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Muse v. Director Tdcj-Cid

United States District Court, E.D. Texas, Tyler Division

March 27, 2017

AARON LAMON MUSE, #1613149
v.
DIRECTOR, TDCJ-CID

          ORDER OF DISMISSAL

          Ron Clark, United Slates District Judge

         Petitioner Aaron Lamon Muse, an inmate confined in the Texas prison system, filed the above-styled and numbered petition for a writ of habeas corpus challenging his October 30, 2009 Smith County conviction for aggravated robbery in cause number 007-0413-09 of the 7th District Court of Smith County, Texas. See Petition at 2. (Dkt. # 1). The Twelfth Court of Appeals affirmed his conviction on direct appeal on May 31, 2011, in case no. 12-09-00370-CR. Id.; see also Muse v. State, 2011 WL 2130349 (Tex. App. - Tyler May 31, 2011, pet. ref'd).

         The federal petition was referred to United States Magistrate Judge K. Nicole Mitchell, who issued a Report and Recommendation on August 29, 2016, concluding that the petition for a writ of habeas corpus should be dismissed with prejudice. Muse filed objections, challenging the Report as to grounds 2, 5, 7, 8, 10, 12, 15, 17, 19, 20, 22, and 23. See Objections to Magistrate Judge's Report, at *1. (Dkt.#75). Muse also states that he wishes to waive grounds 1, 3, 4, 6, 9, 11, 13, 14, 16, 18, 21, and 24. See id.

         Standard of Review and Reviewability

         Where a magistrate judge's report has been objected to, the district court reviews the recommendation de novo pursuant to Federal Rule of Civil Procedure 72. See also 28 U.S.C § 636(b) (1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made.”). During a de novo review a court examines the entire record and makes an independent assessment of the law. When no objections are filed, petitioner is barred from de novo review by the district judge of those findings, conclusions, and recommendations and, except upon grounds of plain error, from appellate review of the unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir.1996) (en banc ).

         Muse attempts to enlarge certain claims in his objections. Compare Objections at 1-50 with Fed. Pet. at 6-16.1 Most of what Muse filed originally including his supporting memorandum was stricken by this Court. See Dkt. #2-5, 43. The only arguments before the Court are those presented in his federal petition. See Cupit v. Whitley, 28 F.3d 532, 535 n.5 (5th Cir.1994); see also Paterson-Leitch Co. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985, 990-91 (1st Cir. 1988)(explaining that a party “has a duty to put its best foot forward” before the Magistrate Judge-i.e., “to spell out its arguments squarely and distinctly” and does not allow him to raise expanded or new allegations not before the Magistrate Judge). This court will not review new claims presented for the first time in Petitioner's objections. See Long v. McCotter, 792 F.2d 1338, 1345 (5th Cir. 1986) (“we ordinarily do not consider issues that have not been presented to the court of first instance”). Therefore, the court is not considering these new arguments raised by petitioner in his objections to the Report.

         AEDPA imposes an almost-complete bar to relitigation of any constitutional claim that was adjudicated on the merits in state court. See 28 U.S.C. § 2254(d) (West 2016). The statute provides three narrow “exceptions to § 2254(d)'s relitigation bar.” Harrington v. Richter, 562 U.S. 86, 100-101 (2011). To satisfy one of those exceptions, the prisoner must show (1) that the state court's decision was contrary to federal law that was clearly established in Supreme Court holdings, 28 U.S.C. § 2254(d)(1); (2) that the decision was an unreasonable application of such law, id.; or (3) that the decision was based on an unreasonable factual determination, id. § 2254(d)(2) (West 2016).

         To award habeas relief to a prisoner in state custody, a federal court must consider every justification that the state court provided - and it must hypothesize every justification that the state court could have provided - and conclude that the denial of habeas relief is so outrageous and unreasonable that every fairminded jurist unanimously would condemn it. Richter, 562 U.S. at 101-102. AEDPA also provides that the state court's factual findings “shall be presumed to be correct” unless the petitioner carries “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “The presumption of correctness not only applies to explicit findings of fact, but it also applies to those unarticulated findings which are necessary to the state court's conclusions of mixed law and fact.” Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001).

         The presumption of correctness is especially strong when the trial court and the habeas court are the same. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000); Amos v. Scott, 61 F.3d 333, 347 (5th Cir. 1995); James v. Collins, 987 F.2d 1116, 1122 (5th Cir. 1993). When a state trial judge is also the judge hearing the state habeas claim, that judge is in an optimal position to assess the credibility of the affidavits. The state judge had the benefit of observing the witnesses and attorneys and hearing testimony at trial. The state trial judge could make credibility determinations based on the demeanor of the witnesses he heard at trial, without holding a separate hearing to take live testimony from the witnesses. Baldree v. v. Johnson, 99 F.3d 659, 663 (5th Cir. 1996); see also Buxton v. Collins, 879 F.2d 140, 146 (5th Cir. 1989). The record indicates that the Honorable Kerry Russell presided over both the trial and state habeas proceeding; consequently, his findings are entitled to additional deference. See SHCR-13 at cover (Clerk's Summary Sheet). The adjudication of Muse's claims in state court was not so outrageous and unreasonable that every fairminded jurist unanimously would condemn it.

         Discussion of Petitioner's Objections

         I. Tampering with the Evidence (ground two).

         Muse re-urges his claim that the State planted a pair of his tennis shoes at the crime scene. See Objections at 2-8. Muse claims the tennis shoes were initially depicted sitting on the tailgate of his father's truck, then planted in his mother's house. See id. at 2. According to Muse, the State then altered a photograph of the shoes making them appear to be lying on “‘green-colored' carpet.” See Id. at 2. Muse specifically claims that the Court should have held an evidentiary hearing to explore his evidence-tampering claim and that it should have granted his motion to hire a forensic video examiner to determine whether there was tampering. See Objections at 8-9.

         This is a new claim by Muse. He did not claim in his federal petition that the State manipulated the photograph of the shoes by adding a “green-colored” carpeted background. See Fed. Pet. at 6. Further, the Report correctly states that the planted-evidence claim was fully vetted not only during the state-habeas process but also at trial. See Report at 8-9. A jury heard this argument and found it unpersuasive as did the judge who presided over both his state-habeas application and his trial. Judge Russell found:

“There is no evidence in the record of this case that the State, this Court, the official court reporter of this Court, or any member of law enforcement involved in the investigation and/or prosecution of this case, tampered with or altered or replaced or substituted any piece of evidence before, or after, it was admitted into evidence at the trial of this cause.”

SHCR-13 at 895.

         Judge Russell's findings are accorded additional deference. See Clark, 202 F.3d at 764. Further, sufficient evidence besides the alleged planted shoes linked Muse with the robbery. See Muse v. State, No. 12-09-00370-CR, 2010 Tex.App. LEXIS 10418, at **1-5 (Tex. App.-Tyler 2010, pet. ref'd).

         Muse's request for an evidentiary hearing on this issue is denied. The Fifth Circuit has “repeatedly found that a paper hearing is sufficient to afford a petitioner a full and fair hearing on the factual issues underlying his claims, especially where . . . [as here] the trial court and the state habeas court were one and the same.” Murphy v. Johnson, 205 F.3d 809, 816 (5th Cir. 2000); see also Perillo v. Johnson, 79 F.3d 441, 446-47 (5th Cir. 1996). As the state-habeas trial court noted and as Muse acknowledges, there is a substantial amount of documentation already found in the record. Where the record is fully documented, a district court does not abuse its discretion in failing to hold an evidentiary hearing. See id.

         Since Judge Russell presided over both Muse's trial and state-habeas application, he had firsthand knowledge of the proceedings. His findings are afforded an additional presumption of correctness. See Clark v. Johnson, 202 F.3d 760, 765 (5th Cir. 2000); see also Perillo, 79 F.3d at 446-447).

         Moreover, the Supreme Court held that a federal court cannot expand the record on a claim adjudicated on the merits in state court. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). Specifically, the Court said, “We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Id. Issues that are mixed questions of law and fact are evaluated under section 2254(d)(1). Martin v. Cain, 246 F.3d 471, 475-476 (5th Cir. 2001). Section 2254(d)(1) is the standard of review this Court will apply in evaluating Muse's Sixth Amendment claim under Strickland v. Washington, 466 U.S. 668 (1984). See Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir. 2010) (“Claims of ineffective assistance of counsel involve mixed questions of law and fact and are governed by § 2254(d)(1).”). Claims concerning prosecutorial misconduct are mixed questions of law and fact. Brazley v. Cain, 35 F. App'x 390, 2002 WL 760471, at *4 n. 4 (5th Cir. Apr. 16, 2002); see also United States v. Emueqbunam, 268 F.3d 377, 403-04 (6th Cir.2001); Jones v. Gibson, 206 F.3d 946, 958 (10th Cir.2000); United States v. Noriega, 117 F.3d 1206, 1218 (11th Cir.1997); United States v. Spillone, 879 F.2d 514, 520 (9th Cir.1989).

         These claims were adjudicated on the merits in state court. See SHCR-10 at 894-897. Consequently, this Court's review of these claims is limited to the record that was before the state court. See Pinholster, 131 S.Ct. at 1398. Ultimately, the hearing will have “no bearing” on this Court's ultimate decision. See id. at 1400.

         Finally, there is no real factual dispute that, if resolved in Muse's favor, would entitle him to relief. See Murphy, 205 F.3d at 816. His prosecutorial misconduct claim rests on an allegation that the police planted a pair of black tennis shoes. The jury heard that argument and disbelieved it. See V RR 182-183. Judge Russell found that there was no evidence that the tennis shoes were taken out of the truck and planted in Muse's house. V RR 212. Judge Russell made the same conclusion in Muse's state habeas application. SHCR-13 at 895. The claim must also be weighed against all the evidence supporting the verdict, such as the presence of his DNA on the clothes worn by the suspect. See Muse, 2010 Tex.App. LEXIS 10418, at **14-17; see also Resp. to Mot. for an Evid. Hrg. at 2-3. (Dkt. #46).

         Muse is not entitled to an evidentiary hearing, nor is he entitled to a forensic examiner. A federal habeas court may authorize funding for investigative, expert, or other services upon finding that such services are “reasonably necessary for the representation of the defendant[.]” 18 U.S.C. § 3599(f) (West 2016). The Fifth Circuit has construed “reasonably necessary” to mean that an indigent petitioner “must demonstrate a ‘substantial need' for the requested assistance.” Riley v. Dretke, 362 F.3d 302, 307 (5th Cir. 2004); Clark v. Johnson, 202 F.3d 760, 768 (5th Cir. 2000), and Fuller v. Johnson, 114 F.3d 491, 502 (5th Cir. 1997). Muse has not shown a “substantial need” for an investigation. Muse presented his evidence tampering argument at trial. Judge Russell found that the claim had no merit. See Report at 9-10; SHCR-13 at 895. This objection is overruled.

         II. False, Misleading, or Perjured Testimony (ground five).

         In his fifth ground, Muse claims that the DPS chemist, Melissa Haas, “conveyed an impression to the jury which she or the state knew to be false.” See Objections at 8. Haas testified that she looked for a “full DNA Profile” using “body fluids such as blood, semen, sweat, saliva, and even in some cases urine”. See id. at 10. Muse claims that she gave the jury a false or misleading impression when she testified that she had “extracted a ‘full DNA Profile' (Vol. IV, RR, page 108, lines 8-9) from the firearm allegedly belonging to the petitioner and at least one unknown contributor. Muse claims Haas mislead the jury when she did not identify the types of “biological evidence” like his “blood, semen, saliva, sweat, or urine.” See id. Muse claims t h e testimony was therefore impermissibly “vague”. See id.

         The State cannot knowingly use perjured testimony or allow perjured testimony to go uncorrected. See Napue v. Illinois, 360 U.S. 264, 269 (1959); Giglio v. United States, 405 U.S. 150, 154 (1972). To prove a due process violation in such a case, a petitioner must demonstrate (1) that the testimony in question was actually false, (2) that the prosecutor was aware of the perjury, and (3) that the testimony was material. Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir. 1996).

         Perjured testimony is material only when “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Barrientes v. Johnson, 221 F.3d 741, 756 (5th Cir. 2000); see United States v. Washington, 44 F.3d 1271, 1282 (5th Cir. 1995) (materiality prong not met where allegedly perjurious statements “have nothing to do ...


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