Cook v. Williams
Filing
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MEMORANDUM OPINION AND ORDER granting 6 MOTION for Summary Judgment with Brief in Support by William Stephens. Case is dismissed with prejudice. All pending motions are denied as moot. COA is denied. (Signed by Judge Keith P Ellison) Parties notified.(glyons, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHNNY ALVIN COOK,
Petitioner,
v.
WILLIAM STEPHENS,
Respondent.
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CIVIL ACTION No. H-13-3066
MEMORANDUM OPINION AND ORDER
Petitioner, a state inmate proceeding pro se, filed this section 2254 habeas petition
challenging his conviction and life sentence for murder. Respondent filed a motion for
summary judgment based on expiration of limitations (Docket Entry No.6), to which
petitioner filed a response (Docket Entry No.8).
Based on careful consideration of the pleadings, the motion, the response, the record,
and the applicable law, the Court GRANTS the motion for summary judgment and
DISMISSES this case as barred by limitations.
I. BACKGROUND
Petitioner was convicted of murder and sentenced to life imprisonment on September
10, 1997. The conviction was affirmed on appeal in 1999. Petitioner took no further legal
action challenging the conviction until the filing of an application for state habeas relief on
January 14,2013. The application was denied by the Texas Court of Criminal Appeals on
July 31, 2013.
In the instant petition, filed on October 2, 2013, petitioner claims that trial counsel
was ineffective in failing to call his girlfriend, Rosalyn Frazier, as a defense witness at trial.
Petitioner testified at trial during guilt/innocence that he shot the complainant in self-defense
because she was threatening to throw a knife at him. Petitioner explicitly testified under
cross-examination that he did not know whether the complainant had actually thrown the
knife when he shot her. R.R., Vol. 5, p. 239. Frazier, described by petitioner as "a known
prostitute and drug addict having no permanent residence," had been with petitioner during
the criminal offense. (Docket Entry No.8, p. 5.) At petitioner's request, defense counsel
located Frazier in the Harris County Jail and met with her prior to trial, but subsequently
"told Petitioner that Miss Frazier would not make a good witness insinuating that her
credibility would be a serious issue because of her extensive criminal history." Jd., p. 6.
Trial counsel subpoenaed Frazier for trial and she was placed in a holding cell during the
trial, but counsel did not call her as a witness. Jd. Petitioner asserts here that he personally
did not know what Frazier had seen because he immediately fled the scene after shooting the
complainant and, as he states, "was on the run evading police authorities for approximately
2 months at which time [ I] lost all contact with Miss Frazier." (Docket Entry No.8, p. 6.)
Petitioner does not state, and the record does not show, that at any point petitioner asked trial
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counsel about Frazier's potential testimony or requested counsel's help in locating Frazier
following his conviction.
Trial counsel passed away on November 16, 2008, some ten years after the trial. Ex
parte Cook, p. 59. On January 14,2013, nearly sixteen years after his conviction and four
years after counsel's death, petitioner filed an application for state habeas relief, claiming
that trial counsel had been ineffective in failing to present Frazier as a defense witness at
trial. Submitted with the state habeas application was an affidavit from Frazier, dated
December 5, 2012. In the affidavit, Frazier stated that she saw the complainant draw back
and throw the knife at petitioner, and that petitioner "fired one shot in self-defense." (Docket
Entry No.8, Exhibit B.) The affidavit was silent as to whether Frazier had given this
information to trial counsel during their 1997 meeting or that she had been willing to testifY
at trial, and she provided no information regarding her whereabouts over the intervening
sixteen years.
In denying the application for habeas relief, the state court made the following
findings of fact:
1.
On September 10, 1997, Applicant was convicted by a jury for murder
and sentenced to confinement for life in prison[.]
2.
Attorney R.E. 'Dick' Wheelan represented Applicant during the trial
phase[.]
3.
On December 2, 1999, the Fourteenth Court of Appeals delivered an
unpublished opinion affirming the trial court's judgment[.]
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4.
On March 8, 2000, the Fourteenth Court of Appeals issued mandate[.]
5.
On November 16,2008, attorney Wheelan died[.]
6.
On January 25, 2013, Applicant filed a habeas application . . .
challenging his conviction in [this] case on grounds of ineffective
assistance by trial counsel [.]
7.
Applicant's unreasonable delay of over twelve years in pursuing habeas
remedies resulted in Respondent being prejudiced in the ability to
address the claims of ineffective assistance based on trial counsel's
death[.]
8.
Applicant's claims ofineffective assistance of counsel should be barred
based upon the equitable doctrine of laches[.]
Ex parte Cook, p. 59 (citations omitted).
Petitioner's application for state habeas relief was denied by the trial court on April
12,2013. On May 28,2013, petitioner filed with the trial court a "motion for the court to
consider newly discovered evidence." The "newly discovered evidence" was an affidavit
from petitioner's brother dated May 7, 2013, outlining the steps he had taken in locating
Frazier and obtaining her affidavit. No ruling by the trial court appears in the record.
Petitioner re-filed the motion with the Texas Court of Criminal Appeals on June 13,2013. 1
The Texas Court of Criminal Appeals denied the motion on July 18, 2013, and denied
petitioner's application for state habeas relief on July 31, 2013.
Ipetitioner did not utilize the "mail box rule" in filing his motion. Moreover, his cover
letter was dated May 10,2013, but his certificate of service was dated "on or about" May 24,
2013. In light of these circumstances, the Court will refer to the June 13,2013, filing date stamp
shown on the motion as the date of filing.
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Petitioner filed the instant federal habeas petition on October 2,2013. Respondent
argues that the petition is barred by the federal one-year statute of limitations. Petitioner
asserts that he is entitled to equitable tolling because it took him over ten years to obtain
Frazier's affidavit, and that the affidavit constitutes "new evidence" proving ineffective
assistance of trial counsel.
II. ANALYSIS
This petition is governed by the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA). Under AEDPA, federal habeas corpus petitions are subject to a one-year
limitations period found in 28 U.S.C. § 2244(d), which provides as follows:
(d)(l) A I-year period of limitations shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a
State court. The limitation period shall run from the latest of CA)
the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B)
the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws
of the United States is removed, if the applicant was prevented
from filing by such State action;
(C)
the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
CD)
the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of
due diligence.
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(2)
The time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.
28 U.S.C. §§ 2244(d)(l), (2).
Petitioner's conviction became final for purposes of AEDPA on January 2, 2000,
when his time to file for discretionary review expired. See Roberts v. Cockrell, 319 F Jd 690,
693-95 (5th Cir. 2003). Limitations expired one year later, on January 2, 2001. His
application for state habeas relief, filed well after that date, provided petitioner no tolling
benefit. See Medley v. Thaler, 660 F.3d 833,834-35 (5th Cir. 2011); Scottv. Johnson, 227
F.3d 260, 263 (5th Cir. 2000). The instant petition, filed in 2013, is untimely by nearly
twelve years.
In his response to the motion for summary judgment, petitioner argues that his federal
petition is not untimely because it took him over ten years to locate Frazier and obtain her
affidavit. He argues that, under these facts, he is entitled to equitable tolling on his claim that
trial counsel was ineffective in failing to call Frazier as a witness.
A.
Alternative Commencement Date
In an abundance of caution, the Court will address the possible application of 28
U.S.c. § 2244(d)(1)(D), which provides that the one-year limitation can commence on "the
date on which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence." The diligence must be "reasonable" due
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diligence.
See Starnes v. Andrews, 524 F.3d 612, 619 (5th Cir. 2008).
Construing
petitioner's claims liberally, an argument could be made that the factual predicate of his
claim - that Frazier had witnessed the complainant throw the knife - could not be discovered
through the exercise of reasonable due diligence until 2012, when his brother obtained
Frazier's affidavit and petitioner "discovered" her knowledge of the incident. However, the
argument would be specious.
The record shows that petitioner had an opportunity to look for Frazier and discover
her knowledge during the two months he was actively and admittedly hiding from the police
following the incident. His deliberate delay in attempting to discover Frazier's knowledge
of the incident does not constitute the exercise of due diligence. Petitioner's lack of due
diligence is further shown by his admitted delay in asking for his brother's help in locating
Frazier during petitioner's incarceration; petitioner delayed seeking his help from 1997 to
2001.
Moreover, petitioner knew in 1997 that trial counsel had met with Frazier and
discussed her background and knowledge of the incident; however, the record reveals no
effort by petitioner to obtain the information from his attorney at any time between 1997 and
the attorney's death in 2008. The record fails to support petitioner's argument that the
factual predicate of his claim could not have been discovered through the exercise of due
diligence until 20 12. Section 2244( d)( 1)(D) does not provide petitioner any basis for holding
the petition timely.
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B.
Equitable Tolling
Nor is petitioner entitled to over a decade of equitable tolling. Equitable tolling
applies only when a petitioner shows that he has been pursuing his rights diligently and that
some extraordinary circumstance "stood in his way" and prevented him from filing his
federal petition on time. Holland v. Florida, 560 U.S. __ , l30 S. Ct. 2549, 2560-62
(2010). As discussed above, the record shows that petitioner did not diligently pursue his
rights, as he elected to hide from authorities following the incident instead of attempting to
obtain information from his sole defense witness. Nor, as noted before, did he diligently
pursue his rights in waiting until 2001 to ask for his brother's help in locating Frazier.
More importantly, had petitioner pursued his ineffective assistance of trial counsel
claim in a timely and diligent manner prior to expiration of limitations, trial counsel could
have disclosed the information he obtained from Frazier and presented his reasons for not
calling her as a witness, thus allowing the state courts to evaluate fully petitioner's claim of
ineffective assistance. Petitioner fails to present probative summary judgment evidence that
he could not have obtained the requested information from Frazier prior to 2012 or from trial
counsel prior to 2008. For these same reasons, petitioner fails to establish that some
extraordinary circumstance "stood in his way" and prevented him from filing his federal
petition on time. Petitioner fails to show that he merits equitable tolling in this case.
Respondent is entitled to summary judgment dismissing petitioner's claims as barred
by the AEDPA statute of limitations.
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C.
Ineffective Assistance of Counsel
Even assuming petitioner's claim of ineffective assistance were timely, it has no merit.
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. Stricklandv. Washington, 466 U.S. 667, 687 (1984). A failure to demonstrate
either deficient performance or actual prejudice is fatal to an ineffective assistance claim.
Green v. Johnson, 160 F.3d 1029, 1035 (5th Cir. 1998).
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. Wilkersonv. 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; actual prejudice must be shown. Strickland, 466 U.S.
at 691. Actual prejudice 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.
Petitioner presents no probative summary judgment evidence establishing either
deficient performance or actual prejudice. Specifically, he fails to establish that trial counsel
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had not already been aware of Frazier's knowledge and her potential testimony and, in an
exercise of professional judgment, elected not to present her as a witness. To the contrary,
petitioner argues that trial counsel had not wanted to present Frazier as a defense witness due
to her lengthy criminal history. Under the facts as stated by petitioner, counsel's decision
would have been a matter of trial strategy which petitioner fails to establish as unreasonable.
Moreover, Frazier does not state in her affidavit that counsel did not ask about her knowledge
of the incident, nor does she state that she had been willing to testifY at trial as to the
allegations set forth in her affidavit.
Regardless, Frazier's testimony would not have established that petitioner acted in self
defense or in defense of another in shooting the complainant. The jury was instructed that
a person acts in self defense to the extent "he reasonably believes" the force or deadly force
was necessary. Ex parte Cook, p. 53. At trial, petitioner testified that he had felt threatened
by the complainant's waving a knife at him, and that he did not know whether she had
thrown the knife at the time he shot her. The jury heard his testimony and the testimony of
other witnesses, and ultimately rejected his claim of self defense.
Frazier's potential
testimony - that she saw the complainant throw the knife and petitioner fire one shot - would
not have aided or established petitioner's claim of self defense, as the defensive issue looks
only to what petitioner reasonably believed. Frazier's objective view - that the complainant
had thrown the knife - did not alter petitioner's subjective testimony that he did not know
whether she had thrown the knife when he shot her. Petitioner fails to show that, but for
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counsel's failure to present Frazier as a witness, there is a reasonable probability that the
result of the trial would have been different. No ineffective assistance of counsel is shown.
III. CONCLUSION
Respondent's motion for summary judgment (Docket Entry No.6) is GRANTED and
this case is DISMISSED WITH PREJUDICE. Any and all pending motions are DENIED
AS MOOT. A certificate of appealability is DENIED.
SIGNED at Houston, Texas on the
;J~ of February, 2014.
KEITHP\Bi:LISON
UNITED STATES DISTRICT JUDGE
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