Lavernia v. Lynaugh

• Decision Date: 05 May 1988
• Docket Number: No. 87-1918,87-1918
• Citation: 845 F.2d 493
• Parties: Carlos LAVERNIA, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent- Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 493

845 F.2d 493

Carlos LAVERNIA, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections Respondent- Appellee.

No. 87-1918

Summary Calendar.

United States Court of Appeals Fifth Circuit.

May 5, 1988.

Carlos Lavernia, pro se.

Margaret Portman Griffey, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before GEE, RUBIN, and SMITH, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A state prisoner convicted of aggravated rape seeks habeas corpus relief. We find that the district court did not err in rejecting the six claims the prisoner made.

I.

Carlos Lavernia, a Cuban immigrant, was charged in September, 1984, with the rape of April Wooley in Austin, Texas, where Lavernia then resided, on June 2, 1983. Ms. Wooley had been jogging on a trail paralleling Barton Creek in Austin. She passed a Hispanic man who, she testified, gave her an unfriendly stare, and she decided to turn home. However, she met the same man on the way back, and he forced her off the trail and raped her.

The principal evidence against Lavernia was based on Ms. Wooley's identification of him as her assailant. After the assault, she had assisted a police artist in preparing a composite picture of the assailant, and over a period of fourteen months, she was shown three different photographic arrays. On the first two of those occasions, she made no identification. In August 1984, however, she was shown a third set of photographs that included Lavernia's. She then identified him.

By that time, Lavernia was confined in the United States Immigration Detention Center in Atlanta, Georgia. He was extradited to Austin, where he was indicted for rape. He was represented by court-appointed counsel and, because he said he could not speak English, was assisted by a court-appointed interpreter. After trial by jury, he was convicted and sentenced to 99 years imprisonment.

The federal district court referred Lavernia's petition for habeas corpus to a magistrate, who filed a report and recommended that the petition be dismissed. The district court adopted the report. On appeal, Lavernia challenges the constitutionality of his conviction on several grounds, each of which we discuss separately.

II.

Lavernia contends that the Texas state court tried him without the transfer order required by Texas law and therefore lacked jurisdiction. The charge against him was filed in the 331st Judicial District Court of Travis County, Texas, then transferred to the 146th District Court. The latter court then transferred the case to the 167th Judicial District Court, a court of concurrent jurisdiction, without a transfer order. Lavernia was then tried and convicted in the 167th District.

The state informs us, and Lavernia does not deny, that in Travis County all felony indictments are returned to the 331st District Court, then immediately apportioned among, and transferred to, one of the four district courts in Travis County. These mass transfers from the 331st District are not made a part of the individual records. The Texas Code of Criminal Procedure provides that when two or more courts have concurrent jurisdiction of a criminal offense, the court in which the indictment is first filed retains jurisdiction. ¹ In the absence of a transfer order, the court in which Lavernia was tried lacked jurisdiction.

Lavernia argues that this result denied him due process of law and equal protection of the laws. Assuming, however, that the lack of a transfer order violated state law, this noncompliance did not constitute a denial of federal due process. Federal habeas courts are without authority to correct simple misapplications of state criminal law or procedure, but "may intervene only to correct wrongs of [federal] constitutional dimension." ² The only inquiry incumbent upon a federal habeas court presented with an alleged violation of state criminal procedure is "whether there has been a constitutional infraction of the defendant's due process rights which would render the trial as a whole 'fundamentally unfair.' " ³ In order to establish that his trial was rendered fundamentally unfair, Lavernia must demonstrate that he was prejudiced by the omission of the order from the state court records. ⁴ Lavernia has not alleged, and we find nothing in the record to indicate, that the alleged omission could have had any impact on the outcome of his trial.

We also reject Lavernia's contention that he was denied equal protection because in other cases transfer orders had been entered. The equal protection clause is violated only by intentional discrimination. ⁵ " 'Discriminatory purpose' ... implies more than intent as violation or as awareness of consequences," the Supreme Court stated in Personnel Administrator of Massachusetts v. Feeney. ⁶ "It implies that the decisionmaker singled out a particular group for disparate treatment and selected his course of action at least in part for the purpose of causing its adverse effect on an identifiable group," the Seventh Circuit added in Shango v. Jurich. ⁷ Lavernia neither alleged nor proffered any evidentiary basis on which the court might find that the state trial court intended to discriminate against him.

III.

Lavernia contends that the following remarks by the prosecutor constituted an unconstitutional comment on his failure to testify:

And we brought you every single thing that we have. And you have not heard that Mr. Lavernia does not speak English. In fact you have heard something quite to the contrary. He speaks enough English. Enough English to do what he needs to do. Where is his wife to get up here and tell you that she's known him for five or ten years, and he's never spoken to--

Thereupon, Lavernia's counsel objected and asked for a mistrial, and the court instructed the jury to take evidence "only from the witness stand."

While the state contends that Lavernia's challenge is procedurally barred, we find that his argument, even if not foreclosed, lacks merit. A prosecutor's comment is improper if the prosecutor intended to refer to the defendant's silence or the remark was of such character that a jury would naturally and necessarily take it in that light. ⁸ To determine the intent of the prosecutor and the natural and necessary effect of the statements, we must examine the statements in the context in which they were made. ⁹

The district court correctly concluded that the jury would not naturally and necessarily take the prosecutor's comments to refer to Lavernia's failure to testify. The prosecutor referred explicitly only to the fact that Lavernia's wife, not Lavernia, had failed to testify. Virtually anyone who knew Lavernia well, including his wife, could have been called to testify as to his ability or inability to speak English. For this reason, the prosecutor's remarks must be viewed as an acceptable comment upon the failure of the defense, not the defendant, to counter or explain the testimony presented or evidence introduced. ¹⁰ Nor would the jury "naturally and necessarily" interpret the prosecutor's claim that Lavernia knew "enough English to do what he needs to do" to refer to Lavernia's ability to testify and his failure to do so.

Moreover, the prosecutor made his comments in response to the assertions of Lavernia's counsel. In closing, Lavernia's counsel had argued that Lavernia did not speak English and that the victim's identification of Lavernia as the rapist had been erroneous because the rapist, according to her testimony, had spoken English. Counsel said:

Now, let us talk, though, for a few moments about that particular identification and, again, her ability and position to come a year later and identify--or at a time later identify a defendant.

First of all, she has got him speaking English on several occasions. "Why are you walking so fast?" "You know what I want?" "I want to see your titties," etc. This man [Lavernia] doesn't speak English. He doesn't speak English.

It is appropriate in summation for counsel "to assist the jury in analyzing, evaluating, and applying the evidence." ¹¹ An attorney may also urge the conclusions to be drawn from the evidence. ¹² The argument of defense counsel was improper because it argued facts that were not in evidence. The only indications in the record that Lavernia did not speak English were that an interpreter was employed during the trial and that defense counsel asserted as much during cross-examination of the victim. Defense counsel cross-examined the victim as follows:

A. Are you aware that Carlos Lavernia speaks Spanish and does not speak English?

A. I'm aware that that's what he says.

The argument of which Lavernia complains did no more than correct the misrepresentations inherent in defense counsel's summation. The prosecution argued that the victim's testimony established that Lavernia spoke enough English to compel her compliance with various sex acts. The victim testified that she did not have a conversation with Lavernia and that his directives to her were limited to short directly sexual phrases. The prosecutor's remarks, viewed in context, were "invited" and did no more than respond substantially in order to "right the scale," and thus they do not warrant reversing the conviction. ¹³

IV.

Without holding an evidentiary hearing, the district court rejected Lavernia's claim that his trial counsel had been ineffective in failing to call witnesses who would testify that he did not speak English, failing to obtain the results of a blood test and use this evidence, and failing to secure a ruling on the objection to the prosecutor's closing argument. To merit habeas relief on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-prong test set out in Strickland v. Washington. ¹⁴ The petitioner must show both that (1) counsel's performance was deficient in that it fell below an...