Gordon v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-20815
Summary Calendar

ROBERT GORDON,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-95-CV-4127
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July 7, 1999

Before KING, Chief Judge, EMILIO M. GARZA and BENAVIDES, Circuit
Judges.

PER CURIAM:*

Robert Gordon, No. 319173, was granted a certificate of

probable cause (CPC) to appeal the dismissal of his 28 U.S.C.

§ 2254 petition. Gordon raised eleven grounds for relief. He

argues that the trial court erred by failing to grant his motion

to dismiss the indictment charging him with aggravated assault

for violations of Texas’ Speedy Trial Act. State speedy trial

statutes do not present a federal constitutional issue cognizable

*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
in a § 2254 proceeding. See Davis v. Wainwright, 547 F.2d 261,

264 (5th Cir. 1977). In addition, this claim was found meritless

by the state courts. This court will not review a state court’s

interpretation of its own law in a federal habeas proceeding.

See Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995).

Gordon argues that the bias and prejudice of the trial court

judge effectively denied him due process of law during his trial.

He contends that his motion for copies of the state trial

transcripts was granted, but he was never provided with the

transcripts. It is clear from Gordon’s citation in his appeal

brief to portions of the trial transcript that he had access to

the state records in preparing his brief to this court. Any

alleged bias on the part of the state courts is therefore

irrelevant in this court.

Gordon argues that the trial court abused its discretion

when it quashed the subpoena of defense witnesses who would have

offered testimony regarding the invalidity of Gordon’s prior

convictions which were used to enhance his sentence. According

to Gordon, when he pleaded guilty to the 1977 offenses, he did so

with the understanding that he was to receive two four-year

probated sentences. He did not know and was never informed that

in the event his probation was revoked, he would have to serve

two consecutive four-year sentences, as opposed to two concurrent

four-year sentences. Gordon thus contends that the 1977

convictions are void.

Gordon correctly points out the district court’s erroneous

reliance on the Court of Criminal Appeals’ opinion on original
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submission, which reformed the sentences to run concurrently.

That opinion was reversed on the state’s motion for rehearing.

See Gordon v. State, 575 S.W.2d 529, 534-35 (Tex. Crim. App.

1979). However, both federal and state law cases indicate that

the voluntariness of a guilty plea is not affected by a court’s

failure to inform a defendant that sentences for separate

offenses may be “stacked” or “cumulated.” See United States v.

Humphrey, 164 F.3d 585, 587 (11th Cir. 1999), citing United

States v. Saldana, 505 F.2d 628, 628 (5th Cir. 1974); Matheson v.

State, 832 S.W.2d 692, 694 (Tex. App. 1992); Ybanez v. State, 770

S.W.2d 106 (Tex. App. 1989). Even if Gordon’s “stacked”

sentences could be deemed invalid, it is unlikely that the

underlying convictions would be invalidated and unavailable to

enhance his punishment at the 1986 trial. See Gutierrez v.

Estelle, 474 F.2d 899, 901 (5th Cir. 1973)(lack of counsel at

sentencing invalidated sentence, but underlying conviction

remained valid for purposes of enhancement of subsequent

conviction). Thus, the punishment phase of Gordon’s trial would

not have been affected by the issuance of the requested

subpoenas.

Gordon argues that the trial court erred by requiring Gordon

to testify in his own defense prior to the testimony of any other

defense witnesses. The record does not support this assertion,

and in fact, indicates that Gordon’s counsel had him testify

first because he had no other witnesses, was unsure if he would

be able to obtain other testimony, and wanted to insure that the

self-defense theory was introduced. Gordon’s assertion that the
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prosecutor, Latham Boone, corroborated his claim is equally

meritless. These assertions lack a factual basis in the record.

Gordon argues that the trial court erred by admitting

extrajudicial statements made by Gordon in the context of a

prison disciplinary hearing. He contends that the prosecutor was

guilty of misconduct because the state should not have been

allowed to cross-examine him about his failure to claim self-

defense in response to a disciplinary charge filed against him as

a result of the same aggravated assault for which he was charged

and convicted herein.

State evidentiary rulings generally are not reviewable

through federal habeas proceedings. A petitioner must establish

that the error was of such magnitude that he was denied

fundamental fairness under the Due Process Clause. Bridge v.

Lynaugh, 838 F.2d 770, 772 (5th Cir. 1988). Whether a petitioner

received a fundamentally fair trial hinges on whether the

admitted evidence involved a “crucial, critical, or highly

significant factor in the context of the entire trial.” Id.

(citation omitted). Similarly, this court’s task in reviewing a

claim of prosecutorial misconduct is to decide whether the

misconduct casts serious doubt upon the correctness of the jury’s

verdict. United States v. Carter, 953 F.2d 1449, 1457 (5th Cir.

1992). For prosecutorial misconduct to warrant a new trial, it

"must be so pronounced and persistent that it permeates the

entire atmosphere of the trial." United States v. Stewart, 879

F.2d 1268, 1271 (5th Cir. 1989).
 No. 97-20815
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The record indicates that although the prosecution may have

discredited Gordon’s self-defense theory, there was substantial

and compelling evidence which did much more to discredit Gordon’s

self-defense theory. First, the state introduced a letter found

in Gordon’s cell which detailed a proposed plan of attack on the

complainant, a plan which was substantially similar to the method

of attack actually used. Second, Gordon admitted making a spear

prior to the attack, with the idea of stabbing Robert Cox (the

assaulted inmate) with it. Moreover, under Tex. R. Crim. Evid.

801(e), a prior inconsistent statement by a witness is not

hearsay and is admissible for impeachment purposes. See also

Michigan v. Harvey, 494 U.S. 344, 350-51 (1990)(“although

statements taken in violation of . . . Miranda rules may not be

used in the prosecution’s case in chief, they are admissible to

impeach conflicting testimony by the defendant”); Bradford v.

Whitley, 953 F.2d 1008, 1010-11 (5th Cir. 1992)(prosecutor may

use edited transcript of confession allegedly obtained in

violation of Sixth Amendment right to counsel as long as such use

was limited to impeachment purposes). This claim lacks merit.

Gordon alleges that the prosecutor, defense counsel, and the

trial court engaged in ex parte communications** regarding the

possibility of a post-conviction plea bargain. He contends that

after he was convicted and sentenced, and while his motion for

new trial was pending, the trial court judge, his attorney, and

**
Actually, Gordon’s brief does not mention ex parte
communications. However, his allegations make no sense unless
viewed in the context of the facts noted by the district court.
See R. 1, tab 34, 20.
 No. 97-20815
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the prosecutor discussed, ex parte, the possibility of a plea

agreement. Gordon alleges that he rejected a plea agreement in

the belief that the trial court had granted his motion for a new

trial. Thus, the ex parte communication, along with the trial

court’s denial of his motion for new trial on the basis that he

had rejected a plea agreement, resulted in a violation of his due

process and equal protection rights.

Despite the conference at which a plea agreement was

discussed, there is nothing to suggest that the trial court’s

denial of Gordon’s motion for new trial was based upon his

refusal to enter into a plea agreement. Nor is there any

evidence that the trial court indicated to Gordon or his attorney

that his motion for new trial had been or would be granted. This

claim lacks a foundation in the record.

Gordon alleges ineffective assistance of counsel based on

counsel’s failure to object at the guilt-innocence phase of trial

to the prosecutor’s repeated references to the fact that he was

housed in an administrative segregation unit of the prison, where

violent inmates are housed. The prosecutor also stated that the

entire incident would not have occurred had Gordon been willing

to “obey the Rules.” He contends that these statements were

inflammatory and prejudicial, as well as prohibited evidence of

extraneous offenses.

The fact that Gordon was housed in administrative

segregation with other violent inmates was relevant to the crime

and, insofar as it suggested extraneous offenses or violence, it
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was part of the res gestae and was therefore admissible. See

Gaines v. Texas, 789 S.W.2d 926, 930 (Tex. App. 1990).

Gordon also complains that the aforementioned “extraneous”

facts had a prejudicial effect on the punishment phase of his

trial, as did the testimony of Sandy Estes and William Lymons.

Since the extraneous circumstances were admissible during the

guilt-innocence phase, their effect on the subsequent punishment

phase and on Gordon’s sentence is not a separate issue.

Likewise, the testimony of Lymons occurred during the guilt-

innocence phase of the trial. Lymons’ testimony concerned the

particulars of membership in the Aryan Brotherhood and the

Brotherhood’s methods for obtaining favors from people like Cox

and for dealing with those who refused to cooperate. The

testimony of Lymons was admissible to show motive. See

Cunningham v. State, 982 S.W.2d 513, 523 (Tex. App. 1998)(gang

affiliation admissible to show motive), citing Tex. Rule Evid.

404(b). Evidence of motive is admissible under Texas law as a

circumstance indicating guilt. See Tex. Rule Evid. 404(b).

Estes was a reputation witness during the punishment phase

of Gordon’s trial. At the punishment phase of trial, the

reputation of a defendant is an issue, and the state is entitled

to introduce such evidence. Wilson v. State, 857 S.W.2d 90, 96

(Tex. App. 1993), citing Tex. Code Crim. P. Ann. art. 37.07,

§ 3(a) (Vernon Supp. 1993). A witness must have been familiar

with the reputation, or with the underlying facts or information

upon which the opinion is based, prior to the offense. Id. As

assistant warden for two years in the prison where Gordon was
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housed, Estes was sufficiently familiar with Gordon’s activities

and reputation apart from the charged offense to give reputation

testimony. See id., citing Tex. R. Crim. Evid. 405(a)(testimony

of probation officer). Defense counsel did not err in failing to

object to Estes’ testimony.

Gordon complains of counsel’s failure to object to the

introduction, via penitentiary packets (“pen packs”), of his two

prior convictions for theft and unauthorized use of a motor

vehicle. Gordon also contends that the prosecutor improperly

brought up extraneous offenses (i.e., his conviction for credit

card abuse) by noting the reason his probation was revoked.

Under Tex. Code Crim. P. Ann. art. 37.07, § 3(a), the state

may properly introduce, during the punishment phase, evidence of

a defendant’s prior convictions. See Liggins v. State, 979

S.W.2d 56, 67-68 (Tex. App. 1998). Gordon’s conviction for

credit card abuse was therefore admissible. Id. Penitentiary

packets are generally insufficient, standing alone, to prove

prior convictions. See Zimmer v. State, 989 S.W.2d 48, 50-51

(Tex. App. 1998). The state must show by independent evidence

that the defendant is the person so previously convicted. Id.

This was accomplished when Gordon admitted on direct examination

that he pleaded guilty and was convicted of theft and

unauthorized use of a vehicle to avoid disclosing an alias and

thus facing prosecution in California. Thus, counsel’s failure

to object to the use of pen packs was not error. See id.

Gordon argues that his prior convictions which were used for

enhancement purposes were void. As previously noted, Gordon
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admitted that he pleaded guilty to those charges. He also

admitted that all of his appeals were denied. This claim is

frivolous.

Gordon has failed to demonstrate that counsel’s performance

was deficient. Therefore, his ineffective-assistance-of-counsel

claim must fail. See Strickland v. Washington, 466 U.S. 668,

687-94 (1984).

The district court concluded that Gordon’s challenge to the

validity of his two 1977 convictions, which were used for

enhancement of his sentence, should be dismissed as an abuse of

the writ. The district court based this determination on

Gordon’s three federal § 2254 petitions challenging the 1977

convictions, filed before he was convicted on the instant

aggravated assault charge. Because those prior § 2254 petitions

did not challenge Gordon’s subsequent 1986 conviction for

aggravated assault, which he challenges in the instant § 2254

petition, they cannot form the basis of a Rule 9(b) dismissal.

Nor can the previous § 2254 petition challenging the aggravated

assault conviction, since the district court did not rule on the

merits of the claims presented therein. See e.g., In re: Gasery,

116 F.3d 1051, 1052 (5th Cir. 1997); Jones v. Estelle, 722 F.2d

159, 168 (5th Cir. 1983)(en banc); see also Benton v. Washington,

106 F.3d 162, 164-65 (7th Cir. 1996)(cited with approval in

Gasery for proposition that a habeas petition refiled after

dismissal without prejudice is neither second nor successive).

The district court abused its discretion in dismissing as an

abuse of the writ Gordon’s challenge to the use of his 1977
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convictions to enhance his sentence. See United States v.

Flores, 981 F.2d 231, 234 (5th Cir. 1993)(abuse of discretion

standard; § 2255 case).

Nonetheless, the claim must fail. Gordon attempted at trial

to establish that his guilty pleas to the theft and unauthorized

use of a vehicle charges (1977 convictions) were invalid, and he

asserts in his brief that his court-appointed attorney did not

explain to him the consequences of his sentence of probation

being revoked. The state established on cross-examination that

Gordon had exhausted, to no avail, all available state procedures

for obtaining relief from his 1977 convictions, and that this

claim was not credible. The record does not contain any factual

support for the allegation that Gordon’s 1977 convictions for

theft and unauthorized use of a vehicle are void or voidable, and

Gordon has not presented a legal basis for such a finding. This

argument lacks merit.

Gordon’s final argument that the district court erred in

failing to appoint counsel for him is meritless. Gordon has

failed to demonstrate that the interests of justice required the

appointment of counsel for him. See Schwander v. Blackburn, 750

F.2d 494, 502 (5th Cir. 1985). Accordingly, his motion for

appointment of counsel is DENIED.

Gordon has failed to make an adequate showing of error on

any of his claims. The denial of his habeas petition is

therefore AFFIRMED.