Pruske v. Scott

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 20, 1995
• Docket: 95-50261
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 95-50261 Summary Calendar ______________________

ALFRED DAVID PRUSKE, SR.,

Petitioner-Appellant,

versus

WAYNE SCOTT, DIRCTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; DAN MORALES, Attorney General,

Respondents-Appellees.

_______________________________________________________

Appeal from the United States District Court for the Western District of Texas (SA-94-CA-478) _______________________________________________________

November 6, 1995 Before REAVLEY, SMITH and PARKER, Circuit Judges.

PER CURIAM:*

The district court denied the petition for habeas corpus (28

U.S.C. § 2254) and granted a certificate of probable cause. The

judgment is affirmed for the following reasons:

* Local rule 47.5 provides: “The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession.” Pursuant to that Rule, the Court has determined that this opinion should not be published. 1. Pruske asserts the trial court erred in failing to grant

his motion for new trial for the reason that the indictment is

not sufficient. He complains that the indictment alleges only

that he solicited an individual to hire a “hit-man” to kill his

wife and fails to give him notice of who the hit-man was. There

is no contention here that rises to the level of a violation of

any constitutional right. Therefore, the claim provides no basis

for relief. See Dickerson v. Guste, 932 F.2d 1142, 1145 (5th

Cir.), cert. denied, 502 U.S. 875 (1991).

2. Pruske argues his conviction should be overturned

because of a fatal variance between the indictment and the proof

upon which he was convicted. He complains of two “fatal

variances” -- a different county was proved than what was

alleged, and the proof indicated a different individual solicited

the “hit-man” than was alleged. The sufficiency of a state

indictment is appropriate for federal habeas relief only when the

indictment is so deficient that the convicting court was without

jurisdiction. Williams v. Collins, 16 F.3d 626, 637 (5th Cir.),

cert. denied, 115 S.Ct. 42 (1994). State law dictates whether a

state indictment is sufficient to confer a court with

jurisdiction. Id.

To comprise an indictment within the definition provided by

the Texas Constitution, article V, § 12(b), an indictment must

charge a person with the commission of an offense. Cook v.

State, 902 S.W.2d 471, 477 (Tex. Crim. App. 1995). “[A] charging

instrument is not required to allege every element of the offense

2 in order to allege `the commission of the offense’ as required by

art. V., § 12(b).” Id. Therefore, an indictment is not

constitutionally void, thus depriving the trial court with

jurisdiction, despite the omission of one or more elements of the

offense. Id. “At a minimum the indictment must be sufficient to

give notice of what offense the State is alleging so that the

controlling penal provision can be identified.” Fisher v. State,

887 S.W.2d 49, 55 (Tex. Crim. App. 1994). Under Texas law, the

indictment in this case gave sufficient notice of what offense

the state was alleging. The convicting court had jurisdiction to

hear the case. Therefore, federal habeas relief is not

available.

3. Pruske avers the prosecution acted in bad faith by the

knowing use of the perjured testimony of Susan Dempsey. For this

to amount to a deprivation of due process, Pruske must establish

that the prosecution knowingly presented materially false

testimony. Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990).

Pruske offers no evidence of false testimony or whether the

prosecutor knew such testimony was false. He directs our

attention to one instance in which Dempsey states that Pruske

offered and she accepted money for her assistance in finding

someone to kill his wife. While this evidence contradicts the

government’s evidence, that alone is not sufficient to indicate

that she was committing perjury and that the government was aware

of that fact. Pruske has failed to establish a deprivation of

due process.

3 4. Pruske argues that his life sentence constitutes cruel

and unusual punishment prohibited by the Eighth Amendment.

Pruske was convicted of solicitation to commit capital murder and

sentenced to life imprisonment. Pruske asserts that his age

(50), his lack of past criminal actions, and the absence of

evidence that he can be rehabilitated are inconsistent with the

sentence imposed. While Pruske was sentenced to the maximum

permitted under the law, his offense is not grossly

disproportionate to the crime he committed. See Harmelin v.

Michigan, 111 S.Ct. 2680, 2705 (Kennedy, J. concurring) (“Rather,

[the Eighth Amendment] forbids only extreme sentences that are

`grossly disproportionate’ to the crime.”). Pruske consulted

with several individuals in an effort to hire someone to murder

his wife. He arranged for the murder of his wife and paid the

supposed “hit man” when he believed she had been murdered.

Pruske’s sentence was not grossly disproportionate to his crime.

5. Pruske next argues that his trial counsel provided

ineffective assistance of counsel. Specifically, he complains

that his counsel failed to move for a change of venue because of

pretrial publicity, failed to challenge jurors affected by the

pretrial publicity, did not file a motion for change of venue

because the offense occurred in Bexar County rather than in

Guadalupe County, failed to file a motion to quash the indictment

for the same reason, failed to raise the defense of entrapment,

failed to investigate Pruske’s mental disorders, erroneously

struck four qualified jurors, failed to challenge the legality of

4 his arrest, filed a deficient motion for new trial, failed to

prepare properly because of counsel’s brain tumor, and failed to

challenge the credibility of a witness.

To prevail in his claim of ineffectiveness, Pruske bears the

burden of showing his counsel was deficient and that the

deficient performance prejudiced his defense. Strickland v.

Washington, 104 S.Ct. 2052, 2064 (1984). Failure to establish

both prongs of the test defeats an ineffectiveness claim.

Williams, 16 F.3d at 631. “Judicial scrutiny of counsel’s

performance must be highly deferential.” Strickland, 104 S.Ct.

at 2065. Our review of the attorney’s performance should be

conducted without the distortions of hindsight and should focus

on counsel’s actions at the time they occurred. Id. “Because of

the difficulties inherent in making the evaluation, a court must

indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance; that is,

the defendant must overcome the presumption that, under the

circumstances, the challenged action `might be considered sound

trial strategy.’” Id.

Pruske argues that counsel was ineffective for failing to

move for a change of venue when certain jurors informed counsel

that they had read or heard about Pruske’s case. His cursory

argument is based solely upon the comments of a few jurors which

remain unnamed. “It is not enough to show that the publicity--as

to which no specifics are alleged--could have conceivably

affected the jurors.” Smith v. Puckett, 907 F.2d 581, 585 (5th

5 Cir. 1990), cert. denied, 111 S.Ct. 694 (1991). Such a general

and conclusory argument does not suffice to present a viable

basis for relief.

He further asserts that counsel was ineffective for

permitting jurors who were familiar with his case to be seated on

the panel. The record indicates, however, that only one seated

juror had knowledge of the case, and he indicated only that while

he had “read of the indictment in the newspaper,” he had not

formed an opinion as to Pruske’s guilt. The juror also stated

that he could be fair and impartial. Pruske has failed to carry

his burden of demonstrating ineffectiveness.

Next, he contends that counsel was ineffective for failing

to move for a change of venue because the offense occurred in

Bexar County rather than in Guadalupe County. Effectiveness of

representation is not judged from hindsight. Strickland, 104

S.Ct. at 2065. In this instance, counsel’s strategy was to win

an acquittal for this very reason. Any motion for a change of

venue or a motion to quash the indictment because of improper

venue would have defeated this trial strategy resulting in a

change of venue and not an acquittal. Pruske has not overcome

the presumption that counsel’s trial strategy was effective.

Pruske also argues that counsel was ineffective for failing

to file a motion to quash the indictment. However, such an

action would again run counter to defense strategy, that is,

seeking an acquittal because the crime did not occur in Guadalupe

County. Were counsel to succeed on the motion to quash, Pruske

6 would have been reindicted in Bexar county. Thus Pruske is unable

to demonstrate prejudice. See Morlett v. Lynaugh, 851 F.2d 1521,

1525 (5th Cir. 1988), cert. denied, 109 S.Ct. 1546 (1989).

Pruske argues that counsel should have requested an

instruction on the defense of entrapment. In Texas, entrapment

is available as a defense only where a law enforcement officer

induces the defendant to commit an offense. Tex. Penal Code. §

8.06(a); Melton v. State, 713 S.W.2d 107, 112 (Tex. Crim. App.

1986). The district court found that the defense of entrapment

was not available to Pruske because there was no evidence offered

at trial that a law enforcement officer induced Pruske to commit

the offense. Counsel was not ineffective for failing to pursue a

meritless defense.

Next Pruske agues that counsel was ineffective for failing

to investigate his mental disorders and for failing to pursue an

insanity defense. Pruske has offered no evidence that indicates

he was insane at the time of the offenses. Counsel was not

ineffective for failing to pursue the insanity defense.

During trial, Pruske advised his attorney “that he [was]

sick; that he had [been] running a high fever and temperatures;

and that he [felt] he need[ed] psychiatric help.” When informed

of this exchange by counsel, the convicting court denied Pruske’s

request and noted that “the court has had an opportunity to

observe [Pruske] throughout this trial and has noted that

[Pruske] has actively participated with counsel in conference and

in conversation and in assisting counsel in questioning the

7 witnesses and he appears to the court certainly not to be

suffering under any delusion of mental state.” Pruske has failed

to allege what any additional investigation would have uncovered

and how this would alter the outcome of his trial. Pruske has

failed to meet the prejudice prong of Strickland.

Pruske further alleges his counsel was ineffective for

striking four “qualified jurors” from the panel. Trial counsel

employed four of his peremptory challenges against members of the

venire who would not be reached. The prosecuting attorney and

the trial court brought this fact to counsel’s attention, but

counsel indicated that he had challenged all the jurors he

intended in the first thirty-two members of the panel. In

essence trial counsel chose not to use four of his available

strikes. Pruske concludes his argument with a statement that

this was prejudicial. However, mere conclusory statements are

not sufficient to overcome the prejudice prong of Strickland.

See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994).

Pruske also argues counsel was ineffective for failing to

challenge the credibility of Susan Dempsey, a prosecution

witness. However, the trial record illustrates that counsel

extensively cross-examined the witness, pointed out the

inconsistency of her testimony, and forced her to admit to false

dealings with Pruske. Counsel also provided a witness who

testified that her reputation for truth or veracity was “pretty

lousy.” Pruske has failed to demonstrate that counsel was

deficient.

8 Finally Pruske contends that counsel was ineffective for

failing to challenge the legality of his arrest, for failing to

file supporting affidavits and authorities in his motion for new

trial, and for being unprepared due to a brain tumor. Pruske has

failed in each of these allegations to set forth sufficient facts

or arguments to support his claim. Therefore, he has failed to

meet his burden to prove counsel was ineffective.

6. Finally, Pruske asserts that he received ineffective

assistance of appellate counsel. Specifically, he asserts that

counsel withdrew from the cause without filing a petition for

discretionary review with the Texas Court of Criminal Appeals.

There is no constitutional right to counsel for discretionary

state appeals. Ross v. Moffitt, 94 S.Ct. 2437, 2444-2447 (1974).

Because there is no constitutional right to such counsel, Pruske

cannot be deprived of effective assistance of counsel.

Wainwright v. Torna, 102 S.Ct. 1300, 1301 (1982).

Affirmed.