Rose v. Johnson

Citation141 F.Supp.2d 661
Decision Date26 March 2001
Docket NumberNo. CIV. A. H-99-2535.,CIV. A. H-99-2535.
PartiesNathan Lynn ROSE, Petitioner, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.
CourtU.S. District Court — Southern District of Texas

Nathan L Rose, Huntsville, Pro se.

Woodson Erich Dryden, Office of Atty General, Austin, TX, for Gary Johnson, Director, TDCJ, respondent.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

I. Introduction

Petitioner Nathan Lynn Rose ("Rose") challenges his 1995 conviction for aggravated robbery and forty-year sentence of imprisonment. Having reviewed the pending motion, the submissions of the parties, the state court record, and the applicable law, the court is of the opinion that Respondent Gary L. Johnson's ("Johnson") Motion for Summary Judgment (# 13) should be granted, Rose's Amended Petition for Writ of Habeas Corpus (# 4) and Motion for Summary Judgment (# 14) should be denied, and a certificate of appealability should not be issued.

II. Procedural History

On August 17, 1995, a jury convicted Rose of the aggravated robbery of Mary Aldape ("Aldape"), which occurred on March 30, 1993. See State v. Rose, No. 662269 (183d Dist. Ct., Harris County, Tex., Aug. 17, 1995). On November 13, 1995, after Rose pleaded true to prior convictions for possession of cocaine and delivery of cocaine alleged for enhancement purposes, the court sentenced Rose to forty years' imprisonment. See State v. Rose, No. 662269 (183d Dist. Ct., Harris County, Tex., Nov. 13, 1995).

On direct appeal, the Texas Fourteenth Court of Appeals affirmed Rose's conviction in an unpublished opinion. See Rose v. State, No. 14-95-01413-CR, 1998 WL 268943 (Tex.App. — Houston [14th Dist.] May 28, 1998, pet. ref'd). The Texas Court of Criminal Appeals refused Rose's petition for discretionary review on September 16, 1998. See Rose v. State, No. 1053-98 (Tex.Crim.App. Sept. 16, 1998). Rose subsequently filed a state habeas application challenging his conviction, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court without a hearing. See Ex parte Rose, No. 6,301-05 (Tex.Crim. App. Dec. 8, 1998).

Rose filed his amended federal petition for writ of habeas corpus on August 30, 1999.

III. Claims

Rose raises a variety of claims in support of his petition for federal habeas corpus relief:

A. he received ineffective assistance of trial counsel because:

i. his attorney failed to object to the admission in evidence of a steak knife;

ii. his attorney failed to file a motion for discovery, a motion to suppress evidence, and a motion to obtain exculpatory evidence from the prosecutor;

iii. his attorney improperly relied on "a woman scorned" theory as part of his trial strategy;

iv. his attorney failed to argue properly his motion for new trial;

v. his attorney failed to interview Rose and his family members regarding his case; and

vi. his attorney failed to file a motion for instructed verdict based on an indictment that was fundamentally defective because it alleged that the offense occurred "on or about" April 16, 1993, which was not the actual date of the incident, the grand jury was never shown the knife before he was charged with aggravated robbery, and the indictment was amended without a change to the body of the indictment;

B. there was insufficient evidence to support the conviction because:

i. the knife offered into evidence was not shown to be the knife purportedly utilized in the offense;

ii. the knife was dusted for fingerprints but was not retained as evidence by the police;

iii. his fingerprints were not found at the scene and there was no evidence that he had stolen any property; and

iv. the complaining witness and the police officer gave differing testimony at trial;

C. he received ineffective assistance of counsel on appeal because his appellate attorney did not raise the ineffectiveness of trial counsel;

D. the State committed prosecutorial misconduct by:

i. introducing evidence of prior offenses for which Rose was not convicted;

ii. posing improper questions when cross-examining character witness Raymond Griffin;

iii. improperly questioning Rose in the punishment phase of the trial;

iv. making prejudicial statements during closing argument;

v. fabricating a deadly weapon and suppressing evidence;

vi. stating that Rose had represented himself for part of the proceeding vii. accusing Rose of possessing information from the offense report which was not available to him;

viii. questioning fingerprint examiners about items not admitted in evidence or about which they had no personal knowledge;

ix. failing to notify Rose that it would seek a finding of the use of a deadly weapon; and

x. claiming the fact that Rose's fingerprints did not match any fingerprints found at the scene was irrelevant; and

E. the court erred by failing to charge the jury on the lesser included offense of robbery.

IV. Factual Background

At trial, Aldape and Rose, who had been co-workers at HEB Pantry Food Store, gave contradictory accounts of the events that occurred in her apartment on March 30, 1993. Aldape, who professed to be a lesbian, stated that she and Rose had a "hi/bye" relationship and that she had driven him home from work on several occasions. Aldape testified that on the date in question, she was caring for her roommate's three-month-old baby when Rose came to the door of her apartment and asked for a glass of water. She brought him one glass, and when he asked for another, she let him into the apartment and directed him to the kitchen because she was occupied changing the baby. When returning from the kitchen, Rose pulled a knife on her, ordered her to give him some money, and shut her in a bedroom closet with the baby for forty-five minutes. After Rose left, Aldape discovered that he had pilfered through her belongings and stolen a class ring, a pager, and $100.00 in cash.

According to Rose, Aldape was bisexual, and they had engaged in a sexual relationship for several months. Rose arrived at Aldape's apartment and, after talking awhile, told her he was hungry and thirsty. He began to cook a sandwich, using a small butter knife to cut it. After the meal, the two talked and then began to use crack cocaine. Two hours later, Rose told Aldape that he no longer felt he could continue their relationship because he was engaged to another woman. Aldape allegedly replied that if she could not have Rose, neither could his fiancee. Rose denied robbing Aldape and contends that her accusation of him was motivated by revenge for his ending their relationship.

V. Analysis
A. Ineffective Assistance of Counsel

In support of his ineffective assistance of counsel claim, Rose asserts that his trial counsel's representation was deficient in a number of respects. Rose contends that his attorney, Tyrone Moncriffe ("Moncriffe"), failed to object to the admission in evidence of a small steak knife, failed to file a motion for discovery or a motion to suppress evidence, and failed to obtain exculpatory evidence from the prosecutor. Additionally, Rose maintains that his attorney unwisely utilized "a woman scorned" theory as part of his trial strategy and failed to argue properly the motion for a new trial. Finally, Rose complains that his attorney failed to file a motion for instructed verdict based on the fundamentally defective nature of the indictment.

To prevail on an ineffective assistance of counsel claim, a habeas petitioner must satisfy a two-prong test. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Beets v. Scott, 65 F.3d 1258, 1273 (5th Cir.1995), cert. denied, 517 U.S. 1157, 116 S.Ct. 1547, 134 L.Ed.2d 650 (1996). First, he must show that counsel's performance was deficient in that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment" by demonstrating that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052; see Williams, 529 U.S. at 390-91, 120 S.Ct. 1495; Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir.1999); Boyd v. Johnson, 167 F.3d 907, 909 (5th Cir.), cert. denied, 527 U.S. 1055, 120 S.Ct. 20, 144 L.Ed.2d 824 (1999); Little v. Johnson, 162 F.3d 855, 860 (5th Cir.1998), cert. denied, 526 U.S. 1118, 119 S.Ct. 1768, 143 L.Ed.2d 798 (1999); Beets, 65 F.3d at 1272-73. To make this showing, he must overcome a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance. See Strickland, 466 U.S. at 698, 104 S.Ct. 2052; Kitchens, 190 F.3d at 701; Crane v. Johnson, 178 F.3d 309, 312 (5th Cir.), cert. denied, 528 U.S. 947, 120 S.Ct. 369, 145 L.Ed.2d 285 (1999); Ransom v. Johnson, 126 F.3d 716, 721 (5th Cir.), cert. denied, 522 U.S. 944, 118 S.Ct. 361, 139 L.Ed.2d 281 (1997); Amos v. Scott, 61 F.3d 333, 347 (5th Cir.), cert. denied, 516 U.S. 1005, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995); Teague v. Scott, 60 F.3d 1167, 1170 (5th Cir.1995). When reviewing such claims, "[j]udicial scrutiny of counsel's performance must be highly deferential," uncolored by "the distorting effects of hindsight." Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see Crane, 178 F.3d at 312; Boyd, 167...

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