IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40095
Summary Calendar
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JIM CARROLL MARTIN,
Petitioner-Appellant,
versus
WAYNE SCOTT, Director Texas
Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
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Appeal from the United States District Court for
the Eastern District of Texas
(3:93 CV 81)
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July 28, 1995
Before REAVLEY, DUHÉ and WIENER, Circuit Judges.
PER CURIAM:*
Jim Carroll Martin was convicted by a Texas state jury of
aggravated sexual assault of his minor stepson and minor
stepdaughter. He appeals the district court's denial of his
petition for federal habeas corpus relief. We affirm.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
DISCUSSION
A. The Admission of Hearsay Statements
Martin argues that he received ineffective assistance of
counsel in state court, because his counsel did not prevent the
admission of certain hearsay testimony during the trial on his
guilt. Lois Price, an employee of the Texas Department of Human
Services, testified for the prosecution about what the children
told her in an interview that she had with them shortly after the
older child had reported abuse to the children's mother. The
district court allowed this evidence pursuant to a Texas statute
which permits hearsay testimony, in child abuse cases, about the
first statement concerning the offense made by a minor victim to
an adult. Tex. Crim. Proc. Code Ann. § 38.072 (West Supp. 1995).
Martin argues that his attorney should have objected to Price's
testimony on the grounds that the children did not make their
first statements to Price. He claims that, if his attorney had
properly investigated the case, he would have discovered that the
children first made statements about the offense to officer Benny
Matthews at the Sheriff's Office. He argues that his counsel
should have called Matthews to testify so as to preclude Price
from testifying.
Even if the performance of Martin's counsel was deficient,
Martin cannot show that he suffered any prejudice. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). If Martin's
counsel had found that Matthews first heard the children's story
about their stepfather's abuse, then Matthews would have been the
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proper witness to testify about the children's statements rather
than Price. But, Martin cannot show that Matthews' testimony
about the children's statements would be any more favorable to
his case than the testimony of Price. The record indicates that
the children saw Matthews and Price on the same day. The record
does not show any difference in the stories about the abuse told
to Matthews and Price. Also, the children themselves testified
at trial about the abuse they suffered, so that Price's testimony
added little in support of the prosecution's case. Price's
testimony was presumably offered by the prosecution to support
the children's testimony by showing that the children told the
same story to an adult soon after the abuse was discovered.
Matthews' testimony would have served that purpose as well as
Price's testimony.
Martin also argues that Price's testimony should not have
been admitted, because the prosecution did not comply with the
procedural requirements of the Texas statute providing for the
admission of Price's hearsay testimony. See Tex. Crim. Proc.
Code Ann. § 38.072. Martin's counsel objected strenuously to
Price's testimony on the grounds of noncompliance with the
requisite procedure. Although Martin's counsel did not succeed
on this point, he certainly provided "reasonable" assistance.
See Strickland, 466 U.S. at 689.
Martin also complains that hearsay testimony by the
children's mother was admitted. The record shows that the jury
did not hear any hearsay testimony by the mother about the
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children's statements to her relating to the sexual abuse.
Martin's counsel objected to any such testimony by the mother.
The court agreed that the mother could not testify about
statements made to her by the children relating to the abuse,
because the children did not make their first statements about
the actual offense charged to their mother. Martin's counsel was
successful, not deficient.
B. Jury Instructions on Punishment
Martin also argues that he received ineffective assistance
of counsel during the punishment stage of the trial. The trial
judge gave the jury an instruction on Martin's future eligibility
for parole which was incorrect under Texas law and which might
have led the jury to believe that Martin would be eligible for
parole sooner than he actually would be. Martin complains that
his counsel was ineffective, because he failed to object to the
instruction.1 The state respondents concede that Martin's
counsel should have objected. However, Martin again has failed
to show prejudice. See Strickland, 466 U.S. at 687. He has not
shown that there exists a probability that, but for counsel's
1
Martin also appears to request habeas relief on the
grounds that the trial judge incorrectly instructed the jury as a
point of error separate from the ineffective counsel claim.
However, Martin's claim just asserts that the trial court failed
to follow state law by instructing the jury incorrectly on Texas
law regarding parole availability. We do not interfere with a
state court's application of state law. Springer v. Coleman, 998
F.2d 320, 324 (5th Cir. 1993). In a habeas case, we decide only
issues which involve federal constitutional concerns. Smith v.
McCotter, 786 F.2d 697, 700 (5th Cir. 1986). Martin does not
allege a violation of any constitutional right other than the
right to effective assistance of counsel.
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deficiency, his sentence would have been "significantly less
harsh." Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993).
In deciding whether Martin suffered prejudice in the
sentencing context, we must consider the actual sentence imposed,
the minimum and maximum sentences possible, the relative
placement of the actual sentence within that range, and any
relevant mitigating and aggravating factors that were considered
by the jury. Id. at 88-89. Martin's sentence of 20 years was at
the lower end of the possible imprisonment range of 5 to 99
years. The jury heard graphic testimony about Martin's repeated
sexual assault of a small boy and girl living in his home and
under his care. Considering the aggravating circumstances of the
case, the jury could easily have imposed a much harsher sentence.
It is not likely that the jury would have given Martin a lower
sentence if they had more clearly understood the rules of parole.
C. Impartiality of the Jury
Martin finally argues that his constitutional rights were
violated because Cynthia Fox, the alleged secretary of a
physician who examined the children, was allowed to remain on the
jury. See Irvin v. Dowd, 366 U.S. 717, 722 (1961) (accused has
constitutional right to be tried by an impartial jury). Although
it is unclear whether Martin's argument is couched in terms of
ineffective assistance or as a separate point of error, neither
argument is availing.
Even assuming that Fox was employed by the physician, Martin
has not shown that Fox was unable to serve as an impartial juror.
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Nor can Martin argue that her presence on the jury prejudiced his
defense. Martin claims that Fox was predisposed to believe the
testimony of her employer, the physician. However, Martin relied
heavily on the physician's testimony that he found no physical
findings to verify the allegations of sexual abuse made by the
children and could not make a conclusion that abuse had occurred.
Fox's predisposition to believe this testimony would aid rather
than harm Martin's defense.
Martin has also failed to show that his counsel's failure to
remove Fox was anything less than a strategic decision. See
Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994) (strategic
choices are virtually unchallengeable). The jury panel consisted
of many persons either related to, or familiar with, the parties.
Martin's counsel may have chosen not to challenge Fox's presence
on the jury, because Fox may have had less connection to the case
than other proposed jury members. Also, Martin's counsel may
have wished to keep Fox on the jury, believing that the
physician's testimony was Martin's strongest defense and hoping
that Fox would believe that testimony.
D. Appointment of Counsel and Evidentiary Hearing
The district court did not err in refusing to hold an
evidentiary hearing so that Martin could present his points of
error. A federal court need not hold an evidentiary hearing on a
habeas petition if the record is adequate to dispose of the
claims. Wiley v. Puckett, 969 F.2d 86, 98 (5th Cir. 1992). As
evidenced from the preceding discussion, Martin's claims are
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readily disposed of without the necessity of creating further
record in this case. Nor did the district court err in denying
Martin's requests for appointment of counsel. No constitutional
right to counsel exists in habeas corpus actions. Pennsylvania
v. Finley, 481 U.S. 551, 555 (1987). The interests of justice
would not be served by appointing counsel in this case. See
Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985).
AFFIRMED.
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