Opinion
CIVIL ACTION NO. 4:02-CV-864-A.
March 24, 2003
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 28 U.S.C. § 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:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Darron Dwayne Wynn, TDCJ-ID #928190, is in custody of the Texas Department of Criminal Justice, Institutional Division.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
Wynn was convicted by a jury of capital murder, and the trial court assessed an automatic life sentence. (State Habeas R. at 19.) He appealed his conviction, and the Second Court of Appeals affirmed the trial court's judgment in an unpublished opinion on August 31, 2001. Wynn v. State, No. 2-00-203-CR (Tex.App.-Fort Worth Aug. 31, 2001, pet. ref'd) (not designated for publication). The court of appeals summarized the facts of the case as follows:
On May 3, 1998, Tanya Jones brought her two-year-old son, J.W., into the emergency room clinic at John Peter Smith Hospital. J.W. was not breathing, was ashen, and his lips were colorless. The emergency room staff tried to revive J.W., but he was already dead. J.W.'s clothes were removed, revealing numerous bruises and abrasions.
Doctor Nizam Peerwani, the medical examiner who conducted the autopsy on J.W., stated that J.W.'s injuries were "horrendous." Although Dr. Peerwani testified that J.W. had hundreds of wounds that were too numerous to count, he established that J.W. had died from being smothered. Based on swelling in J.W.'s brain, congestion in his organs, lack of signs of strangulation, and other signs indicative of smothering, Dr. Peerwani concluded that J.W. had died from having his face pressed downward with a person's hands or some other object.
Appellant lived with Jones and J.W. and admitted "whipping" J.W. M.J., a three-to-four-year-old child at the time of J.W.'s death, testified that she also lived with [Wynn], Jones, and J.W. and that she shared a room with J.W. She testified that she saw [Wynn] kill J.W. by placing a pillow over his head and sitting on it. (State Habeas R. at 21-22.)
On February 6, 2002, the Texas Court of Criminal Appeals refused Wynn's petition for discretionary review. Wynn v. State, No. 1801-01 (Tex.Crim.App. Feb. 6, 2002) (not designated for publication). Subsequently, Wynn filed a state application for writ of habeas corpus challenging his conviction, which the Texas Court of Criminal Appeals denied without written order. Ex parte Wynn, No. 52,887-01, at cover (Tex.Crim.App. Sept. 25, 2002). Wynn filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on October 17, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
In four grounds, Wynn raises the following claims:
1. His due process and equal protection rights were violated because he was convicted of capital murder on an invalid or defective indictment because it did not state the specific cause of death;
2. He was denied his right to a fair trial because the trial court allowed M.J., who was 3 ½ years old at the time of the offense, to testify at trial; and
3. His constitutional rights were violated because the prosecutor committed "procedural" misconduct by encouraging M.J. on what to say and then using her statement to reindictment him for capital murder. (Federal Pet. at 7-8.)
E. RULE 5 STATEMENT
Cockrell believes that Wynn has sufficiently exhausted available state remedies on the issues presented and, thus, does not move for dismissal on this basis. (Resp't Answer at 3.)F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C. § 2254(d), 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 he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, 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. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court of the United States 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. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision is an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
Further, federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct, the applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Invalid and Defective Indictment
In his first ground, Wynn complains that the reindictment filed in May of 2000 was invalid and defective because it listed 14 possibilities as to the cause of J.W.'s death without specifically stating the actual cause of death. (Pet. at 7; State Habeas R. at 12-18.) In his second ground, he contends that because of this fact, he was "not informed of the exact nature and cause of the accusation against him." (Pet. at 7.)
It is well settled in our circuit that the sufficiency of a state indictment is not a matter for federal habeas corpus relief unless it is shown that the indictment is so defective that the convicting court had no jurisdiction. See Lockett v. Anderson, 230 F.3d 695, 702 (5th Cir. 2000); Alexander v. McCotter, 775 F.2d 595, 598-99 (5th Cir. 1985). Where, as here, the state courts have held that an indictment is sufficient under state law, the federal court need not address that issue on habeas review. McKay v. Collins, 12 F.3d 66. 68-69 (5th Cir. 1994).
3. Competency of Child Witness
In Wynn's third ground, he contends he was denied a fair trial because M.J., who was 5 years old at the time of trial, was not legally competent to testify under rule 601(a)(1)(2) of the Texas Rules of Evidence regarding events that occurred when she was only 3 ½ years old. (Pet. at 7.) TEX. R. EVID. 601(a)(1)(2).
Rule 601, entitled "Competency and Incompetency of Witnesses," provides in relevant part:
(a) General Rule. Every person is competent to be a witness except as otherwise provided in these rules. The following witnesses shall be incompetent to testify in any proceeding subject to these rules:
. . .
(2) Children. Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.
In habeas actions, federal courts do not sit to review the mere admissibility of evidence under state law. See Peters v. Whitley, 942 F.2d 937, 940 (5th Cir. 1991). A federal court must afford the state courts' evidentiary ruling the deference required by federal habeas law, unless the ruling violates a specific federal constitutional right or renders the petitioner's trial fundamentally unfair. 28 U.S.C. § 2254(d); Gochicoa v. Johnson, 118 F.3d 440, 446 (5th Cir. 1997). Further, federal courts are highly dependent upon state court findings of subsidiary facts pertinent to the challenged determination. Miller v. Fenton, 474 U.S. 104, 114-15 (1985). Our role is properly fulfilled by examining not whether M.J. was a competent witness under state law, but whether her testimony was so grossly unreliable that, viewed in the context of the entire trial, it infected and fatally undermined the reliability of Wynn's conviction. Peters, 942 F.2d at 940.
The state trial court conducted a hearing outside the presence of the jury on the issue of M.J.'s competency as a witness. (6Rep. R. at 2-24.) M.J. demonstrated during the hearing that she knew the difference between a truth and a lie and that it was good to tell the truth and bad to tell a lie. M.J. also answered several questions demonstrating her knowledge of that difference, and she promised to testify truthfully. Although the trial court noted that M.J. was "at the borderline in the age department" and expressed its concerns about her ability to recall events and observe events at the time of J.W.'s death, the court believed, having observed her demeanor and responses in court, that she met the "minimum legal criteria" under rule 601. (6Rep. R. at 20.) There is nothing in the record to refute the state court's finding that M.J. possessed sufficient intellect to relate the events as she recalled them or to indicate that her testimony was so grossly unreliable that it undermines the reliability of Wynn's conviction. In fact, as noted by the Second Court of Appeals, M.J.'s testimony was entirely consistent with and supported by Dr. Peerwani's testimony. (State Habeas R. at 25.)
4. Prosecutorial Misconduct
In his fourth ground, Wynn contends the prosecutor committed "procedural misconduct" by encouraging M.J. to change her statement and then using the statement to reindict him and obtain an illegal conviction. (Pet. at 8.) The record reflects that the day after J.W.'s death, M.J. gave a videotaped interview to a child protective services investigator in which she gave contradictory statements regarding whether Wynn physically abused J.W. (6Rep. R. at 48-55.) The record further reflects that M.J. did not reveal that she saw Wynn kill J.W. until over a year after the event. (6Rep. R. at 68-85.) The record does not reflect, however, misconduct or influence on the part of the state prosecutor in obtaining M.J.'s subsequent statement. Instead, the record shows that M.J. first mentioned that Wynn smothered J.W. with a pillow to family members as they prepared to leave on a trip to Michigan. (6Rep. R. at 66-85.) Without substantiation in the record, a court cannot consider a habeas petitioner's mere assertions on a critical issue to be of probative evidentiary value. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983).
5. Summary
Wynn is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. The state courts' ajudication of the issues presented is neither contrary to nor does it involve an unreasonable application of clearly established federal law and is not based on unreasonable determinations of fact in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Wynn's petition for writ of habeas corpus should be denied.
III. 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 in the United States District Court 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 extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until April 14, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until April 14, 2003, to serve and file 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, a 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.