MEMORANDUM OPINION AND ORDER
HAYDEN HEAD, District Judge.
In 2004, Richard Nickleson was convicted by a jury of murder in Nueces County, Texas and he was sentenced to 38 years imprisonment. Nickleson claims his constitutional rights were violated in a number of ways during his trial. Pending before the Court is Respondent's motion for summary judgment on Nickleson's application for federal writ of habeas corpus. D.E. 8.
The United States Magistrate Judge wrote a detailed Memorandum and Recommendation (M&R) in which she reviewed the evidence and procedural history in detail. D.E. 13. The Court will not repeat that information. The M&R recommends the Court grant Respondent's motion and dismiss Nickleson's claims on their merits. D.E. 13. Nickleson filed objections and also supplemented the Court's record with his State Court Memorandum of Law. D.E.17. See WR68, 461-03, p. 38 (referencing memorandum filed). Thaler did not object to the supplementation.
This Court originally granted Thaler's motion for summary judgment, dismissed Nickleson's motion with prejudice and denied him a certificate of appealability. D.E. 19. The Court then vacated the order and subsequently appointed habeas counsel for Nickleson. D.E. 20, 28.
NICKLESON'S OBJECTIONS TO THE M&R
Nickleson filed objections to the Magistrate Judge's recommendation that the motion for summary judgment should be granted. His first objection is that there is no evidence that the jury followed the trial court's instruction to disregard the prosecutor's question informing a witness that Richard Nickleson had previously been convicted of a felony. In his second issue, Nickleson complains that the trial court's overruling of counsel's objections of Rule 403 and 404(b) grounds to the evidence that Richard Nickleson gave the decedent a rock of cocaine in exchange for the use of the decedent's car had to be harmful, rather than harmless. Next, Nickleson complains that the evidence was legally insufficient. Finally, Nickleson objects to the M&R's resolution of two of his ineffective assistance of counsel claims.
The Court reviews de novo a Magistrate Judge's Memorandum and Recommendation if a party files specific objections within ten days of service. 28 U.S.C. 636(b)(1).
1. The trial court's instruction to disregard the prosecutor's question regarding Nickleson's prior felony conviction
During examination of one of the scene witnesses, the prosecutor asked the witness if she knew that Richard Nickleson had previously been convicted of a felony offense. Defense counsel objected. The trial judge instructed the jury to disregard the prosecutor's statement.
Nickleson claims that the question prejudiced the jury against him. The M&R recommended that this claim be denied on the grounds that the state appellate court held that any prejudice caused by the admission of the evidence of Nickleson's prior conviction was cured by the trial court's instruction and that the State's application of federal law was not contrary to or an unreasonable application of Supreme Court law. M&R at p. 9-11. This Court agrees. The Court overrules Nickleson's objection.
2. Trial court's admission of evidence that Nickleson traded crack cocaine for use of decedent's vehicle the morning of the shooting
Trial counsel objected to the admission of evidence at trial that Nickleson traded a rock of crack cocaine to the victim of the shooting for the use of his car the morning of May 25, 2003. The trial court overruled the objection and denied the motion for mistrial that followed outside the presence of the jury. The Court of Appeals held that the trial court did not abuse its discretion in admitting the evidence because the probative value of the evidence, as potential for motive for murder, was not substantially outweighed by the prejudice caused by the evidence. D.E. 13, p. 12. The M&R recommended that summary judgment be granted because Nickleson "produced neither evidence nor argument to support his contention that admission of the evidence regarding the drug transaction substantially swayed the jury or otherwise constituted a denial of fundamental fairness in his trial." Id. Nickleson's objection is overruled.
3. Sufficiency of the evidence
The state court of appeals reviewed the sufficiency of the evidence under the familiar Jackson v. Virginia , 443 U.S. 307 (1979), standard. That standard reviews the evidence in the light most favorable to the prosecution and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. Although Nickleson argues that the evidence also supports an inference that some third person shot the victim, that is not the test. Although the evidence of Nickleson's guilt is not overwhelming, there is evidence, as set out in the Court of Appeals' opinion and the M&R, from which a reasonable person could conclude beyond a reasonable doubt that Nickleson shot Martin Sandoval. D.E. 13, pp. 13-15. Nickleson's objection to the M&R on this issue is overruled.
Nickleson next objects to the M&R's resolution of two issues of ineffective assistance of counsel relating to the testimony of Lt. Roy Gardner and the prosecutor's closing argument. Because Nickleson's complaints were unclear in the absence of Nickleson's state writ memorandum of law, the M&R recommended that summary judgment be granted. Nickleson filed the memorandum of law. Because this Court now has the benefit of the portion of the record that was not available to the Magistrate Judge, the Court considers Nickleson's claims of ineffective assistance of counsel that are included in that portion of the record.
ADOPTION OF THE M&R IN PART
The Court has reviewed the pleadings, the state court records, including the supplement and the Magistrate Judge's M&R. This Court adopts the Magistrate Judge's findings and conclusions on the following claims, Request for Mistrial, Objection Pursuant to Rules 403, 404(b) of the Texas Rules of Evidence, Sufficiency of the Evidence, and Ineffective Assistance of Counsel as to Juror No. 6.
In his motion for relief pursuant to 28 U.S.C. 2254, Nickleson claims that his counsel was ineffective during trial and references his state memorandum of law for a full discussion of his claims. D.E. 1, p. 8, D.E. 2, pp. 8, 9 (referencing pp. 6-16 of his state writ). Nickleson claims that counsel was ineffective on the grounds that he did not file a pretrial motion to exclude the hearsay testimony of Lt. Gardner. Nickleson's state memorandum complains that counsel failed to object to misleading and incorrect argument by the State, including the prosecutor's vouching for the state's witness, Lt. Roy Gardner. D.E. 17 at pp. 8-10. Nickleson quoted some of the objectionable portions of the trial testimony and closing argument in his memorandum. The Court finds that Nickleson's factual concerns are specific enough to address, now that the Court has the supplemented record.
INEFFECTIVE ASSISTANCE OF COUNSEL
A. Counsel's Failure to Exclude Testimony of Lt. Gardner
1. Factual background
The Court adopts the M&R's description of events, but expands the discussion of the testimony of Guy Nickleson and Lt. Gardner to address Nickleson's remaining claims. On May 25, 2003, Martin Sandoval was shot around 10 that Sunday morning. Police officers were looking for Richard Nickleson by noon to question him about the events of that morning. Sometime after noon, Troy Nickleson, Richard Nickleson's uncle, started trying to reach Corpus Christi police officers that he knew from his work. Troy Nickleson worked in the Corpus Christi School District as an Intervention Prevention Specialist working with at-risk students, and previously worked with the school district as an investigating officer and in security. RR 6:13.
After 3:30 p.m. the afternoon of Sunday May 25, 2003, Lt. Gardner returned Troy Nickleson's telephone call and went to the Nickleson house on Peabody in Corpus Christi, Texas. Richard Nickleson was there. After advising Richard Nickleson of his Miranda rights, Lt. Gardner took him to the Corpus Christi Police Department. He was released later that night. Richard Nickleson was arrested several days later.
At trial, the prosecutor called Guy Nickleson to the witness stand towards the end of the first day of the two day trial. RR 6:253. The questioning on direct was as follows:
A. My name is Guy Nickleson.
Q. Okay. Mr. Nickleson, what is your relationship to the Defendant in this case, Richard Nickleson?
A. I'm his uncle.
Q. Okay. Are you familiar with the events that happened on May 25 of 2003?
A. Yes, I am.
Q. Okay. Let me ask you this, was there a time that you made contact with an Officer Gardner regarding your brother, I mean, your nephew, Richard Nickleson?
A. Yes, when he came over to my mother's house on that day.
Q. Okay. You wanted to have Officer Gardner deal with your nephew, is that correct?
A. My mother had asked if we knew an officer that would come and - Well, what happened was we had two investigators that came to the house and they told my mom that they was looking for my nephew, and so she asked if we could get an officer to come and have him to escort Richard, but they never did say if ...