Opinion
No. 3:03-CV-2663-M.
June 1, 2004
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 Marckiest Dequine Sykes ("Sykes" or "Petitioner") is confined at the Estelle Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) at Huntsville, Texas. Respondent is the Director of TDCJ-CID.
Statement of the Case: Sykes was charged with capital murder and entered a plea of not guilty in cause number F-0015029-PV. The jury found him guilty and Petitioner was sentenced to life imprisonment as mandated by Texas law.
Petitioner's conviction was affirmed by the Fifth Court of Appeals in Sykes v. State, No. 05-00-01280-CR, 2002 Tex. App. LEXIS 5104 (Tex.App.-Dallas July 19, 2002, pet. ref'd) (not selected for publication). His petition for discretionary review was refused on October 23, 2002.
Sykes filed an application for habeas corpus relief pursuant to TEX. CODE CRIM. PROC. art. 11.07. Ex Parte Sykes, Appl. No. 56,741-01. On October 1, 2003 the Texas Court of Criminal Appeals denied his application without written order on the findings of the trial court without a hearing. See Ex Parte Sykes at cover.
In response to Petitioner's petition and this court's show cause order Respondent filed an answer together with copies of Petitioner's prior state proceedings on December 29, 2003. Petitioner filed a traverse on January 6, 2004 and a further response on January 13, 2004.
Findings and Conclusions:
Review of Petitioner'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). Further, findings of fact made by a State court are presumed to be correct absent clear and convincing evidence rebutting the presumption. § 2254(e)(1).
In his first ground for relief, Petitioner asserts a claim of factual insufficiency. ( See Pet.'s Resp. and Objections to the Resp't Dretke's Ans. with Br. in Support at 3, stating that Petitioner is asserting a factual insufficiency claim under Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996), not a legal insufficiency claim under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).) Factual insufficiency is a creation of Texas law whereby the reviewing court scrutinizes the fact finder's weighing of the evidence. Clewis v. State, 922 S.W.2d at 133. As Petitioner's first claim is based entirely on Texas law, it does not support a claim for relief under federal habeas law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480 (1991).
In Clewis, the Court of Criminal Appeals made clear its understanding that Jackson v. Virginia's analysis of the legal sufficiency of the evidence was a different standard of evaluating the evidence than that applied to the factual sufficiency of the evidence under Texas state statutory and constitutional law, and the denial of relief under the Supreme Court's Jackson v. Virginia standard did not preclude a Texas appellate court from considering a claim that the evidence was factually insufficient. Clewis v. State, 922 S.W.2d at 132-33. Unlike the Jackson standard which required that the evidence be reviewed in the light most favorable to the prosecution, "a factual sufficiency review dictates that the evidence be viewed in a neutral light, favoring neither party." Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000).
Moreover since the Supreme Court has not addressed a "factual sufficiency of the evidence" claim, Sykes cannot satisfy the requirements of § 2254(d)(1).
In Petitioner's second ground for relief, he asserted that he was denied effective assistance of appellate counsel because counsel failed to raise the issue of factual sufficiency on direct appeal. Petitioner's counsel's conduct is governed by the standards set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Smith v. Robbins, 528 U.S. 259, 285-86, 120 S.Ct. 746, 764 (2000). There is a strong presumption that an attorney's conduct falls within the broad range of reasonable professional assistance required under the Sixth Amendment. Strickland, 466 U.S. 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 698, 104 S.Ct. at 2069. To establish the prejudice prong of the Strickland test a petitioner must how that, but for his attorney's failure to raise meritorious grounds, he would have prevailed on his appeal. Smith v. Robbins, 528 U.S. at 285-86, 120 S.Ct. at 764.
A claim of ineffective assistance of counsel is a mixed question of law and fact. E.g., Riley v. Dretke, 362 F.3d 302, 305 (5th Cir. 2004). Although no sufficiency of the evidence claim was asserted in his direct appeal, the evidence presented at trial was summarized in the Fifth Court of Appeal's opinion. See Sykes v. State, 2002 Tex. App. LEXIS 5104 *5-7. The evidence is also recited in the parties direct appeal briefs. In the context of Petitioner's art. 11.07 application, the trial court applied the Sixth Amendment test set out in Strickland and held that Sykes had failed to satisfy Strickland's two prong test. See Appl. No. 56,741-01 at 32-33, which was adopted by the Texas Court of Criminal Appeals in denying relief. Id. at cover.
Sykes has failed to show that the Texas court's determination that he failed to satisfy the "cause" prong of the Strickland test constituted an unreasonable determination of facts in light of the evidence presented, § 2254(d)(2), nor has he shown in light of the evidence presented at trial that there was a reasonable probability that had an insufficiency of the evidence claim been presented as a point of error on appeal that his conviction would have been reversed. More importantly in the face of the AEDPA he has failed to show that Court of Criminal Appeals' denial of relief on this ground constituted an unreasonable application of federal law as determined by the United States Supreme Court. See Yarborough v. Gentry, ___ U.S. ___, 124 S.Ct. 1 (2003).
Sykes rested in the guilt-innocence portion of the trial without calling any witnesses. See Reporter's Record v.4 at 97.
In his third ground for relief, Petitioner asserts that he received ineffective assistance of his trial counsel when counsel failed to request a jury instruction that Goodman and Hunt were accomplice witnesses. In Texas, a person cannot be convicted on the testimony of accomplices alone; there must also be corroborating evidence. TEX. CODE. CRIM. PROC. art. 38.14. The Fifth Court of Appeals found, assuming arguendo that Goodman and Hunt were accomplice witnesses and counsel erred by failing to request such an instruction, Petitioner could not prove prejudice as there was sufficient corroborating evidence to support his conviction. Sykes v. State, 2002 Tex. App. LEXIS 5104 *4-5. As the Court of Criminal Appeals did not articulate a different rationale for denying Petitioner's habeas application, its decision is presumed to rest upon the same ground. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 2594 (1991). "On a petition for writ of habeas corpus, a federal court defers to the state court's interpretation of state law." Fierro v. Lynaugh, 879 F.2d 1276, 1278 (5th Cir. 1989). Therefore, Sykes cannot show the prejudice prong of the Strickland test. RECOMMENDATION:
Petitioner has failed to show that he is entitled to relief pursuant to 28 U.S.C. § 2254. Specifically, he 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 on the merits.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.