IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION 

ANTHONY E. GOZDOWSKI, §

PETITIONER, §

§

v. §

 § CIVIL ACTION NO. 4:04-CV-768-A

DOUGLAS DRETKE, DIRECTOR, §

TEXAS DEPARTMENT OF CRIMINAL §

JUSTICE, CORRECTIONAL INSTITUTIONS §

DIVISION, §

RESPONDENT. §

 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND NOTICE AND ORDER

 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 Anthony E. Gozdowski, TDCJ-ID #1000320, is in custody of the Texas Department

of Criminal Justice, Correctional Institutions Division, in Tennessee Colony, Texas.

 Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice,

Correctional Institutions Division.

C. FACTUAL AND PROCEDURAL HISTORY

In 1999, Gozdowski was charged by indictment in state court with multiple counts of

 

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aggravated sexual assault of his step-daughter K.S., a child younger than 14 years of age. (State

Habeas R. at 110-11) The state waived all but two counts, and trial commenced on August 15, 2000.

(2Reporter’s R. at 8) At trial, the evidence showed that Gozdowski sexually assaulted K.S. on

numerous occasions in the family home and threatened to punish her if she told anyone about the

abuse. (4Reporter’s R. at 28-63) On August 17, 2000, the jury found Gozdowski guilty on both

counts and assessed his punishment at fifty years’ confinement on each count, the sentences to run

concurrently. (Id. at 112) Gozdowski appealed his convictions, but the Second District Court of

Appeals affirmed the trial court’s judgment on May 2, 2002. Gozdowski v. Texas, No. 2-00-334-CR,

slip op. (Tex. App.–Fort Worth May 2, 2002) (not designated for publication). On October 2, 2002,

the Texas Court of Criminal Appeals refused Gozdowski’s petition for discretionary review.

Gozdowski v. Texas, PDR No. 962-02. Gozdowski also filed a state application for writ of habeas

corpus challenging his convictions, which was denied on August 25, 2004 by the Texas Court of

Criminal Appeals without written order on the findings of the trial court. Ex parte Gozdowski, No.

58,562-01, at cover. Gozdowski filed this federal petition for writ of habeas corpus on October 20,

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). Dretke has filed an answer with supporting

documentary exhibits, to which Gozdowski has replied. 

D. ISSUES

In four grounds, Gozdowski raises the following issues:

(1) The prosecutor engaged in prosecutorial misconduct; 

(2) He received ineffective assistance of counsel at trial;

(3) He received ineffective assistance of counsel on appeal; and, 

 

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 (4) The jury was unconstitutionally empaneled. (Petition at 7-8)

E. RULE 5 STATEMENT 

Dretke believes that Gozdowski has sufficiently exhausted his state remedies on the claims

presented, as required by 28 U.S.C. § 2254(b)(1), but that one or more of the claims are procedurally

barred. (Resp’t Answer at 5)

F. PROCEDURAL DEFAULT

Dretke contends the claims raised under Gozdowski’s first ground, with the exception of (b)

below, and his fourth ground are procedurally barred from federal habeas review because the state

courts found the claims to be procedurally barred. (Id. at 9-10) Under his first ground, Gozdowski

raises numerous claims of alleged prosecutorial misconduct. The claims are construed as follows:

the prosecution (a) created juror bias by rehabilitating potential jurors and injecting prejudicial

statements during voir dire, (b) withheld evidence favorable to the defense, ©) submitted improper

notice of expert testimony under article 39.14 of the Texas Code of Criminal Procedure, (d)

introduced extraneous offense evidence without proper notice according to state rules of evidence

and of court, (e) failed to notify the jurors of the defense’s election, (f) gave a prejudicial parole

eligibility instruction to the jury, (g) rehabilitated the nurse examiner’s testimony to corroborate the

child victim’s, (h) directed the state’s witness with “injected questions,” and (I) allowed a “fatal

variance” between witness testimonies. (Petition at 7; Pet’r Memorandum in Support, Ground No.

1, at 1) Gozdowski raised (b) on appeal and in his state habeas application, however, the remaining

claims were raised for the first time in his state habeas application. Similarly, Gozdowski’s claim

under his fourth ground regarding improper empanelment of the jury was raised for the first time

in his state habeas application. 

 

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Gozdowski does argue under his third ground that his appellate counsel was ineffective by

failing to raise one or more of the defaulted claims on direct appeal. (Pet’r Memorandum in Support,

Ground No. 3, p. 1) In certain circumstances counsel’s ineffectiveness in failing to properly

preserve a claim for review in state court will suffice to excuse a procedural default. See Edwards

(continued...)

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In Texas writ jurisprudence, habeas corpus lies only to review jurisdictional defects or

denials of fundamental or constitutional rights. See Ex parte Banks, 769 S.W.2d 539, 540 (Tex.

Crim. App. 1989). Complaints subject to a harmless error analysis are not cognizable. See Ex parte

Truong, 770 S.W.2d 810, 813 (Tex. Crim. App. 1989). Finally, discrepancies in witness testimony

are not cognizable on application for writ of habeas corpus, and a reviewing court will defer to the

fact finder regarding matters of witness credibility. See Swearington v. Texas, 101 S.W.3d 89, 98

(Tex. Crim. App. 2003); Turro v. Texas, 867 S.W.2d 43, 48 (Tex. Crim. App. 1993); Beardsley v.

Texas, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987).

Relying on these principles, the state courts found that the relevant claims were not

cognizable on state habeas review and were improperly included in Gozdowski’s state habeas

application. (State Habeas R. at 104-05, 107) These grounds for denial of relief are adequate state

grounds to support the state courts’ denial of habeas relief and are independent of federal law. See

Coleman v. Thompson, 501 U.S. 722, 729 (1991). Under these circumstances, federal habeas corpus

relief is barred unless the petitioner can show either (1) cause for the default and actual prejudice,

or (2) that the federal court’s failure to consider the claim will result in a miscarriage of justice, i.e.,

that the petitioner is actually innocent of the crime for which he was convicted. See Sawyer v.

Whitley, 505 U.S. 333, 339-40 (1992); Coleman, 501 U.S. at 750; Finley v. Johnson, 243 F.3d 215,

219-20 (5th Cir. 2001). Gozdowski does not plead cause and prejudice in his reply to Dretke’s

answer and merely asserts that Texas case law “holds no federal precedent.”1

 (Pet’r Objections at

 

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(...continued)

v. Carpenter, 529 U.S. 446, 451 (2000). However, because Gozdowski has failed to demonstrate

ineffective assistance of appellate counsel, see discussion infra, this is not such a case.

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7) Nor does he demonstrate that he is actually innocent of the offenses for which he was convicted.

Accordingly, Gozdowski’s claims under his first ground, except for (b), and his claim under his forth

ground, not properly raised in state court, are barred from federal review. 

G. 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. See

Williams v. Taylor, 529 U.S. 362, 405-06 (2000); 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. See

Williams, 529 U.S. at 407-08.

Further, federal courts give great deference to a state court’s factual findings. See Hill, 210

F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state

 

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court shall be presumed to be correct. 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. See Valdez v. Cockrell, 274, F.3d 941, 948 (5th Cir. 2001). 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 order, as the court did here, it is an adjudication on the merits,

which is entitled to this presumption. See 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. Prosecutorial Misconduct

Gozdowski contends the prosecution withheld favorable evidence in the form of a victim

impact statement. (Pet’r Memorandum in Support, Ground No. 1 at 13) Federal due process

requires the prosecution to disclose material, exculpatory information to an accused. See Brady v.

Maryland, 373 U.S. 83, 87 (1963). Under state law, the discoverability of victim impact statements

is governed by article 56.03 of the Texas Code of Criminal Procedure, which provides: 

A victim impact statement is subject to discovery under Article 39.14 of this code

before the testimony of the victim is taken only if the court determines that the

statement contains exculpatory material.

TEX. CODE CRIM. PROC. ANN. art. 56.03(g) (Vernon Supp. 2005).

At trial, Gozdowski requested a copy of the victim impact statement, which was received by

the state before trial, for purposes of cross-examining the victim’s mother, who prepared the

statement. (4Reporter’s R. at 127-28) Pursuant to the statutory provision, the trial court reviewed

the statement and found that the statement contained no information relevant to cross-examination

of the mother. (Id. at 128) The appellate court found that this ruling, by implication, indicated that

 

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A copy of the victim impact statement is not included in the state court papers filed by the

parties in this proceeding. (8Reporter’s R., Court’s Exhibit 1)

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the document did not contain exculpatory material, and, after reviewing the document itself, the

appellate court agreed. Gozdowski, No. 2-00-334-CR, slip op. at 4. On state habeas review, the

state courts again found that the document contained no exculpatory material. (State Habeas R. at

105) This finding is presumed to be correct absent clear and convincing evidence in rebuttal, such

showing not having been made by Gozdowski. 28 U.S.C. § 2254(e)(1). Assuming then that the

document contained no exculpatory material, Gozdowski cannot establish a Brady violation.2

3. Ineffective Assistance of Counsel

In his third and fourth grounds, Gozdowski raises numerous allegations of ineffective

assistance of counsel at trial and on appeal. (Pet’r Memorandum in Support, Ground Nos. 2 & 3)

A criminal defendant has a constitutional right to the effective assistance of counsel at trial and on

a first appeal as of right. See U.S. CONST. amends. 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. Strickland, 466 U.S. at 668. See also Styron v. Johnson, 262 F.3d 438, 450 (5th Cir.

2001) (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.

In applying this standard, 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,

 

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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. A conscious and informed

decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance

of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness. See

Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997) (citing Garland v. Maggio, 717 F.2d 199, 206

(5th Cir. 1983) (on reh’g)). Further, appellate counsel is not required to urge every possible

argument urged by his client on appeal, regardless of merit. See Smith v. Robbins, 528 U.S. 259, 288

(2000); Sharp v. Puckett, 930 F.2d 450, 452 (5th Cir. 1991). It is counsel’s duty to choose among

potential issues, according to his judgment as to their merits and the tactical approach taken. See

Jones v. Barnes, 463 U.S. 745, 749 (1983).

Where, as here, a petitioner’s ineffective assistance claims have been reviewed on the merits

under the Strickland standard 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

Strickland, or if the state courts’ decision is based on an unreasonable determination of the facts in

light of the evidence presented. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Haynes v. Cain, 298

F.3d 375, 379-82 (5th Cir. 2002). Under this standard, the state courts’ application of Strickland

must be shown to be not only erroneous, but objectively unreasonable. Yarborough v. Gentry, 540

U.S. 1, 5 (2003).

Gozdowski raised his ineffective assistance claims in his state habeas application, and, in

support, presented five affidavits of various family members, a long-time friend, and a coworker

indicating that had they been subpoenaed and/or called to testify, they would have testified favorably

 

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In this federal proceeding, Gozdowki also presents a signed statement of a fellow inmate,

Phillip Earl Lydia, in which Lydia alleges that Ray provided ineffective of assistance to him in his

criminal case. Lydia’s allegations, however, have no direct bearing on Ray’s representation of

Gozdowski.

4

To the extent the state trial court did not enter express findings on a particular claim, a

federal habeas court may imply fact-findings from the state court’s disposition of a federal claim

that turns on the factual issue. Townsend v. Sain, 372 U.S. 293, 314 (1963); Farmer v. Caldwell,

476 F.2d 22, 24 (5th Cir. 1973); Dempsey v. Wainwright, 471 F.2d 604, 606 (5th Cir. 1973). As

previously noted, the presumption of correctness applies equally to explicit findings of fact as well

as those findings of fact implicit in the state courts’ mixed law and fact conclusions. See Valdez,

274 F.3d at 948 n.11.

9

for the defense as to certain alleged extraneous offenses and/or Polk’s character.3

 (1st Supp. Clerk’s

R. at 21, 23, 27, 30, 39) In response, Gozdowski’s trial and appellate counsel filed affidavits

addressing his claims. (State Habeas R. at 85, 95) Thereafter, the state trial court entered findings

of fact refuting Gozdowski’s allegations and concluded that Gozdowski had failed to prove deficient

performance on the part of counsel or that the result of his trial or appeal would have been different

but for counsel’s alleged deficiencies.4 (Id. at 102-07)

Having independently reviewed Gozdowski’s claims, and applying the appropriate deference

to the state courts’ adjudication of the claims, it cannot be said that the state courts’ application of

Strickland’s attorney-performance standard was erroneous or objectively unreasonable. See Bell,

535 U.S. at 698. The trial court apparently accorded credibility to counsel’s affidavits, and this

credibility determination is entitled to a presumption of correctness. See Carter v. Johnson, 131

F.3d 452, 464 (5th Cir. 1997); Carter v. Collins, 918 F.2d 1198, 1202 (5th Cir. 1990). Thus, assuming

counsel’s testimony to be true, Gozdowski cannot satisfy the first prong of Strickland. Moreover,

in light of the particular circumstances of the offenses, Gozdowski cannot establish a reasonable

probability that the result of his trial or his appeal would have been different had his attorneys’

 

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performance not been deficient in any of those many respects.

In conclusion, to the extent the state courts considered Gozdowski’s claims, the record

supports the state courts’ determination of the claims raised. The state courts’ determination is not

contrary to or involve an unreasonable application of federal law in light of the record as a whole

and is entitled to deference and the presumption of correctness.

II. RECOMMENDATION

Gozdowski’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 April 27, 2005. 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).

 

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IV. ORDER

Under 28 U.S.C. ( 636, it is ORDERED that each party is granted until April 27, 2005, 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. 

SIGNED April 6, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

 UNITED STATES MAGISTRATE JUDGE

 

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