TERRY R. MEANS, District Judge.
Before the Court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner, Tracy Lee Thurman, a state prisoner, against William Stephens, director of the Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
After having considered the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.
On March 23, 2010, in the 266th Judicial District Court, Erath County, Texas, a jury found Petitioner guilty of delivery of a controlled substance—methamphetamine—in the amount of one gram or more but less than four grams. Petitioner pleaded true to a prior felony conviction, and the jury assessed his punishment at 99 years' confinement and a $10,000 fine. (J. of Conviction by a Jury 56, ECF No. 13-3.) Petitioner appealed his conviction, but the Eleventh Court of Appeals of Texas affirmed the trial court's judgment and the Texas Court of Criminal Appeals refused Petitioner's petition for discretionary review. (Mem. Op., ECF No. 12-3; Thurman v. State, PDR No. 1902-11.) Petitioner also filed a state habeas application challenging his conviction, which was denied without written order by the Texas Court of Criminal Appeals. (Ex parte Thurman, State Habeas R. cover, ECF No. 15-31.) Petitioner filed this federal habeas petition in the Galveston division of the Southern District of Texas and the action was subsequently transferred to this district and division.
In two grounds for relief, Petitioner claims that the Texas courts (1) violated his right to a fair trial by failing to adhere to the announced principles in Murray v. Carrier and (2) violated his right under the Sixth Amendment to being provided effective assistance of counsel. (Pet. 6, ECF No. 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 AEDPA, 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 Supreme Court precedent or that is based on an unreasonable determination of the facts in light of the record before the state court. Harrington v. Richter, 131 S.Ct. 770, 785 (2011); 28 U.S.C. § 2254(d)(1)-(2). This standard is difficult to meet but "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings." Harrington, 131 S. Ct. at 786.
Additionally, the statute 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. This presumption of correctness applies to both explicit findings of fact and those findings of fact implicit in the state court's mixed-law-and-fact conclusions. Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001). The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); Williams v. Taylor, 529 U.S. 362, 399 (2000).
Finally, when the Texas Court of Criminal Appeals denies relief in a state habeas-corpus application without written opinion, as in this case, it is an adjudication on the merits, which is also entitled to the presumption of correctness. Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). Under these circumstances, a federal court may assume the state court applied correct standards of federal law to the facts, unless there is evidence that an incorrect standard was applied, and infer fact findings consistent with the state court's disposition. Townsend v. Sain, 372 U.S. 293, 314 (1963)
Petitioner asserts that he was denied the right to a fair trial by the trial court's unauthorized (under article 36.29(a) of the Texas Code of Criminal Procedure) dismissal of a juror after trial had begun and that his trial counsel was ineffective for failing to object to the trial court's "reasoning" for the dismissal so as to preserve the issue for appeal. Article 36.29(a) provides, in relevant part:
Tex. Code Crim. Proc. art. 36.29(a) (West Supp. 2013).
Petitioner's claim was addressed by the state appellate court as follows:
(Mem. Op. 2-4, ECF No. 12-3.)
Respondent asserts that Petitioner's first claim is procedurally barred by the Texas contemporaneous-objection rule, or, alternately, that the claim is not cognizable and without merit. (Resp't's Answer 11, ECF No. 20.) Respondent also asserts that Petitioner cannot demonstrate either deficient performance on the part of trial counsel or prejudice given the appellate court's opinion, which "clearly demonstrates [his arguments] would have been rejected on the merits." (Resp't's Answer 25, ECF No. 20.)
A habeas petitioner's default in state court will not bar federal habeas review if "the petitioner demonstrates cause and actual prejudice." Coleman v. Thompson, 501 U.S. 722, 748 (1991). Although an attorney's failure to make objections may constitute "cause" for a procedural default, a petitioner must show that counsel's failure to object amounted to ineffective assistance of counsel. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Murray v. Carrier, 477 U.S. 478, 488-89 (1986); Cotton v. Cockrell, 343 F.3d 746, 754 (5th Cir. 2003). Toward that end, Petitioner claims that trial counsel's failure to specifically object to the trial court's "reasoning" for the dismissal was the cause of the procedural default and that, but for counsel's oversight, "the result on appeal would mirror the result in Landrum—reversal of the conviction based upon Abuse of Discretion." (Pet'r's Mem. of Law 4, ECF No. 2.) Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
The Sixth Amendment constitutional guarantee of trial by jury in criminal cases applies to states through the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 149 (1968). The Sixth Amendment does not, however, prescribe the size of the jury that a state must provide for a criminal defendant so long as there are at least six members. Ballew v. Georgia, 435 U.S. 223, 239 (1978); Williams v. Florida, 399 U.S. 78, 100 (1970). Further, the question of whether a juror is properly dismissed under a disability within the meaning of article 36.29(a) is purely a question of state law. The state courts' interpretation of state law is not subject to review by a federal court in a habeas proceeding unless it rendered the petitioner's trial fundamentally unfair. Hughes v. Dretke, 412 F.3d 582, 591 (5th Cir. 2005); Mills v. Collins, 924 F.2d 89, 92 (5th Cir. 1991).
Petitioner's claim concerns state criminal procedure, and he has not shown that the state court's application of article 36.29(a) rendered his trial fundamentally unfair or ran afoul of a federal constitutional right. Goodrum v. Quarterman, 547 F.3d 249, 261 (5th Cir. 2008). Given the state court's determination that Petitioner's claim was without merit, Petitioner was not actually prejudiced by counsel's failure to preserve the issue for appeal. Under the circumstances, counsel's failure to object neither constitutes good cause for the procedural default nor satisfies the prejudice prong of the familiar Strickland standard. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
Based on the record before the Court, the state courts' rejection of Petitioner's claims is not contrary to, nor does it involve an unreasonable application of, clearly established Supreme Court precedent. Nor was the decision based on an unreasonable determination of the facts in light of the evidence presented in the state court.
For the reasons discussed, the Court DENIES Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and DENIES a certificate of appealability.
