TN THE TINITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

THOMAS LANE COKER

Petitioner.

VS.

NATHANIEL QUARTERMAN, Director

Texas Department of Criminal Justice,

Correctional Institutions Division

Respondent.

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FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Thomas Lane Coker, a Texas prisoner, has filed an application for writ of habeas

corpuspursuantto28U.S.C.92254. Forthereasonsstatedherein,theapplicationshouldbedenied.

I.

A Dallas County grand jury indicted petitioner on one count of unlawful possession of a

firearm by a convicted felon. After waiving his right to a jury trial, petitioner was convicted by a

judge and sentenced to 40 years confinement. His conviction and sentence were affirmed on direct

appeal. Coker v. State,No. I l-99-00093-CR, 1999 WL 33748132 (Tex. App.--Eastland, Oct. 21,

1999,pet. ref d). Petitioner also filed an application for state post-conviction relief. The application

was denied without written order. Ex parte Coker, WR-4 I ,265-02 (Tex. Crim. App. Jan. 3 I , 200 I ).

Petitioner then filed this action in federal district court.r

' This court originally dismissed petitioner's federal writ on limitations grounds. Coker v. Quarterman,No.

3-03-CV-2146-N,2003 WL23873274 (N.D.Tex. Nov. 24,2003),ree. adopted,2004WL2600490 (N.D. Tex. Nov.

12,2004). On direct appeal, the Fifth Circuit vacated the judgment and remanded the case for further proceedings.

Coker v. Quarterman,2T0 Fed.Appx. 305, 2008 WL 724042 (5th Cir. Mat. 17,2008)'
II.

In multiple grounds for relief, petitioner contends that: (1) his conviction was the result of

an illegal arrest; (2) there was insuffrcient evidence to support his conviction; (3) he received

ineffective assistance ofcounsel; and (4) the Texas statute criminalizing the possession ofa firearm

by a convicted felon is void for vagueness.2

A.

Petitioner challenges his arrest on the grounds that the affidavit used to obtain the arrest

warrant was based on hearsay, the warrant was not issued in a timely manner, and he was not in

possession of a firearm at the time the warrant was executed. This claim fails for at least two

reasons. First, a federal court may not grant habeas relief based on a Fourth Amendment violation

where the state has provided an opportunity for full and fair litigation of the issue. Stone v. Powell,

428 U.S. 465,493-95, 96 S.Ct. 3037,3052-53,49L.F,d.2d 1067 (1976); see also Selfv. Collins,973

F.2d 1 198, 1208 (5th Cir. 1992), cert. denied, I l3 S.Ct. 1613 (1993) (applying Stone to unlawful

arrest claim). The Fifth Circuit has held that "an opportunity for full and fair litigation" means just

that--anopportunity. SeeCaverv.Alabqma,5TTF.2d 1188, 1192(5th Cir. 1978). "If astate

provides the processes whereby a defendant can obtain full and fair litigation of a fourth amendment

claim, [Stone] bars federal habeas corpus consideration of that claim whether or not the defendant

employsthoseprocesses." Id.;seealsoJaneckav.Coclcrell,30lF.3d316,320(5thCir.2002),cert.

denied,l23 S.Ct. 1264 (2003). Here, petitioner does not allege, much less prove, that he was denied

an opportunity to litigate his unlawful arrest claim in state court.

' As parl of his answer, respondent reurges his affrrmative defense that petitioner's claims are barred by the

AEDPA statute of limitations. (See Resp. Ans. at 4-10). The court need not decide this procedural issue as petitioner

is not entitled to federal habeas relief in any event. See Mackv. Quartermar, No. 3-06-CV-0903-L, 2007 WL241373

at*2 n.l (N.D. Tex. Jan.26,2007), COA denied,No. 07- 10285 (5th Cir. Feb. 19, 2008) (declining to address affirmative

defense of limitations where petitioner was not entitled to relief on the merits).
Second, "[a]n illegal arrest .. . is an insufficient ground, standing alone, upon which to vacate

aconvictioninfederalhabeasproceedings." SeeSandersv. Israel,7l7F.2d422,423 (7thCir.

1983), cert. denied,l04 S.Ct. 1302 (1984), citing United States v. Crews,445 U.S. 463,474,100

S.Ct.1244,1251,63L.8d.2d537(1980). Althoughpetitionerallegesthathisarrestwasunlawful

for a variety of reasons, he does not claim that any evidence seized during the arrest was introduced

at trial or otherwise show how the arrest led to his conviction. Without more, petitioner is not

entitled to federal habeas relief.

B.

In two related grounds, petitioner contends that the evidence was insufficient to support his

conviction because the state failed to introduce any physical evidence to corroborate the testimony

of the lone witness who said he observed petitioner in possession of a firearm. Respondent counters

that both grounds for relief are procedurally baned from federal habeas review.

1.

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. Il'hitley, 505 U.S. 333, 338, I 12 S.Ct. 2514, 2518, 120

L.Ed.2d 269 (L992). The state court opinion must contain a "plain statement" that its decision rests

on adequate and independent state grounds. Harris v. Reed,489 U.S. 255,262-63, 109 S.Ct 1038,

1043,103 L.Ed.2d 308 (1989); Smithv. Collins,977 F.2d951,955 (5th Cir. 1992), cert. denied,l14

S.Ct. 97 (1993). To be an adequate ground for denying relief, the state procedural rule must be

strictly or regularly applied to similar claims. See Hathorn v. Lovorn, 457 U.S. 255,262-63, 102

S.Ct.2421,2426,72L.F,d.zd824 (1982);Johnsonv. Puckett,l76 F.3d 809,824 (5th Cir. 1999).

It is well-settled under Texas law that the sufficiency of the evidence cannot be attacked for the first
time on state collateral review. See Renz v, Scott,28 F.3d 431,432 (5th Cir. 1994); Ex parte Adams,

768 S.W.2d 281, 293 (Tex. Crim. App. 1989).

2.

Although petitioner challenged thefactual sfficiency of the evidence on direct appeal, he

did not raise a legal sfficiency or "no evidence" claim in that proceeding. Instead, petitioner

presented his legal sufficiency claim for the first time on state collateral review. The Texas Court

of Criminal Appeals rejected the claim and denied relief without written order. See Ex parte Coker,

WR-41,265-02,Tr. at cover. This disposition suggests that the court's decision was based on

adequate and independent state grounds. See Ex parte Grigsby, 137 S.W.3d 673, 67 4 (Tex. Crim.

App.2004) ("[W]here an applicant challenges the sufficiency of the evidence on an application for

a writ of habeas corpus, and we subsequently dispose of the application by entering a denial without

written order, the applicant's sufficiency claim was denied because the claim is not cognizable.").

Consequently, petitioner's legal sufficiency claim is baned from federal habeas review. Renz,28

F.3d at 432; see also Mendoza v. Dretke, No. 3-05-CV-0042-M, 2005 WL 1124513 at*2 Q'{.D. Tex.

May I1,2005) (citing cases), rec. adopted,2005 WL 1639330 (N.D.Tex. Jul. 13,2005).3

3.

To the extent petitioner challenges the factual sufficiency of the evidence, his claim is not

cognizable on federal habeas review. Under Texas law, intermediate appellate courts have the

3 Te*as law permits a defendanto raise a "no evidence" claim for the first time on collateral review where the

conviction is totally devoid of any evidentiary support. See Ex parte Bar/ield,697 S.W.2d 420,421 (Tex. Crim. App.

1985); Ex parte Coleman,s99 S.W.2d 305, 307 (Tex. Crim. App. 1978). However, where a defendant merely challenges

the sufficiency of the evidence to support a conviction, such a claim must be raised on direct appeal. See Ex parte

l(i\Iiams,703S.W.2d674,679-80(Tex.Crim.App. 1986). Inhisfederalwrit,petitioneracknowledgesthattherewas

some evidence to support his conviction--the testimony of John Dodson, who said that he observed petitioner retrieve

a rifle from his truck and fire the weapon into the air. The crux of petitioner's claim is that the state failed to introduce

any physical evidence to corroborate Dodson's testimony. Such an argument implicates the factual sufficiency of the

evidence and cannot be litigated under the guise of a "no evidence" claim. See Gardner v. Dretke,No. 3-04-CV- 1074-G,

2004 WL 2008499 at *l n.l (N.D. Tex. Sept. 8,2004),rec. adopted,2004WL2187ll0 (N.D. Tex. Sept.28,2004).
authority to review fact questions in criminal cases. Clewis v. State,922 S.W.2d 126, 129 (Tex.

Crim. App. 1996). This "factual sufficiency" review of the evidence is broader than a "legal

sufficiency" challenge under Jackson v. Virginia, 443 U.S. 307,99 S.Ct. 2781 , 6l L.Ed.2d 560

(1979). Id. Instead of viewing the evidence in the light most favorable to the prosecution and

determining whether "any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt," a factual sufficiency inquiry views all the evidence to determine whether

the verdict "is so contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust." Pruitt v. Coclvell, No. 3-00-CV-1713-H, 2001 WL 1l15339 at *13 OLD. Tex. Sept. 14,

2001), quotingClewis,922S.W.2datl29. Thepowerofstateappellatecourtstoreviewthefactual

sufficiency of the evidence derives from Texas statutory and constitutional authority. Id. at *14

(citing cases). Because there is no conesponding right of review under the United States

Constitution, this ground for relief should be ovemrled. Id.; see also Daisy v. Dretke,No. 3-04-CV201 5-D, 2004 WL 31677 43 at *2 (N.D. Tex. Dec. 21 ,2004), COA denied, No. 05- 10052 (5th Cir.

Nov, 9, 2005) (citing cases).

C.

Next, petitioner contends that he received ineffective assistance ofcounsel at trial because

his attorney: (l) allowed him to testiff; (2) advised him to waive ajury trial; (3) failed to investigate

the case or interview witnesses; (4) did not move for a judgment of acquittal atthe beginning of trial;

and (5) failed to object to certain testimony and evidence. Petitioner also criticizes his appellate

lawyer for not raising certain issues on direct appeal.

l.

The Sixth Amendment to the United States Constitution guarantees a defendant reasonably

effective assistance ofcounsel at all critical stages of a criminal proceeding. See Cuyler v. Sullivan,
446 U.S. 335,344,100 S.Ct. 1708, 1716,64 L.Ed.zd 333 (1980), To prevail on an ineffective

assistance of counsel claim, a habeas petitioner must satisff the two-prong test established in

stricklandv,washington,466u.s.668, 104S.ct.2052,80L.Ed.2d674(1984). First,thepetitioner

must demonstrate that the performance of his attorney fell below an objective standard of reasonable

professional conduct. Id., 104 S.Ct. at2064. Second, the petitioner must prove that he was

prejudiced by his attorney's substandard performance. Strickland, 104 S.Ct. at 2067. Prejudice

results when "there is a reasonable probability that, but for counsel's unprofessional errorso the result

of the proceeding would have been different." Id. at2068; see also Lockhart v. Fretwell, 506 U.S.

364,372,1l3 S.Ct. 838, 844, l22L.Ed.zd 180 (1993) (habeas petitionermust showthattrial result

was unreliable or proceeding fundamentally unfair due to deficient performance of counsel).

Where, as here, a state court has already rejected an ineffective assistance of counsel claim,

a federal court may grant habeas relief only if the state court adjudication:

(l) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; 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 proceeding.

28 U.S.C. 9 225a@); see also Williams v. Taylor,529 U.S. 362,411-13,120 S.Ct. 1495, 1522-24,

146 L.Ed.zd 389 (2000). A state court decision is contrary to clearly established federal law if "it

relies on legal rules that directly conflict with prior holdings of the Supreme Court or if it reaches

a different conclusion than the Supreme Court on materially indistinguishable facts." Busby v.

Dretke,359 F.3d 708,773 (5th Cir.),cert. denied,l24 S.Ct. 2812(2004),citingWilliams,l20 S.Ct.

at l519-20. A decision constitutes an "uueasonable application" of clearly established federal law

if "the state court identifies the correct governing legal principle from [the] Court's decisions but
uffeasonably applies that principle to the facts of the prisoner's cass." Williams,l20 S.Ct. at 1523;

see also Gardner v. Johnson,247 F.3d 551, 560 (5th Cir. 2001). Factual determinations made by

state courts are presumed to be correct and are unreasonable only where the petitioner "rebut[s] the

presumption of correctness by clear and convincing evidence." 28 U.S.C. $ 2254(eXl).

2.

Most of petitioner's ineffective assistance of counsel claims are either patently frivolous,

negated by the record, or conclusory in nature. There is no evidence that counsel was ineffective for

advising petitioner to waive a jury trial. To the contrary, counsel reasonably believed that petitioner

would be better served by allowing a trusted judge to hear the case instead of a jury who might be

biased against a convicted felon with an extensive criminal record. Likewise, counsel was not

ineffective for failing to move for a judgment of acquittal before trial. Counsel made such a motion

after the state rested its case-in-chief, but the motion was denied .(See SF at 43). Petitioner has not

shown that the ruling would have been any different had counsel made the motion earlier' With

respecto petitioner's claim that counsel failed to investigate the case or interview witnesses, he does

not specifu what further investigation would have revealed or what information the witnesses would

have provided. And while petitioner generally criticizes his attorney for failing to make certain

objections attrial,he does not articulate a legitimate basis for any of those objections or explain how

he was prejudiced by the admission ofevidence.a His vague, conclusory, and self-serving allegations

do not merit habeas relief. See Beall v. Coclcrell, 174 F.Supp.2d 512, 523 (N.D. Tex. 2001), COA

a The closest petitioner comes to articulating a legal basis for an objection is his claim that Dodson was not

qualified as a firearms expert. (See Pet. Mem. Br. at l3). However, the prosecution was not required to present expert

testimony to prove that petitioner unlawfully possessed afirearm. See United States v. Lankford,196 F.3d 563, 576 (5th

Cir. 1999), cert. denied,l20 S.Ct. 1984 (2000) (holding that the government may rely on lay testimony to prove that

defendant used, possessed, or carried a firearm in violation of federal law). Counsel was not ineffective for failing to

make this frivolous objection.
denied,No. 0l-l 1404 (5th Cir. Mar. 14,2002) (conclusory statements and random citations to legal

authority are insufficient to support a claim of ineffective assistance of counsel).

3.

Only one of petitioner's ineffective assistance of counsel claims merits extended discussion.

In one of his grounds, petitioner argues that he was "compelled" to testiff because defense counsel

told him that the judge would not entertain a motion for acquittal unless he explained his version of

the incident. Petitioner now claims that he was reluctant to take the stand "for fear that the State

would unduly seize upon [his] prior convictions to cruciff him before the judge." (Pet. Mem. Br.

at l4). Those fears proved well-founded, as the prosecutorepeatedly questioned petitioner on crossexamination about his prior convictions for theft, robbery, and unauthorized use of a motor vehicle.

(See SF at6I-64).

The decision whether to advise a defendant to testifu is a tactical choice of trial strategy that

isusuallynotsubjecttoreviewunderstrickland. SeeWinfreyv.Maggio,664F.2d550,553(5thCir.

l9S1). In this case, the only evidence that petitioner possessed afirearm was the testimony of John

Dodson. At trial, Dodson testified that he saw two people arguing in the street outside his house just

after dark on December 21,1997. (SF at 5, 7-8). Dodson observed one of the individuals, later

identified as petitioner, reach into a truck and start "messing with something." (Id. at 8-9). At first,

Dodson thought the object was a bat, but later realized it was a rifle. (Id. at 9). After taking the rifle

from the truck, petitioner yelled something about his keys and shot the gun into the air. (ld).

Petitioner then drove off in the truck. (Id. at I 1). The only witness able to rebut this testimony was

petitioner himself. While admitting that he was present at the scene, petitioner denied participating

in the argument or firing a rifle. (Id. at 52, 55, 60). Rather, petitioner said that a man named

"Leland" fought with Kathy Morris, who lived next door to Dodson, and shot the rifle during the
argument. (Id. at 53-55, 60). Petitioner did not see Leland fire the rifle--he only heard the shots.

(ld. at 55). Frightened by the incident and uncertain what would happen next, petitioner got into

Leland's truck and told him to "get the hell out of here." (ld. at 54).

It is clear that the only viable defense in this case was petitioner's own testimony. Given the

overwhelming evidence against him, petitioner's only chance for acquittal was to explain his version

of the incident to the trier of fact. Although the judge rejected petitioner's testimony and found him

guilty, that does not mean counsel was ineffective for pursuing that strategy .See, e.g. Maynard v.

Quarterman, No. 3-06-CV-l 439-8,2007 WL 1345687 at *5 (N.D. Tex. May 4,2007),COA denied,

No. 07-10626 (5th Cir. Feb. 8, 2008) (decision to allow petitioner to testiff at punishment hearing

was not objectively unreasonable where the "only real chance to avoid spending the rest of his life

inprisonwastoacceptresponsibilityforhisactionsandaskthejuryforleniency");Brownv. Dretke,

No. SA,0l -CA-0241-XR, 2004 WL 2793266 at *33 (W.D. Tex. Dec. 3,2004), COA denied, 419

F.3d 365 (5th Cir. 2005), cert. denied, 126 S.Ct. 1434 (2006) (there was nothing objectively

unreasonable about counsel's decision to advise petitioner to testifu where his first-hand account of

the fatal shooting was the only source of exculpatory evidence available at the guilt-innocence phase

of trial).

Nor has petitioner shown that the outcome of the trial would have been different had he not

testified. While the prosecutor was able to question petitioner about his extensive criminal record,

much of that evidence also was introduced through other witnesses. Before petitioner testiflted,

Glenn Edward Thompson, a fingerprint expert, authenticated three pen packets relating to a prior

theft conviction and two prior convictions for unauthorized use of a motor vehicle. (See SF at41-42;

St. Exh. 3). Pen packets relating to petitioner's other convictions were properly admitted during the

punishment hearing. (See SF at 86; St. Exhs. 4 & 5). In light of this evidence, petitioner was not
prejudiced by taking the stand in his own defense. See Toro v. Fairman,940F.2d 1065, 1069 (7th

Cir. 1991), cert. denied,l l2 S.Ct. 3038 (1992) (petitioner was not prejudiced by counsel's decision

to allow him to testifli and admit the elements of the offense where the prosecution's case was "very

strong," the witnesses against him were credible, and petitioner was "hard-pressed" for a defense).

4.

Petitioner also complains that his appellate lawyer failed to challenge his conviction on legal

insufficiency grounds or argue thattrial counsel was ineffective. "The Constitution does not require

appellate counsel to raise every nonfrivolous ground that might be pressed on appeal." Ellis v.

Lynaugh,873 F.2d 830,840 (5th Cir.), cert. denied, 110 S.Ct. 419 (1989); see also Jones v. Barnes,

463 U.S. 745,751-53, 103 S.Ct.3308,3313-14,77 L.Ed.2d 987 (1983). Instead, counsel is

obligated only to raise and brief those issues that are believed to have the best chance of success.

See Schaetzle v. Coclvell,343 F.3d 440, 445 (5th Cir. 2003), cert. denied,l24 S.Ct. 1156 (200D;

United States v. Williamson,183 F.3d 458, 462-63 (5th Cir. 1999). In order to prove ineffective

assistance of appellate counsel, a petitioner must show that the decision not to raise an issue on

appeal fell below an objective standard of reasonableness. United States v, Phillips,2l0 F.3d 345,

348 (5th Cir. 2000), citing Strickland, 104 S.Ct. at 2064. This reasonableness standard requires

counsel "to research relevant facts and law, or make an informed decision that certain avenues will

not prove fruitful." Id., quoting Williqmson, 1 83 F.3d at 462-63.

Appellate counsel raised a single non-frivolous issue on direct appeal--that the evidence was

factually insufficient to support petitioner's conviction. Although counsel did not raise a legal

insufficiency claim or argue that petitioner received ineffective assistance of counsel attrial, neither

claim has merit. Petitioner apparently believes that the evidence was legally insufficient to support

his conviction for unlawful possession of a firearm because the state did not produce the rifle at trial.
However, the court is unaware of any authority that requires the state to introduce the actual weapon

into evidence to prove the elements of this offense under Texas law. Certainly petitioner has not

cited any such authority in his writ. As for the omitted ineffective assistance of counsel claim, the

court has already determined that petitioner is not entitled to post-conviction relief on that ground.

There is no reason to believe that petitioner's conviction would have been reversed had the same

claim been raised on direct appeal. See Jackson v. Quartermqn, No. 3-06-CV-0494-G, 2008 WL

58879 at * l0 (N.D. Tex. Jan. 3, 2008) (appellate counsel was not ineffective for failing to appeal

conviction on grounds that were considered and rejected on federal habeas review).s

D.

Finally, petitioner contends that the statute criminalizing the possession of a firearm by a

convicted felon, Tex. Penal Code Ann. $ 46.04, is void for vagueness because the statute is not

limited in scope or duration, does not require the state to produce the firearm atttial, and authorizes

a conviction even though the defendant is not in possession of a firearm at the time of his arrest. A

statute is void for vagueness when it fails to give a person of ordinary intelligence fair notice that his

contemplated conduct is forbidden by the statute. See Papachristouv. Ciry ofJaclcsonville,405U.S.

!56,162,92 S.Ct. 839, 843, 31 L.Ed.2d 1 10 (1972). Article 46.04 of the Texas Penal Code clearly

satisfies this requirement. The statute provides:

A person who has been convicted of a felony commits an offense if

he possesses afirearm:

(1) after conviction and before the fifth anniversary ofthe person's

release from confinement following conviction of the felony or the

5 To the extent petitioner claims that appellate counsel had a conflict of interest because he was appointed by

the trial court "in the good ole boy fashion," he provides no evidence to support the conclusory assertion that such a

conflict existed. (See Hab. Pet. at 8). Nor has petitioner demonstrated harm as a result of any alleged bias. See Roach

v. Quarterman,220Fed.Appx.270,279,2007 WL625067 at *6 (5th Cir. Feb. 26,2007) (rejecting claim that appellate

counsel had conflict ofinterest absent proofofharm).
personts release from supervision under community supervision,

parole, or mandatory supervision, whichever date is later; or

(2) after the period described by Subdivision (1), at any location

other than the premises at which the person lives.

Tex. PpNeL CoDE AwN. $ a6.04(a) (Vernon Supp. 2007). Contrary to petitioner's argument, there

is nothing vague about the statute--a convicted felon may not possess a firearm anywhere for five

years after his conviction or his release from prison or supervision, whichever is later, and thereafter

may possess a firearm only within the confrnes of his residence. See State v. Mason,980 S.W.2d

635,639 (Tex. Crim. App. 1998). That petitioner believes the legislature intended to impose

different requirements does not make the statute unconstitutional.

RECOMMENDATION

Petitioner's application for writ of habeas corpus should be denied.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within l0 days after

being served with a copy. See 28 U.S.C. $ 636(bxl); Fso. R. Ctv. P.72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain enor. See Douglass v. United Services Automobile Ass'n,79 F.3d 1415, l4l7 (5th

Cir. 1996).

DATED: September 12,2008.

STATES MAGISTRATE JUDCH