IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

EMANUEL DELEON FIELDS §

§

Petitioner, §

§

VS. § 

§ NO. 3-06-CV-0236-N

NATHANIEL QUARTERMAN, Director §

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Emanuel Deleon Fields, 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 three aggravated robberies and sentenced to 60 years

confinement. His convictions and sentences were affirmed on direct appeal. Fields v. State, Nos.

05-02-01665-CR, 05-02-01666-CR & 05-02-01667-CR, 2004 WL 60765 (Tex. App.--Dallas, Jan.

14, 2004, pet. ref'd), cert denied, 125 S.Ct. 2929 (2005). Petitioner also filed separate applications

for state post-conviction relief with respect to each conviction. The applications were denied

without written order. Ex parte Fields, Nos. 61,187-02, 61,187-03 & 61,187-04 (Tex. Crim. App.

Jan. 11, 2006). Petitioner then filed this action in federal district court.

 

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II.

In three grounds for relief, petitioner contends that: (1) the prosecutor exercised his

peremptory challenges in a discriminatory manner to exclude all eligible African-Americans from

jury service; (2) he was denied his constitutional right to trial by a jury of his peers; and (3) he

received ineffective assistance of counsel.

A.

The standard of review in federal habeas cases is governed by the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA"). See Pub.L. 104-132, 110 Stat. 1214 (1996).

Where, as here, a state court has already rejected the claims raised by petitioner, a federal court may

grant habeas relief only if the state court adjudication:

(1) 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. § 2254(d). A state court decision is contrary to clearly established federal law "if the state

court arrives at a conclusion opposite to that reached by [the Supreme Court] 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, 413, 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; see also Pondexter

v. Dretke, 346 F.3d 142, 145-46 (5th Cir. 2003), cert. denied, 124 S.Ct. 2160 (2004). Stated

 

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differently, "a federal court may grant relief when a state court has misapplied a 'governing legal

principle' to 'a set of facts different from those of the case in which the principle was announced.'"

Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003), quoting

Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). 

With respect to mixed questions of fact and law, a federal habeas court must give deference

to state court findings unless they are "based on an unreasonable determination of the facts in light

of the evidence presented in the state court proceeding." Chambers v. Johnson, 218 F.3d 360, 363

(5th Cir.), cert. denied, 121 S.Ct. 508 (2000). The resolution of factual issues by the state court is

presumptively correct and will not be disturbed unless the petitioner rebuts the presumption by clear

and convincing evidence. See 28 U.S.C. § 2254(e)(1).

B.

Petitioner first contends that the prosecutor used five of his 10 peremptory challenges to

exclude all eligible African-Americans from jury service in violation of the equal protection clause

of the Fourteenth Amendment to the United States Constitution and Batson v. Kentucky, 476 U.S.

79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). 

1.

The Fourteenth Amendment guarantees every defendant in a criminal case equal protection

under the law. Hernandez v. Texas, 347 U.S. 475, 477, 74 S.Ct. 667, 670, 98 L.Ed. 866 (1954).

This right extends to the jury selection process. Swain v. Alabama, 380 U.S. 202, 204, 85 S.Ct. 824,

826, 13 L.Ed.2d 759 (1965); Strauder v. West Virginia, 10 Otto 303, 100 U.S. 303, 305-08, 25 L.Ed.

664 (1879). Thus, a prosecutor may not use his allotted peremptory challenges to exclude potential

jurors solely on the basis of their race. Swain, 85 S.Ct. at 837-38. Prior to the Batson decision in

1986, the use of peremptory strikes against minorities in any single case was not unconstitutional.

 

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 1

 The Supreme Court observed that the "crippling burden" imposed by Swain rendered the prosecution's use of

peremptory challenges "largely immune from constitutional scrutiny." Batson, 106 S.Ct. at 1721. 

Id. at 836-37. Rather, a defendant was required to demonstrate a historical pattern of racial bias in

the selection of juries. Id. at 837-38. The Fifth Circuit explained this burden as follows:

In order to prevail [on a Swain claim], [petitioner] must prove that his

prosecutor had a systematic and intentional practice of excluding

blacks from traverse juries in criminal trials through the exercise of

peremptory challenges, and that this practice continued unabated

through petitioner’s trial.

Evans v. Cabana, 821 F.2d 1065, 1068 (5th Cir.), cert. denied, 108 S.Ct. 5 (1987), citing Willis v.

Zant, 720 F.2d 1212, 1220 (11th Cir. 1983), cert. denied, 104 S.Ct. 3548 (1984). Absent evidence

of purposeful and systematic discrimination, the prosecutor was entitled to a presumption that he

used his peremptory strikes in a proper manner. Swain, 85 S.Ct. at 837.

The Supreme Court revisited Swain two decades later in Batson. Recognizing that it is often

impossible for a defendant to prove the systematic exclusion of minorities from jury service over

an extended period of time, the Court rejected this evidentiary formulation "as inconsistent with

standards that have been developed since Swain for assessing a prima facie case under the Equal

Protection Clause." Batson, 106 S.Ct. at 1721.1

 No longer were defendants required to establish a

historical pattern of discrimination in the use of peremptory strikes. Under Batson, "a defendant

may make a prima facie showing of purposeful racial discrimination in selection of the venire by

relying solely on the facts concerning its selection in his case." Id. at 1722 (emphasis in original).

A proper Batson challenge has three elements. First, the defendant must raise an inference

that the prosecutor excluded potential jurors on the basis of race. Id. at 1723; United States v.

Wallace, 32 F.3d 921, 925 (5th Cir. 1994). A defendant may satisfy this burden in a variety of ways,

such as by showing a pattern of strikes against minority jurors on the venire panel or by statements

 

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made by the prosecutor during the voir dire examination. Batson, 106 S.Ct. at 1723. Once the

defendant makes a prima facie showing of the discriminatory use of peremptory challenges, the

burden shifts to the prosecution to articulate a race-neutral explanation for each of the challenged

strikes. Id. at 1723-24; Wallace, 32 F.3d at 925. This inquiry focuses on the facial validity of the

explanation given by the prosecutor for striking minority jurors. "Unless a discriminatory intent is

inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral." Purkett

v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (citations omitted); see

also United States v. Perkins, 105 F.3d 976, 978 (5th Cir. 1997). 

The final step of the Batson analysis requires the trial court to determine whether the

defendant has proved purposeful discrimination. Batson, 106 S.Ct. at 1724; Wallace, 32 F.3d at 925.

"When the record contains an explanation for the prosecutor's use of peremptory challenges, the

reviewing court need only decide the propriety of the ultimate finding of discrimination." Simmons

v. Cockrell, No. 3-02-CV-1774-M, 2003 WL 193442 at *3 (N.D. Tex. Jan. 24, 2003) (Kaplan, J.)

(citing cases). A finding by the state court that the prosecutor exercised his peremptory challenges

without any discriminatory intent is accorded great deference because it largely turns on an

evaluation of the credibility or demeanor of the attorney who exercised the challenge. See

Hernandez v. New York, 500 U.S. 352, 363, 111 S.Ct. 1859, 1869, 114 L.Ed.2d 395 (1991); United

States v. Bentley-Smith, 2 F.3d 1368, 1373 (5th Cir. 1993). Such a finding will not be disturbed on

federal habeas review unless it is "objectively unreasonable and has been rebutted by clear and

convincing evidence to the contrary." Murphy v. Dretke, 416 F.3d 427, 432 (5th Cir. 2005), cert.

denied, 126 S.Ct. 1028 (2006), quoting Miller-El v. Cockrell, 537 U.S. 322, 341, 123 S.Ct. 1209,

1041, 154 L.Ed.2d 931 (2003) ("Miller-El I"). See also Rice v. Collins, ___ U.S. ___, 126 S.Ct. 969,

976, 163 L.Ed.2d 824 (2006) ("Reasonable minds reviewing the record might disagree about the

 

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prosecutor's credibility, but on habeas review that does not suffice to supersede the trial court's

credibility determination."). 

2.

Petitioner, an African-American, was charged with three aggravated robberies. All three

cases were tried to the same jury in a consolidated proceeding. The original venire consisted of 70

prospective jurors. One member of the panel was struck for cause and 17 others were excused by

agreement of the parties. Of the remaining 52 jurors, five were African-American. After the

lawyers submitted their strike lists, the trial judge observed that the prosecutor had used five

peremptory challenges against all the African-Americans on the jury panel. (SF-II at 132). Defense

counsel then made a Batson objection. (Id. at 132-33). In response, the prosecutor offered specific

reasons for striking each African-American juror. With respect to Juror No. 15, Cathy Green, the

prosecutor explained:

Ms. Green was the lady that was--actually had the son that had been

convicted of an assault here in Dallas. That's one of the reasons why

we struck her. I guess I could go through some of the other people

that I struck, Number 30. She's a white lady who had a son that was

convicted. We struck her. 14 is a white lady, Ms. Young, who

actually had family members that were convicted of a crime.

Actually, that was robbery. So we struck her. 

(Id. at 133). Similar explanations were given for striking Juror No. 40, Darrell McAlpin, and Juror

No. 49, Wanda Brigham, both of whom had family members who either had been convicted of a

crime or were currently serving a prison sentence. (Id. at 137-38, 139). As an additional

justification for striking Green, the prosecutor noted that she agreed with defense counsel when

asked if a witness who stuttered might be lying. (Id. at 134-35). The prosecutor also pointed out

that McAlpin failed to disclose his DWI conviction in response to a general question inquiring about

prior arrests or criminal charges. (Id. at 138).

 

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As grounds for striking Juror No. 22, Randy Williams, the prosecutor stated:

He was pretty much a sight strike when he walked in. He had a big

gold necklace around his neck, gold teeth. So he was more of a sight

strike. The only other thing that he did say that I didn't like was he

was asked directly by [defense counsel], so what are your thoughts

on whether a person testifies or not? He didn't have any at all. He

just didn't have any. I mean, you would think somebody would have

one that I could follow that law, or I don't like that law, or I might

rather they testify, but I can follow the law. So I don't know.

* * * *

And I don't know if he's just, again, another person that just wants to

go along with [defense counsel] and do what he pleases and just say

whatever [defense counsel] wants him to say. So those two reasons

together was for that.

(Id. at 134-35). 

Finally, the prosecutor explained that he struck Juror No. 24, Kent Peterson, because he fell

asleep during the state's voir dire:

I didn't appreciate that very much. He was the one I had to mention,

Mr. Peterson, am I keeping you awake or whatever I mentioned to

him, because he was falling asleep during mine.

And, you know, I probably woke him up. But I also looked at--

watched him since he fell asleep during mine. And, of course, during

[defense counsel's], he was, you know, bright-eyed and bushy-tailed.

I don't know if I like that very much. But I may have woke him up

by saying that to him.

(Id. at 136-37). In further support of his decision to strike this juror, the prosecutor referenced

Peterson's belief that you should evaluate the accuser's credibility in a robbery case. (Id. at 137).

According to the prosecutor, "I don't want [jurors] already being suspect of my victims." (Id.).

The trial judge then called upon petitioner, through his attorney, to rebut each of the raceneutral explanations proffered by the prosecutor. Defense counsel attempted to cast doubt on the

reasons given for striking Green by arguing that she did not say her son had been treated unfairly

 

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 2

 No argument was offered by defense counsel in response to the prosecutor's explanations for striking the other two

African-American veniremembers, McAlpin and Brigham. 

 3 Federal law is in accord. See, e.g. United States v. Jimenez, 77 F.3d 95, 101 (5th Cir. 1996) (conviction of close

relative is race-neutral explanation for striking juror); United States v. Hughes, 970 F.2d 227, 231 (7th Cir. 1992) (same);

United States v. Casper, 956 F.2d 416, 419 (3d Cir. 1992) (same); United States v. Maserati, 1 F.3d 330, 335-36 (5th

Cir. 1993) (sleeping during voir dire is race-neutral explanation); United States v. Rudas, 905 F.2d 38, 41 (2d Cir. 1990)

(same). 

in his criminal trial, she was not personally involved in that proceeding, and she never said she could

not be fair with respect to the facts of this case. (Id. at 139). Counsel protested that the peremptory

challenge used against Williams was "more along the lines of a racial strike" because characteristics

such as wearing a gold necklace and having gold teeth are more common among African-Americans

and Hispanics. (Id. at 140). As for the prosecutor's reasons for striking Peterson, defense counsel

noted that the state did not challenge Juror No. 35, Meri Haas, a white female, who also appeared

to fall asleep during voir dire. (Id. at 141). The trial judge implicitly found that petitioner had

established a prima facie Batson violation, but ultimately concluded that there was no evidence the

prosecutor exercised any of his peremptory challenges in a racially discriminatory manner. (Id. at

141).2

On direct appeal, the state appellate court held that each of the explanations given by the

prosecutor for striking Green, McAlpin, Brigham, and Peterson were race-neutral and facially valid.

Fields, 2004 WL 60765 at *2-3, citing Emerson v. State, 851 S.W.2d 269, 272 (Tex. Crim. App.

1993) (familial association with relative convicted of criminal offense is race-neutral reason for

exercising peremptory strike) and Muhammad v. State, 911 S.W.2d 823, 825 (Tex. App.--Texarkana

1995, no pet.) (same as to striking prospective juror who fell asleep during voir dire).3

 While

acknowledging that three white venire members selected to sit on the jury had relatives who had

been convicted of criminal offenses or had served time in prison, the appeals courts distinguished

the African-Americans struck by the prosecutor on the basis that each had objectionable

 

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characteristics not shared by their white counterparts. For example, Green agreed with defense

counsel that a person may appear to be lying if he stuttered on the witness stand. McAlpin failed

to disclose his prior DWI conviction. Brigham had a brother in prison "right now." Peterson said

that he would consider the accuser's credibility in a robbery case. No white juror had similar

characteristics. With respect to the alleged "racial strike" used against Williams, the appeals court

noted that defense counsel failed to present any statistical evidence showing that African-Americans

"have more gold teeth and gold chains" than any other group. Id. at *2. Because of these qualitative

distinctions, the state court determined that the African-Americans struck by the prosecutor were

not "similarly situated" to the whites who served on the jury. Id. at *2-3. 

3.

Like most claims involving discriminatory jury selection practices, the critical issue in this

case is whether the prosecutor's proffered race-neutral reasons for striking all eligible AfricanAmericans from the jury can be believed. The ultimate conclusion of discriminatory intent is a

question of fact. See Ladd v. Cockrell, 311 F.3d 349, 356 (5th Cir. 2002). As the Fifth Circuit

explained:

We would tend to reverse if the State's reasons were fantastic or

inconsistent with its treatment of similar non-minority jurors. Where

its reasons are believable, however, the inquiry is one of credibility.

Obviously, this question of fact turns heavily on demeanor and other

issues not discernible from a cold record, such that deference to the

trial court is highly warranted[.]

Id. (internal quotations and citations omitted). None of the arguments made by petitioner in his

federal writ, all of which were raised and thoughtfully considered on direct appeal, convince this

court that the state court finding on the ultimate issue of discriminatory intent is "objectively

unreasonable." Even if the AEDPA standard of review did not apply, the court would have little

 

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 4

 One African-American, who was a vocal proponent of the death penalty, was not struck by either the prosecution

or the defense and served on the Miller-El jury. See Miller-El II, 125 S.Ct. at 2325.

difficulty concluding that four of the African-American jurors struck by the prosecution-- Green,

McAlpin, Brigham, and Peterson-- were not similarly situated to white jurors who shared some, but

not all, of the same characteristics. See Moore v. Keller Industries, Inc., 948 F.2d 199, 202 (5th Cir.

1991), cert. denied, 112 S.Ct. 1945 (1992) (where an attorney has multiple reasons for striking a

minority juror, "the existence of other jurors with some of their individual characteristics does not

demonstrate that the reasons assigned were pretextual"). The state court also properly rejected

petitioner's claim involving Williams. Without evidence that African-Americans have more gold

teeth and gold chains than any other group, petitioner cannot prove that the prosecutor struck

Williams because of his race. See, e.g. Purkett, 115 S.Ct. at 1771 (allowing prosecutor to strike

African-American juror because of his long, unkempt hair, mustache and beard, as such

characteristics are not "peculiar to any race"); United States v. Clemons, 941 F.2d 321, 323 (5th Cir.

1991) (upholding strike of African-American juror because of his "modish dress"); United States

v. Claytor, No. 7-05-CR-0007, 2005 WL 1745642 at *3 (W.D. Va. Jul. 26, 2005) (striking AfricanAmerican juror who wore earrings was not improper where prosecutor explained that it "suggested

to him that the prospective juror had made a life-style choice that was not consistent with

mainstream society").

The court is mindful of the recent decision in Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct.

2317, 162 L.Ed.2d 196 (2005) ("Miller-El II"), where a six-justice majority of the Supreme Court

vacated a Dallas County capital murder conviction and death sentence because of a Batson violation.

Although the prosecutors in both Miller-El II and petitioner's case used a disproportionate number

of their alloted peremptory challenges to exclude eligible African-Americans from jury service,4

 

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 5

 The state court record shows that petitioner's attorney, not the prosecutor, filed a motion to shuffle the jury panel.

(St. App. Tr. at 37). However, there is no evidence that the motion was granted.

there are significant differences between the two cases. In Miller-El II, a side-by-side comparison

of African-American jurors who were struck and white jurors who were not revealed that several

of the jurors shared nearly identical characteristics but were treated differently. Miller-El II, 125

S.Ct. at 2319-20. By contrast, the African-American jurors struck by the prosecution in the instant

case were not similarly situated to the white jurors who served. Moreover, the prosecutor in MillerEl II shuffled the jury panel two different times to obtain a more favorable array and posed

contrasting questions about the death penalty to African-American and white jurors. Id. at 2322.

No such evidence exists in this case.5 Finally, and perhaps most significantly, the defendant in

Miller-El II was tried in 1986--more than 15 years before petitioner. For decades preceding that

trial, the Dallas County District Attorney's office had followed a policy of systematically excluding

African-Americans from juries. Id. at 2321-22. While petitioner maintains that such discriminatory

practices continue today, there is no evidence to support this speculative assertion. 

In sum, petitioner has failed to prove by clear and convincing evidence that the prosecutor

used any of his peremptory challenges in a racially discriminatory manner. This ground for relief

should be overruled.

C.

Petitioner also contends that he was denied his "basic constitutional right" to trial by a jury

of his peers. Apparently, petitioner believes that he is entitled to be tried by a jury comprised of at

least some African-American members. Such is not the case. The equal protection clause of the

Fourteenth Amendment prohibits only the exclusion of racial groups from the venire from which

a jury is selected. See Holland v. Illinois, 493 U.S. 474, 478-79, 110 S.Ct. 803, 806, 107 S.Ct. 905

 

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 6

 Each of the alleged errors made the basis of petitioner's ineffective assistance of counsel claim were raised on

direct appeal. However, the state court declined to review any of those claims, except for fundamental error, because

counsel did not object at trial. See Fields, 2004 WL 60765 at *2-3.

(1990), citing Strauder, 100 U.S. at 305. There is no corresponding constitutional right to a trial by

members of a particular racial group. This ground for relief is without merit and should be

overruled.

D.

In his final ground for relief, petitioner alleges that he received ineffective assistance of

counsel because his attorney failed to object to certain questions posed by the trial judge and the

prosecutor's closing argument during the punishment phase of his trial. Petitioner also complains

that counsel should have objected to the charge submitted to the jury on guilt-innocence because it

was not signed by the judge.6

1.

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

effective assistance of counsel 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.2d 333 (1980). To prevail on an ineffective

assistance of counsel claim, a habeas 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). First, the petitioner

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

reasonableness. Id., 104 S.Ct. at 2064. Second, the petitioner must establish prejudice. See id. at

2067. Where ineffective assistance of counsel is alleged during the punishment phase of a noncapital case, the petitioner must demonstrate that the sentence he received would have been

 

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 7

 In United States v. Grammas, 376 F.3d 433 (5th Cir. 2004), the Fifth Circuit abrogated the "significantly less

harsh" test for ineffective assistance of counsel claims arising under the federal sentencing guidelines. Id. at 438. See

also Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 700, 148 L.Ed.2d 604 (2001) (holding that "any amount

of actual jail time has Sixth Amendment significance"). However, the court noted an important distinction between the

federal guidelines and state sentencing regimes. Because state sentencing tends to be more discretionary than the more

predictable federal system, "practically any error committed by counsel could [result] in a harsher sentence." Grammas,

376 F.3d at 438 n.4, quoting Spriggs, 993 F.2d at 88. Therefore, the court limited its adoption of the "any amount of jail

time" test to cases involving the federal guidelines. Id. See also Doria v. Dretke, No. A-03-CA-693-LY, 2006 WL

1348386 at *11 n.5 (W.D. Tex. May 4, 2006); Wadhwa v. Dretke, No. 3-04-CV-1687-G, 2005 WL 1521846 at *2 n.1

(N.D. Tex. Jun. 27, 2005) (Kaplan, J.), rec. adopted as modified, 2005 WL 1679440 (N.D. Tex. Jul. 18, 2005). 

"significantly less harsh" but for the deficient performance of his attorney.7 Daniel v. Cockrell, 283

F.3d 697, 706 (5th Cir.), cert. denied, 123 S.Ct. 286 (2002), citing Spriggs v. Collins, 993 F.2d 85,

88 (5th Cir. 1993). In making this determination, the court must consider: (1) the sentence imposed

in the case; (2) the minimum and maximum sentence allowed by law; (3) the placement of the

sentence within the allowable range; and (4) any mitigating or aggravating factors considered by the

trier of fact. Spriggs, 993 F.2d at 88-89.

2.

After the jury convicted petitioner of aggravated robbery, the same jury heard evidence on

punishment. Two witnesses testified at the hearing. One witness was Richard Hamb, a fingerprint

expert employed by the Dallas County Sheriff's Department, who authenticated records showing that

petitioner had previously pled guilty to aggravated assault with a deadly weapon and had been

placed on deferred adjudication probation. (SF-III at 179-82). The other witness was Ester Johnson,

petitioner's great-great aunt. Johnson asked the jury for leniency so that petitioner could have a

chance to rehabilitate himself and turn around his life. (Id. at 186). On cross-examination, Johnson

acknowledged that petitioner had been on probation for "shooting someone." (Id. at 187). The trial

judge then inquired, "Do you know the person Emanuel was placed on probation for shooting?" (Id.

at 188). Johnson said she did not know the person, but was familiar with his reputation. (Id.).

Defense counsel did not object to the judge's question. Instead, counsel made clear on redirect

 

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examination that petitioner had been placed on probation and had not been convicted of a felony.

(Id. at 188-89). 

Petitioner now contends that the question posed by the trial judge showed bias and faults his

attorney for failing to object on that ground. In rejecting this argument on direct appeal, the state

court wrote:

[T]here is nothing to suggest the trial judge did not maintain an

impartial attitude when asking the question. The judge did not

suggest the answer or otherwise indicate how the witness should

testify. Under these circumstances, we fail to see how the trial

judge's question resulted in fundamental error.

Fields, 2004 WL 60765 at *4. Even had counsel objected to the judge's question and preserved this

issue for appellate review under a more liberal standard, there is nothing to suggest that the outcome

would have been any different. Under Texas law, a trial judge is permitted to question a witness

provided the judge maintains an impartial attitude. See Brewer v. State, 572 S.W.2d 719, 721 (Tex.

Crim. App. 1978). There was nothing improper about the judge asking Johnson if she knew the

person petitioner was accused of shooting, especially in light of the fact that Johnson had just

testified that she was familiar with the victim's reputation. Consequently, counsel was not required

to object to the judge's question. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir.), cert. denied, 115

S.Ct. 432 (1994) (counsel not required to make futile objections).

Nor has petitioner established that he received ineffective assistance of counsel when his

attorney failed to object to the prosecutor's closing argument on punishment. In asking the jury to

assess a significant prison sentence, the prosecutor remarked:

Who is Mr. Fields? Well, we know from what we proved up is that

he was on probation for shooting a guy in the back-- or he got

probation in 2000 for shooting a guy in the back. You can take that

into consideration.

 

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(SF-III at 192) (emphases added). Petitioner correctly notes that there is no evidence he ever shot

anyone in the back and, perhaps, his attorney should have objected to the prosecutor's statement.

However, petitioner cannot demonstrate that he would have received a significantly less harsh

sentence had counsel made such an objection. The evidence adduced at trial shows that petitioner

and two accomplices robbed three people at gunpoint. One accomplice shot at the victims while

running from the scene. Petitioner attempted to escape by getting into the car of a woman and her

young son, thus putting innocent lives at risk. The jury also heard evidence that petitioner had pled

guilty to a prior charge of aggravated assault with a deadly weapon. In light of the overwhelming

evidence of guilt and petitioner's prior criminal record, the court cannot say that the 60-year prison

term assessed by the jury was due, even in part, to the prosecutor's isolated remark that petitioner

shot someone in the back. 

Finally, petitioner criticizes his attorney for failing to object to the jury charge on guiltinnocence because it was not signed by the judge. Once again, even if counsel should have objected

to the charge on this ground, his failure to do so does not rise to the level of a constitutional

violation. Petitioner does not argue that the jury charge was defective in any substantive respect.

His only complaint is that the charge was unsigned. Had counsel made such an objection at trial,

the judge likely would have signed the charge and given the same instructions to the jury. Under

these circumstances, petitioner cannot show prejudice.

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 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

 

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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 error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: November 6, 2006.

 

 

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