JEFF KAPLAN, United States District Judge.
Petitioner Timothy Randolph Wallace, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner was convicted of aggravated robbery with a deadly weapon and sentenced to 37 years confinement. His conviction and sentence were affirmed on direct appeal. Wallace v. State, 2001 WL 225367 (Tex.App.-Dallas, Mar. 8, 2001, pet. ref'd). Petitioner also filed seven applications for state post-conviction relief. Three applications were dismissed because a direct appeal was pending. Ex parte Wallace, No. 12,789-02 (Tex.Crim.App. Sept. 27, 2000); Ex parte Wallace, No. 12,789-03 (Tex.Crim.App. Nov. 1, 2000); Ex parte Wallace, No. 12,789-04 (Tex.Crim.App. Oct. 31, 2001). The fourth and fifth applications were denied without written order. Ex parte Wallace, No. 12,789-05 (Tex.Crim.App. May 29, 2002); Ex parte Wallace, No. 12,789-06 (Tex.Crim.App. Jun. 19, 2002). The last two applications were dismissed as successive. Ex parte Wallace, No. 12,789-07 (Tex.Crim.App. Aug. 21, 2002); Ex parte Wallace, No. 12,789-08 (Tex.Crim.App. Oct. 30, 2002). Petitioner then filed this action in federal court.
II.
Petitioner raises three broad issues in multiple grounds for relief. Succinctly stated, petitioner contends that: (1) he received ineffective assistance of counsel; (2) his brother was improperly impeached with evidence of remote prior convictions; and (3) the prosecutor made an improper jury argument.
As a preliminary matter, respondent argues that some of these claims are barred from federal habeas review. The court will address the procedural bar issue first.
A.
A federal court may not consider the merits of a habeas claim if a state court has denied relief due to a procedural default. Sawyer v. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992). Only procedural rules that are firmly established and regularly followed by state courts can prevent habeas review of federal constitutional rights. Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426, 72 L.Ed.2d 824 (1982). Article 11.07 of the Texas Code of Criminal Procedure prohibits a second habeas petition if the petitioner urges grounds therein that could have been, but were not, raised in his first writ. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2002). This statute constitutes an adequate state procedural bar for purposes of federal habeas review. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied, 115 S.Ct. 2603 (1995).
The statute provides, in relevant part, that:
(a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or
(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt.
TEX. CODE CIUM. PROC. ANN. art. 11.07, § 4(a).
As part of his ineffective assistance of counsel claim, petitioner argues that his attorney: (1) failed to challenge the sufficiency of the indictment; and (2) should have inquired into the lighting conditions at the scene of the crime. (Hab. Pet. at 7, ¶ A). These claims were raised for the first time in a state writ that was dismissed as successive under article 11.07, § 4. Ex parte Wallace, No. 12,789-07 at cover. No explanation is offered to excuse this procedural default. Consequently, federal habeas relief is not proper. See Fearance, 56 F.3d at 642.
B.
Petitioner further contends that defense counsel was ineffective for: (1) allowing evidence of his criminal record to "come out" during trial; and (2) ignoring his mental disorder by forcing him to make a "split-second" decision whether to call alibi witnesses. These claims, which were properly raised in state court, are not procedurally barred from federal habeas review.
1.
The standard of review in federal habeas proceedings is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Under the AEDPA, a petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding 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] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An "unreasonable application" of clearly established federal law is one in which "the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id., 120 S.Ct. at 1523. A state court decision is entitled to deference unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 121 S.Ct. 2001 (2001). A presumption of correctness attaches to factual determinations made by a state court. 28 U.S.C. § 2254(e)(1). A habeas petitioner must rebut this presumption by clear and convincing evidence. Id.; Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998), cert. denied, 119 S.Ct. 1339 (1999).
2.
In order to obtain federal habeas relief due to ineffective assistance of counsel, a petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner first must demonstrate that counsel's performance fell below an objective standard of reasonableness. Id., 104 S.Ct. at 2064. He then must show how this deficiency prejudiced the defense. Id. at 2067. Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 2068. See also Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (habeas petitioner must show that trial result was unreliable or proceeding fundamentally unfair due to deficient performance of counsel). There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 110 S.Ct. 1311 (1990). Habeas relief is not available unless the petitioner affirmatively shows how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
3.
Petitioner criticizes defense counsel for allowing the prosecutor to elicit his criminal record through the testimony of his brother, Chris Wallace. At trial, Chris testified that he and petitioner were working on a plumbing job for Curtis Bailey in Irving, Texas until 2:00 p.m. on February 3, 1999, the time the robbery allegedly occurred. (SF-III at 120-123). An invoice for that job was authenticated by Chris and introduced into evidence. ( Id. at 122; Def. Exh. 2). On cross-examination, the prosecutor asked Chris why he never brought this evidence to the police, the district attorney, or the grand jury. Chris responded:
Earlier in the trial, Ally Street testified that she was robbed at gunpoint at approximately 2:00 p.m. on February 3, 1999, while working at the WOW Gallery in Dallas, Texas. (SF-III at 8-10).
A: Hey, I figured they must want him or something like that because he's been —
Q: Why did you figure they must want him?
* * *
A:
Because he's been in and out of trouble and he's the unluckiest guy.
( Id. at 130-31) (emphasis added). Defense counsel objected to this line of questioning as "prejudicial" and "improper examination." ( Id. at 131). Before the trial court could rule on the objection, the prosecutor changed the subject. A short time later, the prosecutor asked for a bench conference and the following colloquy occurred outside the presence of the jury:
[THE COURT]: All right. Back on the record. Let the record reflect that we're outside the presence of the jury. The State's indicated that they wish to introduce the defendant's prior record through the witness on the stand based on the witness's prior statements, and I've told them that I'm not going to allow them to do that at this point in time. Mr. Johnson has something that he wants to put on the record. It's outside the presence of the jury.
[DEFENSE COUNSEL]: Yes, sir. Before we took this last immediate break, the State indicated at the bench conference that they intend to try to elicit the defendant's criminal history though this particular witness. I would like to point out and the record shows at this time that I have clearly and unmistakably objected to this entire line of questioning because we believe it's been improper and we believe the Court should sustain the objection and not allow the State to ask open-ended questions seeking to elicit an answer by this defendant (sic) that would go into the prior criminal history of the defendant. We believe that that line of questioning was improper. We would state that they knew exactly what they were doing and they were seeking to do it. And the State's response is he's opened the door by the way he responded, is a legal fallacy. A witness himself cannot open a door through cross-examination by the State to go into any prejudicial material that hasn't been opened by the defense counsel.
* * *
This was strictly — my questioning went to the defendant's whereabouts on one particular afternoon on February 3rd, and the Court has allowed the State now to come out and ask open-ended questions about the defendant's prior criminal history, why they don't think he's this kind of criminal and it's certainly prejudicial. And we're going to ask the Court give the jury an instruction to disregard the witness's response in that regard, and it's unduly prejudicial. They're improperly asked and answered, and we're going to ask the Court to instruct the jury to disregard all of that.
[THE COURT]: So that the record is clear without commenting on the defense counsel's perception of the law or legal reasoning, clearly reviewing the question of the State as to whether or not the defendant — or the witness had taken certain information to the grand jury, appears in no way, form or fashion to attempt to elicit the information the witness gave. His answer was completely out of context, and it appearing from the record that he continued to give the answers, even over objections, and the Court attempting to make a ruling. However,
I am instructing the State that they cannot go into the defendant's record at this point in time, and I'll place an instruction in the Court's Charge regarding any of his testimony when we get to it.
( Id. at 136-37) (emphasis added). The prosecutor complied with this bench ruling and did not question Chris further regarding petitioner's criminal record.
The state habeas court found that counsel objected to questions regarding petitioner's prior criminal history and "the State made no attempt to introduce such evidence." (St. Hab. Tr.-V, Supp. at 32). This finding is clearly supported by the record and manifestly reasonable in light of the evidence presented in the state court.
4.
Petitioner also contends that counsel was ineffective for ignoring his mental disorder and forcing him to make a "split-second" decision whether to call his brother and Curtis Bailey as alibi witnesses. Significantly, petitioner does not allege that he was incompetent to stand trial or unable to assist in the preparation of his defense. Instead, he criticizes his attorney for failing to recognize the symptoms of paranoid schizophrenia and giving him only 10 minutes to decide whether to call these witnesses.
The court initially observes that petitioner, by his own admission, was not diagnosed with paranoid schizophrenia until March 2002 — more than two years after his trial. (Pet. Br. at 5). Absent some objective manifestation of this disease that would have been obvious to a lay person, there is no reason for counsel to suspect that petitioner suffered from a mental disorder that may have impaired his judgment. Moreover, the state habeas court rejected the petitioner's argument that he was forced to make a "split-second" decision whether to call alibi witnesses:
This cannot be true. Witnesses must be subpoenaed and prepared for trial. The witnesses in this case were alibi witnesses and appeared to be fully prepared for trial. The court finds that Applicant was not forced to make a split second decision in this case. The decision to present alibi witnesses was made well in advance of trial. As Applicant's paranoid schizophrenia was just recently diagnosed, this court cannot find counsel ineffective for not knowing of the condition.
(St. Hab. Tr-VI at 36). Petitioner has failed to adduce any evidence, much less clear and convincing evidence, to rebut this finding. Nor has he shown how the testimony of his brother and Curtis Bailey prejudiced the defense. His conclusory assertions are insufficient to merit habeas relief. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (habeas petitioner must show how alleged errors and omissions were constitutionally deficient).
C.
Next, petitioner contends that his brother was improperly impeached with evidence of remote prior convictions. Over the objection of defense counsel, the prosecutor questioned Chris Wallace about his multiple theft convictions and an aggravated robbery conviction. All these convictions were more than 10-years old. (SF-III at 154-57). Petitioner now challenges this evidentiary ruling as contrary to state law.
This claim fails for two reasons. First, federal habeas relief is available only to correct errors of constitutional dimension. See 28 U.S.C. § 2254(a); Porter v. Estelle, 709 F.2d 944, 957 (5th Cir. 1983), cert. denied, 104 S.Ct. 2367 (1984). Petitioner has failed to show how the admission of this evidence implicates a constitutionally protected right. Second, although prior convictions more than 10-years old are presumptively inadmissible for impeachment purposes under Texas law, such evidence may be admitted if "the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." See TEX. R. EVID. 609(b). Here, the prosecutor questioned Chris about a string of theft and robbery convictions dating back to 1979. The most recent conviction was 1998, a year before trial. Noting that the presumptive exclusion of remote convictions "is grounded on a belief in an individual's ability to reform," the state appellate court found:
The trial court could have reasonably determined that such a recent robbery conviction showed that Chris had not reformed and thus removed the remoteness objections to [his] other theft and robbery convictions. The trial court could have determined that all of Chris's convictions had a substantial bearing on his credibility as a witness, especially as he provided an alibi for his brother during the time of the robbery. We cannot conclude that the trial court's decision to allow the State to question Chris about his criminal record constitute an abuse of discretion.
Wallace, 2001 WL 225367 at *4,
citing Kizart v. State, 811 S.W.2d 137, 141 (Tex.App.-Dallas 1991, no pet.) (emphasis in original). This decision is neither contrary to clearly established federal law nor unreasonable in light of the evidence presented in the state court. Accordingly, this ground for relief should be overruled.
D.
In a related ground, petitioner accuses the prosecutor of engaging in a pattern of improper conduct by arguing his brother's criminal record to the jury. In his closing argument, the prosecutor challenged the credibility of Chris Wallace:
Now, in 1981, his brother was convicted of aggravated robbery in Arkansas and received ten years. And he tried to get up there on that stand and said that was 20 years ago. Well, let's look what he's learned after 20 years. I ran off multiple thefts after that of (sic) robbery in `94. "Oh, that was reduced to a misdemeanor."
* * *
Ladies and gentlemen, what did he learn after all those aggravated robberies? He stole and stole and stole again.
Are you going to believe a thief? Are you going to believe not just a one-time thief, not a one-time shoplift. I'm talking about a multiple theft, a violator of the law, somebody that steals for a living, to get up here and come up with that bogus — the alibi is a lie. To come up there with that bogus receipt, and you look at that receipt. Nowhere does it say that he was at a job site. Nowhere does he ever even say he knows what day it is.
(SF-IV at 29-30). The state habeas court found this to be a proper summation of the evidence. (St. Hab. Tr-V, Supp. at 32). As the court has already determined that Chris was properly impeached with evidence of his prior convictions, the prosecutor was permitted to argue the convictions and the witness' credibility at closing. See Rose v. Johnson, 141 F. Supp.2d 661, 707-08 (S.D. Tex. 2001) (citing cases) (prosecutor may argue opinions supported by evidence in the record). This ground for relief is without merit and should be overruled.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.