Porcher v. Thaler
Filing
13
MEMORANDUM OPINION AND ORDER GRANTING 11 MOTION for Summary Judgment. The petition for a writ of habeas corpus is DENIED, and this case is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Any and all pending motions are DENIED AS MOOT.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
C LIFTON L EVON P ORCHER,
Petitioner,
v.
R ICK T HALER,
Respondent.
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C IVIL A CTION H-10-4160
MEMORANDUM OPINION AND ORDER
Petitioner, a state inmate proceeding pro se, seeks habeas relief under 28 U.S.C. §
2254 challenging his conviction and life sentence for capital murder. Respondent filed a
motion for summary judgment (Docket Entry No. 11), to which a response was filed (Docket
Entry No. 12).1
Based on consideration of the pleadings, the motion and response, the record, and the
applicable law, the Court GRANTS the motion for summary judgment and DISMISSES this
case for the reasons that follow.
Procedural Background and Claims
The jury found petitioner guilty of capital murder in Harris County, Texas, and the
trial court sentenced him to life imprisonment. The conviction was affirmed on appeal.
Porcher v. State, No. 14-05-00867-CR (Tex. App.–Houston [14th Dist.] 2007, pet. ref’d).
1
The typewritten response and certificate of service are unsigned and fail to comply with Rule
11(a) of the Federal Rules of Civil Procedure. Nevertheless, in the interest of justice, and because
the response provides petitioner no basis for relief, the Court has reviewed the response.
The Texas Court of Criminal Appeals refused discretionary review and denied petitioner’s
application for state habeas relief. Ex parte Porcher, Application No. 71,274-02.
Petitioner raises the following grounds for habeas relief in the instant petition:
1.
Trial counsel was ineffective in
a.
failing to impeach Sergeant Douglas and Constable Evans;
b.
failing to interview any witnesses prior to trial;
c.
failing to show that petitioner was not “clean shaven” just for
trial;
d.
failing to contact a witness’s probation officer;
e.
failing to object to a juror during trial; and
f.
failing to object to evidence of petitioner’s gang affiliation.
2.
Appellate counsel was ineffective in failing to challenge the sufficiency
of the evidence.
3.
The State committed prosecutorial misconduct in
a.
soliciting perjured testimony; and
b.
withholding evidence of pretrial witness preparation.
Respondent argues that these grounds should be summarily dismissed for lack of merit
and/or as procedurally barred from consideration by the Court.
Factual Background
The state court of appeals set forth the following statement of facts in its opinion on
direct appeal:
2
In October of 2002, Tyrone Jones approached his roommate, Romalius
Mathews, with a request to purchase a kilogram of cocaine. Mathews had the
ability to purchase this cocaine from his longtime friend and associate, the
complainant, Andre Merriweather, with whom Mathews had engaged in other
narcotics transactions. Jones provided Mathews with $17,000 to purchase the
cocaine. On October 16, 2002, immediately after receiving the cash, Mathews
contacted Merriweather to arrange for the ‘exchange’ to occur later that
evening at a McDonalds restaurant.
In the meantime, Mathews came up with a plan to steal the purchase money
back from Merriweather after the two had completed the cocaine transaction.
Mathews discussed this plan with Jones, and they contacted Lee Washington,
who was the leader of a gang known as ‘the Fam’ or ‘the Family.’ [FN.
Appellant and Mathews were members of the Family. The members paid
monthly dues to the group leader (Washington).] The plan, as developed by
Mathews, was for Mathews to meet Merriweather alone and pay him
$16,200.00 in exchange for one kilogram of cocaine. Mathews suspected that
Merriweather would drive to a night club after the transaction and leave the
money in his car. According to Mathews’s plan, someone else would follow
Merriweather to the club and then break into Merriweather’s car through the
window and steal the money. Washington called appellant, who agreed to be
the accomplice in Mathews’s plan.
Washington and appellant met Mathews at a grocery store near the McDonalds
where Mathews and Merriweather were to conduct the cocaine transaction
later that evening. All three men sat in appellant’s truck while Mathews
explained his plan to appellant. Mathews, surprised at seeing appellant
loading a Glock gun, told appellant that a gun was not necessary because
Merriweather did not carry a gun. Appellant replied, ‘you never know what
might happen.’ Mathews then left the grocery store and drove to the
McDonalds in his car while Washington and appellant drove to a Race Track
gas station located next to the McDonalds.
Soon thereafter, Merriweather arrived in a silver Mercedes sports utility
vehicle (‘SUV’) and parked next to Mathews. Mathews retrieved the box of
money out of his own car and got into Merriweather’s SUV to make the
exchange. While they were completing the transaction, a man approached the
driver’s side of Merriweather’s vehicle and hit the window with the back of his
weapon. Mathews, who was sitting in the passenger seat, immediately looked
up and saw appellant. Merriweather, who was sitting in the driver’s seat,
3
jumped into Mathews’s lap, just as appellant lifted his weapon and fired
through the driver's side window. Mathews, in the passenger seat, felt glass
and blood-splatter hit him. Then, after hearing another gun shot, Mathews
heard Merriweather say, ‘ouch.’
At the time of the shooting, Merriweather’s vehicle was not in the ‘park’
position. Consequently, after he was shot, his foot fell off the break [sic], and
the SUV, still in gear, spun backwards in a circular motion. The passenger
side door flew open, and Mathews was thrown from the vehicle, and landed
in the grass near the parking lot. From there Matthews could see the SUV
collide with other vehicles in the parking lot. When the vehicle finally came
to a stop, appellant ran to the SUV, dove through the window, and fired more
shots (at least two or three) into Merriweather. Appellant was thrown
backward when the SUV moved forward. Appellant then went back to the
SUV, looked in the driver’s side window, and fled the scene. Mathews went
to the SUV to check on Merriweather, and found him still alive. He pulled
Merriweather from the SUV and held Merriweather’s head on his lap.
Merriweather died within minutes.
Meanwhile, Dierdra Castilow, a customer in the McDonalds drive-through
lane, had witnessed the event. After the shooting, she saw a man walk up to
the SUV and reach in and retrieve something. She described him as being clad
in dark clothes, with a hood on his head, and his hands in his pockets. She also
saw a white Avalanche vehicle parked at the McDonalds, and when the
hooded man approached the vehicle, it took off. The hooded man then fled
into a wooded area.
Castilow left the McDonalds and drove to the Race Track gas station. On the
way, she saw what she thought was the white Avalanche parked by some
trailers, and someone walking out of the bushes toward this vehicle. She then
returned to the McDonalds and considered administering cardiac pulmonary
resuscitation to Merriweather, but decided against it when she saw smoke
coming from the bullet wounds in his chest. Although Castilow could not
identify the man who took the items from the SUV, she testified that he was
a black man with a slim build. Her passenger and companion that evening,
Taiwanna Richardson, described the man as wearing a hood over his head,
wearing baggy blue jeans, being approximately six feet tall, and weighing
about 160 pounds.
4
On the night of the shooting, Mathews gave a statement to the police. By his
own admission, Mathews omitted material information from this initial
statement and was not completely truthful with the police. Initially, Mathews
disclosed only that he was sitting in Merriweather’s vehicle when someone
approached and shot his friend. Mathews later testified that, at the time, he did
not want to admit to the police that he and Merriweather had been involved in
a narcotics transaction because he feared his federal probation might be
revoked if the truth of his activities were revealed. Mathews also testified that
he did not identify appellant as the shooter because he feared appellant would
kill him if he did. In fact, Washington spoke to Mathews several days later,
and did threaten to kill him if he talked about the shooting.
About a week after the shooting, Mathews provided a second statement to the
police in which he admitted to purchasing cocaine from Merriweather at the
time of the shooting. However, Mathews still refused to reveal the gunman’s
identity because he remained intimidated by members of the Family. As a
result of his involvement in the narcotics transaction, Mathews’s probation
was revoked and he was placed in federal custody in April 2003.
Several months later, in October 2003, Agents Vanessa Walthur and Tony
Davis of the Federal Bureau of Investigation (‘FBI’) interviewed Mathews
about a matter unrelated to the Merriweather homicide. However, at the
completion of this interview, Mathews indicated that he wanted to discuss the
Merriweather homicide. Because Merriweather had been a witness in a federal
trial, these two FBI agents previously had interviewed Mathews about
Merriweather’s murder. After conducting their own independent investigation,
the agents determined that Merriweather’s murder was not related to the
federal case. Mathews felt that because he was in federal custody, he could
safely reveal the identity of the gunman who had fatally shot Merriweather and
he informed the agents that appellant had shot and killed Merriweather.
The FBI agents contacted Sergeant Clarence Douglas, with the Houston Police
Department, who was the homicide investigator in charge of the Merriweather
murder, and informed him that Mathews wanted to speak to him in regard to
the shooter’s identity. Sergeant Douglas then met with Mathews, who told him
that appellant shot Merriweather and Washington drove the get-away vehicle.
After his meeting with Mathews, Sergeant Douglas obtained a photograph of
appellant and placed it in a photospread to be viewed by Jimmie Evans, a
police officer employed by Precint One. Evans happened to be pumping gas
5
at the Race Track gas station on the night of the Merriweather murder and
witnessed the shooting. After hearing the first shot, Evans had looked in the
direction of the McDonalds and caught a glimpse of the gunman’s face. Evans
testified that although the shooter was wearing a hood, there was nothing
covering his face and from Evans’ position about thirty yards away, he could
see the shooter’s face. After viewing the photospread, Evans positively
identified appellant as the gunman, saying he was one hundred percent certain
of his identification.
Appellant was arrested and charged with the offense of capital murder. He
pleaded ‘not guilty.’ The jury found appellant guilty of the charged offense,
and the trial court imposed an automatic life sentence.
Porcher, at *1–4.
The Applicable Legal Standards
Habeas Review
This petition is governed by the applicable provisions of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2254. Under the AEDPA,
federal habeas relief cannot be granted on legal issues adjudicated on the merits in state court
unless the state adjudication of the claim was contrary to clearly established federal law as
determined by the Supreme Court, or involved an unreasonable application of clearly
established federal law as determined by the Supreme Court. Williams v. Taylor, 529 U.S.
362, 404–05 (2000); 28 U.S.C. §§ 2254(d)(1), (2). A state court decision is contrary to
federal precedent if it applies a rule that contradicts the governing law set forth by the
Supreme Court or if it confronts a set of facts that are materially indistinguishable from a
Supreme Court decision and arrives at a result different from the Supreme Court’s precedent.
Early v. Packer, 537 U.S. 3, 7–8 (2002).
6
A state court unreasonably applies Supreme Court precedent if it unreasonably applies
the correct legal rule to the facts of a particular case, or unreasonably extends a legal
principle from Supreme Court precedent to a new context where it should not apply, or
unreasonably refuses to extend that principle to a new context where it should apply.
Williams, 529 U.S. at 409. In deciding whether a state court’s application was unreasonable,
this Court considers whether the application was objectively unreasonable. Id. at 411.
The AEDPA affords deference to a state court’s resolution of factual issues. Under
28 U.S.C. § 2254(d)(2), a decision adjudicated on the merits in a state court and based on a
factual determination will not be overturned on factual grounds unless it is objectively
unreasonable in light of the evidence presented in the state court proceedings. Miller-El v.
Cockrell, 537 U.S. 322, 343 (2003). A federal habeas court must presume the underlying
factual determination of the state court to be correct, unless the petitioner rebuts the
presumption of correctness by clear and convincing evidence. Id. at 330–31; 28 U.S.C. §
2254(e)(1).
Summary Judgment
In deciding a motion for summary judgment, the district court must determine whether
the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the summary judgment evidence, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law. F ED. R. C IV. P. 56.
Once the movant presents a properly supported motion for summary judgment, the burden
7
shifts to the nonmovant to show with significant probative evidence the existence of a
genuine issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.
2000). While summary judgment rules apply with equal force in a section 2254 proceeding,
the rule only applies to the extent that it does not conflict with the federal rules governing
habeas proceedings. Therefore, section 2254(e)(1), which mandates that a state court’s
findings are to be presumed correct, overrides the summary judgment rule that all disputed
facts must be construed in the light most favorable to the nonmovant. Accordingly, unless
a petitioner can rebut the presumption of correctness of a state court’s factual findings by
clear and convincing evidence, such findings must be accepted as correct by the federal
habeas court. See Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), overruled on other
grounds by Tennard v. Dretke, 542 U.S. 274 (2004).
Ineffective Assistance of Trial Counsel
The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the right to the effective assistance of counsel. U.S. C ONST. amend. VI. A federal
habeas corpus petitioner’s claim that he was denied effective assistance of counsel is
measured by the standards set out in Strickland v. Washington, 466 U.S. 668 (1984). To
assert a successful ineffectiveness claim, a petitioner must establish both constitutionally
deficient performance by counsel and actual prejudice as a result of counsel’s deficient
performance. Id. at 687. The failure to demonstrate either deficient performance or actual
8
prejudice is fatal to an ineffective assistance claim. Green v. Johnson, 160 F.3d 1029, 1035
(5th Cir. 1998).
A counsel’s performance is deficient if it falls below an objective standard of
reasonableness. Strickland, 466 U.S. at 688. In determining whether counsel’s performance
was deficient, judicial scrutiny must be highly deferential, with a strong presumption in favor
of finding that trial counsel rendered adequate assistance and that the challenged conduct was
the product of a reasoned trial strategy. West v. Johnson, 92 F.3d 1385, 1400 (5th Cir. 1996).
To overcome this presumption, a petitioner must identify the acts or omissions of counsel
that are alleged not to have been the result of reasonable professional judgment. Wilkerson
v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992). However, a mere error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment. Strickland, 466 U.S. at 691.
Actual prejudice from a deficiency is shown if there is a reasonable probability that,
but for counsel’s unprofessional error, the result of the proceeding would have been different.
Id. at 694. To determine prejudice, the question focuses on whether counsel’s deficient
performance renders the result of the trial unreliable or the proceeding fundamentally unfair.
Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). In that regard, unreliability or unfairness
does not result if the ineffectiveness does not deprive the petitioner of any substantive or
procedural right to which he is entitled. Id.
9
Petitioner asserts that trial counsel was ineffective in the following instances, each of
which will be separately addressed.
A.
Failure to impeach Sergeant Douglas and Constable Evans
Petitioner claims that trial counsel failed to impeach the State’s witnesses, Sergeant
Douglas, regarding Constable Evans’s description of the shooter, and Constable Evans, as
to when he thought he saw the shooter’s face. Specifically, petitioner argues that Constable
Evans was too far away and under insufficient lighting to have seen petitioner’s face clearly.
In rejecting these argument on collateral review, the trial court made the following
relevant findings:
1.
Regarding Applicant’s claims that counsel failed to impeach Sgt.
Douglas and Constable Evans, Applicant admits in his own
memorandum attached to his application for writ of habeas corpus that
counsel did in fact impeach both of these witnesses; therefore
Applicant’s claims in this regard are without a basis in fact.
2.
Applicant fails to allege and prove sufficient facts which if true would
entitle him to habeas relief in regards to his claims that counsel was
deficient in failing to impeach Sgt. Douglas.
3.
Applicant fails to allege and prove sufficient facts which if true would
entitle him to habeas relief in regards to his claims that counsel was
deficient for failing to impeach Constable Evans.
*
12.
*
*
*
Applicant fails to show that counsel’s conduct fell below an objective
standard of reasonableness and that, but for counsel’s alleged deficient
conduct, there is a reasonable probability that the result of the
proceeding would have been different.
10
13.
The totality of the representation afforded Applicant at trial was
sufficient to protect his right to reasonably effective assistance of
counsel in the primary case.
Ex parte Porcher, pp. 146–147 (citations omitted). The Texas Court of Criminal Appeals
relied on these findings in denying habeas relief.
Petitioner establishes no factual basis for these claims, inasmuch as he acknowledges
throughout his voluminous memorandum of law that trial counsel cross-examined and
impeached these two witnesses regarding their viewing and description of the perpetrator.
Moreover, a review of the trial record shows that counsel thoroughly cross-examined these
witnesses and exposed contradictions and inconsistencies in their testimony. R.R., Vol. 4,
pp. 31–57; 111–126. Petitioner identifies no specific cross-examination that trial counsel
omitted regarding these witnesses, nor does he show that, but for such omitted crossexamination, there is a reasonable probability that the result of the trial would have been
different. Petitioner’s generalized allegations of deficient cross-examination are conclusory,
unsupported in the record, and insufficient to meet his burden of proof under AEDPA. See
Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983) (holding that, absent evidence in the
record, a court cannot consider a habeas petitioner’s bald assertions on a critical issue in his
pro se petition, unsupported and unsupportable by anything else contained in the record, to
be of probative evidentiary value).
The state courts denied relief on these claims. Petitioner fails to show that the state
court’s determination was contrary to, or involved an unreasonable application of, Strickland
11
or was an unreasonable determination of the facts based on the evidence in the record.
Respondent is entitled to summary judgment under these claims.
B.
Failure to interview witnesses prior to trial
In likewise conclusory fashion, petitioner claims that trial counsel failed to “interview
all the witnesses” prior to trial. In rejecting this claim on collateral review, the trial court
made the following relevant findings:
4.
Regarding his claim that counsel was deficient for failing to interview
witnesses prior to trial, Applicant fails to meet his burden of showing
which witnesses trial counsel should have sought out and interviewed,
that these witnesses were available, and that their testimony would have
benefited Applicant’s defense.
*
*
*
*
12.
Applicant fails to show that counsel’s conduct fell below an objective
standard of reasonableness and that, but for counsel’s alleged deficient
conduct, there is a reasonable probability that the result of the
proceeding would have been different.
13.
The totality of the representation afforded Applicant at trial was
sufficient to protect his right to reasonably effective assistance of
counsel in the primary case.
Ex parte Porcher, pp. 146–147 (citations omitted). The Texas Court of Criminal Appeals
relied on these findings in denying habeas relief.
Petitioner’s allegations of failure to call or interview witnesses are conclusory and
unsupported in the record. Petitioner presents no probative summary judgment evidence
regarding the proposed testimony and availability of any witness or that the testimony would
have been material and beneficial to the defense. See Day v. Quarterman, 566 F.3d 527, 538
12
(5th Cir. 2009) (“To prevail on an ineffective assistance claim based on counsel’s failure to
call a witness, the petitioner must name the witness, demonstrate that the witness was
available to testify and would have done so, set out the content of the witness’s proposed
testimony, and show that the testimony would have been favorable to a particular defense.”).
Nor does petitioner merit relief under his argument that trial counsel failed to
interview the State’s witnesses, as the State’s witnesses are under no legal obligation to
communicate with defense counsel. See United States v. Benson, 495 F.2d 475, 479 (5th Cir.
1974); see also United States v. Soape, 169 F.3d 257, 270 n. 9 (5th Cir. 1999). Petitioner
does not show that the State’s witnesses were amenable to being interviewed by defense
counsel or that, but for counsel’s failure to interview the witnesses, there is a reasonable
probability that the results of the trial would have been different. Petitioner’s generalized
allegations of deficient performance are conclusory, unsupported in the record, and
insufficient to meet his burden of proof under AEDPA. See Ross, 694 F.2d at 1011.
The state courts denied relief on this claim. Petitioner fails to show that the state
court’s determination was contrary to, or involved an unreasonable application of, Strickland
or was an unreasonable determination of the facts based on the evidence in the record.
Respondent is entitled to summary judgment under this claim.
C.
Failure to show that petitioner was not “clean shaven” for trial
Petitioner claims that trial counsel should have presented witnesses to testify that
petitioner was not “clean shaven” for trial, and that he had been bald since 1995.
13
In rejecting this claim on collateral review, the trial court entered the following
relevant findings:
5.
Regarding his claim that counsel was deficient for failing to call a
witness to prove that Applicant was bald, Applicant fails to meet his
burden of showing which witnesses trial counsel should have sought
out and interviewed, that these witnesses were available, and that their
testimony would have benefited Applicant’s defense.
*
*
*
*
12.
Applicant fails to show that counsel’s conduct fell below an objective
standard of reasonableness and that, but for counsel’s alleged deficient
conduct, there is a reasonable probability that the result of the
proceeding would have been different.
13.
The totality of the representation afforded Applicant at trial was
sufficient to protect his right to reasonably effective assistance of
counsel in the primary case.
Ex parte Porcher, pp. 146–147 (citations omitted). The Texas Court of Criminal Appeals
relied on these findings in denying habeas relief.
Petitioner presents no probative evidence of any witness that should have been called
by trial counsel in this regard, and fails to establish deficient performance under Strickland.
See Day, 566 F.3d at 538. Further, petitioner does not establish that, but for counsel’s failure
to call such witness, there is a reasonable probability that the result of the trial would have
been different. Petitioner’s generalized allegations of deficient performance are conclusory,
unsupported in the record, and insufficient to meet his burden of proof under AEDPA. See
Ross, 694 F.2d at 1011.
14
The state courts denied relief on this claim. Petitioner fails to show that the state
court’s determination was contrary to, or involved an unreasonable application of, Strickland
or was an unreasonable determination of the facts based on the evidence in the record.
Respondent is entitled to summary judgment under this claim.
D.
Failure to contact a witness’s probation officer
Petitioner next argues that trial counsel should have called Mathews’s probation
officer as a defense witness to testify that Mathews’s probation was revoked for an unrelated
drug case, not for the instance case. According to petitioner, this would have proved that a
“deal” was made between the State and Mathews that was kept from the defense and the jury.
(Docket Entry No. 1, p. 8.)
In rejecting this claim on collateral review, the trial court entered the following
relevant findings:
6.
Regarding his claim that counsel was deficient for failing to contact
‘Matthew’s probation officer,’ Applicant fails to meet his burden of
showing which witnesses trial counsel should have sought out and
interviewed, that this witnesses [sic] was available, and that his
testimony would have benefited Applicant’s defense.
*
*
*
*
12.
Applicant fails to show that counsel’s conduct fell below an objective
standard of reasonableness and that, but for counsel’s alleged deficient
conduct, there is a reasonable probability that the result of the
proceeding would have been different.
13.
The totality of the representation afforded Applicant at trial was
sufficient to protect his right to reasonably effective assistance of
counsel in the primary case.
15
Ex parte Porcher, pp. 146–147 (citations omitted). The Texas Court of Criminal Appeals
relied on these findings in denying habeas relief.
Petitioner’s allegations that counsel was deficient in failing to call this purported
witness are conclusory and unsupported in the record. Petitioner presents no probative
summary judgment evidence regarding the identity and proposed testimony of this witness,
the availability of the witness, or that the testimony would have been material and beneficial
to the defense. See Day, 566 F.3d at 538. He further fails to demonstrate that, but for
counsel’s failure to call this witness, there is a reasonable probability that the result of his
trial would have been different. Petitioner establishes neither deficient performance nor
prejudice under Strickland, and his conclusory allegations are insufficient to raise a genuine
issue of material fact precluding summary judgment. See Ross, 694 F.2d at 1011.
The state courts denied relief on this claim. Petitioner fails to show that the state
court’s determination was contrary to, or involved an unreasonable application of, Strickland
or was an unreasonable determination of the facts based on the evidence in the record.
Respondent is entitled to summary judgment under this claim.
E.
Failure to object to a juror during trial
Petitioner claims that, during trial, one of the jurors stated “he knew petitioner had
been with someone whose name came up during trial.” As supporting facts for this claim,
petitioner states in his petition that, “This person was at time of trial serving time for
aggravated robbery. Jury would be biased against petitioner. Due to the guilty [sic] by
16
association. He should have been struck from [the] jury and not allowed to taint other
Jurors.” (Docket Entry No. 1, p. 8.)
The record shows that, during trial, juror David O’Connor sent a note to the court.
The photocopy of the note as it appears in the record is of poor quality and difficult to read.
(Docket Entry No. 6-10, p. 42.) However, O’Connor appears to state in the note that,
“Yesterday I started thinking that I have seen the defendant [illegible]. Today, when the []
[] Bostic a track coach came [] I think that is where I have seen him ([] Meeks). I have been
part of the track community in Houston for many years. I’m not sure but wanted to make you
aware.” Id.
The trial judge then questioned O’Connor on the record outside the presence of the
jury, as follows:
THE COURT:
Come on up. You’re the one that wrote the note. What’s
your name?
THE JUROR:
David O’Connor.
THE COURT:
You might know the Defendant and might not; may have
seen him before and may not. Is that going to make any
difference in your evaluation?
I don’t know. I just didn’t know if it wouldn’t made a
difference to you.
THE JUROR:
THE COURT:
No. Only if you –
THE JUROR:
No. Just wanted to make sure.
THE COURT:
You can still follow your oath?
THE JUROR:
Okay. Yes.
17
THE COURT:
And I appreciate you letting us know. Okay thank you.
(R.R., Vol. 6, p. 53.) The juror returned to the jury without further incident.
In rejecting petitioner’s claim of ineffective assistance, the trial court on collateral
review made the following relevant findings:
8.
[B]ecause Applicant fails to show that the trial court would have erred
in overruling an objection to a juror, Applicant fails to show counsel
was ineffective in this regard.
*
*
*
*
12.
Applicant fails to show that counsel’s conduct fell below an objective
standard of reasonableness and that, but for counsel’s alleged deficient
conduct, there is a reasonable probability that the result of the
proceeding would have been different.
13.
The totality of the representation afforded Applicant at trial was
sufficient to protect his right to reasonably effective assistance of
counsel in the primary case.
Ex parte Porcher, pp. 146–147 (citations omitted). The Texas Court of Criminal Appeals
relied on these findings in denying habeas relief.
In raising this issue, petitioner stated in his petition as follows:
At this time, a juror, David O’ Conner [sic], states that he may know the
Defendant, prior to this date. (R.R., Vol. 6, p. 53.) This juror, who did know
[Bostic], and Bostic’s name was mentioned in this trial, and Bostic was also
said during this trial to be a gang member, claims that he thinks he remembers
seeing me with Bostic. This juror is still allowed to sit on the jury, and judge
applicant. This juror knows Bostic, and Bostic is said in front of him to be a
gang member, and Bostic is currently serving time in prison for robb. [sic] or
agg. [sic] robbery, and was so during the time of Papplicnat’s [sic] trial, and
this was made aware tot [sic] he [sic] jury. If he claimed to have been [sic]
applicant with Bostic or even knows Bostic, which he does, he’s going to
18
assosiate [sic] applicnat [sic] with Bostic and that makes him biased in his
opinion of applicant.
(Docket Entry No. 1-4, p. 8.)
It is petitioner’s belief that O’Connor was biased against him as a result of guilt by
association with Bostic. However, the record shows that O’Connor was not even sure if it
actually was petitioner he saw at an earlier time with Bostic. Moreover, under questioning
by the trial court, O’Connor stated that he could still follow his oath as a juror. Neither
petitioner nor the record establishes that O’Connor was biased or prejudiced against
petitioner, or that he in any way “tainted” the other jurors. Petitioner fails to show that, had
counsel objected to O’Connor’s continued presence on the jury, the objection would have
been granted; in the alternative, petitioner fails to show that it would have constituted error
for the trial court to overrule such an objection.
Petitioner’s conclusory allegations,
unsupported by the record, establish neither deficient performance nor prejudice under
Strickland. See Ross, 694 F.2d at 1011.
The state courts denied relief on this claim. Petitioner fails to show that the state
court’s determination was contrary to, or involved an unreasonable application of, Strickland
or was an unreasonable determination of the facts based on the evidence in the record.
Respondent is entitled to summary judgment under this claim.
F.
Failure to object to evidence of petitioner’s gang affiliation
Petitioner complains that trial counsel should have objected to testimony by FBI
Agent Walthur of his gang affiliation with “The Family” and his gang nickname, “Ice.”
19
Although the record shows that trial counsel raised some objections to this evidence at trial,
he failed to object to similar evidence presented elsewhere. See Porcher, at *8–9. On direct
appeal, petitioner argued that the evidence was inadmissible hearsay; however, the state court
of appeals rejected the argument as waived because trial counsel had not objected to other,
similar testimony. Id.
In rejecting petitioner’s ineffective assistance claim, the trial court on collateral review
made the following relevant findings:
9.
Because Applicant fails to show that the trial court would have erred in
overruling an objection to testimony regarding Applicant’s gang
membership, Applicant fails to show counsel was ineffective in this
regard.
10.
Because Applicant fails to show that the trial court would have erred in
overruling an objection to testimony regarding Applicant’s nickname,
Applicant fails to show counsel was ineffective in this regard.
*
*
*
*
12.
Applicant fails to show that counsel’s conduct fell below an objective
standard of reasonableness and that, but for counsel’s alleged deficient
conduct, there is a reasonable probability that the result of the
proceeding would have been different.
13.
The totality of the representation afforded Applicant at trial was
sufficient to protect his right to reasonably effective assistance of
counsel in the primary case.
Ex parte Porcher, pp. 146–147 (citations omitted). The Texas Court of Criminal Appeals
relied on these findings in denying habeas relief.
20
Petitioner argues here, as he did on direct appeal, that the evidence of his gang
affiliation and nickname constituted inadmissible hearsay to which counsel should have
objected. (Docket Entry No. 1, p. 9.) He further claims that counsel was ineffective in not
consistently objecting to the evidence as inadmissible hearsay. Id. However, petitioner again
fails to show that, had counsel objected to the testimony as inadmissible hearsay, the
objection would have been granted; in the alternative, petitioner does not show that it would
have constituted error for the trial court to overrule such an objection.
Petitioner’s
conclusory allegations, unsupported by the record, establish neither deficient performance
nor prejudice under Strickland. See Ross, 694 F.2d at 1011.
It is clear from the record that evidence regarding “The Family” or “The Fam” was
material and relevant to the criminal offense and its proof. First, the plan to recover the drug
money from Merriweather was executed, in whole or in part, through members of the gang,
including petitioner. More significantly, it was threats and intimidation from members of the
gang that, according to Mathews, initially kept Mathews from informing authorities that
petitioner had been the shooter. Thus, the record refutes petitioner’s conclusory allegation
that the State’s sole purpose in introducing evidence regarding the gang and his nickname
was to sully petitioner’s name and credibility. Petitioner fails to demonstrate that, but for
trial counsel’s failure to consistently object to evidence of his gang affiliation and nickname,
there is a reasonable probability that the result of his trial would have been different.
21
The state courts denied relief on this claim. Petitioner fails to show that the state
court’s determination was contrary to, or involved an unreasonable application of, Strickland
or was an unreasonable determination of the facts based on the evidence in the record.
Respondent is entitled to summary judgment on this claim.
Ineffective Assistance of Appellate Counsel
Persons convicted of a crime also are entitled to effective assistance of counsel on
direct appeal. Evitts v. Lucey, 469 U.S. 387 (1985). This Court reviews counsel’s appellate
performance under the Strickland standards. See Goodwin v. Johnson, 132 F.3d 162, 170
(5th Cir. 1998). Petitioner must allege and present facts showing that his appellate counsel’s
representation was deficient and that the deficient performance caused him prejudice. That
is, petitioner must show that, but for appellate counsel’s deficient performance, the outcome
of the appeal would have been different. See Strickland, 466 U.S. at 687–88, 692; Jones v.
Jones, 163 F.3d 285, 300 (5th Cir. 1998). Effective assistance of appellate counsel does not
mean that counsel will raise every available nonfrivolous ground for appeal. Evitts, 469 U.S.
at 394. Nor will counsel be deficient for failing to press a frivolous point. Rather, it means,
as it does at trial, that counsel performs in a reasonably effective manner. Id. A reasonable
attorney has an obligation to research relevant facts and law and make informed decisions
as to whether avenues will, or will not, prove fruitful. Strickland, 466 U.S. at 690–91.
Petitioner claims that appellate counsel was ineffective in failing to challenge the
sufficiency of the evidence to support the conviction. He argues that the State relied on the
22
testimony of Mathews to show that a robbery or attempted robbery had taken place, which
was not enough to obtain a valid conviction. (Docket Entry No. 1, p. 8.)
In rejecting petitioner’s claim of ineffective assistance of appellate counsel, the trial
court on collateral review made the following relevant findings:
14.
Regarding Applicant’s claims of ineffective assistance of appellate
counsel, the court finds that Applicant fails to show that appellate
counsel’s conduct fell below an objective standard of reasonableness
and that, but for appellate counsel’s alleged deficient conduct, there is
a reasonable probability that the result of the proceeding would have
been different.
15.
The totality of the representation afforded Applicant on direct appeal
was sufficient to protect his right to reasonably effective assistance of
appellate counsel in the primary case.
Ex parte Porcher, pp. 147–148 (citations omitted). The Texas Court of Criminal Appeals
relied on these findings in denying habeas relief.
In reviewing the sufficiency of the evidence, the federal standard for review is
whether any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under this standard,
the jury may disregard any evidence it chooses to disregard, as it is the “responsibility of the
trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts.” Id. Any contradictory testimony does not affect the
validity of the guilty verdict. Id. The evidence can be sufficient to support a conviction
under Jackson even when it also supports a claim of innocence. See Gibson v. Collins, 947
F.2d 780, 783 (5th Cir. 1991).
23
The evidence set forth by the state appellate court in its opinion affirming the
conviction is itself enough to allow a rational trier of fact to convict petitioner of the
allegations in the indictment and jury charge, and the evidence presented at trial was enough
to defeat a legal sufficiency challenge in a Texas appellate court. See King v. State, 29
S.W.3d 556, 562 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim.
App. 2000). An independent review of the trial record reveals sufficient evidence under
Jackson to sustain the jury’s verdict. Although petitioner argues that Mathews’s testimony
was inadequate under state law to establish a robbery or attempted robbery, he cites no
applicable, controlling legal authority for this contention. Consequently, petitioner does not
show that, but for appellate counsel’s failure to challenge the sufficiency of the evidence,
there is a reasonable probability that the result of his appeal would have been different.
The state courts denied relief on this claim. Petitioner fails to show that the state
court’s determination was contrary to, or involved an unreasonable application of, Strickland
or was an unreasonable determination of the facts based on the evidence in the record.
Respondent is entitled to summary judgment under this claim.2
2
The Court notes that, in his application for state habeas relief, petitioner raised one
additional claim for ineffective assistance of trial counsel. As “Ground Twelve” in his state
application, petitioner claimed that trial counsel was “ineffective for failing to timely object to the
venireperson’s failure to complete the juror information card is [sic] a race-neutral justification
for striking the venireperson.” Ex parte Porcher, p. 18. By this argument, petitioner argued that
counsel failed to raise a proper objection under Batson v. Kentucky, 476 U.S. 79 (1986).
Petitioner did not, however, carry this particular claim forward to the instant federal habeas
petition. (Docket Entry No. 1, pp. 6–9.) Petitioner did file with this Court a duplicate copy of
the memorandum of law he filed with his state application. The memorandum addresses the
Batson argument that was presented to the state court but not listed as a claim in this Court. To
24
Prosecutorial Misconduct
Petitioner claims that the State committed prosecutorial misconduct in soliciting
perjured testimony and in withholding information that a witnesses had been prepared for
trial. Respondent argues that these claims were not properly raised in the state courts, are
procedurally defaulted, and are now barred from consideration by this Court.
In rejecting petitioner’s claims of prosecutorial misconduct, the trial court on
collateral review made the following relevant findings:
16.
Applicant’s claim that he was harmed by the State’s alleged use of
perjured testimony need not be considered since Applicant failed to
raise this ‘record claim’ on direct appeal.
17.
Applicant’s claim that he was harmed by the State’s alleged failure to
disclose that the prosecutor met with Constable Evans in preparation
for trial need not be considered since Applicant failed to raise this
‘record claim’ on direct appeal.
Ex parte Porcher, p. 148 (citations omitted). The Texas Court of Criminal Appeals relied
on these findings in denying habeas relief.
The trial court’s findings followed well
established state law. See Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989)
any extent that petitioner intended to raise Ground Twelve in the instant proceeding, the record
shows that trial counsel raised a Batson objection to the State’s actions, and that the trial court
denied the objection after hearing argument from defense counsel and the State. R.R., Vol. 2, pp.
127–131. Further, the trial court denied state habeas relief on this issue. Ex parte Porcher, p.
147. Petitioner fails to show that the state court’s determination was contrary to, or involved an
unreasonable application of, Strickland or was an unreasonable determination of the facts based
on the evidence in the record. Respondent would be entitled to summary judgment under this
claim.
25
(holding that state habeas petitions may not be used to litigate matters which should have
been brought on direct appeal).
Because petitioner did not raise these claims on direct appeal, and the trial court on
collateral review found that the issues should have been raised on direct appeal, the claims
have been procedurally defaulted and are now barred from consideration by this Court. See
Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997). For this Court to reach the merits of
these procedurally defaulted claims, petitioner must establish “good cause” and “prejudice”
regarding the state court’s failure to consider the claims. See Coleman v. Thompson, 501
U.S. 722, 750–51 (1991). Petitioner fails to argue, much less establish, good cause and
prejudice. Accordingly, the issues are procedurally defaulted and will not be considered by
the Court. Respondent is entitled to summary judgment under these issues.
26
Conclusion
Respondent’s motion for summary judgment (Docket Entry No. 11) is GRANTED.
The petition for a writ of habeas corpus is DENIED, and this case is DISMISSED WITH
PREJUDICE. A certificate of appealability is DENIED. Any and all pending motions are
DENIED AS MOOT.
The Clerk will provide copies of this order to the parties.
Signed at Houston, Texas on January 30, 2012.
Gray H. Miller
United States District Judge
27
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