Draper v. Thaler, No. 4:2013cv00981 - Document 25 (S.D. Tex. 2014)
Court Description: MEMORANDUM OPINION AND ORDER granting 21 MOTION for Summary Judgment with Brief in Support, denying 5 MOTION To Stay And Abey Petition For Writ Of Habeas Corpus, dismissing with prejudice 1 Petition for Writ of Habeas Corpus by a Person in State Custody. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION REYNALDO DEWAYNE DRAPER, TDCJ-CID NO. 1641883, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. 1 § § § § § § § § § § § § § CIVIL ACTION NO. H-13-0981 MEMORANDUM OPINION AND ORDER Reynaldo Dewayne Draper, an inmate of the Texas Department of Criminal Justice - Correctional Institutions Division ("TDCJ-CID"), filed a Petition for a Writ of Habeas Corpus By a Person in State Custody ("Petition") (Docket Entry No.1) conviction in state court. challenging a criminal The respondent has filed a Motion for Summary Judgment with Brief in Support (Docket Entry No. 21), which is supported by state court records. After reviewing the pleadings and the records, the court has determined that the motion should be granted. IRick Thaler was named as respondent in this action because he was the Director of the TDCJ at the time the petition for writ of habeas corpus was filed. Because Thaler has retired, the Court substitutes his successor, Director William Stephens, as the proper respondent pursuant to Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts. I. Draper was Procedural History charged Fort Bend County, Texas, Entry No. 18-37, p. 18). with murdering on August 23, Jairus 2008 Elon White (Indictment, in Docket The Indictment also alleged that Draper had been previously convicted of felony possession of a controlled substance, cocaine. After entering a plea of not guilty, Id. Draper was tried before a jury, which found him guilty as charged in the Indictment (Verdict, Docket Entry No. 18-38, p. 34). finding After that Draper had been previously convicted of a felony offense, the jury sentenced him to 75 years in prison and assessed a $10,000.00 fine. of pp. Commitment, 41-43; (Docket Entry No. 18-38, Verdict, p. 39; Order p. State 40; v. Judgment Draper, on No. Jury verdict 50076-A (240th of Guilty, Dist. Ct., Fort Bend County, Tex., Feb. 9, 2010)) Draper appealed the judgment, which was affirmed by the Court of Appeals for the Fourteenth District of Texas. Draper v. State, 335 S.W.3d 412 (Tex. App. - Houston [14th Dist.] 2011, pet. ref'd). The Texas Court of Criminal Appeals refused Draper's petition for discretionary review (PDR) on June 22, 2011. Draper v. State, No. 0744-11. On August 29, writ of habeas 2012, Draper filed a state application for a corpus challenging the conviction pursuant Article 11.07 of the Texas Code of Criminal Procedure to (Original Application for a Writ of Habeas Corpus, Docket Entry No. 18-38, pp. 55-73). Upon receiving the application the state district -2- court issued an Order Designating Issues with instructions for Draper's trial counsel and appellate counsel to answer Draper's allegations of ineffective assistance of No. 9-10) pp. 18-43 r State's answer r the counsel After considering the records r and the (Docket Entry application, affidavits the submitted by Draper's former counsel, the trial court issued Findings of Fact and Conclusions of Law ("Findings and Conclusions") that the application be denied (Docket Entry No. recommending 18-43, pp. 98- The habeas proceeding was then forwarded to the Court of 105) . Criminal Appeals, which denied the application without a written order on findings of the trial court without a hearing. Draper r No. 79 r 228-01 (Tex. Crim. App. April 17, Ex parte Draper 2013) filed the instant federal habeas petition for a writ of habeas corpus challenging the murder conviction on March 25, 2013. II. Draper's Claims and Respondent's Arguments Draper has presented the following grounds for relief in his federal habeas petition: 1. The State violated Draper's due process rights by withholding exculpatory evidence (a 911 call revealed during cross-examination) in violation of Brady2 (Petition, Docket Entry No. I, pp. 6-7) i 2. The State violated its own pretrial motion in limine by eliciting testimony regarding Draper's alleged gang affiliation (Id. at 6-8.) i 3. The trial court erred in admitting Draper's gang affiliation into evidence and in failing to 2 Bra dy v. Maryland, 83 S. Ct. 1194, 1196-97 (1963). -3- ~---. --.---.----.-.. - .. instruct the jury to disregard the evidence (rd. at 9-10.) ; admitting witness, perjured Kimberly 4. The trial court erred in testimony of the State's Alexander (rd.); 5. Draper was denied effective assistance of counsel when his trial attorney, Dorian Cotlar (a) failed to object to the State's questioning of Alexander that caused her to change her testimony; (b) failed to request a mistrial based on the State's coercion of contradictory testimony from Alexander; and (c) elicited testimony from a detective that opened the door to violating the State's motion in limine, which had been granted (rd. at 10-11.); 6. Draper was denied effective assistance of counsel when his appellate attorney, Cary M. Faden (a) filed a PDR for Draper after advising Draper that he would have to file a pro se PDR and (b) failed to raise issues on direct appeal (rd. at 12-13.); and 7. The trial court erred by (1) refusing to declare a mistrial after the jury indicated that it was hopelessly deadlocked and (2) issuing a coercive Allen 3 charge (rd. at 13-15.). The respondent filed a motion for summary judgment arguing that Draper has failed to meet the burden of proof necessary to qualify for relief in a federal habeas corpus proceeding. Draper filed Petitioner's Objection to Respondent's Motion for Summary Judgment (Docket Entry No. 24). III. Facts Established at Trial The Fourteenth Court of Appeals set forth a summary of the evidence in its opinion as follows: All en v. United States, 17 S. Ct. 492, 501 (1896). 3 -4- Appellant invited several friends to a birthday party in his honor at a local bar. After the bar closed and the party ended, appellant and his friends stayed behind to talk in the parking lot. The complainant, who was not a part of appellant's group, stood nearby. The complainant made a comment about appellant's friend, who was dancing on a parked car. After a brief conversation between appellant and the complainant, the complainant turned to get into his car. Witnesses testified that appellant pulled out a firearm, shot at the complainant from behind, and fired several more shots at the complainant after he fell to the ground. Appellant fled, and the complainant died at the scene. An autopsy revealed that the complainant sustained nine entrance and two exit gunshot wounds. Draper v. State, 335 S.W.3d at 413. IV. Standard of Review Motions for summary judgment are typically governed by Rule 56 of the Federal Rules of Civil Procedure. Habeas corpus proceedings, however, are governed by the applicable provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Lindh v. Murphy, 117 S. Ct. 2059, 2067 (1997) Johnson, 202 F.3d 760, 764 (5th Cir. 2000). petitioner's claims were See see also Clark v. i To the extent that the "adjudicated on the court, the AEDPA standard found at 28 U.S.C. § merits" in state 2254(d) applies. Claims presenting pure questions of law and mixed questions of law and fact are governed by 28 U.S.C. § 2254 (d) (1), which precludes habeas relief unless a petitioner demonstrates that the state court's involved Federal an law, decision to unreasonable as deny a claim application determined by -5- the of, "was contrary clearly Supreme to, or established Court of the United States [.] II 28 U.S.C. § 2254 (d) (1); McGowen v. Thaler F.3d 482 1 489 (5th Cir. 2012). l 675 A state court/s decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Taylor l 120 S. Ct. 1495 1499-1500 (2000). 1 See Williams v. A state court unreason- ably applies clearly established precedent if it identifies the correct governing legal principle but unreasonably applies that principle to the facts of the case. 527 1 535 (5th Cir. 2009) 1438-39 (2005). citing I Day v. Quarterman of unreasonable." 566 F.3d Brown v. Pay tonI 125 S. Ct. 1432 1 Under this standard an unreasonable application is more than merely incorrect or erroneous; rather application l clearly Williams established l law l must the state court/s be "objectively 120 S. Ct. 1521. The Supreme Court has held that "review under § 2254(d) (1) is limited to the record before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S. Ct. 1388 (2011) . A state court/s findings of fact correct' unless the habeas petitioner through 'clear and convincing evidence. 472 F.3d 287, 292 (5th Cir. 2006) I III "are rebuts 1 1398 'presumed to be the presumption Nelson v. Quarterman quoting 28 U.S.C. § l 2254(e) (1). This presumption extends not only to express findings of factI but also to the implicit findings of the state court. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006) -6- See Garcia v. (citations omitted) . Where pure questions of fact are concerned a petitioner is not entitled to relief unless he demonstrates that the state court's decision was "based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254 (d) (2) i see also Buntion v. Quarterman, 524 F.3d 664, 670 (5th Cir. 2008) As this deferential standard reflects, the AEDPA has "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state court convictions are given effect to the extent possible under law." citing Williams, 120 Bell v. Cone, 122 S. Ct. 1843, 1849 (2002), S. Ct. at 1518. The Supreme Court has underscored the extent of this deferential standard: [28 U.S.C. § 2254(d)] 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. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining [a writ of] habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. Richter, 131 S. Ct. at 786-87. This deferential AEDPA standard of review applies even where the state court fails to cite applicable Supreme Court precedent or -7- fails to explain its decision. 362, 365 See Early v. (2002); see also Richter, Packer, 131 S. Ct. at 785 123 S. Ct. ("§ 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits'"). this deferential standard in mind, With the petitioner's claims are examined below under the applicable legal standard. V. A. Discussion Brady Claim In his first claim Draper contends that the State withheld exculpatory evidence in violation of Brady (Petition, Docket Entry No.1, pp. 6-7). time of the He alleges that a 911 call had been made at the incident indicating that a drive-by shooting had occurred (Memorandum of Law in Support of Petition ["Memorandum of Law"], Docket Entry No.2, p. 10). defense cross-examined Officer The call was revealed when the Jose Pena. However, the recording and its contents were not available because the tape had been destroyed for lack of a timely request. Id. The respondent argues that there was no Brady violation because Draper had not been denied access to the evidence, and that Brady does not apply because the evidence was discovered during the trial. The respondent further argues that there is no showing of bad faith because the tape was destroyed pursuant to standard procedures. The respondent also contends that the evidence was not material to Draper's defense. -8- "[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment t irrespective of the good Brady v. faith or bad faith of the prosecution." S. Ct. 1194 1196-97 t [petitioner] suppressed must the petitioner, (3) (1963). prove evidence t the To establish a Brady violation t that (2) Maryland t 83 (1) the the prosecution evidence evidence was material was actually favorable to the defense, to and (4) the petitioner could not have discovered the evidence through reasonable diligence. Cir. 2013)t (5th Cir. Trottie v. Stephens t 720 F.3d 231 t 251 (5th citing United States v. Brown, 650 F.3d 581 t 2011). 587-88 "Although the State is obligated to disclose evidence to the defense t the State need not disgorge every piece of evidence in its possession. affirmative favorable duty to the to Rathert under BradYt the State has an disclose accused to the defense and material to evidence guilt." that is Rector v. Johnson t 120 F.3d 551 t 558 (5th Cir. 1997) t citing United States v. Bagley, 105 S. Ct. 3375, 3379 (1985). there is a "Evidence is 'material t if reasonable probability that t had the evidence been disclosed t the result at the trial would have been different; a reasonable probability is one that undermines confidence in the outcome of the trial." Summers v. Dretke t 431 F.3d 861 t 878 (5th Cir. 2005), citing Duncan v. Cain t 278 F.3d 537 t 539-40 (5th Cir. 2002), citing Bagley, 105 S. Ct. at 3383. -9- The state court dismissed Draper's claims regarding the 911 recording after finding that the recording had been destroyed in the course of standard operating procedures and that Draper had failed to prove that it had been destroyed in bad faith (Findings and Conclusions, Docket Entry No. 18-43, p. 103 ~ 35). The court also found that Draper had all of the information provided in the 911 recording and that he used the recording's destruction to impeach the investigation of the case. rd. The state court's finding that Draper failed to establish a Brady claim is not unreasonable because the evidence in question was produced during the trial. 783 See Reed v. Stephens, 739 F.3d 753, (5th Cir. 2014), citing Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir. 1994) ("Brady claims involve \ the discovery, after trial of information which had been known to the prosecution but unknown to the defense.' ") . Moreover, there was no showing that the defense could not have discovered the existence of the tape or its contents before tne trial using due diligence. succeed on his Brady claim. Trottie, Thus, Draper cannot 720 F.3d at 251. Draper's Brady claim also fails because he was able to take advantage of the tape's destruction by using it to impeach the State's case against Draper. See West v. Johnson, 92 F.3d 1385, 1399 (5th Cir. 1996). Therefore, Draper's Brady claim must be dismissed. B. Prosecutorial Error - Motion in Limine In his second claim Draper argues that the State committed prosecutorial error by violating its own pretrial motion in limine -10- barring testimony regarding gang affiliation Entry No. I, pp. 6-8). (Petition, Docket He asserts that Detective Mike Miller was called as a witness by the State during the trial and that during direct examination Miller testified that he found Draper's name while searching ln a gang data base Entry No.2, pp. 13-15). (Memorandum of Law, Docket Draper contends that this testimony was The harmful because it prejudiced the jury against him. respondent argues that Draper has failed to make the requisite showing for relief. Improper use of evidence by the state does not warrant habeas relief unless it is shown that the evidence "had substantial and injurious effect or influence in determining the jury's verdict./I Brecht v. Abrahamson, Barrientes v. 113 Johnson, habeas proceeding, S. Ct. 1710, 221 F.3d 741, 753 1722 (1993); (5th Cir. see 2000) also (in a the court must determine whether prosecutor's alleged misconduct rendered the trial fundamentally unfair), citing Ables v. Scott, 73 F.3d 591, 592 n.2 (5th Cir. 1996). Habeas relief can only be granted if it is found that the conduct "so infected the trial with unfairness conviction a denial of due process. S. Ct. s. Ct. 2464, 1868, fundamentally 2471 (1986), 1871 unfair as to make unless A it trial is resulting Darden v. Wainwright, /I quoting Donnelly v. (1974). the DeChristoforo, cannot found that be held "'there to is 106 94 be a reasonable probability that the verdict might have been different had the trial been properly conducted. -11- ,/I Barrientes, 221 F. 3d at 753, quoting Foy v. DonnellYr 959 F.2d 1307, 1317 (5th Cir. 1992), quoting Darden, 106 S. Ct. at 2471. The appropriate standard of review of such a claim is "the narrow one of due process, and not the broad exercise of supervisory power. Darden, at 2471. II When considering a claim of prosecutorial misconduct the court must determine whether the alleged misconduct was "of sufficient significance to result in the denial of the defendant fair trial." satisfy right to a IS Greer v. Miller, 107 S. Ct. 3102, 3109 (1987). this requirement the petitioner must show that To the misconduct was "'persistent and pronounced or that the evidence of guilt was so insubstantial that the conviction would not have occurred but for the improper remarks.' 303, 308 II Geiger v. Cain, 540 F. 3d (5th Cir. 2008), quoting Jones v. Butler r 864 F.2d 348, 356 (5th Cir. 1988). The petitioner has the burden of proving that the conviction would not have occurred but for the complained of conduct. Nichols v. Scott, citing Felde v. Failure to raise Blackburn r 69 F.3d 1255, 1278 (5th Cir. 1995) 795 F.2d 400, 403 (5th Cir. an objection, apart from being a r 1986). ground for procedural bar, may indicate that the evidence was not perceived as having a substantial adverse effect on the defense. Id., citing Derden v. McNeel, 978 F.2d 1453, 1458 (5th Cir. 1992) The trial record reflects that the State filed the motion in limine in order to prevent the admission of evidence deceased engaging in extraneous offenses, violent acts, activities (State's Motion in Limine, -12- Docket Entry No. of the or gang 18-12, pp. 53 - 54) . During his testimony Detective Miller made a single brief statement that l while trying to locate Draper as a suspect to the shooting l he found Draperls name on a gang data base Examination of Detective Mike Miller ["Miller Examination Entry No. 18-221 p. 25). No objection was made. tl ] (Direct I Docket On the contrarYI Draperls defense counsell outside of the jury/s presence l argued to the court that the testimony opened the door permitting him to cross-examine Detective Miller regarding the victim/s gang membership as well as others who may have been involved in the case. at 38-43. rd. The State/s attorney responded that Detective Millerls passing reference to the gang data base was so cursory that the jury probably would not have noticed it. rd. at 41. The trial court denied defense counsel/s request to go into gang issues with Detective Miller and his motion for mistrial. rd. at 42-43. Under Texas law a party files a motion in limine to prevent an opposing party from asking prejudicial questions. Commission for Lawyer Discipline l 374 S.W.3d 520 Houston [14th Dist.] 2012 1 no pet.). 1 Allison v. 526 (Tex. App. - GenerallYI a timely objection to a violation of a motion in limine is necessary to preserve a complaint of error. Wilkerson v. State, 881 S.W.2d 321 / 326 (Tex. Crim. An obj ection after App. fulfill 1994). the purpose of the objection l occurrence of the event. an event occurs which is to prevent the Young v. State, 137 S.W.3d 65 Crim. App. 2004). -13- cannot 1 70 (Tex. Detective Miller's purported reference to Draper's gang membership was brief and inadvertent, and no timely objection was made to Miller's response. Moreover, the record shows that Draper's defense counsel saw the testimony as an opportunity for him to present evidence that the victim was a gang member. Given the inconsequential nature of the reference to the gang data base, the court concludes that Draper has failed testimony prejudiced his substantive rights. Munoz, 150 F.3d 401, 415 (5th Cir. 1998). to show that the See United States v. Draper fails to show that tne state court was unreasonable in denying his claim that the State violated its own motion in limine. 288 F.3d 713, 716 (5th Cir. 2002). See Riddle v. Cockrell, Therefore, the claim must be dismissed. c. Evidence of Gang Affiliation In his third claim Draper argues that the trial court erred in admitting evidence of Draper's gang affiliation and in failing to instruct the jury to disregard the evidence (Petition, Docket Entry No.1, pp. 9-10). Draper refers to the hearing, held outside of the jury's presence, after Detective Miller's testimony of locating him in a gang data base contends that allowing (Docket Entry No.2, such evidence denied p. 16). him a Draper fair because he was implicated as an alleged gang member. trial He also complains that the trial court erred in denying a mistrial based on the admission of evidence of gang activity. -14- --._.. _------------- As explained in the previous section of this Memorandum Opinion and Order, the trial court denied Draper's request for a mistrial immediately after having denied his request to elicit more testimony from Detective Miller about gang activity Examination, Docket Entry No. 18-22, pp. 42-43) (Miller It appears that Draper is trying to have it both ways by seeking inclusion of evidence of the victim's gang membership while excluding any evidence that would imply that Draper is involved with a gang. Moreover, implicated there is no indication that the testimony in question Draper as a gang member. On cross-examination, Detective Miller explained that he was using a computer program called "Gang Tracker," which performed various functions as an investigative tool for the police. Id. at 43-45. He admitted that the program produced a phone number for Kimberly Alexander, witness who was not alleged to be a gang member. Draper is not entitled to habeas relief a Id. at 45. based on the trial court's alleged error because he has failed to show that Miller's statement had a "substantial and injurious effect or influence in determining the jury's verdict." D. Brecht, 113 S. Ct. at 1722. Perjured Testimony In his fourth claim Draper argues that the trial court erred in admitting perjured testimony of the State's witness, Alexander (Petition, Docket Entry No. that Alexander gave inconsistent -15- I, pp. 9-10). testimony at trial, Kimberly He asserts which he argues is tantamount to perjury. Draper alleges that Alexander gave false and misleading statements after being coached by the police (Memorandum of Law, Docket Entry No.2, pp. 19-21) Draper contends that Alexander was an unreliable witness and that her testimony denied him due process by adversely affecting the outcome The respondent of his trial. argues that Draper's claims are conclusory and are not supported by any evidence. "The Due Process Clause of the Fourteenth Amendment forbids the State from knowingly using perj ured testimony." Cockrell, 294 F.3d 730, Johnson, 224 F.3d 470, 735 477 (5th Cir. 2002), (5th Cir. 2000). Beltran v. citing Knox v. To establish a due process violation based on the State's knowing use of false or misleading evidence, a habeas petitioner must show (1) the evidence was false, (2) the evidence was material, and (3) the State knew that the evidence was false. Id., citing Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997) "Evidence is false if, inter alia, it is specific misleading evidence important to the prosecution's case in chief." DeChristoforo, Nobles, 94 S. Ct. 127 F. 3d at 415, 1868, 1873 (1974). citing Donnelly v. "False evidence is 'material' only 'if there is any reasonable likelihood that could have affected the jury's verdict." [it] Id., citing Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996) Draper claimed in his state habeas application that the State used Alexander's perjured testimony to convict him (Docket Entry No. 18-38, p. 66). In its Findings and Conclusions, -16- the state habeas court found that, "[Draper] cites to inconsistencies in the testimony of Ms. Alexander, but does not provide evidence that her testimony was perjured" (Docket Entry No. 18-43, p. 102). The State court, which had heard the evidence at trial, also found that Draper presented no evidence intent to deceive. Id. indicating that Alexander had an The state habeas court's findings are presumed to be correct on federal habeas review. 202 F.3d 760, 764 F.3d 180, 186 (5th Cir. 2000) (5th Cir. strong where, as here, 1996) i Clark v. Johnson, see also Boyle v. Johnson, 93 ("The presumption is particularly the habeas court was the same court that presided over the trial."), citing May v. Collins, 955 F.2d 299, 314 (5th Cir. 1992). As the state court observed, inconsistent statements by a witness are not alone sufficient to establish that the witness committed perjury. Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990), citing Little v. Butler, 848 F.2d 73, 76 (5th Cir. 1988). In addition, there is no evidence to support a finding that the State knowingly used perj ured testimony to convict Draper. United States v. Haese, 162 F.3d 359, 365 (5th Cir. 1998) v. Butler, correct 848 F.2d 73, state court 76 (5th Cir. findings are not 1988). i Little The presumptively unreasonable and defeat Draper's claim that he was convicted through the knowing use of perjured testimony. E. Boyle, 93 F.3d at 186. Effective Assistance of Counsel at Trial In his fifth claim Draper contends that he was denied effective assistance of counsel when his trial attorney, Dorian -17- ------------------ (a) Cotlar, failed to object to the State's questioning Alexander that caused her to change her testimony; (b) of failed to request a mistrial based on the State's coercion of contradictory testimony from and Alexander; elicited (c) testimony from Detective Miller during cross-examination that opened the door to violating the State's motion in limine, which had been previously granted by the trial court (Petition, Docket Entry No. I, pp. 1012). The respondent contends that Draper's allegations of ineffective assistance of counsel are conclusory and are refuted by the state habeas record. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to effective assistance of counsel at trial. To establish petitioner prejudice Washington, Yarborough v. Gentry, 124 S. Ct. I, 4 (2003). denial must of demonstrate resulting 104 S. from Ct. deficient performance, counsel's actions reasonableness.'ff 1998), quoting effective both that assistance of counsel the deficient performance and deficiency. 2052, 2064 (1984). See Strickland v. In order to show the petitioner must demonstrate that his "'fell below an objective standard of Jones v. Jones, 163 F.3d 285, 300-01 (5th Cir. Strickland, 104 S. Ct. at 2064. To establish prejudice the petitioner must show that "'there is a reasonable probabil i ty that, but for counsel's unprofessional result of the proceeding would have been different.'ff -18- errors, the Harris v. Warden, Louisiana State Penitentiary, 152 F.3d 430, 440 1998), quoting Strickland, 104 S. claim of ineffective Ct. at 2068. assistance of counsel (5th Cir. A habeas corpus in a habeas corpus proceeding must be dismissed if the petitioner fails to satisfy either prong of the Strickland test. 631, 635 (5th Cir. 2001) i Sayre v. Anderson, 238 F.3d Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995) ("In deciding ineffective assistance claims, a court need not address both prongs of the conjunctive Strickland standard, but may dispose of such a claim based solely on a petitioner's failure to meet either prong of the test.") . "Claims of ineffective assistance of counsel involve mixed questions of law and fact and are governed by § 2254 (d) (1)." v. Thaler, 673 F.3d 410, 416 (5th Cir. 2012). Clark The petitioner has the burden of proving that his lawyer was ineffective. v. Cockrell, 293 F.3d 760, 764 (5th Cir. 2002). conclusory allegations to establish his claim. Id.; Galvan He cannot rely on Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000), citing Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983). The petitioner must show that the state court's determination that the assistance petitioner of failed counsel was to make a contrary application of the Strickland standard. F.3d 494, 501 showing to or of an ineffective unreasonable Charles v. Thaler, 629 (5th Cir. 2011), citing Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003). Judicial review of -19- an attorney's performance is 'highly deferential' with a strong presumption that his performance was adequate. McAfee v. Thaler, 630 F.3d 383, 394 (5th Cir. 2011). 1. Failure to Object Draper alleges that he was denied effective assistance of trial counsel because Cotlar failed to obj ect to the State's questioning of Alexander, which caused her to change her answers (Memorandum of Law, Docket Entry No.2, p. 24). Draper asserts that Alexander testified that she was on Ecstasy, a psychoactive drug, at the time of the offense. Id. He also contends that she changed her answer from "no" to "yes" when she was asked whether she saw someone hand something "shiny" to Draper. Draper raised this allegation in his state habeas application (Application for a Writ of Habeas Corpus, Docket Entry No. 18-38, pp. 61-62), and the district court ordered Cotlar to file an affidavit providing specific facts addressing Draper's allegations (Order Designating Issues, Docket Entry No. 18-43, p. 9). Cotlar refuted Draper's allegation by stating the follow in his affidavit: Mr. Draper alleges that I was ineffective because I "failed to object" when the State asked Ms. Alexander questions that "caused her to change her answer[s]". I know of no legal objection to a witness changing her answer. Ms. Alexander's testimony literally changed depending on whether she was on direct examination or cross examination. She gave conflicting answers and was equivocal during much of her testimony. Further, during an aggressive cross-examination by me, Ms. Alexander (who was pregnant) actually went into premature labor, citing my cross-examination as a stressor that caused it. -20- Fort Bend EMS was called to the Fort Courthouse and the trial was recessed. Bend County The fact that Ms. Alexander admitted that she was "high on ecstacy [sic]" went to the weight of her testimony, not her testimony's admissibility. In fact, because she gave testimony that hurt Mr. Draper, I wanted the jury to know that she had been under the influence of recreational drugs. There were no grounds for either a mistrial or for Ms. Alexander's testimony to be "thrown out" as a result of her testimony. The issue of the police allegedly playing Ms. Alexander another witnesses' [sic] statement was elicited through testimony. The jury was able to afford that testimony the weight that it wanted to. (Affidavit of Dorian Cotlar, Exhibit A to State's Supplemental Answer in Opposition to Applicant's Application for Writ of Habeas Corpus ["Cotlar Affidavit"], Docket Entry No. 18-43, pp. 65-66 (emphasis in original)) Cotlar's statement is supported by the trial transcript of Alexander's testimony, which includes numerous obj ections raised by Cotlar during direct examination as well as Cotlar's vigorous cross-examination (Direct Examination of Kimberly Alexander, Docket Entry No. 18-20, pp. 12-66). and Cotlar's affidavit, After reviewing the reporter's record the trial court found that Cotlar was credible and that he wanted the jury to know that Alexander was under the influence of recreational drugs because her testimony was harmful to Draper's defense (Findings and Conclusions, Docket Entry No. 18-43, pp. 100-101). The court also found that there was no legal a basis testimony. to support rd. at 101, 103. mistrial or to strike Alexander's The trial court concluded that Draper failed to prove that Cotlar's performance was deficient and that -21- there was nothing in the record to support his claims of ineffective assistance of counsel (Findings and Conclusions, Docket Entry No. 18-43, pp. 103-104). "A conscious strategy cannot and be informed the basis decision for on trial constitutionally tactics and ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." Skinner v. Quarterman, 528 F.3d 336, 341 (5th Cir. 2008), quoting Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003) Cotlar presented a feasible strategy in his affidavit regarding his response to Alexander's harmful testimony. He sought to discredit it by proving she was under the influence of drugs at the time of the incident. The state court was not unreasonable in finding that Cotlar was not ineffective in not making an objection, which would have almost certainly been overruled. -502 See Charles v. Thaler, 629 F.3d 494, 501 (5th Cir. 2011); see also Thompson v. Thaler, 376, 379 (5th Cir. 2011) 432 F. App'x (ineffective assistance of counsel claim precluded by state court's finding that objection would have been futile). "Failure to raise meritless objections is not ineffective lawyering; it is the very opposite." Clark v. Collins, 959, ineffective assistance of 966 (5th Cir. 1994). Draper' s 19 F.3d counsel claim based on his trial attorney's failure to raise an objection during the State's direct Alexander has no merit. -22- examination of Kimberly 2. Failure to Move for Mistrial Draper next alleges that Cotlar was ineffective for failing to ask the court to declare a mistrial on the basis of Alexander's testimony that (Petition, the police had threatened her before the trial Docket Entry No.1, p. This 10). addressed in the state habeas action issue was also (Application for a Writ of Habeas Corpus, Docket Entry No. 18-38, p. 62). Cotlar's affidavit contains the following response to this allegation: Additionally, Draper alleges that I was ineffective because ~I caused [Alexander] to admit that the police had been threatening her" and that I "failed to request a mistrial. u Getting her to admit that police had threatened her was helpful to my client. Additionally, none of that testimony raised any grounds for a mistrial. {Cotlar Affidavit, Docket Entry No. 18-43, p. 66 (emphasis in original) ) The state habeas court found that Cotlar's performance was not deficient because there was no basis to strike Alexander's testimony or declare a mistrial. In addition, the court found that Alexander's police admission that helpful to Draper's case. the Id. at 101. the presumptions that Cotlar' s s. had threatened her was Draper fails to overcome strategy was sound. Ct. at 1852; Clark v. Johnson, 227 F.3d 273, 282-83 Bell, 122 (5th Cir. 2000), and that the trial court's findings were correct under the AEDPA. 3. Cross-Examination of Detective Miller Draper's final allegation against his trial attorney is that Cotlar elicited testimony from Detective -23- Miller during cross- examination that opened the door to violating the State's motion in limine, which had been previously granted by (Petition, Docket Entry No.1, pp. 10-12). the trial court The respondent contends that there is no merit to this claim because the motion in limine pertained only to the deceased victim, not to Draper. The State's motion in limine moved the court to instruct the defendant to not allude to, refer to, or in any way bring before the jury the following information regarding the victim: 2. The general character of the victim or any specific acts of violence of the victim; * * * * * 6. Any mention that the victim is or was a gang member or in any way affiliated with a gang; 7. Any mention of the tattoos on the victim's body as being "gang tattoos" or tattoos affiliated with a gang. (State's Motion in Limine, Docket Entry No. 18-12, p. 53) Before Detective Miller testified Cotlar argued that the court should admit evidence of the victim's gang affiliation Entry No. 18 - 2 2, pp. 4 - 8) . (Docket The court denied Cotlar's request except for the limited purpose of asking whether the police gang task force was brought in for investigation. rd. at 7. During Detective Miller's testimony Cotlar raised an objection based on his belief that Miller "opened the door to gang membership" by referring to a gang database in which Draper was found. Examination, Docket Entry No. 18-22, pp. 36-37) Miller outside of the jury's Cotlar questioned presence whether -24- (Miller's the victim had clothing and a tattoo that were indicative of gang membership. at 39-40. Detective Miller conceded that such items would indicate rd. that the person might be in a gang. Cotlar then at 40. reiterated his argument that the testimony opened the door. 41. rd. rd. at The State responded that the reference to the gang data base was inconsequential and not intended to implicate that Draper was rd. in a gang. at 42. The court denied Cotlar's request to question Detective Miller before the jury about gang issues. rd. at 42. and The court denied Cotlar's request for a mistrial, Cotlar requested a bill of exceptions. rn the state habeas rd. at 42-43. proceedings Cotlar refuted Draper's argument that he was ineffective by stating that he "aggressively tried to have the decedent's gang affiliation presented to the jury. II (Cotlar Affidavit, Docket Entry No. 18-43, p. 66) He even tried to get the decedent's autopsy report admitted because it gave a detailed description of the gang tattoos on the decedent's body. The court agreed that the report was admissible, but it allowed the State to redact objections. the references to the tattoos over Cotlar's rd. After reviewing the trial transcript, the state habeas court found that Cotlar had attempted to admit evidence of the decedent's gang affiliation. had failed deficient. to rd. at 101. plead rd. at 102. or The court further found that Draper prove that Cotlar's performance was Cotlar's efforts to present evidence of the decedent's gang history was sound strategy and not a basis for -25- finding deficient performance. (5th 2004) Cir. Riley v. Dretke, 362 ("'Strategic choices made F.3d 302, 305 after thorough investigation of law and facts relevant to plausible options are . '" ), quoting Wiggins v. Smith, virtually unchallengeable . 123 S. Ct. 2527, 2535 (2003 ) Draper has failed to show that the court's findings and conclusions of law are unreasonable. F. Effective Assistance of Counsel on Appeal In his effective sixth claim assistance of Cary M. Faden, (a) Draper contends when counsel that appellate his he was denied attorney, filed a PDR for Draper after advising Draper that he would have to file a pro se PDR and (b) failed to raise two issues on direct appeal (Petition, Docket Entry No.1, p. 13). Draper complains that Faden sent him a letter informing him that his appeal had been affirmed and that he was no longer representing him (Docket Entry No.2, p. 29) Draper was also told that he would have to file his own PDR, although Faden's letter arrived only a few days before the expiration of the 30-day period for filing a PDR. Draper states that he filed a motion for extension of time with the Court of Criminal Appeals only to be told that a PDR had already been filed. Draper complains that Faden failed to notify him that he had filed a PDR or send him a copy of the PDR until after Draper filed a complaint with the State Bar of Texas. Draper contends that Faden filed the PDR to prevent him from filing his own PDR, which he claims would have better briefed the issues (Memorandum of Law, Docket Entry No.2, p. 30). -26- Draper also complains that Faden failed to include claims in his appeal. Id. However, Draper does not specify in his petition or in his supporting memorandum what claims should have been raised or how they would have been successful. He merely states: Petitioner's Appeal Attorney had much opportunity to review the record. During his thorough research, he should have found at least the (5) Grounds for Review in this Petition. Instead, Mr. Faden briefed three errors: factual sufficiency, legal sufficiency and the Allen charge during jury deliberations for punishment. Had he reviewed the record more fully, he would have discovered the facts therein. He was therefore ineffective in assistance and deficient in performance. Like Cotlar, Draper's appellate attorney, Cary Faden, was ordered by the state habeas court to file a response to Draper's allegations that he provided ineffective assistance of counsel on appeal. Faden responded by submitting an affidavit in which he stated that Draper's allegations were meritless and unsupported (Affidavit of Cary M. Faden, Exhibit D to State's Supplemental Answer, Docket Entry No. 18-43, pp. 84-89). Faden stated that he fully investigated the court's record and considered all potential issues. Id. at 85. Faden also denied ever telling Draper that he was no longer representing him and asserts that he informed Draper that he was filing a PDR on his behalf. Id. at 85-86. The state habeas court held in it's Findings and Conclusions that Faden had informed Draper that he would file a Conclusions, Docket Entry No. 18-43, p. 102) PDR. (Findings and The court also found that Draper had failed to state grounds for review that he would -27- have raised pro se or successful in a PDR. give a brief counsel show Id. summary of should have how the grounds would have been The court held that Draper failed to the facts of raised on appeal reversible grounds for error. Id. the points of error his or show that these were The court concluded that Draper failed to plead or prove his claims of deficient performance by an appellate counsel. state habeas Id. at 105. record The respondent contends that the and Faden's response in the state habeas proceedings refute Draper's claims of ineffective assistance of appellate counsel. The respondent also contends that the claims are meritless. Persons appealing a criminal court conviction are entitled to effective assistance of counsel if their appeal is a matter of right under state law. Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998), citing Evitts v. Lucey, 105 S. Ct. 830, 834-35 (1985). Strickland's two-prong test regarding deficient performance and prejudice applies ineffective. in determining whether appellate counsel was Smith v. Robbins, 120 S. Ct. 746, 764 (2000). To establish deficient performance Draper must show that his appellate attorney unreasonably failed to discover non-frivolous issues and include them in his brief. Id. However, appellate counsel is not required to include every non-frivolous claim in his brief. 765. To establ ish prej udice Draper "must show a rd. at reasonable probability" that but for his counsel's failure to raise the claims asserted by Draper in his brief, Draper would have prevailed on -28- issues In doing so, he must demonstrate that the Id. at 764. appeal. in question were appellate counsel. A reviewing stronger 893 (5th meri tless those presented by his Id. at 765-66. court cannot Cir. argument ("An 1999) thus fault appellate counsel for not See United States v. Kimler, 167 F.3d raising meritless claims. 889, than cannot attorney's failure form the basis of to a raise a successful ineffective assistance of counsel claim because the result of the proceeding would not have been different had the attorney raised the issue. H ); Clark, 19 F.3d at 966. Draper has failed to clearly identify any claims that should have been raised on appeal, let alone show that there was any merit to the unspecified Moreover, there is claims. no merit His to allegations Draper's are conclusory. claim of ineffective assistance of appellate counsel because he has not demonstrated prejudice. 2003). Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. Draper has failed to show that the state court's decision was unreasonable. G. Denial of Mistrial and Issuance of Allen Charge In his last claim Draper contends that the trial court erred by (1) refusing to declare a mistrial after the jury indicated that it was hopelessly deadlocked and (2) issuing a coercive Allen charge (Petition, Docket Entry No. I, pp. 13-15). The respondent points out that these issues were presented on direct appeal and on -29- discretionary review and were rejected by both appellate courts. Draper argued on appeal that the trial court erred when it refused to grant a mistrial after (1) hopelessly deadlocked, and (2) Allen charge. Draper, the jury indicated that it was the trial court issued a coercive 335 S.W.3d at 415. The Court of Appeals made the following findings: The trial court received three notes from the jury during its deliberations on punishment: Jury Note 1 at 11:10 a.m.: We need a clarification on the terms 99 years or life. Are these equal or different? If so, what are the differences? I cannot answer this question. Response at 11:14 a.m.: charge and cont inue your Please refer to the deliberations. Jury Note 2 at 2:46 p.m.: We need to know what will result if we cannot reach an agreement. I cannot answer this question. Response at 3:02 p.m.: charge and continue your Please refer to the deliberations. Jury Note 3 at 6: 35 p.m.: We are 11-1 after 7 hours. We have one juror that will not move or listen to the other jurors because he/she doesn't feel that the evidence presented by the prosecution (amount of time taken/quality of the case presented) is enough to change his decision. This juror has made it clear that the defendant is guilty. On multiple occasions yet he/she has stated he/she wants to "make a point" to the prosecution. Additional comments made regarding his decision "This is not about Renaldo [sic] Draper." Appellant moved for a mistrial, arguing that the note indicated that the jury was hopelessly deadlocked. See Tex. Code Crim. Proc. Ann. art. 36.31 (Vernon 2006). The trial court denied appellant's motion and proposed that the jury be given an Allen charge. Appellant obj ected to the trial court's proposed Allen charge, claiming it was coercive because it implied that the entire case, rather -30- than just the punishment phase, would have to be retried if the jury did not reach a unanimous decision on punishment. The trial court overruled appellant's objection and gave the Allen charge to the jury. Draper, 335 S.W.3d at 415-416. The Court of Appeals found that the trial court had the discretion to declare a mistrial if the jury had been deliberating so long that it was improbable that an agreement would be made. The Court also found that there was no set limit on the amount of time that a jury must deliberate before it is apparent that it is truly deadlocked. 375, 383 (citations (Tex. Id. at 416, citing Melancon v. State, 66 S.W.3d App. omitted). Houston The [14th Dist.] Court further 2001, held that pet. ref'd) state law mandates reversal only where the trial court abused its discretion in holding the jury for deliberations. Id., citing Jackson v. State, 17 S.W.3d 664, 676 (Tex. Crim. App. 2000). The Court of Appeals found that the jury had been deliberating for seven hours after hearing testimony from 17 witnesses and reviewing the evidence in 43 exhibits. Draper, 335 S.W.3d at 416. The guilt-innocence phase of the trial had lasted approximately 1012 hours after which the jury returned its verdict of guilty. Id. The punishment phase had lasted another four to five hours. Id. The Court of Appeals concluded that the trial court did not abuse its discretion in denying a motion for mistrial in light of prior state appellate court decisions on the issue. Matthews v. Stater 691 S.W.2d 2, -31- 5 Id. citing, (Tex. App. - ~, Beaumont 1984), aff'd, 708 S.W.2d 835 (Tex. Crim. App. 1986) (jury deadlocked after ten hours of deliberation following trial with 17 witnesses, 49 exhibits, and multiple issues for the jury to resolve) . The Court of Appeals Allen charge was also considered Draper's claim that the coercive, and it reviewed the following instructions issued by the trial court in response to the jury's third note: If this jury finds itself unable to arrive at a unanimous verdict, it will be necessary for the Court to declare a mistrial and discharge the jury. This indictment will still be pending, and it is reasonable to assume that the case will be tried again before another jury at some future time. Any such future jury will be empanelled [sic] in the same way this jury has been empanelled [sic] and will likely hear the same evidence which has been presented to this jury. The questions to be determined by that jury will be the same questions confronting you and there is no reason to hope the next jury will find these questions any easier to decide than you have found them. With this additional instruction, you are instructed to continue deliberations in an effort to arrive at a verdict that is acceptable to all members of the jury if you can do so without doing violence to your conscience. Draper, 335 S.W.3d at 417. The Court of Appeals found that the Allen charge given at Draper's trial was similar to those given at other trials that were affirmed on appeal. 570-72 (Tex. 437-38 (Tex. App. - Id., citing Arrevalo v. State, 489 S.W.2d 569, Crim. App. 1973); Willis v. Houston [14th Dist.] State, 761 S.W.2d 434, 1998, pet. ref'd). The Court then concluded that the district court did not abuse its -32- discretion in denying Draper's motion to dismiss on the grounds that its Allen charge was coercive. A habeas petitioner in a section 2254 proceeding is not entitled to relief unless he demonstrates the state court decision denying him relief is contrary to clearly established Supreme Court precedent. Early v. Packer, 123 S. Ct. 362, 365 (2002) v. Lensing, 42 F.3d 255, seeking federal U.S.C. § right. II). 258 (5th Cir. 1994) court review of his ("A state prisoner conviction pursuant to 28 The Court of Appeals' decision concerned state courts' state law. Such matters are not review in a federal habeas proceeding. 590 Lawrence 2254 must assert a violation of a federal constitutional interpretation of 582, i (5th Cir. 2005). subj ect to Hughes v. Dretke, 412 F.3d Moreover, Draper has failed to show that the state district court's rulings violated any right under the Constitution or laws of the United States. 45 F.3d 876, 883-84 demonstrate that involved an (5th Cir. 1994). See Boyd v. Scott, failed to state court decision was contrary to, the or unreasonable application Draper of, has clearly established federal law. VI. Under 28 U.S.C. Certificate of Appealability § 2253, Draper needs to obtain a certificate of appealability before he can appeal this Memorandum Opinion and Order dismissing his Petition. To obtain a certificate of appealability Draper must make a substantial showing of the denial -33- of a constitutional right. Williams v. Puckett, 283 F.3d 272, 276 To make such a showing Draper must demonstrate (5th Cir. 2002) that the issues are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequate to deserve encouragement to proceed further. Lucas v. Johnson, 132 F.3d 1069, 1073 (5th Cir. 1998). For the reasons stated in this Memorandum Opinion and Order, Draper has not made a substantial showing of the denial of a constitutional right. Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996). The court will therefore deny a Certificate of Appealability in this action. VII. For the reasons Conclusion and Order explained above, the court ORDERS the following: 1. The Motion to Stay and Abate is DENIED. (Docket Entry No.5) 2. Respondent Stephen's Motion for Summary Judgment (Docket Entry No. 21) is GRANTED. 3. The Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No. 1) is DISMISSED WITH PREJUDICE. 4. A Certificate of Appealability is DENIED. SIGNED at Houston, Texas, on this the 20th day of March, 2014. SIM LAKE UNITED STATES DISTRICT JUDGE -34 -
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