punishment phases. (Clerk's R. at 47-49; 6Rep. R. at 138-39; 7Rep. R. at 46.) See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 2003); TEX. R. EVID. 105(a)., The record does not reflect that Gibbons sought jury instructions concerning the other matters. Nonetheless, as a matter of state law, the issue of sudden passion is a punishment issue, which may be raised by the defendant if there is some evidence to support it. See TEX. PENAL CODE ANN. § 19.02(d) (Vernon 2003); Trevino v. Texas, 100 S.W.3d 232, 237-38 (Tex.Crim.App. 2003). It is the defendant's burden to prove by a preponderance of the evidence that he "caused the death under the immediate influence of sudden passion arising from an adequate cause." Tex. Penal Code Ann. § 19.02(d). "Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. Id. § 19.02(a)(1). "Sudden passion" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation. Id. § 19.02(a)(2).
Here, contrary to his assertion, Gibbons's own testimony tends to discredit a sudden passion theory. A mere claim of fear does not establish sudden passion. Trevino, 100 S.W.3d at 241; Cruck v. State, 934 S.W.2d 788, 795 (Tex.App.-Houston [14 Dist.] 1996, pet. ref'd). Instead, there must be some evidence that the defendant was under the immediate influence of sudden passion-ie., that his mental state "rose beyond a bare claim of fear or was so strong and overpowering that it rendered him incapable of rational thought and collected action." Jones v. State, 963 S.W.2d 177, 180 (Tex.App.-Fort Worth 1998, pet. ref'd). Gibbons's testimony that he thought Morris was "fixing to cut [his] throat" with a pocketknife and that he feared for his life simply do not rise to this level under the facts of this case.
Even assuming his testimony raised the issue, regardless of whether it was weak, contradicted, or unbelievable, Gibbons cannot demonstrate that he was harmed by the omission of a sudden passion instruction. Except in rare instances, when the State's evidence is sufficient to overcome a claim of self-defense, it will also be sufficient to show the absence of sudden passion. See Trevino, 100 S.W.3d at 242; Chavez v. Texas, 6 S.W.3d 56, 65 (Tex.App.-San Antonio 1999, pet. ref'd). Gibbons relies upon the same evidence and factual scenario in support of both his self-defense and sudden passion theories. Thus, in this case, the evidence justifying the jury's finding against Gibbons on self defense also justifies a finding that Gibbons was not under sudden passion when he shot Morris.
Finally, Gibbons was not entitled to an accomplice-witness instruction in light of his theory that he acted in self defense, and not that he planned to shoot and kill Morris. (Id.) Under state law, a person is an accomplice if he participates before, during, or after the commission of a crime and can be prosecuted for that offense or for a lesser included offense. Medina v. Texas, 7 S.W.3d 633, 641 (Tex.Crim.App. 1999). Mere presence during the commission of the crime, knowledge about the crime and failure to disclose it, or even concealment of the crime is not sufficient to render a person an accomplice. Id. Nor does a witness's complicity with the accused in the commission of a different, but related, offense make him an accomplice to the crime for which the accused is on trial. Creel v. State, 754 S.W.2d 205, 213 (Tex.Crim.App. 1988). An accomplice must affirmatively act to promote the commission of the crime either before, during, or after the offense. Medina, 7 S.W.3d at 641. Even when a witness participates in concealing the crime, such evidence is insufficient to raise the issue of accomplice status. Jackson v. State, 933 S.W.2d 696, 698 (Tex.App.-San Antonio 1999, pet ref'd). Gibbons asserts that Graham, Sube, and Ewing could have been named as accomplices, however, Gibbons points to no evidence that Graham, Sube, or Ewing made an affirmative act to promote the commission of the murder either before, during, or after the offense. The testimony of a witness without complicity in the offense for which an accused is on trial is not that of an accomplice-witness, regardless of his complicity with the accused in other offenses. Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim.App. 1987).
3. Ineffective Assistance
In Gibbons's second and third grounds, he contends he received ineffective assistance of counsel at trial and on appeal. A criminal defendant has a constitutional right to the effective assistance of counsel at trial and on a first appeal as of right. U.S. CONST. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984); Anders v. California, 386 U.S. 738, 744 (1967). An ineffective assistance claim is governed by the standards set forth in Strickland v. Washington. Strickland, 466 U.S. at 668. See also Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001), cert. denied, 534 U.S. 1163 (2002) (applying the Strickland standard to ineffective assistance claims against appellate counsel). 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 but for counsel's deficient performance the result of the proceeding would have been different. Strickland, 466 U.S. at 688.
A court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689. Where, as here, a petitioner's ineffective assistance claims have been reviewed on the merits under the Strickland standard and denied by the state's highest court, federal habeas relief will be granted only if the state court's decision was contrary to or involved an unreasonable application of Strickland, or if the state court's decision is based on an unreasonable determination of the facts in light of the evidence before the court. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Haynes v. Cain, 298 F.3d 375, 379-82 (5th Cir.), cert. denied, 123 S.Ct. 676 (2002); Foster v. Johnson, 293 F.3d 766, 777 (5th Cir.), cert. denied, 123 S.Ct. 625 (2002); Santellan v. Cockrell, 271 F.3d 190, 198 (5th Cir. 2001), cert. denied, 535 U.S. 982 (2002).
Gibbons was represented at trial by appointed counsel Rita Rodriguez Utt and on appeal by appointed counsel Earl R. Waddell. He contends Utt was ineffective by (1) failing to conduct a pretrial investigation, (2) failing to request an accomplice-witness jury instruction, (3) failing to request jury charges on sudden passion and extraneous offense evidence, (4) failing to call J.D. Thorton as a witness or allowing witnesses to testify during the punishment phase regarding his "bi-polar condition," and (5) allowing the exclusion of a medical examiner's report. (Pet. at 7; Pet'r Mem. at 5-8.) He contends appellate counsel was ineffective by (1) failing to raise the issues presented in his federal petition, (2) failing to talk to him before filing appellant's brief on appeal, and (3) failing to advise him of his right to file a petition for discretionary review. (Id.)
Gibbons raised his ineffective assistance claims in his first state writ application, and the state trial court, after holding a hearing by affidavit, expressly found that Gibbons received effective assistance of counsel and recommended that his claims be denied, except for his claim that appellate counsel failed to advise him of his right to file a petition for discretionary review. (State Habeas R. at 65-69, 119-24, 137.) Thus, the trial court apparently accorded credibility to counsel's affidavits, and this credibility determination is entitled to a presumption of correctness. See Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997). Thereafter, he again raised his ineffective claims in his petition for discretionary review and his third state writ application, but his claims were rejected in each instance by the Court of Criminal Appeals. Gibbons v. State, PDR No. 2220-01; Exparte Gibbons, 49,873-03, at cover. Because Gibbons's claims have been reviewed on their merits and denied by the state courts, this court can grant federal habeas relief only if the state courts' decision was contrary to or involved an unreasonable application of the standard set forth in Strickland, or if the decision is based on an unreasonable determination of the facts in light of the evidence before the state courts. Haynes, 272 F.3d at 761.
Gibbons states that to his knowledge, the state courts "never answered" his third state habeas application or rendered any findings of fact and conclusions of law regarding his ineffective assistance claims. However, the Texas Court of Criminal Appeals's response to his third petition, stating "Application Denied Without Written Order," implies the state's highest court rejected Gibbons's claims on the merits. See Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003). Further, the state trial court entered findings of fact and conclusions of law refuting Gibbons's allegations of ineffective assistance in response to his first state application. Under the "look through" doctrine, we may look through the denial of the Court of Criminal Appeals to the state trial court's findings on these matters. Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir. 1999); Williams v. Collins, 802 F. Supp. 1530, 1535 (W.D. Tex. 1992).
Having independently reviewed each of Gibbons's claims raised in state court in conjunction with the state court records, this court cannot say that the state courts' application of Strickland's attorney-performance standard was objectively unreasonable in light of counsel's affidavits addressing the claims. See Bell, 535 U.S. at 698. Moreover, Gibbons's arguments fall short of satisfying the prejudice element of Strickland-i.e., that the result of his trial or his appeal would have been different had counsel's performance not been deficient in any of those respects.
II. RECOMMENDATION
Gibbons'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 August 19, 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 August 19, 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.