Summary
stating petitioner's conviction became final thirty days after he was sentenced and placed on probation
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Civil Action No. 5:01-CV-231-C
June 12, 2002
ORDER
Petitioner, Reynaldo Martinez DeLeon (DeLeon), filed a Petition for a Writ of Habeas Corpus by a Person in State Custody. Respondent filed an Answer and Supplemental Answer, together with relevant state court records. DeLeon did not file a response.
Respondent has lawful custody of DeLeon pursuant to a judgment and sentence of the 242nd District Court of Hale County, Texas. DeLeon was charged by indictment with the felony offense of robbery. He entered a plea of guilty on July 21, 1989, and was placed on probation for a period of 10 years. He did not appeal the judgment.
On October 26, 1989, the State filed an application to revoke DeLeon's probation, and an order for capias to issue was entered on October 24, 1989. An amended application to revoke and an amended order for capias to issue were filed on November 7, 1989. The amended application to revoked included ten alleged violations, including a charge for burglary of a building. It appears from the record that DeLeon was arrested pursuant to the amended capias on November 7, 1989. There is no indication that a revocation hearing was held; however, according to DeLeon, he had been arrested in October, 1989, for burglary of a building and he entered a plea of guilty to a lesser offense of theft (Cause No. A-10344 in the 64th District Court of Hale County, Texas) on December 4, 1989. He received a 10-year sentence for the theft offense and was transported to the Texas Department of Criminal Justice, Institutional Division, where he served 13 months before being released to immigration officials for deportation to Mexico.
At the revocation hearing held on December 22, 1999, DeLeon testified that he had illegally returned to the United States in 1995 or 1996. He did not report to his probation officer after returning to the United States.
A Motion to Reinstate Warrant and an Order to Issue Capias were filed on August 25, 1999. Apparently DeLeon had been arrested in Hildago, Texas. The capias was returned on September 7, 1999, and indicated that DeLeon was transported from Hildago to Hale County pursuant to an extradition. An attorney was appointed to represent DeLeon for the revocation proceedings. A hearing to revoke probation was held on December 22, 1999, and DeLeon entered a plea of true to the alleged violations of conditions of probation. The trial court admonished DeLeon about the consequences of his plea of true and DeLeon represented to the court that he still desired to plead true. The trial court found that DeLeon's plea of true was freely, voluntarily, knowingly, and intelligently made. After hearing testimony from DeLeon, the trial court found that DeLeon had violated the conditions of his probation. His probation was revoked his probation and punishment was assessed at 10 years' confinement in the Texas Department of Criminal Justice, Institutional Division.
DeLeon's court-appointed attorney appealed the judgment revoking DeLeon's probation. The Seventh Court of Appeals affirmed the judgment revoking probation on July 11, 2000. DeLeon did not file a petition for discretionary review.
DeLeon filed a state habeas application challenging his robbery conviction and probation revocation. The Texas Court of Criminal Appeals denied the application without written order on May 16, 2001.
DeLeon raises the following issues:
(1) He was denied due process because of his inability to speak or understand the English language, his attorney was not bi-lingual, and the court-appointed interpreter was an officer of the court, creating a conflict of interest.
(2) He was unlawfully subjected to undue influence to involuntarily enter into a plea bargain contract.
(3) He was subjected to double jeopardy due to an untimely revocation of an expired probation agreement.
A liberal reading of DeLeon's habeas application indicates that he may also be alleging ineffective assistance of counsel and the denial of street-time credits for the time he spent on probation.
To the extent that DeLeon's claims arise out of his original plea of guilty and sentence on July 21, 1989, his claims are time-barred. His conviction became final 30 days after he was sentenced and placed on probation in 1989.
DeLeon claims that he was denied due process in the revocation proceedings.
At a minimum, due process requires that the probationer be given: (1) written notice of the claimed violation of probation; (2) disclosure of evidence against him; (3) an opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses, unless the hearing officer specifically finds good cause for not allowing confrontation; (5) a neutral and detached hearing body; and (6) a written statement by the fact finder of the evidence relied on and reasons for revoking the probation.
. . .
When it is determined that a person charged with a probation violation admits the violation charged, the procedural safeguards . . . are unnecessary [internal citations omitted]. However, even a probationer who admits the allegations against him must still be given an opportunity to offer mitigating evidence suggesting that the violation does not warrant revocation.United States v. Holland, 850 F.2d 1048, 1050-51 (5th Cir. 1988); Black v. Romano, 471 U.S. 606, 611-612 (1985).
The Court has reviewed the state records pertaining to the revocation proceedings and finds that DeLeon's due process rights were not violated.
DeLeon's double jeopardy claim is without merit. "The Double Jeopardy Clause does not apply to parole and probation revocation proceedings." Stringer v. Williams, 161 F.3d 259 (5th Cir. 1998).
Texas law provides that the time spent on probation will not be considered as a part of the sentence upon revocation of probation. Tex. Code Crim. P. Art. 42.12 Sec. 23(b) (West Supp. 2002); Tamez v. State, 620 S.W.2d 586, 590 (Tex.Crim.App. 1981). DeLeon is not entitled to credit for the time he spent on probation.
DeLeon also attacks his revocation because the revocation hearing was not held and his probation was not revoked until after the probation had expired. He was placed on probation on July 21, 1989, and his probation was revoked on December 4, 1999.
Texas law requires the coalescing of three elements for the extending of probation beyond the period originally assessed by the court, or its revocation: (1) the filing of a motion to revoke within the probationary period; (2) the issuance of a capias within the probationary period; and (3) a diligent effort to execute the capias and to conduct a prompt hearing on the motion.United States v. Baty, 931 F.2d 8, 11 (5th Cir. 1991).
A court has jurisdiction to revoke probation after the probationary period has expired if the arrest warrant was issued during the term of probation. United States v. Naranjo, 259 F.3d 379, 382-82 (5th Cir. 2001), cert. denied, 122 S.Ct. 1175 (2002). The motion to revoke and capias was issued in DeLeon's case during the probationary period.
DeLeon attacks his revocation because it was "untimely." This claim is construed as one claiming that the State failed to make a diligent effort to execute the capias and to conduct a prompt hearing. Under Texas law, the "lack of due diligence is a plea in bar or defense, which must be raised by a defendant at the revocation hearing." Brecheisen v. State, 4 S.W.3d 761, 763 (Tex.Crim.App. 1999); Peacock v. State, ___ S.W.3d ___, 2002 WL 1059557 (Tex.Crim.App. May 29, 2002) ("issue of lack of due diligence must be raised by the appellant before or during the revocation hearing in order to preserve it for appellate review").
"The reason for allowing jurisdiction to revoke probation to continue beyond the termination of the probationary period is to prevent probation term violators from benefitting from absconding." Id.
Because "due diligence" must be raised by the probationer, jurisdiction of the trial court to revoke after the probationary period expires is contingent upon establishment of only the filing of a motion to revoke and the issuance of a capias or arrest warrant before the expiration of the probationary period. Harris v. State, 843 S.W.2d 34, 35 n. 1 (Tex.Crim.App. 1992).
When there is a delay in revoking probation, if that delay is attributable to the probationer, such delay would not support a finding that due process had been violated. Jones v. Johnson, 230 F.3d 825, 828 (5th Cir. 2000).
DeLeon did not raise a due diligence issue before or at the revocation hearing; thus, he failed to preserve the claim.
To the extent that DeLeon is alleging ineffective assistance of counsel during the revocation proceedings, the Supreme Court has not recognized an absolute right to counsel during the probation revocation process. The Supreme Court has determined, however, that "the decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system." Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973).
"A claim of ineffective assistance of counsel must be predicated upon an underlying right to the assistance of counsel." Blankenship v. Johnson, 118 F.3d 312, 316 (5th Cir. 1997). If there is no constitutional right to counsel, DeLeon could not be deprived of the effective assistance of counsel. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982).
Although the Supreme Court has not recognized an absolute constitutional right to counsel during the probation revocation process, Texas law provides that a "defendant has a right to be represented by counsel at a probation revocation hearing." Hatten v. State, 71 S.W.3d 332, 333 n. 1 (Tex.Crim.App. 2002); Tex. Code Crim. P. Art. 42.12 Sec. 21(d) (West Supp. 2002).
Since Texas law provides for the appointment of counsel, the Court has considered DeLeon's claims and has applied the standards set out in Strickland v. Washington, 466 U.S. 668 (1984). DeLeon has failed to show that his counsel was ineffective.
DeLeon alleges that he was unlawfully subjected to undue influence to involuntarily enter into a plea bargain contract. It is not clear whether he is referring to his original plea of guilty to the underlying burglary charge or to his plea of true to the alleged violations of the conditions of his probation. To the extent he is challenging his original plea, his claim is time-barred. If he is challenging his plea of true during the revocation proceedings, his claim is without merit.
To satisfy due process requirements, the guilty plea must be knowingly, intelligently, and voluntarily entered. Grabowski v. Jackson, 47 F.3d 1386, 1389 (5th Cir. 1995) (rehrg en banc 79 F.3d 478 as to civil rights claims).
A defendant carries a strong burden of showing the plea was involuntary after testifying to the voluntariness in court. DeVille v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994). Declarations made in open court carry a strong presumption of truth. Blackledge v. Allison, 431 U.S. 63, 74 (1977). The trial court found that DeLeon's plea of true was freely, voluntarily, knowingly, and intelligently made. DeLeon has failed to produce any evidence that there was such a strong degree of misunderstanding, duress, or misrepresentation by others that would cause his plea of true to be a constitutionally inadequate basis for imprisonment. See United States v. Diaz, 733 F.2d 371, 373 (5th Cir. 1984).
Based upon the foregoing, the Court finds that DeLeon's federal habeas petition should be denied and this case dismissed with prejudice.
Any pending motions are denied.