ANDREW W. AUSTIN, Magistrate Judge.
TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrates.
Petitioner Kevin Todd Hardin is pro se and has paid the full filing fee in this matter. Before the Court are Petitioner's Application for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Docket Entry "DE" 1), Respondent's Answer (DE 9), and Petitioner's Reply (DE 11). For the reasons set forth below, the undersigned recommends that the Application for Writ of Habeas Corpus be
Respondent has custody of Hardin pursuant to a judgment and sentence imposed by the 424th District Court of Burnet County, Texas. A jury found Hardin guilty of evading arrest with a vehicle, and concluded Hardin had two prior felony convictions. The jury assessed punishment at a term of 99 years' imprisonment. In his habeas action Hardin alleges he was subjected to trial court error and prosecutorial misconduct, and that he was denied his right to the effective assistance of trial and appellate counsel.
The following facts are taken from the State's brief in Hardin's appeal:
(DE 10-10 at 9-10).
A grand jury returned an indictment on August 6, 2013, charging Hardin with one count of using a vehicle to flee from a peace officer to avoid arrest. (DE 10-4 at 4).
At Hardin's trial the State presented the testimony of Officer Ortiz and a "dash cam" video of the pursuit of Hardin and his arrest. (DE 10-7 at 15-22). The State rested after the presentation of this evidence. (DE 10-7 at 44). Hardin did not testify or present any evidence in his defense. Id. Defense counsel argued to the jury that there was insufficient evidence to identify Hardin as the driver of the fleeing vehicle. (DE 10-7 at 54-56). The jury deliberated for approximately two and a half hours. (DE 10-4 at 62). During deliberations the jury asked to review the dash cam video, which they were permitted to do. (DE 10-7 at 60). The jury also requested the police reports of the incident, which was denied because the reports had not been admitted as evidence. Id. The jury also requested a transcript of Officer Ortiz' testimony. This request was denied:
(DE 10-7 at 61). The jury then returned a verdict of guilty as charged. (DE 10-7 at 62).
Hardin elected to have the jury assess his punishment. (DE 10-6 at 23). He pleaded not true to the indictment's enhancement allegations. (DE 10-8 at 7-8). During the sentencing phase, in addition to providing evidence of Hardin's convictions on two charges of burglary of a habitation, the State presented certified proof of three other convictions—a misdemeanor failure to identify and two state jail felony theft convictions. (DE 10-8 at 14-17; DE 10-9 at 14-37). Hardin presented two character witnesses at the sentencing phase of his proceedings, who testified as to his good character. (DE 10-8 at 21-27, 33-38). Hardin's counsel, without objection, urged the jury to ignore the evidence as to one of the enhancement allegations and to assess punishment at less than 25 years to life. (DE 10-8 at 55-56).
During argument on sentencing, the prosecutor made reference to the parole language contained in the charge to the jury. (DE 10-7 at 49-5, 59). The following colloquy resulted:
Hardin v. State, 2015 WL 1514483, at *1 (Tex. App.-Austin 2015, pet. ref'd). After deliberations, the jury found both enhancement allegations to be true and assessed punishment at a term of 99 years' imprisonment. (DE 10-4 at 56).
Hardin was appointed appellate counsel, who filed a motion for a new trial. (DE 10-4 at 60-61). The motion for a new trial was denied by operation of law. Hardin then appealed his conviction and sentence. Hardin asserted the trial court erred by overruling his objections to the prosecutor's comments during closing argument. Hardin, 2015 WL 1514483, at *1. The Texas Court of Appeals denied relief, finding some of the prosecutor's comments improper, but finding the error harmless. Id. at *2-*3. The Texas Court of Criminal Appeals denied a petition for discretionary review.
Hardin filed an application for a state writ of habeas corpus, asserting he was denied the effective assistance of trial and appellate counsel. (DE 10-22 at 12-13, 16). Hardin asserted his appellate counsel was ineffective because he failed to file a substantive motion for a new trial and failed to confer with trial counsel regarding a motion for a new trial. (DE 10-22 at 16). Hardin further asserted trial court error, raising the same claim denied in his appeal. (DE 10-22 at 14). Hardin also argued the trial court erred by failing to re-instruct the jury as to how to obtain a witness' testimony during deliberations. (DE 10-22 at 15). Hardin further alleged prosecutorial misconduct, arguing the prosecutor improperly bolstered the credibility of Officer Ortiz and that the prosecutor's comments regarding parole were improper. (DE 10-22 at 18).
The state trial court ordered Hardin's trial counsel to provide an affidavit responding to Hardin's claims of ineffective assistance of counsel. (DE 10-22 at 45). Trial counsel provided the requested affidavit, (DE 10-22 at 46-47), which stated in part:
(DE 10-22 at 49). The state habeas trial court found Hardin's claims unfounded, concluding:
(DE 10-22 at 51).
The state habeas trial court recommended the application for a state writ of habeas corpus be denied. Id. The Texas Court of Criminal Appeals denied the application for state habeas relief without written order on the findings of the trial court. (DE 10-21).
Hardin alleges that he is entitled to habeas relief because: (1) he was denied the effective assistance of counsel; (2) the trial court erred by allowing the prosecutor to ask the jury to consider the effect of parole law on his sentence; (3) appellate counsel rendered ineffective assistance by failing to confer with trial counsel and pursue a hearing on the motion for a new trial; and (4) the prosecutor committed misconduct by improperly bolstering the State's witness and by arguing parole law at sentencing.
Respondent admits that the petition is timely and not successive and that Hardin's claims were exhausted in the state courts. (DE 9 at 5). Respondent argues that Hardin's prosecutorial misconduct claim is procedurally barred and that his other claims are without merit. Id.
The Supreme Court summarized the basic principles established by the Court's many cases interpreting the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA") in Harrington v. Richter, 562 U.S. 86, 97-100 (2011). Section 2254(d) permits the granting of federal habeas relief in only three circumstances: (1) when the state court's decision "was contrary to" federal law as clearly established by the holdings of the Supreme Court; (2) when the state court's decision involved an "unreasonable application" of such law; or (3) when the decision "was based on an unreasonable determination of the facts" in light of the record before the state court. Id. at 100, citing Williams v. Taylor, 529 U.S. 362, 412 (2000).
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Thaler v. Haynes, 559 U.S. 43, 47 (2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003). Under the unreasonable application clause of § 2254(d), a federal court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, "but unreasonably applies that principle to the facts of the prisoner's case." Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000) (quotation marks and citation omitted). A reviewing federal court presumes the state court's factual findings are sound unless the petitioner rebuts the "presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240 (2005); Maldonado v. Thaler, 625 F.3d 229, 236 (5th Cir. 2010). This presumption extends to both express findings of fact and to implicit findings of fact by the state court. Register v. Thaler, 681 F.3d 623, 629 (5th Cir. 2012).
Ineffective assistance of counsel claims are analyzed under the well-settled standard set forth in Strickland v. Washington, 466 U.S. 668 (1984):
Id. at 687. A habeas petitioner has the burden to prove both prongs of the Strickland test. Rogers v. Quarterman, 555 F.3d 483, 489 (5th Cir. 2009); Blanton v. Quarterman, 543 F.3d 230, 235 (5th Cir. 2008). When deciding whether counsel's performance was deficient, the Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 at 688-89. Federal habeas courts presume that counsel's choice of trial strategy is objectively reasonable unless clearly proven otherwise. Id. at 689. Counsel's strategic choices, made after a thorough investigation of the law and facts relevant to plausible options, are virtually unchallengeable. Strickland, 466 U.S. at 673; Pape v. Thaler, 645 F.3d 281, 289-90 (5th Cir. 2011).
Counsel's performance cannot be considered deficient or prejudicial if counsel fails to raise a non-meritorious argument. Turner v. Quarterman, 481 F.3d 292, 298 (5th Cir. 2007); Parr v. Quarterman, 472 F.3d 245, 256 (5th Cir. 2006). Trial counsel's failure to object does not constitute deficient representation unless a sound basis exists for objection. Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997). If a state appellate court found a claim based on state law without merit, counsel's failure to assert the claim cannot be found prejudicial. Garza v. Stephens, 738 F.3d 669, 677 (5th Cir. 2013). Additionally, given the weight of the evidence against Hardin, he has not established that any of the alleged errors were prejudicial. Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (noting the weight of the evidence of guilt in finding alleged deficient performance of counsel not prejudicial); Pondexter v. Quarterman, 537 F.3d 511, 525 (5th Cir. 2008) (same).
Hardin contends counsel did not adequately investigate his case. One of Hardin's two counsel filed a sworn affidavit in his state habeas action. (DE 10-22 at 46-49). In the affidavit counsel details her investigative efforts, including retaining a private investigator and reviewing discovery with him. (DE 10-22 at 46-47). The state trial court considered the affidavit in denying relief on this claim, and impliedly found counsel's statements credible. (DE 10-22 at 51). The state habeas court's factual determinations, including credibility findings, are entitled to a presumption of correctness. Miller v. Thaler, 714 F.3d 897, 903 (5th Cir. 2013); Richards v. Quarterman, 566 F.3d 553, 563-64 (5th Cir. 2009). Because Hardin has not rebutted the state court's implied finding of fact that counsel adequately investigated his case with clear and convincing evidence, he has failed to establish the factual predicate for this claim.
Additionally, a review of the record in this matter reveals counsel had a thorough command of the facts and law relevant to Hardin's case, and that counsel had developed a reasonable trial strategy given the weight of the evidence against Hardin. Hardin has not met his burden of establishing his counsel's performance was deficient or prejudicial and, accordingly, the state court's decision denying relief on this claim was not contrary to or an unreasonable application of Strickland.
Hardin contends counsel should have requested funds for a private investigator. On this point, Hardin's counsel states in her affidavit:
(DE 10-22 at 47-48). Hardin makes only a conclusory allegation that he was prejudiced because counsel used Mr. Green's services as an investigator rather than hiring a different investigator. "[M]ere conclusory allegations do not raise a constitutional issue in a habeas proceeding." Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983).
Hardin also contends that his attorneys did not meet with him adequately. On this point, the affidavit states:
(DE 10-22 at 48). The state trial court found counsel's statements credible. The state habeas court's factual determinations, including credibility findings, are entitled to a presumption of correctness. Miller, 714 F.3d at 903. Once again, Hardin fails to rebut these findings. Additionally, Hardin makes only conclusory allegations of any prejudice, which are insufficient to meet his burden.
Hardin alleges counsel was ineffective because she did not convey all plea offers to him. Counsel averred in her affidavit:
(DE 10-22 at 45, 48). The state trial court found counsel's statements credible and Hardin offers no rebuttal. This claim has no merit.
Hardin argues counsel was ineffective because counsel filed a request for discovery containing a typographical error. Trial counsel addressed this claim in Hardin's state habeas action:
(DE 10-22 at 46). With regard to the claim of no harm having been done by the typo, Hardin offers no proof to the contrary, making instead only a conclusory allegation that the type constituted unconstitutional ineffective assistance of counsel. The lack of any evidence of prejudice arising from this error dooms this claim.
Hardin contends trial counsel's performance was deficient because counsel did not request a bill of exception with regard to the prosecutor's invocation of parole during sentencing argument. Hardin raised this claim in his state habeas action, and in that action his trial counsel averred:
(DE 10-22 at 49). The attorney is correct. No bill of exception was needed, and thus there was no deficient performance in not requesting one.
Hardin asserts trial counsel failed to subpoena one of the arresting officers, Officer Conchola, to testify at trial. The state court could properly rely on the affidavit of Hardin's counsel in his state habeas action when denying relief on this claim. The affidavit states:
(DE 10-22 at 45). Habeas relief on claims of uncalled witnesses is generally unwarranted. Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) ("[The Fifth Circuit] has repeatedly held that complaints of uncalled witnesses are not favored in federal habeas corpus review because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have stated are largely speculative."). To establish that they were prejudiced by counsel's failure to call a witness, a habeas petitioner must demonstrate "not only that the testimony would have been favorable, but also that the witness would have testified at trial." Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002), quoting Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985).
Hardin makes only a conclusory allegation that this witness would have testified in his favor. But, other than his speculation, Hardin has not presented any evidence that the terminated officer would have testified favorably at his trial. Additionally, because this witness' purported assault of Hardin was recorded by the dash cam, there is little likelihood that this witness would have testified, as doing so would likely have incriminated him. Further, as trial counsel has noted, the jury saw the beating on the dash cam. Accordingly, Hardin has not established any prejudice arising from this alleged error.
Because Hardin has not shown counsel's performance was deficient in this regard or any prejudice arising from the alleged deficiency, the state court's denial of this claim was not contrary to or an unreasonable application of Strickland.
Finally, Hardin argues his attorney should have objected to the trial court's refusal to re-instruct the jury on how to request Officer Ortiz's testimony. Hardin raised this claim in his state habeas action and it was rejected. The jury had been instructed as to how to have this testimony repeated, and it is presumed that the jury obeys its instructions and that the jury understands a judge's answer to its question. Weeks v. Angelone, 528 U.S. 225, 234 (2000) ("To presume otherwise would require reversal every time a jury inquires about a matter of constitutional significance, regardless of the judge's answer."). Moreover, Hardin fails to show how he was prejudiced by the lack of an objection. There is no indication in the record that, had counsel objected, the trial court would have re-instructed the jury. In fact, the prosecutor had just suggested that the trial judge remind the jury of the earlier instruction, and the trial judge rejected that suggestion. There is no reason to believe that an objection from defense counsel would have changed the judge's mind.
Hardin contends the trial court erred by allowing the prosecutor to ask the jury to consider the effect of parole law on his sentence, despite defense counsel's objection. To warrant relief, trial court error must do more than merely affect the verdict; it must render the trial as a whole fundamentally unfair. Bailey v. Procunier, 744 F.2d 1166, 1168 (5th Cir. 1984); Nelson v. Estelle, 642 F.2d 903, 907 (5th Cir. 1981). To demonstrate an error by the trial court rendered a trial fundamentally unfair requires showing there is a reasonable probability that the verdict would have been different had the trial been conducted properly. Rogers v. Lynaugh, 848 F.2d 606, 609 (5th Cir. 1988). The Supreme Court has held that on federal habeas review of state court convictions, a federal harmless error standard applies. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). For trial court error to be harmful it must have "had substantial and injurious effect or influence in determining the jury's verdict." Id. at 637; Shaw v. Collins, 5 F.3d 128, 132 (5th Cir. 1993). Under this standard, a petitioner is not entitled to federal habeas relief based on trial error unless he can establish that the error resulted in actual prejudice. Brecht, 507 U.S. at 637.
The Texas Court of Appeals concluded that, although the prosecutor's comments were improper under state law, any error was harmless. The state appellate court determined: "Balancing these three factors, we conclude that the prosecutor's improper comments were harmless and did not affect Hardin's substantial rights. We therefore overrule Hardin's sole point of error." Hardin, 2015 WL 1514483, at *3-4. Hardin has not demonstrated that the appellate court's determination that the error was harmless was incorrect or contrary to or an unreasonable application of federal law. Accordingly, Hardin is not entitled to habeas relief on this claim.
Hardin asserts appellate counsel rendered ineffective assistance by failing to confer with trial counsel before his motion for a new trial expired by operation of law and by allowing the motion for a new trial to expire by operation of law. Hardin makes only a conclusory statement that he was prejudiced by appellate counsel's failure to consult with trial counsel and by appellate counsel's failure to pursue the motion for a new trial. He does not allege what meritorious claim might have been presented in the motion for a new trial. Neither does Hardin state what information trial counsel could have provided to appellate counsel that would have resulted in a different outcome on the motion for a new trial. Because conclusory allegations are insufficient to support a claim of ineffective assistance of counsel, Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998), Hardin is not entitled to relief on this claim. Further, Hardin has failed to demonstrate he suffered any prejudice from the lack of a conference, a prerequisite to relief. Smith v. Robbins, 528 U.S. 259, 286 (2000).
Hardin makes allegations of prosecutorial misconduct, alleging the prosecutor committed misconduct by improperly bolstering the State's witness, Officer Ortiz, and by arguing parole law at sentencing.
On state habeas review, the habeas trial court found these claims procedurally barred because the prosecutorial misconduct claims could have been, but were not, raised on direct appeal. The Texas Court of Criminal Appeals adopted this finding in denying relief. The state court's application of the procedural bar precludes the Court's review of the merits of Hardin's prosecutorial misconduct claims. Brewer v. Quarterman, 466 F.3d 344, 347 (5th Cir. 2006); Soria v. Johnson, 207 F.3d 232, 249, n.23, 24 (5th Cir. 2000). The only exception to this requires a petitioner to show "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). In reply to the answer to his petition Hardin does not offer any argument regarding the procedural default of his claims, and makes no attempt to show cause or prejudice. Therefore, the prosecutorial misconduct claims are procedurally barred and must be dismissed with prejudice.
It is, therefore,
An appeal may not be taken to the court of appeals from a final order in a habeas corpus proceeding "unless a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c) (1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, effective December 1, 2009, the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.
A certificate of appealability may issue only if a petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the requirement associated with a "substantial showing of the denial of a constitutional right" in Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected a petitioner's constitutional claims on the merits, "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. "When a district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
In this case, reasonable jurists could not debate the dismissal of the Hardin's section 2254 petition on substantive or procedural grounds, nor find that the issues presented are adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the Court shall not issue a certificate of appealability.
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. Battles v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the district court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153 (1985); Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996) (en banc).
