JOHN McBRYDE, District Judge.
This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Morris Landon Johnson II, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of TDCJ, respondent. After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be denied.
In May 2013, in Erath County, Texas, Case No. CR13895, a jury found petitioner guilty of forgery by passing a check and true to the enhancement allegations in the indictment and assessed his punishment at 10 years' confinement and a $2000 fine. (Clerk's R. 28, 33-34.
Following his forgery conviction, petitioner was convicted in August 2013 of possession of a controlled substance in Erath County, Case No. CR13896, and sentenced to 10 years' confinement. The sentence was ordered to run consecutively to his 10-year forgery sentence. (Case No. CR13896, Clerk's R. 49.) In September 2014 petitioner was convicted of delivery of a controlled substance in Hood County, Texas, Case No. CR12645, and sentenced to 40 years' confinement. The sentence was ordered to run concurrently with his 10-year sentences. (Case No. CR10676, Clerk's R. 93.)
The evidence at petitioner's trial reflects that Ryan Guthrie, the son of the complainant in the case Timothy Guthrie, gave petitioner a forged check from his father's checking account made payable to petitioner for $523.86 and that petitioner cashed the check at Texas Bank in Stephenville, Texas. (Reporter's R., vol. 4, 13-22, 34-39 & vol. 8, State's Ex. 1.) It was later discovered that the check had been forged. At the time of petitioner's arrest, the police seized two allegedly forged checks from petitioner's wallet, including a $400 check written on Timothy Guthrie's account, and a small amount of methamphetamine. (Reporter's R., vol. 4, 59; SHR-01 46.) In a videotaped statement to police, petitioner stated that Ryan Guthrie gave him the $523.86 check to cash because Ryan owed him money, that he thought the check was from Ryan's account, and that Ryan swore the check was legitimate. However, petitioner admitted to being involved in a "check scheme" with several individuals, including Ryan, for a period of three or four months and to previously forging ("scribbling some stuff on the signature line") and attempting to pass a $21 check from Timothy Guthrie's checkbook.
By way of this petition, petitioner challenges his forgery conviction on ineffective-assistance grounds (grounds one, two, three, and five) and the Texas Board of Pardons and Paroles's policy regarding consecutive ("stacked") and concurrent sentences (ground four). (Pet. 6-7; Supp. Pet. 6.)
Respondent asserts that the petition is not subject to the successive-petition bar or barred by the statute of limitations and reserves the right to raise the defense of exhaustion and/or procedural default. (Resp't's Answer 4.) 28 U.S.C. §§ 2244(b), (d) & 2254 (b)(1)
A § 2254 habeas petition is governed by the heightened standard of review provided for in the Anti-Terrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254. Under the Act, a writ of habeas corpus should be granted only if a state court arrives at a decision that is contrary to or an unreasonable application of clearly established federal law as established by the United States Supreme Court or that is based on an unreasonable determination of the facts in light of the record before the state court. 28 U.S.C. § 2254(d)(1)-(2); Harrington v. Richter, 562 U.S. 86, 100 (2011). This standard is difficult to meet and "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings." Richter, 562 U.S. at 102.
The statute further requires that federal courts give great deference to a state court's factual findings. Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The presumption of correctness applies to both express and implied factual findings. Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004); Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001). Absent express findings of fact and conclusions of law, a federal court may imply fact findings consistent with the state court's disposition and presume "that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary" and applied the correct "clearly established federal law" in making its decision. Johnson v. Williams, 568 U.S. 289, 298 (2013); Richter, 562 U.S. at 99; Townsend v. Sain, 372 U.S. 293, 314 (1963); Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2004); Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003); Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5th Cir. 2002).
Under his first, second, third, and fifth grounds, petitioner claims that he received ineffective assistance of counsel at trial. (Pet. 6-7; Supp. Pet. 6.) A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. CONST. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984). To establish ineffective assistance of counsel, a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness and (2) that but for counsel's deficient performance the result of the proceeding would have been different. Strickland, 466 U.S. at 688. In applying this test, a court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 668, 688-89. Counsel has "wide latitude" in making tactical and strategic decisions, which are "virtually unchallengeable" and generally do not provide a basis for postconviction relief on grounds of ineffective assistance of counsel. Id. at 689. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689.
Ineffective-assistance-of-counsel claims are considered mixed questions of law and fact and, therefore, are analyzed under the "unreasonable application" standard of§ 2254(d)(1) See Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir. 2010). Where, as here, the state courts have adjudicated the ineffective-assistance claims on the merits, this court must review the petitioner's claims under the "doubly deferential" standards of both Strickland and§ 2254(d). Cullen v. Pinholster, 563 U.S. 170, 190 (2011). In such cases, the "pivotal question" for this court is not "whether defense counsel's performance fell below Strickland's standard"; it is "whether the state court's application of the Strickland standard was unreasonable." Richter, 562 U.S. at 105.
Petitioner claims that his trial counsel was ineffective in the following respects:
(Pet. 6-7; Supp. Pet. 6.)
Petitioner raised his claims in his state habeas application and counsel responded via affidavit, in relevant part, as follows:
(SHR-01 45.)
Based on counsel's affidavit, the documentary record, and his own recollection of the trial proceedings, the state habeas judge entered express findings that there were no unresolved material facts requiring a hearing and that petitioner's application lacked any legal or factual merit and concluded that relief should be denied. (Id. at 57.) In turn, the Texas Court of Criminal Appeals denied the application in a written order following remand on the parole issue. To the extent more particularized findings and conclusions of law were not made, this court will infer fact findings consistent with the state courts' disposition of petitioner's ineffective-assistance claims and, absent any evidence that incorrect standards were applied, assume that the state courts applied the Strickland standard when considering petitioner's claims.
Under his first ground, petitioner claims that counsel labored under a conflict of interest because counsel's concurrent representation of Ryan Guthrie prevented counsel from investigating or implicating Ryan "as having victimized petitioner in his forgery scheme." (Pet'r's Reply 5.) Under Cuyler v. Sullivan, 446 U.S. 335 (1980), to demonstrate unconstitutional simultaneous representation, a petitioner must show that an actual conflict of interest adversely affected counsel's performance. Id. at 348. Cuyler applies to those cases in which a defendant raises no objection to his counsel's representation at or before trial. Id. at 348. On the other hand, under Holloway v. Arkansas, 435 U.S. 475 (1978), if a defendant gives the trial court notice of the alleged conflict at or before trial and the trial court fails to inquire into the conflict, prejudice to the defendant is presumed upon a showing of possible prejudice. Id. at 484-91.
Petitioner asserts that he sent one or more letters to the trial court complaining of counsel's simultaneous representation of Ryan Guthrie, and he presented a copy of one such letter in the state habeas proceedings. (SHR-01 37-38.) Thus, he asserts that the trial court received notice and was required to make an inquiry into the alleged conflict under Holloway. (Pet'r's Reply 1-5.) However, petitioner's letter creates, at most, a vague, unspecified possibility of conflict and was insufficient to trigger the trial court's duty to inquire. See Mickens v. Taylor, 535 U.S. 162, 168-69 (2002). Deferring to the state courts' implied finding that nothing in the circumstances of this case indicates that the trial court had a duty to inquire whether there was a conflict of interest, the state courts' rejection of the claim is not objectively unreasonable. Although counsel's representation of both parties was apparently concurrent at some point and counsel possibly learned confidential information in the course of representing Ryan Guthrie relevant to petitioner's case, there is no relationship between the two criminal cases or evidence that counsel otherwise divided his loyalties. In fact, counsel presented a defense compatible with the view that Ryan forged the check and that petitioner received the check from Ryan "in good faith," believing it was legitimate. (Pet'r's Reply 2.)
Under his second ground, petitioner claims that counsel was ineffective by failing to object to prejudicial extraneous-offense evidence of the allegedly forged checks found in his wallet and other uncharged and unrelated criminal acts discussed in his videotaped statement regarding the "check scheme." (Pet. 6; Reporter's R., vol. 8, State's Exs. 4 & 5.) However, under Texas law, evidence of extraneous offenses is admissible to prove a defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. TEX. R. Evrn. 404(b)(2). Petitioner was charged with passing a forged check with the intent to defraud or harm another and his defensive theory was that he did not know the check was forged. (Clerk's R. 4.) Deferring to the state courts' implied finding that the evidence was relevant, apart from its character-conformity value, and admissible to show petitioner's intent to defraud or harm Timothy Guthrie, the state courts' rejection of the claim is not objectively unreasonable. Counsel is not ineffective for failing to make frivolous objections. See Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir. 2002).
Under his third ground, petitioner claims that counsel was ineffective by failing to call officer Kayla Jones to testify that Timothy Guthrie told her that his son "had some of his checks at one time" as stated in her police report to impeach Timothy Guthrie's testimony at trial that "his son never had any of his checks." (Pet'r's Reply 7.) According to petitioner, calling the officer would have not only impeached Timothy Guthrie's testimony but would have advanced the defensive theory by showing Guthrie knew his son had some of his checks and was passing them without being charged." (Id. at 8.) Petitioner posits that counsel did not do so because he was conflicted-i.e., by calling the officer he would potentially expose Ryan Guthrie's role in the forgery and violate his ethical obligations to Ryan at the expense of his duty to petitioner. (Id.) However, petitioner does not direct the court to the officer's report or an affidavit from the officer in the state court records. "Absent evidence in the record, a court cannot consider a habeas petitioner's bald assertions on a critical issue . . . to be of probative evidentiary value." Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).
Finally, under his fifth ground, petitioner claims that counsel was ineffective by failing to object to the jury charge and to request an instruction on the defense of mistake of fact because petitioner believed the check was legitimate and because it was his only viable defense. (Supp. Pet. 6.) Texas Penal Code § 8.02 provides that "[i]t is a defense to prosecution that [the defendant] through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense." TEX. PENAL CODE ANN. § 8.02(a) (West 2011). Counsel did not explain his reasons for not objecting to the charge and requesting a mistake-of-fact instruction in his affidavit. Thus, on this record is would be difficult for petitioner to overcome the strong presumption that counsel's omission was strategic. Further, in the case of Okonkwo v. State, 398 S.W.3d 689 (Tex. Crim. App. 2013), the defendant was charged with forgery by passing or possession with intent to pass counterfeit money. He argued that his trial counsel was ineffective by failing to request an instruction on mistake of fact because he did not know the money was counterfeit. The Texas Court of Criminal Appeals addressed the issue as follows:
Id. at 696 (citations and footnotes omitted).
It appears that petitioner would have been in the same conundrum had counsel requested a mistake-of-fact instruction.
In summary, petitioner has not demonstrated deficient performance or shown any reasonable probability that the outcome of his trial would have been different but for counsel's alleged deficiencies. A petitioner shoulders a heavy burden to overcome a presumption that his counsel's conduct is strategically motivated and to refute the premise that "an attorney's actions are strongly presumed to have fallen within the wide range of reasonable professional assistance." Messer v. Kemp, 760 F.2d 1080, 1090 (11th Cir. 1985). Petitioner has presented no evidentiary, factual, or legal basis in this federal habeas action that could allow the court to conclude that the state courts unreasonably applied the standards set forth in Strickland based on the evidence presented in state court. See 28 U.S.C. § 2254 (d).
Under his fourth ground, petitioner claims that the Texas Board of Pardons and Paroles (the Board) is violating his right to due process in applying its policy regarding consecutive ("stacked") and concurrent sentences. (Pet. 7.) Under the policy, "when an inmate has concurrent sentences, the Board does not consider him for release to parole until he becomes eligible under the sentence with the latest parole-eligibility date"-here, petitioner's 40-year sentence. (SHR-01 Op. 1.) Petitioner asserts that in refusing to review him for parole on his first 10-year sentence until he is eligible for parole on his 40-year sentence denies him the possibility that his 10-year sentence would cease to operate and allow the second 10-year consecutive sentence to commence. (Pet. 7.) Petitioner raised this claim in his state habeas application, but, under Texas law, an inmate does not have a protected liberty interest in release on parole. See Ex parte Retzlaff, 135 S.W.3d 45, 49 (Tex. Crim. App. 2004). Thus, the Texas Court of Criminal Appeals determined that petitioner's claim regarding entitlement to parole review did not allege a constitutional violation and was not cognizable on state habeas review. See Ex parte Johnson, 541 S.W.3d 727, 830 (Tex. Crim. App. 2017).
Similarly, an inmate does not have a protected liberty interest in release on parole under clearly established federal law as determined by the United States Supreme Court. Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7 (1979) Because Texas inmates have no protected liberty interest in parole, they cannot have a liberty interest in parole consideration or other aspects of parole procedures. Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir.), cert. denied, 552 U.S. 995 (1997) (stating that "because Texas prisoners have no protected liberty interest in parole they cannot mount a challenge against any state parole review procedure on procedural (or substantive) Due Process grounds")
For the reasons discussed,
The court ORDERS the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, denied. The court further ORDERS that a certificate of appealability be, and is hereby, denied, as petitioner has not made a substantial showing of the denial of a constitutional right.
