Charles v. Thaler, 09-20639

Citation629 F.3d 494
Decision Date03 January 2011
Docket NumberNo. 09-20639,09-20639
PartiesMaurice Jabbar CHARLES, Petitioner-Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
629 F.3d 494

Maurice Jabbar CHARLES, Petitioner-Appellant,
v.
Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.


No. 09-20639.

United States Court of Appeals,
Fifth Circuit.


Jan. 3, 2011.

629 F.3d 496

Josh Barrett Schaffer, Atty. Advisor (argued), The Schaffer Firm, Houston, TX, for Charles.

Jessica Michelle Hartsell (argued), Charles A. Palmer, Asst. Atty. Gen., Postconviction Lit. Div., Austin, TX, for Thaler.

Appeal from the United States District Court for the Southern District of Texas.

629 F.3d 497

Before JONES, Chief Judge, PRADO, Circuit Judge, and O'CONNOR, District Judge.*

EDITH H. JONES, Chief Judge:

Appellant Maurice Charles was sentenced as an adult to extended imprisonment for crimes he committed while only fourteen years old. He seeks a writ of habeas corpus to challenge sentences for aggravated robbery and aggravated kidnapping. The district court denied relief but granted a certificate of appealability. Charles contends that his attorney ineffectively represented him at trial. Viewed through the discriminating lens of AEDPA deference, we affirm the judgment.

FACTUAL BACKGROUND

After Charles pled guilty to attempted burglary of a habitation, aggravated robbery, and aggravated kidnapping, his punishment was tried to a jury. The State presented evidence that on October 5, 2000, Charles and an accomplice donned ski masks, armed themselves with a pistol and a shotgun, and attempted to rob a pharmacy before they were thwarted by the armed pharmacist. Undeterred, later that night Charles and a group of men accosted Guillermo Perez and his girlfriend, Viviana Diaz, in a park in Jacinto City, Texas. They beat Perez and Diaz, stole both of their cars, and kidnapped Diaz. The men attempted to rob Diaz of her jewelry. They later beat her, and two of them, including Charles, raped her.

Shortly afterward, a police officer who was investigating the attempted pharmacy robbery observed two men throwing a woman into the trunk of their car. The suspects led the officer on a high speed chase after they saw him. Charles and his accomplices eventually abandoned their cars and fled on foot. Diaz was rescued. Tips led the police to arrest Charles and the others several days later. Diaz became pregnant due to the rape and underwent an abortion.

Charles testified in his own defense, as did twelve character witnesses, some of whom were relatives. Charles testified that, although he did attempt to rob the pharmacy and was remorseful, he was intoxicated from codeine pills and slept in an accomplice's car throughout the robbery of Perez and Diaz, kidnapping, and rape. Charles denied that he had been expelled from school for chasing another student with a knife, walking out of class, and acting disrespectfully toward school personnel. He also insisted that Texas Ranger Andrew Carter and an accomplice, Marcos Ramirez, were lying when each stated that Charles admitted hitting Diaz and said he intended to kill her.

Having been certified for punishment as an adult, Charles was sentenced by the jury to concurrent terms of three years probation for attempted burglary, 1 fifteen years imprisonment for aggravated robbery, and forty years imprisonment for aggravated kidnapping. His convictions were affirmed on direct appeal by the Fourteenth Court of Appeals of Texas and the Texas Court of Criminal Appeals.

PROCEDURAL HISTORY

Charles filed a state habeas application challenging the aggravated robbery and aggravated kidnapping sentences because of ineffective assistance of counsel. The

629 F.3d 498
specific claims of ineffectiveness relevant to this appeal are:
1. Failure to object to the prosecutor's closing argument asking the jury to sentence Charles to forty-eight years imprisonment based on Texas parole law.
2. Failure to object to Texas Ranger Andrew Carter's testimony that he "felt like he [Charles] was minimizing his role" in the crimes when Carter interviewed Charles.
3. Failure to object to Ranger Carter's testimony about Charles's unrecorded admission that he hit Viviana Diaz.
4. Eliciting Charles's direct testimony that he had been expelled from school for fighting, and failure to object to the prosecutor's cross-examination about the school misconduct when the prosecutor based his questions upon school officials' statements.
5. Failure to object to the prosecutor's question asking what Charles would say if he knew that co-defendant Marcos Ramirez told police Charles intended to kill Diaz.
6. Failure to object to the prosecutor's closing argument telling the jurors to "think about this. You could be in the same situation as Ms. Diaz. Let me ask you this: Could it be you or your daughter being in the same situation as that girl?"

The state habeas court found that Charles's counsel was constitutionally deficient in one regard—failing to object to improper closing argument about parole law—but it determined that Charles was not prejudiced and thus denied habeas relief. See In re Charles, No. 873406-A (262d Dist. Ct., Harris County, Tex. Jul. 31, 2008). The Texas Court of Criminal Appeals affirmed without written order.

Charles then petitioned for federal habeas relief. The federal magistrate judge agreed with the state court's deficiency finding but also found counsel deficient on additional grounds: (1) his failure to object to Ranger Carter's testimony that Charles had minimized his role in the offenses and (2) the prosecutor's questions based upon non-testifying co-defendant Ramirez's statement that Charles intended to kill Diaz. The magistrate judge found no ultimate prejudice to Charles, however, and the district court adopted the magistrate's recommendations to deny relief but also to grant a COA. Charles now appeals.

STANDARD OF REVIEW

"In a habeas corpus appeal, we review the district court's findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court's decision as the district court." Evans v. Cain, 577 F.3d 620, 622 (5th Cir.2009) (citations omitted). The standard of review applied by the district court was, correctly, whether the state court's 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)(1)-(2). A state court decision is "contrary" to the Supreme Court's clearly established precedent if it applies a legal rule contradictory to that set forth by the Court or arrives at a result different from the Court's cases on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000). A state court decision "unreasonably applies" the Supreme Court's clearly established precedent if it correctly identifies the legal rule but applies it in an
629 F.3d 499
objectively unreasonable manner to the facts. Id. at 407-09, 120 S.Ct. at 1520-21.

The relevant legal rule is the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a habeas petitioner alleging ineffective counsel to show (1) that counsel's performance was "deficient," meaning he committed "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and (2) that the deficient performance "prejudiced" the defense, meaning the "errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. at 2064. Deficiency is measured by the "reasonableness" of attorney performance under "prevailing professional norms," id. at 688, 104 S.Ct. at 2065, and review is accompanied by a strong presumption that counsel's performance was adequate and the product of reasoned trial strategy. Dale v. Quarterman, 553 F.3d 876, 880 (5th Cir.2008) (citation omitted). Prejudice in the state sentencing context turns on whether, "absent counsel's errors, there is a reasonable probability that the defendant's sentence would have been 'significantly less harsh' ...." Id. (quoting Spriggs v. Collins, 993 F.2d 85, 88-89 (5th Cir.1993)).

DISCUSSION

In accordance with the COA, we consider each of Charles's claims of error.

I. Failure to Object to Prosecutor's Closing Argument on Texas Parole Law

In his closing argument, the prosecutor asked the jury to sentence Charles to forty-eight years imprisonment because, under Texas parole law, Charles might serve only half of his sentence and would need to serve 24 years before he turned forty (the age at which the prosecutor believed recidivism unlikely). In Texas, a prosecutor is not authorized to inform the jury during the punishment phase about how parole laws could affect the defendant's time served in prison. See, e.g., Chester v. State, 167 S.W.3d 935 (Tex.App.2005). The state habeas court found Charles's counsel deficient for failing to object, the district court agreed, and the state acknowledges prosecutorial error.

The state court found, however, that defense counsel's failure to object did not prejudice Charles because his sentence was based on the specific facts of his case and was proportionate to the heinous nature of his crimes. The district court found this to be a reasonable application of Strickland because (1) Charles's sentences were in the bottom half and fourth of the respective punishment ranges for aggravated kidnapping and aggravated robbery; (2) his sentences were less than the prosecutor urged in the improper parole law argument; and (3) the combination of aggravating and mitigating factors justified the sentences.

The pertinent inquiry is whether the state court reasonably concluded that, absent the prosecutor's improper argument concerning parole law, there was no...

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