Humphrey v. McCotter

• Decision Date: 22 December 1987
• Docket Number: Civ. A. No. H-86-252.
• Citation: 675 F. Supp. 1043
• Parties: Paul Dwayne HUMPHREY, Petitioner, v. O.L. McCOTTER, Director, Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Southern District of Texas

675 F. Supp. 1043

Paul Dwayne HUMPHREY, Petitioner, v. O.L. McCOTTER, Director, Texas Department of Corrections, Respondent.

Civ. A. No. H-86-252.

United States District Court, S.D. Texas, Houston Division.

December 22, 1987.

Paul Dwayne Humphrey, pro se.

Charles A. Palmer, Office of Atty. Gen. of Texas, Austin, Tex., for respondent.

MEMORANDUM OPINION AND ORDER

HITTNER, District Judge.

Pending before this Court are the following documents: (1) Petitioner's Petition for Writ of Habeas Corpus; and (2) Respondent's Motion to Dismiss and Answer.

Petitioner filed this habeas corpus action pursuant to 28 U.S.C. §§ 2241, 2254 (1982). Petitioner was charged with the felony offense of aggravated robbery, tried before the 178th Judicial District Court of Harris County, Texas, found guilty by the court, and sentenced to twenty-five (25) years confinement in the Texas Department of Corrections. At trial, the State's witnesses were the complainant and the police officers who arrested the Petitioner while in possession of the complainant's car. The Petitioner attempted to present witnesses on his behalf, but was unable to procure their appearance to testify. He did testify in his own behalf. The twenty-five (25) year sentence was based on enhancement evidence of a prior felony conviction in Ohio. The Fourteenth Court of Appeals of Texas affirmed the conviction in an opinion dated October 18, 1984.

Petitioner filed a petition for discretionary review with the Texas Court of Criminal Appeals. The petition was dismissed by that court upon sworn motion by Petitioner asking that his petition be withdrawn. Petitioner has filed one state application for writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure. It was denied without written order on November 27, 1985. The Respondent has stipulated that he believes the Petitioner has sufficiently exhausted his state remedies as required by 28 U.S.C. § 2254.

Petitioner seeks to overturn his conviction on the following grounds:

I. Denial of effective assistance of counsel at trial;

II. Error by the trial court in failing to grant Petitioner's motion for continuance;

III. Denial of the right to appeal by failure of the court reporter to transcribe verbatim the trial records; and

IV. Error by the trial court for admitting an invalid Ohio conviction to enhance the Petitioner's primary conviction.

I. Denial of Effective Assistance of Counsel at Trial

Petitioner contends that his trial counsel was ineffective on several grounds. Basically, his complaints center on the following areas:

(1) Failure to properly investigate facts prior to trial;

(2) Failure to interview alibi and/or other defense witnesses;

(3) Failure to properly file pretrial motions;

(4) Failure to adequately cross-examine witnesses; and

(5) Failure to withdraw because of a personality conflict with Petitioner.

A. Standards of Evaluation

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two-prong test that should be utilized when evaluating a federal habeas corpus claim of ineffective assistance of counsel. In order to meet the requirements of the test, the defendant must show that (1) counsel's errors were so serious that he was not functioning as the "counsel" guaranteed under the sixth amendment and (2) the defendant was prejudiced by the defective performance. Id. at 687, 104 S.Ct. at 2064. A defendant must make both showings in order to prove that "the conviction ... resulted from a breakdown in the adversarial process that renders the result unreliable." Id.

In evaluating whether a defendant's attorney has functioned as the "counsel" contemplated under the sixth amendment, the Court must determine whether the attorney's performance was reasonable under prevailing professional guidelines. Id. at 688, 104 S.Ct. at 2064-65. In order to establish prejudice, "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. Reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome." Id. In analyzing both prongs of the test, a court should make every effort "to eliminate the distorting effects of hindsight ... and indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065.

B. Failure to Properly Investigate Facts Prior to Trial and Failure to Interview Alibi and/or Other Defense Witnesses

Petitioner alleges that he was denied effective assistance of counsel because his attorney failed to properly investigate the facts of his case in general and, more specifically, failed to procure the testimony of one Larry Walker. The Court will examine each claim separately.

Generally, Petitioner states that counsel has a duty to seek out and interview all potential witnesses in a case. This simply is not the standard by which an attorney's performance is to be analyzed in a federal habeas corpus proceeding. Under Strickland, the standard is reasonableness under prevailing professional guidelines. The Fifth Circuit has held that an attorney has a duty to make an independent investigation and to interview potential witnesses. Bell v. Watkins, 692 F.2d 999, 1009 (5th Cir.1982), cert. denied, 464 U.S. 843, 104 S.Ct. 142, 78 L.Ed.2d 134 (1983). However, this duty is not unlimited and must be viewed in the totality of the circumstances of the case. Id.

The record indicates that Petitioner's counsel not only independently investigated the facts of the case but also arranged to have the trial court appoint a private investigator to assist in the investigation. Both counsel and the investigator attempted to reach potential witnesses. The information as to who the potential witnesses were and where they could be located was sketchy at best. The Petitioner referred either his attorney or the investigator to five potential witnesses: (1) Lee Begnaud; (2) Tony Richardson; (3) a woman at the apartment complex who might have seen the Petitioner and Walter Law (the complaining witness) together; (4) a woman at a fast food restaurant who might have seen the Petitioner and Walter Law together; and (5) Larry Walker.

Lee Begnaud was contacted and stated he did not have knowledge of any information that would help the Petitioner. Tony Richardson was contacted and agreed to testify. After telling the assistant district attorney that Petitioner had asked him to lie, however, Begnaud did not appear in court on the day he was to testify. The woman at the apartment complex had moved to Dallas. Counsel inquired at the fast food restaurant concerning the woman who had reportedly seen Petitioner and Law there, but no one was able to identify the woman on the basis of the description given by the Petitioner. Viewed in the totality of the circumstances, the Court is of the opinion that counsel's efforts to obtain testimony of these witnesses were reasonable within the meaning of Strickland.

The Court next considers Petitioner's complaint in regard to the potential testimony of Larry Walker. Petitioner alleges he was denied effective assistance of counsel because his attorney (1) withheld at trial a sworn affidavit of Larry Walker and (2) did not procure the testimony of Larry Walker at trial.

In Texas, an ex parte affidavit is considered the equivalent of hearsay and, as such, is inadmissible evidence unless it falls under an exception to the hearsay rule. 2 Tex.Jur.3d Affidavits § 2 (1979). See McAfee v. Shirley, 140 S.W.2d 932 (Tex. Civ.App. — Amarillo 1940); see also Walding v. State, 135 Tex.Crim. 430, 120 S.W.2d 1052 (1938); Halliday v. Lambright, 29 Tex.Civ.App. 226, 68 S.W. 712 (San Antonio 1902). The affidavit in question does not meet any of the exceptions and is clearly inadmissible. Petitioner's claim that he was denied effective assistance of counsel because his attorney did not present the affidavit is thus without merit.

As to Petitioner's complaint that his attorney did not subpoena Larry Walker to testify at trial, Larry Walker was an elusive prospective witness. Both Petitioner's attorney and investigator tried to reach him at the hotel address given to them by the Petitioner. Neither was successful at finding Walker or anyone who knew him. Efforts to locate Walker included several telephone calls and two visits by the investigator to the hotel. The investigator finally determined that Larry Walker was in the Harris County Detention Center (where Petitioner also was incarcerated) and had been there since March. In order to visit with Walker, the investigator had to obtain the permission of Walker's attorney. After some delay, which was not due to the fault of the investigator or Petitioner's counsel, this permission was obtained and the investigator attempted to visit with Walker. On his first visit, the investigator was denied access because a "freeze" was on. Approximately two weeks later he attempted to visit Walker again and found Walker had "pled out" to a lesser charge and had been released a few days earlier. Subsequent efforts to reach Walker at the hotel after his release were unsuccessful. Under the circumstances, the Court is of the opinion that counsel's failure to subpoena a witness he could not find and whose testimony could be suspect was not unreasonable. Therefore, Petitioner's complaint as to ineffective assistance of counsel because his attorney failed to subpoena Larry Walker is without merit.

C. Failure to File Pretrial Motions

In his motions, the Petitioner alleges he was denied effective assistance of counsel because his attorney failed to file appropriate pretrial motions, including: (1) a motion to have the state list its witnesses; (2) a motion for evidence favorable to the Defendant; (3) a motion for discovery and inspection; (4) a...