KEITH P. ELLISON, District judge.
Petitioner, a state inmate proceeding pro se, filed this section 2254 habeas petition challenging his conviction and thirty-year sentence for possession with intent to deliver a controlled substance, phencyclidine. Respondent filed a motion for summary judgment (Docket Entry No. 13), to which petitioner filed a response (Docket Entry No. 17).
Having considered the motion, the response, the record, and the applicable law, the Court
The jury found petitioner guilty of possession with intent to deliver a controlled substance, phencyclidine ("PCP"), and assessed punishment at thirty years incarceration. The conviction was affirmed on appeal, Williams v. State, No. 01-12-010084-CR, 2014 WL 60723 (Tex. App.-Houston [1st Dist.] 2014, no pet.) (not designated for publication). Petitioner's untimely filed petition for discretionary review was dismissed. His application for state habeas relief, filed with the trial court on October 10, 2014, was denied by the Texas Court of Criminal Appeals on March 4, 2015.
Petitioner argues in his federal habeas petition that trial counsel was ineffective in
Petitioner further claims that he was denied the effective assistance of trial counsel because
Respondent argues that these grounds have no merit and should be dismissed.
The intermediate state court of appeals set forth the following statement of facts in its opinion affirming petitioner's conviction.
Williams, 2014 WL 60723 at* 1.
This petition is governed by the applicable provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2254. Under the AEDPA, federal habeas relief cannot be granted on legal issues adjudicated on the merits in state court unless the state adjudication was contrary to clearly established federal law as determined by the Supreme Court, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court. Harrington v. Richter, 562 U.S. 86, 98-99 (2011); Williams v. Taylor, 529 U.S. 362,404-05 (2000); 28 U.S.C. §§ 2254(d)(1), (2). A state court decision is contrary to federal precedent if it applies a rule that contradicts the governing law set forth by the Supreme Court, or if it confronts a set of facts that are materially indistinguishable from such a decision and arrives at a result different from the Supreme Court's precedent. Early v. Packer, 537 U.S. 3, 7-8 (2002).
A state court unreasonably applies Supreme Court precedent if it unreasonably applies the correct legal rule to the facts of a particular case, or unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply. Williams, 529 U.S. at 409. In deciding whether a state court's application was unreasonable, this Court considers whether the application was objectively unreasonable. Id. at 411. "It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Richter, 562 U.S. at 102. As stated by the Supreme Court in Richter,
Id., at 102-03 (emphasis added; internal citations omitted).
The AEDPA affords deference to a state court's resolution of factual issues. Under 28 U.S.C. § 2254(d)(2), 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, 343 (2003). A federal habeas court must presume the underlying factual determination of the state court to be correct, unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Miller-El, 537 U.S. at 330-31.
In deciding a motion for summary judgment, the district court must determine whether the pleadings, discovery materials, and the summary judgment evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). Once the movant presents a properly supported motion for summary judgment, the burden shifts to the nonmovant to show with significant probative evidence the existence of a genuine issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000).
While summary judgment rules apply with equal force in a section 2254 proceeding, the rules only apply to the extent that they do not conflict with the federal rules governing habeas proceedings. Therefore, section 2254(e)(1), which mandates that a state court's findings are to be presumed correct, overrides the summary judgment rule that all disputed facts must be construed in the light most favorable to the nonmovant. Accordingly, unless a petitioner can rebut the presumption of correctness of a state court's factual findings by clear and convincing evidence, the state court's findings must be accepted as correct by the federal habeas court. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), overruled on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004).
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to the effective assistance of counsel. U.S. CON ST. amend. VI. A federal habeas corpus petitioner's claim that he was denied effective assistance of counsel is measured by the standards set out in Strickland v. Washington, 466 U.S. 668 (1984). To assert a successful ineffectiveness claim, a petitioner must establish both constitutionally deficient performance by counsel and actual prejudice as a result of counsel's deficient performance. Id. at 687. The failure to demonstrate either deficient performance or actual prejudice is fatal to an ineffective assistance claim. Green v. Johnson, 160 F.3d 1029, 1035 (5th Cir. 1998).
A counsel's performance is deficient if it falls below an objective standard of reasonableness. Strickland, 466 U.S. at 688. In determining whether counsel's performance was deficient, judicial scrutiny must be highly deferential, with a strong presumption in favor of finding that trial counsel rendered adequate assistance and that the challenged conduct was the product of a reasoned trial strategy. Westv. Johnson, 92 FJd 1385, 1400 (5th Cir. 1996). To overcome this presumption, a petitioner must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992). However, a mere error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Strickland, 466 U.S. at 691.
Actual prejudice from a deficiency is shown if there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Id. at 694. To determine prejudice, the question focuses on whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). In that regard, unreliability or unfairness does not result if the ineffectiveness does not deprive the petitioner of any substantive or procedural right to which he is entitled. Id.
Petitioner argues that trial counsel was ineffective in the following five instances.
Petitioner argues that trial counsel should have filed a motion to suppress the controlled substance seized as the result of an illegal arrest.
To prevail on this claim, petitioner must prove that his Fourth Amendment claim was meritorious and that there is a reasonable probability that the verdict would have been different absent the excludible evidence in order to demonstrate actual prejudice. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Thus, in order to show ineffective assistance in these circumstances, petitioner must first show that his Fourth Amendment claim would have been granted. See United States v. Oakley, 827 F.2d 1023, 1025 (5th Cir. 1987) ("The inquiry turns on whether a hypothetical motion to suppress would have been successful."). If the record does not support valid grounds upon which a motion to suppress could have been successfully asserted, counsel will not be held ineffective for failing to file the motion.
Petitioner does not demonstrate valid grounds in the record supporting a motion to suppress. The trial testimony showed that the vehicle petitioner was leaning into was facing the wrong way on the street and that he was at the passenger rear door when the officers saw him. 2 RR 15. One of the officers testified that he could smell the odor ofPCP when they passed the vehicle. 2 RR 23. As they approached, the other male in the car, Castor, dropped a "wet" cigarette to the ground, and the officer saw petitioner hand a bottle to one of the women sitting in the backseat. The bottle was later recovered and found to contain PCP. 2 RR 62, 77. Petitioner, Castor, and the woman were arrested, while a second woman unsuccessfully attempted to flee. 2 RR 63. Under these facts, the officers had sufficient, articulable suspicion to believe that the individuals, including petitioner, had committed or were about to commit a crime. Terry v. Ohio, 392 U.S. 1, 19 (1968). The officers immediately substantiated and obtained probable cause when they approached the scene and found contraband in the possession of more than one person. Id.
Petitioner's argument that the officers did not check for outstanding arrest warrants disregards the officer's observation that petitioner had handed the bottle to the female passenger after noticing the approaching police, which provided sufficient justification for the stop under state law. See TEX. CODE. CRIM. PROC. art. 14.01(b) (authorizing a peace officer to arrest for any offense committed in his presence or within his view). Further, trial counsel correctly advised petitioner that he did not have standing to raise a challenge to the search of the vehicle. United States v. Roberson, 6 F.3d 1088, 1091 (5th Cir. 1993). Petitioner has not shown that trial counsel unreasonably determined not to seek suppression of the arrest, nor does he show that such a motion would have been granted. Kimmelman, 477 U.S. at 375. Because petitioner has not demonstrated a basis upon which a motion to suppress would have succeeded, he has not established that the state court unreasonably rejected his claim of ineffective assistance of counsel. Richter, 562 U.S. at 102-103. Habeas relief is unwarranted.
The state court rejected this claim for ineffective assistance of counsel. Petitioner fails to show that the state court's determination was contrary to, or involved an unreasonable application of, Strickland or was an unreasonable determination of the facts based on the evidence in the record. Respondent is entitled to summary judgment dismissal of this claim.
These two claims are interrelated and will be considered together. Petitioner argues that trial counsel was ineffective in failing to present evidence that his co-defendant made an audio-taped confession to an investigator and an assistant district attorney stating that petitioner was not involved. Petitioner also contends that counsel should have called the investigator to testifY that petitioner did not possess the PCP bottle. Specifically, petitioner argues that his investigator and an assistant district attorney were aware ofKandilyn Lathon's audio-taped confession stating that a co-defendant was the only person who passed the bottle to another co-defendant, and that the investigator should have testified that petitioner never possessed the PCP bottle.
In his affidavit submitted to the trial court on collateral review, trial counsel Allen C. Isbell testified, in relevant part, as follows:
Ex parte Williams, p. 57.
The state court record also reflects the following Brady disclosure by the State:
ld., p. 144. The Brady disclosure does not indicate the date it was signed or filed. Some of Lathon's second-hand statements above differ from statements she made under oath in open court during her guilty plea hearing. At her guilty plea hearing, Lathon testified that she and petitioner had possessed the PCP bottle. Nevertheless, Lathon apparently told the prosecutor that she would "take the 5th" if directly asked whether petitioner handed her the bottle of PCP.
According to the Brady disclosure, the prosecutor's conversation with Lathon in the holding cell took place on November 9, 2012, three days prior to trial. The record shows that defense counsel was made aware of the conversation on the evening ofNovember 12,2012. 2 RR 90. The next morning, on November 13,2012, KandilynLathon testified in open court outside the presence of the jury, as follows:
3 RR 20-23.
In denying habeas relief, the trial court made the following relevant findings of fact:
Ex parte Williams, pp. 84-85. The trial court also made the following relevant conclusions of law:
Id., pp. 87-88 (citations omitted). The Texas Court of Criminal Appeals relied on these findings of fact and conclusions of law in denying habeas relief. Id., at cover.
A trial counsel's determination of which witnesses to call at trial is strategic. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). "A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." Cotton v. Cockrell, 343 F.3d 746,752-53 (5th Cir. 2003). Further, a challenge to a failure to call a witness requires proof that the witness would have testified and that the testimony would have been favorable to the defense. Alexander, 775 F.2d at 602. In light of Lathon's invocation of her Fifth Amendment rights, the trial court properly ruled that she could not be compelled to testify. See Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim. App. 1986) (holding that a potential defense witness's Fifth Amendment privilege against self-incrimination overrides a defendant's right to compel testimony). Even though Lathon had pled guilty to committing the offense with petitioner, she properly invoked her Fifth Amendment privilege against self-incrimination, as contradictions in previous judicial admissions could subject her to perjury charges. See Delrio v. State, 866 S.W.2d 304, 306 (Tex. App.-Houston [14th Dist.] 1993, pet. ref d). This outcome is consistent with federal law. See Brown v. Cain, 104 F.3d 744, 749 (5th Cir. 1997).
The state court rejected this claim for ineffective assistance of counsel. Petitioner fails to show that the state court's determination was contrary to, or involved an unreasonable application of, Strickland or was an unreasonable determination of the facts based on the evidence in the record. Respondent is entitled to summary judgment dismissal of this claim.
Petitioner claims that trial counsel was ineffective in failing to have the PCP bottle tested for his fingerprints. Petitioner opines that, had counsel tested the bottle, he would have been exonerated.
In responding to petitioner's claim, trial counsel submitted the following affidavit testimony on state collateral review:
Ex parte Williams, pp. 57-60.
In rejecting petitioner's claim for ineffective assistance, the trial court made the following relevant findings of fact:
Id., p. 86 (record citation omitted). The trial court also made the following relevant conclusions of law:
Id., p. 88 (case citation omitted). The Texas Court of Criminal Appeals relied on these findings of fact and conclusions of law in denying habeas relief. Id., at cover.
Under Strickland, judicial scrutiny of counsel's performance must be highly deferential. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. With regard to the second prong of the Strickland test, a "mere possibility" that a different result might have occurred is not sufficient to demonstrate prejudice. Lamb v. Johnson, 179 F .3d 352, 359 (5th Cir. 1999). Here, petitioner presents no probative summary judgment evidence demonstrating that his fingerprints would not have been found on the bottle, nor does he rebut the strong presumption that counsel's decision was reasonable trial strategy. Petitioner shows neither deficient performance nor actual prejudice.
The state court rejected this claim for ineffective assistance of counsel. Petitioner fails to show that the state court's determination was contrary to, or involved an unreasonable application of, Strickland or was an unreasonable determination of the facts based on the evidence in the record. Respondent is entitled to summary judgment dismissal of this claim.
Petitioner complains that trial counsel failed to challenge the officer's statements from the police report as being prepared by an officer without personal knowledge of the incident. In support, he references two instances in the record indicating that the officers who testified did not write the police report. 2 RR 42, 73. However, petitioner fails to show that such an objection would have been granted, and his argument warrants no relief.
The Texas Rules ofEvidence require a witness to have "evidence sufficient to support a finding that the witness has personal knowledge of the matter." TEX. R. Evro. 602. It also provides that when a writing is used by a witness to refresh his memory, "the opposing party is entitled to inspect it, cross-examine the witness on it, and introduce it into evidence." TEX. R. Evro. 612. Both officers whose testimony petitioner challenges were present and had personal knowledge of the facts, and the reports were reviewed, but not admitted. Petitioner does not establish that, had counsel objected, the trial court would have erred in denying the objection. See Clark v. Thayer, 673 F.3d 410, 429 (5th Cir. 2002). Petitioner establishes neither deficient performance nor actual prejudice under Strickland.
The state court rejected this claim for ineffective assistance of counsel. Petitioner fails to show that the state court's determination was contrary to, or involved an unreasonable application of, Strickland or was an unreasonable determination of the facts based on the evidence in the record. Respondent is entitled to summary judgment dismissal of this claim.
Petitioner next claims that the trial court denied him the effective assistance of counsel by refusing to hear and rule on his motion to dismiss counsel prior to trial. Petitioner also claims that the trial court erred in denying his motion for new counsel the morning of trial because he was entitled to substitute counsel.
The record reflects that, on the morning of the first day of trial, out of the presence of the jury but in the presence of petitioner, the following exchange took place:
2 RR 6-7. Petitioner complained in his state habeas proceeding that the trial court's refusal to order new counsel violated his constitutional rights. In denying petitioner's arguments, the trial court made the following relevant findings of fact on collateral review:
Ex parte Williams, pp. 84-85 (record citations omitted). The trial court also made the following relevant conclusions of law:
Id., pp. 86-87 (case citations omitted, emphasis added). The Texas Court of Criminal Appeals relied on these findings of fact and conclusions oflaw in denying habeas relief. Id., at cover.
Where, as here, "a state court finds that a federal claim is procedurally barred, but goes on to reach the merits of that claim in the alternative, the state court's reliance on the procedural default still constitutes an independent and adequate state ground which bars federal habeas review." Sawyers v. Collins, 986 F.2d 1493, 1499 (5th Cir. 1993). The Fifth Circuit has held that a claim is procedurally defaulted if the state habeas court explicitly found that the claim could have, but was not, raised on direct appeal, unless one of the exceptions has been met. Brewer v. Quarterman, 466 F.3d 344, 347 (5th Cir. 2006). Petitioner did not raise on direct appeal his claims challenging the trial court's actions and/or inactions regarding trial counsel, and his failure to raise the issues on appeal constitutes a procedural default under state law. Ren v. Scott, 28 F.3d 431 (5th Cir. 1994); Ellis v. Lynaugh, 883 F.2d 363, 367 (5th Cir. 1989).
When a state court denies a prisoner's claims based on an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the prisoner can demonstrate (1) cause for the default and prejudice as a result of the alleged violation of federal law, or (2) a resulting fundamental miscarriage ofjustice; that is, that he was actually innocent of the crime. Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Hughes v. Quarterman, 530 F.3d 336,341 (5th Cir. 2008). A habeas petitioner who seeks to surmount a procedural default through a showing of actual innocence must support his allegations with new, reliable evidence that was not presented at trial and must show that, more likely than not, in light of the new evidence, no reasonable juror would have voted to find the petitioner guilty beyond a reasonable doubt. See House v. Bell, 547 U.S. 518, 537 (2006). This Court has rejected petitioner's federal habeas claims, and petitioner fails to demonstrate cause for the default or prejudice under Coleman. Moreover, petitioner fails to demonstrate a resulting fundamental miscarriage ofjustice, as he does not demonstrate actual innocence under Bell. Petitioner's claim is procedurally defaulted and barred from consideration by the Court.
The Constitution guarantees an accused the right to have the assistance of counsel for his defense in all criminal prosecutions. Wheat v. United States, 486 U.S. 153, 158 (1988). That right does not include a guarantee of the right to counsel of defendant's choice. Yohey v. Collins, 985 F.2d 222, 228 (5th Cir. 1993). Absent a complete denial of counsel, with no meaningful adversarial testing, the Strickland standard requires proof of deficiency as well as a reasonable likelihood of a change in the result. U.S. v. Cronic, 466 U.S. 648, 659-660 (1984).
Petitioner argues that trial counsel's representation met the Cronic requirements, as counsel provided no meaningful adversarial testing of the State's case against him. The Court disagrees. The record as a whole clearly reflects counsel's meaningful adversarial testing of the State's case, and petitioner's disagreement with counsel's decisions and trial strategy is insufficient to support a Cronic claim. Similarly, petitioner's disagreement with counsel's decisions and strategy does not give rise to a conflict of interest requiring new counsel. To the extent petitioner has presented these underlying disagreements to the state and federal court in the form of claims for ineffective assistance of counsel, his claims have been uniformly and properly rejected. Habeas relief is unwarranted.
The state court rejected petitioner's claim. Petitioner fails to show that the state court's determination was contrary to, or involved an unreasonable application of, federal law or was an unreasonable determination of the facts based on the evidence in the record. Respondent is entitled to summary judgment dismissal of this claim.
On August 7, 2015, petitioner filed an affidavit and a self-styled amended habeas petition. (Docket Entry No.8.) In the amended petition, petitioner raised the following three additional claims:
Petitioner did not seek leave to file the amended petition, and the Court struck the petition a week after it was filed. Petitioner did not subsequently request leave to file the amended petition. Instead, on November 12, 2015, after the motion for summary judgment and petitioner's response were filed, petitioner re-filed the same amended petition, adding a memorandum in support. (Docket Entry No. 18.) Petitioner again did not seek leave to file the amended petition. Moreover, petitioner did not include a certificate of service showing service of the pleadings on counsel for respondent. The re-filed amended petition and the memorandum in support (Docket Entry No. 18) are
In the interest of justice, the Court has considered the three claims raised in the amended petition. The Court has not, however, given consideration to petitioner's self-serving affidavit filed with the amended petition, because it was not presented to the state court and does not constitute part of the state court's determination or record. See Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011).
Petitioner's first and second additional claims are little more than permutations of claims already rejected by this Court, and do not warrant habeas relief. Petitioner's third additional claim, on the other hand, is a wholly new claim asserting actual innocence. However, free-standing assertions of actual innocence do not raise cognizable federal habeas claims. Herrera v. Collins, 506 U.S. 390, 404-05 (1993); Reed v. Stephens, 739 F.3d 753, 766 (5th Cir. 2014) (noting that actual innocence is not an independently cognizable federal habeas claim). Habeas relief is unwarranted under this third claim.
Respondent's motion for summary judgment (Docket Entry No. 13) is
