CLINTON E. AVERITTE, Magistrate Judge.
Petitioner RICHARD WARREN PAIGE, JR. has filed a petition for a federal writ of habeas corpus challenging his state conviction for the felony offense of murder, and the resulting 40-year sentence. For the reasons hereinafter expressed, the United States Magistrate Judge is of the opinion petitioner's application for federal habeas corpus relief should be DENIED.
Astro fled the scene and eventually encountered Frog:
The victim, Larry Terry, received two stab wounds to the chest, one of which was fatal, stab wounds to the forearm and thigh, an incised wound to the hand, and blunt force injuries.
Petitioner was subsequently arrested behind a convenience store several blocks away. In a statement given to the police upon his arrest, petitioner averred it was "a shock" when he entered the apartment, and that he "blanked out" and basically did not remember what happened next. Petitioner stated he remembered:
State v. Paige, No. 31,001-C. On September 7, 2006, petitioner was indicted for the same offense. State v. Paige, Cause No. 53,570-D. The indictment included a deadly weapon notice alleging "that during the commission of this offense [petitioner] did use or exhibit a deadly weapon, namely a knife, that in the manner of its use and intended use was capable of causing death or serious bodily injury. The State subsequently provided notice of its intent to seek an enhanced punishment of imprisonment for 25-99 years or life, based on petitioner's prior felony convictions.
At trial, Georgia Brown testified petitioner entered the room and stabbed the victim in the left shoulder area, pushed the victim to the ground, and was on top of the victim until he stood up and ran from the room. Vol. 3 at 161-70. Brown testified that the initial stabbing she observed could not have been accidental, and that she never observed the knife in the victim's hand. Vol. 3 at 162, 169. Brown testified her hand was cut when she attempted to take the knife from petitioner during the altercation. The medical examiner testified that the stab wounds to the chest "in no way indicated" that the wounds were of an "accidental nature," and that the other wounds to the victim could have been defensive wounds. Vol. 4 at 86, 88. There was also the testimony of Frog (quoted above) and petitioner's statement to the police. Blood from petitioner, the victim, and Brown were found at the scene as well as on the knife. At trial, the police acknowledged that due to the voluminous blood samples, not all samples were tested for DNA. When petitioner was arrested, he had two lacerations on his hand, one requiring stitches.
Petitioner, the defense's only witness, testified he entered the apartment and told the victim "the party's over" and "[y]ou're going to have to leave." Vol. 4 at 116-17. Petitioner denied being angry or jealous at the time. Petitioner stated the victim responded by stating, "We're going to have to fight," in a "threatening tone of voice." Vol. 4 at 117. Petitioner testified the victim then "reached over and unsnapped" the sheath on petitioner's belt, pulled out petitioner's knife, and opened the knife, while the victim was seated in a chair with Brown on his lap. Vol. 4 at 118-19. Petitioner testified he tried to grab the knife out of petitioner's hand to disarm him, that a fight ensued between petitioner and the victim but also involved Georgia jumping on petitioner's back, and that the stabbing occurred during the struggle for the knife. Vol. 4 at 119-21. Petitioner denied inflicting the victim's wounds, denied having the knife in his hand at any time during the struggle, denied knowing the victim had been stabbed, having "done anything wrong," or intentionally hurting or "deliberately stabbing" the victim. Vol. 4 at 123-26, 133, 135. In fact, petitioner testified the victim "stabbed himself." Vol. 4 at 149. Petitioner testified that after the struggle ended, he took the knife from Georgia, closed it and placed it in its sheath on his belt, and left to call an ambulance. Vol. 4 at 124. Petitioner also opined the referenced "blank spots" in his statement to the police upon his arrest was from the loss of blood due to a cut to his hand, shock over what had happened, or sleepiness during the event. Vol. 4 at 120, 140, 147. Petitioner averred he was unable to read his statement without glasses but did acknowledge signing the statement. Vol. 4 at 154.
After the close of the guilt/innocence phase of the trial, the trial court advised counsel for the parties, "Counsel, the way I see this at the present time, it is just a plain murder charge: He did it or he didn't do it." Vol. 4 at 168. The trial court further stated "self-defense has not been raised in my opinion." Id. The trial court proposed "to provide a charge to the jury on guilt or innocence, which is a straight murder charge, and allow them to decide either he did or he did not." Vol. 4 at 169-70. This charge did not include an instruction on self defense. In response to the court's query as to whether the defense had any objection to the charge, defense counsel replied:
The charge did include a specific instruction as to the definition of "intentionally" or "knowingly."
On April 5, 2007, a jury found petitioner guilty of the offense of murder as alleged in the indictment, and found petitioner used or exhibited a deadly weapon in the commission of the offense. Petitioner pled true to the two (2) prior felony conviction enhancements and, on April 6, 2007, following a punishment hearing, the jury assessed petitioner's punishment at forty (40) years imprisonment in the Texas Department of Criminal Justice, Correctional Institutions Division. Corresponding judgments were signed April 13, 2007 and filed of record April 17, 2007.
Petitioner appealed his sentence to the Court of Appeals for the Seventh District of Texas. On December 10, 2007, appointed appellate counsel filed an Anders brief stating he "researched the law applicable to the facts and issues contained therein, and it [was his] professional evaluation that no reversible error [was] reflected by the record."
On August 13, 2008, the appellate court affirmed petitioner's sentence in an unpublished opinion finding the court's independent review failed to reveal any arguably reversible error. Paige v. State, No. 07-07-0190-CR. Petitioner filed a petition for discretionary review which was refused per curiam by the Texas Court of Criminal Appeals on February 4, 2009. In re Paige, No. PD-1333-08.
On October 30, 2009, petitioner filed a state application for a writ of habeas corpus challenging the constitutionality of his sentence on the following grounds:
In re Paige, No. 72,964-01.
On January 13, 2010, the Court of Criminal Appeals interpreted petitioner's 5
On April 8, 2010, the Senior District Judge who presided over petitioner's trial by assignment executed an affidavit stating:
On April 13, 2010, petitioner's trial counsel executed an affidavit stating:
On May 19, 2010, the state district judge entered the following findings of fact:
The trial court concluded petitioner's trial counsel rendered effective assistance of counsel in his representation of petitioner. On August 25, 2010, the Texas Court of Criminal Appeals denied petitioner's state habeas application without written order on the findings of the trial court without a hearing.
On September 16, 2010, petitioner filed with this Court the instant federal habeas corpus petition.
Petitioner claims his conviction is in violation of the United States Constitution because:
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a state court judgment shall
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 United States Supreme Court 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 (5
A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it is objectively unreasonable in light of the evidence presented in the state court proceeding. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The petitioner has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. 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); Singleton v. Johnson, 178 F.3d 381, 384 (5
Petitioner filed a state habeas application challenging the constitutionality of his sentence and presented the same grounds raised in this federal habeas petition. The Court of Criminal Appeals denied petitioner's state habeas application without written order on the findings of the trial court without a hearing. Ex parte Paige, No. 72,964-01. The ruling of the Texas Court of Criminal Appeals on these grounds constituted an adjudication of petitioner's state habeas corpus claims on the merits.
On state habeas review, the trial court analyzed petitioner's claims of ineffective assistance of counsel and trial court error in failing to include a jury instruction on self-defense, and made specific findings that petitioner's claims were without merit. The Texas Court of Criminal Appeals, based on these findings of the state trial court, determined petitioner was not entitled to state habeas corpus relief on these claims, and further determined petitioner was not entitled to state habeas relief on his remaining claims. Petitioner has not demonstrated the state court's determination was based on an unreasonable determination of the facts in light of the evidence before the state court. Petitioner does not refer to any Supreme Court opinion containing a "materially indistinguishable" set of facts that controls this case. Nor has petitioner shown the state habeas court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. In fact, petitioner does not argue the state habeas courts arrived at a conclusion opposite to one reached by the Supreme Court on a question of law. Petitioner simply reasserts the same claims he made in his state habeas application and makes no effort to demonstrate the level of error required by the AEDPA. Petitioner has not met his burden of proof in order to obtain federal habeas corpus relief under the AEDPA on any of his claims, thus, petitioner is not entitled to federal habeas corpus relief and his petition should be denied.
By his third ground,
By his fifth ground, petitioner contends he was denied effective assistance of counsel at trial. Specifically, petitioner appears to argue counsel was deficient because counsel failed to:
In order to obtain habeas corpus relief on the ground of ineffective assistance of counsel, a petitioner must demonstrate not only that his counsel's performance was deficient, but must also show the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To demonstrate deficiency, the petitioner must show counsel's actions "fell below an objective standard of reasonableness." Id. at 668, 104 S.Ct. at 2064. A strong presumption exists "that trial counsel rendered adequate assistance and that the challenged conduct was reasoned trial strategy." Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992) (citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). To demonstrate prejudice, a petitioner must show that a "reasonable probability" exists that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. "A reasonable probability is a probability sufficient to undermine confidence in the outcome [of a criminal trial]." Id. This is a heavy burden which requires a "substantial," and not just a "conceivable," likelihood of a different result. Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011); see also Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011). If a petitioner fails to show either the deficiency or prejudice prong of the Strickland test, then the Court need not consider the other prong. Id. at 697, 104 S.Ct. at 2069.
The Sixth Amendment requires counsel "to make a reasonable investigation of defendant's case or to make a reasonable decision that a particular investigation is unnecessary." Ransom v. Johnson, 126 F.3d 716, 723 (5
Petitioner contends defense counsel was deficient throughout the trial for the reasons he alleges above. Petitioner raised all of these claims in his state habeas application. The trial court made findings of fact with regard to petitioner's claims of deficient performance and prejudice, and concluded trial counsel rendered effective assistance of counsel in his representation of petitioner. The Texas Court of Criminal Appeals denied relief based on these findings. By rejecting these ineffective assistance claims, the state courts necessarily found counsel's performance was not deficient and/or that petitioner was not prejudiced by counsel's performance.
Petitioner has failed to argue, much less show, the state courts' decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or based on an unreasonable determination of the facts in light of the evidence presented in any of the state court proceedings. Petitioner has not met this threshold standard of review for federal habeas corpus relief, nor has he demonstrated the merits of his ineffective assistance of counsel claims would otherwise entitle him to federal habeas corpus relief. Consequently, even if this Court disagreed with the state court determinations, petitioner has not demonstrated he is entitled to federal habeas relief by showing the state court decisions were both incorrect and objectively unreasonable.
Moreover, petitioner has failed to provide any evidence to rebut the finding that trial counsel was not deficient, or that petitioner was not prejudiced by trial counsel's performance. Even if this Court were to assume, for purposes of argument, that petitioner's trial counsel performed deficiently in some respect, petitioner has offered no evidence he was prejudiced. The premise of the majority of petitioner's claims appears to be that had counsel taken the additional steps identified by petitioner, the jury would have believed petitioner's version of the events and would have acquitted petitioner based on his self-serving testimony. Petitioner's testimony, however, was contradicted by Brown's testimony and by some of the physical evidence. Further, petitioner presents no evidence of a "reasonable probability" that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Petitioner has not shown a substantial probability sufficient to undermine confidence in the outcome of his trial. At most, petitioner presents only an argument that a different result is "conceivable," an insufficient showing for federal habeas corpus relief. Petitioner's claims should be DENIED.
In Brady v. Maryland, 373 U.S. 82 (1963), the United States Supreme Court held the suppression by the prosecution of evidence favorable to an accused after a request violates due process where the evidence is material either to guilt or punishment. To establish a Brady violation, a defendant must prove (1) the prosecutor suppressed or withheld evidence; (2) which was favorable; and (3) material to the defense. Moore v. Ilinois, 408 U.S. 786, 794-95 (1972); Ogle v. Estelle, 641 F.2d 1122, 1124 (5
By his first ground, petitioner claims his conviction was obtained by the State's unconstitutional failure to disclose evidence favorable to petitioner's defense in violation of Brady. Petitioner identifies the following favorable and material "evidence" the State allegedly suppressed or withheld from petitioner in violation of Brady: fingerprint evidence on the knife, which petitioner alleges would have shown the victim's fingerprints on the knife; a pool of blood at the crime scene, which petitioner contends DNA testing would have established was his blood; a bloody blanket from behind the apartment, where petitioner contends he lay unconscious from loss of blood for three (3) hours after the incident. Petitioner contends that if he had been provided with the above evidence, he could have established he was not the aggressor in the altercation, and that he was not competent to give his statement to the police after his arrest, thereby resulting in his acquittal. Petitioner also appears to complain of the failure to obtain independent testing or expert testimony of the physical evidence, and the State's purported failure to comply with petitioner's motion to produce favorable evidence.
First, there is nothing in the record supporting petitioner's claim that the State failed to disclose favorable evidence within its possession. Not only does petitioner fail to demonstrate any such evidence was in existence, he fails to show any evidence was exculpatory or that such evidence was suppressed by the State. The State had an open file policy and all evidence in their possession was available to defense counsel. Petitioner's actual argument appears to be that the State did not further process available evidence and that this amounted to improperly withholding exculpatory evidence. Even if there were some duty on the State to further process evidence, petitioner's contentions that such further processing of evidence would have resulted in evidence favorable to petitioner is entirely speculative, conclusory and self-serving. Petitioner has not shown the State possessed any additional evidence that, in fact, was exculpatory or in any way favorable and material to petitioner's case, or that the State suppressed or withheld any such evidence. Nor has petitioner shown a reasonable probability that had any additional analysis of evidence been performed and such results disclosed to the defense, that the result of the proceeding would have been different. Petitioner's first ground should be DENIED.
By his second ground, petitioner argues the State failed to prove the element of intent for the offense of murder at trial. Construing this ground liberally, the undersigned interprets petitioner to be alleging the evidence at trial was legally and factually insufficient to support his conviction.
For purposes of federal habeas corpus review, a state conviction need only satisfy the legal sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). To determine the legal sufficiency of the evidence, a federal court must consider whether, viewing all the evidence "in the light most favorable to the prosecution, any rational trier of fact could have found the existence of facts necessary to establish the essential elements of the offense beyond a reasonable doubt." Id. at 318-19, 99 S.Ct. at 2789. In making this determination, the reviewing court must resolve all credibility choices and conflicting inferences in favor of the fact finder. United States v. Cyprian, 197 F.3d 736, 740 (5th Cir. 1999), cert. denied, 531 U.S. 822, 121 S.Ct. 65, 148 L.Ed.2d 31 (2000). It is the fact-finder's responsibility alone "to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The reviewing court must determine if the evidence is constitutionally sufficient to support the conviction, i.e., whether the evidence satisfied the "substantive elements of the criminal offense as defined by state law." Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991).
It is the sole province of the jury as the finder of fact to assess the credibility of the witnesses and to choose among reasonable constructions of the evidence. See United States v. Green, 180 F.3d 216, 220 (5th Cir. 1999). A jury is not to be second-guessed by a reviewing court in its choice of which witnesses to believe. See United States v. Dean, 59 F.3d 1479, 1484 (5th Cir. 1995). On federal habeas review, "[a] federal court may not substitute its own judgment regarding the credibility of witnesses for that of the state courts." Marler v. Blackburn, 777 F.2d 1007, 1012 (5th Cir. 1985). Moreover, "[t]he habeas corpus statute obliges federal judges to respect credibility determinations made by the trier of fact." Pemberton v. Collins, 991 F.2d 1218, 1225 (5th Cir. 1993).
During the trial of this case, multiple witnesses testified, including petitioner, as to the events surrounding the death of the victim and petitioner's subsequent actions. Numerous exhibits of the crime scene, the knife and sheath, and petitioner's clothing, were admitted into evidence. The jury judged the credibility of the testimony and evidence, evaluated the demeanor of the witnesses, and decided how much weight should be given to their testimony. The jury acted within its proper scope in drawing reasonable inferences from the evidence and resolving any conflicts in the evidence against petitioner. Petitioner has failed to present evidence rendering the jury's determinations invalid, and is simply attempting to have this court second-guess the jury's credibility choices, implicit factual findings, and resolution of conflicts in the evidence. Giving due deference to the jury's determination as this court should, the undersigned finds petitioner's claim there was legally insufficient evidence to support his conviction is without merit.
Further, based on a review of the record as a whole, a rational finder of fact could have found the evidence presented established the essential elements of the offense of murder, including the element of intent, beyond a reasonable doubt.
By his fourth ground, petitioner asserts the jury failed to rationally apply the standard of beyond a reasonable doubt. Again construing this ground liberally, the undersigned interprets petitioner's claim to allege the evidence at trial was legally insufficient to support his conviction.
Petitioner again has failed to present evidence rendering the jury's determinations invalid. In addition, petitioner completely fails to show the jury did not apply the appropriate burden of proof in this case. Once again petitioner is attempting to have this court second-guess the jury's findings. Applying the same analysis as above, the undersigned finds petitioner's claim that there was legally insufficient evidence to support his conviction is without merit. A rational finder of fact could have found the evidence presented established the essential elements of the offense of murder beyond a reasonable doubt. Petitioner's claim that the jury applied an incorrect burden of proof is without merit and should be DENIED.
By his sixth ground, petitioner argues the cumulative effect of the errors alleged above deprived him of his right to an impartial jury, a fair trial, and due process. The cumulative effect of errors, none of which individually are significant, can be collectively significant. Kyles v. Whitley, 514 U.S. 419, 436-37, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Relief can be granted for cumulative error where the errors committed (1) involved matters of constitutional dimension; (2) were not procedurally defaulted; and (3) "so infected the entire trial that the resulting conviction violates due process." Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992). Petitioner has failed to demonstrate any of his claims of alleged errors have merit. Consequently, petitioner fails to show he was denied due process as a result of cumulative error. Petitioner sixth ground should be DENIED.
By his seventh ground, petitioner appears to argue various acts on the part of the State, the trial court, defense counsel and the police amounted to "obstruction of justice" resulting in the denial of a fair trial. Petitioner asserts what appears to be approximately eleven (11) different sub-claims, the majority of which have been addressed under the grounds above. Claims not previously addressed, i.e., faulty police work and false police reports, the admission of non-relevant evidence and perjured testimony at trial, are supported only by petitioner's self-serving, conclusory allegations. Absent evidence in the record, a court cannot consider a habeas petitioner's bald assertions, unsupported and unsupportable by anything else contained in the record, to be of probative evidentiary value. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the petition for a writ of habeas corpus filed by petitioner RICHARD WARREN PAIGE be DENIED.
The United States District Clerk is directed to send a copy of this Report and Recommendation to each party by the most efficient means available.
IT IS SO RECOMMENDED.
