Opinion
No. 3:04-CV-1895-M.
January 5, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and an order of the District Court in implementation thereof, the subject cause has previously been referred to the undersigned United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Connie Lynn Stone ("Stone" or "Petitioner") is confined at the Mountain View Unit of the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID") at Gatesville, Texas. Respondent is the Director of TDCJ-CID.
Statement of the Case: Stone plead guilty to the offense of solicitation for capital murder in cause number F-0143357-JP. She was sentenced by a jury to forty years imprisonment. On May 19, 2003, the Fifth Court of Appeals affirmed her conviction. Stone v. State, No. 05-02-00840-CR, 2003 Tex. App. LEXIS 4259
(Tex.App.-Dallas May 19, 2003, no pet.) (not selected for publication). Stone did not file a petition for discretionary review.
Petitioner filed an application for habeas corpus relief pursuant to Tex. Code Crim. Proc. art. 11.07 on December 17, 2003. Ex Parte Stone, Appl. No. 58,219-01 at 2. It was denied without written order on June 23, 2004. Id. at cover.
Stone filed the instant habeas petition on August 25, 2004. In response to this court's show cause order, Respondent filed a brief along with copies of Petitioner's state court records on October 28, 2004. Stone filed a reply on November 22, 2004.
Findings and Conclusions:
In her brief, Petitioner asserts that she was denied effective assistance of trial counsel both at her sentencing procedure as a whole and in specific instances. Review of Stone's claims is governed by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") which in pertinent part provides that a federal court cannot grant relief under § 2254 unless the adjudication of the state prisoner's claim in the state court system "resulted in a decision that involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." § 2254(d)(1) (2).
An attorney's conduct is governed by the standards set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). There is a strong presumption that an attorney's conduct falls within the broad range of reasonable professional assistance required under the Sixth Amendment. Id. at 690, 104 S.Ct at 2065. To overcome this presumption a habeas petitioner must establish that the attorney's conduct was constitutionally deficient (cause) and that but for such unprofessional errors the result probably would have been different (prejudice). Failure to prove either prong of the two part test forecloses relief. Id. at 694, 104 S.Ct. at 2068.
In her first asserted error, Stone claims that counsel erred when he failed to inform her of a plea bargain offered by the state. Petitioner failed to raise this issue in her art. 11.07 application, therefore it is procedurally defaulted. See Fuller v. Johnson, 158 F.3d 903, 905 (5th Cir. 1998). Further, Petitioner has presented no evidence that the State at any time presented her attorney with a plea bargain. ( See Pet. Stone's Reply at 2-3). Therefore, even absent procedural default of this claim, her conclusory and uncorroborated allegation fails to present a cognizable ground for relief. See Hughes v. Johnson, 191 F.3d 607, 630 (5th Cir. 1999).
In her second asserted error, Stone claims that she was prejudiced when her attorney, who believed that solicitation for murder was a "3g offense", persuaded her to be sentenced by a jury. The precise nature of counsel's misapprehension of the provisions of § 3g is unclear. However, assuming arguendo that counsel erroneously believed that the offense of solicitation for capital murder was an offense under § 3g(a) which prohibited a trial judge from imposing a suspended sentence and placing a defendant on a term of community service under § 3.(a) of art. 42.12, Stone cannot demonstrate prejudice. Unlike the facts set out in Medeiros v. State, 733 S.W.2d 605 (Tex.App.-San Antonio 1987, no pet.) in which the defendant's attorney's erroneous advice resulted in the preclusion of a probated sentence altogether, the jury in Petitioner's case had the option of assessing community supervision in lieu of a term of imprisonment. See art. 42.12 § 4(a). Therefore in order to state a basis for relief Stone must demonstrate that had she elected to have the trial judge assess her punishment that the punishment assessed would have been significantly less than the forty year term imposed by the jury.
Petitioner also complains that her attorney requested a jury trial at a time when she was not present in the courtroom. Not only is this ground procedurally defaulted and wholly conclusory, Stone has also failed to show any prejudice from the alleged error.
"[I]n the noncapital sentencing context, prejudice requires a showing of a reasonable probability that, absent counsel's unprofessional errors, the noncapital sentence would have been ' significantly less harsh.'" Daniel v. Cockrell, 283 F.3d 697, 706 (5th Cir. 2002), citing Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993) (emphasis in original). Although Glover v. United States, 531 U.S. 198, 121 S.Ct. 696 (2001) created a different standard for sentences under the federal sentencing guidelines, United States v. Grammas, 376 F.3d 433 (5th Cir. 2004), the Fifth Circuit explicitly declined to overrule Spriggs in the context of state sentencing. Grammas, 376 F.3d at 438 n. 4. Therefore, Daniel remains the controlling case on this issue, and, as in Daniel, Petitioner has failed to make a Spriggs showing that a judge would have sentenced her to a significantly less harsh sentence than that given her by her jury. See Daniel, 283 F.3d at 707-08.
It is noteworthy that the judge who presided at Petitioner's criminal trial is the same judge who recommended that her art. 11.07 application be denied.
In her third asserted error, Stone asserts that her attorney failed to obtain a ruling on a motion to suppress evidence prior to her guilty plea. In his affidavit, counsel explained that the evidence in question, video and audio tapes made while Petitioner was in the police station, were not relevant to Stone's determination to plead guilty, as tapes of her prior solicitations were available and admissible and that she at no time claimed to be not guilty. (Appl. No. 58,219-01, Supp. Tr. at 06-7). In point of fact, after Petitioner entered her plea of guilty, the prosecutor agreed that tapes of her police station interviews would not be presented in the State's case-in-chief. ( See Reporter's Record, v. 2 at 148-49). Neither does Stone assert that, if the ruling had preceded her guilty plea, she would have persisted in pleading guilty. ( See Attachment to Pet. for a Writ of Habeas Corpus by a Person in State Court Custody at 2). Therefore, she can show no prejudice in the timing. See Bond v. Dretke, 384 F.3d 166, 167-68 (5th Cir. 2004) ("To prove prejudice for an ineffective assistance of counsel claim in the context of a guilty plea, the habeas petitioner must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.") (internal citations omitted). Stone has neither alleged nor established prejudice. Accord see Craker v. McCotter, 805 F.2d 538, 541-42 (5th Cir. 1986).
In her fourth asserted error, Petitioner states that her attorney provided ineffective assistance when he failed to strike a deaf juror from the jury panel. The record reflects that Blanka Anselmo, a hearing impaired person, was impaneled as a member of the petit jury and that the court used certified deaf interpreters to assist her. See No. 05-02-840-CR [F01-43357-JP] Record v. 1 at 05 and 58. However, Stone has not presented any corroboration for the claimed off-the-record colloquy between the court and the juror.
Further, "[t]he standard for determining whether a proposed juror may be excluded for cause is 'whether the prospective juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" United States v. Wharton, 320 F.3d 526, 535 (5th Cir. 2003) (quoting Soria v. Johnson, 207 F.3d 232, 242 (5th Cir. 2000) (quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852 (1985))). Stone has not shown that the juror in question was entitled to be excused for cause under either federal or Texas law. Nor has she alleged how preserving the alleged conversation on the record would have changed the outcome of her case.
In her fifth asserted error, Petitioner contends that her attorney failed to properly cross-examine Stephen Armistead, whom Stone attempted to hire to commit murder, to show the inconsistency between two versions of a telephone call he described during his direct examination and his written statement to the police. On cross examination, Petitioner's attorney brought out that Stone had not discussed any illegal actions during her first two telephone calls. (Reporter's Record, v. 3 at 89).
Petitioner has failed to demonstrate that her attorney's cross-examination of this witness fell below the objective standard of competence required under the Sixth Amendment. In light of the fact that the credibility to be given to witnesses' testimony is a matter reserved for the jury, her claim that counsel should have moved to strike Armistead's testimony on the basis that it was unreliable is patently frivolous.
In her sixth ground Stone contends that counsel should have objected to certain documents presented by the State on the grounds that no proper chain of custody was presented. The witness who sponsored both State's exhibits 4 and 5 positively identified each document — the former being the name of the person to be killed, given to him by Petitioner and the latter being the victim's cell phone number in the witness's own handwriting. ( See Reporter's Record, v. 3 at 59-61). The witness's identification foreclosed any non-frivolous objection to either exhibit.
In her seventh asserted error, Stone complains that her attorney failed to object throughout the trial, and in fact objected only twice. As she has neither identified instances at which her attorney should have objected, nor how such lack of objections prejudiced her, her allegation is entirely conclusory and therefore cannot support a claim for habeas relief. See, e.g., Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).
In her eighth asserted error, Petitioner complains that her attorney failed to object when the State waived their initial closing argument. Under Texas law, the prosecution may waive its initial closing argument, see Tex. Code Crim. Pro. art. 36.07, Granato v. State, 493 S.W.2d 822, 826 (1973), therefore any objection would have been futile.
In her ninth asserted error, Stone complains that her counsel failed to object to the State's interruptions of Dr. Robert Lovitt, an expert witness as to Petitioner's mental health. ( See Reporter's Record, v. 4 at 78). The record reflects that Stone's counsel did in fact object to the State's interruptions and that his objection was sustained. ( Id. at 97). In the context of this witness, Petitioner further complains that she was not told the results of the tests underlying Dr. Lovitt's diagnosis and opinions. (Pet. Stone's Reply at 8). Not only is this wholly conclusory, but Petitioner has also not alleged any prejudice, either on trial or appeal, based upon her lack of personal knowledge of the expert's opinions.
In her tenth asserted error, Stone alleges that her attorney was ineffective for failing to object to several of the State's comments during voir dire and closing arguments. Decisions not to object during closing arguments are a matter of trial strategy, Drew v. Collins, 964 F.2d 411, 423 (5th Cir. 1992), as are the actions of an attorney during voir dire. Teague v. Scott, 60 F. 3d 1167, 1172 (5th Cir 1995); see also Sterling v. Dretke, 2004 WL 2664247 *4 (5th Cir. Nov. 24, 2004) (not selected for publication). "A decision regarding trial tactics cannot be the basis for a claim of ineffective assistance of counsel unless counsel's tactics are shown to be 'so ill chosen that it permeates the entire trial with obvious unfairness.'" Medellin v. Dretke, 371 F.3d 270, 277 (5th Cir. 2004) (quoting Teague, 60 F.3d at 1172, quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)). Plaintiff has not shown that the decision of the Texas Court of Criminal Appeals on this matter "resulted in a decision that involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." See § 2254(d)(1) (2).
To the extent that Stone relies on her preceding claims of ineffective assistance of counsel in support of her claim of cumulative instances of ineffective assistance of counsel, the same is without merit for the foregoing reasons. Further since this ground fails to enumerate any other alleged errors, it is wholly conclusory and fails to state a claim on which relief could be granted. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000). RECOMMENDATION:
Petitioner has failed to show that she is entitled to relief pursuant to 28 U.S.C. § 2254. Specifically, she has failed to establish that the decision of the Texas Court of Criminal Appeals constituted a decision which met the prerequisites of § 2254(d)(1) or (2). It is therefore recommended that the petition be denied and dismissed.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.