IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 95-20383
Summary Calendar
JOHNNY RAY WHITE,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
(CA H 94-3594)
________________________________________________
March 21, 1997
Before GARWOOD, JOLLY and DENNIS, Circuit Judges.*
GARWOOD, Circuit Judge:
Petitioner-appellant Johnny Ray White (White), a Texas state
prisoner serving a twelve-year sentence for possession of a
controlled substance, filed the present federal habeas corpus
petition. White appeals the district court’s grant of the State’s
motion for summary judgment and denial of his petition. For the
following reasons, we affirm.
*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Facts and Proceedings Below
On the evening of April 18, 1988, Officer Richard Rios of the
Houston Police Department and his partner, Officer Higgins, were
patrolling a section of Houston’s east side, an area known for its
large number of drug-related incidents. The officers pulled into
the parking lot of the Ship Channel Motel and turned off their
headlights. Shortly before 1:00 a.m., the officers saw two men in
the parking lot of the motel. The officers turned on their
headlights and headed in the direction of the two men. When the
patrol car was approximately ten feet away from the men, Officer
Rios saw one of the men, White, drop a small plastic baggie to the
ground. Officer Rios retrieved the baggie, field-tested the
substance contained in the baggie, and determined that it was
cocaine. White was then placed under arrest.1 A chemist with the
police department testified at trial that the bag contained
approximately 75.3 milligrams of cocaine.
White was convicted of possession of a controlled substance in
the 176th District Court of Harris County, Texas, and sentenced to
a twelve-year prison term in the Texas Department of Criminal
Justice. White’s conviction was affirmed by the Court of Appeals
for the Sixth District of Texas at Texarkana. No petition for
discretionary review was submitted to the Texas Court of Criminal
Appeals.
1
The individual who had been talking to White, one Curtis
Hatchet, managed to flee the area.
2
White filed state habeas corpus petitions, which were all
refused. White then filed the present petition for writ of habeas
corpus in the United States District Court for the Southern
District of Texas. The State moved for summary judgment, and White
responded with a brief and affidavit in opposition. The district
court granted the State’s Motion for Summary Judgment and denied
White’s request for a Certificate of Probable Cause (CPC). This
Court on April 5, 1996, granted White’s CPC request, directing the
State “to file a brief addressing application of the presumption of
correctness and any other appropriate issues.”
Standard of Review
This Court reviews a district court’s grant of summary
judgment de novo. Kopycinski v. Scott, 64 F.3d 223, 225 (5th Cir.
1995). The district court’s findings of fact are reviewed for
clear error and issues of law are reviewed de novo. Salazar v.
Johnson, 96 F.3d 789, 791 (5th Cir. 1996). We review mixed
questions of law and fact, such as ineffective assistance of
counsel claims, de novo. Id.
When reviewing a state prisoner’s allegation that there is
insufficient evidence to support the conviction, we apply the
standard established in Jackson v. Virginia, 99 S.Ct. 2781 (1979),
that is, we must determine whether “after viewing the evidence in
the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a
3
reasonable doubt.” Id. at 2789; see also United States v. Misher,
99 F.3d 664, 667 (5th Cir. 1996).
Analysis
White contends on appeal to this Court that the district court
erred in granting the State’s Motion for Summary Judgment. In
support of his argument, White raises several points of error: (1)
the district court erroneously applied the presumption of
correctness to the state habeas court’s findings of facts; (2) he
was denied effective assistance of trial and appellate counsel; (3)
he was denied a fair trial because the State failed to locate and
subpoena witnesses, the State violated his discovery requests, and
the jury was unfairly biased; (4) he was denied access to the state
trial record; and (5) the evidence adduced at trial was
insufficient to support his conviction. We discuss each point of
error in turn below.
A. Presumption of Correctness
In granting the State’s Motion for Summary Judgment, the
district court applied a “presumption of correctness” to the state
habeas court’s findings of fact.2 Under 28 U.S.C. § 2254(d), a
2
The state habeas court, in its Proposed Findings of Fact and
Order, adopted “the history of the case as set forth in
Respondent’s Original Answer,” finding that
“the facts asserted in the affidavits of Jeffrey S.
Reddall and Jules L. Laird filed in this cause are true
and that said facts together with the contents of
official court records demonstrate that the totality of
the representation afforded Applicant was sufficient to
4
federal habeas court accords state court findings of fact a
presumption of correctness unless the petitioner can show that a
statutory exception applies.3 28 U.S.C. § 2254(d); May v. Collins,
955 F.2d 299, 309 (5th Cir.), cert. denied, 112 S.Ct. 1925 (1992).
In support of his contention that the court below should not have
employed the section 2254(d) presumption of correctness, White
argues that five of the eight statutory exceptions found under
section 2254(d) apply to his case:
“(1) that the merits of the factual dispute were not
resolved in the State court hearing;
(2) that the factfinding procedure employed by the State
court was not adequate to afford a full and fair hearing;
. . .
(5) that the applicant was an indigent and the State
court, in deprivation of his constitutional right, failed
to appoint counsel to represent him in the State court
proceeding;
(6) that the applicant did not receive a full, fair, and
protect his right to reasonably effective assistance of
counsel at trial and on appeal.”
3
On April 24, 1996, the President signed into law the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.
L. No. 104-132, tit. I, § 104 (1996), which enacted significant
amendments to the habeas corpus statutes, including 28 U.S.C. §§
2244, 2254, 2255, and Fed. R. App. P. 22. Neither of the parties
has briefed to us or urged the applicability of any of the
provisions of the AEDPA, and we have accordingly not expressly
addressed it in this opinion (and our statutory references are to
the pre-AEDPA provisions of the cited statutes). However, we do
conclude that nothing in the AEDPA would alter the ultimate
disposition which we make today. See Moore v. Johnson, 101 F.3d
1069 (5th Cir. 1996); Drinkard v. Johnson, 97 F.3d 751 (5th Cir.
1996).
5
adequate hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process
of law in the State court proceeding . . . .” 28 U.S.C.
§ 2254(d).
First, White contends that the district court erred in relying
on the state habeas court’s findings of fact because the state
court did not resolve all the disputed facts. Id. § 2254(d)(1).
Specifically, White alleges that the state habeas court did not
resolve factual disputes regarding whether Curtis Hatchet (Hatchet)
and Paula Fields (Fields), potential witnesses, were in the Harris
County Jail or on parole; whether there was any jury misconduct;
whether White was denied exculpatory evidence; and whether he was
denied effective assistance of counsel. Upon review of the record,
we find these contentions meritless, as the state habeas court left
no material factual dispute unresolved.
In his habeas petitions, White alleged that he was denied his
right to compulsory process and effective assistance of counsel
because the State and his trial attorney failed to locate and
subpoena potential witnesses, including Hatchet and Fields. The
record shows, however, that with the exception of Hatchet, White
never gave his trial attorney Jeffrey Reddall (Reddall) or the
State the names of any of these potential witnesses. Further,
White never described what any of these witnesses would have
testified to or whether they would have testified at all. Based on
these as well as other deficiencies, the state habeas court
6
rejected White’s ineffective assistance and compulsory process
claims. As such, the factual issue of whether or not potential
witnesses were in state custody or on parole was immaterial to the
court’s resolution of these claims.
As for the issues of jury misconduct, denial of exculpatory
evidence, and denial of effective assistance of counsel, White
makes only broad, conclusory allegations that unresolved factual
disputes exist. He does not specify what facts the court failed to
resolve or explain how any such factual disputes are material to
his claims. We are satisfied that the state habeas court, in
dismissing White’s claims, considered and resolved all disputed
facts with regard to these and other claims.
White also maintains that the district court erred in
presuming the state habeas court’s factual findings to be correct
because the state court did not appoint an attorney to represent
White in his state habeas action, 28 U.S.C. § 2254(d)(5), and
because he was not given a copy of the state court records pursuant
to the district court’s order. Id. § 2254(d)(7). Neither argument
has any merit. The Constitution does not guarantee counsel in a
state habeas corpus proceeding; hence, White was not unlawfully
denied representation of appointed counsel in deprivation of any
constitutional right. See Sterling v. Scott, 57 F.3d 451, 454 n.4
(5th Cir. 1995), cert. denied, 116 S.Ct. 715 (1996). Further,
White alleges only that he was denied a copy of the state record
7
during the course of his federal habeas proceeding, which has
nothing to do with the fairness of the state habeas fact finding
proceedings.
Finally, White claims that the court below erroneously applied
the presumption of correctness because the state court’s fact-
finding procedure was neither “adequate” nor “full and fair.” 28
U.S.C. §§ 2254(d)(2),(6). White asserts that the fact-finding
procedure was inadequate and unfair because the state habeas court
did not hold an evidentiary hearing before making its findings of
fact. State courts, however, “do not necessarily have to hold live
evidentiary hearings for the presumption [of correctness] to
attach, but may, in appropriate circumstances, resolve factual
disputes on the basis of written affidavits.” Lincecum v. Collins,
958 F.2d 1271, 1279 (5th Cir.), cert. denied, 113 S.Ct. 417 (1992);
see also Briddle v. Scott, 63 F.3d 363, 378 n.27 (5th Cir.)
(explaining that findings of fact based on affidavits may be
entitled to a presumption of correctness), cert. denied, 116 S.Ct.
687 (1995). “[I]t is necessary to examine in each case whether a
paper hearing is appropriate to the resolution of the factual
disputes underlying the petitioner’s claim.” May, 955 F.2d at 312.
In this case, the state habeas court based its findings of fact on,
inter alia, written affidavits from White’s trial and appellate
counsel——which the court credited as true and accurate——as well as
White’s habeas petition and the state record as a whole. Thus, in
8
resolving the factual disputes and making its findings of fact, the
court fully considered all relevant documents in the record.
White insists, however, that the state habeas court’s “paper
hearing” was inadequate because different judges presided over his
trial and state habeas proceedings and because the court, in making
its findings of fact, relied on the State’s proposed findings of
facts and trial and appellate counsels’ affidavits without giving
White an opportunity to submit his own proposed findings of facts.
See Armstead v. Scott, 37 F.3d 202, 207 (5th Cir. 1994) (stating
that “a presumption of correctness will not apply to a state court
finding of fact if the factfinding procedure employed by the state
court was not adequate to afford a full and fair hearing”), cert.
denied, 115 S.Ct. 1709 (1995).
An evidentiary hearing in the state habeas court is not
required every time the state habeas judge is different from the
trial judge. Perillo v. Johnson, 79 F.3d 441, 445-47 (5th Cir.
1996). Rather, in our case-by-case review, the identity of the
trial and state habeas judges is but one factor we consider when
reviewing the adequacy and fairness of a particular paper hearing.
Id. at 447; see also Pierce v. Scott, No. 94-20515, at 8-9 (5th
Cir. July 3, 1995); Nethery v. Collins, 993 F.2d 1154, 1157 n.8
(5th Cir. 1993), cert. denied, 114 S.Ct. 1416 (1994). Although
Judge Rains, the state habeas judge, did not preside over White’s
trial, he did preside over White’s Motion for New Trial hearing.
9
At the new trial hearing, Judge Rains considered (and subsequently
denied) White’s Original Motion for New Trial and Second Amended
Motion, both of which White filed pro se, as well as White’s First
Amended Motion, which White’s court-appointed appellate attorney
filed.4 Because he presided over the new trial hearing, Judge
Rains had the benefit of observing the live testimony of Reddall,
allowing Judge Rains to evaluate the veracity of Reddall’s
testimony. Thus, although Judge Rains could not compare the
information presented in counsels’ affidavits against his own
firsthand knowledge of the trial, Perillo, 79 F.3d at 447, he was
able to compare the information presented in the state habeas
proceedings against his firsthand knowledge of the new trial
proceedings, which are really the crucial proceedings so far as
concerns this habeas petition.
White also complains that the court’s fact-finding procedure
was inadequate because the court deprived him of the opportunity to
file his own proposed findings of fact. The state habeas court,
after reviewing White’s petition, requested affidavits from both
trial and appellate counsel. The court provided in its January 22,
1992, order that White and the State had twenty days after the
affidavits of trial and appellate counsel were filed within which
to file any proposed fact findings. Reddall filed his affidavit on
4
Despite being given the opportunity, White declined to testify
on behalf of his motions at the hearing.
10
February 10 and Jules Laird (Laird), White’s appellate counsel,
filed his affidavit on February 13. The court, however, made its
fact findings on February 20, only one week after the affidavits
were filed. Thus, White argues, he was not given the opportunity
to submit his proposed fact findings for the court’s consideration.
In its fact-finding procedure, the court fully considered,
inter alia, the state record, White’s habeas petition, and the
affidavits of Reddall and Laird, which together provided the court
with sufficient information to make its findings of fact. White
never gave the court any indication that he would provide the court
with any new or different information that was not already included
in his habeas petition. And as it turned out, White’s proposed
findings of fact and attached affidavit, which White so vehemently
complains the court should have considered before making its
findings of fact, contained the exact same conclusory allegations
he made in his petition for writ of habeas corpus. We are
convinced (and the record contains nothing suggesting the contrary)
that had the state habeas court waited until White submitted his
proposed findings of fact and affidavit before making its findings
of fact, the court would not have altered its findings of fact in
any way.5
5
We further note that because Reddall’s and Laird’s affidavits
were filed on February 10 and February 13, respectively, White had
until March 5 to file his proposed findings of fact with the court.
White mailed his proposed findings of fact and attached affidavit
on March 7, two days after the time to file had expired.
11
Moreover, this is not a situation where the parties submitted
competing affidavits that created factual disputes. See Lincecum,
958 F.2d at 1279. Here, the only support offered by White for his
claims was his own affidavit, while White’s trial and appellate
attorneys submitted credible affidavits which were completely
consistent with the state record. The state habeas court credited
the affidavits of Reddall and Laird, and properly so, as true and
accurate. See Baldree v. Johnson, 99 F.3d 659, 662-63 (5th Cir.
1996) (explaining that state court chose to credit the State’s
affiants after observing testimony of affiants); Buxton v. Lynaugh,
879 F.2d 140, 142-46 (5th Cir. 1989) (same), cert. denied, 110
S.Ct. 3295 (1990); Carter v. Collins, 918 F.2d 1198, 202 (5th Cir.
1990) (stating that “a state court may evaluate an ineffective
assistance of counsel claim by making credibility determinations
based on affidavits submitted by the petitioner and the attorney”).
Based on our review of the record, we conclude that the district
court did not err in applying the presumption of correctness to the
state habeas court’s findings of fact.
B. Ineffective Assistance of Trial Counsel
In his petition, White raises numerous allegations of
ineffective assistance by his trial counsel. He argues that his
trial counsel, Jeffrey Reddall, was ineffective because he failed
to (1) subpoena and interview certain named witnesses, and in
particular, Curtis Hatchet; (2) investigate jury misconduct; (3)
12
inform White of a discovery agreement counsel had with the State;
(4) prepare for trial; (5) obtain full discovery from the State;
(6) file a motion to suppress; (7) obtain a laboratory report or
fingerprint analysis of the cocaine and the plastic baggie; and (8)
object to improper comments by the prosecutor.
To prove ineffective assistance of counsel, White must
demonstrate both that (1) his attorney’s representation was
deficient, that is, it fell below an objective standard of
reasonableness and (2) the deficient performance prejudiced his
defense. Strickland v. Washington, 104 S.Ct. 2052, 2064 (1984).
The defendant has the burden of proving ineffective assistance.
Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). To show
deficient performance, White must demonstrate that counsel made
errors so serious that counsel was not functioning as the “counsel”
guaranteed by the Sixth Amendment. Teague v. Scott, 60 F.3d 1167,
1170 (5th Cir. 1995). In order to prove that he was prejudiced,
White must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Strickland, 104 S.Ct. at 2068. A “court must indulge
a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id.
at 2065 (internal quotation and citation omitted). Failure to
13
establish both deficient performance and prejudice defeats an
ineffectiveness claim. King v. Puckett, 1 F.3d 280, 285 (5th Cir.
1993).
1. Failure to Interview and Subpoena Witnesses
White alleges that he gave Reddall the names of potential
defense witnesses, including Curtis Hatchet, Paula Fields, Dorothy
Payton, Jessie Fargus, June Moore, Christopher Joseph, and Shandra
White, and that Reddall should have interviewed or subpoenaed these
witnesses, or at the very least, requested a continuance until
these witnesses could be located. Reddall’s failure to do any of
the above, White argues, constituted deficient performance that
prejudiced his defense. We disagree.
Adequately supported state habeas findings established that
White never gave Reddall the names of any potential witnesses other
than Curtis Hatchet and some unknown man named “Jessie.” With
respect to Hatchet, White informed Reddall in their initial meeting
that Hatchet was with him on the night he was arrested. When asked
how Hatchet could be contacted, White told Reddall that Hatchet was
his good friend and that he would contact Hatchet so that Reddall
could interview him. On the day of the scheduled interview, White
showed up alone and told Reddall that he could not locate Hatchet.
Reddall later contacted White’s previous attorneys, who told
Reddall that they too had not been able to locate Hatchet.6 In the
6
White had initially retained private counsel. Eventually his
retained counsel withdrew, at which point Reddall was appointed by
14
course of Reddall’s representation of White, White never gave him
Hatchet’s telephone number or address, nor did White have Hatchet
contact Reddall. Despite his efforts, Reddall was unable to
contact Hatchet and, indeed, even the State could not locate
Hatchet through its subpoena. The properly credited state new
trial and state habeas evidence shows that neither Reddall, the
State, nor White himself could locate Hatchet. At the very least,
Reddall made a good-faith effort to locate Hatchet, and thus his
failure to track down Hatchet does not amount to deficient
performance.
Even if we were to assume, arguendo, that Reddall’s inability
to interview or subpoena these alleged witnesses constituted
deficient performance, White has not shown that his defense was
prejudiced because of the alleged deficiency. In order for White
to demonstrate the requisite Strickland prejudice, he must show
that these witnesses would have testified at trial and that their
testimony would have been favorable to White. See Alexander, 775
F.2d at 602; Gomez v. McKaskle, 734 F.2d 1107, 1109-10 (5th Cir.),
cert. denied, 105 S.Ct. 524 (1984). Nowhere in his brief to this
Court does White discuss in any detail what information these
particular witnesses had, what they would have testified to, or
the state court to represent White.
15
whether they would have testified even if given the opportunity.7
White provides no basis on which we can conclude that these
witnesses could have provided testimony that would have changed the
outcome of his trial.8
7
Even in his Brief in Support of Petition For Writ of Habeas
Corpus filed in the district court below, White makes only
conclusory allegations that
“[t]hese witnesses would have testified that (applicant)
petitioner had no dope (cocaine), did not use cocaine,
that Curtis Hatchet did not walk or run away when the
officer approached and that officer Rios found a empty
clear baggie by the dumpster, behind the building across
the driveway, that petitioner was no where near the
dumpster and there were many empty bags like the one
officer Rios found.”
White also states in his affidavit in support of his
Opposition to Respondent’s Motion for Summary Judgment that some of
these witnesses were present when he was arrested at the motel.
However, he does not explain what each of the witnesses saw, what
these witnesses would have testified to, or whether any of the
witnesses would have testified at all.
8
As we said in Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th
Cir. 1986), cert. denied, 479 U.S. 1030 (1987), in denying habeas
relief based on a claim of inadequate representation by failing to
investigate or call witnesses:
“Complaints of uncalled witnesses are not favored in
federal habeas corpus review because allegations of what
a witness would have testified are largely speculative.
Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984).
Where the only evidence of a missing witness’ testimony
is from the defendant, this Court views claims of
ineffective assistance with great caution. Schwander v.
Blackburn, 750 F.2d 494, 500 (5th Cir. 1985).
White has submitted nothing from any of the alleged uncalled
witnesses, or from any third party, indicating what the testimony
of the uncalled witnesses would have been; nor are his own
allegations anything but conclusory in this respect.
16
For the same reasons, Reddall’s decision not to obtain a
continuance was neither deficient nor prejudicial to White’s case.
White provided Reddall with the name of only Curtis Hatchet as a
potential witness, and after almost a year of searching, Reddall,
the State and White himself could not locate Hatchet. White has
not shown that a continuance would have resulted in the discovery
of Hatchet or any other witness.
Finally, White argues that Reddall’s representation was
ineffective because he did not interview State’s witnesses Officer
Rios and chemist K.K. Alexander, or Officer Higgins, who was with
Officer Rios at the time of White’s arrest. As with White’s claim
that Reddall failed to interview or subpoena defense witnesses,
White never explains how Reddall’s decision not to interview the
State’s witnesses resulted in actual prejudice to his defense.
Hence, this claim fails as well.
2. Failure to Investigate Jury Misconduct
White alleges that he and Reddall were approached by two
female jurors after the verdict and were told that other jurors
persuaded them to change their verdict to guilty after discussing
White’s failure to testify and because White was seen in handcuffs
when the jurors were on their lunch break. White claims Reddall
provided ineffective assistance because he failed to investigate
these claims. Both claims are addressed separately below.
a. Jury Discussion of White’s Failure to Testify
White complains that Reddall should have investigated
17
potential jury misconduct when he learned from the two jurors that
other jurors persuaded them to change their verdict to guilty after
the jury discussed White’s failure to testify.9 The record,
however, supports the state habeas court’s implicit rejection of
White’s complaint. In his affidavit Reddall stated that he was
approached by one juror, Karen Peters (Peters), after the verdict
was reached and was told that she was the lone juror who initially
voted not guilty, but after thinking about the case during the
lunch break she decided to vote guilty based on her reconsideration
of the evidence. Reddall asked Peters whether she or any of the
jurors took into consideration White’s failure to testify, to which
Peters responded that “no one discussed this point” and that she
was neither forced nor coerced into changing her vote. Reddall
told White about the conversation, that such was a possible area of
inquiry for a motion for a new trial, and that he should discuss it
with his appellate attorney. Reddall also told White’s
appellate counsel, Laird, about his conversation with Peters. In
preparation for White’s Motion for New Trial, Laird attempted to
contact the jurors to determine whether there was any jury
misconduct of any kind. Of the six who could be contacted, none
indicated that their vote was influenced by anything other than the
evidence or that they were coerced in any way. Most notably, juror
9
According to White, he decided not to testify because he
believed Reddall lied about the court granting his Motion to
Prohibit the State From Mentioning Any Extraneous Offenses or
Extraneous Acts of Misconduct.
18
Peters told Laird that although she initially believed White was
not guilty, she changed her mind based on the evidence presented at
trial, which is exactly what she told Reddall during their
conversation.
Reddall’s and Laird’s accounts of the events are consistent
with the record. Conversely, White has made only conclusory
allegations without affidavits from any of the jurors or other
evidence that would support his allegation of jury misconduct. See
Barnett v. State, 847 S.W.2d 678, 679 (Tex.App.--Texarkana 1993)
(explaining that “[c]onclusory allegations of jury misconduct are
insufficient to require the court to grant a motion for new
trial”). Because the evidence supports the state habeas court’s
implicit conclusion that the jury did not discuss or consider
White’s failure to testify during deliberations, Reddall’s decision
not to investigate the claim cannot possibly be construed as either
deficient or prejudicial.
b. Jury’s Seeing White in Handcuffs
White also claims that Reddall failed to provide effective
assistance because he did not investigate White’s claim that jurors
changed their vote to guilty after seeing him in handcuffs. White
asserts that while the jurors were on their lunch break during
deliberations, they saw White being escorted to the lobby elevator
in handcuffs. He claims that he informed Reddall of what had
happened, but that Reddall did nothing to cure the problem. He
19
also alleges that after the verdict, the same two jurors who had
told Reddall and him that they had changed their vote to guilty
after discussing White’s failure to testify also said that seeing
White in handcuffs influenced their vote.
Again, the record supports the state habeas court’s rejection
of White’s claim. Reddall testified at the new trial hearing that
he first heard of the alleged handcuffing incident from Laird the
day before the new trial hearing. Not surprisingly, Laird stated
in his affidavit that he was not informed by White until the day
before the new trial hearing that White’s jury misconduct claim
would include the allegation that the jury saw him in handcuffs.10
Laird’s own investigation of possible jury misconduct, discussed
above, revealed that nothing other than the evidence presented at
trial influenced the jury’s verdict. White did not raise this
issue in his pro se original motion for new trial.
However, even assuming, arguendo, that the jury did see White
in handcuffs, such a finding would not necessarily mean that he
would be entitled to relief. A defendant is not necessarily
prejudiced by a brief or incidental viewing by the jury of the
10
In his affidavit, Laird explained that he did not learn of
White’s claim that the jury saw him in handcuffs until he received
White’s Second Amended Motion for New Trial, which White gave to
Laird on July 20, 1989, the day before the hearing. Although later
in his affidavit he stated that he did not find out about this jury
misconduct claim until the day of the hearing, this discrepancy
appears to be due to Laird’s confusion regarding the date of the
hearing.
20
defendant in handcuffs. To receive some form of relief, the
defendant must show he suffered actual prejudice from the exposure.
King v. Lynaugh, 828 F.2d 257, 264-65 (5th Cir. 1987), vacated on
other grounds, 850 F.2d 1055 (5th Cir. 1988), cert. denied, 109
S.Ct. 1563 (1989); United States v. Diecidue, 603 F.2d 535, 549-50
(5th Cir. 1979), cert. denied, 100 S.Ct. 1345 (1980); Wright v.
Texas, 533 F.2d 185, 187-88 (5th Cir. 1976). “Defendants accused
of crimes are . . . entitled to physical indicia of innocence in
their jury trials. This Court has declared, however, that brief
and inadvertent exposure to jurors of defendants in handcuffs is
not so inherently prejudicial as to require a mistrial, and
defendants bear the burden of affirmatively demonstrating
prejudice.” Diecidue, 603 F.2d at 549 (citing Wright, 533 F.2d at
187).
In Diecidue, the defendants were seen in shackles being led
into or out of the courtroom and courthouse by jurors during jury
selection and trial. The court upheld the lower court’s decision
to deny the defendants’ motions for a new trial because, as the
court found, “the conditions under which defendants were seen were
routine security measures rather than situations of unusual
restraint such as shackling of defendants during trial” and were
not such as to justify any assumption of prejudice. Id. at 549.
See also Gates v. Zant, 863 F.2d 1492, 1502 (11th Cir.), cert.
denied, 110 S.Ct. 353 (1989).
21
Here, as in Diecidue, any display of White in handcuffs to the
jury was, at most, brief and inadvertent. Thus, even if the jury
had, in fact, seen White in handcuffs, he suffered no prejudice
from the brief display. Because no jury misconduct occurred, trial
counsel did not render ineffective assistance by choosing not to
investigate the claim.
3. Failure to Inform White of Discovery Agreement
White complains that Reddall did not inform him of the
discovery agreement that Reddall had with the State until the day
of his trial. This claim is meritless, as the record shows that
White was fully aware of the State’s open file policy and that he
never objected to this arrangement. Moreover, Reddall’s
representation would not be considered deficient even if, as White
alleges, Reddall had not timely informed him of the discovery
agreement. While counsel’s failure to inform defendant of a plea
offer or advise defendant of his right to appeal may constitute
ineffective assistance of counsel, see Teague, 60 F.3d at 1170-71
(plea offer); Norris v. Wainwright, 588 F.2d 130, 135 (5th Cir.)
(right to appeal), cert. denied, 100 S.Ct. 93 (1979), most
decisions do not require consultation with the defendant. In this
case, Reddall’s decision to accept the State’s offer to examine
freely White’s file cannot be considered so uniquely important a
decision or development such that Reddall’s failure to inform White
of the agreement would constitute deficient performance. Moreover,
22
White fails to explain how he was prejudiced by not being informed
of the discovery agreement.
4. Failure to Present Any Defense
White’s contention that Reddall failed to present any evidence
or put on any defense is meritless. The evidence, implicitly
credited by the state habeas court, shows that in preparing White’s
defense, Reddall met several times with White to review the facts
of the case and discuss potential witnesses and defenses. Reddall
reviewed the State’s file on several occasions, filed numerous
motions, and with little or no help from White, attempted to
contact defense witness Curtis Hatchet. Reddall went to the crime
scene and spoke with employees of the motel to determine if they
knew of any facts or witnesses. At trial, Reddall called as a
defense witness Ino Huang, manager of the Ship Channel Motel, to
testify about the poor lighting at the motel parking lot and
vigorously cross-examined the State’s witnesses. We conclude,
based on our review of the record, that White’s claim in this
respect lacks merit.
5. Failure to Obtain Full Discovery From the State
White claims that Reddall was ineffective because he failed to
obtain from the State material requested in discovery motions. As
a result of his attorney’s inaction, White believes that he was
deprived of defense witnesses, denied an opportunity to obtain a
fingerprint analysis of the plastic baggie, and denied the
opportunity to obtain witness statements to use for impeachment
23
purposes.
Reddall filed with the Clerk of the Court and the District
Attorney’s Office numerous motions, including a Motion to Produce
Exculpatory and Mitigating Evidence, Motion for Discovery of
Witnesses Favorable to Defendant, Motion for Production of
Witnesses Statements, Motion for the Discovery and Inspection of
Evidence, and Motion for List of State’s Witnesses. Reddall met
with the prosecutor and they agreed on all items contained in the
motions. Pursuant to their agreement, the prosecutor maintained an
open file policy and allowed Reddall full access to White’s file up
until the date of trial. Evidence implicitly credited by the state
habeas court reflects that Reddall informed White that the
prosecutor agreed on all items in the discovery motion, and White
did not object to the discovery agreement. Reddall’s method of
discovery with the State was neither deficient nor prejudicial to
White.
6. Failure to File a Motion to Suppress
We likewise reject White’s complaint that Reddall’s decision
not to file a motion to suppress the cocaine was deficient and
prejudicial. There is nothing in the record that would indicate to
us that any evidence used against White was obtained by the State
through illegal activities or procedures so as to violate any of
White’s constitutional or statutory rights. Because there is
nothing to indicate that White could have successfully suppressed
any of the evidence used against him, Reddall did not render
24
deficient or prejudicial performance in choosing to forego a
suppression motion.
7. Failure to Obtain Lab Report or Fingerprint Analysis
Next, White claims that Reddall’s representation was
ineffective because he failed to obtain a fingerprint analysis of
the plastic baggie which contained the cocaine and a laboratory
report on the substance in the baggie. The evidence presented at
trial shows that Officer Rios saw White throw the baggie to the
ground and that the tests conducted by both Officer Rios and
chemist Alexander revealed that the substance was cocaine. White
does not point to any evidence that would show that had Reddall
conducted independent tests on the baggie or the cocaine, the
results would have contradicted the State’s evidence. See, e.g.,
Holdren v. Legursky, 16 F.3d 57, 63-64 (4th Cir.), cert. denied,
115 S.Ct. 106 (1994). White fails to demonstrate the necessary
deficient performance and prejudice.
8. Failure to Object to Improper Comments by the Prosecutor
White’s final ineffective assistance of trial counsel argument
is that Reddall should have objected to comments made by the
prosecutor during closing arguments. These allegedly improper
comments included statements that the defense had the same subpoena
power as the State, that Officer Rios saw White throw down the
baggie because he was trained to always keep his eyes on a person’s
hands and any weapons the person might be holding, and that Curtis
25
Hatchet ran away when he saw Officers Rios and Higgins approaching
in their patrol car.
These remarks were neither inflammatory nor misleading. The
prosecutor stayed within the record, permissibly making summations
and reasonable deductions from the evidence. Reddall’s decision
not to object to these statements was neither deficient nor likely
to have actually prejudiced White’s defense.
C. Ineffective Assistance of Appellate Counsel
White contends that his court-appointed appellate counsel,
Jules Laird, was ineffective because he failed to raise the issue
of jury misconduct through a motion for new trial or on appeal and
failed to raise an ineffective assistance of trial counsel claim
based on trial counsel’s alleged failure to obtain full discovery
from the State, defense witnesses, and exculpatory evidence.
To establish that appellate counsel rendered ineffective
assistance, White must satisfy the standards set forth in
Strickland, that is, White must show that (1) his appellate
counsel’s performance was so deficient as to fall below objectively
reasonable conduct of appellate counsel and (2) appellate counsel’s
failure to perform according to reasonable professional standards
actually prejudiced his appeal. United States v. Patten, 40 F.3d
774, 776-77 (5th Cir. 1994), cert. denied, 115 S.Ct. 2558 (1995);
United States v. Merida, 985 F.2d 198, 202 (5th Cir. 1993).
Laird’s decision not to raise the jury misconduct claim on
26
appeal cannot be construed as deficient performance. Adequate
evidence implicitly credited by the state habeas court shows that
Laird decided not to raise the argument that the jury discussed
White’s failure to testify because he believed that argument was
meritless. As discussed earlier, Laird contacted six of the twelve
jurors in White’s trial, and none of them indicated that there was
any discussion of White’s failure to testify during the jury
deliberations or that his failure to testify influenced any of
their votes. Karen Peters, the only known juror who initially
believed White was innocent but eventually voted to convict, told
Laird that she was in no way influenced by White’s failure to
testify. At White’s new trial hearing, Reddall explained that
Peters told him only that she would have liked to hear White
testify, not that his failure to testify influenced her vote.
Thus, it was not unreasonable for Laird to elect not to pursue this
argument on appeal; nor is there a showing of prejudice for failure
to do so.
Moreover, Laird did not act unreasonably by deciding not to
raise in White’s new trial motion and on appeal White’s claim that
the jury saw him in handcuffs. Evidence credited by the state
habeas court shows that prior to the new trial hearing, Laird spoke
with White regarding the issues he wanted to raise on his appeal.
White made no mention of the jury’s having seen him in handcuffs.
In fact, Laird did not learn of the handcuff allegation until Laird
received White’s Second Amended Motion for New Trial on the day
27
before the new trial hearing. Also, Laird did not discover during
his investigation of jury misconduct any evidence that would have
supported White’s claim. Nor has the requisite showing of
prejudice been made in this respect.
As to White’s argument that Laird should have raised an
ineffective assistance of trial counsel claim based on Reddall’s
alleged failure to obtain full discovery, defense witnesses, and
exculpatory evidence, we conclude that this argument lacks merit.
We have already rejected White’s ineffective assistance of trial
counsel claim with regard to these and other points of error;
accordingly, White could not have prevailed on that claim on
appeal. Thus, even assuming, arguendo, that Laird’s performance
was in some way deficient, White fails to satisfy the second prong
of Strickland——that he was prejudiced by appellate counsel’s
decision not to raise those issues on appeal.
D. Denial of Fair Trial
White maintains that he did not receive a fair trial because
the State violated his Sixth Amendment rights by refusing to serve
subpoenas on potential defense witnesses; the State denied White an
opportunity to inspect and copy discovery material; and the jury
was unfairly biased because members of the jury saw White in
handcuffs and discussed White’s failure to testify.
White contends that he was denied the right to compulsory
process on witnesses favorable to the defense, namely Curtis
28
Hatchet, Jessie Fargus, Paula Fields, and Dorothy Payton. White
also contends that the State, despite its claim that it was unable
to locate Hatchet to serve him with a subpoena, willfully failed to
enforce the subpoena even though Hatchet was in the State’s
custody. In other words, White does not dispute the fact that the
State had subpoenaed Hatchet, but argues only that the State should
have known where he could be found.
As we established earlier, the only potential defense
witnesses named by White prior to trial were Curtis Hatchet and
someone designated only as “Jessie.” Hence, White may not now
complain that he was denied the right to have witnesses other than
Hatchet testify on his behalf, as he never provided anyone with the
names of these witnesses. In any event, White fails to explain how
any of these witnesses were material to the defense, what they
would have testified to, whether they were available to testify, or
whether they were willing to testify at all. See Alexander, 775
F.2d at 602. Moreover, although a defendant is guaranteed the
right to compulsory process for attendance of witnesses in his
favor, the right proscribes “the government’s making a witness
unavailable and thereby preventing a defendant from interviewing
and determining whether he will subpoena and call the witness in
his defense. Thus, the government may not deny the defendant
access to a witness by hiding him out.” United States v. Colin,
928 F.2d 676, 679 (5th Cir. 1991) (quoting United States v. Henao,
29
652 F.2d 591, 592 (5th Cir. Unit B 1981)). White does not argue
that the State hid any of the witnesses or otherwise made them
unavailable, nor does he dispute the State’s assertion that it made
an effort to serve Hatchet with a subpoena at his home address.
And, as previously discussed, no one could find Hatchet, and White
has not adequately explained in his brief or below just what
Hatchet would testify to (and that he would testify).
As for White’s remaining due process claims, the record shows
that up until the date of trial, the State maintained an open file
policy, allowing White’s trial counsel full access to the State’s
files. Evidence credited by the state new trial and habeas court
also shows that the jury verdict was in no way influenced by
White’s failure to testify or by the jury’s seeing White in
handcuffs. Accordingly, we reject White’s compulsory process and
due process claims.
E. Denial of Access to Trial Record
White also claims that, despite the district court’s order
that the State forward him those portions of the transcript
referenced in the Motion for Summary Judgment, the State failed to
provide him with such materials. The record indicates, however,
that pursuant to the court’s order, the State mailed White a
complete copy of the state court record to White’s prison unit.
Also, in his appellate brief, White quotes directly from the record
on several occasions, including quotes of alleged improper comments
made by the prosecutor at trial. This claim is meritless.
30
F. Sufficiency of the Evidence
Finally, White argues that the State did not present
sufficient evidence to support his conviction. Specifically, he
asserts that the State failed to prove that he was in possession of
cocaine or that he intentionally or knowingly possessed cocaine.
He also argues that the State failed to corroborate the testimony
of its main witness, Officer Rios, either by producing physical
evidence of the cocaine or through the testimony of another
individual, such as Officer Higgins.
When analyzing the sufficiency of the evidence in a habeas
corpus proceeding, we must refer to the substantive elements of the
criminal offense as defined by state law. Foy v. Donnelly, 959
F.2d 1307, 1313-14 (5th Cir. 1992). “Under Texas law, [i]n order
to establish the unlawful possession of a controlled substance the
State must prove two elements: (1) that the accused exercised
care, control and [or] management over the contraband, and (2) that
the accused knew that the matter possessed was contraband.” Gilley
v. Collins, 968 F.2d 465, 468 (5th Cir. 1992) (internal quotation
and citation omitted).
Officer Rios testified that on the night of the arrest, he
observed White with another unidentified male, at which time
Officer Rios approached White in his patrol car and turned on the
high beams. As White began walking in the opposite direction,
Officer Rios noticed that White dropped a “little clear baggie on
31
the ground.” Officer Rios retrieved the baggie, which contained a
white powdery substance, and conducted a field test, which revealed
that the substance was cocaine. Officer Rios kept the bag and
cocaine, tagged the evidence and placed it in a submission
envelope, sealed the envelope, and dropped the envelope off at the
lab for analysis. At trial, Officer Rios identified State’s
Exhibit Number 3 as the clear baggie with the powdery substance.
K.K. Alexander, a chemist with the Houston Police Department,
received State’s Exhibit Number 2, the evidence envelope.
Alexander testified that the envelope was sealed when he obtained
it from the narcotic lock box, which can be opened only by the
chemist. Alexander then tested the powdery substance by doing four
color tests, one ultraviolet spectrophotometry, three thin-layer
chromatography tests, and one microcrystalline test. Based upon
these tests, Alexander concluded that the substance was cocaine.
Alexander opined that the weight of the cocaine was 75.3
milligrams, or less than twenty-eight grams.
Based on our review of the evidence adduced at trial, and
viewing the evidence in the light most favorable to the State, we
conclude that a rational trier of fact could have found that White
exercised care, control, and management over the cocaine and White
intentionally and knowingly possessed the cocaine. Moreover, his
attempt to abandon the cocaine, which he had personal possession
of, is sufficient evidence from which a rational trier of fact
could conclude that his possession of the substance was knowing.
32
See, e.g., Blackmon v. State, 830 S.W.2d 711, 713-14 (Tex.App.--
Houston (1st Dist.) 1992) (evidence sufficient where officer saw
defendant throw object which later was discovered to contain crack
cocaine). We reject White’s assertion that, because the State
failed to corroborate Officer Rios’s testimony with some physical
evidence or testimony, his conviction was not supported by the
evidence as a matter of law. White improperly attempts to apply
the requirement of independent corroboration of accomplice-witness
testimony under Texas state law to the testimony of Officer Rios
who, of course, is not an accomplice witness.11 Upon review of the
entire record, we conclude that all of White’s sufficiency of the
evidence challenges are meritless.
Conclusion
For the foregoing reasons, the district court’s summary
judgment order denying White’s petition for habeas corpus relief is
AFFIRMED.
11
In any event, the accomplice-witness rule is not controlling
upon collateral review by this Court. See Brown v. Collins, 937
F.2d 175, 182 n.12 (5th Cir. 1991); Llewellyn v. Stynchcombe, 609
F.2d 194, 196 (5th Cir. 1980)
33