Mullen v. Blackburn

• Decision Date: 05 February 1987
• Docket Number: No. 86-3033,86-3033
• Citation: 808 F.2d 1143
• Parties: Patrick J. MULLEN, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary and William J. Guste, Attorney General of Louisiana, Respondents-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1143

808 F.2d 1143

Patrick J. MULLEN, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary and William J. Guste, Attorney General of Louisiana Respondents-Appellees.

No. 86-3033

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Feb. 5, 1987.

Patrick J. Mullen, pro se.

Bill Campbell, New Orleans, La., for respondents-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, RUBIN, and JOLLY, Circuit Judges.

PER CURIAM:

Appellant Patrick Mullen concedes that he was apprehended while committing armed robbery in a drugstore in Covington, Louisiana, as a result of which he was convicted by a jury of armed robbery and sentenced to 99 years imprisonment. His direct appeal was unsuccessful, and he filed two unsuccessful state habeas petitions raising the same grounds asserted in his federal petition. The state concedes exhaustion.

Mullen filed the present petition in July 1985. The district court denied it and Mullen filed timely notice of appeal. The trial court granted certificate of probable cause and permission to proceed in forma pauperis.

Analysis

Mullen advanced a host of claims in his original habeas petition, most of which he pursues on appeal. He asserts that his constitutional rights were violated by eyewitness identification testimony at trial, by two state court evidentiary rulings, by references to him as "this subject" at trial and by the fact that the record furnished him for his appeal did not include a transcript of voir dire proceedings at his trial. He also alleges ineffective assistance of counsel and objects to purported errors in his presentence investigation report. Finally, he asserts that all of his claims, taken together, provide evidence of a due process violation even if none of the claims individually could be the basis for relief. None of his claims has merit.

1. Identification

Mullen's first claim is that the eyewitness identifications made by three witnesses at trial should have been excluded from evidence. He concedes, however, that he was apprehended while committing the robbery and was, in fact, guilty as charged. Thus, he effectively concedes that the identifications were reliable; "reliability is the linchpin in determining the admissibility of identification testimony." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). So long as the identifications are reliable, their exclusion is not constitutionally mandated. Id. at 113-14, 97 S.Ct. at 2252-53.

As a corollary, Mullen asserts that it was error to hold a hearing on the admissibility of the identification testimony on the day of trial; he asserts that the hearing should, instead, have been held "at least three days prior to trial." He cites no authority in support of this position. The actions he complains of did not violate fundamental conceptions of justice and therefore cannot be said to have violated due process. United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977).

2. Evidentiary Rulings

Mullen asserts that his due process rights were violated by the admission of two items of evidence at trial: the first, a photograph, showed various items involved in the robbery, including narcotics stolen from the drugstore, a pistol, cash, a paper bag, a hat, a wig, and a cigar box with change in it. He asserts that the pistol in the photograph, allegedly used by an accomplice in the robbery, was irrelevant to the case against him. Arguably the pistol was relevant to establishing that an armed robbery occurred. In any case, the admission of the photograph in evidence was a state court evidentiary ruling, which cannot be the basis for habeas corpus relief unless it rendered the trial fundamentally unfair. Skillern v. Estelle, 720 F.2d 839, 852 (5th Cir.1983), cert. denied, 469 U.S. 873, 105 S.Ct. 224, 83 L.Ed.2d 153 (1984). A ruling can only meet this requirement if it relates to evidence that is crucial, critical, and highly significant. Id. In view of testimony that Mullen himself used a gun during the robbery, the admission of a photograph of a gun did not render his trial fundamentally unfair.

Mullen next objects to the admission of hearsay testimony linking him to a gun found at the scene. He asserts that since this testimony was improper, the gun itself should not have been admitted into evidence. This is also an attack on a state court evidentiary ruling. Because there was eyewitness testimony that Mullen had a gun at the robbery, the admission of the gun itself into evidence was not crucial, critical or highly significant. Mullen's attacks on the state court's evidentiary rulings therefore fail.

3. Prejudicial Comments

Mullen objects to the fact that a witness, the prosecutor, and his own attorney referred to him in the presence of the jury as "this subject." He asserts that this term indicated that he had been the subject of a police investigation and that knowledge of this fact might have prejudiced the jury. Even the least perceptive juror can scarcely fail to infer that the defendant in a criminal trial must have been the subject of a police investigation at some time. Thus, Mullen was not prejudiced by being referred to as a "subject." Moreover, Mullen does not explain how the Constitution protects a criminal defendant from being referred to as a "subject."

4. Trial Transcript

Mullen notes that in his direct appeal of his conviction he raised the issue of "error patent on the face of the record": the record did not include a transcript of the questioning during voir dire. Thus, he argues, his trial could not be meaningfully reviewed since the trial court could not determine whether any errors had occurred during voir dire; thus he claims that his due process rights were violated.

This claim is meritless. The record on a criminal appeal to the Louisiana Supreme Court does not include a transcript of the questioning during voir dire. La.Code Crim.Proc.Ann. Art. 918; La.S.Ct. Rule 1 Secs. 5-7. Mullen therefore does not assert that he was not furnished an adequate record on appeal; nor does he explain how the Constitution requires more or why the absence of such a transcript prejudiced his appeal in any manner--beyond asserting that some of the jurors had names similar to police officers and court officials and may therefore have been related to them, a transparently meritless piece of speculation. If no constitutional violation occurred, he cannot obtain habeas relief. 28 U.S.C. Sec. 2254.

5. Ineffective Assistance of Counsel

Mullen argues that his trial counsel was ineffective. A habeas petitioner alleging ineffective assistance of counsel bears the burden of affirmatively establishing a reasonable probability that, but for counsel's errors, the result of his trial would have been different. Strickland v. Washington, 466 U.S. 668, 694-95, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). Mullen asserts that counsel should have been more diligent in investigating and developing the defense that, as a drug addict who had been drinking before the robbery, Mullen was not legally responsible for his actions. The fact that an offender was drugged or intoxicated at the time of a crime is not a defense unless the circumstances indicate he was unable to form the specific intent to commit the crime....