No. 3:97-CV-950-XUnited States District Court, N.D. Texas, Dallas Division
January 19, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
PAUL D. STICKNEY, United States Magistrate Judge
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONSI. NATURE OF THE CASE
Petitioner, a state inmate, filed a petition for writ of habeas corpus pursuant to Title 28, United States Code, Section 2254.
II. PARTIES
Petitioner, Edward Ray Alvarado, is in the custody of the Texas Department of Criminal Justice, Institutional Division. Respondent is Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division (TDCJ-ID).
III. PROCEDURAL HISTORY
A jury convicted Petitioner of murder, and the trial court assessed a sentence of forty-five years in the custody of TDCJ-ID. State v. Alvarado, No. 0401832D (213th Dist Court, Tarrant County, Tex., Feb. 4, 1992). A state appellate court affirmed the conviction Alvarado v. State, No. 2-92-077-CR (Tex.App. .— Fort Worth 1993, pet ref’d.). Petitioner filed two state applications for writ of habeas corpus The first application was denied by the Texas Court of Criminal Appeals without written order. Ex parte Alvarado, No. 27,454-01 (Tex.Crim.App. Dec. 14, 1994). The Texas Court of Criminal Appeals dismissed the second application for abuse of the writ. Ex parte Alvarado, No. 27,454-02 (Tex. Crim App. April 9, 1997). Petitioner filed a petition for writ of habeas corpus in this Court on April 24, 1997. Respondent filed a motion for summary judgment on September 25, 2000.
IV. RULE 5 STATEMENT
Respondent states that Petitioner has exhausted his state court remedies.
V. ISSUES
Petitioner raises the following issues:
1. His conviction is based on the perjured testimony of Aaron Aguilar; and
2. Trial counsel provided ineffective assistance by advising him to testify untruthfully and failing to investigate information contained in a pre-sentence report.
VI. STANDARD OF REVIEW
Under the AEDPA a federal court may not grant a writ of habeas corpus with respect to any claim that was rejected on the merits by a state court unless the state court’s adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of; clearly established Federal law, as determined by the Supreme Court of the United States;
or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C.A. § 2254(d).
This statute applies to all federal habeas corpus petitions which were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court’s disposition of the case on substantive rather than procedural grounds Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). The trial court considered a number of affidavits and made written findings of fact and conclusions of law. The Texas Court of Criminal Appeals denied relief without a written order. Ex parte Alvarado, No. 27,454-01 at cover. The AEDPA is applicable in this proceeding.[1]
The purpose and intent of § 2254(d) is to restrict the number of cases in which competent adjudications by state courts are subjected to open-ended and unfettered review by the federal courts For that reason, a state habeas court’s decision will generally not be considered “contrary to” clearly established federal law unless: (1) the court’s legal conclusion is in direct opposition to a prior conclusion of the United States Supreme Court on the same legal issue, or (2) the court reaches a different result than a prior decision of the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). Similarly, a state habeas court’s decision will not be considered an “unreasonable application” of clearly established federal law unless, notwithstanding the fact that the state court has correctly identified the controlling legal principles, the state habeas court applies those principles to the petitioner’s case in an unreasonable manner. Williams, 120 S.Ct. at 1523.
The AEDPA also obligates the federal habeas courts to afford the state habeas court’s factual determinations substantial deference. Indeed, the court must presume that the state habeas court’s factual determinations are correct, unless rebutted with clear and convincing evidence. See 28 U.S.C. § 2254 (e)(1). Petitioner has not, in this case, satisfied AEDPA’s rigorous standard for establishing error in the legal conclusions or factual determinations made by the state habeas court when adjudicating his claims.
VII. EXAMINATION OF THE ISSUES
A. Statement of the Facts
A brief overview of the facts is helpful in addressing Petitioner’s claims. As summarized by the state appellate court on direct review, the pertinent facts are as follows:
The history of this case began on April 14, 1984, when three teenage girls were en route to a friend’s house from a south Fort Worth nightclub. They were followed by as second vehicle whose occupants were Harry Rawlins and Garland Price. A traffic incident occurred during this journey when a silver car, driven by appellant, allegedly forced the car of the young women to swerve into another lane to avoid an accident with a third car.
At some point, Price and Rawlins pulled up next to the silver car and asked that appellant pull over. Both vehicles engaged in what the three young women called a “cat and mouse” game for several blocks. At one point, Rawlings threw a beer bottle at appellant’s car.
Shortly thereafter, as the three teenage girls neared their final destination, they saw appellant’s car and Price’s truck stopped at Grand and 14th streets in Fort Worth
Appellant testified that there were three men in the truck that evening. In the course of events, they shouted numerous racial slurs at him. He also testified that the driver of the truck attempted to run him off the road. When he got out of his car to go and speak to the occupants of the truck, Rawlings, the young man who was killed, uttered racial slurs at him and threatened to kill him with a knife. Appellant further testified that the other two men in the truck had baseball bats. Appellant said that he remembered fighting with Rawlings and that he received an injury to his leg for which he was treated later that night. The three teenaged girls testified they say appellant pull Rawlins out of the passenger side of the truck and stab him. Rawlins died shortly after this violent and tragic confrontation.
Alvarado v. State, at 1-2.
B. Perjured Testimony
Petitioner claims that the conviction should be vacated because it was based upon the perjured testimony of Aaron Aguilar. To prove a state’s due process violation based upon false or misleading evidence, a petitioner must show that (1) the evidence was false, (2) the evidence was material, and (3) the prosecution knew that the evidence was false Giglio v. United States, 405 U.S. 1150, 153-154, 92 S.Ct. 763, 765-66, 31 L.Ed.2d 104 (1972); Boyle v. Johnson, 93 F.3d 180, 186 (5th Cir. 1996) cert. denied, 519 U.S. 1120, 117 S.Ct. 968, 136 L.Ed.2d 853 (1997). Evidence is false if; inter alia, it is specifically misleading evidence important to the prosecution’s case in chief See Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431
(1974). False evidence is material only if there is any reasonable likelihood that it could have affected the jury’s verdict. Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996), cert. denied, 519 U.S. 1094, 117 S.Ct. 773, 136 L.Ed.2d 718 (1997). Aguilar testified that he had a conversation with Petitioner in which Petitioner stated, “I’ve killed someone else before. I did it with my own hand, and I didn’t even need a gun.” (Volume IV, Statement of Facts, “IV SF” at 247-48.) Aguilar further testified Petitioner told him, “While we were driving, they pissed us off so I did it.” (Id.) Aguilar also testified that in the Spring of 1990, he had a phone conversation with Petitioner in which Petitioner became angry. (Id) Aguilar testified Petitioner told him, “Look, I’m not playing with you, man. Tell me where [my sister’s] at. If you don’t tell me where she’s at, I’m going to come over and stab you like I did that white boy.” (Id. at 249.) Petitioner challenges the state habeas court’s factual findings that there is no evidence to support the allegation that a State’s witness, Aaron Aguilar, committed perjury when testifying at Applicant’s trial. (Ex parte Alvarado at 68.). He also challenges the finding that the State was not aware that the testimony of Aaron Aguilar was perjured. (Id. at 69.) Petitioner relies upon the Affidavit of Cynthia Alvarado, Petitioner’s sister. The Affidavit indicates that Aaron Aguilar admitted to a third party that he had fabricated the testimony against Petitioner to gain revenge against the Alvarado family for perceived wrongs concerning Petitioner’s treatment of Aguilar’s sister. The Court has reviewed the record in light of Petitioner’s claim. On habeas review, the state court ordered most of the Affidavit stricken as hearsay[2] (Ex parte Alvarado, at 67.) The Affidavit does not establish that Aguilar committed perjury.
Petitioner contends that without Aguilar’s testimony, the jury would have acquitted him based upon self-defense. The Court disagrees. Aguilar’s testimony was not material. Four eyewitnesses testified that they saw Petitioner attack the victim without provocation. (IV SF at 20-54, 144-75, 178-83; VI SF at 547-57, 563-82.) It was the eyewitness testimony which made Petitioner’s self-defense testimony incredible, not Aguilar’s testimony. Additionally, Petitioner’s boastful statements to Aguilar were not inconsistent with self defense. Even assuming the testimony was false and material, Petitioner presents no evidence the State knew the testimony was false. In sum, Petitioner has failed to meet any of the three elements for proving a due process violation based upon perjured testimony. The record does not support Petitioner’s claim of perjury, much less a claim that the prosecutor knowingly presented false material testimony. The Court finds that the state habeas court’s factual determinations in this regard are neither unreasonable nor rebutted by clear and convincing evidence to the contrary. Petitioner has not identified any actual record evidence, let alone clear and convincing evidence, that the factual conclusions of the state court were in error. Petitioner’s claims to the contrary are nothing more than supposition, which could not have served as the foundation of a rational jury finding. Petitioner’s first issue is meritless
C. Ineffective Assistance of Counsel
With respect to Petitioner’s second issue, the state habeas court’s legal analysis was appropriately premised upon Strickland v. Washington, 466 U.S. 668, 691, 104 S.C. 2052, 80 L.Ed.2d 674 (1984). To merit relief pursuant to § 2254 on a claim of ineffective assistance of counsel, a petitioner must demonstrate that his trial counsel’s performance fell below an objective standard of reasonableness and that this deficient performance prejudiced his defense. Strickland v. Washington, In assessing whether a particular counsel’s performance was constitutionally deficient, courts indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable assistance, or that under the circumstances the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689.
A petitioner’s failure to establish either prong of the Strickland test requires the court to find that counsel’s performance was not constitutionally ineffective; hence courts are free to review ineffective assistance claims in any order and need not address both the “deficient” and “prejudice” prong if one component is found lacking. Strickland, 466 U.S. at 697. The prejudice prong of the Strickland test requires the petitioner to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694.
1. Counsel’s Alleged Advice to Testify Falsely
Petitioner contends trial counsel provided ineffective assistance because he advised Petitioner to testify untruthfully that he had disposed of the knife at the scene. On habeas review, the state court found that in preparing Petitioner to testify at trial, his counsel did not advise Petitioner to perjure himself regarding how Petitioner may have disposed of the murder weapon. (Ex parte Alvarado at 68.) The court further found that the question of how Petitioner may have disposed of the murder weapon was tangential and irrelevant to the issue of whether Petitioner was guilty of the charged offense. (Id.) Petitioner has not overcome the presumption of correctness of the state court findings. The state court concluded that Petitioner did not prove by a preponderance of the evidence that his attorney provided ineffective assistance. (Id. at 69.) The Texas Court of Criminal Appeals denied relief (Id. at cover.) Petitioner failed to prove that counsel’s performance was deficient, much less that he was prejudiced by such a deficiency.
2. Counsel’s Alleged Failure to Investigate Damaging Information in the Presentence Report
Petitioner contends trial counsel should have objected to the assertion in the pre-sentence report that the Fort Worth Police Department believed Petitioner was a member of a local gang. Alvarado claims his father made a phone call to a member of the Fort Worth Gang Intelligence Unit, Sargent Hernandez. (Ex Parte Alvarado, at 26; Affidavit of Fred Alvarado.) Sargent Hernandez purportedly told Petitioner’s father that Petitioner was not an active gang member. Petitioner alleges his sentence would have been less harsh if counsel had investigated more thoroughly.
The range of punishment for murder was five years to ninety-nine years or life imprisonment and a fine of $10,000. TEX PENAL CODE ANN. § 12.32 (1984). The prosecutor argued in favor of a life sentence. The trial court noted at sentencing that Petitioner was not present at the sentencing hearing. (VIII SF at 20.) The court stated that “the Defendant has injured himself tremendously by absenting himself from this hearing,” and assessed punishment at forty-five years. (Id.) The sentencing court also noted that the jury considered the issues of voluntary mans laughter and self defense and returned a verdict of murder. (Id.) At sentencing, the court did not specifically mention the Fort Worth Police Department’s belief that Petitioner was a gang member.
Defense counsel’s affidavit in the state habeas proceeding provided, in pertinent part:
At the sentencing hearing, I asked both Fred Alvarado and the Defendant’s mother, Emma Alvarado, if they wanted to testify, and both were so perplexed at the outcome of the trial on guilt or innocence, neither wanted to testify at the punishment hearing. Of course, Defendant, Eddie Ray Alvarado was not himself present to testify that he was not a gang member.
(Ex parte Alvarado at 48.) 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. Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983) (on rehearing). Counsel’s decision not to emphasize the gang question falls well within the strong presumption of sound trial strategy required by Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
On habeas review, the State supplied the Affidavit of Juan DeLeon, an investigator with the Gang Unit of the Tarrant County district Attorney’s Office. He averred that Alvarado is listed as a member of a Fort Worth gang in the records of the Gang Intelligence Unit of the Fort Worth Police Department and was listed as a gang member at the time of his trial. (Ex parte Alvarado at 55.) The state court found that “statements in the pre-sentence investigation that reflected that Applicant was believed to be a gang member by the Gang Intelligence Unit of the Fort Worth Police Department had a factual basis in the records of the Gang Intelligence Unit.” (Id. at 68.) The state court concluded that Petitioner failed to prove his trial attorney rendered ineffective assistance. (Id. at 69.) The Texas Court of Criminal Appeals denied relief without written order. (Id. at cover.) Petitioner has not shown that the state court’s denial of his two ineffective assistance of counsel claims was in conflict with Strickland or that it was based upon an unreasonable determination of the facts in light of the evidence. Accordingly, the petition for writ of habeas corpus on grounds of ineffective assistance of counsel should be denied.
RECOMMENDATION
Petitioner has failed to make a substantial showing of the denial of a federal right. Respondent is entitled to judgment as a matter of law. Accordingly, Respondent’s Motion for Summary Judgment should be granted, and the petition for writ of habeas corpus should be denied.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party’s failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Am, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being sewed with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en hanc)