Smith v. Davis
Filing
40
MEMORANDUM OPINION AND ORDER denying 28 MOTION for Evidentiary Hearing. A certificate of appealability is DENIED. The petition for a writ of habeas corpus (Dkt. 1) is DISMISSED.(Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
ALPHONSO SMITH,
TDCJ # 01952701,
Petitioner,
VS.
LORIE DAVIS,
Respondent.
§
§
§
§
§
§
§
§
§
March 28, 2019
David J. Bradley, Clerk
CIVIL ACTION NO. 3:16-CV-174
MEMORANDUM OPINION AND ORDER
Alphonso Smith, who proceeds pro se, is incarcerated in the Texas Department of
Criminal Justice–Correctional Institutions Division (“TDCJ”). Smith has filed a petition
for a writ of habeas corpus (Dkt. 1) seeking relief from a state court conviction.
Respondent Lorie Davis filed an answer (Dkt. 11) and a copy of the state court records
(Dkt. 12, Dkt. 13). Petitioner filed a response (Dkt. 29). Petitioner also has filed a
request for an evidentiary hearing (Dkt. 28) and numerous documents in support of his
petition (Dkt. 30; Dkt. 31; Dkt. 32; Dkt. 38; Dkt. 39). Having now considered the
petition, the briefing, all matters of record, and the applicable legal authorities, the Court
determines that the petition should be dismissed.
I.
BACKGROUND
A.
Procedural Background
Smith was convicted of evading arrest in 2014. He was tried before a jury in the
239th District Court of Brazoria County, Texas, Hon. Patrick Sebasta presiding, Cause
1 / 21
No. 71088 (Dkt. 12-1, at 125-26).1 On August 21, 2014, the jury sentenced him to
thirteen years in TDCJ (id.).
Smith appealed to the First Court of Appeals, which affirmed on July 2, 2015.
Smith v. State, No. 01-14-00727-CR, 2015 WL 4043021 (Tex. App.–Hou. [1st Dist.],
July 2, 2015); see Dkt. 13-1. Smith did not file a petition for discretionary review with
the Texas Court of Criminal Appeals (Dkt. 13-7).
On February 29, 2016, Smith filed a pro se application for state habeas relief
(WR-24,130-02),2 raising six claims of ineffective assistance of trial counsel (Dkt. 13-11,
at 8-25). On March 16, 2016, the trial court entered findings recommending that habeas
relief be denied (id. at 82). On April 20, 2016, the Texas Court of Criminal Appeals
denied relief without written order on the trial court’s findings (Dkt. 13-10).
On March 10, 2016, while his state habeas application was pending, Smith filed
another pro se habeas application (WR-24,130-03) challenging the same conviction (Dkt.
13-13, at 7-26). In addition to the six claims of ineffective assistance of counsel raised
in WR-24,130-02, Smith raised two additional ineffective assistance claims. On April 6,
2016, the trial court entered findings recommending that habeas relief be denied (id. at
71). On May 18, 2016, the Texas Court of Criminal Appeals denied relief without
written order (Dkt. 13-12).
On April 4, 2016, Smith filed a pro se state habeas application (WR-24,130-04)
1
Throughout this Memorandum, the Court’s citations to specific pages in the record refer
to the pagination of docket entries on the Court’s electronic case filing (“ECF”) system.
2
In 1992, Smith had filed an unrelated state habeas application (WR-24,130-01) (Dkt. 138, Dkt. 13-9).
2 / 21
challenging a 1983 robbery conviction in Brazoria County, Cause No. 14,608, for which
probation had been revoked in 1989 (Dkt. 13-15, at 18-35). On April 13, 2016, the trial
court entered findings recommending denial of habeas relief (Dkt. 13-16, at 42). The
Texas Court of Criminal Appeals dismissed the petition on May 25, 2016, stating
“sentence discharged” (Dkt. 13-14).
On June 30, 2016, Petitioner executed a pro se petition for a writ of habeas corpus
(Dkt. 1) in these proceedings.
B.
Factual Background
On August 19, 2014, Petitioner was found guilty of evading arrest. The appellate
court summarized the facts as follows:
On July 5, 2013, Officer N. Ross, of the Freeport Police Department, was
on patrol. While driving, he saw a car making a left-hand turn at an
intersection with a stop sign. The car did not come to a complete stop.
Officer Ross made eye contact with the person in the car as the person
drove through the intersection. Officer Ross turned around on the street and
began to follow the car. The driver began speeding, and Officer Ross
pursued. Eventually, the driver crashed. Appellant got out of the car, and
Officer Ross arrested him.
Before trial, the State amended its indictment against Appellant to include
an enhancement paragraph, alleging Appellant had previously been
convicted of aggravated robbery. Appellant filed a motion to quash the
enhancement paragraph, alleging that the prior conviction was void. After a
hearing a[t] trial, the trial court denied the motion.
During the guilt-innocence phase of the trial, the prosecutor asked Officer
Ross if he saw “the individual ... in that vehicle that night.” Officer Ross
testified that he made eye contact with him. Later the prosecutor asked
Officer Ross if the “individual who got out of that car that evening” was in
the courtroom. Officer Ross said yes, identifying Appellant.
Before trial, the trial court determined that Appellant was indigent.
Following trial, the trial court rendered a judgment of conviction against
3 / 21
Appellant. The judgment of conviction assessed attorney’s fees against
Appellant. The trial court also appointed appellate counsel, due to
Appellant’s indigence.
(Dkt. 13-1, at 2-3).
Before trial, the State had given notice of an enhancement allegation based on
Smith’s 1991 conviction for aggravated robbery (enhanced), Cause No. 22,623, 23rd
District Court of Brazoria County (Dkt. 12-1, at 27-28, 67-68). Trial counsel moved to
quash the enhancement paragraph (id. at 46-66, 69-71), arguing that the aggravated
robbery conviction in Cause No. 22,623 was void because it had been enhanced by
Smith’s 1983 conviction for robbery in Cause No. 14,608, 23rd District Court of Brazoria
County, which counsel also argued was void. Counsel’s argument that the robbery
conviction in Cause No. 14,608 was void was predicated on the fact that, at a proceeding
to amend Smith’s conditions of probation on March 26, 1987, Smith had not been
afforded an attorney (id. at 46-47).
Before the punishment phase, outside of the jury’s presence, the trial court heard
argument on Smith’s motion to quash the enhancement paragraph (Dkt. 12-6, at 102110). Trial counsel argued that both prior convictions were void:
THE COURT: . . . . The defendant has filed a motion to quash the
enhancement paragraph. And I’ll hear arguments on it at this time and
I’ll—on the motion to quash, from the defense first.
[TRIAL COUNSEL]: Okay. Judge, under the case law that I have
previously provided to the Court, . . . in Cause No. 14608, apparently Mr.
Smith’s probation terms and conditions were—was amended. At that time
that the probation was amended, there was an order that was entered by the
Judge and the probation officer. Mr. Smith was not present at that hearing;
no attorney, no defendant.
4 / 21
I believe under that case law, the Court said there is an exception to
whether or not you would—you waive that constitutional right. And the
exception is that the defendant did not have the opportunity to object to the
amending of that terms and conditions of probation.
Now, I believe that’s what we had here. He was not present. Counsel was
not present. So, therefore, we believe that that—that judgment and sentence
is void. And subsequently, when Mr. Smith went to trial on the 22623,
whatever that number is, the aggravated robbery, that same judgment was
entered or—the judgment of conviction was entered to enhance punishment
in that case. We believe that the judgment was void and because that—that
14608 was used for enhancement purposes in that lawsuit, then that made
that judgment void—voidable as well because of what transpired in 14608.
We’d ask the Court to quash the enhancement count under Brooks notice in
226—well, the aggravated robbery, Judge, 22623.
THE COURT: All right.
(id. at 102-103). The prosecutor argued that the judgment in Cause No. 14,608 was valid
and noted that Smith had counsel when his probation subsequently was revoked, even if
he had not had counsel when the conditions of probation were amended (Dkt. 12-6, at
104). The prosecutor further argued that the aggravated robbery conviction in Cause No.
22,623 “itself is a valid judgment” that had “nothing to do with the amendment of the
probation that occurred in 14608” (id. at 104). The trial court denied the motion to quash
(id. at 107). See id. at 108 (“So, as far as punishment evidence is concerned, I will—I’m
going to allow the testimony of the prior convictions assuming that they can be proven
up”).
The court then proceeded with the punishment phase. The jury sentenced Smith to
thirteen years in TDCJ, and the court entered judgment on August 21, 2014 (Dkt. 12-1, at
125-26).
5 / 21
On direct appeal, Smith raised three claims, including a claim that his trial counsel
had rendered constitutionally ineffective assistance when he failed to prove that the
conviction supporting the enhancement was void. The appellate court overruled the
issue, holding that Smith had not demonstrated prejudice under Strickland v. Washington,
466 U.S. 668 (1984), because he had not demonstrated that the conviction in Cause No.
14,608 was in fact void (Dkt. 13-1, at 11).
On state habeas review, Smith raised six claims of ineffective assistance of trial
counsel in WR-24,130-02 (Dkt. 13-11, at 8-25), and two additional claims of ineffective
assistance of trial counsel in WR-24,130-03 (Dkt. 13-13, at 7-26).
In both habeas
proceedings, the State argued in response to the application that, regardless of any
infirmity in Smith’s robbery conviction in Cause No. 14,608, the aggravated robbery
conviction in Cause No. 22,623 was valid and admissible as an enhancement (Dkt. 13-11,
at 33 (citing Legg v. State, 594 S.W.2d 429, 432-33 (Tex. Crim. App. 1980); Dkt. 13-13,
at 32 (same)). The State further argued that, because admission of the prior conviction in
Cause No. 22,623 was proper, trial counsel was not constitutionally ineffective in failing
to quash the enhancement (Dkt. 13-11, at 33; Dkt. 13-13, at 32). After taking notice of
the judicial filings in the prior proceedings, the trial court determined that the allegations
in the State’s answer were “correct” and recommended denial of relief on both
applications (Dkt. 13-11, at 82; Dkt. 13-13, at 71). The court’s findings for WR-24,13003 additionally stated that “the principle of laches bar[red] the Applicant from obtaining
relief for any error in cause no. 14,608, which is over 27 years old” (Dkt. 13-13, at 71).
6 / 21
The Texas Court of Criminal Appeals denied relief in both applications (Dkt. 13-10, Dkt.
13-12).
Smith’s petition for federal habeas relief raises four claims of ineffective
assistance of trial counsel (Dkt. 1).
II.
LEGAL STANDARDS
A.
Pro Se Pleadings
Federal courts do not hold pro se habeas petitions “to the same stringent and
rigorous standards as . . . pleadings filed by lawyers.” Hernandez v. Thaler, 630 F.3d
420, 426 (5th Cir. 2011) (internal quotation marks and citation omitted). “The filings of a
federal habeas petitioner who is proceeding pro se are entitled to the benefit of liberal
construction.” Id.
B.
The Anti-Terrorism and Effective Death Penalty Act
This federal petition for habeas corpus relief is governed by the applicable
provisions of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). See
Woodford v. Garceau, 538 U.S. 202, 205-08 (2003); Lindh v. Murphy, 521 U.S. 320,
335-36 (1997). Under the AEDPA, federal habeas relief based upon claims that were
adjudicated on the merits by the state courts cannot be granted unless the state court’s
decision (1) “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)
“was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S.
3, 7-8 (2002); Cobb v. Thaler, 682 F.3d 364, 372-73 (5th Cir. 2012).
7 / 21
Federal courts look to the “last reasoned opinion” as the state court’s “decision.”
Salts v. Epps, 676 F.3d 468, 479 (5th Cir. 2012); see Wilson v. Sellers, 138 S. Ct. 1188,
1192 (2018). “Where a state court’s decision is unaccompanied by an explanation,” and
the lower courts did not issue a reasoned opinion, “the habeas petitioner’s burden still
must be met by showing there was no reasonable basis for the state court to deny relief.”
Harrington v. Richter, 526 U.S. 86, 98 (2011); see Johnson v. Williams, 568 U.S. 289,
293 (2013) (holding that there is a rebuttable presumption that the federal claim was
adjudicated on the merits when the state court addresses some claims, but not others, in
its opinion).
Review under the AEDPA is “highly deferential” to the state court’s decision.
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). To merit relief under
AEDPA, a petitioner may not merely show legal error in the state court’s “decision.”
White v. Woodall, 517 U.S. 415, 419 (2014) (stating being “merely wrong” or in “clear
error” will not suffice federal relief under AEDPA). AEDPA review exists only to
“guard against extreme malfunctions in the state criminal justice systems.” Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (internal citation and quotation marks omitted).
“[F]ocus[ing] on what a state court knew and did,” Cullen v. Pinholster, 563 U.S. 170,
182 (2011), AEDPA requires inmates to “‘show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.’” Woodall, 572 U.S. at 419-20 (quoting Richter, 562 U.S. at 103). “If this
standard is difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102.
8 / 21
For questions of law or mixed questions of law and fact adjudicated on the merits
in state court, this Court may grant habeas relief under 28 U.S.C. § 2254(d)(1) only if the
state court decision “was contrary to, or involved an unreasonable application of, clearly
established” Supreme Court precedent. See Kittelson v. Dretke, 426 F.3d 306, 318 (5th
Cir. 2005). Under the “contrary to” clause, this Court may afford habeas relief if the state
court “reaches a legal conclusion in direct conflict with a prior decision of the Supreme
Court or if it reaches a different conclusion than the Supreme Court on materially
indistinguishable facts.” Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015)
(internal quotation marks and citations omitted).
To constitute an “unreasonable
application” of clearly established federal law, the state court’s determination “must be
objectively unreasonable, not merely wrong; even clear error will not suffice.” Woods,
135 S. Ct. at 1376 (internal citation and quotation marks omitted).
On factual issues, the AEDPA precludes federal habeas relief unless the state
court’s adjudication of the merits was based on an “unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.” See 28 U.S.C.
§ 2254(d)(2); Martinez v. Caldwell, 644 F.3d 238, 241-42 (5th Cir. 2011).
III.
ANALYSIS
Smith’s federal petition brings four claims of ineffective assistance of counsel,
alleging that trial counsel (1) failed to thoroughly investigate and present the information
in the prosecution’s file regarding Cause No. 14,608; (2) failed to adequately support and
litigate the motion to quash the enhancement; (3) failed to file a motion for continuance;
and (4) failed to subject the prosecution’s case to meaningful adversarial testing.
9 / 21
Respondent does not argue that Smith’s petition is time-barred or subject to the successor
bar. However, Respondent argues that Smith’s third and fourth claims are partially
unexhausted and are procedurally defaulted (Dkt. 11, at 2 n.1, 5-9).
Under Strickland v. Washington, 466 U.S. 668 (1984), a criminal defendant
claiming ineffective assistance of counsel must show that defense counsel rendered
deficient performance and that the defendant was prejudiced:
To demonstrate deficient performance, the defendant must show that, in
light of the circumstances as they appeared at the time of the conduct,
“counsel’s representation fell below an objective standard of
reasonableness” as measured by “prevailing professional norms.” There is
a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” . . . .
To demonstrate prejudice under Strickland, [the defendant] must show that
counsel’s deficient performance was “so serious as to deprive him of a fair
trial, a trial whose result is reliable.” This requires the showing of a
reasonable probability that but for counsel’s deficiencies, the result of the
proceeding would have been different.
Rhoades v. Davis, 852 F.3d 422, 431-32 (5th Cir. 2017) (quoting Strickland, 466 U.S. at
687-89, 694). Strickland defines a “reasonable probability” as “a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. This requires a
“substantial, not just conceivable, likelihood of a different result.” Pinholster, 563 U.S. at
189 (internal citation and quotation marks omitted). The petitioner’s burden to show a
“reasonable probability” of changed outcome is less than a preponderance:
The question is not whether the defendant would more likely than not have
received a different verdict . . . but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of confidence.
10 / 21
Kyles v. Whitley, 514 U.S. 419, 434 (1995); see United States v. Dominguez Benitez, 542
U.S. 74, 83 n. 9 (2004). The prejudice inquiry is focused on the “fairness of the trial and
the reliability of the . . . verdict in light of any errors made by counsel, and not solely the
outcome of the case.” White v. Thaler, 610 F.3d 890, 912 (5th Cir. 2010) (internal
citations and quotation marks omitted).
Review of counsel’s performance is deferential, and counsel enjoy a strong
presumption that their conduct is within the “wide range” of the bounds of professional
norms. Strickland, 466 U.S. at 689. A petitioner’s burden is to show “that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. at 687. Any “strategic decisions” made by trial
counsel “must be given a strong degree of deference.” Rhoades, 852 F.3d at 432.
On habeas review, when a state court has adjudicated a claim of ineffective
assistance of counsel on the merits, the petitioner bears an especially heavy burden. The
question is not whether the state court’s application of Strickland was incorrect, but rather
whether it was unreasonable.
The standards created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is doubly so. The
Strickland standard is a general one, so the range of reasonable applications
is substantial. Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness under
§ 2254(d). When § 2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.
Richter, 562 U.S. at 105 (internal citations and quotation marks omitted). See Trottie v.
Stephens, 720 F.3d 231, 240-41 (5th Cir. 2013) (“‘even a strong case for relief does not
11 / 21
mean the state court’s contrary conclusion was unreasonable’” (quoting Richter, 562 U.S.
at 102)).
The Court now addresses each of Petitioner’s four claims.
A.
Failure to Investigate and Adequately Present Infirmities in Smith’s
Prior Convictions (Claims 1 and 2)
Petitioner’s first and second claims both center on trial counsel’s alleged failure to
adequately challenge Smith’s 1983 robbery conviction in Cause No. 14,608. Smith
maintains that the conviction in Cause No. 14,608 was void because he was not afforded
counsel at a proceeding on March 26, 1987, at which the conditions of his probation were
amended. He further argues that his aggravated robbery conviction in Cause No. 22,623
also was void because it was enhanced by the conviction in Cause No. 14,608.
In his first claim, Smith argues that trial counsel was constitutionally ineffective
because counsel failed to conduct a thorough investigation of the information in the
prosecution’s file for Cause No. 14,608 (Dkt. 1, at 11-12).
Although Smith
acknowledges that trial counsel filed and argued a motion to quash, he appears to argue
that trial counsel failed to uncover evidence from the State’s file regarding which specific
conditions of probation were amended on March 26, 1987 (Dkt. 1, at 11-12).3 In his
3
Petitioner apparently argues that “Condition Z” for intensive supervision had been added
on March 26, 1987 but was not the basis for the subsequent revocation of his probation (id. at
11), and that trial counsel inadequately investigated materials in the State’s file regarding the
original terms of his probation. See id. at 11-12 (“It was this failure of counsel NOT conducting
a thorough investigation that prevented counsel . . . from presenting mitigating evidence . . .
[that] would have rebutted the State’s evidence that the original probated conditions in cause
# 14,608, was A through L”); id. at 12 (arguing that trial counsel failed to investigate and present
evidence “which would have shown when Petitioner’s probation was amended on March 26,
1987, at the summons hearing, the amendments were A through Z”). Smith also argues that trial
12 / 21
second claim, Smith argues that trial counsel failed to adequately research the
enhancement issue, did not call witnesses in support of his motion to quash the
enhancement,4 failed to offer exhibits other than the seven exhibits attached to the
motion, and failed to cite additional legal authority supporting the motion (id. at 13-15).
Smith presented these claims to the state habeas court (Dkt. 13-11, at 8-25; Dkt.
13-13, at 7-26). The state court determined that the State was “correct” when it argued
that the conviction in Cause No. 22,623 was a valid enhancement, regardless of any
infirmities with Cause No. 14,608, and that Petitioner had failed to demonstrate that his
trial counsel was ineffective (Dkt. 13-11, at 82; Dkt. 13-13, at 71). See Dkt. 13-11, at 33
(State’s filing in WR-24,130-02); Dkt. 13-13, at 32 (State’s filing in WR-24,130-03).
In these proceedings, Smith fails to demonstrate that his counsel’s performance
was deficient, as required by Strickland’s first prong. For the reasons provided by the
trial court (Dkt. 12-6, at 107-08), the appellate court (Dkt. 13-1, at 11), and the state
habeas court (Dkt. 13-11, at 82; Dkt. 13-13, at 71), the motion to quash the enhancement
lacked merit under Texas law.5 Despite the unfavorable legal authorities, counsel made a
counsel failed to investigate and present evidence that Smith’s additional prior conviction for
forgery had a different conviction date than Smith’s aggravated robbery conviction in Cause No.
22,623 (id.).
4
Smith argues that his trial counsel should have called witnesses including the probation
officer, clerk, and judge from the proceedings in Cause No. 14,608 (id. at 15).
5
The State’s briefing in state habeas proceedings relied on Legg v. State, in which the
Texas Court of Criminal Appeals held that “because [a prior criminal case] was tried to the court
and punishment was assessed by the court, it was not rendered void for enhancement purposes in
this case, even though it was enhanced by a void prior conviction.” Legg v. State, 594 S.W.2d
429, 433 (Tex. Crim. App. 1980) (citing Ex Parte Lucky, 571 S.W.2d 913 (Tex. Crim. App.
1978); Ex Parte Williams, 571 S.W.2d 26 (Tex. Crim. App. 1978)). Moreover, on direct appeal,
the court stated that Smith had not demonstrated that the conviction in Cause No. 14,608 was in
13 / 21
robust argument on Smith’s behalf, presenting a motion with seven exhibits and arguing
the motion before the trial court. His representation of Smith did not fall “below an
objective standard of reasonableness” as measured by prevailing professional norms. See
Rhoades, 852 F.3d at 431-32.
To the extent Smith argues that trial counsel should have conducted additional
investigation or research to support the motion to quash, his claim fails. As held in
Strickland, “counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691;
see Newbury v. Stephens, 756 F.3d 850, 873 (5th Cir. 2014); Ransom v. Johnson, 126
F.3d 716, 723 (5th Cir. 1997). “In any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in all the circumstances, applying
a heavy measure of deference to counsel’s judgments.”
Strickland, 466 U.S. at 691.
Courts take into account factors including “whether counsel has reason to believe that
pursuing certain investigations would be fruitless or even harmful; resource
constraints; and whether the information that might be discovered would be of only
collateral significance.” Hoffman v. Cain, 752 F.3d 430, 440 (5th Cir. 2014) (internal
quotation marks, citations, and footnotes omitted). To establish prejudice for failure to
investigate, “a petitioner must allege with specificity what the investigation would have
revealed and how it would have changed the outcome of the trial.” Miller v. Dretke, 420
fact void (Dkt. 13-1, at 11; see Ex Parte Douthit, 232 S.W.3d 69, 72 (Tex. Crim. App. 2007)
(under Texas law, a void conviction is one “in which the trial court lacked jurisdiction over the
person or subject matter or in which the trial judge lacked qualification to act in any manner”
(internal quotation marks and citation omitted))).
14 / 21
F.3d 356, 361 (5th Cir. 2005); see Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010).
In this case, given the Texas authority holding that the aggravated robbery conviction in
Cause No. 22,623 was valid as an enhancement even if the robbery conviction in Cause
No. 14,608 had been void, see Legg, 594 S.W.2d at 433, Petitioner has failed to show that
additional investigation would have been fruitful and has failed to show prejudice. See
Hoffman, 752 F.3d at 440; Miller, 420 F.3d at 361.
B.
Failure to Request Continuance (Claim 3)
In his third claim, Smith claims that trial counsel was ineffective because he failed
to file a motion for a continuance in order to investigate available impeachment evidence
(Dkt. 1, at 16-18, 21-22). Petitioner appears to argue that a continuance was necessary to
obtain better audio and video recordings from the prosecution, including recordings from
a 911 call and from the vehicle of the officer who arrested him (id. at 16-18). He alleges
that the information would have been useful in challenging the testimony of the arresting
officer, among other uses (id. at 17-18).
Respondent argues that this claim is not fully exhausted and is procedurally
defaulted. See Dkt. 11, at 6 (“Though [Smith] did fault his attorney for failing to file a
motion for continuance, he mentioned nothing about available impeachment evidence
that his attorney failed to discover in his state writs”). Under the exhaustion doctrine, the
AEDPA precludes federal relief on constitutional challenges that an inmate has raised for
the first time in federal court. See 28 U.S.C. § 2254(b)(1). To comply with exhaustion, a
petitioner must “fairly present his legal claim to the highest state court in a procedurally
proper manner.” Nickleson v. Stephens, 803 F.3d 748, 753 (5th Cir. 2015) (quotation
15 / 21
omitted). The federal claim “must be the substantial equivalent of the claim brought
before the State court.” Young v. Davis, 835 F.3d 520, 525 (5th Cir. 2016) (internal
quotation marks and citation omitted).
As a corollary to exhaustion, the federal
procedural default doctrine requires inmates to litigate claims in compliance with state
procedural law. See Dretke v. Haley, 541 U.S. 386, 392 (2004); Coleman v. Thompson,
501 U.S. 722, 729 (1991). If a petitioner with an unexhausted claim would be barred
from returning to state court by Texas’ abuse of the writ doctrine, TEX. CODE CRIM.
PROC. art. 11.07 § 4, the claim is barred under the federal procedural default doctrine.
Young, 835 F.3d at 525; Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997). To
overcome the default and obtain federal habeas review, a petitioner must demonstrate
either “cause for the default and actual prejudice as a result of the alleged violation of
federal law,” or that “failure to consider the claims will result in a fundamental
miscarriage of justice.” Williams v. Thaler, 602 F.3d 291, 307 (5th Cir. 2010) (internal
citations and quotation marks omitted).6
In his response, Smith maintains that he exhausted his claim because he “squarely
presented” the substance to the state courts. See Dkt. 29, at 9 (Petitioner “presented two
(2) habeas applications that counsel failed to file a motion for continuance to investigate
evidence obtained the morning of trial”). Smith also argues that any lack of exhaustion is
6
The “fundamental miscarriage of justice” exception to procedural default is limited to
cases in which a petitioner demonstrates that a constitutional violation has probably resulted in
the conviction of one who is actually innocent. Garza v. Stephens, 738 F.3d 669, 675 n.3 (5th
Cir. 2013). Smith has not asserted actual innocence.
16 / 21
due to the “failures” of the state habeas court to address the issue or to request an
affidavit from trial counsel (id. at 9-10).
To the extent Smith’s claim is unexhausted or partially unexhausted because it
relies on potential impeachment evidence, the claim is procedurally defaulted.
See
Young, 835 F.3d at 525. Smith would be barred by the abuse of the writ doctrine, see
TEX. CODE CRIM. PROC. art. 11.07 § 4, if he were now to present the claim to the Texas
Court of Criminal Appeals. Smith has not argued either cause or prejudice sufficient to
overcome the default and has not demonstrated that a fundamental miscarriage of justice.
See Williams, 602 F.3d at 307.
Additionally, Smith does not demonstrate ineffective assistance of trial counsel
under Strickland standards. Although Petitioner makes cursory allegations that he was
prejudiced by trial counsel’s failure to seek a continuance (Dkt. 1, at 17-18; Dkt. 29, at
26), he does not identify any specific information that might have been uncovered during
additional investigation.7 Because Smith does not identify any evidence that would have
altered the outcome of his trial, his claim fails under Strickland. See Rhoades, 852 F.3d
at 432; Hoffman, 752 F.3d at 440; Miller, 420 F.3d at 361.
C.
Failure to Challenge State’s Evidence (Claim 4)
In his fourth claim, Smith claims that trial counsel was ineffective because he
failed to subject the prosecution’s case to meaningful adversarial testing when he allowed
the prosecutors to “present a meritorious defense and commit a Brady violation” (Dkt. 1,
7
Smith asserts that trial counsel should have obtained the 911 call and other recordings
(Dkt. 1, at 17-18; Dkt. 29, at 26), but does not explain what information these recordings would
have yielded or how the information would have impacted the trial.
17 / 21
at 19-22; Dkt. 29, at 27-31). Smith does not clearly identify the defense on which his
claim relies, although he makes multiple arguments about the enhancement of his
conviction. Smith also does not identify the particular Brady violation or Brady material
on which his claim relies (Dkt. 1, at 21; Dkt. 29, at 28). See Brady v. Maryland, 373 U.S.
83 (1963).
Respondent argues that this claim is not fully exhausted and is procedurally
defaulted because, “though Smith argued that his attorney failed to subject his case to
meaningful adversarial testing [in his] state writ, he did not blame his attorney for the
prosecutor’s meritorious defense or allege that his attorney allowed the prosecutor to
commit a Brady violation” (Dkt. 11, at 6-7). Smith maintains that he exhausted his claim
because he presented the substance to the state courts but does not make any specific
argument identifying the “meritorious defense” or Brady material (Dkt. 29, at 9-10).
As with Smith’s third claim, this claim is procedurally defaulted to the extent
Smith failed to exhaust the claim in state habeas proceedings. See Young, 835 F.3d at
525; TEX. CODE CRIM. PROC. art. 11.07 § 4. Smith has not argued either cause or
prejudice sufficient to overcome the default and has not demonstrated that a fundamental
miscarriage of justice. See Williams, 602 F.3d at 307. In any event, assuming that
Smith’s federal claim adheres to his state habeas claim regarding counsel’s failure to
adequately challenge the State’s case, Smith has not demonstrated that he is entitled to
relief. As held above regarding Petitioner’s first two claims, his Strickland claim based
on trial counsel’s unsuccessful attempt to challenge the enhancement fails because
counsel did not render deficient performance.
18 / 21
Furthermore, Smith has failed to
demonstrate prejudice under Strickland because he does not identify any additional
information trial counsel might have uncovered, whether unspecified Brady material or
otherwise, that would have altered the outcome of his trial. See Rhoades, 852 F.3d at
432; Hoffman, 752 F.3d at 440; Miller, 420 F.3d at 361. His ineffective assistance of
counsel claim therefore lacks merit.
D.
Conclusion
For all of the reasons above, Petitioner has not demonstrated that the state habeas
court’s denials of his claims for ineffective assistance of trial counsel were contrary to or
an unreasonable application of clearly established law, nor has he demonstrated an
unreasonable application of the law to the facts. See 28 U.S.C. § 2254(d). His federal
habeas petition therefore will be dismissed. In addition, his request for an evidentiary
hearing on his ineffective assistance claims (Dkt. 28) will be denied.8
IV.
CERTIFICATE OF APPEALABILITY
Habeas corpus actions under 28 U.S.C. § 2254 or § 2255 require a certificate of
appealability to proceed on appeal. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003). Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when entering a final order that
is adverse to the petitioner.
8
To the extent Petitioner’s additional filings (Dkt. 30, Dkt. 31, Dkt. 32, Dkt. 38, Dkt. 39)
request leave to bring a new habeas claim under the Due Process Clause regarding a “false
impression” at trial about the vehicle involved in the offense, the Court denies the request. Any
such claim would be unexhausted and barred under the procedural default doctrine, and
Petitioner’s filings do not demonstrate actual prejudice from the alleged false impression. See 28
U.S.C. § 2254(b)(1); Young, 835 F.3d at 525; Williams, 602 F.3d at 307.
19 / 21
A certificate of appealability will not issue unless the petitioner makes “a
substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which
requires a petitioner to demonstrate “‘that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.’” Tennard v. Dretke,
542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under
the controlling standard, a petitioner must show “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 336 (internal citation and quotation marks
omitted). Where denial of relief is based on procedural grounds, the petitioner must show
not only that “jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right,” but also that they “would find it debatable
whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
A district court may deny a certificate of appealability, sua sponte, without
requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.
2000). After careful review of the record and the applicable law, the Court concludes
that reasonable jurists would not find its assessment of the claims debatable or wrong.
Because the petitioner does not allege facts showing that his claims could be resolved in a
different manner, a certificate of appealability will not issue in this case.
V.
CONCLUSION
For the reasons stated above the Court ORDERS that:
1.
20 / 21
The petition for a writ of habeas corpus (Dkt. 1) is DISMISSED.
2.
Petitioner’s request for an evidentiary hearing (Dkt. 28) is DENIED.
3.
A certificate of appealability is DENIED.
The Clerk will provide a copy of this order to the parties.
SIGNED at Galveston, Texas, this 28th day of March, 2019.
___________________________________
George C. Hanks Jr.
United States District Judge
21 / 21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?