MICHAEL B. NORTH, Magistrate Judge.
This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. §636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e) (2). For the following reasons,
Petitioner, Gerard McGee, is a state prisoner incarcerated in the Louisiana State Penitentiary, in Angola, Louisiana. McGee was charged, along with nine other individuals, in a 19-count bill of information on April 6, 2005.
On March 21, 2007, McGee proceeded to trial on the remaining five counts. The following facts were established at trial and summarized by the Louisiana Fourth Circuit Court of Appeal:
Following a one-day jury trial, McGee was found guilty of three counts of distribution of cocaine (counts 1, 3, 5), one count of possession of cocaine with intent to distribute (count 15) and one count of simple possession of marijuana (count 14).
The State subsequently filed an habitual offender bill of information alleging that McGee was a second-felony offender.
McGee appealed to the Louisiana Fourth Circuit Court of Appeal. On April 21, 2009, the court of appeal affirmed his convictions and sentences. The court of appeal rejected his pro se and counseled assignments of error, which included: (1) he was improperly tried on two counts of the information which charged co-defendants rather than him; (2) the verdicts returned in counts 1, 3 and 5 were not responsive to the offenses charged in the bill of information; and (3) his enhanced 60-year sentence for distribution of cocaine was excessive.
On May 6, 2011, McGee filed an application for post-conviction relief in the state district court.
On or about April 25, 2012, McGee filed in the state district court a motion to amend and modify his sentence.
On July 19, 2012, McGee filed his federal application for habeas corpus relief. In his application, McGee asserts two claims for relief: (1) he received ineffective assistance of trial counsel because counsel failed to: (a) file a motion to quash Detective Sislo's search warrant; (b) object to the prosecution's introduction of other crimes evidence; (c) present testimony from witnesses to establish that his auto shop was a legitimate business; and (2) the evidence was insufficient to sustain his conviction on three counts of distribution of cocaine.
The State filed a response conceding that the federal application is timely and the claims have been exhausted.
The Antiterrorism and Effective Death Penalty act of 1996 ("AEDPA") comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254.
As to pure questions of fact, factual findings are presumed to be correct and a federal court will give deference to the state court's decision unless it "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) (2); see also 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.").
As to pure questions of law or mixed questions of law and fact, a federal court must defer to the state court's decision on the merits of such a claim unless that decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d) (1). Courts have held that the "`contrary to' and `unreasonable application' clauses [of § 2254(d)(1)] have independent meaning." Bell, 535 U.S. at 694.
Regarding the "contrary to" clause, the United States Fifth Circuit Court of Appeals has explained:
Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir.) (internal quotation marks, ellipses, brackets, and footnotes omitted), cert. denied, 131 S.Ct. 294 (2010).
Regarding the "unreasonable application" clause, the United States Supreme Court has explained:
Williams v. Taylor, 529 U.S. 362, 407 (2000). The Supreme Court has noted that the focus of this inquiry "is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams that an unreasonable application is different from an incorrect one." Bell, 535 U.S. at 694; see also Puckett v. Epps, 641 F.3d 657, 663 (5th Cir.2011) ("Importantly, `unreasonable' is not the same as `erroneous' or `incorrect'; an incorrect application of the law by a state court will nonetheless be affirmed if it is not simultaneously unreasonable."), cert. denied, 132 S.Ct. 1537 (2012).
While the AEDPA standards of review are strict and narrow, they are purposely so. As the United States Supreme Court recently held:
Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011) (citations omitted; emphasis added); see also Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1866 (2010) ("AEDPA prevents defendants—and federal courts—from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.").
McGee contends he received ineffective assistance of trial counsel based on counsel's failure to: (a) file a motion to quash Detective Sislo's search warrant; (b) object to the prosecution's introduction of other crimes evidence; and (c) present testimony from witnesses to establish that his auto shop was a legitimate business.
The United States Supreme Court has established a two-pronged test for evaluating claims of ineffective assistance of counsel. Specifically, a petitioner seeking relief must demonstrate both that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 697 (1984). A petitioner bears the burden of proof on such a claim and "must demonstrate, by a preponderance of the evidence, that his counsel was ineffective." Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir.1993); see also Clark v. Johnson, 227 F.3d 273, 284 (5th Cir.2000). If a court finds that a petitioner has made an insufficient showing as to either of the two prongs of inquiry, i.e. deficient performance or actual prejudice, it may dispose of the ineffective assistance claim without addressing the other prong. Strickland, 466 U.S. at 697.
To prevail on the deficiency prong of the Strickland test, a petitioner must demonstrate that counsel's conduct fails to meet the constitutional minimum guaranteed by the Sixth Amendment. See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir.2001). "Counsel's performance is deficient if it falls below an objective standard of reasonableness." Little v. Johnson, 162 F.3d 855, 860 (5th Cir.1998). Analysis of counsel's performance must take into account the reasonableness of counsel's actions in light of all the circumstances. See Strickland, 466 U.S. at 689. "Pit is necessary to `judge ... counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (quoting Strickland, 466 U.S. at 690). A petitioner must overcome a strong presumption that the conduct of his counsel falls within a wide range of reasonable representation. See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir.1986); Mattheson v. King, 751 F.2d 1432, 1441 (5th Cir.1985).
To prevail on the prejudice prong of the Strickland test, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. In this context, a reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. In making a determination as to whether prejudice occurred, courts must review the record to determine "the relative role that the alleged trial errors played in the total context of [the] trial." Crockett, 796 F.2d at 793.
Because the state courts rejected petitioner's ineffective assistance of counsel claims on the merits and because such claims present a mixed question of law and fact, this Court must defer to the state-court decision unless it was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d) (1); Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir.2002). Moreover, the United States Supreme Court recently explained that, under the AEDPA, federal habeas corpus review of ineffective assistance of counsel claims is in fact doubly deferential:
Harrington v. Richter, 131 S.Ct. 770, 785-86 (2011) (citation omitted). The Supreme Court then explained:
Id. at 788 (citations omitted; emphasis added).
Petitioner argues counsel was ineffective in failing to file a motion to quash the search warrant issued for his auto shop because Detective Sislo did not provide sufficient information to support the application.
As a result of counsel's failure to quash the search warrant, petitioner argues his Fourth Amendment right was violated.
In the state post-conviction proceedings, the district court cited the law set out in Strickland and denied petitioner's claim, holding:
This was the last reasoned opinion on the issue, as McGee's related writ applications were subsequently denied by the Louisiana Fourth Circuit and Louisiana Supreme Court without additional reasons assigned.
A Fourth Amendment claim is not precluded by Stone v. Powell when it is raised in the context of a Sixth Amendment ineffective assistance claim. See Kimmelman v. Morrison, 477 U.S. 365, 382-83, 106 S.Ct. 2574, 2587 (1986). To prevail on an ineffective assistance claim for an alleged Fourth Amendment violation, however, a petitioner must prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability of a different verdict absent the excludable evidence. Id., 477 U.S. at 375. Thus, even if counsel did not move to quash the search warrant in this case, McGee has not shown that a motion to quash the search warrant for lack of probable cause would have been successful.
Probable cause to search exists when "there is a fair probability that evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). This requires less than either a preponderance of the evidence or a prima facie showing. Id. at 235. The probable cause determination is a "practical, common sense" decision based upon the "totality of the circumstances." Id. The Supreme Court has also "consistently recognized the value of corroboration of details of an informant's tip by independent police work." Id. at 241 (citing Jones v. United States, 362 U.S. 257, 269 (1960); Aguilar v. Texas, 378 U.S. 108, 109 n. 1 (1964)).
In this case, the search warrant application details that the affiant, Detective Sislo, received information from a reliable confidential informant about the owner (Gerard McGee) of a business, Gerard's Auto, who was selling narcotics from the location. The informant's knowledge was based on personal observation within the last 24 hours. After receiving the information, Detective Sislo then conducted surveillance of that business. The application details Detective Sislo's surveillance efforts and also the arrest of a subject who purchased narcotics from the location. Thus, the information satisfies the requisite standard, and petitioner cannot show that the challenged affidavit fails to demonstrate ample probable cause.
Moreover, as the State points out, counsel filed a motion to suppress the evidence in this case.
Petitioner has not demonstrated that the state court's decision rejecting this ineffective assistance of counsel claim was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Accordingly, applying the AEDPA's doubly deferential standards of review applicable to such claims, this Court should likewise deny relief.
Petitioner claims that counsel was ineffective in failing to object when prejudicial other crimes evidence was introduced at trial through (1) the search warrant application and (2) the testimony of Detective Sislo.
McGee first argues that improper other crimes evidence was introduced through the search warrant application, which references how Detective Sislo learned petitioner was a convicted felon who was on parole for attempted murder until 2009 and had been arrested at 2571 North Derbigny Street in August of 2004 for possession of crack cocaine and possession of a firearm by a convicted felon.
McGee argues that counsel was ineffective because he neither objected when the State introduced the entire search warrant application nor requested that the court edit the objectionable portion. The State concedes that arguably an objection should have been raised as to the affidavit's physical admission into evidence, and that presumably the jurors viewed the affidavit in full.
In the state post-conviction proceedings, the district court denied petitioner's claim on the merits, holding:
Thus, the district court found that the alleged objectionable references to other crimes were not improper under Louisiana Code of Evidence article 404(B), and impliedly that an objection would have been meritless. Petitioner contends that an objection should have been lodged to the introduction of the search warrant application in its entirety due to the references it contained. However, even assuming, arguendo, that petitioner could establish deficient performance by counsel in failing to object, no prejudice can be established in light of the overwhelming evidence of his guilt in this case.
To establish prejudice, "[T]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; United States v. Kimler, 167 F.3d 889, 893 (5th Cir.1999). A habeas corpus petitioner "need not show that `counsel's deficient conduct more likely than not altered the outcome in the case.' ... But it is not enough under Strickland, however, that the errors had some conceivable effect on the outcome of the proceeding." Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir.1994) (quoting Strickland, 466 U.S. at 693); Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 792 (2011) (Strickland requires a "substantial" likelihood of a different result, not just a "conceivable" one.)
In the instant case, petitioner cannot show there is a reasonable probability that, but for counsel's failing to object to the search warrant application containing references to other crimes, the result of the proceeding would have been different. The substantial record evidence established the following: (1) Detective Sislo witnessed petitioner engage in numerous hand-to-hand narcotics transactions from his place of business, and he also positively identified petitioner as the person he saw distributing the drugs; (2) the persons stopped and arrested leaving petitioner's place of business were all found to be in possession of drugs; (3) police executed a search warrant and discovered a large amount of cocaine and marijuana, along with drug paraphernalia, inside petitioner's business; (4) police found multiple items of mail connecting petitioner to the location; and (5) police recovered $435.00 in cash on petitioner. Given the weight of the evidence, petitioner simply cannot demonstrate the requisite prejudice under Strickland. See, e.g., Pondexter v. Quarterman, 537 F.3d 511 (5th Cir.2008) (overwhelming evidence of defendant's guilt precluded his demonstrating prejudice as required to establish ineffective assistance of counsel).
Next, McGee argues that defense counsel was ineffective in failing to object to improper testimony by Detective Sislo which implicated petitioner in illegal acts committed by two co-defendants, Frank Daniels and Marlene Anderson. Petitioner cites to the following alleged objectionable reference elicited from Detective Sislo about the transaction with Daniels:
Petitioner also cites to the following alleged objectionable reference elicited from Detective Sislo about the transaction with Anderson:
Petitioner contends that counsel erred in failing to object in either instance to the questioning with regard to Daniels and Anderson because it implicated him in alleged other crimes, wrongs or acts, which is prohibited under Louisiana Code of Evidence article 404(B). In State v. Prieur, 277 So.2d 126 (La.1973), the Louisiana Supreme Court held that evidence of other acts of misconduct is generally not admissible to show the defendant's bad character, but that such evidence is allowed to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is part of the subject of the present proceeding. See also La. C.E. art. 404(B)(1); State v. Jackson, 625 So.2d 146, 148 (La.1993). Under Louisiana law, to constitute impermissible other crimes evidence, the evidence must unambiguously implicate the defendant in another crime and not meet one of these approved uses. State v. Edwards, 406 So.2d 1331, 1349 (La.1981); State v. Holmes, 841 So.2d 80 (La. App. 4th Cir.2003).
Based on these standards, the testimony was not evidence of other crimes prohibited by article 404(B). The testimony related directly to McGee's conduct that constitutes an integral part of the act or transaction that is part of the subject of his criminal proceeding. Thus, because the testimony was not evidence of other crimes, counsel had no basis to object to the presentation of the evidence. Counsel does not act deficiently when he fails to urge a meritless or baseless position. See Clark v. Thaler, 673 F.3d 410, 429 (5th Cir.2012), cert. denied, ___ U.S. ___, 133 S.Ct. 179 (2012) ("failure to assert a meritless objection cannot be grounds for a finding of deficient performance") (quoting Emery v. Johnson, 139 F.3d 191, 198 (5th Cir.1997)); Wood v. Quarterman, 503 F.3d 408, 413 (5th Cir.2007) ("[f]ailure to raise meritless objections is not ineffective lawyering; it is the very opposite.") (quoting Clark v. Collins, 19 F.3d 959, 966 (5th Cir.1994)); Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir.1998) (failure to make a frivolous objection is not deficient performance below an objective level of reasonableness).
McGee has not demonstrated that counsel's performance fell below the standard of reasonableness addressed under Strickland. The state court's denial of relief on this issue was not contrary to, or an unreasonable application of, federal law. He is not entitled to relief on this claim.
McGee argues that counsel failed to present the testimony of Anthony Lunkins and Eva Francis. He argues these witnesses would have testified that McGee's auto shop was a legitimate business and that each had patronized the shop for legitimate purposes in the past. In rejecting this claim on the merits, the state district court concluded:
This Court agrees that McGee's claim fails, because his assertions regarding the witnesses' testimony is purely speculative, and he cannot show that the testimony is even beneficial to the defense.
In addressing such claims, the United States Fifth Circuit Court of Appeals has explained:
Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir.2010) (citations, quotation marks, and brackets omitted); see also Day v. Quarterman, 566 F.3d 527, 538 (5th Cir.2009) ("[T]o prevail on an ineffective assistance claim based on counsel's failure to call a witness, the petitioner must name the witness, demonstrate that the witness was available to testify and would have done so, set out the content of the witness's proposed testimony, and show that the testimony would have been favorable to a particular defense.").
Here, McGee has produced no evidence whatsoever, such as affidavits from uncalled witnesses, demonstrating that they would have testified in a manner beneficial to the defense. He has failed to provide anything to support his speculation as to their purported testimony. Therefore, he clearly has not met his burden with respect to this claim. See, e.g., United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir.1983) (courts view "with great caution claims of ineffective assistance of counsel when the only evidence of a missing witness's testimony is from the defendant"); Buniff v. Cain, Civ. Action No. 07-1779, 2011 WL 2669277, at *3 (E.D.La. July 7, 2011); Anthony v. Cain, Civ. Action No. 07-3223, 2009 WL 3564827, at *8 (E.D.La. Oct. 29, 2009) ("This Court may not speculate as to how such witnesses would have testified; rather, a petitioner must come forward with evidence, such as affidavits from the uncalled witnesses, on that issue."); Combs v. United States, Nos. 3:08-CV-0032 and 3:03-CR-01 88, 2009 WL 2151844, at * 10 (N.D.Tex. July 10, 2009) ("Unless the movant provides the court with affidavits, or similar matter, from the alleged favorable witnesses suggesting what they would have testified to, claims of ineffective assistance of counsel fail for lack of prejudice."); Harris v. Director, TDCJ-CID, No. 6:06cv490, 2009 WL 1421171, at *7 (E.D.Tex. May 20, 2009) ("Failure to produce an affidavit (or similar evidentiary support) from the uncalled witness is fatal to the claim of ineffective assistance.").
Furthermore, McGee has failed to establish that these witnesses' testimony would have helped his defense. Petitioner claims that their testimony would have rebutted the prosecution's theory that he used the shop to sell drugs. However, even if their testimony would show that he used the shop legitimately as a business, it would not disprove that he also used the shop as a base for selling drugs. Thus, he has failed to establish there is a reasonable probability that, but for counsel's failure to call these witnesses, the outcome would have been different.
Petitioner has not demonstrated that the state court's decision rejecting this ineffective assistance of counsel claim was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.
Petitioner claims that the evidence at trial was insufficient to support his three convictions for distribution of cocaine. The State suggests that, despite an initial procedural default on direct appeal, the claim should be denied on the merits. The State refers to the direct appeal court's ruling that counsel failed to preserve the error for appellate review by making a contemporaneous objection, citing Louisiana Code of Criminal Procedure article 841. The appellate court then alternatively addressed the merits. A review of the record on direct appeal, however, shows that the claim was raised on direct appeal as a challenge to the factual or evidentiary basis of the distribution charges, and not as to their legal sufficiency under the Jackson v. Virginia standard. The sufficiency claim was subsequently raised and denied on the merits in all three state courts on post-conviction review. Therefore, the claim is not procedurally barred, and the Court will address the merits.
The state district court denied relief on post-conviction review, stating "a jury listened to all the evidence and testimony presented at Petitioner's trial and found, beyond a reasonable doubt, that Petitioner was guilty of the crimes alleged in the bill of information. As a result, the evidence was not insufficient to support the counts and Petitioner's conviction and sentence should not be set aside."
Under Jackson v. Virginia, 443 U.S. 307 (1979), a federal habeas court addressing an insufficiency of the evidence claim must determine, after viewing the evidence in the light most favorable to the prosecution, whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. Id., 443 U.S. at 319; Williams v. Cain, 408 Fed. Appx. 817, 821 (5th Cir.2011); Perez v. Cain, 529 F.3d 588, 594 (5th Cir.2008). Thus, to determine whether the commission of a crime is adequately supported by the record, the court must review the substantive elements of the crime as defined by state law. Perez, 529 F.3d at 594 (citing Jackson, 443 U.S. at 324 n. 16). The court's consideration of the sufficiency of the evidence extends only to what was presented at trial. See McDaniel v. Brown, 558 U.S. 120, ___, 130 S.Ct. 665, 672, 674 (2010) (recognizing that a reviewing court must consider the trial evidence as a whole under Jackson); Johnson v. Cain, 347 Fed. App'x 89, 91 (5th Cir.2009) (Jackson standard relies "upon the record evidence adduced at the trial") (quoting Jackson, 443 U.S. at 324).
Review of the sufficiency of the evidence, however, does not include review of the weight of the evidence or the credibility of the witnesses, because those determinations are the exclusive province of the jury. United States v. Young, 107 Fed. Appx. 442, 443 (5th Cir.2004) (citing United States v. Garcia, 995 F.2d 556, 561 (5th Cir.1993)); see Jackson, 443 U.S. at 319 (noting that it is the jury's responsibility "to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts"). Thus, all credibility choices and conflicting inferences must be resolved in favor of the verdict. Ramirez v. Dretke, 398 F.3d 691, 695 (5th Cir.2005).
A federal habeas court is not authorized to substitute its interpretation of the evidence or its view of the credibility of witnesses in place of the fact-finder. Weeks v. Scott, 55 F.3d 1059, 1062 (5th Cir.1995); Alexander v. McCotter, 775 F.2d 595, 598 (5th Cir.1985). In addition, " [t] he Jackson inquiry `does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit." Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir.2001) (quoting Herrera v. Collins, 506 U.S. 390, 402 (1993)).
A claim of insufficient evidence presents a mixed question of law and fact. Perez, 529 F.3d at 594; Maes v. Thomas, 46 F.3d 979, 988 (10th Cir.1995). Therefore, this Court must examine whether the state court's denial of relief was contrary to or an unreasonable application of United States Supreme Court precedent.
McGee was convicted of three counts of distribution of cocaine. Louisiana Revised Statute 40:967(A) (1) provides that, "it shall be unlawful for any person knowingly or intentionally .. [t]o ... distribute, or dispense, a controlled dangerous substance ... classified in Schedule II." Cocaine and its derivatives are listed in Schedule II. La. R.S. 40:964.
State v. Washington, 86 So.3d 697, 700 (La. App.2d Cir.2012) (citations omitted).
First, McGee asserts that prosecutors failed to introduce documentary evidence regarding the narcotics recovered from Frank Daniels to prove that the evidence related to the first count of cocaine distribution was, in fact, cocaine.
A contraband drug may be identified by circumstantial evidence. In
State v. Smith, 130 So.3d 874, 877-78 (La. 12/10/13).
In the instant case, Detective Sislo testified that he witnessed a hand-to-hand narcotics transaction take place between Daniels and McGee. He radioed Detective Kyle Hinrichs who was in the area to assist Detective Sislo. Detective Hinrichs stopped Daniels and radioed Detective Sislo to tell him that he had Daniels, and that Daniels was in possession of crack cocaine. Detective Sislo drove around and confirmed that the suspect stopped by Detective Hinrichs was the person he saw involved in the transaction with McGee.
Detective Hinrichs testified regarding his involvement with Daniels. Hinrichs testified he approached Daniels from behind and announced himself. He saw Daniels throw an object to the ground. He testified he immediately arrested Daniels, "based on observations that were related to me by Detective Sislo and believing from those observations and my observations of the discarded object that he had just thrown down the crack cocaine."
In light of the record evidence as a whole, and even assuming the crime lab report was not introduced in conjunction with State's Exhibit 15, the Court finds that the evidence was sufficient for any rational trier of fact to conclude beyond a reasonable doubt that McGee distributed crack cocaine to Daniels.
Second, McGee argues that the State failed to introduce sufficient evidence to support his conviction for the second count of cocaine distribution.
Petitioner questions the weight or credibility of Detective Sislo's testimony in light of his admission on cross-examination that this was not a controlled buy, and that he did not possess photographic or videotape equipment. However, a federal habeas court is not authorized to substitute its interpretation of the evidence or its view of the credibility of witnesses in place of the fact-finder. Weeks v. Scott, 55 F.3d 1059, 1062 (5th Cir.1995). The evidence in this case was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that McGee distributed cocaine to Anderson.
Finally, McGee argues that the evidence was insufficient to support his conviction for the third count of cocaine distribution because the crime lab report as to the narcotics found in Zimmerman's possession (B-07628-05) was not introduced into evidence at trial, and Detective O'Neal did not testify about this report. Even assuming this is true, the evidence was sufficient to prove a third count of cocaine distribution based on a transaction that did not involve Zimmerman.
Detective Sislo testified that he witnessed McGee engage in a hand-to-hand narcotics transaction on February 5, 2005 with two individuals in a brown vehicle.
In summary, when viewed in the light most favorable to the prosecution, as required by Jackson, the evidence at trial was more than sufficient to establish all the elements of the distribution of cocaine charges against McGee. The state courts' rejection of McGee's claim that there was insufficient evidence to support his conviction for distribution of cocaine was not contrary to Supreme Court precedent. McGee is not entitled to federal habeas corpus relief on this ground.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) 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, provided that the party has been served with notice that such consequences will result from a failure to object. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir.1996) (en banc).
