CHARLES BLEIL, Magistrate Judge
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Tommy L. McCoy was in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, at the time this petition was filed. He has been paroled and currently resides in Aledo, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
In February 2000, McCoy was charged by indictment with two counts of possession of a controlled substance, namely dihydrocodeinone (hydrocodone), by fraud in the 297th District Court of Tarrant County, Texas. (Clerk's R. at 2.) The indictment also included enhancement and habitual offender notices. ( Id.) Following his trial in March 2000, a jury found McCoy guilty of both counts. ( Id. at 57.) Thereafter, McCoy entered pleas of true to the enhancement and habitual offender allegations, and the jury assessed his punishment at 45 years' confinement in each case, the sentences to run concurrently. ( Id. at 63, 66.) McCoy appealed his convictions, and the Second District Court of Appeals of Texas affirmed the trial court's judgment in an unpublished opinion on February 28, 2002. McCoy v. Texas, No. 2-00-103-CR (Tex.App.-Fort Worth Feb. 28, 2002) (not designated for publication). On October 30, 2002, the Texas Court of Criminal Appeals refused McCoy's petition for discretionary review. McCoy v. Texas, No. PDR No. 0668-02. McCoy did not seek writ of certiorari. (Petition at 3.)
On April 22, 2002, McCoy filed a state application for writ of habeas corpus raising the claims presented herein, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court on October 1, 2003. Ex parte McCoy, Application No. 54,856-01, at cover. McCoy filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on April 2, 2004. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
In four grounds, McCoy contends (1) there was no evidence that he possessed or attempted to possess 15 milligrams of dihydrocodeinone, (2) he received ineffective assistance of trial counsel, (3) he received ineffective assistance of appellate counsel, and (4) his due process rights were violated by prosecutorial vindictiveness. (Petition at 7-8 Supplement.)
E. RULE 5 STATEMENT
McCoy has sufficiently exhausted available state remedies on the claims presented as required by 28 U.S.C. § 2254(b)(1)(A).
F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court of the United States on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). A state court decision will be an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
Further, federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to both explicit findings of fact and those findings of fact implicit in the state court's mixed law and fact conclusions. Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir. 2001), cert. denied, 537 U.S. 883 (2002). The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Typically, when the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written opinion, as here, it is an adjudication on the merits, which is entitled to this presumption. Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002), cert. denied, 537 U.S. 1104 (2003); Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. No Evidence
In his first ground, McCoy contends there is no evidence that he possessed or attempted to possess 15 milligrams of dihydrocodeinone as defined by the Texas Health and Safety Code. (Petition at 7 Supplement.) This claim, however, is procedurally defaulted.
Although the Texas Court of Criminal Appeals's denied habeas relief on the findings of the trial court, there were no express findings as to this issue. See Ex parte Thurman, Application No. 53,226-03, at cover. Nevertheless, the Texas Court of Criminal Appeals has long held that the sufficiency of the evidence may only be raised on direct appeal, and may not be raised in a state habeas proceeding. See West v. Johnson, 92 F.3d 1385, 1389 n. 18 (5th Cir. 1996); Clark v. Texas, 788 F.2d 309, 310 (5th Cir. 1986); Ex parte McLain, 869 S.W.2d 349, 350 (Tex.Crim.App. 1994); Ex parte Brown, 757 S.W.2d 367, 368-69 (Tex.Crim.App. 1988); Ex parte McWilliams, 634 S.W.2d 815, 818 (Tex.Crim.App. 1982). Moreover, it recently confirmed that where a state habeas applicant challenges the sufficiency of the evidence in a state habeas application, and it subsequently disposes of the application by entering a denial without written order, the applicant's sufficiency claim was denied because the claim is not cognizable. See Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex.Crim.App. 2004). Thus, in these circumstances, reliance on the procedural default by the state court is established, and the doctrine is an adequate state procedural ground barring federal habeas review. See Ylst v. Nunnemaker, 501 U.S. 797, 801-07 (1991).
2. Ineffective Assistance of Counsel
In his second and third grounds, McCoy contends he received ineffective assistance of trial and appellate counsel. McCoy was represented at trial by Tom Cave, who is now deceased, and by Kimberly Kaufman on appeal. McCoy contends trial counsel was ineffective by (1) failing to communicate to the state his acceptance of a two-year plea offer, (2) failing to object to a void conviction used for enhancement, (3) failing to object to inadmissible expert testimony, and (4) failing to "raise a habeas corpus claim and file a motion for the tardiness of the indictment." (Petition at 7 Supplement.) McCoy contends appellate counsel was ineffective by failing to challenge the sufficiency of the evidence on appeal. ( Id.)
A criminal defendant has a constitutional right to the effective assistance of counsel at trial and on a first appeal as of right. U.S. CONST. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984); Anders v. California, 386 U.S. 738, 744 (1967). An ineffective assistance claim is governed by the standards set forth in Strickland v. Washington. 466 U.S. at 668. See also Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001), cert. denied, 534 U.S. 1163 (2002) (applying the Strickland standard to ineffective assistance claims against appellate counsel). To establish ineffective assistance of counsel a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for counsel's deficient performance the result of the proceeding would have been different. Strickland, 466 U.S. at 688.
A court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689. Where, as here, a petitioner's ineffective assistance claims have been reviewed on their merits and denied by the state courts, federal habeas relief will be granted only if the state courts' decision was contrary to or involved an unreasonable application of the standard set forth in Strickland. See Bell v. Cone, 535 U.S. 685, 698-99 (2002); Santellan v. Dretke, 271 F.3d 190, 198 (5th Cir. 2001), cert. denied, 535 U.S. 982 (2002).
Applying these principles and having independently reviewed each of McCoy's ineffective assistance claims in conjunction with the state court records, it does not appear that the state court's application of Strickland's attorney-performance standard was objectively unreasonable. Moreover, McCoy's arguments fall short of satisfying the prejudice element of Strickland — i.e., that the result of his trial or his appeal would have been different had counsel's performance not been deficient in any of those respects.
As noted, McCoy asserted his ineffective assistance claims in his state habeas application. Initially, the state trial court ordered that relief be denied on all claims without a hearing and without making express findings of fact. (State Habeas R. at 91.) The Texas Court of Criminal Appeals thereafter remanded the action to the trial court to conduct a hearing and make findings as to the nature of the plea offer made by the state and whether McCoy had timely informed his attorney that he wanted to accept this plea offer. Toward that end, the trial court entered the following findings:
. . .
4. The issue of the two-year plea offer was addressed in a preliminary hearing before the applicant's trial.
5. The trial prosecutor, Ms. Susan Hargis, stated that the two-year offer on this case was made in conjunction with a more substantial plea offer on a pending sexual assault charge.
6. Mr. Cave also stated that the two-year plea offer was in conjunction with another pending charge.
7. Ms. Hargis explained that, when the State determined that it could not proceed on the sexual assault charge, it withdrew the two-year plea offer.
8. The two-year plea offer was withdrawn at a plea hearing on February 10, 1999.
9. No new plea offer was made after the conjoined plea offer was withdrawn.
10. The two-year plea offer was never an independent offer for this case.
11. The two-year plea offer was made only in conjunction with a higher plea offer for the pending sexual assault charge.
12. The only independent offer for this case was a thirty-year offer, which was not concrete.
13. Mr. Cave did not fail to communicate the applicant's acceptance of a two-year plea offer in this case because there never was an independent two-year plea offer.
14. Mr. Cave acted as counsel guaranteed by the Sixth Amendment.
15. The applicant was not denied effective assistance of counsel. (1
st Supp. State Habeas R. at 3.)
Based on its findings, and applying the Strickland standard, the trial court determined that McCoy received effective assistance of counsel and again recommended denial of habeas relief. (1st Supp. Clerk's R. at 4.) The Texas Court of Criminal Appeals thereafter denied the state application based upon the trial court's findings. Ex parte McCoy, No. 57,343-02, cover. McCoy has failed to rebut the presumptive correctness of the state court's factual findings. Although he presents some evidence that counsel informed him in July and October 1999 that the two-year offer was "still on the table," the record supports the state court's findings that the two-year offer was withdrawn in February 1999 and that it was contingent upon a plea agreement in McCoy's sexual assault case. Thus, deferring to those findings, the state courts' application of the Strickland standard was not unreasonable, and the state courts' decision must be given the benefit of the doubt. See 28 U.S.C. § 2254(d)(2), (e)(1); Bell, 535 U.S. at 698-99; Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); Woodford v. Visciotti, 537 U.S. 19, 24 (2002); Williams, 529 U.S. at 399.
The remainder of McCoy's ineffective assistance claims also lack merit. In the absence of express findings of fact as to his remaining claims, a federal court may assume that the state court applied correct standards of federal law to the facts, unless there is evidence that an incorrect standard was applied, and imply fact findings consistent with the state court's disposition. Townsend v. Sain, 372 U.S. 293, 314 (1963); Catalan v. Cockrell, 315 F.3d 491, 493 n. 3 (5th Cir. 2002); Valdez, 274 F.3d at 948 n. 11; Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997).
The standards of Townsend v. Sain have been incorporated into 28 U.S.C. § 2254(d). Harris v. Oliver, 645 F.2d 327, 330 n. 2 (5th Cir. 1981).
McCoy contends counsel was ineffective because he "failed to object to [a] void conviction used for enhancement and improperly advised him to plead true to the habitual paragraph in the indictment that was void." (Pet'r Memorandum in Support at 7.) The habitual paragraph alleged a 1976 conviction for robbery in the Common Pleas Court of Miami County, Ohio. (Clerk's R. at 2.) McCoy argues that the conviction is void because "there was no jury waiver or oral waiver in the statement of facts and the court did not acknowledge him of his rights to jury trial" as required by Ohio law. (Pet'r Memorandum in Support at 9.) The only evidence in the record on this issue is found in the pen packet regarding the Ohio conviction introduced at trial as State's Exhibit 3. (5 Reporter's R. State's Exhibit 3.) An "Entry" therein reflects that on April 1, 1976, McCoy entered a guilty plea in the Ohio court to robbery and that, prior to accepting the plea, the court "explained the Defendant's rights to him." The document is signed by the assistant prosecuting attorney, the attorney for McCoy, and the state court judge. In the absence of contrary evidence, this "Entry" by the Ohio court is entitled to a presumption of regularity on this point. See Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985); Walker v. Maggio, 738 F.2d 714, 717 (5th Cir. 1984); Thompson v. Estelle, 642 F.2d 996, 998 (5th Cir. 1981). McCoy's mere assertions, without more, are insufficient to rebut this presumption. See Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983).
McCoy contends counsel was ineffective by failing to object to inadmissible expert testimony during the guilt/innocence phase of his trial. (Pet'r Memorandum in Support at 9-10.) McCoy was alleged to have possessed or attempted to possess not more than 15 milligrams of the controlled substance in question by forging a prescription for "Lorotab" and "Zantac." (5Reporter's R. State's Exhibit 1.) The following exchange occurred during the state's direct examination of Dr. Puskoor Kumar, a physician who had treated McCoy on several occasions and whose signature was forged on the prescription:
[PROSECUTOR]: And then I would like to ask you about the substance itself identified as Lortab. Would Lortab be the same thing as the following: Not more than 15 grams of Dihydrocodonone [sic] or Hydrocodone or any of its salts per dosage unit with one or more active non narcotic ingredients in recognized therapeutic amounts. Are those the same things?
[DR. KUMAR]: Yes. (3Reporter's R. at 17.)
McCoy argues that the doctor's qualifications to give an expert opinion to the prosecutor's question were never established as required by Texas Rule of Evidence 702. Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
TEX. R. EVID. 702.
Here, Dr. Kumar testified that he was a medical doctor specializing in psychiatry with the authority to write prescriptions for medications. (3 Reproter's R. at 11.) For purposes of Rule 702, this was sufficient to establish that Dr. Kumar has expertise as to the specific issue to which he testified. See Roise v. Texas, 7 S.W.3d 225, 234 (Tex.App.-Austin, 1999, pet. ref'd), cert. denied, 531 U.S. 895 (2000). Thus, any objection by counsel on Rule 702 grounds would have been futile. Counsel is not required to make futile objections. See Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990).
McCoy contends counsel was ineffective by failing to raise "a habeas claim for timeliness of indictment or move for dismissal for lateness of the indictment" as to count one based on article 32.01 of the Texas Code of Criminal Procedure and as a matter of due process. (Pet'r Memorandum In Support at 12-14.)
Article 32.01 of the Texas Code of Criminal Procedure provides:
When a defendant has been detained in custody or held to for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant on or before the last day of the next term of the court which is held after his commitment or admission to bail or on or before the 180
th day after the date of commitment or admission to bail, whichever date is later.
TEX. CODE CRIM. PROC. ANN. art. 32.01 (Vernon Supp. 2004).
McCoy alleges he was arrested for the offense on September 5, 1998. The record reflects he was originally indicted on October 27, 1998 in cause no. 0705285D. (Clerk's R. at 5.) The original indictment alleged in one count that on or about August 7, 1998, McCoy intentionally or knowingly possessed or attempted to possess the drug in question by misrepresentation, fraud, deception, or subterfuge or through the use of a fraudulent oral or telephonically communicated prescription. It also included an enhancement paragraph alleging a 1993 felony conviction for attempted burglary of a habitation in Tarrant County, Texas. ( Id.)
McCoy was reindicted on February 17, 2000 in cause no. 0759833R, and cause no. 0705285D was dismissed on the state's motion on February 29, 2000. ( Id. at 2, 6.) Count one of the new indictment alleged that on or about July 29, 1998, McCoy intentionally or knowingly possessed or attempted to possess the drug in question by misrepresentation, fraud, forgery, deception, or subterfuge or through the use of a fraudulent prescription form. Count two alleged possession or attempted possession of the drug in question by use of a fraudulent prescription form or through the use of a fraudulent oral or telephonically communicated prescription. The new indictment also included, in addition to the enhancement notice, an habitual offender notice alleging a 1976 felony conviction for robbery in Miami County, Ohio.
McCoy argues that count one of the reindictment "was passed over numerous times, which could have been presented to the Grand Jury on various occasions. As the Grand Jury met several terms according to Texas Govt Code Ann. Section 24.392 and 24.474" — i.e., that he was not timely indicted on count one of the reindictment. (Pet'r Memorandum in Support at 12.) The return of the original indictment, however, satisfied the time requirements of the state statutory provision. See TEX. GOV'T CODE ANN. § 24.474(c) (Vernon 2004). Under Texas law, article 32.01 has no application once an indictment is returned. See Tatum v. Texas, 505 S.W.2d 548, 550 (Tex.Crim.App. 1974). Thereafter, the state is not precluded from "advancing alternative theories or charges arising out of the same criminal transaction once the State has acted within the timetable prescribed by article 32.01 for initially securing a timely indictment." Cameron v. Texas, 988 S.W.2d 835, 843 (Tex.App.-San Antonio, pet. ref'd), cert. denied, 528 U.S. 1166 (2000).
Finally, McCoy contends appellate counsel was ineffective by failing to challenge the sufficiency of the evidence based on a fatal variance between the indictment and the proof at trial. (Pet'r Memorandum in Support at 14-17.) Under Texas law, a person commits an offense if he "possesses, obtains, or attempts to possess or obtain a controlled substance or an increased quantity of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge." TEX. HEALTH SAFETY CODE ANN. § 481.129(a)(5)(A) (Vernon 2003). A "controlled substance" is defined as a substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Groups 1, 1-A, or 2 through 4." Id. § 481.001(5). Not more than 15 milligrams of dihydrocodeinone (hydrocodone), or any of its salts, per dosage unit is listed under Penalty Group 3. Id. § 481.104(a)(4).
To prevail on a material variance claim, a defendant must prove (a) a variance between the indictment and the proof at trial, and (2) that the variance affected the defendant's substantial rights. See United States v. Herrera, 289 F.3d 311, 318 (5th Cir. 2002), cert. denied, 537 U.S. 1242 (2003). McCoy argues that there was no evidence to indicate that he possessed or attempted to possess 15 milligrams of dihydrocodeinone as alleged in the indictment. According to McCoy, the evidence adduced at trial, through the testimony of Dr. Kumar, showed that 15 grams (a lethal amount), not 15 milligrams, of dihydrocodeinone was the equivalent or the same thing as Lortab. (Pet'r Memorandum in Support at 16.)
Assuming the reporter's record accurately reflects the question posed by the state prosecutor, and set out above, an amount not more than 15 grams could be up to 100 times greater than the amount alleged in the indictment of not more than 15 milligrams. Under Texas law, however, when the indictment alleges a specific amount of controlled substance, evidence is sufficient if the state proves either that the amount of the controlled substance equals or exceeds the specific amount alleged. See Giddings v. State, 816 S.W.2d 538, 540-41 (Tex.App.-Dallas 1991, pet. ref'd). In any event, Dr. Kumar's testimony was sufficient evidence that McCoy possessed or attempted to possess the alleged amount, or a greater amount, of dihydrocodeinone, and any variance was immaterial.
4. Prosecutorial Vindictiveness
In his fourth ground, McCoy contends the state engaged in prosecutorial vindictiveness, thereby violating his due process rights, by reindicting him on the instant charges in retaliation for exercising his right to jury trial in his unrelated sexual assault case. (Pet'r Memorandum in Support at 18-21. The circumstances of this case, however, do not create a presumption of prosecutorial vindictiveness. The mere fact that McCoy requested a jury trial in the sexual assault case is insufficient to warrant a presumption that the state's reindictment in this case was solely to retaliate. See United States v. Goodwin, 457 U.S. 368, 379-80 (1982); Bordenkircher v. Hayes, 434 U.S. 357, 364-65 (1978). In a pretrial setting, a presumption of vindictiveness is inapplicable. See Goodwin, 457 U.S. at 381-84. A prosecutor's pretrial decision to modify the charges in a pending criminal prosecution, even if prompted by the failure of plea negotiations, is a proper exercise of prosecutorial discretion absent objective evidence of actual vindictiveness. See id. at 384.
II. RECOMMENDATION
McCoy's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until November 22, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until November 22, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.