Pruske v. Scott ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________
No. 95-50261
Summary Calendar
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ALFRED DAVID PRUSKE, SR.,
Petitioner-Appellant,
versus
WAYNE SCOTT, DIRCTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION;
DAN MORALES, Attorney General,
Respondents-Appellees.
_______________________________________________________
Appeal from the United States District Court for
the Western District of Texas
(SA-94-CA-478)
_______________________________________________________
November 6, 1995
Before REAVLEY, SMITH and PARKER, Circuit Judges.
PER CURIAM:*
The district court denied the petition for habeas corpus (28
U.S.C. § 2254) and granted a certificate of probable cause. The
judgment is affirmed for the following reasons:
*
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Rule, the Court has determined that this opinion should not be
published.
1. Pruske asserts the trial court erred in failing to grant
his motion for new trial for the reason that the indictment is
not sufficient. He complains that the indictment alleges only
that he solicited an individual to hire a “hit-man” to kill his
wife and fails to give him notice of who the hit-man was. There
is no contention here that rises to the level of a violation of
any constitutional right. Therefore, the claim provides no basis
for relief. See Dickerson v. Guste, 932 F.2d 1142, 1145 (5th
Cir.), cert. denied, 502 U.S. 875 (1991).
2. Pruske argues his conviction should be overturned
because of a fatal variance between the indictment and the proof
upon which he was convicted. He complains of two “fatal
variances” -- a different county was proved than what was
alleged, and the proof indicated a different individual solicited
the “hit-man” than was alleged. The sufficiency of a state
indictment is appropriate for federal habeas relief only when the
indictment is so deficient that the convicting court was without
jurisdiction. Williams v. Collins, 16 F.3d 626, 637 (5th Cir.),
cert. denied, 115 S. Ct. 42 (1994). State law dictates whether a
state indictment is sufficient to confer a court with
jurisdiction. Id.
To comprise an indictment within the definition provided by
the Texas Constitution, article V, § 12(b), an indictment must
charge a person with the commission of an offense. Cook v.
State, 902 S.W.2d 471, 477 (Tex. Crim. App. 1995). “[A] charging
instrument is not required to allege every element of the offense
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in order to allege ``the commission of the offense’ as required by
art. V., § 12(b).” Id. Therefore, an indictment is not
constitutionally void, thus depriving the trial court with
jurisdiction, despite the omission of one or more elements of the
offense. Id. “At a minimum the indictment must be sufficient to
give notice of what offense the State is alleging so that the
controlling penal provision can be identified.” Fisher v. State,
887 S.W.2d 49, 55 (Tex. Crim. App. 1994). Under Texas law, the
indictment in this case gave sufficient notice of what offense
the state was alleging. The convicting court had jurisdiction to
hear the case. Therefore, federal habeas relief is not
available.
3. Pruske avers the prosecution acted in bad faith by the
knowing use of the perjured testimony of Susan Dempsey. For this
to amount to a deprivation of due process, Pruske must establish
that the prosecution knowingly presented materially false
testimony. Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990).
Pruske offers no evidence of false testimony or whether the
prosecutor knew such testimony was false. He directs our
attention to one instance in which Dempsey states that Pruske
offered and she accepted money for her assistance in finding
someone to kill his wife. While this evidence contradicts the
government’s evidence, that alone is not sufficient to indicate
that she was committing perjury and that the government was aware
of that fact. Pruske has failed to establish a deprivation of
due process.
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4. Pruske argues that his life sentence constitutes cruel
and unusual punishment prohibited by the Eighth Amendment.
Pruske was convicted of solicitation to commit capital murder and
sentenced to life imprisonment. Pruske asserts that his age
(50), his lack of past criminal actions, and the absence of
evidence that he can be rehabilitated are inconsistent with the
sentence imposed. While Pruske was sentenced to the maximum
permitted under the law, his offense is not grossly
disproportionate to the crime he committed. See Harmelin v.
Michigan, 111 S. Ct. 2680, 2705 (Kennedy, J. concurring) (“Rather,
[the Eighth Amendment] forbids only extreme sentences that are
``grossly disproportionate’ to the crime.”). Pruske consulted
with several individuals in an effort to hire someone to murder
his wife. He arranged for the murder of his wife and paid the
supposed “hit man” when he believed she had been murdered.
Pruske’s sentence was not grossly disproportionate to his crime.
5. Pruske next argues that his trial counsel provided
ineffective assistance of counsel. Specifically, he complains
that his counsel failed to move for a change of venue because of
pretrial publicity, failed to challenge jurors affected by the
pretrial publicity, did not file a motion for change of venue
because the offense occurred in Bexar County rather than in
Guadalupe County, failed to file a motion to quash the indictment
for the same reason, failed to raise the defense of entrapment,
failed to investigate Pruske’s mental disorders, erroneously
struck four qualified jurors, failed to challenge the legality of
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his arrest, filed a deficient motion for new trial, failed to
prepare properly because of counsel’s brain tumor, and failed to
challenge the credibility of a witness.
To prevail in his claim of ineffectiveness, Pruske bears the
burden of showing his counsel was deficient and that the
deficient performance prejudiced his defense. Strickland v.
Washington, 104 S. Ct. 2052, 2064 (1984). Failure to establish
both prongs of the test defeats an ineffectiveness claim.
Williams, 16 F.3d at 631. “Judicial scrutiny of counsel’s
performance must be highly deferential.” Strickland, 104 S. Ct.
at 2065. Our review of the attorney’s performance should be
conducted without the distortions of hindsight and should focus
on counsel’s actions at the time they occurred. Id. “Because of
the difficulties inherent in making the evaluation, 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.
Pruske argues that counsel was ineffective for failing to
move for a change of venue when certain jurors informed counsel
that they had read or heard about Pruske’s case. His cursory
argument is based solely upon the comments of a few jurors which
remain unnamed. “It is not enough to show that the publicity--as
to which no specifics are alleged--could have conceivably
affected the jurors.” Smith v. Puckett, 907 F.2d 581, 585 (5th
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Cir. 1990), cert. denied, 111 S. Ct. 694 (1991). Such a general
and conclusory argument does not suffice to present a viable
basis for relief.
He further asserts that counsel was ineffective for
permitting jurors who were familiar with his case to be seated on
the panel. The record indicates, however, that only one seated
juror had knowledge of the case, and he indicated only that while
he had “read of the indictment in the newspaper,” he had not
formed an opinion as to Pruske’s guilt. The juror also stated
that he could be fair and impartial. Pruske has failed to carry
his burden of demonstrating ineffectiveness.
Next, he contends that counsel was ineffective for failing
to move for a change of venue because the offense occurred in
Bexar County rather than in Guadalupe County. Effectiveness of
representation is not judged from hindsight. Strickland, 104
S. Ct. at 2065. In this instance, counsel’s strategy was to win
an acquittal for this very reason. Any motion for a change of
venue or a motion to quash the indictment because of improper
venue would have defeated this trial strategy resulting in a
change of venue and not an acquittal. Pruske has not overcome
the presumption that counsel’s trial strategy was effective.
Pruske also argues that counsel was ineffective for failing
to file a motion to quash the indictment. However, such an
action would again run counter to defense strategy, that is,
seeking an acquittal because the crime did not occur in Guadalupe
County. Were counsel to succeed on the motion to quash, Pruske
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would have been reindicted in Bexar county. Thus Pruske is unable
to demonstrate prejudice. See Morlett v. Lynaugh, 851 F.2d 1521,
1525 (5th Cir. 1988), cert. denied, 109 S. Ct. 1546 (1989).
Pruske argues that counsel should have requested an
instruction on the defense of entrapment. In Texas, entrapment
is available as a defense only where a law enforcement officer
induces the defendant to commit an offense. Tex. Penal Code. §
8.06(a); Melton v. State, 713 S.W.2d 107, 112 (Tex. Crim. App.
1986). The district court found that the defense of entrapment
was not available to Pruske because there was no evidence offered
at trial that a law enforcement officer induced Pruske to commit
the offense. Counsel was not ineffective for failing to pursue a
meritless defense.
Next Pruske agues that counsel was ineffective for failing
to investigate his mental disorders and for failing to pursue an
insanity defense. Pruske has offered no evidence that indicates
he was insane at the time of the offenses. Counsel was not
ineffective for failing to pursue the insanity defense.
During trial, Pruske advised his attorney “that he [was]
sick; that he had [been] running a high fever and temperatures;
and that he [felt] he need[ed] psychiatric help.” When informed
of this exchange by counsel, the convicting court denied Pruske’s
request and noted that “the court has had an opportunity to
observe [Pruske] throughout this trial and has noted that
[Pruske] has actively participated with counsel in conference and
in conversation and in assisting counsel in questioning the
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witnesses and he appears to the court certainly not to be
suffering under any delusion of mental state.” Pruske has failed
to allege what any additional investigation would have uncovered
and how this would alter the outcome of his trial. Pruske has
failed to meet the prejudice prong of Strickland.
Pruske further alleges his counsel was ineffective for
striking four “qualified jurors” from the panel. Trial counsel
employed four of his peremptory challenges against members of the
venire who would not be reached. The prosecuting attorney and
the trial court brought this fact to counsel’s attention, but
counsel indicated that he had challenged all the jurors he
intended in the first thirty-two members of the panel. In
essence trial counsel chose not to use four of his available
strikes. Pruske concludes his argument with a statement that
this was prejudicial. However, mere conclusory statements are
not sufficient to overcome the prejudice prong of Strickland.
See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994).
Pruske also argues counsel was ineffective for failing to
challenge the credibility of Susan Dempsey, a prosecution
witness. However, the trial record illustrates that counsel
extensively cross-examined the witness, pointed out the
inconsistency of her testimony, and forced her to admit to false
dealings with Pruske. Counsel also provided a witness who
testified that her reputation for truth or veracity was “pretty
lousy.” Pruske has failed to demonstrate that counsel was
deficient.
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Finally Pruske contends that counsel was ineffective for
failing to challenge the legality of his arrest, for failing to
file supporting affidavits and authorities in his motion for new
trial, and for being unprepared due to a brain tumor. Pruske has
failed in each of these allegations to set forth sufficient facts
or arguments to support his claim. Therefore, he has failed to
meet his burden to prove counsel was ineffective.
6. Finally, Pruske asserts that he received ineffective
assistance of appellate counsel. Specifically, he asserts that
counsel withdrew from the cause without filing a petition for
discretionary review with the Texas Court of Criminal Appeals.
There is no constitutional right to counsel for discretionary
state appeals. Ross v. Moffitt, 94 S. Ct. 2437, 2444-2447 (1974).
Because there is no constitutional right to such counsel, Pruske
cannot be deprived of effective assistance of counsel.
Wainwright v. Torna, 102 S. Ct. 1300, 1301 (1982).
Affirmed.
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