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that this opinion should not be published and is not precedent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