Coker v. Thaler

670 F. Supp. 2d 541 (2009)

Thomas Lane COKER, Petitioner,
v.
Rick THALER, Director, Respondent.

Civil Action No. 3:03-CV-2146-N.

United States District Court, N.D. Texas, Dallas Division.

November 16, 2009.

Thomas Lane Coker, Rosharon, TX, pro se.

Jason D. Hawkins, Federal Public Defender, Dallas, TX, for Petitioner.

Carole S. Callaghan, Melissa L. Kelly, Office of the Texas Attorney General, Austin, TX, for Respondant.

ORDER

DAVID C. GODBEY, District Judge.

This Order addresses the objections to the Magistrate Judge's Findings and Recommendation ("F & R").

I. RESPONDENT'S OBJECTION

Respondent objects to the Magistrate Judge's failure to conduct a hearing on Petitioner Coker's claim for equitable estoppel, and instead dismissing on the merits. The F & R stated in pertinent part:

As part of his answer, respondent reurges his affirmative defense that petitioner's claims are barred by the AEDPA statute of limitations. (See Resp. Ans. at 4-10). The court need not decide this procedural issue as petitioner is not entitled to federal habeas relief in any event. See Mack v. Quarterman, No. 3-60-CV-0903-L, 2007 WL 241373 at *2 n. 1 (N.D. Tex. Jan. 26, 2007), COA denied, No. 07-10285 (5th Cir. Feb. 19, 2008) (declining to address affirmative defense of limitations where petitioner was not entitled to relief on the merits).

F & R at 549 n. 2. Respondent objects to the Magistrate Judge's failure to address limitations before proceeding to the merits as being both contrary to law and disobedient to the mandate of the Fifth Circuit in the earlier appeal in this case. Coker v. Quarterman, 270 Fed.Appx. 305 (5th Cir. 2008) (unpub.).

A. Case Law Does Not Require a Hearing First

Footnote 2 cites Mack v. Quarterman (Kaplan, M.J.), which in turn cites Wheat v. Dretke, 2005 WL 1667832, at *1 n. 1 (N.D.Tex.2005) (Kaplan, M.J.), which in turn cites Davis v. Dretke, 2003 WL 23174750, at *1 n. 1 (N.D.Tex.2003) (Kaplan, M.J.), which in turn cites Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998) for the proposition that the AEDPA statute of limitations is not a jurisdictional bar that divests a federal court of habeas jurisdiction. While Davis v. Johnson may suggest that the Court can address the merits without addressing limitations, it does not expressly hold that. The Court has searched diligently for authority in the Fifth Circuit on whether the Court is required to address limitations before denying relief on the merits, and found none. Indeed, the Court has found no circuit court opinion anywhere addressing this question.^[1]

Respondent cites Allen v. Siebert, 552 U.S. 3, 5-6, 128 S. Ct. 2, 169 L. Ed. 2d 329 (2007), for the proposition that all time limitations are conditions that go to a court's ability to consider a petition for habeas corpus. From that Respondent concludes that this Court must address limitations prior to the merits. Respondent also cites Caspari v. Bohlen, 510 U.S. 383, 389, 114 S. Ct. 948, 127 L. Ed. 2d 236 (1994),^[2] for the proposition that because limitations is a threshold issue, it must be addressed prior to the merits. The short answer is that Respondent's argument would make sense if the Court had granted relief, because the Court cannot grant relief if Coker's claims are barred by limitations, but it makes no sense given that the Court has denied relief.

Allen simply has nothing to do with this question. Allen held that a state postconviction petition that was untimely was not "properly filed" for purposes of AEDPA's tolling provisions, regardless whether the state considered its time limitation jurisdictional or an affirmative defense. Proper filing is not an issue in this case. Likewise, in Caspari the Supreme Court held that "if the State does argue that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim." 510 U.S. at 389, 114 S. Ct. 948 (emphasis in original). This is a matter of common sense: until the Teague analysis is done, the court does not know what substantive rule will apply to the merits. That is not the case with limitations, and Caspari does not purport to speak to limitations.

More on point is Day v. McDonough, 547 U.S. 198, 126 S. Ct. 1675, 164 L. Ed. 2d 376 (2006). The Court there observed: "A statute of limitations defense, the State acknowledges, is not ``jurisdictional,' hence courts are under no obligation to raise the time bar sua sponte." Id. at 205, 126 S. Ct. 1675 (emphasis in original). The Court also noted that "should a State intelligently choose to waive a statute of limitations defense, a district court would not be at liberty to disregard that choice." Id. at 210 n. 11, 126 S. Ct. 1675. That would not be the case, of course, if limitations were jurisdictional.^[3] Given that limitations is not jurisdictional, it follows that the Court is not required to address it prior to denying relief on the merits.

This is a sensible result. Otherwise, the Magistrate Judge and the parties would have been put to the expense and effort of an evidentiary hearing for no reason. It doesn't matter whether Coker was diligent—he would not get relief in any event. And the issue is not merely avoiding an unnecessary hearing. Habeas petitioners are typically incarcerated felons; moving them from prison to the courtroom and back to prison is not a simple undertaking and presents risks to public safety.^[4] Moreover, this result is consistent with the common practice of courts finding habeas barred by limitations and then, in the alternative, finding relief is also unavailable on the merits.^[5] If Respondent were correct, those courts would have been precluded from reaching the merits in the alternative once they found the claims barred by limitations. The Court therefore overrules Respondent's objection to the extent it argues case law prohibited the Magistrate Judge from reaching the merits.

B. The Fifth Circuit's Mandate Did Not Preclude Reaching the Merits

Respondent additionally argues that the mandate rule requires the Court to address limitations prior to the merits. The opinion of the Court of Appeals concluded:

Therefore, we remand for the district court to conduct an evidentiary hearing regarding Coker's claim that he diligently pursued habeas corpus relief and meets the standard for equitable tolling of the federal limitations filing period for his § 2254 petition.

IV. CONCLUSION

The judgment of the district court is REVERSED and REMANDED. 270 Fed.Appx. at 310-11. Respondent argues that because the opinion of the Court of Appeals remands for an evidentiary hearing, this Court has no discretion to address the merits before limitations.^[6]

The Court notes that there is nothing it desires judicially more than to comply with the direction of the Court of Appeals. Here the direction from the Court of Appeals is silent with respect to addressing the merits.

When further trial-court proceedings are appropriate after remand, the appellate mandate commonly leaves the trial court free to decide matters that were not resolved on appeal. A court of appeals ordinarily cannot effectively consider matters that are not presented to it, and should be free to manage its own process of decision by refusing to decide some of the matters that are presented.

18B CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE § 4478.3, at 750 (2d ed. 2002); accord United States v. Lee, 358 F.3d 315, 324 (5th Cir.2004) (on remand for resentencing to determine whether offense was crime of violence, district court did not violate mandate rule by imposing discretionary upward departure where first court of appeals opinion said "nary a word on the possibility of imposing a discretionary upward departure"); Topalian v. Ehrman, 954 F.2d 1125, 1140 (5th Cir.1992) (district court not in contempt of mandate where earlier appeal reversed finding of no personal jurisdiction and ordered reinstatement of defendant, and on remand court granted summary judgment for defendant on the merits); Newball v. Offshore Logistics Int'l, 803 F.2d 821, 826 (5th Cir.1986) ("A mandate controls on all matters within its scope, but a district court on remand is free to pass upon any issue which was not expressly or impliedly disposed of on appeal.") (citing Gulf Coast Bldg. & Supply Co. v. Local No. 480, 460 F.2d 105, 107 (5th Cir.1972)).

Here the opinion of the Court of Appeals is silent regarding the merits, no doubt because nothing regarding the merits was at issue in the appeal. Obviously the opinion does not completely preclude considering the merits; otherwise, there would be no point in addressing equitable tolling if this Court could never address the merits. Moreover, the Court of Appeals knows how to direct the district court first to consider equitable tolling, and reach the merits only if it finds equitable tolling applicable, when that is what it actually intends. United States v. Botello, 196 F.3d 1258 (table), 1999 WL 800314, at *3 (5th Cir.1999) (unpub.) (directing district court on remand first to consider equitable tolling, and "[i]f the district court answers this question in the affirmative it should then consider the merits of Botello's petition."). Also, finding that Coker is not entitled to relief on the merits in no way undermines or subverts the Court of Appeals' ruling that his equitable tolling claim cannot be resolved without an evidentiary hearing. Finally, although a hearing is necessary to resolve Coker's equitable tolling claim, a hearing is not necessary to resolve this case. The Court overrules Respondent's mandate rule objection.

II. COKER'S OBJECTIONS

Coker, pro se, filed a 49 page objection, much of which is difficult to follow. A substantial portion is devoted to either personal criticism of the Magistrate Judge or argument of Coker's equitable tolling claim. To the extent Coker actually objects to the F & R, the Court finds those objections are adequately addressed by the F & R, and the Court overrules those objections for the reasons stated in the F & R. Moreover, even if Coker's sufficiency of the evidence ground for relief were not procedurally defaulted as found by the F & R, see F & R at 550 (Part B.2), Coker would not be entitled to relief on the merits of that claim. Ample case law holds that eyewitness testimony is sufficient to prove possession of a firearm.^[7]

CONCLUSION

After conducting a review of the pleadings, files and records in this case, and the Findings and Recommendation of the United States Magistrate Judge in accordance with 28 U.S.C. § 636(b)(1), including de novo review of those portion to which objections were made, the Court is of the opinion that the findings and recommendation of the Magistrate Judge are correct and they are hereby accepted as the findings of the Court.

FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

JEFF KAPLAN, United States Magistrate Judge.

Petitioner Thomas Lane Coker, a Texas prisoner, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.

I.

A Dallas County grand jury indicted petitioner on one count of unlawful possession of a firearm by a convicted felon. After waiving his right to a jury trial, petitioner was convicted by a judge and sentenced to 40 years confinement. His conviction and sentence were affirmed on direct appeal. Coker v. State, No. 11-99-00093-CR, 1999 WL 33748132 (Tex.App.-Eastland, Oct. 21, 1999, pet.ref'd). Petitioner also filed an application for state post-conviction relief. The application was denied without written order. Ex parte Coker, WR-41,265-02 (Tex.Crim.App. Jan. 31, 2001). Petitioner then filed this action in federal district court.^[1]

II.

In multiple grounds for relief, petitioner contends that: (1) his conviction was the result of an illegal arrest; (2) there was insufficient evidence to support his conviction; (3) he received ineffective assistance of counsel; and (4) the Texas statute criminalizing the possession of a firearm by a convicted felon is void for vagueness.^[2]

A.

Petitioner challenges his arrest on the grounds that the affidavit used to obtain the arrest warrant was based on hearsay, the warrant was not issued in a timely manner, and he was not in possession of a firearm at the time the warrant was executed. This claim fails for at least two reasons. First, a federal court may not grant habeas relief based on a Fourth Amendment violation where the state has provided an opportunity for full and fair litigation of the issue. Stone v. Powell, 428 U.S. 465, 493-95, 96 S. Ct. 3037, 3052-53, 49 L. Ed. 2d 1067 (1976); see also Self v. Collins, 973 F.2d 1198, 1208 (5th Cir.1992), cert. denied, 507 U.S. 996, 113 S. Ct. 1613, 123 L. Ed. 2d 173 (1993) (applying Stone to unlawful arrest claim). The Fifth Circuit has held that "an opportunity for full and fair litigation" means just that—an opportunity. See Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir.1978). "If a state provides the processes whereby a defendant can obtain full and fair litigation of a fourth amendment claim, [Stone] bars federal habeas corpus consideration of that claim whether or not the defendant employs those processes." Id.; see also Janecka v. Cockrell, 301 F.3d 316, 320 (5th Cir.2002), cert. denied, 537 U.S. 1196, 123 S. Ct. 1264, 154 L. Ed. 2d 1034 (2003). Here, petitioner does not allege, much less prove, that he was denied an opportunity to litigate his unlawful arrest claim in state court.

Second, "[a]n illegal arrest . . . is an insufficient ground, standing alone, upon which to vacate a conviction in federal habeas proceedings." See Sanders v. Israel, 717 F.2d 422, 423 (7th Cir.1983), cert. denied, 465 U.S. 1033, 104 S. Ct. 1302, 79 L. Ed. 2d 701 (1984), citing United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 1251, 63 L. Ed. 2d 537 (1980). Although petitioner alleges that his arrest was unlawful for a variety of reasons, he does not claim that any evidence seized during the arrest was introduced at trial or otherwise show how the arrest led to his conviction. Without more, petitioner is not entitled to federal habeas relief.

B.

In two related grounds, petitioner contends that the evidence was insufficient to support his conviction because the state failed to introduce any physical evidence to corroborate the testimony of the lone witness who said he observed petitioner in possession of a firearm. Respondent counters that both grounds for relief are procedurally barred from federal habeas review.

1.

A federal court may not consider the merits of a habeas claim if a state court has denied relief due to a procedural default. Sawyer v. Whitley, 505 U.S. 333, 338, 112 S. Ct. 2514, 2518, 120 L. Ed. 2d 269 (1992). The state court opinion must contain a "plain statement" that its decision rests on adequate and independent state grounds. Harris v. Reed, 489 U.S. 255, 262-63, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308 (1989); Smith v. Collins, 977 F.2d 951, 955 (5th Cir.1992), cert. denied, 510 U.S. 829, 114 S. Ct. 97, 126 L. Ed. 2d 64 (1993). To be an adequate ground for denying relief, the state procedural rule must be strictly or regularly applied to similar claims. See Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S. Ct. 2421, 2426, 72 L. Ed. 2d 824 (1982); Johnson v. Puckett, 176 F.3d 809, 824 (5th Cir.1999). It is well-settled under Texas law that the sufficiency of the evidence cannot be attacked for the first time on state collateral review. See Renz v. Scott, 28 F.3d 431, 432 (5th Cir.1994); Ex parte Adams, 768 S.W.2d 281, 293 (Tex.Crim.App.1989).

2.

Although petitioner challenged the factual sufficiency of the evidence on direct appeal, he did not raise a legal sufficiency or "no evidence" claim in that proceeding. Instead, petitioner presented his legal sufficiency claim for the first time on state collateral review. The Texas Court of Criminal Appeals rejected the claim and denied relief without written order. See Ex parte Coker, WR-41,265-02, Tr. at cover. This disposition suggests that the court's decision was based on adequate and independent state grounds. See Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex.Crim.App.2004) ("[W]here an applicant challenges the sufficiency of the evidence on an application for a writ of habeas corpus, and we subsequently dispose of the application by entering a denial without written order, the applicant's sufficiency claim was denied because the claim is not cognizable."). Consequently, petitioner's legal sufficiency claim is barred from federal habeas review. Renz, 28 F.3d at 432; see also Mendoza v. Dretke, No. 3-05-CV-0042-M, 2005 WL 1124513 at *2 (N.D.Tex. May 11, 2005) (citing cases), rec. adopted, 2005 WL 1639330 (N.D.Tex. Jul. 13, 2005).^[3]

3.

To the extent petitioner challenges the factual sufficiency of the evidence, his claim is not cognizable on federal habeas review. Under Texas law, intermediate appellate courts have the authority to review fact questions in criminal cases. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). This "factual sufficiency" review of the evidence is broader than a "legal sufficiency" challenge under Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Id. Instead of viewing the evidence in the light most favorable to the prosecution and determining whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," a factual sufficiency inquiry views all the evidence to determine whether the verdict "is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Pruitt v. Cockrell, No. 3-00-CV-1713-H, 2001 WL 1115339 at *13 (N.D.Tex. Sept. 14, 2001), quoting Clewis, 922 S.W.2d at 129. The power of state appellate courts to review the factual sufficiency of the evidence derives from Texas statutory and constitutional authority. Id. at *14 (citing cases). Because there is no corresponding right of review under the United States Constitution, this ground for relief should be overruled. Id.; see also Daisy v. Dretke, No. 3-04-CV-2015-D, 2004 WL 3167743 at *2 (N.D.Tex. Dec. 21, 2004), COA denied, No. 05-10052 (5th Cir. Nov. 9, 2005) (citing cases).

C.

Next, petitioner contends that he received ineffective assistance of counsel at trial because his attorney: (1) allowed him to testify; (2) advised him to waive a jury trial; (3) failed to investigate the case or interview witnesses; (4) did not move for a judgment of acquittal at the beginning of trial; and (5) failed to object to certain testimony and evidence. Petitioner also criticizes his appellate lawyer for not raising certain issues on direct appeal.

1.

The Sixth Amendment to the United States Constitution guarantees a defendant reasonably effective assistance of counsel at all critical stages of a criminal proceeding. See Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708, 1716, 64 L. Ed. 2d 333 (1980). To prevail on an ineffective assistance of counsel claim, a habeas petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, the petitioner must demonstrate that the performance of his attorney fell below an objective standard of reasonable professional conduct. Id., 104 S.Ct. at 2064. Second, the petitioner must prove that he was prejudiced by his attorney's substandard performance. Strickland, 104 S.Ct. at 2067. Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 2068; see also Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 844, 122 L. Ed. 2d 180 (1993) (habeas petitioner must show that trial result was unreliable or proceeding fundamentally unfair due to deficient performance of counsel).

Where, as here, a state court has already rejected an ineffective assistance of counsel claim, a federal court may grant habeas relief only if the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 411-13, 120 S. Ct. 1495, 1522-24, 146 L. Ed. 2d 389 (2000). A state court decision is contrary to clearly established federal law if "it relies on legal rules that directly conflict with prior holdings of the Supreme Court or if it reaches a different conclusion than the Supreme Court on materially indistinguishable facts." Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.), cert. denied, 541 U.S. 1087, 124 S. Ct. 2812, 159 L. Ed. 2d 249 (2004), citing Williams, 120 S.Ct. at 1519-20. A decision constitutes an "unreasonable application" of clearly established federal law if "the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 120 S.Ct. at 1523; see also Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir.2001). Factual determinations made by state courts are presumed to be correct and are unreasonable only where the petitioner "rebut[s] the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

2.

Most of petitioner's ineffective assistance of counsel claims are either patently frivolous, negated by the record, or conclusory in nature. There is no evidence that counsel was ineffective for advising petitioner to waive a jury trial. To the contrary, counsel reasonably believed that petitioner would be better served by allowing a trusted judge to hear the case instead of a jury who might be biased against a convicted felon with an extensive criminal record. Likewise, counsel was not ineffective for failing to move for a judgment of acquittal before trial. Counsel made such a motion after the state rested its case-in-chief, but the motion was denied. (See SF at 43). Petitioner has not shown that the ruling would have been any different had counsel made the motion earlier. With respect to petitioner's claim that counsel failed to investigate the case or interview witnesses, he does not specify what further investigation would have revealed or what information the witnesses would have provided. And while petitioner generally criticizes his attorney for failing to make certain objections at trial, he does not articulate a legitimate basis for any of those objections or explain how he was prejudiced by the admission of evidence.^[4] His vague, conclusory, and self-serving allegations do not merit habeas relief. See Beall v. Cockrell, 174 F. Supp. 2d 512, 523 (N.D.Tex.2001), COA denied, No. 01-11404 (5th Cir. Mar. 14, 2002) (conclusory statements and random citations to legal authority are insufficient to support a claim of ineffective assistance of counsel).

3.

Only one of petitioner's ineffective assistance of counsel claims merits extended discussion. In one of his grounds, petitioner argues that he was "compelled" to testify because defense counsel told him that the judge would not entertain a motion for acquittal unless he explained his version of the incident. Petitioner now claims that he was reluctant to take the stand "for fear that the State would unduly seize upon [his] prior convictions to crucify him before the judge." (Pet. Mem. Br. at 14). Those fears proved well-founded, as the prosecutor repeatedly questioned petitioner on cross-examination about his prior convictions for theft, robbery, and unauthorized use of a motor vehicle. (See SF at 61-64).

The decision whether to advise a defendant to testify is a tactical choice of trial strategy that is usually not subject to review under Strickland. See Winfrey v. Maggio, 664 F.2d 550, 553 (5th Cir.1981). In this case, the only evidence that petitioner possessed a firearm was the testimony of John Dodson. At trial, Dodson testified that he saw two people arguing in the street outside his house just after dark on December 21, 1997. (SF at 5, 7-8). Dodson observed one of the individuals, later identified as petitioner, reach into a truck and start "messing with something." (Id. at 8-9). At first, Dodson thought the object was a bat, but later realized it was a rifle. (Id. at 9). After taking the rifle from the truck, petitioner yelled something about his keys and shot the gun into the air. (Id.). Petitioner then drove off in the truck. (Id. at 11). The only witness able to rebut this testimony was petitioner himself. While admitting that he was present at the scene, petitioner denied participating in the argument or firing a rifle. (Id. at 52, 55, 60). Rather, petitioner said that a man named "Leland" fought with Kathy Morris, who lived next door to Dodson, and shot the rifle during the argument. (Id. at 53-55, 60). Petitioner did not see Leland fire the rifle—he only heard the shots. (Id. at 55). Frightened by the incident and uncertain what would happen next, petitioner got into Leland's truck and told him to "get the hell out of here." (Id. at 54).

It is clear that the only viable defense in this case was petitioner's own testimony. Given the overwhelming evidence against him, petitioner's only chance for acquittal was to explain his version of the incident to the trier of fact. Although the judge rejected petitioner's testimony and found him guilty, that does not mean counsel was ineffective for pursuing that strategy. See, e.g. Maynard v. Quarterman, No. 3-06-CV-1439-B, 2007 WL 1345687 at *5 (N.D.Tex. May 4, 2007), COA denied, No. 07-10626 (5th Cir. Feb. 8, 2008) (decision to allow petitioner to testify at punishment hearing was not objectively unreasonable where the "only real chance to avoid spending the rest of his life in prison was to accept responsibility for his actions and ask the jury for leniency"); Brown v. Dretke, No. SA-01-CA-0241-XR, 2004 WL 2793266 at *33 (W.D.Tex. Dec. 3, 2004), COA denied, 419 F.3d 365 (5th Cir.2005), cert. denied, 546 U.S. 1217, 126 S. Ct. 1434, 164 L. Ed. 2d 137 (2006) (there was nothing objectively unreasonable about counsel's decision to advise petitioner to testify where his first-hand account of the fatal shooting was the only source of exculpatory evidence available at the guilt-innocence phase of trial).

Nor has petitioner shown that the outcome of the trial would have been different had he not testified. While the prosecutor was able to question petitioner about his extensive criminal record, much of that evidence also was introduced through other witnesses. Before petitioner testified, Glenn Edward Thompson, a fingerprint expert, authenticated three pen packets relating to a prior theft conviction and two prior convictions for unauthorized use of a motor vehicle. (See SF at 41-42; St. Exh. 3). Pen packets relating to petitioner's other convictions were properly admitted during the punishment hearing. (See SF at 86; St. Exhs. 4 & 5). In light of this evidence, petitioner was not prejudiced by taking the stand in his own defense. See Toro v. Fairman, 940 F.2d 1065, 1069 (7th Cir.1991), cert. denied, 505 U.S. 1223, 112 S. Ct. 3038, 120 L. Ed. 2d 907 (1992) (petitioner was not prejudiced by counsel's decision to allow him to testify and admit the elements of the offense where the prosecution's case was "very strong," the witnesses against him were credible, and petitioner was "hard-pressed" for a defense).

4.

Petitioner also complains that his appellate lawyer failed to challenge his conviction on legal insufficiency grounds or argue that trial counsel was ineffective. "The Constitution does not require appellate counsel to raise every nonfrivolous ground that might be pressed on appeal." Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.), cert. denied, 493 U.S. 970, 110 S. Ct. 419, 107 L. Ed. 2d 384 (1989); see also Jones v. Barnes, 463 U.S. 745, 751-53, 103 S. Ct. 3308, 3313-14, 77 L. Ed. 2d 987 (1983). Instead, counsel is obligated only to raise and brief those issues that are believed to have the best chance of success. See Schaetzle v. Cockrell, 343 F.3d 440, 445 (5th Cir.2003), cert. denied, 540 U.S. 1154, 124 S. Ct. 1156, 157 L. Ed. 2d 1050 (2004); United States v. Williamson, 183 F.3d 458, 462-63 (5th Cir.1999). In order to prove ineffective assistance of appellate counsel, a petitioner must show that the decision not to raise an issue on appeal fell below an objective standard of reasonableness. United States v. Phillips, 210 F.3d 345, 348 (5th Cir.2000), citing Strickland, 104 S.Ct. at 2064. This reasonableness standard requires counsel "to research relevant facts and law, or make an informed decision that certain avenues will not prove fruitful." Id., quoting Williamson, 183 F.3d at 462-63.

Appellate counsel raised a single non-frivolous issue on direct appeal—that the evidence was factually insufficient to support petitioner's conviction. Although counsel did not raise a legal insufficiency claim or argue that petitioner received ineffective assistance of counsel at trial, neither claim has merit. Petitioner apparently believes that the evidence was legally insufficient to support his conviction for unlawful possession of a firearm because the state did not produce the rifle at trial. However, the court is unaware of any authority that requires the state to introduce the actual weapon into evidence to prove the elements of this offense under Texas law. Certainly petitioner has not cited any such authority in his writ. As for the omitted ineffective assistance of counsel claim, the court has already determined that petitioner is not entitled to post-conviction relief on that ground. There is no reason to believe that petitioner's conviction would have been reversed had the same claim been raised on direct appeal. See Jackson v. Quarterman, No. 3-06-CV-0494-G, 2008 WL 58879 at *10 (N.D.Tex. Jan. 3, 2008) (appellate counsel was not ineffective for failing to appeal conviction on grounds that were considered and rejected on federal habeas review).^[5]

D.

Finally, petitioner contends that the statute criminalizing the possession of a firearm by a convicted felon, Tex. Penal Code Ann. § 46.04, is void for vagueness because the statute is not limited in scope or duration, does not require the state to produce the firearm at trial, and authorizes a conviction even though the defendant is not in possession of a firearm at the time of his arrest. A statute is void for vagueness when it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. See Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 843, 31 L. Ed. 2d 110 (1972). Article 46.04 of the Texas Penal Code clearly satisfies this requirement. The statute provides:

A person who has been convicted of a felony commits an offense if he possesses a firearm:

(1) after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or

(2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.

TEX. PENAL CODE ANN. § 46.04(a) (Vernon Supp. 2007). Contrary to petitioner's argument, there is nothing vague about the statute—a convicted felon may not possess a firearm anywhere for five years after his conviction or his release from prison or supervision, whichever is later, and thereafter may possess a firearm only within the confines of his residence. See State v. Mason, 980 S.W.2d 635, 639 (Tex.Crim. App.1998). That petitioner believes the legislature intended to impose different requirements does not make the statute unconstitutional.

RECOMMENDATION

Petitioner's application for writ of habeas corpus should be denied. A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party may file written objections to the recommendation within 10 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

NOTES

[1] There are some district courts in the Ninth Circuit that cite White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir.2002) for the proposition that "[t]he statute of limitations is a threshold issue the Court must resolve before reaching other procedural issues or the merits of Petitioner's claims." Adams v. Schriro, 2009 WL 2219291, at *2 (D.Ariz.2009) (citing Klitzkie mistakenly at 283 F.3d). In fact, Klitzkie had no such holding. The court there simply elected to affirm the district court's dismissal on the alternate ground of limitations, rather than the merits: "Although the statute of limitations issue was not included in the certificate of appealability, we can affirm the district court on any ground supported by the record. . . . Accordingly, we affirm the district court's dismissal of White's petition without reaching the grounds upon which the district court dismissed it." 281 F.3d at 922 (citations omitted). It did not even hint that the district court erred by reaching the merits instead of addressing limitations.

[2] Respondent's objection inadvertently transposed the last two digits of the jump cite to 398. The substance to which he refers is found on 389.

[3] See, e.g., Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir.2001) ("subject-matter jurisdiction cannot be created by waiver or consent").

[4] It appears here that Coker was brought to Dallas, though not to the courthouse, before the Magistrate Judge determined that an evidentiary hearing was not necessary. The point here is not whether Coker himself was moved, but whether the law should require that in all cases.

[5] See, e.g., Goodballet v. Mack, 266 F. Supp. 2d 702, 708 (N.D.Ohio 2003); Daniel v. Wynder, 2009 WL 161668, at *11 (W.D.Pa.2009); Reynolds v. Schriro, 2008 WL 3076212, at *9-10 (D.Ariz.2008); Sauceda v. Quarterman, 2008 WL 5137287, at *7 (S.D.Tex.2008); Andre v. Pacholke, 2008 WL 4614294, at *6 (W.D.Wash.2008); Finney v. Bobby, 2007 WL 2778728, at *6 (N.D.Ohio 2007); Garcia Luna v. Quarterman, 2007 WL 1522624, at *11 (S.D.Tex.2007); Caldwell v. Wilson, 2005 WL 3447908, at *6 (W.D.Pa.2005).

[6] The language of the actual mandate was:

It is ordered and adjudged that the judgment of the District Court is reversed, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court.

Coker v. Quarterman, No. 05-10020 (5th Cir. Apr. 8, 2008) (District Court docket no. 37).

[7] See, e.g., United States v. Smith, 49 F.3d 475, 478 (8th Cir.1995) (testimony of just one eyewitness was legally adequate to prove possession of a firearm); Parker v. United States, 801 F.2d 1382, 1383-85 (D.C.Cir.1986) (testimony of two bank tellers that defendant carried a gun was sufficient evidence that he possessed a firearm); see also United States v. Staples, 266 Fed.Appx. 167, 169 (3d Cir.2008) (citing United States v. Anderson, 78 F.3d 420, 423 (8th Cir.1996); United States v. Buggs, 904 F.2d 1070, 1076 (7th Cir.1990)) (testimony of four police officers was sufficient to demonstrate both possession of a Tec firearm and that the firearm was real).

[1] This court originally dismissed petitioner's federal writ on limitations grounds. Coker v. Dretke, No. 3-03-CV-2146-N, 2003 WL 23873274 (N.D.Tex. Nov. 24, 2003), rec. adopted, 2004 WL 2600490 (N.D.Tex. Nov. 12, 2004). On direct appeal, the Fifth Circuit vacated the judgment and remanded the case for further proceedings. Coker v. Quarterman, 270 Fed.Appx. 305 (5th Cir.2008).

[2] As part of his answer, respondent reurges his affirmative defense that petitioner's claims are barred by the AEDPA statute of limitations. (See Resp. Ans. at 4-10). The court need not decide this procedural issue as petitioner is not entitled to federal habeas relief in any event. See Mack v. Quarterman, No. 3-06-CV-0903-L, 2007 WL 241373 at *2 n. 1 (N.D.Tex. Jan. 26, 2007), COA denied, No. 07-10285 (5th Cir. Feb. 19, 2008) (declining to address affirmative defense of limitations where petitioner was not entitled to relief on the merits).

[3] Texas law permits a defendant to raise a "no evidence" claim for the first time on collateral review where the conviction is totally devoid of any evidentiary support. See Ex parte Barfield, 697 S.W.2d 420, 421 (Tex. Crim.App.1985); Ex parte Coleman, 599 S.W.2d 305, 307 (Tex.Crim.App.1978). However, where a defendant merely challenges the sufficiency of the evidence to support a conviction, such a claim must be raised on direct appeal. See Ex parte Williams, 703 S.W.2d 674, 679-80 (Tex.Crim.App.1986). In his federal writ, petitioner acknowledges that there was some evidence to support his conviction—the testimony of John Dodson, who said that he observed petitioner retrieve a rifle from his truck and fire the weapon into the air. The crux of petitioner's claim is that the state failed to introduce any physical evidence to corroborate Dodson's testimony. Such an argument implicates the factual sufficiency of the evidence and cannot be litigated under the guise of a "no evidence" claim. See Gardner v. Dretke, No. 3-04-CV-1074-G, 2004 WL 2008499 at *1 n. 1 (N.D.Tex. Sept. 8, 2004), rec. adopted, 2004 WL 2187110 (N.D.Tex. Sept. 28, 2004).

[4] The closest petitioner comes to articulating a legal basis for an objection is his claim that Dodson was not qualified as a firearms expert. (See Pet. Mem. Br. at 13). However, the prosecution was not required to present expert testimony to prove that petitioner unlawfully possessed a firearm. See United States v. Lankford, 196 F.3d 563, 576 (5th Cir.1999), cert. denied, 529 U.S. 1119, 120 S. Ct. 1984, 146 L. Ed. 2d 812 (2000) (holding that the government may rely on lay testimony to prove that defendant used, possessed, or carried a firearm in violation of federal law). Counsel was not ineffective for failing to make this frivolous objection.

[5] To the extent petitioner claims that appellate counsel had a conflict of interest because he was appointed by the trial court "in the good ole boy fashion," he provides no evidence to support the conclusory assertion that such a conflict existed. (See Hab. Pet. at 8). Nor has petitioner demonstrated harm as a result of any alleged bias. See Roach v. Quarterman, 220 Fed.Appx. 270, 279 (5th Cir. 2007) (rejecting claim that appellate counsel had conflict of interest absent proof of harm).