Chavez v. Johnson

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 95-10732
Summary Calendar

MARIO CHAVEZ,

Petitioner-Appellant,

versus

GARY JOHNSON, Director,
Texas Department of Criminal
Justice, Institutional Division,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Texas

February 6, 1996
Before WIENER, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Petitioner Chavez appeals the district court's dismissal of

his petition for a writ of habeas corpus under 28 U.S.C. § 2254.

Finding no error, we affirm.

I. FACTS

Mario Chavez was convicted for possession of less than 28

grams of heroin and is serving a life sentence (enhanced because

of two prior felony convictions for theft and possession of a

controlled substance) in the custody of the Texas Department of

*
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that this opinion should not be published and is not precedent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.
Criminal Justice, Institutional Division. This appeal is from

the dismissal of Chavez' second federal petition for a writ of

habeas corpus. His first petition was dismissed because Chavez

had not exhausted his state remedies as to all issues. After

exhausting his state remedies, Chavez filed the instant habeas

petition.

The magistrate judge recommended that the petition be

dismissed with prejudice and the district judge adopted the

magistrate's findings and conclusions. Chavez filed a notice of

appeal, pro se, and the district court issued a certificate of

probable cause.

II. DISCUSSION

On appeal, Chavez argues that the district court erroneously

dismissed his claims that his trial counsel rendered ineffective

assistance and that because he was not resentenced under an

amended sentencing scheme he was denied his constitutional right

to equal protection.

Issue 1:

Chavez contends that his trial counsel rendered ineffective

assistance. In order to prove that his counsel was ineffective,

Chavez must show that his attorney's performance was deficient

and that the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80

L. Ed. 2d 674 (1984). To show deficient performance, Chavez must

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overcome the "strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance."

466 U.S. at 689. "[T]he `prejudice' component of the Strickland

test . . . focusses on the question whether counsel's deficient

performance renders the result of the trial unreliable or the

proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S.

364, 113 S. Ct. 838, 844, 122 L. Ed. 2d 180 (1993). A court need

not address both components if the petitioner makes an

insufficient showing on one. Strickland, 466 U.S. at 697.

"[S]trategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than

complete investigation are reasonable precisely to the extent

that reasonable professional judgments support the limitations on

investigation." Black v. Collins, 962 F.2d 394, 401 (5th Cir.),

cert. denied, 504 U.S. 992 (1992) (internal quotations and

citation omitted).

Chavez identified approximately 30 individual instances of

alleged attorney error. Chavez asserted these thirty incidents

as independent bases for concluding that his attorney rendered

ineffective assistance. Chavez also argued that these thirty

errors substantiate his main claim--that defense counsel's

performance was ineffective because he was a drug addict and was

under the influence of drugs during the trial.

The affidavit of Jerry Johnson, who represented Chavez, was

filed in the state habeas proceeding. Johnson attested:

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 In 1989, I represented Mario Chavez in Tom Green
County, Texas. Mr. Chavez was charged by indictment
with Possession of a Controlled Substance. The case
was tried to a jury before Judge John Sutton. At no
time, during any of the proceedings, was I under the
influence of alcohol, controlled substances or any
other drug which would affect my ability to represent
Mr. Chavez.

Judge Sutton made the following statement in his affidavit:

At no time during the trial of Mr. Chavez was there
anything said or done by Mr. Jerry Johnson to cause me
to have a concern that he was under any type of
influence. I am of the opinion that Mr. Jerry Johnson
was not under the influence of alcohol or any other
substance.

The state habeas judge made the following observations and

findings:

Since the undersigned judge took the bench in 1975
attorney Jerry Johnson tried numerous cases before me.
He had a unique style of trial tactics, which was very
demanding, at times aggravating, upon the presiding
trial judge, but most effective when it came to
defending his clients. He was a competent lawyer who
not infrequently, either by reading or continuing legal
education, acquainted himself with new developments of
the law generally before they became known and used by
the criminal defense bar. Using such "advance notice"
he planned his strategy that his trial record would
show error when he later appealed the case.

As part of his trial strategy he would readily
stipulate or appear to stipulate and try to disprove an
essential element of the State's case. An adverse
ruling by the trial judge would not deter him to
attempt to offer the same evidence later in hopes of
getting it admitted. Feigning lack of understanding to
a ruling or evidence not to his liking was one of his
most effective tools; and he would do this in such
manner and with such expertise that it was impossible
to prove he was not acting in good faith. In short
from a trial judge's standpoint he was not an easy
lawyer to have try a case. He frequently tried the
judge's patience to the point of near frustration.

I have read the record, particularly the thirty-odd
instances referred to, and I find nothing in the record
which would distinguish this case from any others tried

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 by attorney Jerry Johnson. While I do not recommend
his tactics to the bar as examples to be emulated, and
I personally find some of these tactics reprehensible,
I specifically do not find anything in this record
which would justify the assumption or conclusion that
these enumerated instances are any evidence that Jerry
Johnson was under the influence of drugs during the
trial of this case.

Accordingly, I find that Jerry Johnson was not under
the influence of any drugs or chemical substances
during the trial of this case . . . .

Chavez' habeas application was denied by the Texas Court of

Criminal Appeals without written order on findings of the trial

court without a hearing.

Findings of fact by a state court are entitled to a

presumption of correctness by federal courts. Sumner v. Mata,

449 U.S. 539, 544-47, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981); 28

U.S.C. § 2254(d). The presumption applies to both explicit and

implicit findings. Loyd v. Smith, 899 F.2d 1416, 1425 (5th Cir.

1990). Although a state court's determination whether counsel

rendered ineffective assistance involves a mixed question of law

and fact, Black, 962 F.2d at 401, the state court's determination

of historical facts pertinent to ineffective-assistance-of-

counsel claims are subject to the § 2254(d) presumption.

Lincecum v. Collins, 958 F.2d 1271, 1279 (5th Cir.), cert.

denied, 113 S. Ct. 417 (1992).

The district court held that the state court's finding that

Johnson was not impaired by alcohol or drugs was presumptively

correct. Chavez contends that the district court improperly

applied the presumption of correctness because the state court

did not hold a live evidentiary hearing. To the extent that

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Chavez seeks to rebut the presumption of correctness, Chavez

"bears the burden under § 2254(d) of proving by `convincing

evidence' that the factual determinations by the state court were

erroneous." Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993)

(citation omitted).

"[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." Armstead v. Scott, 37 F.3d 202, 207 (5th Cir. 1994)

(citing 28 U.S.C. § 2254(d)(2)), cert. denied, 115 S. Ct. 1709

(1995). A federal court may also abandon the presumption of

correctness when the state court's findings are not fairly

supported by the record or when material facts were not developed

adequately by the state court. Sumner, 449 U.S. at 544-45; 28

U.S.C. § 2254(d)(3) and (8). A state court's findings, based

solely on affidavits, i.e., a paper hearing, have been held to

constitute an adequate hearing under § 2254(d). May v. Collins,

955 F.2d 299, 313 (5th Cir.), cert. denied, 504 U.S. 901 (1992).

The presumption of correctness has attached to state-court

findings after a paper hearing on claims of ineffective

assistance of counsel. See Lincecum, 958 F.2d at 1279.

Generally, "it 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.

6
 In his affidavit, Chavez argues, Johnson denied that he was

impaired during the trial only and did not discuss or rebut

Chavez' individual ineffective-assistance claims. Chavez

speculates, "Perhaps counsel was not using drugs or alcohol

`during' the trial (in the day time?) but what about after court

had adjourned, and at night? Did counsel use drugs at night and

have a `hang over affect' [sic] the next day during trial."

Chavez contends that Johnson dozed-off during the trial, that

Chavez was a close personal friend of Johnson, and that Chavez

knew Johnson to be a drug-abuser. Johnson was a capable

criminal-defense attorney, Chavez argues. The only explanation

for the numerous errors committed by Johnson is that he was

impaired during the trial. Chavez argues that he did not have an

opportunity to determine whether Johnson had lied in his

affidavit to avoid additional legal problems related to his drug

abuse. Chavez also argues that the state trial judge's affidavit

should be discredited because he was not in a position to observe

whether Johnson had dozed off. Chavez attributes Johnson's

erratic behavior to his long-term drug abuse.

Subsumed in Johnson's statement that he was not under the

influence of drugs or alcohol during his trial is the fact that

Johnson was not hung over by drug and alcohol abuse which

occurred when court was not in session. Johnson's affidavit is

corroborated by the affidavit of the trial judge. Chavez is not

in a position to state what the trial judge did, or did not,

observe and his personal knowledge of Johnson's drug abuse, as a

7
general matter, does not provide convincing evidence that the

state court erred in determining that Johnson was not impaired

during the trial.

As the magistrate judge noted, the conclusion that Johnson

was not impaired during the trial "does not exclude consideration

of the claims of ineffective assistance of counsel without

reference to any particular cause." On appeal, Chavez briefed

some but not all of the claims raised in the district court.

Issues which are not briefed on appeal are waived. Brinkmann v.

Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987). The particular ineffective assistance issues which Chavez

has briefed are discussed below.

Chavez contends that Johnson rendered ineffective assistance

in failing to object to his warrantless arrest. If Johnson had

challenged the arrest at a preliminary stage, Chavez argues, the

evidence against Chavez would have been thrown-out as fruit of

the poisonous tree and he would not have been convicted. This

argument is without merit. The state appellate court found the

following:

The instant prosecution followed the execution, by
San Angelo police, of a search warrant for the
residence of Gilbert Pena. When the police arrived at
Pena's residence, Pena, his wife Maria, their three
children, and appellant were present. Appellant was in
the living room vacuuming the floors when the police
arrived; he did not attempt to flee or struggle with
the officers. Appellant did not appear to the officers
to be intoxicated or under the influence of any
controlled substance, nor did he have any contraband on
his person. One officer did, however, notice needle
puncture marks on his arms. During the search, two
people arrived, stating that they had come to see
appellant.

8
 In a northeast bedroom of the house, in plain view
on a table, was found heroin, methamphetamine and
marihuana, as well as drug paraphernalia. Also found
in the bedroom were mail addressed to appellant, a
grand jury indictment charging him with an offense,
photographs of appellant, a laundry basket with men's
clothing in it, piles of men's clothing on the floor
and on the bed, and a pair of glasses (at the time of
the search, appellant was not wearing glasses, although
he was wearing them at the time of trial).

The State also introduced proof, offered and
accepted for the limited purpose of showing appellant's
knowledge of what heroin was, that he had a prior
conviction for possession of heroin.

The magistrate judge reasoned that Chavez was not convicted on

the basis of evidence seized as a result of the arrest. Instead,

the evidence was seized pursuant to a lawful search warrant.

Accordingly, the magistrate judge found that Chavez had failed to

demonstrate that the attorney's failure to object to the

lawfulness of the arrest was prejudicial. Chavez merely argues

that his arrest was illegal and does not suggest why the

magistrate judge's findings were erroneous.

Chavez also argues that his attorney rendered ineffective

assistance by stipulating that heroin, drug paraphernalia, and

posed homosexual pictures of Chavez were found in the house.

Chavez argues that the jury could reasonably have interpreted

this stipulation as an admission of guilt. This issue is without

merit. The magistrate judge noted that Johnson's trial strategy

was to show a lack of connection between Chavez and the

contraband--that Chavez was not in possession of the contraband.

The stipulation was "part of an obvious and appropriate trial

strategy."

9
 Chavez argues that his attorney rendered ineffective

assistance because his cross-examination of police officer Barry

Alwine consisted of the statement "Hi Barry" only. Chavez does

not suggest why he was prejudiced by this tactic, only that the

incident is indicative of Johnson's drug abuse.

Chavez argues that Johnson rendered ineffective assistance

in failing to object to the trial court's reasonable doubt

instruction--the trial court failed to define the term

"reasonable doubt." In its charge to the jury, the trial court

explained the meaning of intent, knowledge, and possession and

charged the jury:

[I]f you believe from the evidence beyond a reasonable
doubt that . . . Mario Saldana Chavez, did knowingly or
intentionally possess a controlled substance, to-wit,
heroin . . . you will find the defendant guilty as
charged in the indictment.

If you do not so believe, or if you have a
reasonable doubt thereof, you will find the defendant
not guilty.

Before you would be warranted in convicting the
defendant, you must find from the evidence beyond a
reasonable doubt that the exhibits introduced in
evidence by the State are heroin, and you must also
find beyond a reasonable doubt that the defendant
voluntarily had the same in his possession.

The mere presence of the defendant, Mario Saldana
Chavez, at the place of the alleged offense would not
constitute possession by said defendant, and should you
find from the evidence beyond a reasonable doubt that
said defendant was present, but you further find and
believe from the evidence, or have a reasonable doubt
thereof, that said defendant did not have knowledge of
and possession of the heroin, if any, than you will
find the defendant not guilty.

As the magistrate judge correctly noted, the Constitution does

not require trial courts to give a definition of reasonable doubt

10
in instructing the jury. See Victor v. Nebraska, 114 S. Ct.

1239, 1243, 127 L. Ed. 2d 583 (1994). This issue fails both

prongs of the Strickland test because Chavez cannot show that his

attorney's failure to object to the instruction was

professionally unreasonable or that he was prejudiced by the lack

of an objection.

Chavez argues that his attorney rendered ineffective

assistance in failing to object to the state's comment on Chavez'

failure to testify and in failing to request a corrective

instruction. In closing, the state argued:

Let's talk a little bit about what Mr. Johnson had to
say before we turn to the rest of my argument. The
defense doesn't have any burden. They don't have a
burden a bit. But they do have subpoena power, and
they can call witnesses. That's their choice. They
don't have to, but they sure can. They sure can call
witnesses if they--someone wants to testify that Mario
Chavez lived somewhere else. They sure can call
someone to testify that he wasn't living there on that
occasion. It's their choice. They don't have to, but
they sure can. Under Mr. Johnson's theory of criminal
justice, I guess nobody can ever be found "guilty" of
anything unless they confess.

The magistrate judge found that Johnson's failure to object to

this argument was not professionally unreasonable because the

argument could not be construed as a direct comment on Chavez'

failure to testify and was not improper.

The Fifth Amendment prohibits a prosecutor from
commenting directly or indirectly on a defendant's
failure to testify in a criminal case. The test for
determining if a constitutional violation has occurred
is whether the language used was manifestly intended or
was of such character that the jury would naturally and
necessarily take it to be a comment on the failure of
the accused to testify. And, the comments complained
of must be viewed within the context of the trial in

11
 which they are made. Reversal is not warranted unless
the improper comment had a clear effect on the jury.

United States v. Montoya-Ortiz, 7 F.3d 1171, 1178-79 (5th Cir.

1993) (internal citations and quotations omitted); see Montoya v.

Collins, 955 F.2d 279, 286 (5th Cir.) (habeas), cert. denied, 113

S. Ct. 820 (1992). While a prosecutor may not comment on a

defendant's failure to testify, he may comment "on the failure of

the defense, as opposed to the defendant, to counter or explain

the evidence." United States v. Borchardt, 809 F.2d 1115, 1119

(5th Cir. 1987); see also Montoya, 955 F.2d at 287. It is not

error to comment on the defendant's failure to produce evidence

on a phase of the defense upon which he seeks to rely. United

States v. Mackay, 33 F.3d 489, 496 (5th Cir. 1994); United States

v. Dula, 989 F.2d 772, 777 (5th Cir.), cert. denied, 114 S. Ct.

172 (1993). Because the prosecutor's remark was not improper, it

was not professionally unreasonable to fail to object and request

a corrective instruction and Chavez was not prejudiced by the

lack of an objection.

Issue 2:

Chavez argues that he should have been resentenced under

article 12:35 of the Texas penal code, which became effective in

1994 after he was convicted and sentenced and which would have

resulted in a more lenient sentence. As the magistrate judge

reasoned, the "savings provision" of the 1994 Penal Code

Amendments provides that "an offense committed before the

effective date of this Article is covered by the law in effect

12
when the offense was committed, and the former law is continued

in effect for that purpose." Tex. Penal Code Ann. § 1.01,

Historical and Statutory Notes (West 1994); see also Perry v.

State, 902 S.W.2d 162, 163 (Tex. Ct. App.-Hous. (1 Dist.), 1995)

(applying savings provision).

Chavez concedes that the statute contains a savings

provision but argues that a similar amendment in 1973 resulted in

a significant number of reduced sentences for persons serving

life sentences for possession of marijuana. Because the 1994

amendments are not applicable to persons serving life sentences

for possession of small quantities of heroin, Chavez argues, he

has been denied his right to Equal Protection.1 The Texas

appellate courts have rejected a similar argument. See Castaneda

v. State, 1995 WL 555663, *2 (Tex. Ct. App.-San Antonio, 1995);

Wilson v. State, 899 S.W.2d 36, 37-39 (Tex. Ct. App.-Amarillo,

1995).

Chavez does not claim that the alleged dissimilar treatment

affects a suspect or quasi-suspect class. However, a

classification scheme violates equal protection even if the

classifications are not drawn along suspect or quasi-suspect

lines; classifications of any sort that are not rationally

related to a legitimate governmental interest are

unconstitutional. When a plaintiff alleges that he has been

"personally denied equal treatment," Heckler v. Mathews, 465 U.S.

728, 740, 104 S.Ct. 1387, 1395, 79 L. Ed. 2d 646 (1984)-- that he

1
The 1973 amendment specifically called for resentencing.

13
has been denied a particular benefit accorded to others who are

similarly situated--he has alleged an equal protection injury,

regardless of the nature of the stigma that attaches to the

disfavored class. See Allegheny Pittsburgh Coal Co. v. County

Com'n, 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989)

(holding that formula used for property valuation was

unconstitutional because it valued comparable properties

differently).

Chavez seems to argue that he and persons convicted of

marijuana possession in the 1970s are so similarly situated that

he is constitutionally entitiled to the same type of resentencing

they were afforded by the Texas Legislature. However, Chavez was

convicted of possession of heroin, not possession of marijuana.

The State of Texas is certainly entitled to treat the crimes of

possession of these dissimilar drugs differently. In an

analogous context, this Court has rejected constitutional

challenges to the different treatment of powder cocaine and

cocaine base under the United States Sentencing Guidelines. See

United States v. Watson, 953 F.2d 895, 897 (5th Cir.), cert.

denied, 504 U.S. 928 (1992); United States v. Galloway, 951 F.2d

64, 65 (5th Cir. 1992); United States v. Thomas, 932 F.2d 1085,

1090 (5th Cir.), cert. denied, 502 U.S. 895 (1991). Because

Chavez cannot show that he is "similarly situated," his equal

protection challenge must fail.

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 III. CONCLUSION

For the reasons given above, the judgment of the district

court dismissing the petition with prejudice is AFFIRMED.

15