Opinion
No. 3-04-CV-1699-L.
November 23, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner David Wayne Andrews, 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 pled guilty to aggravated robbery and was sentenced to seven years confinement. No appeal was taken. Instead, petitioner filed an application for state post-conviction relief. The application was denied without written order. Ex parte Andrews, No. 58,783-01 (Tex.Crim.App. Apr. 28, 2004). Petitioner then filed this action in federal court.
II.
In three grounds for relief, petitioner complains that: (1) the indictment failed to allege the essential elements of the offense; (2) the trial court should have rejected his guilty plea in light of the defective indictment; and (2) his attorney failed to object to the indictment. Petitioner further alleges that counsel was ineffective in several other respects.
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: (1) the state court decision 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) the state court decision 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)(1) (2). 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 Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003); Pondexter v. Dretke, 346 F.3d 142, 145-46 (5th Cir. 2003), cert. denied, 124 S.Ct. 2160 (2004). Stated 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, 123 S.Ct. at 2535, quoting Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). In order for a federal court to find the state court's application of Supreme Court precedent "unreasonable," the state court decision must be more than incorrect or erroneous — the application of clearly established federal law must have been "objectively unreasonable." Id., citing Williams, 120 S.Ct. at 1523; see also Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001).B.
Petitioner contends that the indictment was fundamentally defective because it failed to allege the essential elements of aggravated robbery in "plain and intelligible words." In two related grounds, petitioner maintains that the trial court should have rejected his guilty plea in light of the defective indictment and his attorney should have filed a motion to quash the indictment.
1.
The sufficiency of an indictment is a matter of state law. Johnson v. Puckett, 930 F.2d 445, 447 (5th Cir.), cert. denied, 112 S.Ct. 252 (1991); Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir. 1980). A petitioner is not entitled to federal habeas relief unless the indictment is so defective that the state court lacks jurisdiction. McKay v. Collins, 12 F.3d 66, 68 (5th Cir.), cert. denied, 115 S.Ct. 157 (1994); Branch, 631 F.2d at 1233. An indictment that sets forth the elements of the offense in language clear enough to enable the defendant to plead a bar in jeopardy does not raise a jurisdictional defect. Alexander v. McCotter, 775 F.2d 595, 599 (5th Cir. 1985). Furthermore, federal courts may not consider the issue if the highest state appellate court has reviewed the indictment and concluded that jurisdiction is proper. McKay, 12 F.3d at 68; Morlett v. Lynaugh, 851 F.2d 1521, 1523 (5th Cir. 1988), cert. denied, 109 S.Ct. 1546 (1989).
2.
Petitioner was charged with aggravated robbery. Under Texas law, a person commits aggravated robbery if: (1) in the course of committing theft, (2) and with the intent to obtain or maintain control of the property, (3) he intentionally, knowingly, or recklessly causes bodily injury to another, and (4) uses or exhibits a deadly weapon. TEX. PENAL CODE ANN. §§ 29.02 29.03(a) (Vernon 2003).
The indictment alleges that petitioner:
did unlawfully then and there while in the course of committing theft and with intent to obtain and maintain control of the property of ARTURO REYNA, hereinafter called complainant, the said property being [a] wallet and contents therein and a cellular phone, without the effective consent of the said complainant and with intent to deprive the said complainant of said property, did then and there intentionally and knowingly cause bodily injury to said complainant, by striking complainant with a bottle, and said defendant did then and there use and exhibit a deadly weapon, to wit: a BOTTLE.
(St. Hab. Tr. at 29). Clearly, the indictment contains all the essential elements of the offense of aggravated robbery. Moreover, the state habeas court found that the indictment "followed the language of the statute and as such is valid." ( Id. at 27). The Texas Court of Criminal Appeals adopted this finding by denying post-conviction relief. Ex parte Andrews, No. 58,783-01. Because the issue was presented to the highest state appellate court for review, federal habeas relief is not proper. See Alexander, 775 F.2d at 599 (state court's refusal to grant habeas relief is tantamount to finding that indictment does not contain a jurisdictional defect); Cannon v. Cockrell, 2002 WL 449578 at *6 (N.D. Tex. Mar. 20, 2002) (same). All claims relating to the sufficiency of the indictment should be overruled.
C.
Petitioner also criticizes his attorney for: (1) not investigating the facts of the case in a timely manner; (2) failing to inform him of his right to appeal; and (3) doing "nothing to protect client of his rights." Respondent counters that these claims are procedurally barred 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. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992). Only procedural rules that are firmly established and regularly followed by state courts can prevent habeas review of federal constitutional rights. Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426, 72 L.Ed.2d 824 (1982). Article 11.07 of the Texas Code of Criminal Procedure prohibits a second habeas petition if the petitioner urges grounds therein that could have been, but were not, raised in his first habeas petition. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2003). This statute constitutes an adequate state procedural bar for purposes of federal habeas review. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied, 115 S.Ct. 2603 (1995). The procedural bar doctrine also applies to unexhausted claims if the state court would likely dismiss a successive habeas petition under article 11.07. See Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991) (procedural default occurs when prisoner fails to exhaust available state remedies and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred").2.
In his state writ, petitioner argued that his attorney was ineffective for failing to challenge the sufficiency of the indictment. However, petitioner never raised the other ineffective assistance of counsel claims urged in his federal writ. ( See St. Hab. Pet. at 7). No explanation is offered to excuse this procedural default. The court finds that a Texas court, presented with these claims in a successive habeas petition, would likely find them barred under article 11.07. Consequently, federal habeas relief is not proper. See Coleman, 111 S.Ct. at 2557 n. 1; see also Nobles v. Johnson, 127 F.3d 409, 422-23 (5th Cir. 1997), cert. denied, 118 S.Ct. 1845 (1998).
The court also notes that petitioner's voluntary guilty plea waives any claim of ineffective assistance of counsel based on events that occurred prior to the entry of the plea. See Vidal v. Cockrell, 2003 WL 21448365 at *5 (N.D. Tex. May 15, 2003) (citing cases).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.