Opinion
No. 3:01-CV-815-R
February 6, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 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 follow:
FINDINGS AND CONCLUSIONS
I. NATURE OF THE CASE
Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
II. PARTIES
Petitioner is an inmate in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"). Respondent Janie Cockrell is Director of the TDCJ-ID.
III. PROCEDURAL BACKGROUND
On November 10, 1998, Petitioner was found guilty of indecency with a child by contact, enhanced by two prior convictions. Petitioner was sentenced to 30 years imprisonment. On March 27, 2000, the Texas Fifth District Court of Appeals affirmed Petitioner's conviction. ( Lampkins v. State of Texas, No. 5-98-01920-CR (Tex.App.-Dallas, March 27, 2000)). On August 30, 2000, the Texas Court of Criminal Appeals denied Petitioner's petition for discretionary review. (Respondent's Ex. A).
On December 19, 2000, Petitioner filed a state petition for writ of habeas corpus. ( Ex parte Lampkins, Application No. 48, 568-01). On March 28, 2001, the Texas Court of Criminal Appeals denied the petition without written order. ( Id. at cover).
On April 30, 2001, Petitioner filed this petition for writ of habeas corpus. Petitioner argues: (1) the trial court violated the Confrontation Clause because, after being removed from the courtroom, the audio device available to him was so distorted that he could not understand the proceedings against him and he was unable to communicate with his attorney; (2) he was denied the effective assistance of counsel on appeal because of the defective audio device; (3) he was denied the effective assistance of counsel at trial because of the defective audio device; (4) he was denied the constitutional right to be present during his trial; and (5) the evidence was legally and factually insufficient to show that he acted with the requisite intent to arouse and gratify his sexual desires.
IV. FACTUAL BACKGROUND
The Fifth District Court of Appeals of Texas recited the following factual background in its opinion on direct appeal:
R.A. was fifteen years old at the time of trial. Appellant is her father. During the summer of 1997, R.A. was living with appellant in his Carrollton home. R.A. testified that, on about July 22, four friends were at her house, and they were wrestling with each other. Appellant joined in. After her friends left, R.A. said she and appellant were alone and the two of them began wrestling. R.A. said she told appellant she did not want to wrestle, but he continued. R.A. said she was standing and appellant was in front of her when he touched her breast on her outer clothing with his hand. R.A. told appellant she did not want to play any longer, and appellant pushed her in the back.
The next day, two of R.A.'s cousins, Chenequa and Breon McDuff, spent the night and were watching television in the living room. R.A. testified she was laying on the couch when appellant came in and sat on the back of the couch. R.A. moved to the floor to get away from appellant, and he moved to the floor, too. She testified appellant got underneath the blanket with her and "just moved in closer." R.A. moved, and appellant again moved closer to her. She testified appellant put the front of his body against the back of her body and moved his body "[l]ike out and in," like pelvic thrusts. She said this continued for "some seconds."
R.A. testified that, prior to these incidents, appellant had asked her to watch X-rated moves, made comments to her about her body, told her that his "private part was real big," and had asked her to have sex with him. R.A. said he also previously touched her breasts on about ten occasions, slapped her on her "bottom," rubbed his body against her body, and tried to kiss her with his tongue.
A few days after the incident in the living room, R.A.'s aunt, Polly Howard, picked her up and said they were going to a restaurant-arcade. Instead, Howard took R.A. to Child Protective Services, where R.A. gave a written statement. R.A. acknowledged that she subsequently denied the incidents to "a lot of people," including appellant's original attorney. She explained that she did so because she was living with appellant's girlfriend and feared she would be kicked out of the house unless (sic) retracted the allegations. Also, she said she was embarrassed.
Breon testified about the incident in the living room. In July 1997, he testified he spent the weekend at appellant's house. One night, he said R.A. and appellant were laying on the couch and he saw "some movement and stuff going on. . . like someone was having sex or something." Breon watched from the corner of his eye and was able to see what was going on. He explained that appellant was behind R.A. and was moving "in a sideways motion" and "going up and down." He said the movement continued for twenty to twenty-five minutes and was not appropriate. Appellant looked over at him "a couple of times" to see if he was watching. Breon said it made him "nervous" because his little sister, Chenequa, was there.
Breon told his aunt about the incident. He acknowledged that he had prior felony convictions for unauthorized use of a motor vehicle and possession of cocaine. He further testified he liked appellant. Chenequa testified she spent the night at appellant's house that night but went to bed early and did not see anything happen.
Appellant called no witnesses. After hearing all the evidence, the jury found appellant guilty.Lampkins v. State of Texas, No. 5-98-01920-CR (Tex.App.-Dallas, March 27, 2000) at 1-3.
V. DISCUSSION
A. Procedural Bar
Respondent argues that Petitioner's claims two, three and the portions of claim one complaining about defective audio equipment are procedurally barred.
Federal courts may not review a state court decision that rests on an adequate and independent state procedural default, unless the habeas petitioner shows cause for the default and "prejudice attributable thereto" or demonstrates that the failure to consider the federal claim will result in a "fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989). 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).
In this case, Respondent urges the Court to find Petitioner's claims two, three and the portions of claim one complaining about defective audio equipment procedurally barred for failure to present them to the Texas Court of Criminal Appeals either in a petition for discretionary review or a state writ. When a claim has not been reviewed by the state's highest court, this Court may find such claim procedurally barred. See Coleman v. Thompson, 501 U.S. 722 n. 1 (1991). The general rule that a state court must explicitly apply a procedural bar to preclude federal review does not apply when a petitioner has not presented his claims to the highest court of the state and the state court to which he would be required to present his claims would now find the claims procedurally barred. Id.
Petitioner has not presented claims two, three and the portions of claim one complaining about defective audio equipment, to the Texas Court of Criminal Appeals. If this Court required him to do so, the claims would be subject to dismissal under the Texas abuse-of-the-writ doctrine. Tex. Code Crim. Pro. Ann. art. 11.07, § 4. That doctrine "prohibits a second [state] habeas petition, absent a showing of cause, if the applicant urges grounds therein that could have been, but were not, raised in his first habeas petition." Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997) (footnote omitted). "[A]rticle 11.07 § 4 is an adequate and independent state procedural ground to bar federal habeas review and . . . has been strictly and regularly applied since 1994." Smith v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000). When such a state procedural ground exists, "federal courts ordinarily will not review questions of federal law. . . ." Id. (citing Coleman v. Thompson, 501 U.S. 722, 729 (1991)). To overcome the procedural bar established by the abuse-of-the-writ doctrine, a petitioner must demonstrate: (1) cause for the procedural default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider his claims will result in a fundamental miscarriage of justice." Id. at 524. Petitioner has shown no cause for his failure to present claims two, three and the portions of claim one complaining about defective audio equipment to the Texas Court of Criminal Appeals.
Petitioner has also failed to demonstrate the need to prevent a miscarriage of justice. This 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.'" Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999). To establish the required probability that he was actually innocent, a petitioner must support his allegations with new, reliable evidence that was not presented at trial and must show it was more likely than not that no reasonable juror would have convicted him in light of the new evidence. Id. (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)). Petitioner has presented no new, reliable evidence showing that it was more likely than not that no reasonable juror would have convicted him. Petitioner has not overcome the state procedural bar. Accordingly, the procedural default doctrine bars federal habeas relief on Petitioner's claims two, three and the portions of claim one complaining about defective audio equipment.
B. Standard of Review
The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254, 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). 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. See Williams v. Taylor, 529 U.S. 362, 380-84 (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. See Williams, 529 U.S. at 307.
This amendment applies to all federal habeas corpus petitions which were filed after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2049, 138 L.Ed.2d 481 (1997). The petition in this case is subject to review under the AEDPA.
C. Petitioner's first and fourth claims, that the trial court abused its discretion and violated his constitutional rights by removing him from the courtroom.
Petitioner argues the trial court abused its discretion and violated the Confrontation Clause when it removed him from the courtroom after he disrupted the proceedings. He also argues that his removal prevented him from communicating with his attorney.
The record reflects that Petitioner made several outbursts during the trial. Shortly after Petitioner's daughter began to testify, the record reflects that Petitioner made the following outbursts:
Petitioner: [T]ell these people the truth.
Court: Mr. Lampkins —
Petitioner: God.
Court: — I've instructed you, you need to be quiet.
Petitioner: What y'all done did to my baby?
Court: All right. I hear one more word out of you, Mr. Lampkins, and I've told you what will happen, one word. Are we clear?
(Tr. 22: 20-23:4).
Petitioner's daughter continued her testimony when the trial judge suddenly excused the jury from the courtroom. The trial judge stated:
Court: You're really not helping yourself, Mr. Lampkins.
Petitioner: It doesn't matter. I never did nothing but love that girl. I ain't never did nothing inappropriate with my baby. I don't care what y'all do. I'm through with this.
Court: All right. Let's put him in the holding cell, please.
Petitioner: I'm through with this.
* * *
Court: Let the record reflect that apparently during voir dire, the Defendant was — The Court heard him talking to some of the potential jurors and apparently was making some hand gestures to some of them. I admonished him in court not to do so.
I admonished him that he had the right to be in the courtroom during his trial and that we wanted very much for him to be in the courtroom during his trial, but that he would have the opportunity to testify under oath if he wanted to; that would be his call, but that it was not appropriate for him to be making comments and gestures so that the jurors could hear and see what he was doing. He said he understood, and I told him if he continued to do so that he would not be able to be in the courtroom.
* * *
Then, the record will accurately reflect that the Defendant was communicating with the witness. It was very clear to the Court that she was already under strain and fragile on the witness stand and that she did begin to cry when he started to talk to her.
Even as the Court tried to admonish him, again, he still interrupted the Court and was not compliant; therefore; the Defendant will not be allowed in the courtroom. I will turn on the microphone in the holding cell so he can hear the testimony, but he's lost the right to be in the courtroom at this time.
(Tr. 24-26). After the prosecution rested, the Court allowed Petitioner back into the courtroom.
A defendant's Sixth Amendment right to be present at his own trial is not absolute; rather, the privilege may be lost by misconduct. In Illinois v. Allen, 397 U.S. 341 (1970), the Supreme Court held that "a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom." Id. at 343.
On direct appeal, the state appellate court found that the trial judge properly warned Petitioner of the consequences of his outbursts and properly excluded Petitioner from the courtroom. The state appellate court's decision is consistent with federal law and is not unreasonable in light of the evidence presented. See United States v. Stratton, 649 F.2d 1066, 1080 n. 21 (citing Illinois v. Allen, 397 U.S. 337, 343 (1970) (finding exclusion of a criminal defendant from trial following persistent disruptive conduct and warning does not abridge the right to be present in the courtroom at trial); see also, United States v. Kizzee, 150 F.3d 497, 502 (5th Cir. 1998) (finding conduct of trial is matter within sound discretion of the trial court). Petitioner's claims are without merit and should be denied.
D. Legal and Factual Sufficiency
Petitioner claims the evidence was legally and factually insufficient to show that he acted with the requisite intent to arouse and gratify his sexual desires. Federal habeas review of an insufficiency of the evidence claim is extremely limited. A federal court may not disturb a conviction in a state criminal proceeding unless no rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Gibson v. Collins, 947 F.2d 780, 781 (5th Cir. 1991). The evidence must be viewed in the light most favorable to the verdict. Jackson, 443 U.S. 319; Gibson, 947 F.2d at 781. This standard of review applies in both direct and circumstantial evidence cases. Schrader v. Whitley, 904 F.2d 282, 287 (5th Cir. 1990).
Respondent correctly notes that factual insufficiency of the evidence does not provide an independent basis for federal habeas relief "Factual insufficiency" is a creation of Texas law whereby the reviewing court scrutinizes the factfinder weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). The relevant inquiry in a federal habeas proceeding, however, is whether "[a] rational trier of fact could have found proof of guilt beyond a reasonable doubt." Schrader v. Whitley, 904 F.2d 282, 284 (5th Cir. 1990), (quoting Jackson v. Virginia, 443 U.S. 307, 324 (1979)). This standard of review controls even if state law would impose a more demanding standard of proof. Schrader, 904 F.2d at 284; see also Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991).
Under Texas law, a person commits indecency with a child under the age of seventeen:
[I]f, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he:
(1) engages in sexual contact with the child. . .
Tex. Penal Code Ann. § 21.11(a) (Vernon Supp. 2000).
In the indictment, Petitioner was charged with sexual contact with a child, "by contact between the hand of defendant and the breasts of complainant, with the intent to arouse and gratify the sexual desire of the defendant." Petitioner argues the evidence was insufficient to show that he acted with the requisite intent to arouse and gratify his sexual desires.
The intent to arouse or gratify the sexual desire of defendant is an essential element of the offense. Duwe v. State, 642 S.W.2d 804, 805 (Tex.Crim.App. 1982); Santos v. State, 961 S.W.2d 304, 308 (Tex.App. — Houston [1St Dist.] 1997, pet. ref'd). The requisite specific intent can be inferred from the defendant's conduct, his remarks, and all surrounding circumstances. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App. 1981); Santos, 961 S.W.2d at 308.
In this case, Petitioner's daughter testified that Petitioner touched her breast outside her clothing while the two were wrestling. (Tr. 20-24). The daughter testified that when she told Petitioner she no longer wanted to play, he pushed her. (Tr. 34). She testified that Petitioner asked her to watch X-rated movies with him, that he asked her to have sex with him, that he made comments about her body and his "private parts," that he touched her breasts on approximately ten other occasions, and that he tried to kiss her with his tongue. (Tr. 35-45; 66). Petitioner's daughter also testified that when she was laying on the floor underneath a blanket watching television, Petitioner got underneath the blanket on top of her and simulated sex. (Tr. 49-50). This testimony regarding the simulated sex was corroborated by a cousin of the complainant who was present at the time of the incident. (Tr. 87-88).
Viewing this evidence in the light most favorable to the verdict, the Court finds that the evidence was sufficient to prove beyond a reasonable doubt that Petitioner had the requisite intent to arouse or gratify his sexual desire. The state appellate court found that "a rational jury could infer the requisite intent from this evidence." Lampkins v. State of Texas, No. 5-98-01920-CR (Tex.App.-Dallas, March 27, 2000) at 5. The state court's decision is neither contrary to clearly established federal law, nor unreasonable in light of the evidence presented. This ground for relief should be denied.
RECOMMENDATION
For the foregoing reasons, the Court recommends the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied with prejudice for failure to make a substantial showing of the denial of a federal right.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on Plaintiff by mailing a copy to him by United States Mail. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error.Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).