Opinion
No. 3:01-CV-2869-D
November 4, 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, Correctional Institutions Division ("TDCJ — CID"). Respondent Douglas Dretke is Director of the TDCJ — ID.
III. PROCEDURAL BACKGROUND
Petitioner was charged in the 18th Judicial District Court of Johnson County, Texas, with one count of possession of a controlled substance, cocaine, with intent to deliver ("count one") and one count of possession of a controlled substance, cocaine ("count two"). On September 23, 1998, the jury found him guilty on both counts. The jury assessed punishment of concurrent terms of imprisonment for sixty years on count one and twenty years on count two.
On February 23, 2000, the Tenth Court of Appeals reformed and partially affirmed Petitioner's conviction. Price v. State, 15 S.W.2d 577, 579 (Tex.App.-Waco 2000). The court found that Petitioner's convictions for both possession of a controlled substance and possession of a controlled substance with intent to deliver were improper unless separate quantities of cocaine were identified for each offense. The court found that separate quantities of cocaine were not identified at trial and therefore deleted Petitioner's conviction for the lesser offense of possession of a controlled substance. The appellate court affirmed the remainder of the judgment.
On August 30, 2000, the Texas Court of Criminal Appeals denied Petitioner's petition for discretionary review. Price v. State, PDR No. 1085-00. Petitioner filed two state applications for writ of habeas corpus. Exparte Price, Application Nos. 48, 359-01, -02. On February 21, 2001, the Texas Court of Criminal Appeals denied the first writ without written order on the findings of the trial court. Exparte Price, Application No. 48, 359-01, at cover. On October 3, 2001, the Texas Court of Criminal Appeals denied the second writ without written order. Ex parte Price, Application No. 48, 359-02, at cover.
On November 6, 2001, Petitioner filed this federal petition. Petitioner argues:
1. He received ineffective assistance of counsel at trial because counsel:
(a) failed to file a motion to suppress evidence;
(b) failed to independently test the state's fingerprint evidence or call expert witnesses on the fingerprints;
(c) failed to object during trial to the introduction of inadmissible evidence;
(d) failed to conduct a proper cross-examination of the state's fingerprint expert;
(e) failed to conduct a proper cross-examination of the arresting officer;
(f) failed to object to the prosecution's improper jury argument during the punishment phase;
(g) presented an improper jury argument during both the guilt/innocence phase and the punishment phase; and
(h) failed to move for an instructed verdict.
2. He received ineffective assistance of counsel on appeal because counsel submitted an inadequate appellate brief that:
(a) presented a vague Double Jeopardy argument;
(b) misrepresented the facts of the case;
(c) did not include the Strickland test for ineffective assistance of counsel, therefore the appellate court did not address the issue;
(d) contained a frivolous mistrial/continuance argument and failed to raise more meritorious claims.IV. FACTUAL BACKGROUND
The state records reflect the following factual background.
Officer Joseph Pilato testified that around 5:30 p.m. on January 4, 1997, he was traveling northbound in a marked patrol car on Colorado Street in Cleburne, Johnson County, Texas. (Tr. Vol. 5, p. 23). As he approached the "T" intersection with Peacock Street, Pilato observed both a car traveling southbound on Colorado (approaching the intersection) and a pickup truck traveling westbound on Peacock at an unsafe rate of speed. (Id. at 23-24). Pilato further noticed the pickup as it failed to yield the right-of-way and then turned left in front of the southbound vehicle, causing it to swerve sharply to avoid a collision. (Id. at 24-25). Pilato was also forced to veer his patrol car to the left to miss being hit by the southbound vehicle. (Id. at 25).
Activating both his siren and lights, Pilato then turned his patrol car around and pursued the truck southbound on Colorado. (Id. at 25-26, 29). The pickup truck quickly turned left off of Colorado and pulled into the first driveway at 101 East Robbins. (Id. at 26-28).
At that time, the resident of 101 East Robbins, Ms. Gloria Scales, had just returned home and had parked her car in her carport. (Id. at 28-30, 61, 95-96). Ms. Scales watched as Petitioner exited the pickup truck and hurriedly approached her, asking if he could speak to the lady of the house and if could come inside her house. (Id. at 29, 60-61, 97). Ms. Scales informed Petitioner that she was the lady of the house and he could not enter her residence. (Id. at 30, 97).
At this point, Petitioner was at the front of Ms. Scales vehicle while Officer Pilato was at the other end, ordering Petitioner to come out and produce his driver's license and insurance card. (Id. at 29-31, 43, 57). Ms. Scales then informed Officer Pilato that she did not know Petitioner and she was not going to allow him to enter her house. (Id. at 30, 75, 97). As Pilato tried to approach Petitioner, Petitioner began walking around the car — using it as a barrier between the two of them. (Id. at 30, 31, 98). Petitioner then ran out an opening of the back of the carport. (Id. at 31, 64, 84-85, 98).
Officer Pilato chased Petitioner through Ms. Scales backyard, over numerous fences, through several yards, and down various alleys and streets. (Id. at 32-36, 43-44). As Petitioner was running on Royal Street, he stopped alongside a picket fence with Pilato 10-12 yards away. (Id. at 36-45, 76, 86-88). Pilato observed Petitioner go over the fence, place something on the top rail of the fence, and then get up and quickly walk away with his back to the officer. (Id. at 37-38, 45, 63, 86). After arresting and handcuffing Petitioner, Pilato went back to the spot on the fence where he saw Petitioner place something and found a black leather pouch. (Id. at 38-40, 45, 64, 76-79, 87). The pouch was unsoiled, yet moist — even though the weather was clear. (Id. at 34, 45, 46, 87). A search of the pouch revealed two zippered compartments, one containing what appeared to be crack cocaine and the other having a large ziploc plastic baggie that contained numerous smaller ziploc baggies. (Id. at 48, 53).
Officer Pilato released the black-leather pouch to STOP Task Force Officer Dan Thomas. (Id. at 50, 80-81, 90-92). The contents were later analyzed by the Department of Public Safety Crime Lab in Garland, Texas, and were determined to be 5.09 grams of cocaine. (Id. at 100-02, 108, 112). Pilato testified he was convinced the pouch belonged to Petitioner, so he did not request that the pouch or its contents be fingerprinted. (Id. at 81).
On January 24, 1997, Petitioner was indicted on one count of possession of a controlled substance with intent to deliver, four grams or more of cocaine, but less than 200 grams, and one count of possession of a controlled substance four grams or more of cocaine, but less than 200 grams. (Clerk's Record, pp. 16-17).
On February 2, 1998, the parties conducted voir dire in Petitioner's trial. (Tr. Vol. 3, pp. 1-158). After voir dire was completed, the prosecution decided to test the baggies from the pouch to determine whether any fingerprints existed. (Tr. Vol. 4, p. 5). A partial print was discovered on one of the small baggies, and the next morning it was confirmed to be Petitioner's print. (Tr. Vol. 5, pp. 124-26, 129-34).
Defense counsel moved for a mistrial based on the new evidence. (Tr. Vol. 5, pp. 2-7). The Court denied the motion. (Id. at 7). Defense counsel then moved for a continuance of two weeks to thirty days so that he could conduct his own testing on the print. (Tr. Vol. 4, p. 7). The Court granted a 24 hour continuance and also granted funds to have the print tested. (Id.).
Trial resumed the next morning. On that morning, Petitioner failed to appear for trial and the trial proceeded without him. (Tr. Vol. 5, pp. 5-11). The jury found Petitioner guilty on both counts and assessed punishment at sixty years imprisonment for count one and twenty years imprisonment for count two, to run concurrently. (Id. at 167-68; Tr. Vol. 6, pp. 40-41).V. DISCUSSION
1. 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 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.See 28 U.S.C. § 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. 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. Id.
This amendment applies to all federal habeas corpus petitions which are adjudicated on the merits in state court after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2049 (1997). The petition in this case is subject to review under the AEDPA.
Additionally, under 28 U.S.C. § 2254(d), a presumption of correctness must be accorded findings of fact made by a state habeas court if supported by the record. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994) (citation omitted).
2. Ineffective assistance of counsel
To sustain a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), Petitioner must show that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense so gravely as to deprive Petitioner of a fair trial. Id. at 687. hi Strickland, the Court stated that "[j]udicial scrutiny of counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689. Courts, therefore, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.
Even if counsel is proven deficient, a petitioner must prove prejudice. To prove such prejudice, Petitioner must show "a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional errors." Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999) (citing Strickland, 466 U.S. at 694). "[T]he mere possibility of a different outcome is not sufficient to prevail on the prejudice prong." Id. "Rather, the defendant must demonstrate that the prejudice rendered sentencing `fundamentally unfair or unreliable.'" Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).
3. Trial Counsel
(a) Cross-examination
Petitioner argues his counsel was ineffective for failing to adequately cross-examine the arresting officer and the state's fingerprint expert. The record shows, however, that defense counsel extensively questioned both witnesses. Petitioner argues his counsel should have asked the arresting officer a number of questions, including "whether there was a possibility the pouch was already there and [Petitioner] stumbled across it and stopped to see what it was during the chase," or what the distance was from the patrol car to the location of the pouch, or whether the pouch was in plain view of the police car. (Pet. 7F — G). Officer Pilato testified that after he chased Petitioner through a number of backyards, he saw Petitioner put "something" on the ledge of a fence. (Tr. 5, pp. 43-44, 63). Defense counsel cross-examined the arresting officer about whether he saw Petitioner specifically place the pouch on the ledge, (Id. at pp. 63-64, 78); whether he saw Petitioner carrying the bl ack pouch during the chase, (Id. at 68-73); whether Petitioner may have known someone at Ms. Scales' house and that is the reason he stopped at that house, (Id. at 75-76); whether Petitioner had outstanding warrants and whether that could have caused him to run from the police, (Id. at 77-78); and whether the officer adequately protected the evidence so it could be fingerprinted properly, (Id. at 79-81). Defense counsel also established that the officer did not request fingerprinting of the pouch or its contents and there was no identification on or in the pouch to indicate that it belonged to Petitioner. (Id. at 78, 81). The record reflects that defense counsel vigorously cross-examined the arresting officer and that these and other facts critical to the defense where fully explored by counsel on cross-examination.
The record also shows that defense counsel thoroughly cross-examined the state's fingerprint expert. The expert testified that a partial print of Petitioner's thumb was found on one of the baggies from the leather pouch. (Id. at 131). Counsel elicited testimony from this expert that Petitioner's prints were not found on any of the other baggies or on the leather pouch. (Id. at 132). Counsel also established that the evidence was not tested for fingerprints until after the voir dire in this case. (Id. at 133-34). Although Petitioner argues his counsel should have asked whether fingerprints disappear over time and whether the evidence was so tainted it could not be established whether it was Petitioner's fingerprint, this claim is without merit. The record shows that the expert testified the print on the baggie definitely belonged to Petitioner and that testing the prints earlier would not have made any difference. (Id. at 138, 130-31). Petitioner's claims should be denied.
(b) Fingerprint evidence
Petitioner argues his counsel failed to object to the admission of the fingerprint evidence and that counsel failed to independently test the evidence. The record reflects that counsel moved for a mistrial because the evidence was not disclosed until after voir dire. (Tr. Vol 4, pp. 2-7). The judge denied the mistrial motion. (Id. at 7). Counsel then moved for a two week to thirty day continuance based on the new evidence. (Id.). The trial judge denied the motion in part, granting only twenty-four hours for independent testing. (Id.). Petitioner cites no other basis for his counsel to object to the admissibility of this evidence.
Petitioner further argues his counsel was ineffective for failing to independently test the fingerprint evidence. The record reflects that defense counsel was provided twenty-four hours to obtain independent testing. There is no information in the record regarding whether this testing substantiated the state's finding that the print belonged to Petitioner, or whether counsel was unable to complete the testing. Even if Petitioner could show deficient performance by his counsel, however, he has failed to show prejudice. Petitioner has failed to show that any fingerprint expert would have testified that the print in fact did not belong to Petitioner. Petitioner's conclusory allegations are not sufficient. 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); see also, Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985) ("for the appellant to demonstrate the requisite Strickland prejudice, the appellant must show not only that this testimony would have been favorable, but also that the witness would have testified at trial."); see also See Martin v. McCotter, 796 F.2d 813, 819 (5th Cir. 1986) ("hypothetical or theoretical testimony will not justify the issuance of a writ. . ."). Petitioner's claims are without merit and should be denied.
(c) Prosecution's argument
Petitioner argues his counsel was ineffective for failing to object to the Prosecution's arguments in the trial's punishment phase. The prosecutor stated:
What we have here, Brandy Gene Price January 4th of last year decided to come to Johnson County, Texas, and carry with him cocaine, crack cocaine, stuff that kills people, destroys their souls, destroys their families, does more harm.
(Tr. Vol. 6, p. 27). Petitioner objects there is nothing in the record that shows crack cocaine destroys peoples' souls.
The prosecutor's comments, however, were arguably designed to call on the jurors to act as the conscience of the community. See United States v. Duffaut, 314 F.3d 203, 211 (5th Cir. 2002) (finding prosecutor's comments regarding drug distribution affecting "family after family" and "person after person" not improper). Petitioner has failed to show his counsel was deficient for failing to object to this statement. Further, even if counsel was deficient, Petitioner has not shown that but for his counsel's failure to object to this comment, there is a reasonable probability that the result of the trial would have been different. See Crane, 178 F.3d at 312. Petitioner's claims should be denied.
(d) Jury argument
Petitioner argues his counsel was deficient for making improper jury arguments during both the guilt/innocence phase and the punishment phase of the trial. Petitioner objects to the following argument:
I'll tell you one other thing the State is lacking here. One fingerprint, a partial fingerprint on one baggy with a little bitty piece of cocaine in it that didn't weigh 4 grams. They proved, possibly, that he had possession of one baggy that was less than 4 grams.
(Tr. Vol. 5, pp. 159). Petitioner claims counsel made similar arguments throughout his closing and in the punishment phase.
Petitioner argues his counsel should not have conceded that his print was found on the baggie. Petitioner, however, fails to show his counsel was ineffective. His counsel was attempting to show that a partial print on one baggie did not amount to possession of cocaine of an amount between 4 grams and 200 grams as charged in the indictment. Counsel was attempting to argue that the state failed to carry its burden of proving each element of the indictment. Petitioner has not overcome the presumption that the "challenged action might be considered sound trial strategy." See Strickland, 466 U.S. at 689.
Petitioner also argues his counsel was ineffective for making the following statements during the punishment phase:
As a defense attorney, in this particular case imparticular (sic), it isn't easy to come up here and present evidence to you and represent this man.
(Tr. Vol. 6, p. 31).
Petitioner argues this statement was improper. Defense counsel, however, went on to state:
But that's what we do. We represent people and give them their day in court. We respect your verdict that you came back (sic) yesterday. And we would just like you to consider a couple of things when you go back there in the back room to set a punishment in this case.(Id.). Counsel then argued that the sentence should serve not simply to punish Petitioner, but to rehabilitate him. Counsel asked that the jurors not sentence Petitioner to prison forever, but provide an opportunity for Petitioner to see his children grow up. (Id. at 31-33). Petitioner has failed to show that his counsel's performance was deficient. At the punishment stage the jury had already found Petitioner guilty. It appears to be sound trial strategy for defense counsel to acknowledge the jury's verdict and to make a plea for leniency. Petitioner has also failed to show the required prejudice. Petitioner's claims should be denied.
(e) Instructed verdict
Petitioner argues his counsel was ineffective for failing to move for an instructed verdict at the close of the state's case "pursuant to the requirement of two witnesses or one with corroborating circumstances to authorize a conviction." (Pet. p. 7G). Under Texas law, however, there are only three kinds of evidence that require corroboration: (1) accomplice testimony, Tex. Code Crim. Proc. Ann. 38.14 (West 1996); (2) a defendant's out of court confession, Tex. R. Evid. 803(24); and (3) a sexual assault victim's testimony where the victim is 18 years or older, Tex. Code Crim. Proc. Ann. art. 38.07 (West 1996). This case does not fall within any of these provisions. Petitioner has failed to show his counsel was deficient for failing to request a directed verdict. Counsel is not required to file frivolous motions. See United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995). Petitioner's claims are without merit and should be denied.
(f) Motion to suppress
Petitioner argues his counsel was ineffective for failing to file a motion to suppress the drug evidence. Petitioner, however, abandoned the drugs prior to being seized under the Fourth Amendment. Under both United States Supreme Court and Texas law, "the seizure of the citizen has not occurred until a reasonable person would believe he or she was not free to leave, and that person has yielded to the officer's show of authority or been physically forced to yield." Johnson v. State, 912 S.W.2d 227, 236 (Tex.Crim.App. 1995); see also California v. Hodari D., 499 U.S. 621, 629 (1991). Where a police officer chases a suspect who has failed to yield to the officer's show of authority, no seizure has occurred until the officer physically stops the defendant or the defendant yields to the officer. See Hodari D., 499 U.S. at 629 (finding where defendant failed to comply with officer's order to halt, defendant was not seized until he was tackled by the officer and the cocaine he threw down during the chase was abandoned and was not the fruit of a seizure); see also Johnson, 912 S.W.2d at 234 (finding where defendant ran from officers he was not seized until "he actually yielded to the orders of the arresting officers and stopped running away from them.").
In this case, Petitioner fled from Officer Pilato and did not yield to the Officer's order to stop. Officer Pilato saw Petitioner place the pouch on the fence ledge during the chase. At that point, although Petitioner stopped running, he still did not comply with Officer Pilato's commands to stop. (Tr. Vol. 5, pp. 37-39). Petitioner instead continued at a pace "a little faster than a walk" away from the officer. (Id. at 38). Petitioner was therefore not seized until after he placed the pouch on the fence ledge.
Further, Petitioner abandoned the cocaine prior to his arrest. Under Texas law, abandonment occurs if: (1) the defendant intended to abandon the property; and (2) the decision to abandon the property was not due to police misconduct. Swearingen v. State, 101 S.W.3d 89, 101 (Tex.Crim.App. 2003). "Even though a person may have a subjective intent to regain possession of his property, if he places or throws it into an area open to the public he has abandoned his property for search and seizure purposes." See Armstrong v. State, 966 S.W.2d 150, 153 (Tex.App. — Austin 1998) (citations omitted). In this case, Petitioner abandoned the cocaine by placing it on the fence ledge and walking away from it. Further, this abandonment was not due to police misconduct. After witnessing Petitioner's reckless driving, Officer Pilato had probable cause to detain Petitioner. During Officer Pilato's attempt to detain Petitioner, Petitioner fled. Petitioner had not been seized prior to his abandonment of the cocaine, his constitutional and statutory protection against unlawful search and seizure were not violated. Finally, the trial witnesses testified to a proper chain of custody. (Tr. Vol. 5, pp. 49-50, 91-92, 101-02, 110-12). Petitioner's claim that his counsel was ineffective for failing to file a motion to suppress the cocaine is without merit. Counsel is not required to file frivolous motions. See Gibson, 55 F.3d at 179. Petitioner's claims should be denied.
(g) Admissibility of evidence
Petitioner argues his counsel was ineffective for failing to object to the admissibility of the drug evidence and the fingerprint evidence. As discussed above, seizure of the drug evidence did not constitute a violation of Petitioner's Fourth Amendment rights and the state established a proper chain of custody. Petitioner has stated no sufficient legal grounds for objecting to the admissibility of this evidence. As to the fingerprint evidence, Petitioner's counsel moved for a two week to thirty day continuance of the trial and moved for a mistrial based on the late disclosure of this evidence. The Court denied both motions. Petitioner has stated no other sufficient legal grounds for objecting to the admissibility of the fingerprint evidence. Petitioner has not shown his counsel was deficient. Counsel is not required to make frivolous motions. See Gibson, 55 F.3d at 179. Petitioner's claims should be denied.
4. Appellate counsel
Petitioner argues his appellate counsel was ineffective for filing an inadequate appellate brief. Petitioner raises the following claims:
(a) Double jeopardy
Petitioner argues his appellate counsel was ineffective for raising a vague double jeopardy argument. Contrary to Petitioner's assertion, appellate counsel raised a successful double jeopardy argument. The appellate court agreed with counsel's arguments and deleted Petitioner's Petitioner cannot show that his appellate counsel was deficient, or that he was prejudiced, by his appellate counsel's failure to raise these claims. Petitioner's ineffective assistance of appellate counsel claims should be dismissed.
VI. CONCLUSION
The state court's decision to deny relief appears consistent with clearly established federal law of the United States Supreme Court. The state court's decision also appears to be based on a reasonable determination of the facts. The petition should therefore be denied.
RECOMMENDATION
For the foregoing reasons, the petition should be denied with prejudice for failure to make a substantial showing of the denial of a federal right.
IT IS SO ORDERED.