Cross v. Johnson
| Decision Date | 06 April 2001 |
| Docket Number | No. 4:99-CV-972-Y.,4:99-CV-972-Y. |
| Citation | 169 F.Supp.2d 603 |
| Parties | Kenneth Alan CROSS, Petitioner, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent. |
| Court | U.S. District Court — Northern District of Texas |
Kenneth Alan Cross, Midland, TX, Pro se.
Denise A. Villarreal, Attorney General of Texas, Habeas Corpus Division, Austin, TX, for Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS (With Special Instructions to the Clerk of Court)
The Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States Magistrate Judge filed on March 7, 2001.
Although the magistrate judge, pursuant to a notice and order of March 7, 2001, gave the parties until March 28, 2001 to file written objections to his findings, conclusions, and recommendation, as of the date of this order, no written objections have been filed. This Court finds that the petition for writ of habeas corpus should be denied for the reasons stated in the magistrate judge's findings and conclusions.
It is therefore ORDERED that the findings, conclusions and recommendation of the magistrate judge should be, and are hereby, ADOPTED.
It is further ORDERED that Petitioner's Petition for Writ of Habeas Corpus be, and is hereby, DENIED.
It is further ORDERED that the clerk of the Court shall transmit a copy of this order to all parties by certified mail, return receipt requested.
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendations of the United States Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
This is a petition for writ of habeas corpus by a state prisoner pursuant to Title 28 of the United States Code, Sections 2254.
Petitioner Kenneth Alan Cross, TDCJID # 843086, was confined at the Neal Unit of the Texas Department of Criminal Justice, Institutional Division in Amarillo, Texas at the time he filed this petition.1
Respondent Gary L. Johnson is the Director of the Texas Department of Criminal Justice, Institutional Division.
On December 20, 1995, a Palo Pinto County Grand Jury in Cause No. 10438 charged Cross by indictment with the offense of manslaughter. Ex Parte Cross, No. 41,764-01 at 64. The indictment further charged Cross with using or exhibiting a deadly weapon during the commission of the offense, and the indictment also contained an enhancement paragraph. Id. Cross entered a plea of not guilty to the crime charged. On April 12, 1996, after trial before a jury, Cross was found guilty of the lesser offense of criminally negligent homicide. Id. at 134. The jury further found that Cross used a deadly weapon during the commission of the offense, and found the enhancement paragraph to be true. Id. On the same date, the jury assessed punishment at an enhanced term of confinement of thirteen years and a fine of $1,000, and the trial court entered judgment against him. Id. at 134-35.
Cross prosecuted a direct appeal from his conviction, raising the following grounds for relief: (1) the trial court erred in denying his motion to quash the indictment because it failed to sufficiently describe the act that constituted reckless conduct as required by TEX. CODE CRIM. PROC. art. 21.15; (2) the trial court erred when it denied his motion to dismiss for denial of due process due to a four week delay of his trial; (3) the trial court erred when it denied his motion for disqualification of the trial judge; (4) the trial court erred in allowing the state to impeach its own witness; (5) the trial court deprived him of a fair trial by commenting on the absence of a witness; and (6) the trial court erred in admitting inflammatory and prejudicial photographs of the deceased. On February 26, 1998, the appellate court affirmed Cross' conviction in an unpublished written opinion. Cross v. State, No. 11-96-120-CR (Tex.App. - Eastland 1998, pet. ref'd). Cross' pro se petition for discretionary review was refused by the Texas Court of Criminal Appeals on July 8, 1998. Cross v. State, No. 936-98 (Tex.Crim.App. July 8, 1998).
Cross then pursued post-conviction relief, filing two state applications for writ of habeas corpus, challenging his conviction for criminally negligent homicide. See Ex Parte Cross, No. 41, 764-01, -02. In his first application filed on February 3, 1999, Cross raised the following claims: (1) there is no proof of record that the grand jury proceedings were properly conducted; (2) the evidence admitted at trial against him for the purposes of impeachment was never properly verified by an expert witness; (3) he received ineffective assistance of trial counsel, (4) the trial court failed to properly charge the jury regarding accomplice witnesses; (5) the real issue before the court was who was the true individual responsible for the accidental killing, and this issue was never raised at trial or on appeal; and (6) he was denied his right to be present during all stages of the criminal proceedings in that he was not present when the jury was temporarily excused due to the prosecutor's illness during the trial. Ex Parte Cross, No. 41,764-01 at 163. On May 19, 1999, the trial court reviewed the claims presented, finding them meritless. Id. at 145-49. The Texas Court of Criminal Appeals on July 28, 1999, denied the application without written order on the findings of the trial court. Id. at Cover.
Cross filed his second state application on September 23, 1999, raising the following grounds for relief: (1) the trial court's charge to the jury was so misleading and erroneous, especially regarding the issues of the sentencing guidelines and deadly weapon finding, that it denied him a fair and impartial trial; (2) the trial court improperly failed to instruct the jury on the law of the parties or criminal responsibility of a co-conspirator with regard to the subject offense; (3) the trial court's instruction to the jury regarding parole law was improper; (4) the trial court improperly failed to instruct the jury that state witness Banks had been paid by the state and had agreed to testify as a state witness in exchange for not being charged in the instant case; and (5) the jury panel was improper because it failed to include any minorities. Ex Parte Cross, No. 41,764-02 at 24. The second application was dismissed as successive pursuant to Texas Code of Criminal Procedure Article 11.07, Section 4. Id. at Cover. Cross then filed this federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court.2 In response to an order to show cause, the respondent has filed an Answer, supported by a brief. The Petitioner has filed a reply with attached documentary exhibits.
Respondent asserts that Petitioner has failed to exhaust his state remedies as to certain issues presented in this federal petition. The Respondent, however, does not move for dismissal on this ground, instead asserting that the unexhausted claims are precluded from consideration by this Court because they are procedurally barred.
Petitioner raises the following claims:3
1. There is no proof of record that the grand jury proceedings were properly conducted.
2. The trial court erred in denying his motion to quash the indictment, because the indictment failed to describe the act or acts constituting reckless conduct.
3. The jury panel was improper because it failed to include any minorities.
4. The trial court erred when it denied his motion to dismiss for denial of due process due to a four week delay of his trial.
5. The trial court erred when it denied his motion for disqualification of the trial judge.
6. He received ineffective assistance of trial counsel.
7. The evidence admitted at trial against him for the purposes of impeachment was never properly verified by an expert witness.
8. The trial court improperly permitted the state, over defense objection, to impeach its own witness with a prior written statement.
9. He was denied his right to be present during all stages of the criminal proceedings in that he was not present when the jury was temporarily excused due to the prosecutor's illness during the trial.
10. The trial court's comments regarding the absence of a defense witness were so prejudicial that he was deprived of a fair and impartial trial.
11. The trial court erred in admitting inflammatory and prejudicial photographs of the deceased.
12. The real issue before the court was who was the true individual responsible for the accidental killing, and this issue was never raised at trial or on appeal.
13. The trial court failed to properly charge the jury regarding accomplice witnesses and the law of the parties or criminal responsibility of a co-conspirator with regard to the subject offense, and erroneously instructed the jury on the parole laws.
14. The state failed to properly respond to his motion requesting the state to indicate whether it intended to offer extraneous evidence at trial, and the admission of such evidence was improper.
Respondent asserts that eight of the fourteen claims, a portion of another claim, and one subclaim of ineffective assistance of counsel presented by Cross are procedurally barred from federal habeas corpus review. Thus, the initial...
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