JOSHUA O'NEAL WHITE, Petitioner,
v.
RICK THALER, Respondent.
CIVIL ACTION No. H-12-0195
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION
Dated: July 9, 2012
JOSHUA O'NEAL WHITE, Petitioner, v. RICK THALER, Respondent.
CIVIL ACTION No. H-12-0195
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION
Dated: July 9, 2012
Joshua O'Neal White, a state inmate proceeding pro se and in forma pauperis, files this section 2254 habeas petition challenging his convictions and sentences. Respondent filed a motion for summary judgment based on expiration of limitations (Docket Entry No. 13), to which petitioner filed a response (Docket Entry No. 20).
Based on consideration of the pleadings, the motion and response, the record, and the applicable law, the Court GRANTS the motion for summary judgment and DISMISSES this lawsuit as barred by limitations.
Petitioner pleaded guilty to three counts of aggravated robbery with a deadly weapon on July 20, 2009, in Harris County, Texas, and was sentenced to three concurrent twenty-five year terms of imprisonment on October 15, 2009. Petitioner did not pursue direct appeal. His applications for state habeas relief, filed on November 3, 2010, were denied by the Texas Court of Criminal Appeals on November 9, 2011.
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Petitioner filed the instant federal habeas petition on January 11, 2012, raising the following claims for ineffective assistance of trial counsel:
Respondent argues that petitioner's claims are barred by the applicable one-year statute of limitations and should be dismissed. Respondent further asserts that petitioner failed to exhaust two of his claims and that those claims are procedurally defaulted.
A. Habeas Review
This petition is governed by applicable provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28 U.S.C. § 2254. Under the AEDPA, federal 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. Williams v. Taylor, 529 U.S. 362, 404-05 (2000); 28
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U.S.C. §§ 2254(d)(1), (2). A state court decision is contrary to federal precedent if it applies a rule that contradicts the governing law set forth by the Supreme Court, or if it confronts a set of facts that are materially indistinguishable from a Supreme Court decision and arrives at a result different from the Supreme Court's precedent. Early v. Packer, 537 U.S. 37-8 (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.
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.
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B. Summary Judgment
In deciding a motion for summary judgment, the court must determine whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the summary judgment evidence, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 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, such findings must be accepted as correct by the federal habeas court. See Smith v. Cockrell, 311 F. 3d 661, 668 (5th Cir. 2002), overruled on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004).
The instant petition is governed by provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, federal habeas corpus petitions are
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subject to a one-year limitations period found in 28 U.S.C. § 2244(d), which provides as follows:
28 U.S.C. §§ 2244(d)(1), (2).
In the instant case, the one-year limitation commenced on November 14, 2009, when petitioner's conviction became final by the expiration of time to seek direct review. See TEX. R. APP. PROC. 26. 2(a); Gonzalez v. Thaler, _U.S. _, 2012 WL 43513, *9 (2012). Accordingly, petitioner's federal petition was due by November 14, 2010, absent tolling.
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Petitioner's applications for state habeas relief were filed on November 3, 2010, eleven days prior to expiration of limitations, and were denied on November 9, 2011. Because these state habeas applications were filed prior to expiration of federal limitations, they tolled limitations during their pendency. Consequently, petitioner's federal petition was due by November 20, 2011. However, petitioner did not file the instant federal habeas petition until January 11, 2012, nearly two months late, and the petition is untimely.
In his response to the motion for summary judgment, petitioner argues that his federal petition should be deemed timely filed because,
(Docket Entry No. 20, p. 1, citations omitted. ) Petitioner further states that he filed a second state application on October 2, 2010, because the state courts never notified him that his application had been accepted. Id p. 2. He also complains that at undisclosed times he had asked the courts "how can I get an appeal going" and for copies of section 11. 07 forms, but without success. Id.
Petitioner did not file his response under oath or penalty of perjury, and he presents no probative summary judgment evidence that he handed his state habeas applications to prison authorities for mailing on September 14, 2010. Regardless, the Fifth Circuit has
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declined to extend the "mailbox rule" to the determination of filing dates for state habeas applications for purposes federal limitations. Coleman v. Johnson, 184 F. 3d 398, 402 (5th Cir. 1999).
The state court records reveal that petitioner signed each of his three state habeas applications on October 24, 2010, and that they were received by the state court on November 3, 2010. The state court sent petitioner three separate letters to his address of record on November 3, 2010, notifying him that his applications had been received and filed on that date. (Docket Entries No. 11-21; 11-24; 11-26. ) On August 29, 2011, petitioner sent a letter to the state courts complaining of their delay in processing his habeas proceedings; in the letter petitioner stated that his habeas applications had been filed on November 3, 2010. Thus, it is without dispute that, when petitioner's habeas applications were denied on November 9, 2011, he knew that they had been filed on November 3, 2010. The record shows that petitioner had the information necessary to calculate correctly his time remaining under the one-year limitation. Petitioner presents no probative summary judgment evidence showing entitlement to equitable tolling or that his state habeas applications were filed on any date other than November 3, 2010. The instant federal petition is untimely, and respondent is entitled to summary judgment dismissing the petition as barred by limitations.
Even assuming petitioner's claims were not barred by limitations, they are without merit. The Sixth Amendment to the United States Constitution guarantees a criminal
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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 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 13 85, 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.
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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.
Petitioner alleges the following instances of ineffective assistance of trial counsel.
A. Self-incriminating statement
Petitioner claims that trial counsel advised him to make a self-incriminating statement by writing a letter for his presentencing investigation report.
In his affidavit submitted to the trial court on collateral review, trial counsel testified regarding petitioner's claim as follows:
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(Docket Entry No. 11-26, pp. 68-69, emphasis added. ) The trial court expressly found that the facts asserted by counsel in his affidavit were true and credible. Id p. 72.
In rejecting petitioner's claims on collateral review, the trial court made the following relevant finding:
(Docket Entry No. 11-26, p. 73, record citations omitted. ) The trial court concluded that petitioner failed to establish either deficient performance or prejudice under Strickland. Id p. 74. The Texas Court of Criminal Appeals expressly relied on these findings in denying habeas relief.
By presenting nothing more than his subjective disagreement with the state court's ruling and restating arguments already rejected by the state court, petitioner fails to meet his burden of proof for relief under the AEDPA standards for review. 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. No basis for habeas relief is shown.
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B. Failure to investigate
Petitioner states, without further explanation or supporting factual allegations, that trial counsel advised him, "without doing a full research, that the best thing for me to do was a presentence investigation (PSI). "
In his affidavit submitted to the trial court on collateral review, trial counsel testified regarding petitioner's claim as follows:
(Docket Entry No. 11-26, p. 68-69. )
In rejecting petitioner's claims, the trial court made the following relevant finding and conclusion:
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Id p. 73 (record citations omitted). The trial court concluded that:
Id p. 74 (citation omitted). The Texas Court of Criminal Appeals expressly relied on these findings in denying habeas relief.
Petitioner establishes neither deficient performance nor prejudice. He fails to present probative evidence of any relevant and beneficial information that further investigation would have revealed or that, but for counsel's failure to perform such investigation, the results of the proceedings would have been different. See Gregory v. Thaler, 601 F. 3d 347, 352 (5th Cir. 2010) (holding that habeas petitioner "who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial").
By presenting nothing more than his subjective disagreement with the state court's ruling and restating arguments already rejected by the state court, petitioner fails to meet his burden of proof for relief under the AEDPA standards for review. 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. No basis for habeas relief is shown.
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C. Failure to explain
Petitioner claims that trial counsel failed to explain completely the presentence investigation report process or the nature and elements of the criminal charges.
As correctly noted by respondent (Docket Entry No. 13, p. 4), petitioner did not raise this issue on state collateral review and the issue is procedurally defaulted and barred from consideration by this Court. See Nobles v. Johnson, 127 F. 3d 409, 419-20 (5th Cir. 1997); 28 U.S.C. § 2254(b), (c). Petitioner did not respond to this argument in his response to the motion for summary judgment, and he establishes neither good cause for the default nor actual prejudice. Id. Federal habeas relief is unwarranted.
D. Failure to inform him of the evidence against him
Petitioner asserts that trial counsel failed to inform him of what evidence the State had against him.
In his affidavit submitted to the trial court on collateral review, trial counsel testified regarding petitioner's claim as follows:
(Docket Entry No. 11-26, p. 68, emphasis added. )
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In denying habeas relief, the trial court found that "trial counsel communicated with the applicant the information he collected and reviewed during his investigation of the applicant's case. " Id p. 73. The trial court concluded that petitioner failed to meet his burden of proving deficient performance and actual prejudice under Strickland. Id p. 74. The Texas Court of Criminal Appeals expressly relied on the trial court's findings in denying habeas relief.
By presenting nothing more than his subjective disagreement with the state court's ruling and restating arguments already rejected by the state court, petitioner fails to meet his burden of proof for relief under the AEDPA standards for review. 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. No basis for habeas relief is shown.
E. Failure to cross examine, call witnesses, or present argument
Petitioner asserts, without further explanation or supporting factual allegations, that he has a constitutional right to compulsory process and cross examination, and that trial counsel violated those rights by failing to cross examine the State's witnesses or call defense witnesses.
In rejecting this claim on collateral review, the trial court made the following finding:
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(Docket Entry No. 11-26, p. 73, record citations omitted. ) The trial court concluded that petitioner failed to establish deficient performance or prejudice under Strickland, and that:
Id p. 74 (citation omitted). The Texas Court of Criminal Appeals expressly relied on these findings in denying habeas relief.
To prevail on an ineffective assistance claim based upon uncalled witnesses, an applicant must name the witness, demonstrate that the witness would have testified, set out the content of the witness's proposed testimony, and show that the testimony would have been favorable. Gregory v. Thaler, 601 F. 3d 347, 352-353 (5th Cir. 2010). Claims of uncalled witnesses are disfavored, especially if the claim is unsupported by evidence indicating the witnesses's willingness to testify and the substance of the proposed testimony. Harrison v. Quarterman, 496 F. 3d 419, 428 (5th Cir. 2007). The decision whether to present a witness is considered to be essentially strategic, and "speculations as to what uncalled witnesses would have testified is too uncertain. " Gregory, 601 F. 3d at 353.
As found by the trial court, petitioner failed to show what witnesses were available to testify on his behalf and that their alleged testimony would have been beneficial to his defense, and habeas relief is unwarranted under this claim. Further, as found by the trial court, petitioner waived his right to the confrontation, appearance, and cross examination of witnesses as part of his guilty plea. Petitioner presents no probative summary judgment
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evidence, and does not direct this Court to any support in the record, for his claim that trial counsel was ineffective in failing to cross examine witnesses, present defense witnesses, or make any particular argument at any particular point. To any extent that petitioner is complaining that trial counsel did not object to the State's argument that petitioner had a "real" gun, nothing in the record establishes that the weapon in petitioner's possession at the time of his arrest was not an actual firearm.
By presenting nothing more than his subjective disagreement with the state court's ruling and restating arguments already rejected by the state court, petitioner fails to meet his burden of proof for relief under the AEDPA standards for review. 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. No basis for habeas relief is shown.
F. Failure to file an appeal
Petitioner claims that trial counsel failed to file an appeal. As correctly noted by respondent (Docket Entry No. 13, p. 4), petitioner did not raise this issue on state collateral review and the issue is procedurally defaulted and barred from consideration by this Court. See Nobles v. Johnson, 127 F. 3d 409, 419-20 (5th Cir. 1997); 28 U.S.C. § 2254(b), (c). Petitioner did not respond to this argument in his response to the motion for summary judgment, and he establishes neither good cause for the default nor actual prejudice. Id. Federal habeas relief is unwarranted.
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To any extent petitioner is asserting that he was denied "equal protection of law" because his trial attorney was ineffective (Docket Entry No. 1, p. 7), the Court has already determined that petitioner has failed to establish ineffective assistance of trial counsel.
The motion for summary judgment (Docket Entry No. 13) is GRANTED and this case is DISMISSED WITH PREJUDICE. Any and all pending motions are DENIED AS MOOT. A certificate of appealability is DENIED.
SIGNED at Houston, Texas, on this the 9th day of July, 2012.
_______________ KEITH R. ELLISON UNITED STATES DISTRICT JUDGE
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