Opinion
No. 3:01-CV-1360-P
December 3, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties: Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Factual and Procedural History: On September 21, 1993, Dallas Police Officer Susan Harris, was working undercover when she bought drugs from an individual at 3220 Cleveland, Dallas, Texas. Her partner, DPD Officer Sheronda Jones, watched from an undercover vehicle. After Officer Harris made the drug buy, the two undercover officers requested that uniformed officers arrest the individual who sold the drugs to Officer Harris. Officer Jeff Kingery responded to that request and arrested petitioner based on Officer Harris' description of the individual.
The factual background is gleaned from the trial records and appellate decision in this case. The essential facts are not in dispute.
On February 16, 1994, the case against petitioner proceeded to trial. See Statement of Facts, Vol. II at 1 (hereinafter cited as SF-volume, at page). Petitioner challenged the State's peremptory strike against venireperson number three under Batson v. Kentucky, 476 U.S. 79 (1986). SF-II at 112. In response to such challenge, the trial court heard argument, overruled the challenge, and found "the reasons stated are racially neutral." Id. at 112-14.
During the State's case in chief, Officer Harris testified about her role in petitioner's arrest. See SF-III at 21-104. She specifically identified petitioner as the person who greeted her on the porch of 3220 Cleveland and sold her cocaine once inside the premises. Id. at 26-28. Officer Jones also identified petitioner as the individual that Officer Harris approached before entering the dwelling at 3220 Cleveland. Id. at 111. Officer Kingery testified that he arrested petitioner based on the description given by Officer Harris. Id. at 163, 170, 175-76. He further testified that he found drugs on the premises. Id. at 171-73. Chemist Anne Weaver testified that the substances purchased by Officer Harris consisted of two capsules of cocaine. Id. at 209, 213. Chemist Nancy Weber testified that the substances found by Officer Kingery at the location consisted of thirty-nine capsules of cocaine and thirteen capsules of heroin. Id. at 214-17, 220. Petitioner testified in his defense, claiming that Officer Harris had erroneously identified him. See id. at 29-83.
Officer Harris also purchased four capsules of heroin, but the heroin relates to petitioner's co-defendant and is immaterial to the case against petitioner.
The jury found petitioner guilty of delivery of cocaine, and the trial court sentenced him to life imprisonment. See TR at 23 (Judgment). On August 19, 1999, the court of appeals affirmed the conviction. Prince v. State, No. 11-97-00390-CR, slip op. at 9 (Tex.App.-Eastland Aug. 19, 1999, pet. ref'd) (not designated for publication). On June 27, 2001, the Texas Court of Criminal Appeals denied petitioner's state application for writ of habeas corpus without written order. Ex Parte Prince, No. 32-258-03, slip op. at 1 (Tex.Crim.App. June 27, 2001).
"TR" refers to the trial record in Trial Court Cause No. F93-67H9-SL.
Petitioner filed the instant federal writ of habeas corpus on June 30, 2001. ( See Pet. at 9.) He also filed a brief in support of that petition. ( See Brief in Supp.) Respondent filed an answer on November 8, 2001. ( See Answer at 1.)
D. Substantive Issues: Petitioner claims that he is being held unlawfully because (1) he was denied a proper jury when the State exercised a peremptory strike in a racially discriminatory manner; (2) the trial court erred in permitting the State to present testimony from an unlisted witness, Nancy Weber; (3) the trial court erred in permitting the State to improperly bolster and vouch for the credibility of Officer Harris during closing argument; (4) the State improperly used suggestive in-court identification procedures; (5) his conviction was obtained by use of evidence gained from an unconstitutional search; (6) his conviction was obtained by use of evidence gained from an unconstitutional warrantless arrest; and (7) he received ineffective assistance of counsel when his attorney failed to investigate the case and find that petitioner had been arrested in a residence, thus making his arrest illegal. ( See Pet. at 7-8 and attached page.) E. Exhaustion: Respondent concedes that petitioner has sufficiently exhausted his state remedies with respect to the claims raised in the instant federal petition. ( See Answer at 6.)
II. APPLICABLE LAW
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. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date, which is the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after the effective date of the AEDPA, the Act applies to his petition.
Title I of the AEDPA substantially changed the way federal courts handle habeas corpus actions. Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief
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 the State court proceeding.
"In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). In this case, the denial of petitioner's state writ constitutes an adjudication on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) (holding that a denial, rather than a dismissal, signifies an adjudication on the merits). The decision by the court of appeals also constitutes an adjudication on the merits. See Prince v. State, No. 11-97-00390-CR, slip op. at 1-9 (Tex.App.-Eastland Aug. 19, 1999, pet. ref'd). The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply.
Section 2254(d)(1) concerns pure questions of law and mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A decision is contrary to clearly established federal law, within the meaning of § 2254(d)(1), "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
With respect to the "unreasonable application" standard, Williams instructs that a writ must issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." 529 U.S. at 413; see also, Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies Supreme Court precedent if 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." 529 U.S. at 407. "[A] federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; see also, Penry, 532 U.S. at 793.
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were 'based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
III. JURY COMPOSITION
In his first ground for relief, petitioner challenges the racial composition of the jury. He states that the State "unconstitutionally utilized peremptory strikes to exclude venirepersons of African American origin" from the jury panel. (Pet. at 7.)
The Fourteenth Amendment to the United States Constitution guarantees every defendant in a criminal case equal protection under the law. Hernandez v. State, 347 U.S. 475, 477 (1954). In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court re-affirmed that this right extends to the jury selection process. 476 U.S. at 84. Thus, a prosecutor may not use allotted peremptory challenges to exclude potential jurors solely on the basis of their race. See id. at 89.
To establish a case of purposeful discrimination in selection of the jury, "the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." Id. at 96. The defendant must then "show that these facts and any other relevant circumstances raise an inference that the prosecutor used [peremptory challenges] to exclude the veniremen from the petit jury on account of their race." Id. Once the defendant makes a prima facie case of discrimination, the burden shifts to the prosecution to articulate a race-neutral explanation for each of the challenged strikes. Id. at 97; United States v. Wallace, 32 F.3d 921, 925 (5th Cir. 1994); United States v. Bentley-Smith, 2 F.3d 1368, 1373 (5th Cir. 1993). This inquiry focuses on the facial validity of the proffered explanation. Purkett v. Elem, 514 U.S. 765, 768 (1995). "Unless discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral." Id. (citations omitted); accord, United States v. Perkins, 105 F.3d 976, 978 (5th Cir. 1997). The trial court then determines whether the defendant has proven purposeful discrimination. Batson, 476 U.S. at 100; Wallace, 32 F.3d at 925.
Petitioner here claims that Venireperson #3, a person of his race, was improperly excluded from the jury in his case. In response to petitioner's Batson challenge, the trial court heard argument on the matter. See SF-II at 112-14. Petitioner specifically objected to the strike of Venireperson #3 as racially discriminatory. Id. at 112. The prosecutor explained that she struck the individual because "he said that he had a brother and another relative that had been to the pen for felonies." Id. She ultimately explained eight of her strikes, and stated:
All of those individuals were struck because of their interaction with the criminal justice system and either had their own cases or relatives or friends. Based upon my experience, they can bring those into the courtroom and whether they go ask them about the cases now or later, what they knew at this point had no regard to what color, race, had to do with their interaction with the criminal justice system.Id. at 113-14. After hearing these reasons proffered by the prosecutor and the arguments of the parties, the trial court overruled the Batson motion and found "the reasons stated are racially neutral." Id. at 114. The court of appeals considered the Batson challenges and found "that the trial court's findings were [not] clearly erroneous." See Prince v. State, No. 11-97-00390-CR, slip op. at 5-6 (Tex.App.-Eastland Aug. 19, 1999, pet. ref'd).
"[T]he trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference." Hernandez v. New York, 500 U.S. 352, 364 (1991); accord, Batson, 496 at 98 n. 21 (holding that, when a finding of fact turns "on evaluation of credibility, a reviewing court ordinarily should give those findings great deference"). Under 28 U.S.C. § 2254(e)(1) the resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence.
Although petitioner recognizes that a Batson determination turns largely on the trial court's evaluation of the credibility of the attorney's explanation, he asserts that this Court can still analyze the trial court's decision for clear error. (Brief in Supp. at 3.) He claims that the trial court clearly erred in the Batson determination because, while the prosecutor explained that her strike of Venire-person #3 was due to that person's family's previous criminal interactions, the prosecutor failed to strike members of other racial or ethnic groups on that basis. ( Id. at 3-4.)
Contrary to petitioner's assertion, this Court does not review state trial court's findings for clear error. He relies upon federal appellate decisions from federal criminal actions. Section 2254 provides the appropriate standards for handling federal petitions for writs of habeas corpus filed by state prisoners. Petitioner has not rebutted, by clear and convincing evidence, the presumption that the trial court's findings of fact are correct. He contends the factual findings are incorrect because the prosecutor left two "non-African-Americans" on the jury despite those persons having family members who had criminal convictions. Such evidence does not rebut the presumption. The prosecutor herself explained that those two individuals "were not struck because they got probation and were not sent to the pen." SF-II at 114. Petitioner has presented no sufficient reason why this Court should not presume correct the trial court's finding that the State had race-neutral reasons for exercising its peremptory strike. Furthermore, the finding is entirely consistent with the state record. The finding is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. This Court thus defers to the state-court fact finding. In view of that finding, the instant Batson claim entitles petitioner to no habeas relief.
IV. TRIAL ERROR
Petitioner argues that the trial court abused its discretion when it allowed the State to present testimony from a witness not listed on the witness list provided to petitioner. (Brief in Supp. at 6.) He further argues that the trial court erred in permitting the State to improperly bolster and vouch for the credibility of its own witness during closing argument. ( Id.)Evidentiary rulings and rulings made during a state trial regarding the scope of closing arguments are matters of state law that are not subject to re-examination by the federal courts. It is not "the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A petitioner is thus entitled to federal habeas relief due to trial error only if "the error 'had substantial and injurious effect or influence in determining the . . . verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); accord, Burgess v. Dretke, ___ F.3d ___, ___, No. 01-11287, 2003 WL 22597719, at *4 (5th Cir. Nov. 11, 2003) (applying Brecht). There must be "more than a mere reasonable possibility that [the error] contributed to the verdict. It must have had a substantial effect or influence in determining the verdict." Mayabb v. Johnson, 168 F.3d 863, 868 (5th Cir. 1999) (quoting Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th Cir. 1996)). To be entitled to federal habeas relief due to a trial error, petitioner must show the error actually prejudiced him. Brecht, 507 U.S. at 637.
A. Evidentiary Ruling
Petitioner alleges that the trial court erred by allowing the testimony of Chemist Nancy Weber because she was not listed on the State's witness list. (Brief in Supp. at 5.)
"[A] federal court may grant habeas relief based on an erroneous state court evidentiary ruling only if the ruling also violates a specific federal constitutional right or renders the petitioner's trial fundamentally unfair." Gochicoa v. Johnson, 118 F.3d 440, 446 (5th Cir. 1997). A fundamentally unfair trial violates the Fourteenth Amendment right to due process. Cupit v. Whitley, 28 F.3d 532, 538 (5th Cir. 1994). A trial is deemed "unfair" when it has been "largely robbed of dignity due a rational process." Johnson v. Blackburn, 778 F.2d 1044, 1050 (5th Cir. 1985) (citation omitted). In habeas actions, federal courts "do not sit to review the admissibility of evidence under state law unless erroneous evidentiary rulings were so extreme as to result in a denial of a constitutionally fair proceeding." Jackson v. Johnson, 194 F.3d 641, 656 (5th Cir. 1999). The erroneous admission of prejudicial evidence "does not justify habeas relief unless the evidence played a 'crucial, critical, and highly significant' role in the jury's determination." Id.
In this instance, petitioner specifically contends that, by allowing Ms. Weber to testify despite her absence from the State's witness list, the trial court violated the Confrontation, Equal Protection, and Due Process Clauses of the United States Constitution and rendered his trial fundamentally unfair. (Brief in Supp. at 5-6.)
1. Confrontation
Every person criminally prosecuted for acts that violate state or federal law has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, "to be confronted with the witnesses against him." U.S. Const, amend. VI; Pointer v. Texas, 380 U.S. 400, 403 (1965) (applying the Confrontation Clause of the Sixth Amendment to the States). "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845 (1990). "The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination." Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987), accord, Coy v. Iowa, 487 U.S. 1012, 1017 (1988).
In this case, petitioner was able to confront and cross-examine Ms. Weber at trial. See SF-III at 221-22. The fact that the State left the witness off its witness list did not deny petitioner the opportunity to subject her testimony to the rigors of the adversarial trial proceedings. Consequently, allowing the witness to testify does not violate the Confrontation Clause.
2. Equal Protection
The Court should deny petitioner's Equal Protection claim as conclusory. Petitioner has alleged nothing to indicate that he has been treated differently from those situated similarly-the crux of an equal protection claim. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Conclusory allegations are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
3. Due Process
Due process requires that a trial not be fundamentally unfair to the defendant. See Cupit v. Whitley, 28 F.3d 532, 538 (5th Cir. 1994). In this case, chemist Anne Weaver tested the substances purchased by Officer Harris from petitioner and determined that the substance was cocaine. SF-III at 209-13. Weber's testimony regarding the testing on the capsules seized by Officer Kingery added nothing significant to the proof against petitioner. Compare id. at 209-14 (Weaver's testimony) with id. at 214-22 (Weber's testimony). Consequently, the Court is unable to find petitioner's trial rendered fundamentally unfair by the state-court's ruling that Weber could testify.
4. State Consideration of Evidentiary Ruling
The court of appeals considered and rejected petitioner's claim of evidentiary error. See Prince v. State, No. 11-97-00390-CR, slip op. at 6-7 (Tex.App.-Eastland Aug. 19, 1999, pet. ref'd). It found:
By the time Weber was called as a witness, the State had already proved through the prior witness that the purchases which the undercover officer had made from [petitioner] and his codefendant contained the drugs which had been described in the indictment. Any error in permitting the second chemist [(Weber)] to testify must be disregarded under Tex. R. App. P. 44.2(b). Moreover, we do not find any "bad faith" in failing to list the name of this witness. Other lab employees who had been listed were not available on the day this case was tried, and the lab report which had been furnished to [petitioner's] attorney showed that this witness was one of the supervisors at the lab when the report was generated.
Rule 44.2(b) provides that any non-constitutional "error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."
Id. at 7 (footnote omitted). Petitioner, furthermore, raised this alleged erroneous evidentiary ruling in his state writ. See S.H. Tr. at 19-20. The Texas Court of Criminal Appeals denied this writ without written order and thus adjudicated the claims on the merits. See Ex Pane Prince, No. 32-258-03, slip op. at 1 (Tex.Crim.App. June 27, 2001). The state courts' decisions do not appear inconsistent with, or involve unreasonable application of, precedent of the United States Supreme Court. The decisions appear based upon a reasonable determination of the facts in light of the evidence presented. Accordingly, under 28 U.S.C. § 2254(d), as amended by the AEDPA, petitioner may obtain no habeas relief on the claimed evidentiary ruling. B. Improper Argument
"S.H. Tr." refers to the state habeas record attached to Ex Pane Prince, No. 32-258-03, slip op. (Tex.Crim.App. June 27, 2001).
Petitioner also argues that the trial court erred in permitting the State to improperly bolster and vouch for the credibility of Officer Harris during closing argument. (Brief in Supp. at 6.) He alleges that the prosecutor improperly made the following statement about Officer Harris: "She is one of the finest police officers you'll ever hear from." ( Id.) He suggests that the trial court erred by allowing such statement over objection by his attorney. ( Id.) He argues that the error had a substantial and injurious effect on the verdict. ( Id.)
Texas case law permits prosecutors to respond to arguments of opposing counsel as part of "proper jury argument." See Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988). Furthermore, the Fifth Circuit Court of Appeals has expounded upon the role of the prosecutor in making closing arguments:
A prosecutor's duty in closing arguments is to be scrupulous and to avoid all efforts to obtain a conviction by going beyond the evidence before the jury or by putting the sanction of his office behind the testimony of the witnesses. The sole purpose of closing argument is to assist the jury in analyzing, evaluating and applying the evidence. The prosecutor may refer to matters that are in evidence, and he may even present what amounts to a bolstering argument if it is specifically done in rebuttal to assertions made by defense counsel in order to remove any stigma cast upon him or his witnesses.United States v. Dorr, 636 F.2d 117, 120 (5th Cir. 1981) (citations omitted).
To properly evaluate the propriety of a specific statement made in closing arguments, the Court considers the statement in the context of closing arguments as a whole. In this case, defense counsel for petitioner and his co-defendant began attacking Harris' testimony early in their closing argument and continued throughout. See SF-IV at 92-93 ("I think as far as my client is concerned, you can say if you believe Susan Harris is actually an accurate and dependable witness . . . [and] not make any mistakes, then you'd find him guilty. If you think that she's capable of making mistakes . . . then you find him not guilty. If you think she was mistaken in identifying Mr. Prince, you find him not guilty."); 94 ("But can she be completely accurate. Can she make a mistake. If she did, who's going to pay for it. . . . I may be over-stating it from my point of view, but that's certainly the way my client feels because she made a mistake in identifying him."); 99 ("Ms. Harris' testimony was riddled with inconsistencies."); 100-01 ("Inconsistencies taken alone are probably not significant, each one. But they're so numerous and so varied among the different officers that were there, that I have to say while I don't think she's intentionally telling a falsehood or not telling the truth . . . So Detective Harris is the key witness for the prosecution. It's her testimony you have evaluate.")
The following exchange occurred at the beginning of the rebuttal portion of the State's closing argument (with objections by defense counsel and rulings of the trial court):
[The State]: . . . Now I've sat here and heard Susan Harris just get abused. You've heard a lot of evidence since you heard from Susan Harris, but I would like for you all if you would in your mind to think back about that woman that you heard testify. She's one of the finest police officers you'll ever hear from.
[DEFENSE COUNSEL:] Objection to counsel's commenting on the character of the witness. THE COURT: Overruled.
[THE STATE:] Think about her character, folks. Because that's what they're asking you to do. Think about her. She didn't have to lie to you, she didn't try to lie to you. When she wasn't sure about something, she told you. But you know one thing that she's got no doubt about. That this man sold her cocaine and she gave him $60.00. . . .
SF-IV at 106.
Viewing the allegedly improper prosecutorial statement in the context of closing argument as a whole, it is clear that the prosecutor made the statement in response to arguments of defense counsel. Further, it is not phrased in such a manner that the prosecutor put the sanction of her office behind Harris' testimony.
It does not appear that the trial court erred in overruling the objection to the prosecutor's closing statement. An objection to a statement made in closing argument is properly sustained only if the statement is improper. The Texas appellate court found the statement proper under Texas law. See Prince v. State, No. 11-97-00390-CR, slip op. at 8-9 (Tex.App.-Eastland Aug. 19, 1999, pet. ref'd). In a habeas proceeding, this Court does not sit in review of a state court's interpretation of its own law. Creel v. Johnson, 162 F.3d 385, 395 (5th Cir. 1998); Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995). In view of the state ruling, this Court will defer to the state-court determination of Texas law. Because the statement was proper under Texas law, the trial court did not err in overruling the objection and permitting the prosecutor to make the statement. Without an error by the trial court, the Court, of course, cannot consider whether "the error" had a substantial and injurious effect or influence in determining the verdict. This claim of trial error entitles petitioner to no habeas relief.
The State construes this claim as one asserting prosecutorial misconduct. ( See Answer at 17-21.) Because petitioner clearly frames the claim as one of trial error, construing the claim as prosecutorial misconduct is unnecessary. However, even were the Court to consider the claim as such, the claim would still fail. "Prosecutorial misconduct implicates due process concerns." Foy v. Donnelly, 959 F.2d 1307, 1316 (5th Cir. 1992). Statements of a prosecutor may violate due process in two ways: "They may abridge a specific right conferred by the Bill of Rights, or may constitute a denial of due process generally, thus constituting a 'generic substantive due process' violation." Id. (quoting Rogers v. Lynaugh, 848 F.2d 606, 608 (5th Cir. 1988)). In this case, petitioner's claim raises a general violation of due process. When a petitioner asserts a generic due process violation, the Court asks whether the prosecutorial comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
In federal habeas actions, improper jury argument by the state does not present a claim of constitutional magnitude unless it is so prejudicial that the petitioner's state court trial was rendered fundamentally unfair within the meaning of the Fourteenth Amendment's Due Process Clause. To establish that a prosecutor's remarks are so inflammatory as to prejudice the substantial rights of a defendant, the petitioner must demonstrate either persistent and pronounced misconduct or that the evidence was so insubstantial that (in probability) but for the remarks no conviction would have occurred.Felde v. Blackburn, 795 F.2d 400, 403 (5th Cir. 1986) (citations omitted). In this instance, not only has the Court deferred to the determination of state law that the prosecutor's statement was proper, its independent review of the closing arguments confirms that the statement was proper and constitutionally permissible. Because the Court does not find the statement improper, it need not consider whether it rendered petitioner's trial fundamentally unfair. A proper statement made in closing argument cannot render a trial fundamentally unfair.
V. SUGGESTIVE IDENTIFICATION PROCEDURES
Petitioner also argues that the State used unconstitutionally suggestive in-court identification procedures to secure his conviction. (Brief in Supp. at 7-8.)In Neil v. Biggers, 409 U.S. 188 (1972), the Supreme Court set forth factors pertinent to a determination of the reliability of an in-court identification under the totality of the circumstances. See United States v. Honer, 225 F.3d 549, 553 (5th Cir. 2000). In Neil, "the Supreme Court rejected a per se approach to whether a suggestive [identification procedure] automatically violates a defendant's due process rights, holding instead that suggestive identification procedures do not violate due process if, on balance, the relative reliability of the [procedure] guards against the likelihood of misidentification." United States v. Hefferon, 314 F.3d 211, 217 (5th Cir. 2002). With such rejection, it counseled courts "to employ a 'totality of the circumstances' test to determine if an identification procedure" violates due process. Id.
[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.Neil, 409 U.S. at 199-200.
In this instance, each identifying witness identified petitioner in open court. SF-III at 26, 111. Petitioner complains that in each instance the prosecutor stood behind him and asked whether he was the man that the witness had identified. (Brief in Supp. at 7.) In his attempt to show the identifications unconstitutionally suggestive, petitioner takes them out of context. The record reveals the following in-court identification by Officer Harris:
Q Okay. When y'all went to 3220 Cleveland, what happened, Detective?
A I got out of the car and I walked up to the house and the defendant Mr. Prince greeted me on the front porch.
Q Now, you say the defendant Mr. Prince. Do you see the person who greeted you on the front porch in the courtroom today?
A Yes, ma'am.
Q All right. Would you describe what he's wearing for the members of the jury?
A He's going to be the black male with the white shirt and glasses.
Q Okay
[Prosecutor]: Let the record reflect I'm standing behind Prince. Is this the man you've identified as defendant Prince?
A Yes, ma'am.
SF-III at 26. Officer Jones also identified petitioner at trial as shown by the following exchange:
Q All right. And where did [Harris] go when she got out of the car?
A . . . she went to 3220 Cleveland.
Q All right. She just walked up to the front steps?
A Walked up the steps and she was approached by defendant Prince.
Q Okay. When you say the defendant Prince, do you see who Detective Harris walked up to and talked to there on the steps?
A Yes, ma'am.
Q Okay. Would you describe what he's wearing and point to him for the members of the jury?
A That's maroon pants with a white shirt and tennis shoes.
Q Okay. Did you later come to know him as Edward Eugene Prince?
A Yes, ma'am.
Q And is this the man — [Prosecutor]: Let the record reflect that I'm standing behind defendant Prince. A Yes, ma'am.
SF-III at 111.
Under the totality of circumstances, the Court finds that the identification procedures were not violative of petitioner's due process rights. Each witness described what petitioner was wearing before the prosecutor indicated that she was standing behind him. The in-court identifications appear based the witnesses' observance of him at 3220 Cleveland. Each witness had a reasonable opportunity to see petitioner at the scene. SF-III at 26-30, 110-11, Each witness saw petitioner's face. Id. Neither witness exhibited any hesitancy in their identification. Id. Neither witness identified anyone else. The identifying witnesses were police officers who knew that they would be later called upon to identify petitioner. Therefore, their degree of attention would generally be greater than that of an ordinary eyewitness to a crime. Furthermore, after making the drug buy, Officer Harris described petitioner's appearance to Officer Kingery so that he could effectuate the arrest. Id. at 31, 163. Officer Kingery testified that petitioner fit that description. Id. at 175. Officer Kingery made an in-court identification of petitioner as the person he arrested upon Harris' request and description. Id. at 176.
In view of all the circumstances, the prosecutor's in-court identification procedure did not violate petitioner's constitutional rights or make such identifications unreliable. Petitioner is entitled to no habeas relief on this claim.
VI. FOURTH AMENDMENT CLAIMS
In his fifth and sixth grounds for relief, petitioner claims that his conviction was obtained by use of evidence gained from an unconstitutional search and an unlawful arrest. (Pet. at attached page; Brief in Supp. at 8-10.) Such claims arise under the Fourth Amendment to the United States Constitution. See Avery v. Procunier, 750 F.2d 444, 448 (5th Cir. 1985). This Court cannot grant federal habeas relief on such Fourth Amendment claims when "the State has provided an opportunity for full and fair litigation" of such claims. See Stone v. Powell, 428 U.S. 465, 494 (1976). In O'Berry v. Wainwright, 546 F.2d 1204 (5th Cir. 1977), the Fifth Circuit expounded upon the rule laid out in Stone:
We conclude that where there are facts in dispute, full and fair consideration requires consideration by the fact-finding court, and at least the availability of meaningful appellate review by a higher state court. Where, however, the facts are undisputed, and there is nothing to be served by ordering a new evidentiary hearing, the full and fair consideration requirement is satisfied where the state appellate court, presented with an undisputed factual record, gives full consideration to defendant's Fourth Amendment claims. Such a distinction makes practical sense because it ensures that a criminal defendant is given a full hearing on his Fourth Amendment claims and the facts underlying those claims at least once at the state level, but it does not require the State to hold evidentiary hearings which would be useless and inefficient. . . .
. . .
Second, Stone only requires that the State provide an opportunity for full and fair adjudication of Fourth Amendment claims. Thus, if Petitioner deliberately bypassed state procedures for making his Fourth Amendment objections known or if he knowingly waived his Fourth Amendment objections, then a federal District Court would be precluded from granting habeas corpus relief on Fourth Amendment grounds despite the fact that no state hearing was in fact held on Petitioner's claims.546 F.2d at 1213-14 (footnotes omitted).
In this case, petitioner could have moved to suppress the evidence obtained from the alleged illegal search and arrest at trial, see TEX. CODE CRIM. PROC. ANN. art. 28.01, § 1(6) (Vernon 1989), but he did not do so. He did not raise the alleged illegal search and arrest on appeal, either. See, generally, Prince v. State, No. 11-97-00390-CR, slip op. at 1-9 (Tex.App.-Eastland Aug. 19, 1999, pet. ref'd). Petitioner did not raise his Fourth Amendment claims until he filed his state petition for writ of habeas corpus. Accordingly, these claims are barred from consideration by this Court on habeas review by Stone.
An "opportunity for full and fair litigation" means just that: an opportunity. If a state provides the processes whereby a defendant can obtain full and fair litigation of a fourth amendment claim, Stone v. Powell, bars federal habeas corpus consideration of that claim whether or not the defendant employs those processes.Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978), accord, Janecka v. Cockrell, 301 F.3d 316, 320 (5th Cir. 2002), cert. denied., 537 U.S. 1196 (2003).
Because Texas provides the processes whereby petitioner could have obtained full and fair litigation of his Fourth Amendment claims, Stone precludes habeas relief on these claims.
VII. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner claims that his attorney rendered ineffective assistance when he failed to investigate the case and discover that he was subject to an illegal search and arrest because the house in which he was arrested was a residence rather than an abandoned and vacant house. (Brief in Supp. at 10-11.) To successfully state a claim of ineffective assistance of counsel under Supreme Court precedent, petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to establish either prong of this test requires a finding that counsel's performance was constitutionally effective. Id. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000).
To determine whether counsel's performance is constitutionally deficient courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691.
To establish prejudice, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The prejudice component of the Strickland test "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Williams v. Taylor, 529 U.S. 362, 393 n. 17 (2000) (citations and internal quotation marks omitted). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96.
Petitioners must "affirmatively prove prejudice." Id. at 693. To establish prejudice, they must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. They cannot satisfy the second prong of Strickland with mere speculation and conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Conclusory allegations, furthermore, are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
To show prejudice within the meaning of Strickland when the alleged deficiency of counsel relates to a Fourth Amendment claim, petitioner must "prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence." See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
Petitioner has not shown that he was prejudiced from the alleged illegal search and arrest. He has shown no reasonable probability that the verdict against him would have differed if the evidence obtained from such search and arrest been excluded. The State's case against petitioner did not depend upon the evidence seized pursuant the search and arrest at 3220 Cleveland. The case against petitioner was primarily built upon the testimony of Officer Harris. It was her testimony that resulted in petitioner's conviction.
Petitioner contends that the place of search and arrest was a residence rather than a vacant home. It is unnecessary to resolve the issue, because petitioner has shown no prejudice.
Petitioner's defense was that Officer Harris identified the wrong man. See SF-IV at 29-81. He did not deny being at 3220 Cleveland when Officer Harris was there making her undercover drug purchase. Id. at 32, 37. He even conceded that drug transactions might have occurred at that location. SF-IV at 41. Further, he specifically testified that the drugs might have belonged to a person called Little G's. Id. at 56. As shown by the verdict against petitioner, the jury found Officer Harris more credible than petitioner. Examining the trial as a whole, the drugs seized at the scene were insignificant to petitioner's conviction. While the introduction of such drugs may have supported Harris' testimony, it also supported petitioner's testimony that drugs were on the premises. In view of the evidence against petitioner and his defense that he was misidentified by Officer Harris, the admission of the drugs had no impact on the verdict against petitioner. Consequently, petitioner's claim of ineffective assistance fails.
To the extent petitioner might argue that he would have altered his testimony had the drugs been excluded from evidence, the Court notes that the drugs would have then been admissible for impeachment purposes. See United States v. Havens, 446 U.S. 620, 628-29 (1980). Thus, for petitioner to present his defense he had to admit the presence of drugs on the premises or be subject to impeachment upon a denial that drugs were there. In either event the presence of the drugs would have been admitted into evidence.
VIII. EVIDENTIARY HEARING
Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.
IX. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.
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 all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) 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. 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 Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).