LEWIS v. COCKRELL (N.D.Tex. 2003)

No. 3:01-CV-0926-HUnited States District Court, N.D. Texas, Dallas Division
April 8, 2003

FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
PAUL D. STICKNEY, United States Magistrate Judge

Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:

Parties:

Petitioner is an inmate in the custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.

Procedural History:

Petitioner challenges Respondent’s custody of him pursuant to a state court judgment and eighty-year sentence for murder. State v. Lewis, No. R-9572774-LM (194th Dist. Court of Dallas County, Tex. April 12, 1996). Petitioner’s conviction was affirmed on appeal. Lewis v. State, No. 05-96-00735-CR (Tex.App.-Dallas, 1999, pet. ref’d)(unpublished). The Texas Court of Criminal Appeals refused Petitioner’s request for discretionary review. Lewis v. State, PDR No. 1533-99. Petitioner filed a state application for writ of habeas corpus. Ex parte Lewis, No. 48, 884-01 (Tex.Crim.App. April 11, 2001). The Texas Court of Criminal appeals denied the application without written order on the findings of the trial court without a hearing. Id. at cover. Petitioner filed his federal habeas corpus petition on May 9, 2001.[1] Respondent answered the petition on December 3, 2001.

Exhaustion of State Court Remedies:

Petitioner has exhausted his state court remedies.

Issues:

Petitioner raises the following claims:

1. Counsel provided constitutionally ineffective assistance by (a) failing to investigate and interview witnesses; (b) failing to investigate a plausible line of defense; (c) failing to present mitigating evidence; and (d) failing to communicate an offer of a plea bargain;
2. Petitioner was denied due process because the photo lineup was impermissibly suggestive; and
3. He was entitled to a jury instruction on a lesser included offense.

Standard of Review:

This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The pertinent terms of the AEDPA provide:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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 a State court proceeding.

28 U.S.C.A. § 2254(d).

The AEDPA 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 (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). Petitioner’s state habeas application, filed on June 19, 2001, was denied on the merits.

Under the “contrary to” clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412 (2000). Under the “unreasonable application” clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s case. Williams, 529 U.S. at 412. Federal habeas corpus review encompasses errors of constitutional magnitude, and habeas corpus relief may not be based upon errors of state law. 28 U.S.C. § 2254(a);[2] Estelle v. McGuire, 502 U.S. 62, 67
(1991). Clearly established federal law “refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. A claim of ineffective assistance of counsel is a mixed question of law and fact and should be reviewed under the “contrary to” and “unreasonable application” prong of 28 U.S.C. § 2254(d). Valdez v. Cockrell, 274 F.3d 941, 946
(citing Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000); Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997)).

Statement of Facts

Lewis shot Esteban Rodriguez once in front of witnesses, and Rodriguez died from the gunshot wound. Marcus Cisneros testified that on February 8, 1995, he was outside his apartment when he noticed a 1972 Mercury Cougar with four male occupants drive up to and stop at the apartment complex’s dumpster. Rodriguez, who was the apartment security guard, went to the car and engaged its occupants in a conversation. Cisneros could not hear what was being said, but it appeared to him that the men were arguing with Rodriguez. Cisneros then saw the passenger side door open and someone kick Rodriguez. A black male who Cisneros later identified as Lewis quickly got out of the car and engaged Rodriguez in a fist fight. When Rodriguez stepped back from the fight, Lewis shot him from a distance of approximately five feet. Lewis then smashed Rodriguez in the head with his gun before returning to the car. Rodriguez fell to the ground face first and never moved again. At this point the automobile was driven past Cisneros again and out of the apartment complex.
Marcus Johnson was another witness to the killing. He testified that he also was outside his apartment and witnessed Rodriguez approach the Mercury Cougar. He then saw Rodriguez fighting with a black man wearing a Dallas Cowboys Jacket. The man pulled out a gun and Rodriguez stepped back from the fight. At this pont, as Johnson recalled it, the assailant first hit Rodriguez on the head and then shot him. Johnson was quite sure that Rodriguez never had a chance to touch the weapon. In response to other questioning Johnson stated that Rodriguez initially backed off of the fight when the man pulled his gun, but then returned and was shot. Johnson also saw Rodriguez try to grab the weapon, but Rodriguez physically and logistically could not reach it. Rodriguez fell and shortly stopped breathing.
A third witness, Jermaine Hunter, heard, but did not see, the shot being fired. Upon hearing it he immediately turned his attention to the area the shot came from. He remembered the order of events to be that Lewis hit Rodriguez in the back of the head after the shot had been fired.
Sophie Salinas testified that she saw Petitioner, a man she knew as “Butter,” get into the front seat of a big, long, red car with Margarito Nichols and Andre Cherry about two or three o’clock in the afternoon of the five o’clock killing. She unequivocally identified Petitioner both in the photographic lineup and in court. She knew Petitioner because she had seen him “hanging out” with her boyfriend, Margarito Nichols. Salinas identified a picture of the car which had been identified by other witnesses as the car driven by the killers. (Id.)
A trace evidence analyst testified that gunshot residue was not present on the clothing or hands of the decedent. This led her to believe that (1) the decedent did not fire a weapon, (2) the weapon did not deposit significant amounts of residue, or (3) the decedent washed his hands after the weapon was fired. The analyst further testified that after examining the decedent’s clothes, she estimated that he was at least four feet away from the end of the weapon that shot him. His hands were not within that four foot range or within 18 inches of the side of the weapon.
The medical examiner testified that he had approved the autopsy report of the decedent. He testified that the bullet entered the left side of the decedent’s chest, and then went through his left lung, his heart, his liver, and his small intestine. The bullet then exited his body on the right side of the trunk. The witness testified there was no gunpowder residue in the wound indicative of a contact wound or a close-range discharge. It was a rapidly fatal injury. Rodriguez died of a gunshot wound from a deadly weapon. He also suffered (1) facial injuries, consistent with his having fallen face first onto the concrete, and (2) blows to the back of his skull, consistent with his having been hit over the head with a handgun.

Petitioner’s Ineffective Assistance of Counsel Claims
The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. U.S. CONST., art., VI. 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, 466 U.S. 668, 691 (1984). 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.

Petitioner alleges that counsel provided ineffective assistance by failing to conduct a pretrial investigation and interview witnesses to the shooting. Petitioner names Sandra McKinzie, Marcus Johnson, Marcus Cisneros, Sophie Salinas, Andrew Harris, Juan Martinez, Carlos Cook, Frank Cook and Andre Cherry as witnesses counsel should have interviewed. However, he provides no information with respect to what the interviews would have revealed and how that would have changed the outcome of the trial. Additionally, he provides no evidence that they would have been available to testify and what their testimony would have been.

At the trial court’s request, Petitioner’s counsel provided an affidavit in the state habeas corpus proceeding. Counsel stated that she learned at the examining trial that Juan Martinez, Jermaine Hunter, and Marcus Cisneros were state witness, but she did not know their addresses. She stated she sent an investigator to try to locate them, but he was not able to find them. Martinez did not testify, and Counsel vigorously cross-examined both Hunter and Cisneros. Petitioner has not shown that he was prejudiced by Counsel’s failure to interview these witnesses before the trial.

Counsel stated that she also learned at the examining trial that anonymous tips were received concerning someone named “Odie” who was later identified as Margarito Nickles. Mr. Nickles gave a written statement in which he admitted being at the scene and driving the car. He also implicated Andre Cherry and Petitioner. Petitioner’s photo was then placed in a photographic lineup and later shown both to Jermaine Hunter and Marcus Cisneros who identified Petitioner. Margarito Nickles and Andre Cherry were both charged as co-defendants. Cherry’s attorney would not permit counsel to interview him. Counsel explained in her affidavit that Petitioner did not give her the names of any potential witnesses, so she did not know about McKenzie, Salinas, Harris, Carlos Cook and Frank Cook until the trial. Only Salinas testified, and Counsel effectively cross-examined her. Again, Petitioner has failed to show he was prejudiced by Counsel’s failure to interview these witnesses.

With respect to Petitioner’s claim that counsel did not investigate a plausible line of defense, counsel noted that Petitioner did not provide an alibi, or suggest facts which would lead to any other reasonable line of defense. Counsel vigorously attacked the identification process and attempted to impeach the witnesses’ identification of Plaintiff. Petitioner was originally charged with capital murder and counsel was successful in convincing the prosecution to drop the capital murder charge. Before the punishment phase of the trial, counsel asked Petitioner and his mother for the names of witnesses who could testify on his behalf. They failed to give counsel any names. Counsel presented Petitioner’s mother as a character witness. In support of his claim, Petitioner has submitted the affidavits of friends and relatives who aver that they would have testified he is a kind and loving person who should be given the minimum punishment in this case. Given Petitioner’s criminal history, Petitioner was not prejudiced by Counsel’s failure to call Petitioner’s friends and relatives as character witnesses. Such testimony would not have changed the results of the punishment phase of the trial.

Petitioner claims counsel failed to notify him of a plea bargain offer. Counsel and the prosecution say no such offer existed. The trial court found counsel to be a trustworthy individual. It further found the statements she made in her affidavit are worthy of belief. Based upon a thorough review of the application for writ of habeas corpus, the entire record and counsel’s affidavit, the trial court found counsel’s statements true, correct and dispositive of Petitioner’s claims of ineffective assistance of counsel.

After considering the evidence on habeas corpus review, the trial court found that counsel exercised all of the skill and expertise which one could reasonably expect of an attorney, and that Petitioner was not in any way denied his right to the effective assistance of counsel by his attorney. The trial court was in the best position to judge the credibility of the witnesses. Courts are reluctant to find ineffective assistance based upon complaints regarding uncalled witnesses. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). Whether or not to present a particular witness’s testimony is essentially trial strategy and within trial counsel’s domain. Id. Moreover, predictions of an uncalled witnesses’ testimony are largely speculative. See McCoy v. Cabana, 794 F.2d 177, 183 (5th Cir. 1986). Petitioner has not shown that he provided critical information which the attorney failed to investigate or that additional testimony would have changed the results of the trial See Burger v. Kemp, 483 U.S. 776, 795 (1987) (noting that “[c]ounsel’s action are usually based, quite properly, on . . . information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information.”) (quotin Strickland, 466 U.S. at 691). Petitioner failed to establish that the state court’s decision that counsel’s performance was neither deficient nor prejudicial resulted in a decision that was contrary to, or involved an unreasonable application of, Strickland; or 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.

Denial of Due Process By Impermissibly Suggestive Photo Lineup
Petitioner claims he was denied due process because the photo lineup shown to Cisneros and Hunter was impermissibly suggestive. At the time Detective Davison put together the photographic lineup, he was looking for a Black male, young, with no facial hair and a light complection. (II S.F. at 115.) In Simmons v. United States, 390 U.S. 377, 384 (1978), the United States Supreme Court established the standard for judging photographic identification procedures:

(A) pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Simmons, 390 U.S. at 384. It is the likelihood of misidentification that violates a defendant’s right to due process and not merely the existence of an impermissibly suggestive photographic procedure. Neil v. Biggers, 409 U.S. 188, 198 (1972). An “impermissibly suggestive” picture spread requires the exclusion of any in-court identification for which there was a “substantial likelihood of irreparable misidentification”. United States v. Sutherland, 428 F.2d 1152, 1155 (5th Cir. 1970). In United States v. Henderson, 489 F.2d 802, 805 (5th Cir. 1973), the Court determined that under Sutherland the Simmons standard becomes a two-step test: (t)he district courts are to determine separately (1) whether the procedures followed were “impermissibly suggestive”, and then (2) whether, being so, they created “a substantial risk of misidentification”. To make these determinations, the district courts, under Sutherland, are to conduct in camera hearings to inquire into the circumstances of challenged identification procedures.

Petitioner claims the photographic lineup was tainted because his was the only photograph in which the subject had “wild hair.” The trial court held a hearing outside the jury’s presence. (S.F. II, at 5). Detective Johnny Davison testified that he put together a photographic lineup of six photographs. (S.F. II, at 115). He said that he selected subjects with very similar physical characteristics. (Id.) The subjects were young black males with no facial hair and light complexions. (Id.; S.F. V, Exh. 26.) The hair lengths of the young males varied. Some men had short hair; others wore their hair a medium length; Petitioner’s hair was long. One man wore a baseball cap. Petitioner’s photograph did not depict him with “wild” hair.[3] Marcus Cisneros was an eyewitness to the shooting which occurred on February 8, 1995. The detective showed Cisneros six photos on March 30, 1995. (Id. at 15.) The detective asked Cisneros if he could identify the person who shot the deceased, but he did not say the perpetrator’s photograph was in the group of six photographs. (Id.). The detective did not suggest that he pick a particular photograph or try to influence him. (Id. at 17.) Cisneros selected Petitioner’s photograph. (Id. at 15.) That was the only time before trial that Cisneros viewed the photographs. Cisneros did not mention Petitioner’s hair at any time. The trial court held that the lineup was untainted. (Id. at 36.)

The shooting occurred at approximately 5 P.M. Cisneros testified that he was not far from the scene of the shooting, and it was still light outside. (S.F. II, at 9.) He testified that, through an open truck window, he saw the person who shot the deceased. (Id.) He had seen the person in the passenger seat of a car which drove by him before the shooting. (Id. at 11-12.) He recognized Petitioner as the man he saw drive off as a passenger in the car after the shooting. (Id. at 24.) He saw him well enough to recognize him if he saw him again. (Id. at 12.) He identified Petitioner in court. (Id. at 11.)

Petitioner contends that Hunter’s identification in the photographic lineup was tainted based entirely on Petitioner’s “long, wild hair.” Although Hunter testified out of the jury’s presence that Petitioner’s hair had an influence on his choice, he also testified that this was not the only reason he picked Petitioner’s photograph from the lineup on March 30, 1995. (S.F. III at 9-10.) Hunter stated he also recognized Petitioner based upon a side view of his face. (Id. at 10.) Hunter testified that the detective did not suggest that Petitioner was in the photo spread, tell him who to pick, tell him he had to pick someone, or otherwise influence his decision. (Id. at 5-6; 26-27.) From the lineup, Hunter identified Petitioner as the person in the right front passenger seat of the car. (Id. at 28.) Hunter did not identify Petitioner in court, despite his having picked Petitioner’s photograph from the lineup a year earlier.

Sophie Salinas testified that she saw Petitioner, a man she knew as “Butter,” get into the front seat of a big, long, red car with Margarito Nichols and Andre Cherry about two or three o’clock in the afternoon of the five o’clock killing. (S.F. II at 136-138.) She unequivocally identified Petitioner both in the photographic lineup and in court. Salinas testified that the detective did not suggest Petitioner’s photograph was in the lineup or that she should pick Petitioner’s photograph. She knew Petitioner because she had seen him “hanging out” with her boyfriend, Margarito Nichols. Nichols and Cheny were co-defendants. Salinas identified a picture of the car which had been identified by other witnesses as the car driven by the killers. (Id.)

As noted, the trial court found Petitioner was not subjected to an impermissibly suggestive identification procedure after hearings outside the jury’s presence. Only if the photographic spread is found to be impermissibly suggestive is the trial court in a position to consider whether it created a substantial risk of misidentification. On the facts there is no basis for concluding that the photographic spread was impermissibly suggestive; consequently, the trial court did not proceed to the second step in the analysis. As the Court reasoned in Sutherland, where the trial court does not find as a matter of law that the picture spread was objectionable, the defendant’s only recourse is to use the circumstances of the identification procedure for cross-examination purposes in order to attack the credibility of the identifying witness United States v. Sutherland, 428 F.2d at 1155. That is exactly what the defense counsel did in the present case. She cross-examined the witness, Cisneros, on both his out-of-court and in-court identifications of the defendant. She thoroughly cross-examined Hunter and Salinas as well. Once Cisneros and Hunter, and Salinas testified on these issues, it was for the jury to determine the weight to be given the witnesses’s identifications of Petitioner.

On habeas review, the trial court considered the record again and found that Petitioner was not subjected to an impermissibly suggestive identification procedure. This Court has once again reviewed the record and finds that Petitioner failed to show that the state court decision on habeas corpus review regarding the identification procedure 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.

The Trial Court’s Failure to Instruct the Jury on a Lesser IncludedOffense
Respondent correctly points out that a defendant has no federal constitutional right to an instruction on a lesser-included offense in a non-capital state trial. Valles v. Lynaugh, 835 F.2d 126, 127 (5th Cir. 1988); Alexander v. McCotter, 775 F.2d 595, 601 (5th Cir. 1985); Easter v. Estelle, 609 F.2d 756, 758 (5th Cir. 1980). Moreover, as a general rule, jury instructions which contain errors of state law do not form the basis for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 71-72
(1991). Additionally, under Texas law a defendant is entitled to a lesser included offense charge only if (1) the lesser included offense is within the proof necessary to establish the offense charged and (2) the record contains evidence that would permit a jury to decide that if the defendant is guilty, he is guilty of only the lesser offense. Aquilar v. State, 682 S.W.2d 556 (Tex.Crim.App. 1981). As the state appellate court noted, the facts adduced at trial do not support a charge of manslaughter because there is no evidence in the record that Petitioner unintentionally shot the deceased. Lewis, slip op. at 5. Both Johnson and Cisneros testified the deceased did not struggle with Petitioner over the gun because he was never close enough to grab it. Id. The record did not show the gun went off accidentally or unintentionally. Id. The trial court refused to reconsider on habeas corpus review this issue which the appellate court had already decided. The trial court’s failure to instruct the jury on this issue did not infect the trial with fundamental unfairness. Petitioner’s claim that the trial court should have instructed the jury on the lesser included offense of manslaughter does not entitle him to habeas corpus relief in this Court.

RECOMMENDATION
The Court recommends that the petition for writ of habeas corpus be DENIED.

INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a 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. Arn, 474 U.S. 140, 150 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served 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. Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).