Smith v. Davis
Filing
15
MEMORANDUM OPINION AND ORDER GRANTING 12 MOTION for Summary Judgment with Brief in Support. This lawsuit is DISMISSED WITH PREJUDICE. Any and all pending motions are DENIED AS MOOT. A certificate of appealability is DENIED. (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JACOB BRENT SMITH,
§
§
§
§
§
§
§
§
§
Petitioner,
v.
LORIE DAVIS,
Respondent.
CIVIL ACTION NO. H-17-1350
MEMORANDUM OPINION AND ORDER
Petitioner, a state inmate proceeding pro se, filed this section 2254 habeas petition
challenging his conviction and thirty-year sentence for evading arrest in a motor vehicle.
Respondent filed a motion for summary judgment (Docket Entry No. 12), to which petitioner
filed a response (Docket Entry No. 14).
Having reviewed the motion, the response, the record, and the applicable law, the
Court GRANTS the motion for summary judgment and DISMISSES this case for the reasons
that follow.
Background and Claims
Petitioner was convicted of evading arrest in a motor vehicle in Harris County, Texas,
and sentenced to thirty years’ incarceration in August 2014. The conviction was affirmed
on appeal, Smith v. State, 483 S.W.3d 648 (Tex. App.—Houston [14th Dist.] 2015, no pet.),
and petitioner did not pursue discretionary review. Petitioner’s application for state habeas
relief was denied by the Texas Court of Criminal Appeals.
Petitioner raises the following grounds for federal habeas relief:
1.
Trial counsel was ineffective:
a.
in going outside the record during closing argument;
b.
in failing to investigate the police videotapes;
c.
in having a conflict of interest;
d.
in failing to object to testimony that his co-defendant threw a “crack
pipe” out the window.
2.
The prosecution committed Brady error by suppressing police videotapes.
3.
The prosecution committed prosecutorial error in eliciting perjury.
Respondent argues that these claims are without merit and should be dismissed.
Factual Background
The intermediate state court of appeals set forth the following statement of facts in its
opinion affirming petitioner’s conviction.
Two officers on patrol received a radio dispatch report that a vehicle matching
the description of a stolen car was traveling southbound on Interstate 45 in
Houston, Texas. The officers parked on the shoulder of the freeway in their
marked patrol car and waited for the car to pass them. A car matching the
description in the dispatch, including the license plate number, passed the
patrol car. The officers began following the car. Two more officers in a
second patrol car joined the pursuit behind the first patrol car. Once both
patrol cars were behind the stolen car, the officers activated the sirens and
lights on their patrol cars.
2
The driver of the stolen car was in the far left lane when officers started
pursuing him, and he “cut across four lanes of traffic and got over to the right
side shoulder.” A passenger in the stolen car then threw what was later
identified as a “meth pipe” out of the passenger side window, and the driver
continued southbound on I–45. The driver then exited onto Highway 59
northbound. At that point, the officer driving the first patrol car pulled up next
to the stolen car, and the officer on the passenger side saw the driver, later
identified as appellant. The officer in the passenger seat testified that appellant
also saw him. Appellant then moved into the emergency lane to get ahead of
the patrol car, cutting off several cars in the process.
Appellant eventually exited onto Interstate 10 traveling eastbound, moved into
the far left lane, slowed down to approximately five to ten miles per hour, and
jumped out of the window of the moving vehicle. He subsequently jumped
over the median and ran across the westbound lanes of I–10 in front of
oncoming traffic. Officers pursued appellant across traffic on foot. Appellant
subsequently slid down an embankment where he injured his ankle and
surrendered because he could no longer run.
Officers testified that the car chase lasted four to five minutes over four to five
miles, and appellant was traveling approximately the speed limit of 60
miles-per-hour. Appellant’s driving was “very erratic, unsafe for other
motorists, [and] unsafe for [the officers].” In heavy traffic, appellant swerved
through traffic, made fluctuations in his speed and rapid lane changes without
signaling, and drove onto the shoulder several times. He cut off nearby drivers
and caused them to slam on their brakes. One officer testified that appellant
“was trying to get away from us, he . . . tried slowing down to throw us off,
[and] he would get real slow and at the last second, dart over.”
The jury found appellant guilty of the third degree felony of evading arrest or
detention with a vehicle. Appellant pleaded true to two prior felony
convictions. The trial judge enhanced the punishment based on those
convictions and assessed punishment at 30 years’ confinement.
Smith, 483 S.W.3d at 652–53 (internal citations omitted).
3
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 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. Harrington v. Richter, 562 U.S. 86, 98–99 (2011);
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 such a decision and arrives at a result different from the Supreme
Court’s precedent. Early v. Packer, 537 U.S. 3, 7–8 (2002).
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. “It
bears repeating that even a strong case for relief does not mean the state court’s contrary
4
conclusion was unreasonable.” Richter, 562 U.S. at 102. As stated by the Supreme Court
in Richter,
If this standard is difficult to meet, that is because it was meant to be. As
amended by AEDPA, § 2254(d) stops short of imposing a complete bar on
federal court relitigation of claims already rejected in state proceedings. It
preserves authority to issue the writ in cases where there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts with
this Court’s precedents. It goes no farther. Section 2254(d) reflects the view
that habeas corpus is a “guard against extreme malfunctions in the state
criminal justice systems,” not a substitute for ordinary error correction through
appeal.
Id., at 102–03 (emphasis added; internal citations omitted).
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 proceeding. 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. 28 U.S.C. § 2254(e)(1); see
also Miller–El, 537 U.S. at 330–31.
Summary Judgment
In deciding a motion for summary judgment, the district court must determine whether
the pleadings, discovery materials, and 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
5
a matter of law. FED. R. CIV. P. 56(c). Once the movant presents a properly supported
motion for summary judgment, the burden 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 rules only apply to the extent that they do 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, the state court’s findings must be accepted as correct by the
federal habeas court. 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. CONST. 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
6
performance. Id. at 687. The 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).
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.
7
Petitioner claims that trial counsel was ineffective in the following instances.
Closing Argument
Petitioner asserts that trial counsel erred in going outside the record during closing
argument because it allowed the prosecutor to go outside the record. Specifically, petitioner
complains that trial counsel had argued the defense was “ambushed” at trial by unexpected
police officer testimony; the prosecution countered in its closing argument that the defense
had the same right it did to subpoena witnesses and interview them before trial.
On direct appeal, petitioner argued that the trial court erred in overruling his objection
when the prosecution went outside the record during closing argument. In overruling
petitioner’s argument, the intermediary state court of appeals held as follows:
[A]ppellant argues that the trial court abused its discretion in overruling his
objection to the prosecutor’s statement during closing argument as follows:
Now, defense counsel brought up some issues with the police
officers bringing up new evidence and new testimony yesterday.
What he’s forgetting to tell you, we, the State, we have
subpoena power to subpoena witnesses and we do. That’s why
we’re here. That’s why we’re brought here. He also has
subpoena power. He also can talk to them before they come to
trial.
*
*
*
*
Appellant asserts that the prosecutor’s argument was improper because it
injected facts outside the record. We disagree. Under the invited argument
rule, a defendant cannot complain of improper prosecutorial argument if he
invited the argument. If the defendant’s counsel goes outside the record in his
argument, the prosecutor is also permitted to go outside the record to respond
as long as the response is within the scope of the invitation.
8
The prosecutor responded to the repeated argument by defense counsel that he
was “ambushed” and denied the opportunity to confront the officers and learn
their anticipated testimony before trial. No such evidence is in the record, so
defense counsel went outside the record when he made this argument. The
prosecutor’s response that defense counsel had the power to subpoena the
officers and thus could have talked to them before trial to ascertain their
anticipated testimony was within the scope of defense counsel’s invitation.
Accordingly, the trial court did not abuse its discretion in overruling
appellant’s objection to the prosecutor’s comment.
Smith, 483 S.W.3d at 657–58 (case citations, footnotes omitted).
On state collateral review, petitioner argued that counsel was ineffective in going
outside the record during his closing argument, because it allowed the prosecution to then
go outside the record during its own closing argument. In rejecting petitioner’s claim, the
state habeas court made the following relevant findings of fact:
5.
The applicant claims trial counsel was ineffective when trial counsel
argued that he had been ambushed at trial and denied his right to
confront witnesses prior to trial.
6.
The applicant claims trial counsel’s argument opened the door to
prejudicial comments by the prosecutor.
7.
In response to trial counsel’s argument, the prosecutor argued that trial
counsel had the power to subpoena the officers and could speak to them
before they testified at trial.
8.
Trial counsel objected and the trial court overruled the objection and
indicated that trial counsel invited the argument.
9.
The applicant fails to show that the result of the proceeding would have
been different if trial counsel would not have argued he had been
ambushed at trial and denied his right to confront witnesses prior to
trial.
9
10.
The applicant fails to offer any proof in support of his conclusory
allegation that he was harmed as a result of trial counsel’s argument.
Ex parte Smith, p. 53 (record citations omitted). The state court also made the following
relevant conclusions of law:
1.
The applicant’s conclusory allegation that he was harmed as a result of
trial counsel’s argument is not sufficient proof to warrant habeas corpus
relief.
*
12.
*
*
*
In all things, the applicant fails to show trial counsel’s performance was
deficient and that the deficient performance prejudiced the result.
Ex parte Smith, pp. 55, 56 (case citations omitted). The Texas Court of Criminal Appeals
expressly relied on the trial court’s findings of fact and conclusions of law in denying habeas
relief. Id., at cover.
Having reviewed the record, the Court finds no fault with the state court’s
determination that counsel was not ineffective in this regard. Petitioner’s conclusory
allegations and bald assertions that he was harmed by counsel’s actions during closing
argument are unsupported in the record and insufficient to support a Strickland claim. See
Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (explaining that, while “pro se habeas
petitions must be construed liberally, mere conclusory allegations on a critical issue are
insufficient to raise a constitutional issue”); Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir.
1983) (“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
10
anything else contained in the record, to be of probative evidentiary value.”). Even assuming
counsel were deficient, petitioner fails to establish that, but for counsel’s comments during
closing argument, there is a reasonable probability that the result of the trial would have been
different.
The state court rejected petitioner’s claims of ineffective assistance and found that
trial counsel was not ineffective. 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 dismissal of this claim.
Police Videotapes
Petitioner next argues that the police vehicles recorded videotapes the chase, and that
counsel failed to investigate the videotapes. According to petitioner, the videotapes would
have established his innocence and shown that the police officers lied as to what actually
happened during the chase.
In rejecting petitioner’s claim on collateral review, the state trial court made the
following relevant findings of fact:
11.
The applicant claims trial counsel was ineffective for failing to
investigate because he failed to obtain and view the videotape of the
police chase.
12.
The applicant fails to show a videotape of the police chase exists.
11
13.
The record does not support the existence of a videotape of the police
chase.
14.
Both Houston Police Department officers that were involved in the
chase testified that their patrol cars did not have video capabilities.
15.
The applicant fails to show what trial counsel would have discovered
had he reviewed the alleged video.
Ex parte Smith, pp. 53–54 (record citations omitted). The state trial court also made the
following relevant conclusions of law:
2.
Because the applicant fails to show that a videotape of the police chase
exists, he fails to show what trial counsel would have discovered had
he reviewed the alleged video.
3.
Because the applicant fails to show what trial counsel would have
discovered with additional investigation, the applicant fails to show
trial counsel was ineffective for failing to investigate.
*
12.
*
*
*
In all things, the applicant fails to show trial counsel’s performance was
deficient and that the deficient performance prejudiced the result.
Id., pp. 55, 56 (case citations omitted). The Texas Court of Criminal Appeals expressly
relied on the trial court’s findings of fact and conclusions of law in denying habeas relief.
Id., at cover.
Petitioner again attempts to support his claim of ineffective assistance of trial counsel
with speculation and bald assertions. Nothing in the record establishes that the police
vehicles involved in the chase were equipped with video cameras. To the contrary, the
uncontroverted trial evidence established that the police vehicles did not have video
12
capabilities. Consequently, petitioner fails to demonstrate the existence of a police videotape
that counsel failed to investigate. Because petitioner does not establish the existence of a
videotape, he fails to show that counsel’s investigation would have discovered favorable
defense evidence.
The Court cannot grant petitioner habeas relief based upon his
unsupported conjecture that a videotape existed and that it would have proved him innocent.
See Koch, 907 F.2d at 530; Ross, 694 F.2d at 1011.
The state court rejected petitioner’s claims of ineffective assistance and found that
trial counsel was not ineffective. 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 dismissal of this claim.
Conflict of Interest
Petitioner contends that counsel had a conflict of interest in representing him because
counsel had also represented his co-defendant, the passenger in his car. The co-defendant
was charged with tampering with evidence after she threw a meth pipe out the passenger-side
window during the police chase. Her case was subsequently dismissed as the pipe tested
negative for any controlled substance. Petitioner argues that trial counsel “could not, in good
conscience, call [co-defendant] to the stand to give account of her actions by virtue of his
client-attorney-client conflicting relationship between the three parties.” (Docket Entry No.
1, p. 16.)
13
In rejecting this claim on collateral review, the state trial court made the following
relevant findings of fact:
16.
The applicant claims trial counsel was ineffective for representing the
applicant and his co-defendant [] despite an actual conflict of interest.
17.
The applicant fails to show an actual conflict of interest existed.
Ex parte Smith, p. 54 (record citations omitted). The state trial court also made the following
relevant conclusions of law:
4.
In order to show that trial counsel was ineffective due to a conflict of
interest, the applicant must show that trial counsel had an actual
conflict of interest that actually colored counsel’s actions during trial.
5.
An actual conflict of interest exists if counsel is required to make a
choice between advancing his client’s interest in a fair trial or
advancing other interests (perhaps counsel’s own) to the detriment of
his client’s interests.
6.
Because the applicant fails to show that an actual conflict of interest
existed, the applicant fails to show trial counsel was ineffective due to
a conflict of interest.
7.
The applicant’s conclusory allegation that there was a conflict of
interest is not sufficient proof to warrant habeas relief.
*
12.
*
*
*
In all things, the applicant fails to show trial counsel’s performance was
deficient and that the deficient performance prejudiced the result.
Id., pp. 55–56 (case citations, quotation marks omitted). The Texas Court of Criminal
Appeals expressly relied on the trial court’s findings of fact and conclusions of law in
denying habeas relief. Id., at cover.
14
To prevail on his claim, petitioner must show that trial counsel was acting under the
influence of an actual conflict of interest, as opposed to only a potential or hypothetical
conflict, that adversely affected counsel’s performance at trial. See Cuyler v. Sullivan, 446
U.S. 335, 348–50 (1980). Relevant factors to be considered in determining whether a
conflict exists include:
(1) whether the attorney has confidential information that is helpful to one
client but harmful to the other client; (2) whether and how closely related is the
subject matter of the multiple representations; (3) how close in time the
multiple representations are; and (4) whether the prior representation has been
unambiguously terminated.
United States v. Burns, 526 F.3d 852, 856 (5th Cir. 2008).
An actual conflict exists when an attorney is in a situation inherently conducive to
divided loyalties that would force the attorney to take action, due to a duty for one person,
at the expense of a duty to another. Mitchell v. Maggio, 679 F.2d 77, 79 (5th Cir. 1982).
Here, petitioner’s conclusory allegations of a conflict are insufficient to support a finding of
an actual conflict of interest. For example, petitioner fails to identify with facts how
counsel’s loyalties were divided, what actions counsel took to undermine his duty to
petitioner, or state a meritorious allegation in which counsel acted ineffectively or
compromised his duty to him. Petitioner presents no probative summary judgment raising
a genuine issue of material fact evidence sufficient to preclude the granting of summary
judgment.
15
Petitioner does not show an actual conflict of interest, much less demonstrate any
adverse effect on counsel’s representation of petitioner. The state court rejected petitioner’s
claims of ineffective assistance and found that trial counsel was not ineffective. 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 dismissal of this claim.
Failure to Object to Evidence
Petitioner claims that counsel should have objected to testimony that his co-defendant
tossed a “crack pipe” out the vehicle’s window during the police chase.
In rejecting this claim on collateral review, the state trial court made the following
relevant findings of fact:
18.
The applicant claims trial counsel was ineffective for failing to object
to evidence that his co-defendant [] threw a meth pipe out of the
passenger window during the police chase.
19.
Houston Police Department Officer Laureano testified that [codefendant] threw a meth pipe out of the window during the chase.
20.
Trial counsel did not object to this testimony.
21.
The applicant fails to show the trial court would have committed error
in overruling an objection to the testimony regarding [co-defendant’s]
actions.
22.
[Co-defendant’s] actions were admissible as same transaction evidence.
16
Ex parte Smith, p. 54 (record citations omitted). The state trial court also made the following
relevant conclusions of law:
8.
Same transaction evidence may be admissible where several crimes are
intermixed and form an indivisible criminal transaction.
9.
Because the applicant fails to show the trial court would have
committed error in overruling an objection to the testimony regarding
[co-defendant’s] actions during the chase, the applicant fails to show
trial counsel was ineffective for failing to object.
*
12.
*
*
*
In all things, the applicant fails to show trial counsel’s performance was
deficient and that the deficient performance prejudiced the result.
Id., p. 56 (case citations, quotation marks omitted). The Texas Court of Criminal Appeals
expressly relied on the trial court’s findings of fact and conclusions of law in denying habeas
relief. Id., at cover.
As shown, the trial court on collateral review determined that the evidence was
admissible as same transaction evidence under state law. This Court is bound by that
determination of state law. See Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998) (noting
that “[i]n habeas actions this court does not sit to review the mere admissibility of evidence
under state law”). The trial court further determined that petitioner failed to show the trial
court would have committed error in overruling an objection to the evidence. Consequently,
petitioner establishes neither deficient performance nor actual prejudice under Strickland,
and habeas relief is unwarranted.
17
The state court rejected petitioner’s claims of ineffective assistance and found that
trial counsel was not ineffective. 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 dismissal of this claim.
Brady Violation
According to petitioner, the police vehicles involved in the chase were equipped with
videotape cameras that captured the actual chase. He claims that the prosecution hid the
videotapes from the defense, and that the videotapes would have impeached the police
officers and established his own innocence. Petitioner asserts constitutional error under
Brady v. Maryland, 373 U.S. 83 (1963).
In rejecting petitioner’s claim on collateral review, the state habeas court made the
following relevant findings of fact:
23.
The applicant claims the prosecutor withheld a video recording of the
police chase.
24.
The applicant fails to show a video recording of the police chase exists.
25.
The applicant fails to show that the prosecutor withheld a video
recording of the police chase.
Ex parte Smith, p. 54 (record citations omitted). The state trial court also made the following
relevant conclusions of law:
18
10.
Because the applicant fails to show that a video recording of the police
chase exists or that the prosecutor withheld the alleged video, the
applicant fails meet his burden of proof as he fails to plead and prove
facts which would entitle him to relief and fails to prove his claim by
a preponderance of the evidence.
*
12.
*
*
*
In all things, the applicant fails to show trial counsel’s performance was
deficient and that the deficient performance prejudiced the result.
Id., p. 56 (case citations, quotation marks omitted). The Texas Court of Criminal Appeals
expressly relied on the trial court’s findings of fact and conclusions of law in denying habeas
relief. Id., at cover.
Under Brady, a prosecutor must disclose evidence to the defendant if the evidence is
favorable to the defendant and material to his guilt or punishment. “There are three
components of a true Brady violation: The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or inadvertently; and prejudice must have
ensued.” Strickler v. Greene, 527 U.S. 263, 281–82 (1999). Evidence is material within the
meaning of Brady only when there is a reasonable probability of a different result at trial had
the evidence been disclosed. Wood v. Bartholomew, 516 U.S. 1, 5 (1995).
In this instance, petitioner fails to meet the most basic element of his Brady claim –
the existence of a police videotape. The Court cannot address the issues of suppression or
materiality if petitioner has not shown that the evidence actually exists. Here, petitioner
19
presents only conjecture and speculation as to the existence and contents of the alleged police
videotape. Because he does not establish the existence of a videotape, much less its contents,
he cannot meet his burden of showing wrongful suppression of favorable evidence. The
record before this Court does not support a Brady violation.
Petitioner attempts to argue that he could prove his Brady claim if given an
evidentiary hearing. However, he proffers no specifics as to how he would prove his claim,
particularly in light of uncontroverted testimony in the trial record establishing that the police
vehicles had no videotaping capabilities. A habeas petitioner is not entitled to an evidentiary
hearing if his claims are conclusory allegations unsupported by specifics. Young v. Herring,
938 F.2d 543, 560 (5th Cir. 1991). Petitioner’s conjectural assertions in this instance do not
entitle him to an evidentiary hearing regarding his Brady claim.
The state court rejected petitioner’s claims for a Brady violation. Petitioner fails to
show that the state court’s determination was contrary to, or involved an unreasonable
application of, federal law or was an unreasonable determination of the facts based on the
evidence in the record. Respondent is entitled to summary judgment dismissal of this claim.
Perjury
Petitioner asserts that the State elicited perjured testimony from police officers at trial.
In support, he argues that the officers testified to factual details of the chase that were not
included in their written offense reports.
20
In rejecting this claim on collateral review, the state trial court made the following
relevant findings of fact:
26.
The applicant claims the prosecutor elicited perjured testimony.
27.
The applicant fails to show that any of the alleged “perjured” testimony
was false.
28.
The applicant merely complains that the officers testified to facts that
they did not include in their respective offense reports.
29.
The applicant fails to show that any portion of the officers’ testimony
was false.
Ex parte Smith, pp. 54–55. The state trial court also made the following relevant conclusions
of law:
11.
Because the applicant fails to show that any of the officers’ testimony
was false, the applicant fails to meet his burden of proof.
12.
In all things, the applicant fails to show trial counsel’s performance was
deficient and that the deficient performance prejudiced the result.
Id., p. 56 (case citations omitted). The Texas Court of Criminal Appeals expressly relied on
the trial court’s findings of fact and conclusions of law in denying habeas relief. Id., at
cover.
A criminal defendant is denied due process if the prosecution knowingly uses perjured
testimony at trial or allows untrue testimony to go uncorrected. Giglio v. United States, 405
U.S. 150 (1972); Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir. 1996). To obtain relief on
such a claim, a petitioner must show that (1) the testimony was actually false, (2) the
21
prosecutor knew it was false, and (3) the testimony was material. Kirkpatrick v. Whitley, 992
F.2d 491, 497 (5th Cir. 1993).
Here, the essence of petitioner’s perjury claim is that the officers testified to details
of the chase that did not appear in their offense reports. However, petitioner never
established that the officers’ testimony was false. Consequently, and as found by the state
court, petitioner did not show that the prosecution elicited perjured testimony. Nor does
petitioner show perjury by pointing out inconsistencies in the officers’ testimony. It is well
established that conflicting or inconsistent testimony is insufficient to establish perjury.
Kutzner v. Johnson, 242 F.3d 605, 609 (5th Cir. 2001); Little v. Butler, 848 F.2d 73, 76 (5th
Cir. 1988) (holding that inconsistencies in trial testimony are to be resolved by a trier of fact
and do not suffice to establish that testimony was perjured).
The state court rejected petitioner’s claims of perjury. Petitioner fails to show that the
state court’s determination was contrary to, or involved an unreasonable application of,
federal law or was an unreasonable determination of the facts based on the evidence in the
record. Respondent is entitled to summary judgment dismissal of this claim.
Evidentiary Hearing
A district court may hold an evidentiary hearing only when the petitioner has shown
either that a claim relies on a new, retroactive rule of constitutional law that was previously
unavailable, 28 U.S.C. § 2254(e)(2)(A)(i), or the claim relies on a factual basis that could not
have been previously discovered by exercise of due diligence, 28 U.S.C. § 2254(e)(2)(A)(ii);
22
and the facts underlying the claim show by clear and convincing evidence that, but for the
constitutional error, no reasonable juror would have convicted the petitioner. 28 U.S.C. §
2254(e)(2)(B). Petitioner here has not met these requirements, and the Court has determined
that no evidentiary hearing is necessary for disposition of the claims raised in this habeas
proceeding.
Conclusion
Respondent’s motion for summary judgment (Docket Entry No. 12) is GRANTED
and this lawsuit is DISMISSED WITH PREJUDICE. Any and all pending motions are
DENIED AS MOOT. A certificate of appealability is DENIED.
Signed at Houston, Texas on February 15, 2018.
Gray H. Miller
United States District Judge
23
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?