JOHN MCBRYDE, District Judge.
This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Kenneth Olaf Lundgren, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against William Stephens, 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 January 2011 petitioner was charged by separate indictment in Hood County, Texas, Case No. CR11793, with six counts of aggravated assault with a deadly weapon on a public servant for offenses occurring on October 31, 2010. Clerk's R., 16, ECF No. 14-6. Petitioner's trial commenced on September 26, 2011. The state appellate court summarized the factual and procedural background of the case as follows:
Mem. Op. 2-3, ECF No. 14-4.
The appellate court affirmed the trial court's judgments. Id. at 16. Petitioner did not file a petition for discretionary review in the Texas Court of Criminal Appeals, however he filed two state-habeas applications challenging his convictions. Elec. R., ECF No. 14-1. The first application was denied by the Texas Court of Criminal Appeals without written order, and the second was dismissed as a successive petition. SH1 "Action Taken," ECF No. 17-1; SH2 "Action Taken," ECF No. 17-6
Generally, petitioner seeks habeas relief based on the following grounds:
Respondent believes that petitioner's claims (1), (3), (4), and (9), in part, enumerated above, are unexhausted and procedurally barred. Respondent does not believe that the petition is untimely or successive. Resp't's Answer 2, 11-15, ECF No. 19.
Applicants seeking habeas corpus relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b) (1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest court of the state on direct appeal or in state post-conviction proceedings. O'Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999); Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). The exhaustion requirement is "not satisfied if the petitioner presents new legal theories or factual claims in his federal habeas petition." Reed v. Stephens, 739 F.3d 753, 780 (5th Cir. 2014) (quoting Anderson v. Johnson, 338 F.3d 382, 386, (5th Cir. 2003)).
In Texas, the highest state court for criminal matters is the Texas Court of Criminal Appeals. Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985). Therefore, a Texas prisoner may typically satisfy the exhaustion requirement by presenting both the factual and legal substance of a claim to the Texas Court of Criminal Appeals in either a petition for discretionary review or, as in this case, a state habeas post-conviction proceeding. See TEX. CoDE CRIM. PRoc. ANN. art. 11.07 (West 2015); Depuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988)
Petitioner did not file a petition for discretionary review; thus it was necessary that he raise his claims in a properly-filed state-habeas application under article 11.07 of the Texas Code of Criminal Procedure. Petitioner raised a claim in his first properly-filed state-habeas application that sufficiently corresponds to his ground (4), however respondent correctly notes that petitioner did not raise claims that sufficiently correspond to grounds (1), (3) and (9), to the extent petitioner claims counsel was ineffective by failing to move for a mistrial. Petitioner's ground (1) raised for the first time in his second state-habeas application, which was dismissed as a successive application, as well as his grounds (3) and (9), in part, raised for the first time in this federal petition are unexhausted for purposes§ 2254(b) (1) (A).
Under the Texas abuse-of-the-writ doctrine, however, petitioner cannot now return to state court for purposes of exhausting the claims. TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a)-(c). The abuse-of-the-writ doctrine represents an adequate state procedural bar to federal habeas review. See Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997). Therefore, absent a showing of cause and prejudice or a miscarriage of justice, such showing not having been demonstrated, petitioner's grounds (1), (3) and (9), to the extent petitioner claims counsel was ineffective by failing to move for a mistrial, are unexhausted and procedurally barred from this Court's review.
A § 2254 habeas petition is governed by the heightened standard of review provided for by the Anti-Terrorism and Effective Death Penalty Act (AEDPA). 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 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, 562 U.S. 86, 99-100 (2011); 28 U.S.C. § 2254 (d) (1)-(2).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." Harrington, 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, a federal court may imply fact findings consistent with the state court's disposition. Townsend v. Sain, 372 U.S. 293, 314 (1963); Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003); Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5th Cir. 2002). Further, when the Texas Court of Criminal Appeals denies a federal claim in a state habeas corpus application without written opinion, a federal court may 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." Johnson v. Williams, U.S. ___, 133 S.Ct. 1088, 1094 (2013); Harrington, 562 U.S. at 99.
Under petitioner's second ground, he asserts the deputies failed to comply with § 573.001 of the Texas Health and Safety Code by not immediately taking him to a mental health facility. TEX. HEALTH & SAFETY CODE ANN.§ 573.001 (West Supp. 2014). A violation of state law however provides "no basis for federal habeas relief." Estelle v. McGuire, 502 U.S. 62, 68 n.2 (1991).
Under petitioner's fourth through seventh grounds, he asserts the prosecution engaged in prosecutorial misconduct by: withholding evidence; using perjured testimony; tainting the jury pool during voir dire; and delaying his trial to hamper his defense and gain a tactical advantage. Pet. 6-7 & Inserts, ECF No. 1.
Petitioner claims the state withheld the "dashcam" video from Sergeant Ellis's patrol car, which would have exonerated him, and only gave the defense notice of its existence at the last minute. Pet. 7, ECF No. 1. Brady v. Maryland, 373 U.S. 83 (1963). This Court is aware that the Tarrant County District Attorney's Office maintains an open-file policy. Moreover, the prosecution introduced the "dashcam" videos of both Sergeant Ellis and Deputy Mead into evidence and tendered them to the jury without objection. RR, vol. 3, 33 & 88; ECF No. 15-3. This suggests to the Court that the defense was aware of the dashcam videos at the latest on the day petitioner's trial commenced and was able to cross-examine the officers regarding the videos. Pet. 7, ECF No. 1. No prejudice occurs if evidence is disclosed in time for its "effective use at trial." United States v. McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985).
Petitioner claims the prosecution knowingly used perjured testimony of the law enforcement officers, when it had "in its custody the dashcam video," but used "a satillite photo of petitioners property marked as to the alledged positions of petitioner and deputies, knowing that this was false." Pet. Insert., ECF No. 1 (all misspellings and grammatical errors are in the original). This claim is frivolous. It was the jury's role to evaluate the credibility of the witnesses and weigh any conflicting evidence. United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012). As noted above, two "dashcam" videos were admitted at trial; thus, it was for the jury to decide whether the videos corroborated or contradicted the officers' testimony regarding petitioner's and the officers' relative positions as the events occurred.
Petitioner claims the prosecution improperly examined a veniremember, a police captain, during voir dire. In his state habeas application, Petitioner asserted—
SH01, 13, ECF No. 17-1 (all misspellings and grammatical errors are in the original).
Under Texas law, it is proper during voir dire to pose hypothetical fact situations to determine prospective jurors' view of issues particular to the case being tried. Green v. Johnson, 160 F.3d 1029, 1037 n.4 (5th Cir. 1998). In application, this means that "[a] proper [voir dire] question is one which seeks to discover a veniremember's views on an issue applicable to the case." Rhoades v. Texas, 934 S.W.2d 113, 122 (Tex. Crim. App. 1996). The prosecutor may not, however, go beyond hypotheticals and attempt to commit an individual prospective juror to a particular course of action based upon a certain factual situation. Cuevas v. State, 742 S.W.2d 331, 343 (Tex. Crim. App. 1987); see also Lee v. State, 176 S.W.3d 452, 461-62 (Tex. App.-Houston [1st Dist.] 2004) (holding that hypothetical was not overbroad when it "did not contain additional facts specific to the case at bar that [were] unnecessary to explain the application of the law"). Here, the prosecutor discussed the concepts of finding a defendant guilty based on a threat alone, the use of a gun relevant to the ability to carry out the threat, voluntary intoxication, a defendant's threat to commit suicide, and an insanity defense. RR, vol. 2, 41-61, ECF No. 15-2. Thus, the state's hypothetical and questions all served the purpose of illustrating principles of law that were applicable to petitioner's case and tested the veniremembers' potential bias and ability to apply those principles. See Delacerda v. State, 425 S.W.3d 367, 382 (Tex. App.-Houston [1st Dist.] 2011, pet. ref'd). This Court may assume then that the state courts found the hypothetical proper. Absent a showing that this determination is contrary to, or an unreasonable application of clearly established Supreme Court law on the issue or clear and convincing evidence that the hypothetical examples rendered his trial fundamentally unfair by denying him an impartial jury, we defer to the state courts' adjudication of the claim. See Clark v. Blackburn, 605 F.2d 163, 164 (5th Cir. 1979).
Finally, under his seventh ground, petitioner claims the prosecution delayed his trial for nine months to hamper his defense and gain an advantage by failing to contact "Dr. Norman, the court appointed disinterested expert witness, within the 30 day time limit" required by the Texas Code of Criminal Procedure. Pet. Insert., ECF No. 1. The record reflects that on December 7, 2010, the trial court appointed Dr. Norman as a disinterested— expert and ordered Dr. Norman to conduct a "concurrent" examination of petitioner for both competency and sanity and submit his report within 30 days as provided by statute. SH01, 37-39, ECF No. 17-1. TEX. CODE CRIM. PROC. ANN. arts. 46C.103 & 46C.105 (West 2006). Dr. Norman evaluated petitioner on July 15 and August 19, 2011 and submitted his report on August 29, 2011, which was received by the trial court on September 11, 2011. Supp. Clerk'S R. 11, ECF No. 14-5. As previously noted, a violation of state law provides "no basis for federal habeas relief." Estelle, 502 U.S. at 68 n. 2. Nor does petitioner raise a tenable federal constitutional claim under the Sixth Amendment. Such a claim is evaluated under the four-part balancing test set forth in Barker v. Wingo, 407 U.S. 514 (1972), under which a court must take into consideration the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, [and] prejudice to the defendant." Id. at 530. Petitioner wholly fails to address these factors. Moreover, the delay in this case-less than a year-would not provoke an inquiry into the Barker v. Wingo factors. Id. at 530.
Under his eighth ground, petitioner claims the trial court abused its discretion by refusing to adjourn the case for a day so the defense could call a material witness, Dr. Smith, to assist in establishing an insanity defense. Pet., Insert, ECF No. 1. The record reflects that on July 1, 2011, defense counsel filed a motion for appointment of an independent psychiatric expert to assist in petitioner's defense. Clerk's R. 19, ECF No. 14-6. On September 26, 2011, prior to announcing ready for trial, defense counsel, relying on Ake v. Oklahoma, 470 U.S. 68 (1985), requested a ruling on the motion and a continuance of a day and a half for the purpose of obtaining expert assistance. RR, vol. 2, 4-6, ECF No. 15-2. The trial court denied the motion. Id. at 6. In Ake, the Supreme Court held that due process requires the state to provide an indigent defendant funds for psychiatric assistance when he makes a preliminary showing that his mental state was a significant factor at the time of the offense. 470 U.S. at 83. The state appellate court, citing to Ake and relevant state law, addressed the claim as follows:
Mem. Op. 10-13, ECF No. 14-4.
Ake does not clearly provide a constitutional right to an "independant" psychiatrist. Woodward v. Epps, 580 F.3d 318, 332 n.5 (5th Cir. 2009), cert. denied, 559 U.S. 1071 (2010), and the Supreme Court has denied certiorari in a case regarding whether Texas's provision of a "disinterested" expert satisfies Ake. Granviel v. Texas, 495 U.S. 963 (1990). Given the lack of a clear Supreme Court holding that a defendant is entitled to independent psychiatric assistance, the decision of the state court in rejecting this claim is not "contrary to" or an "unreasonable application of" clearly established federal law. Lopez v. Smith, 135 S.Ct. 1, 4-5 (2014) (holding the AEDPA prohibits the federal courts of appeals from relying on their own precedent to conclude a particular constitutional principle is "clearly established"); williams v. Taylor, 529 U.S. 362, 381 (2000) (relief precluded if the Supreme Court has not "broken sufficient legal ground" on a constitutional principle advanced by a petitioner).
Under his ninth ground, petitioner claims he received ineffective assistance of trial counsel. 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). An ineffective assistance claim is governed by the familiar standard set forth in Strickland v. Washington. 466 U.S. at 668. 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. Strickland allows the habeas court to look at either prong first; if either one is found dispositive, it is not necessary to address the other. Id. at 697; Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984)
In this case, no express findings of fact or conclusions of law were made by the state courts regarding petitioner's ineffective-assistance claims. The state habeas judge, who also presided over petitioner's trial, merely recommended denial of petitioner's state application after finding there were "no controverted, previously unresolved issues of fact material to the legality of the Petitioner's conviction[s]." SH1-Writ 25, ECF No. 17-1. The recommendation was followed by the Texas Court of Criminal Appeals, which denied relief without hearing or written order.
In the absence of a written opinion or express findings of fact, this court assumes the state courts applied the Strickland standard and made factual findings consistent with the state courts' decision. The Supreme Court recently emphasized in Harrington v. Richter the way that a federal court is to consider an ineffective assistance of counsel claim raised in a habeas petition subject to AEDPA's strictures: •
562 U.S. at 101 (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)) (emphasis in original). Accordingly, it is necessary only to determine whether the state courts' rejection of petitioner's ineffective-assistance claims was contrary to or an objectively unreasonable application of Strickland. Bell Cone, 535 U.S. 685, 698-99 (2002); Kittelson v. Dretke, 426 F.3d 306, 315-17 (5th Cir. 2005); Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003). Petitioner claims his trial attorney was ineffective because he—
Pet. Insert, ECF No. 1 (all misspellings and grammatical errors are in the original).
Having reviewed the record in its entirety, and assuming the state courts concluded that petitioner failed to demonstrate one or both prongs of the Strickland standard, it is not necessary for this court to apply the first prong. In light of the overwhelming evidence of petitioner's guilt, he cannot establish prejudice against him. Green v. Lynaugh, 868 F.2d 176, 177 (5th Cir. 1989). Absent prejudice/petitioner's claims fail the second Strickland prong. United States v. Royal, 972 F.2d 643/651 (5th Cir. 1992).
In summary/petitioner 1 Sgrounds (1) (3), and (9) to the extent petitioner claims counsel was ineffective by failing to move for a mistrial, are unexhausted and procedurally barred. The state courts' adjudication of petitioner's remaining claims is not contrary to or involve an unreasonable application of clearly established federal law, as determined by the Supreme Court, in light of the record as a whole. Accordingly, it is entitled to deference and the presumption of correctness.
For the reasons discussed herein,
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.
