Opinion
CIVIL ACTION NO. 4:01-CV-798-Y
April 26, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 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 are as follows:
FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to Title 28 of the United State Code, Section 2254.
B. PARTIES
Petitioner Robert L. Smith, TDCJ-ID #837411, is in the custody of the Texas Department of Criminal Justice, institutional Division and is presently incarcerated in the Connally Unit in Kenedy, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Institutional Division.
C. PROCEDURAL HISTORY
The Texas Court of Appeals summarized the evidence presented at trial:
On October 18, 1997, appellant [Smith] robbed three foreign students at gunpoint. Two of the students had left the country by the time of trial The third student, Pankaj Raja, is the complainant in this case. According to Raja, he and two of his friends were robbed at gunpoint in their car outside of an Arlington gas station. All three students independently identified appellant as the robber from an array of photographs. Raja testified regarding his identification, and the State entered into evidence the photo arrays establishing that the other two students also positively identified appellant. Additionally, detectives found appellant's fingerprint on the door of the car in which the robbery took place.
Appellant testified on his own behalf. He admitted to being with Raja and the other two students the night of the robbery However, appellant denied that any robbery occurred. Appellant testified that he was a pimp and was trying to supply the three students with a prostitute, but that he never robbed them.Smith v. State, No. 2-98-354-CR, slip op. at 1-2 (Tex. App — Fort Worth June 11, 1999, pet. ref'd).
Smith pleaded not guilty in Cause No. 0683062D to the charge of aggravated robbery with a deadly weapon, and was tried in Criminal District Court No. 3, Tarrant County, Texas in July 1998. A jury found Smith guilty of the charged offense and assessed punishment at thirty-five (35) years' confinement and a fine. (Tr. 91-92). The Texas Court of Appeals affirmed Smith's conviction and sentence on direct appeal, and the Texas Court of Criminal Appeals refused his petition for discretionary review. Smith v. State, No 2-98-354-CR (Tex App. — Fort Worth June 11, 1999, pet. ref d).
Smith has filed one state application for writ of habeas corpus, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court entered without a hearing. Ex parte Smith, No. 50, 159-01 (Tex Crim. App. Sept. 19, 2001) Smith filed his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Texas, Fort Worth Division, on September 27, 2001.
For purposes of this habeas corpus proceeding, the federal petition is deemed filed on the date Smith deposited it in the prison mailing system. Spotville v. Cain, 149 F.3d 374 (5th Cir. 1998).
D. ISSUES
Petitioner presents the following as grounds for relief:
1. He was denied the effective assistance of counsel on appeal; 2. He was denied the effective assistance of counsel at trial. 3. The State presented no evidence on an essential element of the offense; 4. The State withheld favorable evidence; 5. Prosecutorial misconduct denied him due process; 6. He is actually innocent.
E. RULE 5 STATEMENT
Respondent believes Petitioner has sufficiently exhausted available state remedies on all issues presented except for his claim of no evidence, but Respondent believes that claim is procedurally defaulted and does not move for dismissal for lack of exhaustion.
F. LEGAL STANDARD FOR GRANTING HABEAS CORPUS RELIEF
The standards codified in 28 U.S.C. § 2254 guide our review of a petition for writ of habeas corpus filed by a state prisoner:
(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 the State court proceeding.28 U.S.C. § 2254 (d). See also Lindh v. Murphy, 521 U.S. 320, 117 S.Ct 2059, 138 L.Ed.2d 481 (1997). Relief is authorized if a 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 Supreme Court has on a set of materially indistinguishable facts. Willianis v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523, 1518, 146 L Ed.2d 389 (2000). Reliefis also available if the state court identifies the correct legal principle but unreasonably applies that principle to the facts of the prisoner's case or reaches a decision based on an unreasonable factual determination. See 28 U.S.C. § 2254 (d)(1)-(2), Montoya v. Johnson, 226 F.3d 399 404 (5th Cir. 2000). Mere disagreement with the state court ts not enougii: The standard is one ofobjective reasonableness. Montoya, 226 F.3d at 404 State court determinations of underlying factual issues are presumed correct, and the petitioner has the burden to rebut the presumption with clear and convincing evidence. 28 U.S.C. § 2254 (e)(1)
G. DISCUSSION
1. In effective Assistance of Appellate Counsel
Smith complains that his appellate counsel, Lisa Mullen, rendered constitutionally ineffective assistance by raising multifarious points of error, inadequately briefing the points raised, and failing to challenge the legal and factual sufficiency of the evidence.
Persons convicted of a crime are entitled to the constitutionally effective assistance of counsel in their first appeal as a matter of right. See Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 834-35, 83 L.Ed.2d 821 (1985). Appellate counsel's performance on appeal is judged under the two-pronged tandard set forth in Srickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984). See generally Smith v. Robbins, 528 U.S. 259, 286, 120 S.Ct 746, 764, 145 L.Ed.2d 756 (2000). The first prong of Strickland requires the defendant to show that counsel's performance was deficient in that the errors made were so serious that counsel was not tbnctioning as the counsel guaranteed by the Sixth Amendment. Srickland, 466 U.S. at 687, 104 S.Ct. at 2064. The second prong requires the defendant to show prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068. A reasonable probability is defined as a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 5 Ct at 2068 The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697, 104 S.Ct. at 2069.
The state court rejected Smith's complaints about his appellate counsel. Claims of ineffective assistance are mixed questions of law and fact. Id, 466 U.S. at 698, 104 5 Ct. at 2070. Therefore, the federal court cannot grant habeas relief unless the state court's decision involves an unreasonable application of the law to the facts. 28 U.S.C. § 2254 (d)(1).
Smith complains that Mullen raised a multifarious point of error alleging that the trial court erred in denying the defetise motion for cotitinuance and admitting extraneous offense evidence without reasonable notice. Smith also criticizes Mullen for inadequately briefing the point, failing to convey to the reviewing court what offenses were introduced by the State, and for citing to several evidentiary rules and statutory provisions without explaining how admission of the evidence was a violation of the rules or statutes.
On the first day of trial. defense counsel objected that the State had not timely disclosed its intent to so as required by state law and requested a continuance. which was denied. (2 Rep. R. 10-11).
Smith fails to demonstrate either deficiency or prejudice with regard to this complaint. The appellate court reviewed Smith's complaint about admission of the extraneous offense evidence, but found that admitting the evidence without timely notice was harmless under state law because Smith had testified at his trial and acknowledged committing the offenses for which he now claimed tnsufficient notice. Smith, No. 2-98-354-CR, slip op. at 3-4. The court did not criticize appellate counsel or refuse to review the issue on grounds of multifariousness or inadequate briefing.
Smith also contends that Mullen was ineffective because she did not challenge the legal or factual sufficiency of the evidence establishing Smith's identity as the robber Effective assistance of counse: on appeal does not mean counsel who will raise every nonfrivolous ground of appeal available. See Evitts, 105 S.Ct. at 835; West v. Johnson, 92 F.3d 1385, 1396 (5th Cir. 1996). Moreover the petitioner bears the burden of establishing that a particular lapse was prejudicial. See Briseno v. Cockrcll, 274 F.3d 204, 207 (5th Cir. 1998).
The standard of review for a challenge to the legal sufficiency of the evidence is whether, when viewed in the light most favorable to the verdict, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307. 319, 99 S.Ct. 2781. 2789. 61 L.Ed.2d 560 (1979). As for factual sufficiency. Smith is relying on state case law set out in Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996) In Clewis, the Texas Court of Criminal Appeals ruled that, after Finding the evidence legally sufficient under Jackson v. Virginia, the state court of appeals may proceed with a factual sufficiency review. Id. at 133. A factual sufficiency review is performed in a neutral light, but the court will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust Id at 129.
In the present case, Raja was unable to identify Smith in open court as the person who robbed him. Two other men who had been in the car at the time of the robbery were no longer in the United States at the time of trial. However, the jury learned that Smith had been picked out of an array of photographs by Raja and the other men who were in the car at the time of the robbery, and the State established that Smith's fingerprints were found on the car. Additionally. Smith chose to testify in his own defense and admitted being with the men on the night of the offense, but asserted that he was a pimp and that the men made tip the story of a robbery after they gave him money to pay for a prostitute. In rebuttal, a police officer testified that Smith admitted committing the robbery. Smith fails to establish that counsel was deficient in failing to challenge the sufficiency of the evidence, nor does he show that the omission of such a challenge was prejudicial.
On appeal, Mullen did assert that the trial court erred in admitting hearsay identification testimony (via a police officer) from the two witnesses who had left the country. The state court found that any error in admitting the evidence was harmless given the other evidence confirming Smith's identify as the robber. Smith, No. 2-98 354-CR, slip op. at 3.
The state habeas court found that appellate counsel was not constitutionally ineffective, and Smith fails to demonstrate that this determination is unreasonable or contrary to clearly established federal law.
2. Ineffective Assistance of Trial Counsel
Smith contends that his trial counsel, Greg Westfall, was constitutionally ineffective and denied him due process by conducting an inadequate pretrial investigation; failing to make tactical trial decisions; failing to interview crucial prosecution witnesses, not objecting or moving to suppress an oral statement Smith made in which he admitted his complicity; failing to adequately consult with Smith about his case, failing to request a live line-up for identification purposes, not requesting a limiting instruction, filing a motion in limine or making a proper objection to the introduction of extraneous offense evidence; failing to request that the trial court perform the balancing test required by Texas Rule of Evidence 403 to weigh the probative value of the extraneous offense evidence against its prejudicial effect; and failing to preserve error for appeal.
A claim of ineffective assistance of trial counsel, like complaints about appellate counsel, is measured by the same two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984). The state courts reviewed Smith's contentions, but found that Smith received the effective assistance of counsel. (State Habeas R. 84). Because claims of ineffective assistance are mixed questions of law and fact, Strickland, 466 U.S. at 698, 104 S.Ct. at 2070, the federal court cannot grant habeas relief unless the state court's decision involves an unreasonable application of the law to the facts. 28 U.S.C. § 2254 (d)(1).
Smith asserts that counsel failed to conduct an adequate pretrial investigation by viewing the crime scene, seeking out and interviewing defense witnesses, or consulting with Smith. Smith maintains that Westfall, had he visited the crime scene, could have verified that Smith was a frequent customer at the gas station where the robbery occurred, that Smith often rented several rooms at a nearby motel and had rented two rooms on the night of the robbery, could have learned the whereaboits of a prostitute named "Loretta" to confirm his story that the men paid him to arrange for a prostitute, and could have located any outside video cameras that might have recorded the robbery and the identity of the true assailant.
During the state habeas proceedings, Westfall submitted an affidavit describing his representation of Smith. Contrary to Smith's assertions, Westfall personally went to the crime scene at the gas station, drove the entire route Raja alleged they had taken, and photographed the entire route (State Habeas R. 81). Smith did not tell Westfall the story about the three foreign students looking for a prostitute until the second day of trial. (State Habeas R. 81) Smith told Westfall that he had taken their money, but ran off without vetting them a prostitute, and upset about being cheated, the men had made up the robbery story. (State Habeas R. 81). Westfall's failure to more fully investigate a version of events that his client did not tell him about until after trial started cannot be considered deficient performance.
The state court, in making its factial Findings, accepted the contents of the affidavit as true, and Smith has not rebutted the presumuptive correctness of the Findings with clear and convincing evidence. See generally 28 U.S.C. § 2254 (e)(1).
In addition, complaints of uncalled witnesses are not favored because allegations about their testimony is largely speculative. Sayrc v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001). Smith fails to establish that Loretta, any motel employees, or any gas station attendants were available to testify or would have provided favorable testimony if called. Mere conclusory allegations in support of a claim of ineffective assistance of counsel do not raise a constitutional issue in a habeas proceeding. Alexander v. McCotter, 775 F.2d 595, 602-03 (5th Cir. 1985); Ross v. Estelle, 694 F.2d 1008 (5th Cir. 1983). Nor does Smith demonstrate prejudice in Westfall's failure to locate video camera evidence that could have established the robber's true identity. Smith has not established that any video surveillance actually exists or that it would be exculpatory given that Smith's identity was established via eyewitness identification, fingerprint evidence and Smith's own admissions at trial that he was with the men on the night of the robbery.
Smith also contends that Westfall and co-counsel Regan Wynn failed to make appropriate tactical decisions at trial and adequately consult with their client. More specifically, Smith charges that allowing him to take the stand and testify on his own behalf was inappropriate because the State had not ptesented sufficient identification evidence during its case-in-chief to secure a conviction. Smith asserts that he was harmed by his own admissions that he had been at the crime scene and that he was a pimp. in addition, his testifying allowed the State to introduce Smith's criminal history before the jury during cross-examination, and permitted the State to produce rebuttal evidence in the form of an oral admission of guilt that Smith made to one of the investigating officers.
Smith complains that he was able to meet with counsel only twice before trial, but does not explain how additional or lengthier periods of attorney-client contact would have proved favorable to his case.
In his affidavit, Westfall noted that identification was not a troubling issue for the State because, no matter how shaky the eyewitness evidence was, the State had Smith's fingerprints on the vehicle. When Smith told his attorneys the prostitute story on the second day of trial, Westfall and Wynn thought the story had a "ring of truth" to it because it explained why the students would be in a relatively bad part of town at night and also provided an explanation of why Smith's prints were found on the car. The prints were on the outside of the car and placed roughly where someone might stand or crouch to talk to occupants within the car. (State Habeas R. 68, 81) Westfall and Wynn discussed the matter with Smith, including the likelihood that the State could use Smith's previous criminal record and his oral confession, but decided the risk was worth taking (State Habeas R. 81).
Smith emphasizes that other fingerprints were found inside and outside the car that did not match his prints and could not be identified. The presence of other fingerprints does not negate the fact that Smith's fingerprints were also found on the car.
In assessing counsel's performance under an objective standard of reasonableness, the court is mindful of the strong presumption of adequacy and should not find inadequate representation merely because of the benefit of hindsight. Finery v. Johnson, 139 F.3d 191,196 (5th Cir. 1997). Westfall's decision to have Smith testify falls within the realm of sound trial strategy.
Smith also complains of Westfall's failure to interview Raja or two other witnesses who identified Smith as the robber. Smith contends that, without interviewing the witnesses, counsel could not ascertain whether they had positively identified Smith as the robber, whether they had acted without undue influence, and whether they would be testifying at trial Even if Westfall should have interviewed the witnesses, Smith cannot prove prejudice from Westfall's failure to do so. Westfall did file a motion to suppress the identification testimony, which was denied. Raja, who was the complainant, testified at trial and was questioned during pretrial proceedings and at the trial about his identifloation of Smith after viewing a photographic line-up. Moreover, Smith's fingerprints were found on the vehicle, and Smith admitted that he was with the men on the night of the robbery.
Smith complains of counsel's failure to file a motion to suppress an oral statement Smith made to Detective Byron Stewart in which he admitted committing the robbery, and counsel's failure to later object when Stewart testified about Smith's statement. The defense was aware of Smith's oral statement, and before Smith testified, Smith and his attorneys discussed the possibility that the State would use that statement on rebuttal During its rebuttal case, and without objection from the defense, the State had Stewart testify about Smith's statement. (3 Rep. R. 152).
Texas law generally requires confessions to be in writing, and oral statements are not admissible unless they are electronically recorded and satisfy other state statutory criteria. TEX. CODE CRIM. PROC. ANN. art 38.22, § 3 (Vernon SUPP. 2001). However, state law does not preclude the admission of a voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness. See Id. 38.22, § 5; Lykins v. State, 784 S.W.2d 32, 35-36 (Tex.Crim.App. 1989). Smith's statement was introduced during the States rebuttal case for purposes of impeaching Smith's trial testimony. Counsel's failure to make a frivolous objection does not cause counsel's performance to fall below an objective level of reasonableness. Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998).
Stewart testified that he read Smith his Miranda warnings and advised him of his right to remain silent before interviewing Smith. See generally Miranda v. Arizona, 384 U.S. 436. 86 S.Ct. 1602. 16 L.Ed.2d 694 (1966). After admitung to the robbery. Smith refused to reduce his statement to writing and requested a lawyer (3 Rep. R. 150-53).
Smith further contends that Westfall did not adequately consult with him and failed to respect Smith's request for a live line-up for identification purposes. Westfall advised Smith that a line-up would not be helpful because all three of the students had selected Smith from a photograph array. Smith notes that two of the students did not testify at trial, and the third, Raja, was not able to identify Smith at trial. However, Smith's fingerprints were found on the car, and Smith admitted meeting the men on the night of the robbery Smith fails to demonstrate that counsel was deficient in not requesting a live line-up to confirm identification of Smith as the robber or that counsel's failure to request such a line-up was prejudicial.
Smith complains of defense counsel's failure to properly preserve the extraneous offense issue for appeal On appeal, Smith complained of the State's failure to give timely notice of its intent to use extraneous offense evidence and the introduction of that evidence. The state appellate court ruled that the complaints were waived because Smith had admitted the truth of the evidence during his testimony Smith v. Slate, No. 2-98-354-CR, slip op. at 4.
Smith does not demonstrate deficient performance on the part of counsel, nor does he establish that his complaints would have been successful on appeal but for the waiver. Defense counsel did object several times to the introduction of extraneous offense evidence on grounds of insufficient notice, (3 Rep. R 9-11, 111, 136, 138, 143), but as discussed supra, the defense was also aware of the likelihood that the State would offer Smith's criminal history to impeach him once he testified. Under Texas law, a witness may be impeached by prior felony convictions or crimes involving moral turpitude TEX R. EVID 609. See also TEX R. EVID 404(a)(3). Defense counsel decided that Smith's story about the prostitute was sufficiently feasible to be worth the risk.
Nor does Smith show that he could have prevented the State from using his criminal history if lie had received earlier notice of time State's intent to use extraneous offense evidence. As for the other extraneous offenses, Smith admitted being a pimp as part of his story to explain his contact with the men, while the trial court did not allow the State to question Smith about his possession of cocaine when arrested. (3 Rep. R. 143).
Smith also alleges that Westfall should have requested a limiting instruction when the prosecutor — as expected — introduced the extraneous offense evidence, and should have asked the trial court to perform a balancing test to weigh the prejudicial effect of the extraneous offenses against their probative value. While cross-examining Smith, the State offered evidence that Smith had a prior felony conviction and a misdemeanor theft conviction. (3 Rep. R. 136-38; State Exs. 11, 12). Defense counsel did not object to the evidence or request that the jury be instructed on its limited admissibility.
Even if defense counsel erred, Smith cannot establish prejudice A limiting instruction was included in the jury charge that directed the jury to consider the extraneous offense evidence only for purposes of credibility, (Clerk's R. 77), and there is no reasonable probability of a different outcome but for counsel's failure to request a contemporaneous limiting instruction or ask the trial court to conduct a balancing test when the State offered the extraneous offense evidence.
Respondent asserts that defense counsel did request such a balancing test. Respondent cites to a portion of the trial record that involves defense counsel's objection to the admission of evidence that Smith was in possession of cocaine when he was arrested for the robbery. (3 Rep. R. 143). The trial court ruled that Smith's drug possession was extraneous and precluded the State from discussing it. Defense counsel did not make a similar objection with regard to Smith's previous convictions.
The state court determined that Smith was not denied his Sixth Amendment right to counsel, and that determination has not been shown to be unreasonable in light of the record. Smith's complaint that he was denied the effective assistance of counsel at trial does not warrant relief
3. Sufficiency of the Evidence
Smith contends that the State failed to present sufficient evidence to identify hit-n as the robber. Respondent contends that a procedural bar precludes federal court review of Smith's contention because Smith did not complain of the sufficiency of the evidence on direct appeal, but raised the complaint only in his state habeas application. The state trial court recommended denying relief because the complaint was not cognizable by way of a post-conviction collateral attack and because there was some evidence supporting the conviction. (State Habeas R. 85).
Texas state procedural rules require insufficiency claims to be raised on direct appeal, and such claims may not be brought in a state application for writ of habeas corpus. Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994); Clark v. Texa, 788 F.2d 309, 310 (5th Cir. 1986). Accordingly, absent cause and prejudice or applicability of the miscarriage ofjustice exception, a procedural bar precludes federal review of Smith's complaint. See Coleman v. Thompson, 501 U.S. 722, 749, 111, S.Ct. 2546, 2564, 115 L.Ed.2d 640 (1991). Smith does not allege cause for his default, and he cannot demonstrate prejudice or that a miscarriage of justice will result if his challenge to the evidence is not reviewed because the claim itself lacks merit.
The standard of review for a challenge to sufficiency of the evidence is whether, when viewed in the light most favorable to the verdict, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). As discussed supra, Smith was picked out of a photographic line-up as the robber; his fingerprints were found on the car in which his victim was riding; and Smith admitted being with the victim and two other men that night — although he testified that the men falsely accused him of robbery after paying him to provide them with a prostitute. A police officer testified on rebuttal that Smith admitted to him that he had robbed the men Viewed in the light most favorable to the prosecution, the evidence supports the jury's verdict. His challenge of insufficient identification evidence is procedurally barred, or in the alternative, should be found meritless.
4. Exculpatory Evidence
Smith complains that the State failed to disclose exculpatory evidence and impeachment evidence that affirmatively establishes his innocence. Suppression by the prosecution of evidence favorable to an accused violates due process where the information is material to either guilt or punishment, irrespective of the good faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 194, 1196-97, 10 L.Ed.2d 215 (1963). To state a Brady claim, the defendant must demonstrate that (1) the prosecution suppressed evidence, (2) the evidence was favorable, (3) the evidence was material to guilt or punishment, and (4) the defendant's late discovery of the allegedly favorable evidence was not the result of a lack of due diligence. Rector to Johnson, 120 F.3d 55 1, 558 (5th Cir. 1997). Evidence is material if a reasonable probability exists that had the evidence been disclosed on the defense, the result of the proceedings would have different. Blackmon v. Scott, 22 F.3d 560, 564 (5th Cir. 1994). The defendant must show that the with held evidence could reasonably be taken to put the case in a different light to as to undermine confidence in the verdict. Gibbs v. Johnson, 54 F.3d 253, 256 (5th Cir. 1998). The state has no obligation to point the defense toward potentially exculpatory evidence when that evidence is either in the possession of the defense or can be discovered with the exercise of due diligence. Rector, 120 F.3d. at 558-59; Blackmon, 22 F.3d at 564-65.
Smith complains that the State withheld the following evidence (1) the police reports contain the victim's description of the robber, which is inconsistent with Smith's appearance; (2) other fingerprints that do not match Smith were found in and around the car; and (3) the victim reported only that Smith "looked similar" to the man that robbed him. The state court reviewed Smith's complaints, which were raised in his state habeas application, but denied relief based on the following findings of fact and conclusions of law.
The State has an "open file" policy and the applicant's attorney had the opportunity to view the State's file . . . . .
Even if the State had information about other fingerprints that were found on the car, this would not have made the difference between conviction and accluittal because the applicant's fingerprints were found on the car . . . . .
Even if the State had information that one of the victims said the applicant "looked similar to" the man who robbed him, there were two other victims who identified the applicant from a photo spread. In addition the applicant admitted to being with the three victims on the night of the robbety.
The police report was otherwise available to the applicant.
(State Habeas R. 85-86). Smith has not rebutted the presumption of correctness that must be afforded state court findings of fact. He has not demonstrated that the prosecution acted to suppress evidence or that any of the evidence allegedly suppressed was material. No reasonable probability exists that had the evidence been disclosed to the defense earlier, the result of the proceedings would have different.
5. Prosecutorial Misconduct
Smith asserts that the prosecution denied him due process by committing numerous acts of misconduct while presenting the State's case-in-chief and rebuttal evidence.
Smith first asserts that the prosecution introduced inadmissible hearsay in the form of the out of-court identifications made by the two foreign students who had returned to their home countries. Smith also contends that the out-of-court identifications violate the Confrontation Clause. Over defense objections and after a hearing on the identification evidence, (2 Rep R. 209-12), the trial court allowed the investigating detective to testify that the two men had picked Smith's photograph out of an array of six photographs, and the actual photograph arrays were also admitted as an exhibit.
What constitutes hearsay in a state court trial is governed by state law. Gochicoa v, Johnson, 118 F.3d 440, 445 (5th Cir. 1997). Furthermore, the federal courts trial grant habeas relief based on an erroneous state court evidentiaty ruling only if the ruling violates a specific federal constitutional right or otherwise renders the trial fundamentally unfair Id. at 446 A fundamentally unfair trial violates the Fourteenth Amendment right to due process. Cupit v. Whitley, 28 F.3d 532, 536 (5th Cir. 1994) A trial is deemed unfair when it has been "largely robbed of the dignity due a rational process." Houston v. Estelle, 569 F.2d 372, 383 (5th Cir. 1978) (quoted in Johnson v. Blackburn, 778 F.2d 1044, 1050 (5th Cir. 1985)).
Although the protections afforded by the Confrontation Clause and the hearsay rule overlap, they are not co-extensive. Admission of hearsay evidence violates the Confrontation Clause only if the evidence was a crucial, critical or highly significant factor in the framework of the whole trial. Id. (citing Cupit v. Whitley, 28 F.3d 532, 537 (5th Cir. 1994)). Factors to consider include (1) whether the hearsay evidence was "crucial" or "devastating," (2) whether the prosecutors misused a confession or otherwise engaged in misconduct, (3) whether a joint trial or the wholesale denial of cross-exatnination was involved, (4) whether the most important prosecution witness, as well as other prosecution witnesses, was available for trial, and (5) the degree to which the hearsay evidence is supported by indicia of reliability. Cupit, 28 F.3d at 537.
The Texas Court of Appeals reviewed Smith's hearsay complaints on direct appeal, but found any error would be harmless because identification was firmly established by Raja's pretrial identification of Smith in the photographic line-up, the fingerprint evidence, and Smith's own trial testimony and oral confession. Smith. No. 2-98-354-CR, slip op. at 3. This determination does not appear to be unreasonable given the trial record as a whole. Moreover, Smith was tried only for robbing Raja, not the other men, and Raja was a witness at trial and available for cross-examination. In addition, the trial court held a hearing on the admissibility of the photo arrays at which the investigating detective and Raja both testified, and the exhibits themselves appear reliable as each bears the signature of the witnesses indicating that each man independently selected Smith from a six-photo array. The out-of-court identifications — even if wrongly admitted — were not crucial, critical or highly significant factors at trial so as to violate the Confrontation Clause, nor did admission of the identifications render Smith's trial fundamentally unfair.
The state courts refused to allow Smith to relitigate this determination in his application for writ of habeas corpus. (State Habeas R. 88).
Smith also complains that the State offered evidence that commented upon Smith's invocation of his right to remain silent. More specifically, Smith complains that the prosecution called Detective Stewart as a rebuttal witness to testify that Smith made an oral statement about his involvement in the robbery, but when Stewart asked Smith to sign a written statement, Smith asked for his lawyer. (3 Rep. R 150-52). On direct appeal, the Texas Court of Appeals found the issue was waived because Smith had not objected at trial. Smith, No. 2-98-354-CR, slip op. at 5. Where a state court has declined to review a criminal defendant's federal claims for failure to comply with state procedural rules, a federal court on habeas review may not address those claims absent a showing of "cause" and "actual prejudice." Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). Smith does not allege or establish cause and prejudice to overcome this procedural bar, which precludes federal court review of his complaint. See Coleman v. Thompson, 501 U.S. 722, 749, 111 S.Ct. 2546, 2564, 115 L.Ed.2d 640 (1991).
Moreover, his complaint does riot merit relief. In Doyle v. Ohio, the United States Supreme Court held that using a defendant's post-arrest, post-Miranda silence for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment. 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); United State v. Rodriguez, 43 F.3d 117, 121 (5th Cir. 1995), The Doyle rule rests on the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial. Brecht v. Abrahamson, 507 U.S. 619, 628, 113 S Ct. 1710, 123 L.Ed.2d 353 (1993). Questions designed to draw a negative inference from a defendant's exercise of his right to remain silent are condemned by the Supreme Court in Doyle. See Pitts v. Anderson, 122 F.3d 275, 280 (5th Cir. 1997).
Nonetheless, even questions that fall within the purview and prohibitions of Doyle do not automatically entitle a state prisoner to federal habeas relief Doyie error falls squarely within the category of trial-type constitutional errors that are amenable to harmless-error analysis Brecht, 507 U.S. at 629, 113 S.Ct. at 1717. in the context of federal habeas corpus, habeas relief must be granted for a trial error only if it had a substantial and injurious effect or influence in determining the jury's verdict. Id. at 631, 113 S.Ct.at 1718.
The continued viability of Brecht since enactment of the AEDPA has been questioned. but not resolved, by the Fifth Circuit. See Tucker v. Johnson, 242 F.3d 617. 629 n. 16 (5th Cir, 2001).
Smith cannot meet the standard for harm contemplated by Brecht given the evidence against him and the trial record as a whole. Stewart, immediately before testifying about Smith's request for counsel, testified that Smith openly admitted his guilt. Smith's fingerprints were found on the car in which the robbery took place, his victim was able to identify him from a photographic line-up, and Smith admitted meeting with the men on the night of the robbery.
Smith also contends that the prosecution committed misconduct when it introduced the oral statement Smith made to Stewart because Texas law provides that oral statements are inadmissible unless, among other requirements, they are electronically recorded. TEX CODE CRIM. PROC. ANN. art. 38.22, § 3 (Vernon Supp. 2001) As already discussed, Smith's oral statement was properly introduced as rebuttal evidence and for purposes of impeaching his trial testimony. Smith's complaints of prosecutorial misconduct in this regard are meritless.
Smith contends that the prosecution submitted perjured testimony when it permitted Stewart to leave the jury with a false impression that Raja had "positively identified" Smith's photograph. Raja testified he selected Smith's photograph because Smith "looked similar" to the robber, but Raja was later unable to identify Smith at trial. The Due Process Clause of the Fourteenth Amendment forbids the State from knowingly using perjured testimony. Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In order to prove that the State has violated the Fourteenth Amendment by relying on such testimony, the defendant must demonstrate: (1) that a witness for the State testified falsely; (2) that such testimony was material; and (3) that the prosecution knew that the testimony was false. Id. at 153-54, 92 5 Ct. 763. Smith proves none of these elements Raja did select Smith's photograph out of the array and indicated that fact by signing the array, and although Smith now believes there is some degree of exaggeration in how certain Raja was in selecting Smith's photograph, there is no evidence the prosecution knowingly presented false testimony Moreover, identity was not a closely contested issue in that Smith's fingerprints were
found on the car, the other two students also (and independently) identified Smith's photograph, and Smith adrrtitted being present on the night of the robbery.
Smith also criticizes the State for introducing extraneous offense evidence without giving the defense proper notice as required by state law. Failure to comply with the requirements of a Texas criminal procedure statute does not, of itself, raise a federal constitutional question cognizable in a federal habeas corpus proceeding. See generally 28 U.S.C. § 2254. In habeas proceedings, the federal courts sit to determine whether there has been a constitutional infraction of due process rights that would render the trial as a whole fundamentally unfair, not to enforce state procedural rules. Baldwin v. Blackburn, 653 F.2d 942, 948 (5th Cir. 1981). Smith was not denied a fundamentally fair trial due to a lack of notice. He has not demonstrated that the extraneous offense evidence, which was admitted to impeach his credibility when he testified, would have been excluded or effectively rebutted had earlier notice been provided, and the possibility that the State would use the extraneous offenses on cross-examination was a risk that the defense was aware of when deciding whether Smith should testify.
Smith fails to demonstrate that the state courts acted unreasonably in refusing to grant relief for his complaints of prosecutorial misconduct.
6. Actual Innocence
Smith contends that his conviction is unlawful and violates the Eighth and Fourteenth Amendments because he is actually innocent of aggravated robbery. Smith asserts that, following his trial, he discovered new evidence that unquestionably establishes his innocence: (1) in response to police questioning, Raja gave a description inconsistent with Smith's appearance, and (2) Raja only stated that Smith "looked similar" to the man that robbed him.
The Federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution — not to correct errors of fact. Herrcra v. Collms, 506 U.S. 390,400, 113 S.Ct. 853, 860, 122 L.Ed.2d 203 (1993). The Supreme Court has never held that substantive claims of actual innocence based on newly discovery evidence state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Instead, establishing actual innocence acts as a gateway for obtaining review of otherwise barred constitutional claims. Id. at 404, 113 S.Ct. 853.
Moreover, no support for an actual innocence claim appears in the record There were three identifying witnesses in this case, so that even if one of them said only that Smith "looked similar to" the robber, the outcome of the case would not have changed. in addition, fingerprint evidence matching Smith was found on the car, and Smith admitted being with his victims on the night of the robbery. (State Habeas R. 87). Smith has not shown that the state court acted unreasonably or contrary to clearly established federal law in rejecting his claim of actual innocence.
H. EVIDENTIARY HEARING
Smith has submitted a request For an evidentiary hearing in the federal courts. Section 28 U.S.C. § 2254 (e)(2) imposes significant limitations on a petitioner's right to an evidentiary hearing:
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that (A) the claim relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254 (e)(2). Thus, the petitioner must show cause for his failure to more fully develop his claim during the state proceedings and demonstrate prejudice by showing that he would not have been adjudged guilty.
Smith has failed to satisfy these requirements. He does not explain what an evidentiary hearing could be expected to reveal or how it would demonstrate his innocence to a reasonable factfinder, nor does he contend that his claims relies on new law or on facts of which he was previously, and excusably, unaware. Smith has not shown the existence of any factual dispute necessitating a federal evidentiary hearing.
RECOMMENDATION
The Petition for Writ of Habeas Corpus should be denied
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS. CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636 (b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) days after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the i-nail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until May 17, 2002. Pursuant to Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990) and Douglas v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court.
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until May 17, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby is returned to the docket of the United States District Judge.