JOHNNY RAY WHITE, Petitioner-Appellant, versus GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee.
No. 95-20383
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
March 21, 1997
Summary Calendar
March 21, 1997
Before GARWOOD, JOLLY and DENNIS, Circuit Judges.*
GARWOOD, Circuit Judge:
Petitioner-appellant Johnny Ray White (White), a Texas state prisoner serving a twelve-year sentence for possession of a controlled substance, filed the present federal habeas corpus petition. White appeals the district court‘s grant of the State‘s motion for summary judgment and denial of his petition. For the following reasons, we affirm.
* Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
On the evening of April 18, 1988, Officer Richard Rios of the Houston Police Department and his partner, Officer Higgins, were patrolling a section of Houston‘s east side, an area known for its large number of drug-related incidents. The officers pulled into the parking lot of the Ship Channel Motel and turned off their headlights. Shortly before 1:00 a.m., the officers saw two men in the parking lot of the motel. The officers turned on their headlights and headed in the direction of the two men. When the patrol car was approximately ten feet away from the men, Officer Rios saw one of the men, White, drop a small plastic baggie to the ground. Officer Rios retrieved the baggie, field-tested the substance contained in the baggie, and determined that it was cocaine. White was then placed under arrest.1 A chemist with the police department testified at trial that the bag contained approximately 75.3 milligrams of cocaine.
White was convicted of possession of a controlled substance in the 176th District Court of Harris County, Texas, and sentenced to a twelve-year prison term in the Texas Department of Criminal Justice. White‘s conviction was affirmed by the Court of Appeals for the Sixth District of Texas at Texarkana. No petition for discretionary review was submitted to the Texas Court of Criminal Appeals.
Standard of Review
This Court reviews a district court‘s grant of summary judgment de novo. Kopycinski v. Scott, 64 F.3d 223, 225 (5th Cir. 1995). The district court‘s findings of fact are reviewed for clear error and issues of law are reviewed de novo. Salazar v. Johnson, 96 F.3d 789, 791 (5th Cir. 1996). We review mixed questions of law and fact, such as ineffective assistance of counsel claims, de novo. Id.
When reviewing a state prisoner‘s allegation that there is insufficient evidence to support the conviction, we apply the standard established in Jackson v. Virginia, 99 S.Ct. 2781 (1979), that is, we must determine whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a
Analysis
White contends on appeal to this Court that the district court erred in granting the State‘s Motion for Summary Judgment. In support of his argument, White raises several points of error: (1) the district court erroneously applied the presumption of correctness to the state habeas court‘s findings of facts; (2) he was denied effective assistance of trial and appellate counsel; (3) he was denied a fair trial because the State failed to locate and subpoena witnesses, the State violated his discovery requests, and the jury was unfairly biased; (4) he was denied access to the state trial record; and (5) the evidence adduced at trial was insufficient to support his conviction. We discuss each point of error in turn below.
A. Presumption of Correctness
In granting the State‘s Motion for Summary Judgment, the district court applied a “presumption of correctness” to the state habeas court‘s findings of fact.2 Under
“(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
. . .
(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and
adequate hearing in the State court proceeding; or (7) that the applicant was otherwise denied due process of law in the State court proceeding . . . .”
28 U.S.C. § 2254(d) .
First, White contends that the district court erred in relying on the state habeas court‘s findings of fact because the state court did not resolve all the disputed facts.
In his habeas petitions, White alleged that he was denied his right to compulsory process and effective assistance of counsel because the State and his trial attorney failed to locate and subpoena potential witnesses, including Hatchet and Fields. The record shows, however, that with the exception of Hatchet, White never gave his trial attorney Jeffrey Reddall (Reddall) or the State the names of any of these potential witnesses. Further, White never described what any of these witnesses would have testified to or whether they would have testified at all. Based on these as well as other deficiencies, the state habeas court
As for the issues of jury misconduct, denial of exculpatory evidence, and denial of effective assistance of counsel, White makes only broad, conclusory allegations that unresolved factual disputes exist. He does not specify what facts the court failed to resolve or explain how any such factual disputes are material to his claims. We are satisfied that the state habeas court, in dismissing White‘s claims, considered and resolved all disputed facts with regard to these and other claims.
White also maintains that the district court erred in presuming the state habeas court‘s factual findings to be correct because the state court did not appoint an attorney to represent White in his state habeas action,
Finally, White claims that the court below erroneously applied the presumption of correctness because the state court‘s fact-finding procedure was neither “adequate” nor “full and fair.”
White insists, however, that the state habeas court‘s “paper hearing” was inadequate because different judges presided over his trial and state habeas proceedings and because the court, in making its findings of fact, relied on the State‘s proposed findings of facts and trial and appellate counsels’ affidavits without giving White an opportunity to submit his own proposed findings of facts. See Armstead v. Scott, 37 F.3d 202, 207 (5th Cir. 1994) (stating that “a presumption of correctness will not apply to a state court finding of fact if the factfinding procedure employed by the state court was not adequate to afford a full and fair hearing“), cert. denied, 115 S.Ct. 1709 (1995).
An evidentiary hearing in the state habeas court is not required every time the state habeas judge is different from the trial judge. Perillo v. Johnson, 79 F.3d 441, 445-47 (5th Cir. 1996). Rather, in our case-by-case review, the identity of the trial and state habeas judges is but one factor we consider when reviewing the adequacy and fairness of a particular paper hearing. Id. at 447; see also Pierce v. Scott, No. 94-20515, at 8-9 (5th Cir. July 3, 1995); Nethery v. Collins, 993 F.2d 1154, 1157 n.8 (5th Cir. 1993), cert. denied, 114 S.Ct. 1416 (1994). Although Judge Rains, the state habeas judge, did not preside over White‘s trial, he did preside over White‘s Motion for New Trial hearing.
White also complains that the court‘s fact-finding procedure was inadequate because the court deprived him of the opportunity to file his own proposed findings of fact. The state habeas court, after reviewing White‘s petition, requested affidavits from both trial and appellate counsel. The court provided in its January 22, 1992, order that White and the State had twenty days after the affidavits of trial and appellate counsel were filed within which to file any proposed fact findings. Reddall filed his affidavit on
In its fact-finding procedure, the court fully considered, inter alia, the state record, White‘s habeas petition, and the affidavits of Reddall and Laird, which together provided the court with sufficient information to make its findings of fact. White never gave the court any indication that he would provide the court with any new or different information that was not already included in his habeas petition. And as it turned out, White‘s proposed findings of fact and attached affidavit, which White so vehemently complains the court should have considered before making its findings of fact, contained the exact same conclusory allegations he made in his petition for writ of habeas corpus. We are convinced (and the record contains nothing suggesting the contrary) that had the state habeas court waited until White submitted his proposed findings of fact and affidavit before making its findings of fact, the court would not have altered its findings of fact in any way.5
B. Ineffective Assistance of Trial Counsel
In his petition, White raises numerous allegations of ineffective assistance by his trial counsel. He argues that his trial counsel, Jeffrey Reddall, was ineffective because he failed to (1) subpoena and interview certain named witnesses, and in particular, Curtis Hatchet; (2) investigate jury misconduct; (3)
To prove ineffective assistance of counsel, White must demonstrate both that (1) his attorney‘s representation was deficient, that is, it fell below an objective standard of reasonableness and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 104 S.Ct. 2052, 2064 (1984). The defendant has the burden of proving ineffective assistance. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). To show deficient performance, White must demonstrate that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Teague v. Scott, 60 F.3d 1167, 1170 (5th Cir. 1995). In order to prove that he was prejudiced, White must show “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 104 S.Ct. at 2068. A “court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 2065 (internal quotation and citation omitted). Failure to
1. Failure to Interview and Subpoena Witnesses
White alleges that he gave Reddall the names of potential defense witnesses, including Curtis Hatchet, Paula Fields, Dorothy Payton, Jessie Fargus, June Moore, Christopher Joseph, and Shandra White, and that Reddall should have interviewed or subpoenaed these witnesses, or at the very least, requested a continuance until these witnesses could be located. Reddall‘s failure to do any of the above, White argues, constituted deficient performance that prejudiced his defense. We disagree.
Adequately supported state habeas findings established that White never gave Reddall the names of any potential witnesses other than Curtis Hatchet and some unknown man named “Jessie.” With respect to Hatchet, White informed Reddall in their initial meeting that Hatchet was with him on the night he was arrested. When asked how Hatchet could be contacted, White told Reddall that Hatchet was his good friend and that he would contact Hatchet so that Reddall could interview him. On the day of the scheduled interview, White showed up alone and told Reddall that he could not locate Hatchet. Reddall later contacted White‘s previous attorneys, who told Reddall that they too had not been able to locate Hatchet.6 In the
Even if we were to assume, arguendo, that Reddall‘s inability to interview or subpoena these alleged witnesses constituted deficient performance, White has not shown that his defense was prejudiced because of the alleged deficiency. In order for White to demonstrate the requisite Strickland prejudice, he must show that these witnesses would have testified at trial and that their testimony would have been favorable to White. See Alexander, 775 F.2d at 602; Gomez v. McKaskle, 734 F.2d 1107, 1109-10 (5th Cir.), cert. denied, 105 S.Ct. 524 (1984). Nowhere in his brief to this Court does White discuss in any detail what information these particular witnesses had, what they would have testified to, or
Finally, White argues that Reddall‘s representation was ineffective because he did not interview State‘s witnesses Officer Rios and chemist K.K. Alexander, or Officer Higgins, who was with Officer Rios at the time of White‘s arrest. As with White‘s claim that Reddall failed to interview or subpoena defense witnesses, White never explains how Reddall‘s decision not to interview the State‘s witnesses resulted in actual prejudice to his defense. Hence, this claim fails as well.
2. Failure to Investigate Jury Misconduct
White alleges that he and Reddall were approached by two female jurors after the verdict and were told that other jurors persuaded them to change their verdict to guilty after discussing White‘s failure to testify and because White was seen in handcuffs when the jurors were on their lunch break. White claims Reddall provided ineffective assistance because he failed to investigate these claims. Both claims are addressed separately below.
a. Jury Discussion of White‘s Failure to Testify
White complains that Reddall should have investigated
Reddall‘s and Laird‘s accounts of the events are consistent with the record. Conversely, White has made only conclusory allegations without affidavits from any of the jurors or other evidence that would support his allegation of jury misconduct. See Barnett v. State, 847 S.W.2d 678, 679 (Tex.App.--Texarkana 1993) (explaining that “[c]onclusory allegations of jury misconduct are insufficient to require the court to grant a motion for new trial“). Because the evidence supports the state habeas court‘s implicit conclusion that the jury did not discuss or consider White‘s failure to testify during deliberations, Reddall‘s decision not to investigate the claim cannot possibly be construed as either deficient or prejudicial.
b. Jury‘s Seeing White in Handcuffs
White also claims that Reddall failed to provide effective assistance because he did not investigate White‘s claim that jurors changed their vote to guilty after seeing him in handcuffs. White asserts that while the jurors were on their lunch break during deliberations, they saw White being escorted to the lobby elevator in handcuffs. He claims that he informed Reddall of what had happened, but that Reddall did nothing to cure the problem. He
Again, the record supports the state habeas court‘s rejection of White‘s claim. Reddall testified at the new trial hearing that he first heard of the alleged handcuffing incident from Laird the day before the new trial hearing. Not surprisingly, Laird stated in his affidavit that he was not informed by White until the day before the new trial hearing that White‘s jury misconduct claim would include the allegation that the jury saw him in handcuffs.10 Laird‘s own investigation of possible jury misconduct, discussed above, revealed that nothing other than the evidence presented at trial influenced the jury‘s verdict. White did not raise this issue in his pro se original motion for new trial.
However, even assuming, arguendo, that the jury did see White in handcuffs, such a finding would not necessarily mean that he would be entitled to relief. A defendant is not necessarily prejudiced by a brief or incidental viewing by the jury of the
defendant in handcuffs. To receive some form of relief, the defendant must show he suffered actual prejudice from the exposure. King v. Lynaugh, 828 F.2d 257, 264-65 (5th Cir. 1987), vacated on other grounds, 850 F.2d 1055 (5th Cir. 1988), cert. denied, 109 S.Ct. 1563 (1989); United States v. Diecidue, 603 F.2d 535, 549-50 (5th Cir. 1979), cert. denied, 100 S.Ct. 1345 (1980); Wright v. Texas, 533 F.2d 185, 187-88 (5th Cir. 1976). “Defendants accused of crimes are . . . entitled to physical indicia of innocence in their jury trials. This Court has declared, however, that brief and inadvertent exposure to jurors of defendants in handcuffs is not so inherently prejudicial as to require a mistrial, and defendants bear the burden of affirmatively demonstrating prejudice.” Diecidue, 603 F.2d at 549 (citing Wright, 533 F.2d at 187).In Diecidue, the defendants were seen in shackles being led into or out of the courtroom and courthouse by jurors during jury selection and trial. The court upheld the lower court‘s decision to deny the defendants’ motions for a new trial because, as the court found, “the conditions under which defendants were seen were routine security measures rather than situations of unusual restraint such as shackling of defendants during trial” and were not such as to justify any assumption of prejudice. Id. at 549. See also Gates v. Zant, 863 F.2d 1492, 1502 (11th Cir.), cert. denied, 110 S.Ct. 353 (1989).
3. Failure to Inform White of Discovery Agreement
White complains that Reddall did not inform him of the discovery agreement that Reddall had with the State until the day of his trial. This claim is meritless, as the record shows that White was fully aware of the State‘s open file policy and that he never objected to this arrangement. Moreover, Reddall‘s representation would not be considered deficient even if, as White alleges, Reddall had not timely informed him of the discovery agreement. While counsel‘s failure to inform defendant of a plea offer or advise defendant of his right to appeal may constitute ineffective assistance of counsel, see Teague, 60 F.3d at 1170-71 (plea offer); Norris v. Wainwright, 588 F.2d 130, 135 (5th Cir.) (right to appeal), cert. denied, 100 S.Ct. 93 (1979), most decisions do not require consultation with the defendant. In this case, Reddall‘s decision to accept the State‘s offer to examine freely White‘s file cannot be considered so uniquely important a decision or development such that Reddall‘s failure to inform White of the agreement would constitute deficient performance. Moreover,
4. Failure to Present Any Defense
White‘s contention that Reddall failed to present any evidence or put on any defense is meritless. The evidence, implicitly credited by the state habeas court, shows that in preparing White‘s defense, Reddall met several times with White to review the facts of the case and discuss potential witnesses and defenses. Reddall reviewed the State‘s file on several occasions, filed numerous motions, and with little or no help from White, attempted to contact defense witness Curtis Hatchet. Reddall went to the crime scene and spoke with employees of the motel to determine if they knew of any facts or witnesses. At trial, Reddall called as a defense witness Ino Huang, manager of the Ship Channel Motel, to testify about the poor lighting at the motel parking lot and vigorously cross-examined the State‘s witnesses. We conclude, based on our review of the record, that White‘s claim in this respect lacks merit.
5. Failure to Obtain Full Discovery From the State
White claims that Reddall was ineffective because he failed to obtain from the State material requested in discovery motions. As a result of his attorney‘s inaction, White believes that he was deprived of defense witnesses, denied an opportunity to obtain a fingerprint analysis of the plastic baggie, and denied the opportunity to obtain witness statements to use for impeachment
Reddall filed with the Clerk of the Court and the District Attorney‘s Office numerous motions, including a Motion to Produce Exculpatory and Mitigating Evidence, Motion for Discovery of Witnesses Favorable to Defendant, Motion for Production of Witnesses Statements, Motion for the Discovery and Inspection of Evidence, and Motion for List of State‘s Witnesses. Reddall met with the prosecutor and they agreed on all items contained in the motions. Pursuant to their agreement, the prosecutor maintained an open file policy and allowed Reddall full access to White‘s file up until the date of trial. Evidence implicitly credited by the state habeas court reflects that Reddall informed White that the prosecutor agreed on all items in the discovery motion, and White did not object to the discovery agreement. Reddall‘s method of discovery with the State was neither deficient nor prejudicial to White.
6. Failure to File a Motion to Suppress
We likewise reject White‘s complaint that Reddall‘s decision not to file a motion to suppress the cocaine was deficient and prejudicial. There is nothing in the record that would indicate to us that any evidence used against White was obtained by the State through illegal activities or procedures so as to violate any of White‘s constitutional or statutory rights. Because there is nothing to indicate that White could have successfully suppressed any of the evidence used against him, Reddall did not render
7. Failure to Obtain Lab Report or Fingerprint Analysis
Next, White claims that Reddall‘s representation was ineffective because he failed to obtain a fingerprint analysis of the plastic baggie which contained the cocaine and a laboratory report on the substance in the baggie. The evidence presented at trial shows that Officer Rios saw White throw the baggie to the ground and that the tests conducted by both Officer Rios and chemist Alexander revealed that the substance was cocaine. White does not point to any evidence that would show that had Reddall conducted independent tests on the baggie or the cocaine, the results would have contradicted the State‘s evidence. See, e.g., Holdren v. Legursky, 16 F.3d 57, 63-64 (4th Cir.), cert. denied, 115 S.Ct. 106 (1994). White fails to demonstrate the necessary deficient performance and prejudice.
8. Failure to Object to Improper Comments by the Prosecutor
White‘s final ineffective assistance of trial counsel argument is that Reddall should have objected to comments made by the prosecutor during closing arguments. These allegedly improper comments included statements that the defense had the same subpoena power as the State, that Officer Rios saw White throw down the baggie because he was trained to always keep his eyes on a person‘s hands and any weapons the person might be holding, and that Curtis
These remarks were neither inflammatory nor misleading. The prosecutor stayed within the record, permissibly making summations and reasonable deductions from the evidence. Reddall‘s decision not to object to these statements was neither deficient nor likely to have actually prejudiced White‘s defense.
C. Ineffective Assistance of Appellate Counsel
White contends that his court-appointed appellate counsel, Jules Laird, was ineffective because he failed to raise the issue of jury misconduct through a motion for new trial or on appeal and failed to raise an ineffective assistance of trial counsel claim based on trial counsel‘s alleged failure to obtain full discovery from the State, defense witnesses, and exculpatory evidence.
To establish that appellate counsel rendered ineffective assistance, White must satisfy the standards set forth in Strickland, that is, White must show that (1) his appellate counsel‘s performance was so deficient as to fall below objectively reasonable conduct of appellate counsel and (2) appellate counsel‘s failure to perform according to reasonable professional standards actually prejudiced his appeal. United States v. Patten, 40 F.3d 774, 776-77 (5th Cir. 1994), cert. denied, 115 S.Ct. 2558 (1995); United States v. Merida, 985 F.2d 198, 202 (5th Cir. 1993).
Laird‘s decision not to raise the jury misconduct claim on
Moreover, Laird did not act unreasonably by deciding not to raise in White‘s new trial motion and on appeal White‘s claim that the jury saw him in handcuffs. Evidence credited by the state habeas court shows that prior to the new trial hearing, Laird spoke with White regarding the issues he wanted to raise on his appeal. White made no mention of the jury‘s having seen him in handcuffs. In fact, Laird did not learn of the handcuff allegation until Laird received White‘s Second Amended Motion for New Trial on the day
As to White‘s argument that Laird should have raised an ineffective assistance of trial counsel claim based on Reddall‘s alleged failure to obtain full discovery, defense witnesses, and exculpatory evidence, we conclude that this argument lacks merit. We have already rejected White‘s ineffective assistance of trial counsel claim with regard to these and other points of error; accordingly, White could not have prevailed on that claim on appeal. Thus, even assuming, arguendo, that Laird‘s performance was in some way deficient, White fails to satisfy the second prong of Strickland that he was prejudiced by appellate counsel‘s decision not to raise those issues on appeal.
D. Denial of Fair Trial
White maintains that he did not receive a fair trial because the State violated his
White contends that he was denied the right to compulsory process on witnesses favorable to the defense, namely Curtis
As we established earlier, the only potential defense witnesses named by White prior to trial were Curtis Hatchet and someone designated only as “Jessie.” Hence, White may not now complain that he was denied the right to have witnesses other than Hatchet testify on his behalf, as he never provided anyone with the names of these witnesses. In any event, White fails to explain how any of these witnesses were material to the defense, what they would have testified to, whether they were available to testify, or whether they were willing to testify at all. See Alexander, 775 F.2d at 602. Moreover, although a defendant is guaranteed the right to compulsory process for attendance of witnesses in his favor, the right proscribes “the government‘s making a witness unavailable and thereby preventing a defendant from interviewing and determining whether he will subpoena and call the witness in his defense. Thus, the government may not deny the defendant access to a witness by hiding him out.” United States v. Colin, 928 F.2d 676, 679 (5th Cir. 1991) (quoting United States v. Henao, 652 F.2d 591, 592 (5th Cir. Unit B 1981)). White does not argue that the State hid any of the witnesses or otherwise made them unavailable, nor does he dispute the State‘s assertion that it made an effort to serve Hatchet with a subpoena at his home address. And, as previously discussed, no one could find Hatchet, and White has not adequately explained in his brief or below just what Hatchet would testify to (and that he would testify).
As for White‘s remaining due process claims, the record shows that up until the date of trial, the State maintained an open file policy, allowing White‘s trial counsel full access to the State‘s files. Evidence credited by the state new trial and habeas court also shows that the jury verdict was in no way influenced by White‘s failure to testify or by the jury‘s seeing White in handcuffs. Accordingly, we reject White‘s compulsory process and due process claims.
E. Denial of Access to Trial Record
White also claims that, despite the district court‘s order that the State forward him those portions of the transcript referenced in the Motion for Summary Judgment, the State failed to provide him with such materials. The record indicates, however, that pursuant to the court‘s order, the State mailed White a complete copy of the state court record to White‘s prison unit. Also, in his appellate brief, White quotes directly from the record on several occasions, including quotes of alleged improper comments made by the prosecutor at trial. This claim is meritless.
Finally, White argues that the State did not present sufficient evidence to support his conviction. Specifically, he asserts that the State failed to prove that he was in possession of cocaine or that he intentionally or knowingly possessed cocaine. He also argues that the State failed to corroborate the testimony of its main witness, Officer Rios, either by producing physical evidence of the cocaine or through the testimony of another individual, such as Officer Higgins.
When analyzing the sufficiency of the evidence in a habeas corpus proceeding, we must refer to the substantive elements of the criminal offense as defined by state law. Foy v. Donnelly, 959 F.2d 1307, 1313-14 (5th Cir. 1992). “Under Texas law, [i]n order to establish the unlawful possession of a controlled substance the State must prove two elements: (1) that the accused exercised care, control and [or] management over the contraband, and (2) that the accused knew that the matter possessed was contraband.” Gilley v. Collins, 968 F.2d 465, 468 (5th Cir. 1992) (internal quotation and citation omitted).
Officer Rios testified that on the night of the arrest, he observed White with another unidentified male, at which time Officer Rios approached White in his patrol car and turned on the high beams. As White began walking in the opposite direction, Officer Rios noticed that White dropped a “little clear baggie on
K.K. Alexander, a chemist with the Houston Police Department, received State‘s Exhibit Number 2, the evidence envelope. Alexander testified that the envelope was sealed when he obtained it from the narcotic lock box, which can be opened only by the chemist. Alexander then tested the powdery substance by doing four color tests, one ultraviolet spectrophotometry, three thin-layer chromatography tests, and one microcrystalline test. Based upon these tests, Alexander concluded that the substance was cocaine. Alexander opined that the weight of the cocaine was 75.3 milligrams, or less than twenty-eight grams.
Based on our review of the evidence adduced at trial, and viewing the evidence in the light most favorable to the State, we conclude that a rational trier of fact could have found that White exercised care, control, and management over the cocaine and White intentionally and knowingly possessed the cocaine. Moreover, his attempt to abandon the cocaine, which he had personal possession of, is sufficient evidence from which a rational trier of fact could conclude that his possession of the substance was knowing.
Conclusion
For the foregoing reasons, the district court‘s summary judgment order denying White‘s petition for habeas corpus relief is AFFIRMED.
Notes
“the facts asserted in the affidavits of Jeffrey S. Reddall and Jules L. Laird filed in this cause are true and that said facts together with the contents of official court records demonstrate that the totality of the representation afforded Applicant was sufficient to protect his right to reasonably effective assistance of counsel at trial and on appeal.”
White also states in his affidavit in support of his Opposition to Respondent‘s Motion for Summary Judgment that some of these witnesses were present when he was arrested at the motel. However, he does not explain what each of the witnesses saw, what these witnesses would have testified to, or whether any of the witnesses would have testified at all.“[t]hese witnesses would have testified that (applicant) petitioner had no dope (cocaine), did not use cocaine, that Curtis Hatchet did not walk or run away when the officer approached and that officer Rios found a empty clear baggie by the dumpster, behind the building across the driveway, that petitioner was no where near the dumpster and there were many empty bags like the one officer Rios found.”
White has submitted nothing from any of the alleged uncalled witnesses, or from any third party, indicating what the testimony of the uncalled witnesses would have been; nor are his own allegations anything but conclusory in this respect.“Complaints of uncalled witnesses are not favored in federal habeas corpus review because allegations of what a witness would have testified are largely speculative. Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984). Where the only evidence of a missing witness’ testimony is from the defendant, this Court views claims of ineffective assistance with great caution. Schwander v. Blackburn, 750 F.2d 494, 500 (5th Cir. 1985).