IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MICHAEL ANDREW BAIN )

)

V. ) 3-05-CV-909-B

)

DOUGLAS DRETKE, Director, )

Texas Department of Criminal Justice )

Correctional Institutions Division )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. §636(b), and an order of the District Court in

implementation thereof, the subject cause has previously been referred to the United States

Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as

evidenced by his signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

Type Case: This is a petition for habeas corpus relief brought by a state inmate pursuant to

28 U.S.C. § 2254. 

Parties: Petitioner is an inmate confined at the Eastham Unit of the Texas Department of

Criminal Justice, Correctional Institutions Division at Lovelady serving convictions imposed in a

Texas state court.

The Respondent is the Director of the Texas Department of Criminal Justice, Correctional

Institutions Division.

Statement of the Case: After entering pleas of guilty to the offenses of aggravated robbery

as charged in the indictments in Nos. F-01-52559-VL, F-01-52561-VL and F-01-52562-VL, robbery

 

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Bain’s two-year sentence in the theft case expired prior to the date on which he filed

his § 2254 petition in this court. Therefore, he was not “in custody” on this conviction and the

court is without jurisdiction to consider the conviction and sentence in the theft case. See 28

U.S.C. § 2254 (a).

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as charged in the indictments returned in F-01-52563-VL and F-01-52590-VL and theft as charged

in F-01-52564, the cases were consolidated for a punishment hearing before a jury. The jury

assessed punishment at 85 years confinement in the aggravated robbery cases, 40 year terms in the

robbery cases and two years confinement in the theft case.1

 The sentences in the cases were ordered

to be served concurrently.

Bain appealed each conviction and on July 1, 2003, the Sixth Court of Appeals delivered an

opinion affirming all cases. The Texas Court of Criminal Appeals denied his petitions for

discretionary review on December 17, 2003. Thereafter he filed six separate art. 11.07 applications

collaterally attacking each conviction, which were denied by the Court of Criminal Appeals without

written order based upon the findings of the trial court with a hearing. He then filed the present

petition attacking all of his convictions.

Findings and Conclusions: In a single ground for relief Bain alleges that he was denied

effective assistance of counsel by his trial attorney. However, he identifies five specific instances

of claimed ineffectiveness, two of which relate to his attorney’s failure to file motions to suppress,

i.e. (1) failure to contest the voluntariness of his confession and (2) failure to attack in-court

identifications, one of which relates to his decision to have the jury assess punishment, and two

which relate to counsel’s performance in the punishment phase of the trial.

Consideration of the petition is governed by the provisions of the Antiterrorism and Effective

Death Penalty Act (the “AEDPA”).

 

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Under Texas state law, fact issues in an art. 11.07 application may be resolved by

affidavits or by evidentiary hearing, or a combination of the two. These procedures comport

with the requirements set out in 28 U.S.C. § 2254(d) as they existed prior to the enactment of the

AEDPA. See e.g. Smith v. Estelle, 711 F.2d 677, 681 (5th Cir. 1983), cert. denied 466 U.S. 906

(1984); Lincecum v. Collins, 958 F.2d 1271, 1279 (5th Cir. 1992), cert. denied 596 U.S. 957

(1992) (collecting cases).

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A claim of ineffective assistance of counsel is governed by the standard set out in Strickland

v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In order to prove a claim a petitioner must

prove that an attorney’s conduct fell below the objective standard of representation required under

the Sixth Amendment (cause) and that but for the attorney’s constitutionally deficient conduct, the

results of proceedings would have been difference (prejudice).

As noted above, each of Bain’s art. 11.07 applications was denied by the Court of Criminal

Appeals without written order based on the findings of the trial court without a hearing. The

grounds raised in each application were identical. In considering and disposing of his claims the

trial court obtained the affidavit of Petitioner’s trial attorney, Rick Harrison, executed on February

3, 2005. In each application the trial court made identical findings of fact. See e.g. Application No.

61,478-01, at 0045-0049. In addressing the conflicting allegations raised in Bain’s applications as

juxtaposed with Mr. Harrison’s affidavit, the trial court found that the statements of counsel were

true, correct and dispositive of Petitioner’s claims.2

As related in Mr. Harrison’s affidavit, Application No. 61,478.01 at 0053-54, Bain never told

him that his confession was coerced or that he did not understand what was going on. When a

defendant fails to apprise his attorney of circumstances which might raise an issue relating to the

admissibility of evidence, he cannot thereafter mount an ineffective assistance of counsel claim

based upon matters which were not disclosed. Further, according to the attorney’s affidavit Bain

 

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never wanted to contest the charges, but chose to have a jury assess punishment rather than accept

the State’s plea offer.

Having pled guilty, the admissibility of in-court identifications by victim-witnesses was

rendered moot. A guilty plea waives all non-jurisdictional defects. See Tollett v. Henderson, 411

U.S. 258, 93 S.Ct. 1602 (1973).

The attorney’s affidavit also addresses his advice to Bain to have a jury assess punishment

rather than the trial judge. There is nothing in the State record indicating that Bain voiced an

objection to going to a jury for punishment. It is self-evident that counsel’s advice was based upon

a deliberate tactical decision by Mr. Harrison. The fact that Petitioner chose to accept this advice

fails to overcome the strong presumption of competence or to establish ineffective assistance of

counsel.

Insofar as Bain raises issues with respect to his attorney’s performance in the punishment

phase, with respect to his complaint that D’Onna Bain Spradlin was not called as a witness, See

Application No. 61, 478-01 at 0017, the State court found that he has not requested Mr. Harrison

to call any witnesses, Id. at 0054. A habeas petitioner cannot fault counsel for complying with his

request. Further, the record reflects that counsel called another family member, his father, Gerald

Bain.

Under the limitations imposed by the AEDPA a federal court may not grant habeas corpus

relief to a state prisoner pursuant to 28 U.S.C. § 2254, unless the prisoner establishes that the state

court’s adjudication was contrary, or involved an unreasonable application of a decision of the

United States Supreme Court or was based on an unreasonable determination of the facts in light of

 

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Respondent reiterates his failure to exhaust argument in his post-hearing response

and further argues that § 2254 (e)(2) forecloses further actual development of his claim.

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the evidence presented in the State court proceedings. 28 U.S.C. § 2254(d)(1) and (2). Bain has

failed to satisfy either exception and therefore relief on the foregoing grounds should be denied.

In his art. 11.07 applications Bain also claimed that his counsel failed to conduct an

investigation into his prior drug abuse and mental health history and to obtain the services of a

mental health expert. See e.g. No. 61,478-01 at 0011-12. A review of Mr. Harrison’s affidavit

response to the allegations in the art. 11.07 applications, Id. at 0053-54, discloses that this claim was

not addressed. Accordingly, there are no findings of fact made by the Texas state courts on this

issue. Therefore, the magistrate judge filed a report on November 8, 2005, recommending that an

evidentiary hearing be held to consider this claim. On November 16, 2005, the District Court

adopted the recommendation and referred the case back to the undersigned for an evidentiary

hearing.

On March 6, 2006, the evidentiary hearing was held at which Mr. Bain and his courtappointed attorney appeared and Respondent appeared through his counsel, Assistant Attorneys

General Stephen M. Hoffman and Thomas Skaggs. Richard Harrison, Petitioner’s trial counsel,

testified as did Petitioner himself. Bain also offered copies of his prior medical records to which

Respondent objected on the basis that they had not previously been presented in his state court

proceedings and therefore raised unexhausted grounds.3

The court took the objection under advisement and now addresses it. As set out in the prior

recommendation the State court record does not address the failure to investigate Bain’s drug abuse

and mental health history, notwithstanding his identification in his art. 11.07 applications of specific

 

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Subsequent to the Supreme Court’s opinion in Glover v. United States, 531 U.S.

198, 121 S.Ct. 696 (2001), the Fifth Circuit has made clear that the Spriggs test continues to

apply to state sentencing regimes. See Ward v. Dretke, 420 F.3d 479, 498 n. 55 (5th Cir. 2005).

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health care providers at which he formerly received treatment. Therefore, there are no findings

which are subject to the criterion set out in § 2254(d)(2). Under such circumstances the court is not

prohibited from a de novo determination of the merits of this exhausted claim which necessarily may

involve receiving relevant evidence in the course of a hearing where issues of fact exist. Barrientes

v. Johnson, 221 F.3d 741, 770 (5th Cir. 2000). Respondent’s argument that Bain failed to develop

the evidence of his prior medical treatment in the course of his art. 11.07 proceedings is also lacking

in merit. Although Bain did not identify every medical care provider whose records were presented

at the March 6, 2006, hearing, his state habeas pleadings gave fair notice of the substance of this

claim and that records of his treatment were in existence. State law does not require that all

evidence in support of claims be proffered with an art. 11.07 application, nor does the fact that Bain

did not submit the records with his state application constitute the lack of diligence or fault which

is required to foreclose further actual development of his claim in federal court. Barrientes, supra

at 770-71, citing the Supreme Court’s decision in Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct.

1479, 1488 (2000). Moreover, even if Respondent’s argument were meritorious, the court is not

barred from denying relief on an unexhausted claim. § 2254(b)(2).

In order to establish an ineffective assistance of counsel claim in the context of infirmities

in the punishment phase of a criminal prosecution a Texas state prisoner must prove that but for the

unprofessional conduct of his attorney (cause) the defendant’s non-capital sentence would have been

significantly less harsh (prejudice). Spriggs v.Collins, 993 F.2d 85, 88 (5th Cir. 1993).4

 

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Based upon the credible testimony presented at the evidentiary hearing the magistrate judge

makes the following findings of fact:

1. After being appointed to represent Bain in the criminal cases in which he was charged,

Richard Harrison met with Bain and his father on ten or more occasions. During these meetings

Harrison was advised of Bain’s lengthy history of drug abuse, physical injuries for which he had

received medical care or hospitalization, Bain’s repeated efforts to rid himself of drug dependency

and the fact that Bain had been sexually molested when four years old.

2. Neither Bain nor his father disclosed any information indicating any mental illness or

mental incompetency. Bain was fully able to discuss the circumstances under which the offenses

were perpetrated.

3. At all times during Harrison’s representation, Bain intended to plead guilty, although he

rejected the prosecution’s plea bargain offer, which ultimately was withdrawn by the State.

4. Harrison concluded that the various injuries which Bain had sustained as well as his

efforts at drug rehabilitation were too remote to the series of crimes committee between April 30,

2001 and May 8, 2001, to have a material bearing on the issue of sentencing. However, Harrison

determined to call Gerald Bain, Petitioner’s father, to testify to his past drug abuse, injuries and

molestation.

5. Harrison did not attempt to obtain any records from Help Is Possible, Narcotics

Anonymous or Alcoholics Anonymous, the only facilities which Bain identified. Harrison did not

attempt to obtain records from any other health care provider which had rendered care to Petitioner.

6. Harrison did not attempt to seek out an expert to render an opinion concerning Bain’s

mental status at the time he engaged in the series of robberies.

 

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Although Bain presented numerous records at the evidentiary hearing, i.e. 

Petitioner’s Hearing Exhibits 1 through 6, he has not identified any entries appearing in these

records which question his mental status. However, the magistrate judge has reviewed these

exhibits, which reflect - consistent with Mr. Harrison’s testimony - that they relate to drug abuse

treatment and treatment for physical injuries for the time frame of December 1989 (Exhibit 3) to

April 1997 (Exhibit 3, emergency room admission on April 2, 1997).

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CONCLUSIONS OF LAW:

1. Bain has failed to show that his trial attorney was ineffective in failing to obtain prior

treatment records5

 or to seek an expert opinion as to his mental status at the time of the offenses.

In addition, he has failed to produce any expert opinion calling into question his mental status at the

time of the robberies. Therefore, Petitioner is not entitled to relief. See Strickland v. Washington,

at 697, 104 S.Ct. 2069 (failure to establish either prong of the two-part test precludes relief).

2. In the alternative, the magistrate judge further finds that Bain has failed to prove

prejudice. The sentences imposed in each of the cases were reasonable in light of the nature of the

offenses, the ages of the victims, the injuries which the victims sustained and Bain’s prior felony

convictions. Having failed to present any expert testimony relating to his mental status at the time

of the offenses, Bain has failed to meet his burden of establishing a reasonable probability that had

such testimony been presented the sentences imposed would have been significantly less harsh.

Moreover, even had mitigating evidence in addition to that presented by Petitioner in the punishment

phase been presented, there is no reasonable probability that it would have had a significant effect

on the length of sentences imposed in light of the other evidence which was presented in the

punishment proceeding.

At the evidentiary hearing Mr. Harrison testified that he called Kathy Wilkerson as a defense

witness at the insistence of Mr. Bain and contrary to Harrison’s advice. The trial transcript confirms

 

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this. See S.O.F., Vol. 3 at 91. Similarly Bain himself chose to testify, even though counsel advised

that it would be better if he didn’t.

In addition to the victims’ testimony and injuries which they sustained Mr. Wilkerson’s

testimony brought out the fact that Petitioner had admitted to her that he had sexually abused her

daughter. Ms. Wilkerson further testified to physical abuse and injury which she suffered at the

hands of Petitioner. Testifying in his own behalf, Bain essentially accused Wilkerson of lying about

both instances.

At the evidentiary hearing Mr. Harrison testified that he counseled Petitioner to tell the truth,

having chosen to testify in his own behalf. However, his testimony was quite damaging, particularly

in response to the prosecutor’s cross-examination. See S.O.F., Vol. 3 at 209-236. He testified that

the victims’ testimony as to the manner in which the robberies were perpetrated was false. He

likewise denied that he had caused their injuries. Obviously, in assessing the sentences the jury

concluded that it was Bain was testified falsely with respect to the circumstances of the robberies

 

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Relief on his theft conviction should be dismissed for want of jurisdiction. See n. 1,

supra.

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and the injuries which were sustained.

RECOMMENDATION:

For the foregoing reasons it is recommended that the petition be in all things denied.6

A copy of this recommendation shall be transmitted to Petitioner and counsel for the parties.

SIGNED this 22nd day of May, 2006.

____________________________________

WM. F. SANDERSON, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that you

must file your written objections within twenty (20) days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996)

(en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such twenty-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of

plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions

of law accepted by the district court.

 

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