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, Pete Dominguez, is a state prisoner incarcerated in the Elayn Hunt Correctional Center, in St. Gabriel, Louisiana. Dominguez was charged by bill of information with operating a vehicle while intoxicated, fourth offense, in violation of Louisiana Revised Statute 14:98.
On direct appeal, Dominguez asserted that the trial court erred in denying his motion to arrest judgment because the state failed to prove that he knowingly and intelligently waived the right to a jury trial. The Louisiana First Circuit Court of Appeal affirmed his conviction and sentence on December 21, 2011.
On or about April 18, 2012, Dominguez submitted a pro se application for post-conviction relief to the state district court.
On or about September 16, 2013, Dominguez filed his federal application for habeas corpus relief.
The State concedes the petition is timely and that the jury waiver claim is exhausted. However, the State's brief does not acknowledge the ineffective assistance claim raised by petitioner, a claim the Court notes is unexhausted. Petitioner has never raised this claim in any of the state courts. Nonetheless, the Court will exercise its discretion to consider petitioner's unexhausted claim pursuant to 28 U.S.C. § 2254 (b) (2) ("An application for a writ of habeas corpus may be denied on the merits notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
On direct appeal, the Louisiana First Circuit Court of Appeal summarized the facts as follows:
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. Amended subsections 2254(d)(1) and (2) contain revised standards of review for pure questions of fact, pure questions of law, and mixed questions of both. The amendments "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002).
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 held:
White v. Woodall, 134 S.Ct. 1697, 1706 (2014). However, the Supreme Court cautioned:
Id. (citations and quotations marks omitted). The Supreme Court has also warned that "an unreasonable application is different from an incorrect one." Bell, 535 U.S. at 694. A state court's merely incorrect application of Supreme Court precedent simply does not warrant habeas relief. 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.").
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.").
Petitioner claims that his constitutional rights were violated because he did not knowingly and intelligently waive his right to a jury trial. He contends "his counsel of record waived his right to trial by jury against his expressed desire for and his request to trial by jury."
The United States Fifth Circuit has set forth the following established federal law regarding waiver of the Sixth Amendment right to trial by jury:
Scott v. Cain, 364 F. App'x 850, 853 (5th Cir. Feb. 2, 2010), cert. denied, 130 S.Ct. 3519, 177 L.Ed.2d 1103, (June 28, 2010)
As the Fifth Circuit has recognized, the Supreme Court has not held that a defendant must personally waive the right to a jury trial. Pierre v. Leger, 495 F. App'x 403, 409, 2012 WL 4842263, at *6 (5
On habeas review, a state court's determination that a petitioner's jury trial waiver was valid is a mixed question of law and fact. Pierre, 495 F. App'x at 405; Pignataro v. Poole, 381 F. App'x 46, 50 (2d Cir.2010), cert. denied, 131 S.Ct. 1006 (2011); Lott v. Coyle, 261 F.3d 594, 610 (6th Cir.2001); United States v. Watts, 45 F. App'x 323, 2002 WL 1868131, at *2 (5th Cir.2002). Thus, the state court's mixed findings of law and fact are entitled to deference, unless the state court's decision was contrary to or involved an unreasonable application of clearly established Supreme Court precedent. Pierre, 495 F. App'x at 405.
The record in this case is not silent. It shows that petitioner waived his right to a jury trial through his counsel of record. The transcript of the pretrial conference held on January 19, 2010 demonstrates that defense counsel, in petitioner's presence and without objection, advised the trial court that petitioner was waiving a jury trial and proceeding with a bench tria1.
A bench trial was held on May 19, 2010. The trial transcript reveals there was no further discussion at this time regarding the earlier waiver. A motion to arrest judgment contesting the validity of the waiver was filed, and a full evidentiary hearing was held. After hearing the testimony of defense counsel and petitioner, the trial court denied petitioner's motion to arrest judgment finding, on the evidence presented, that petitioner knowingly and intelligently waived his right to a jury tria1.
The Louisiana First Circuit on direct appeal issued the last reasoned decision on the merits of this claim, in which it determined that Dominguez knowingly and intelligently waived his right to a jury tria1.
The court of appeal then examined the evidence presented at the evidentiary hearing. Former defense counsel, Stentz, and petitioner both testified at this hearing. The court of appeal summarized their testimony as follows:
The court of appeal concluded there was ample record evidence adduced at the evidentiary hearing on the motion to arrest judgment to support the validity of the waiver. The credible testimony by defense counsel established Dominguez was informed of his right to a trial by jury and decided to waive the right in light of advice given by defense counsel.
The record evidence in this case supports the state court's determination under federal law that petitioner knowingly and intelligently waived his right to be tried by a jury. The record demonstrates that petitioner expressly waived his right to a jury trial through defense counsel. The transcript shows that petitioner was present at the pretrial conference when defense counsel informed the court that petitioner wished to waive the right to a jury trial. Dominguez did not object at this time. Nor did Dominguez or defense counsel at any time after the pretrial hearing, or at any time before or during trial, express any desire for a jury or object to the earlier waiver. At the evidentiary hearing, defense counsel testified he advised petitioner that he had the right to a trial by jury, but recommended that petitioner waive the right to trial by jury and proceed with a bench trial, which he believed would be in petitioner's best interest under the circumstances. Defense counsel testified he was confident petitioner understood his advice regarding the waiver and voluntarily made the decision to waive his right to a jury trial and proceed with a bench trial before the judge. There is no objective evidence of anything that may have prevented petitioner from understanding his rights as explained by defense counsel. Furthermore, defense counsel's testimony is consistent with petitioner's actions and lack of objection in this case. Only after his conviction did petitioner assert any argument or belief that he stood a better chance with a jury trial. There is simply no support in this record for petitioner's conclusory and self-serving claim that defense counsel waived petitioner's right to trial by jury over his expressed desire for and request for a jury trial. In fact, his own testimony and actions refute his assertion. It was not objectively unreasonable for the state court to conclude that Dominguez understood the choice he faced and validly waived the right to a trial by jury.
Petitioner argues his waiver could not be knowing and intelligent waiver when the trial court did not advise him of the right to a jury trial and the possible consequences of waiving a trial by jury.
The lack of a colloquy between the trial court and petitioner does not invalidate his voluntary, knowing and intelligent waiver. As the transcript of the evidentiary hearing clearly shows, petitioner and his defense counsel discussed waiving a jury trial in lieu of a bench trial. Defense counsel testified under oath that he gave a full and detailed explanation to petitioner regarding the difference between a jury trial and a bench trial, along with the reasons it would be advisable for petitioner to opt for a bench trial in this case. Petitioner admitted he discussed this with counsel, although he claimed he did not understand what counsel was telling him. Petitioner chose to follow his counsel's advice, waive the jury and proceed with a bench trial. Defense counsel informed the trial court, in petitioner's presence, that he was waiving the jury and proceeding with a bench trial. At no point before or during trial did petitioner voice any objection whatsoever to the waiver or indicate he wished to proceed with a jury trial. Based on this evidence, the state court determined that Dominguez through his counsel knowingly and intelligently waived his right to a jury trial.
Importantly in this case, "[t]he question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). Applying this deferential standard of review under the AEDPA, petitioner has not shown that the state court's determination rests on an objectively unreasonable determination of clearly established federal law. Petitioner is not entitled to habeas corpus relief on this claim.
Petitioner asserts that counsel improperly advised him to waive his right to a jury trial, failed to challenge the intoxilyzer results and failed to call witnesses on his behalf.
The United States Supreme Court has established a two-pronged test for evaluating claims of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner seeking relief must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced his defense. Id. at 697. 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. "[I]t 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, 113 S.Ct. 838, 122 L.Ed.2d 180 (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).
In order to prove prejudice with respect to trial counsel, 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.
In his first claim, Dominguez contends counsel did not supply him with adequate information to make an informed decision to waive his right to a jury trial and proceed with a bench trial. He argues his attorney never explained to him that he waived his right to a jury trial and the dangers of going to trial by judge and not by jury.
Dominguez cannot show that his trial counsel's performance fell below an objective standard of reasonableness. In fact, the record refutes petitioner's assertions. Petitioner was present with counsel when he waived the right to a jury trial and the matter was set for a bench trial. Furthermore, at the evidentiary hearing, defense counsel testified that he advised Dominguez that he had the right to a trial by jury and that he could waive that right and have the judge alone decide the case. He advised that Dominguez would be giving up the right to have a number of people decide his verdict if he did so. Petitioner confirmed that he specifically discussed a bench trial with counsel.
Moreover, Dominguez cannot establish prejudice resulting from counsel's alleged failure to advise him properly regarding the waiver of his right to a jury trial, because he cannot show it is reasonably probable that the result of the proceeding would have been different had the evidence been presented to a jury. The evidence proffered against Dominguez at trial was substantial and convincing. The defense stipulated that petitioner had been convicted of the three prior D.W.I. offenses set forth in the bill of information. Though no adequate sobriety test results were obtained, the State introduced strong evidence of petitioner's intoxication through the testimony of two Louisiana Probation and Parole agents, Luke Adams and Ron Tillery, and Lafourche Parish Deputy Jay Watkins. Agent Adams testified that he stopped the vehicle petitioner was driving and observed that petitioner was uneasy on his feet, his speech was slurred and he smelled of alcohol. Petitioner admitted to Adams that he had consumed five to six beers. Agent Adams testified that in his opinion and based on his experience, petitioner's ability to drive was impaired by the consumption of alcohol.
Next petitioner argues counsel should have questioned the intoxilyzer test and challenged the officers' ability to determine that the test was not an accurate reading. He contends he could not have been found guilty with an inconclusive test. The intoxilyzer testing was fully explored at trial. The evidence showed that Deputy Watkins administered the test to petitioner, but was unable to obtain an adequate sample. He testified that he believed petitioner was purposely trying not to give a valid sample because he would stop blowing before the machine could register and record a result. Deputy Watkins testified that the official analysis was a .000.
Finally, petitioner contends counsel was deficient in failing to call the passengers in the vehicle at the time of his arrest as witnesses on his behalf at trial. This claim lacks merit for the following reasons.
As 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, petitioner has produced no affidavits from the uncalled witnesses to demonstrate that they would have testified in a manner beneficial to the defense. He has not identified the witnesses by name or provided the substance of their proposed 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.").
Accordingly, for the reasons expressed, petitioner has not established entitlement to habeas corpus relief on his claim of ineffective assistance of counsel.
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).
