Eugene Washington, Jr., Petitioner-appellant, v. W. J. Estelle, Jr., Director, Texas Department Ofcorrections, Respondent-appellee, 648 F.2d 276 (5th Cir. 1979)

Appellant Washington appeals the denial of his 28 U.S.C.A. § 2254 petition for habeas relief. Washington and an accomplice were found guilty of robbing the Credit Auto Sales in Dallas, Texas and absconding with approximately $500 in cash and a wristwatch belonging to one of the partners James R. Laney. Washington, who was apprehended shortly after the robbery, made an oral confession admitting the crime and the location of a pawn ticket which was ultimately redeemed for the stolen watch. Five days after Washington's arrest, Laney identified him in a pre-trial lineup.

At trial, Laney made a positive in-court identification of both Washington and the stolen wristwatch. The State introduced the pawn ticket into evidence. Based on this uncontroverted evidence, the jury found Washington guilty and sentenced him to ninety-nine years.

Washington's conviction was affirmed by the Court of Criminal Appeals in an unpublished opinion on October 10, 1973. Following an exhaustion of State remedies, which wielded no relief, Washington sought federal habeas, 28 U.S.C.A. § 2254, in the Southern District of Texas. His cause was transferred and referred to a federal magistrate in the Northern District in June 1978 who likewise denied relief. In October 1979, the District Court conducted a de novo review of the objected to portions of the Magistrate's file and, finding no error, entered an order adopting the Magistrate's findings, conclusions, and recommendations. Timely notice of this appeal followed.

Appealing Challenges?

Washington alleges numerous errors. He complains that the Federal Magistrates violated their scope and authority under the Federal Magistrate Act, 28 U.S.C.A. § 636, by considering the case initially without District Court order and later by independently denying a motion for appointment of counsel. In addition, he alleges that the District Court erred in (i) failing to conduct a comprehensive de novo review of the entire record, (ii) failing to provide Washington an opportunity to object to the Magistrate's recommendation, (iii) ruling as harmless error incorrect file markings on the record, and (iv) finding that Washington was afforded adequate representation of counsel. Finding that Washington's alleged error affords him no federal relief, we affirm the District Court's denial of habeas.

Ineffective Assistance Of Counsel Bad Timing?

Believing Washington's claim of ineffective assistance of counsel as his most substantial challenge, we address it initially. At both the State and Federal level, as well as now, Washington's primary complaint is with counsel's failure to object to the testimony of State's witness, Detective John Adamich, which bolstered the unimpeached testimony of complainant Laney concerning his identification of Washington at the pre-trial line-up.¹ 

Under Texas law, bolstering testimony constitutes reversible error provided the error is preserved for review by contemporaneous objection. Lynons v. State, 388 S.W.2d 950 (Tex.Crim.App.1965). Because the error complained of in the present case was not properly preserved, the State Courts have accordingly refused review. See, e. g., Aldrighetti v. State, 507 S.W.2d 770 (Tex.Crim.App.1974).

Likewise, counsel's failure to object will foreclose review at the federal level, unless Washington can establish his right to review under Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). Sykes admonishes us that absent cause for the procedural default and actual prejudice from the error, principles of comity and federalism prevent federal courts from granting habeas relief to state prisoners whose claim is non-reviewable in State Court because of the default. Accord, Jiminez v. Estelle, 557 F.2d 506, 511 (5th Cir. 1977); Jurek v. Estelle, 593 F.2d 672, 683 (5th Cir. 1979). Washington argues that the "cause" of his trial counsel's failure to object to the bolstering testimony was due to his counsel's ineffectiveness. This will not suffice. We have previously held that an allegation of ineffective counsel is not sufficient to satisfy the "cause" requirement. Lumpkin v. Ricketts, 551 F.2d 680 (5th Cir. 1977), cert. denied, 434 U.S. 957, 98 S. Ct. 485, 54 L. Ed. 2d 316 (1977).

(P)etitioner has not demonstrated cause for his failing to make a timely challenge. His only allegation in this regard is that his trial attorney provided ineffective assistance of counsel in failing to so object. This assertion must be rejected, however, for, if accepted, it would effectively eliminate any requirement of showing cause at all. If a petitioner could not demonstrate any legitimate cause, he would only have to raise the spectre of ineffective assistance of counsel to get his challenge heard. This we refuse to sanction.

551 F.2d 680 at 683. See also Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974, 99 S. Ct. 1542, 59 L. Ed. 2d 793 (1979); Indiviglio v. United States, 612 F.2d 624 (2d Cir. 1979), cert. denied, 445 U.S. 933, 100 S. Ct. 1326, 63 L. Ed. 2d 768 (1980).

This conclusion is further reinforced by the recent opinion on petition for rehearing in Tyler v. Phelps, 643 F.2d 1095 (1981), which declined to hold, as it originally had, that an allegation of ineffective assistance of counsel, though not in the nature of a Sixth Amendment violation, might satisfy "cause". We further embrace that Court's conclusion that it is "not for federal courts to speculate as to possibly reasons for failure to object." Phelps, 643 F.2d at 1100, 1102. In the present case, finding that sufficient "cause" has not been established because it cannot be established by a mere allegation of ineffective assistance, nor has it been established by the record itself, we hold that the unexcused failure to comply with Texas contemporaneous objection rule precludes the granting of habeas corpus relief of this claim. Since the "cause" element has not been met, we need not reach a determination of whether or not Washington suffered "actual prejudice".

Ineffective Assistance Of Counsel Sixth Amendment Violation?

Washington also raises lack of effective assistance of counsel as a separate ground for relief by way of a Sixth Amendment violation. The Sixth Amendment right to counsel entitles the accused in a criminal proceeding to representation by an attorney reasonably likely to render and rendering reasonably effective assistance. See, e. g., Hill v. Wainwright, 617 F.2d 375 (5th Cir. 1980); Rummell v. Estelle, 590 F.2d 103 (5th Cir. 1979); Carbo v. United States, 581 F.2d 91 (5th Cir. 1978); Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974). Moreover, we have said that effective assistance is neither tantamount to errorless assistance, nor counsel judged ineffective by hindsight. Clark v. Blackburn, 619 F.2d 431 (5th Cir. 1980); Easter v. Estelle, 609 F.2d 756 (5th Cir. 1980); MacKenna v. Ellis, 280 F.2d 592 (5th Cir.), modified, 289 F.2d 928, cert. denied, 368 U.S. 877, 82 S. Ct. 121, 7 L. Ed. 2d 78 (1961). Rather, the methodology for applying the standard involves an inquiry into the actual performance of counsel conducting the defense and a determination of whether reasonably effective assistance was rendered based upon the totality of circumstances in the entire record. See, e. g., Lovett v. State of Florida, 627 F.2d 706 (5th Cir. 1980); United States v. Gray, 565 F.2d 881 (5th Cir. 1978); Lee v. Hopper, 499 F.2d 456 (5th Cir. 1974). It is within this framework of totality of circumstances that we judge the "fundamental fairness" of the trial and ultimately counsel's effectiveness or ineffectiveness.

In the present case, the record affords the conclusion, that Washington's counsel overall, rendered effective assistance by (i) filing pre-trial motions, (ii) requesting and obtaining a "sub-rosa" hearing prior to the time that Laney was permitted to effect an in-court identification of Washington, (iii) obtaining a hearing outside the jury's presence concerning whether Washington's oral confession and the pawn ticket should be admitted into evidence, (iv) lodging objections (although overruled) to the confession and pawn ticket, and (v) cross examining the State's witness rigorously in an effort to undermine Laney's in-court identification. Washington specifically faults his counsel in this ground of error for failing to object not only to the bolstering testimony but to the following alleged improper prosecutorial comments.

Fortunately, these robbers were caught due to these facts that we haven't been able to go into, facts that certainly you know from the evidence that you can reasonably deduct from the evidence that something happened four days after this robbery which led to the apprehension of these two men, both of them on the same day, this one and Wess, that we can't go into, I wish we could.² 

The State Court declined to review this challenge for the same reasons that it had refused to review the alleged error of bolstering no objection. The District Court, on the other hand, found that the unobjected to statement, although improper, was not prejudicial enough to violate the constitutional principles of fundamental fairness of the trial as a whole. We agree. This Circuit has repeatedly held that prosecutor's alleged misconduct must be viewed in the context of the entire trial, United States v. Socony-Vacuum Oil Co., Inc., 310 U.S. 150, 239, 242, 60 S. Ct. 811, 853, 84 L. Ed. 1129 (1940); Berger v. United States, 295 U.S. 78, 89, 55 S. Ct. 629, 633, 79 L. Ed. 1314 (1935); Houston v. Estelle, 569 F.2d 372, 378 n. 8 (5th Cir. 1978), and the admission of prejudicial evidence can justify habeas corpus relief only if the error was "material in the sense of crucial, critical, highly significant factor." Anderson v. Maggio, 555 F.2d 447, 451 (5th Cir. 1977). The record in the present case reflects an overwhelming amount of evidence indicating Washington's guilt his oral confession, the pawn ticket, and Laney's identification testimony. Neither Detective Adamich's testimony or the prosecutor's comment at the punishment phase of the trial, contained any new prejudicial material. Consequently, Washington cannot find relief in a Sixth Amendment ineffective assistance of counsel claim.Magistrate Violations?

Washington lodges several due process violations in the review of his petition by the federal magistrate and the District Court. We find these allegations lacking in constitutional merit.

Initially, Washington alleges that the federal magistrate violated his scope and authority when he independently considered Washington's writ application and subsequently when he transferred the case without notifying petitioner. The United States Magistrate Act, 28 U.S.C.A. § 636(B)³  authorizes the magistrates to enter findings and recommendations in 28 U.S.C.A. § 2254 petitions. It is clear from the language and legislative history of the 1976 amendments to the act, which were applicable at the time of this action, that Congress intended to give magistrates more than just the authority to make a preliminary review of § 2554 petitions. Subsection (B) extended their authority to include conducting evidentiary hearings and, when necessary, reviewing additional evidence relating to the issues presented. The District Judge was then given wide discretion to "accept, reject or modify" the magistrate's findings and recommendations, including the power to remand with instructions. H.R.Rep.No. 94-1609, 94th Cong., 2d Sess. 12, reprinted in (1976) U.S.Code Cong. & Ad.News, pp. 6162, 6171. Further, under Miscellaneous Order 13, Local Rules for the U.S. District Court for the Northern District of Texas, all § 2254 petitions are automatically referred to magistrates.⁴  We also find persuasive in this issue the fact that the District Court adopted the magistrate's recommendations without remanding, thereby impliedly recognizing the magistrate's authority.

Finding that the case had been properly referred to the magistrate's office initially, Washington's contention that due process entitled him to notice of the transfer of the case from one magistrate to another is irrelevant. Washington has neither alleged nor demonstrated prejudice of a constitutional magnitude in the consideration of the case by a different magistrate than the one who originally entered the show cause order.

Neither do we accept Washington's proposition, that the magistrate unconstitutionally was delegated the power to deny Washington's motion for appointment of counsel. Although the power to appoint counsel is not expressly stated in the act, § 636(b) (3) provides generally for the assignment to a magistrate of any other duty not inconsistent with the Constitution and laws of the United States. Congress included this provision to enable the District Court to continue innovative measures in the use of magistrates. The placement of this additional grant of authority in an entirely separate subdivision emphasizes that this section was not to be restricted by other specific grants of authority. The Legislative History further suggests that this subsection would enable the courts to delegate more administrative functions to the magistrate, such as "the appointment of attorneys in criminal cases and assistance in the preparation of plans to achieve prompt disposition of cases in the court." U.S.Code Cong. & Ad.News at 6172 (1976). Moreover, Washington concedes that there exists no constitutionally mandated right to appointed counsel in a habeas corpus action; hence, the refusal to appoint counsel does not rise to the level of a constitutional infraction.

Both in his brief and at oral argument, Washington maintains that the District Court erred in reviewing de novo only the objected to portion of the magistrate's findings, rather than reviewing the entire record de novo. The order adopting the magistrate's findings, conclusions and recommendations stated:

The Court having considered the Findings and Recommendations of the United States Magistrate filed on September 19, 1979, and the Court further having reviewed and considered the written objections filed by the Petitioner herein on October 2, 1979, and the Court having made a de novo review of the objections raised by the Petitioner and the Court being of the opinion that the findings are correct and that the objections are without merit,

IT IS, THEREFORE, ORDERED that the Findings, Conclusions and Recommendations of the United States Magistrate are adopted.

R. vol. I at 17.

Based on the language of this order, we are convinced that the District Judge sufficiently complied with the act which requires "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C.A. § 636(b) (1) (C). See, e. g., Calderon v. Waco Lighthouse for the Blind, 630 F.2d 352 (5th Cir. 1980).

Washington's final allegation in this regard is that the Court erred in not providing him an opportunity to object to the magistrate's denial of the certificate of probable cause. That error, if any, was cured by this Court's granting of the certificate of probable cause for this appeal.

We also consider as harmless, Washington's allegation that erroneous file markings in the record entitle him to an evidentiary hearing and additionally establish a denial of due process. According to the file markings, only 17 minutes were allowed for objections to the instructions to the jury, closing arguments for both sides, jury deliberation and announcement of the verdict.⁵  In addressing this point, the Magistrate concluded that the record was in error but denied relief because Washington had failed to demonstrate an abridgement of any constitutional right or actual prejudice caused by the clerical error. (R. vol. I at 17.) We affirm this finding and further hold that the District Court is not required to hold an evidentiary hearing, as Washington asserts, because he has failed to allege facts which, if true, would have entitled him to any relief from his conviction. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963); Rutledge v. Wainwright, 625 F.2d 1200, 1205 (5th Cir. 1980); Easter v. Estelle, 609 F.2d 756 (5th Cir. 1980); Cronnon v. State, 587 F.2d 246, 249 (5th Cir.), cert. denied, 440 U.S. 974, 99 S. Ct. 1542, 59 L. Ed. 2d 792 (1979); Hills v. Henderson, 529 F.2d 397 (5th Cir. 1976).

Finding nothing in any of Washington's claims which rises to a constitutional level, we hold that the District Court properly denied Washington's petition for habeas corpus.

AFFIRMED.