Opinion
CIVIL ACTION NO.: 4:05cv176-TSL-LRA.
October 13, 2007
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Procedural History
Willie Edwards Williams [hereinafter "Petitioner"] filed his Petition for Writ of Habeas Corpus in this cause on November 2, 2005. Christopher Epps, Commissioner of the Mississippi Department of Corrections, and Jim Hood, Attorney General of the State of Mississippi [hereinafter "Respondents"], filed their Answer to the petition [docket entry 9] on April 28, 2006. This cause is now before the undersigned Magistrate Judge for a Report and Recommendation regarding the merits of the Petition.
Petitioner was convicted of one count of the possession of cocaine with the intent to distribute in the Circuit Court of Lauderdale County, Mississippi, on December 2 and 3, 2002. He was sentenced as a habitual offender on January 15, 2003, to serve a term of life imprisonment with no parole in the custody of the Mississippi Department of Corrections. Through new counsel, he perfected a direct appeal to the Mississippi Supreme Court, raising the following grounds for reversal:
I. Was there sufficient evidence to support a conviction of possession of a controlled substance with intent to distribute?
II. Should the trial court have granted a motion for judgment notwithstanding the verdict?
III. Was the search of the area surrounding Williams and the search of his vehicle constitutional?
IV. Has Williams made a showing of ineffective assistance of counsel?
On October 26, 2004, the Mississippi Court of Appeals affirmed Petitioner's judgment of conviction and sentence in a written opinion. Williams v. State, 892 So.2d 272 (Miss.App. 2004), reh'g denied, January 11, 2005, cert. denied, May 5, 2005. Williams did not file a petition for writ of certiorari in the United States Supreme Court.
On May 9, 2005, and on May 13, 2005, Petitioner filed an "Application to Proceed in the District Court" and a "Motion to Correct or Amend Application to Proceed in Trial Court" in the Mississippi Supreme Court, setting forth claims for relief, summarized as follows:
A. Invalid indictment . . .
B. Ineffective assistance of counsel . . .
C. Judicial misconduct . . .
D. Voir Dire Violations . . .
E. Evidence tampering and any all violations discovered upon receiving requested Designation of Records.
By Order filed June 3, 2005, the supreme court denied the motion, stating in part as follows:
Williams' application fails to specifically allege facts to support his motion for application to proceed in the trial court. Williams includes only a list of general claims and presents no specific facts upon which the trial court could find merit. Therefore, the panel finds that the application should be denied where Williams fails to make a substantial showing of a denial of a state or federal right, pursuant to Miss. Code Ann. § 99-39-27(5).
Exhibit C to Answer.
On November 2, 2005, Williams filed his Petition for Writ of Habeas Corpus in this case, listing the following grounds for relief:
One: Insufficient Evidence on which to Convict.
Two: Denial of JNOV.
Three: Illegal Search and Seizure.
Four: Ineffective Assistance of Counsel.
1. Defense counsel was not prepared to defend against the possession of cocaine charge.
2. Defense counsel failed to file motions to suppress:
A. The illegally obtained evidence;
B. The statements from witnesses Trudie Stubbs and Katrina Dove regarding other crimes;
C. The testimony of witness Michael Phillips regarding the illegally obtained evidence;
D. The testimony of the K-9 officer.
3. Defense counsel failed to interview and call witnesses from the casino who could have testified about the money petitioner won and failed to secure the video from the casino.
4. Defense counsel failed to secure the video from the service station near the accident scene.
5. Defense counsel failed to object and preserve the issue regarding how petitioner came into possession fo the money.
6. Defense counsel failed to object when the prosecution used a prior simple assault conviction to satisfy the "crime of violence" requirement of the enhancement statute and also failed to challenge the state's evidence used to prove the prior convictions.
7. Defense counsel failed to request jury instructions.
Five. Section 99-19-83 of the Mississippi Code is unconstitutional in that it is vague and ambiguous in its wording and does not clearly define "violent crime."
These grounds are set forth as summarized by the Respondents in the Answer.
Ground 5 is located on page 15 of Petitioner's "Brief in Support of Petition for Writ of Habeas Corpus.
Standard of Review
This case is controlled by the applicable portions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-32, 110 Stat. 12144, and the standard of review imposed upon this court by AEDPA. Title I of the AEDPA modified 28 U.S.C. § 2254 by providing the following:
(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).
Under AEDPA, where the state court adjudicated the petitioner's claim on the merits, this Court reviews questions of fact under § 2254(d)(2), while questions of law or mixed questions of law and fact are reviewed under § 2254(d)(1). A state court decision is "contrary to" federal law if it is dependent upon principles of law which directly conflict with prior Supreme Court holdings, or reaches a different conclusion than that reached by the Supreme Court on materially indistinguishable facts. Henderson v. Quarterman, 460 F.3d 654, 659 (5th Cir. 2006).
An "unreasonable application" by a state court decision is where the court "correctly identifies the governing legal principle" but then "unreasonably applies it to the facts of the particular case." Bell v. Cone, 535 U.S. 685, 694 (2002). Merely an erroneous or incorrect application of federal law is not to be considered unreasonable; the state-court's application must be objectively unreasonable before relief may be granted. Rompilla v. Beard, 545 U.S. 374, 380 (2005). See also St. Aubin v. Quarterman, 470 F.3d 1096, 1099 (5th Cir. 2006).
Factual findings are presumed to be correct, and the Court defers to the state court's decision regarding factual determinations unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000); § 2254(d)(2). The courts have no authority to grant habeas corpus relief simply because "we conclude, in our independent judgment, that a state supreme court's application of [federal] law is erroneous or incorrect." Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir. 2002).
This Court must determine whether or not the Mississippi court's decision was an unreasonable application of any clearly established Federal law or either contrary to any clearly established Federal law, as set forth in a United States Supreme Court case.
Facts
Early on May 12, 2002, William Edwards Williams was drinking Seagram's gin and driving around in his Nissan on the city streets of Meridian, Mississippi. He ran off the road and crashed into two parked cars in the yard of a house on 20th Street. The owners of the cars, Katrina Dove, and her grandmother, Trudie Stubbs, came out of their house and saw Williams trapped in his car. They could not get the driver's side car door open and help him out. An unidentified man came and pulled Williams from the vehicle out of the passenger side door. According to Katrina, Williams then took another drink of gin and threw the bottle in her garbage. He then asked them not to call the police. Katrina ignored his request and started to call the police. Katrina then saw Williams reach inside the car, lift his speaker box, and retrieve an unidentified object from his vehicle, placing it in his pocket. He then retrieved his cell phone from the back seat and left the scene. Trudie and Katrina were the only witnesses; the only object they could identify that Williams retrieved was his cell phone.
Katrina and Trudie described Williams to the first officers to arrive at the scene, Michael Phillips and Andy Havard. Officer Phillips left the scene, proceeded in his patrol car in Williams's direction, and soon spotted Williams walking a few blocks away. Officer Phillips pulled up beside Williams and got out of his car to question Williams about the accident.
Officer Phillips testified that Williams "was making a lot of eye movement" towards a particular area four or five feet away." A patrol unit was called, Officer Powell arrived, and the officers placed Williams in the back seat of Officer Powell's vehicle. They searched the area and found a large ball of aluminum foil containing what was later found to be 89.42 grams of crack cocaine, with a street value of $20,000. No fingerprints from the foil could later be identified as Williams's. The officers searched Williams and found $4,383.06 in cash in his pockets. No officer saw Williams touch the cocaine package or throw anything down or come in contact in any way with the foil package of cocaine.
The officers took Williams to the scene of the accident, and Katrina and Trudie identified him as the driver of the car that crashed into their vehicles. Williams was arrested at the scene.
Ricky Roberts, a K-9 officer, had his dog sniff Williams's vehicle at the scene. "Madoek," the dog, "hit" on drug aroma near the speaker box in the vehicle. Officer Roberts testified that the aroma could have been marijuana, cocaine, crack cocaine, heroin, or crystal methamphetamines, and that Madoek could not distinguish among these drugs. No drugs were found in the vehicle.
Williams was represented at trial by attorney Christopher M. Falgout, Meridian, Mississippi. On direct appeal, he was represented by attorney William F. Vick, Canton, Mississippi. Williams filed his state post-conviction proceedings and this federal habeas case pro se. The State was represented at trial by attorneys from the Lauderdale County District Attorney's office, Lisa Howell and Veldore Young Heidelberg, Meridian, Mississippi. Circuit Judge Larry E. Roberts presided over the trial.
Analysis of the Issues and the Applicable Law Are Some of the Grounds Set Forth in the Petition Procedurally Barred from Federal Review?
Several of the claims of ineffective assistance of counsel contained in Ground 4, as well as Ground 5 [that habitual offender statute, MISS. CODE ANN. § 99-19-83, is unconstitutionally vague] were not raised in Williams's direct appeal or in his PCR. The Respondents assert that these claims are unexhausted and thus procedurally barred from federal review under Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995), andO'Sullivan v. Boerckel, 526 U.S. 838 (1999) (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). The claims of ineffective assistance that were not raised in the state courts are:
1. That defense counsel was not prepared to defend against the possession of cocaine charge;
2. That defense counsel failed to file a motion to suppress the statements from witnesses Trudie Stubbs and Katrina Dove regarding prior crimes;
3. That defense counsel failed to secure the video from the service station;
4. That defense counsel failed to object when the prosecution used a prior simple assault conviction to satisfy the "crime of violence" requirement of the enhancement statute and also failed to challenged the state's evidence used to prove the prior convictions.
The undersigned agrees with Respondents' assertions that these unexhausted claims are barred from federal habeas review. If Williams attempted to return to the state courts to present these claims, the Mississippi Supreme Court would find the claims to be barred as successive under MISS. CODE ANN. § 99-39-27(9). Accordingly, under Coleman v. Thompson and Sones v. Hargett, these claims should be dismissed pursuant to the procedural bar.
§ 99-39-27(9) provides in part that the "dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this chapter."
A return to the state courts would be futile under Mississippi law. "When it obvious that the unexhausted claim would be procedurally barred in state court, we will forego the needless `judicial ping-pong' and hold the claim procedurally barred from habeas review." Sones, 61 F.3d at 416, citing Steele v. Young , 11 F.3d 1518, 1524 (10th Cir. 1993).
We find no showing of cause and actual prejudice to excuse Petitioner's default. In Coleman v. Thompson, the United States Supreme Court addressed the exceptional circumstances required in order for the federal courts to excuse a state defaulted claim as follows:
We now make it explicit: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice . . .501 U.S. at 731 (emphasis added).
In general, to show cause, a petitioner must demonstrate "that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." McCleskey v. Zant, 499 U.S. 467, 488 (1991). If a petitioner fails to show cause for his procedural default, the court need not address the prejudice prong of the test. See Martin v. Maxey, 98 F.3d 844, 849 (5th Cir. 1996); Engle, 456 U.S. at 134 n. 43 (1982); Meanes v. Johnson, 138 F.3d 1007, 1011 (5th Cir. 1998).
Williams has shown no "cause" for the default other than his general assertions that his counsel was ineffective for failing to raise these issues at trial and/or on direct appeal. Counsel's errors may constitute cause under certain circumstances to overstep the procedural default. However, the prisoner ordinarily must bear the risk of his attorney's errors. In Murray v. Carrier, 477 U.S. 478, 488 (1986), the United States Supreme Court addressed the issue of whether an attorney's error can constitute the requisite cause for overcoming a procedural default, stating:
We think, then, that the question of cause for a procedural default does not turn on whether counsel erred or on the kind of error counsel may have made. So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, supra, we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default.
In Williams's case, the alleged attorney's errors are not the kind which would constitute "cause" for the default underColeman. No cause or prejudice has been shown by Williams.
Lastly, the Court finds that the failure of this court to consider Williams's claims will not result in the "fundamental miscarriage of justice" under Coleman. A miscarriage of justice in this context means that the petitioner is actually innocent of the crime for which he was convicted. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001). To support an innocence claim, a petitioner must support his allegations with "new, reliable evidence that was not present at trial" and that would show that it was "more likely than not" that no reasonable juror would have convicted him with this new evidence. Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999). Williams has not met this standard. No reliable new evidence has been presented that would indicate that he was factually innocent of the crime of the possession of cocaine with the intent to distribute or that he was not a habitual offender.
Was the Evidence Constitutionally Sufficient to Support the Guilty Verdict? (Grounds 1 2)
In Ground 1, Petitioner contends that the evidence was insufficient to support the verdict. As supporting facts, he asserts the following:
Petitioner was convicted of possession of cocaine when the State was allowed to instruct jury on constructive possession which was misstatement of law. Petitioner never had dominion and control over area where drugs were actually found on a public street.
. . .
Denial of J.N.O.V. Judge abused discretion by not setting aside jury verdict, and granting trial on drug possession. Drug possession was not proven, also, Judge abused discretion by failing to allow Petitioner to plead to reduced charge as offered by prosecution.
There is "clearly established Federal law" regarding the standard of review to be applied in a federal habeas case when a state defendant challenges his conviction based on a claim of insufficient evidence in the case. This law was set forth by the Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979). The relevant question is, "[W]hether, after viewing the evidence and the reasonable inferences which flow therefrom in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 324; see also United States v. Smith, 203 F.3d 884, 887 (5th Cir. 2000); West v. Johnson, 92 F.3d 1385, 1393 (5th Cir. 1996).
The court of appeals found the evidence to be sufficient to support the verdict. This Court could only grant habeas relief if the court of appeals' decision was based upon an unreasonable application of the Jackson v. Virginia standard. We have carefully reviewed the transcript of the trial and the court of appeals' decision regarding the sufficiency of the evidence. That court noted that the conviction was based on circumstantial evidence; the verdict depended upon the sufficiency of the proof that Williams "constructively possessed" the crack cocaine found near where he was standing. Williams, 892 So.2d at 5, ¶ 8. The court pointed out that the State did not prove that Williams at any time physically possessed the crack; no drugs or paraphernalia were found in his vehicle, or on his person; none of his fingerprints were found on the aluminum foil. Citing Keys v. State, 478 So.2d 266, 268 (Miss. 1985), and Powell v. State, 355 So.2d 1378, 1379 (Miss. 1978), the court concluded that the evidence was sufficient to establish the constructive possession of the cocaine. Proving that the premises where contraband is found is in the exclusive possession of a defendant is unnecessary where additional incriminating facts connect the accused with the contraband. Id. The court held that there were enough such facts to support a constructive possession verdict: It was early in the morning where few people were on the streets. The women saw Williams retrieve something from his car. Williams fled the scene. The cocaine was within four to five feet from Williams. Williams made eye movements toward the drugs. Williams would have had an immediate need to get rid of it before police caught him. Williams had more than $4,000 in his pocket. The drug dog alerted the area in Williams's car where Williams had removed something minutes before. The court concluded that all of the combined circumstances allowed the jury to find beyond a reasonable doubt that Williams constructively possessed the drugs. Id. at 6, ¶ 10.
After a review of the trial testimony, the undersigned concludes that Petitioner's trial revolved around the credibility of the witnesses' testimony. The jury obviously believed the officer's testimony that Williams moved his eyes toward the area where the foil package was found. It believed Katrina's testimony that Williams removed something from the speaker box in his car. It accepted the drug dog's conclusion that drugs had been in that speaker box area. It considered the $4,000 cash found on Williams as indicative that he dealt in drugs.
The evidence in this case is circumstantial. However, the majority of the state court of appeals did find it sufficient to support the verdict under Mississippi law. We have considered the state court's decision under the Jackson v. Virginia standard, and find that the court decision was not an unreasonable application of Jackson to the facts in this case. When considering the evidence presented, and its reasonable inferences, in a light most favorable to the State, reasonable jurors may have found Williams guilty beyond a reasonable doubt. The determination of the sufficiency of the evidence by a state appellate court is entitled to great deference. Parker v. Procunier, 763 F.2d 665, 666 (5th Cir.),cert. denied, 474 U.S. 855 (1985). The application of the standard set forth in Jackson v. Virginia to the facts in this case was not unreasonable, and no relief can be granted.
Petitioner refers to the dissent in his case written by Judge King, joined by Judge Ishee. Id. at 9-11, ¶ 28-39. Judge King wrote a compelling dissent in Williams's case, concluding that the evidence was not sufficient to prove that Williams exercised dominion and control over drugs found in a pile of debris on the street. There is certainly room to differ as to the evidence supporting the element of "possession." However, this Court's role is restricted, and the undersigned finds that the majority opinion did not unreasonably apply Federal law to the facts in Williams's case.
Was Williams's Fourth Amendment Right to Be Free from Illegal Searches and Seizures Violated? (Ground 3)
In Stone v. Powell, 428 U.S. 465, 494 (1976), the Supreme Court held that "where the state has provided an opportunity for full and fair consideration of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." See also, Lofton v. Whitley, 905 F.2d 885, 889, n. 5 (5th Cir. 1990); Penry v. Lynaugh, 832 F.2d 915, 918 (5th Cir. 1987); Bell v. Lynaugh, 828 F.2d 1085, 1091-92 (5th Cir. 1987). This preclusion on federal courts to grant habeas corpus relief based on a Fourth Amendment violation acts as a bar to such relief "absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review." Davis v. Blackburn, 803 F.2d 1371, 1372 (5th Cir. 1986) quoting Stone, 428 U.S. at 494 n. 37. See also Bridgers v. Dretke, 431 F.3d 853, 861 (5th Cir. 2005). The burden is on the habeas petitioner to plead and prove the denial of a full and fair hearing in state court.Davis, 803 F.2d at 1372.A consideration on the merits of a Fourth Amendment claim by a state appellate court will suffice to raise the Stone bar for habeas review. Swicegood v. Alabama, 577 F.2d 1322, 1324 (5th Cir. 1978). In this case, the court of appeals fully considered and rejected the Fourth Amendment claim, even though it was not raised at the trial level. Williams, 893 So.2d at 7, ¶ 14-17. The court concluded that Williams had no expectation of privacy on the side of a public road. Further, by discarding the aluminum foil package before he was taken into custody, Williams abandoned it and deprived himself of any right to privacy. Id. at ¶ 15, citingCalifornia v. Hodari D., 499 U.S. 621, 629 (1991). The police were justified in seizing the cocaine because of the possibility that the evidence would be lost. Id. at 7, ¶ 16, 17.
The court of appeals also rejected Williams's assertions that the police should have obtained a warrant before allowing the drug dog to sniff the car. The car was abandoned, and Williams had no privacy right to it anymore. All issues regarding the search of his vehicle and the area surrounding him were rejected by the court.
The Stone case prevents this Court from granting relief unless Williams shows he was denied a full and fair hearing in state court. He has failed to do so. In his direct appeal, he was represented by counsel who brought this issue before the court in an adequate manner. He has not shown facts to overcome Stone. Whether or not the state court may have been wrong is not the issue for this federal habeas review. "[I]f the term `fair hearing' means that the state courts must correctly apply federal constitutional law, Stone becomes a nullity." Swicegood, 577 F.2d at 1324. No federal habeas relief may be granted.
Was Williams's Attorney Constitutionally Ineffective? (Ground 4)
One of Petitioner's primary grounds in this habeas cause is that his trial attorney, Mr. Falgout, was constitutionally ineffective in his representation of him at the trial. Specifically, those claims which have been exhausted in state court are summarized as follows:
1. Failure to file a motion seeking to suppress the seizure of cocaine, the testimony of Officer Powell regarding his discovery of the drugs, and the testimony of the K-9 officer regarding his dog's search of Petitioner's vehicle.
2. Failure to object and preserve the issue of how Petitioner came into possession of the cash; failure to interview and call witnesses from the casino to testify that Petitioner had won a large amount of money there; failure to secure a video from casino showing he was there.
3. Failure to call witnesses.
4. Failure to request a proper jury instruction regarding "dominion and control" and "proximity" and "constructive possession."
In analyzing these claims, the Mississippi Court of Appeals utilized clearly established Federal law regarding Sixth Amendment claims, as set forth in the Supreme Court case ofStrickland v. Washington, 466 U.S. 668 (1984). The court held that Williams did not identify the substantive pre-trial motions which should have been filed by his attorney. Williams, 892 So.2d at 8, ¶ 19. Further, since the court had previously found that the introduction of the warrantless search of the vehicle by the drug dog, and the introduction of the aluminum foil and its contents, were admissible under the law, then Williams was not prejudiced by his attorney's failure to object to the introduction of this evidence. Id. at ¶ 20. Citing and discussingCurry v. State, 249 So.2d 414, 416 (Miss. 1971), the court also concluded that instruction No. C-8 was an accurate statement of the law regarding the standard of proof required to convict under a constructive possession theory. Id. at ¶ 21. It also rejected the claim that counsel should have obtained videotape from the Silver Star Casino to show Williams won the cash there. The court found there was no showing that such evidence even existed, or that it would have changed the outcome had it been introduced.Id. at ¶ 11.
To sustain claims of adequate assistance of counsel, a defendant usually must meet the standards of Strickland v. Washington, which require proof that "counsel's performance was deficient" and "the deficient performance prejudiced the defense" so gravely as to "deprive the defendant of a fair trial; a trial whose result is unreliable." Strickland, 466 U.S. at 687, 688. Thus, both a deficiency and resulting prejudice must be shown.United States v. Lewis, 786 F.2d 1278, 1281 (5th Cir. 1986).
We have reviewed the entire state court record, which includes the transcript of the trial, including the pretrial proceedings, opening arguments, closing arguments, jury instructions and other pleadings. The appellate record is contained therein, including the brief that Williams's attorneys presented in the direct appeal of the case to the Mississippi court. The review convinces the undersigned that the court's application of Strickland to the facts of Williams's case was not unreasonable. Even if we found the Mississippi court's application of Strickland to be incorrect, we could not recommend granting habeas relief unless we found that court's application of Strickland to be objectively unreasonable or an actual misapplication of the law. See Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002) ("We have no authority to grant habeas corpus relief simply because we conclude, in our independent judgment, that a state supreme court's application ofStrickland is erroneous or incorrect.")
Williams's primary complaints are that his attorney failed to seek the suppression of the "illegally obtained" cocaine, the testimony of Officer Powell regarding his discovery of the drugs, and the testimony of the K-9 officer regarding the warrantless search of Williams's vehicle resulting in the dog's alert. As earlier discussed, the court of appeals held that this evidence was properly admissible under Mississippi law, and underCalifornia v. Hodari D., 499 U.S. 621, 629 (1991), and United States v. Williams, 569 F.2d 823 (5th Cir. 1978). Williams "abandoned" his vehicle, and the foil package of cocaine, and thus abandoned any expectation of privacy; therefore, the search and seizure was legal. We cannot find that this is an unreasonable application of any established federal law. Accordingly, it would have been futile for Williams's attorney to object to the introduction of this evidence.
Objection to this evidence would have been futile, and the failure to assert a meritless objection cannot be grounds for a finding of deficient performance. Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997) citing Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994) ("The failure the raise meritless objections is not ineffective lawyering; it is the very opposite.")
Williams contends that his attorney failed to develop the evidence regarding why he had $4,000 in cash when he was arrested. According to Williams, a Silver Star videotape of him should have been secured, and witnesses from the casino should have been called. There is no proof that such a videotape ever existed, or that such witnesses were available had Williams's attorney sought them. These allegations are conclusory at best and unsupported by any underlying factual basis. Williams presented this issue to the Mississippi courts and to this Court without any affidavits or other proof that identified any such witnesses or set forth any reasonable basis to believe that such a tape existed. Mere allegations are insufficient to prove a deficiency in the investigation on counsel's part. Complaints of uncalled witnesses are not favored in a federal habeas corpus court because the presentation of testimonial evidence is a matter of trial strategy, and because allegations of what a witness would have testified are largely speculative. McCoy v. Cabana, 794 F.2d 177, 183 (5th Cir. 1986); Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984);United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983) ("this Court has viewed with great caution claims of ineffective assistance of counsel where the only evidence of a missing witness' testimony is from the defendant.")
Williams contends that his attorney should have requested a jury instruction regarding the proof required for a finding that "constructive possession" had been established, in compliance with Mississippi law set forth in Curry v. State, 249 So.2d 414, 416 (Miss. 1971). In Curry, the Mississippi Supreme Court articulated the standard of proof required as follows:
What constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of `possession' is a question which is not susceptible of a specific rule. However, there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.249 So.2d at 416. The court of appeals held that the instruction requested by defense counsel and granted by the court sufficiently set forth the standard of proof required by Curry. The actual instruction requested by the defense and granted, No. C-8, is as follows:
The Defendant has been charged with possession with intent to distribute. To constitute possession, there must be sufficient facts to warrant a finding beyond a reasonable doubt that the Defendant was intentionally and consciously in possession of crack cocaine. Where the crack cocaine is not in the actual physical possession of the Defendant, there must be sufficient facts to establish beyond a reasonable doubt that the cocaine was subject to the Defendant's dominion or control. The burden of proof is on the State of Mississippi, and unless the State has presented evidence sufficient to prove beyond a reasonable doubt that the cocaine was subject to the Defendant's dominion or control, or that the defendant was intentionally and consciously in possession of it, then it is your sworn duty to return a verdict of "Not Guilty."
(Emphasis added). R. V. 1, p. 27.
Since the Mississippi courts have found the instruction a sufficient statement of "constructive possession" under Mississippi law, then counsel cannot be deficient for failing to draft a more precise instruction. The version requested and granted met the requirements of Mississippi law, so a deficiency cannot be found.
The remainder of Petitioner's ineffectiveness of counsel claim consists of challenges to trial counsels' failure to object to a multitude of perceived improprieties. Our review of the record persuades that these alleged failures either did not occur, did not constitute deficient performance, or did not affect the outcome of the trial. Turner v. Johnson, 106 F.3d 1178, 1188 (5th Cir. 1997). It is not our province, on habeas review, to second-guess counsel's strategic choices. Emery v. Johnson, 139 F.3d 191 at 198. "We have held that conscious and informed decisions on trial tactics and strategy cannot merit habeas relief unless they were so ill-chosen that they permeate the entire trial with obvious unfairness." Livingston v. Johnson, 107 F.3d 297, (5th Cir. 1997), citing Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983).
We find no deficiencies in counsel's performance. Applying the standard of review required by AEDPA, we find that the state's application of the law [i.e., the Strickland standard] to the facts in Williams's case was clearly not unreasonable in light of the evidence.
As both the United States Supreme Court and the Fifth Circuit Court of Appeals have recognized, a criminal defendant is not constitutionally entitled to a perfect trial, just a fair one.Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986); Sawyer v. Butler, 848 F.2d 582, 594 (5th Cir. 1988). A review of the record confirms the undersigned's conclusion that Williams did receive a fair trial, represented by adequate counsel.
Recommendation
It is the recommendation of the undersigned United States Magistrate Judge that the Petition for Writ of Habeas Corpus filed by Willie Edward Williams be dismissed with prejudice on its merits and that Final Judgment in favor of Respondents be entered.The parties are hereby notified that failure to file written objections to the proposed findings, conclusions, and recommendation contained within this report and recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. 28 U.S.C. § 636,Douglass v. United Services Auto. Ass'n., 79 F.3d 1415, 1428-29 (5th Cir. 1996).