Herman v. Dretke

Full title: STEVEN RUSSELL HERMAN, Petitioner, v. DOUGLAS DRETKE, DIRECTOR, TEXAS…

Court: United States District Court, N.D. Texas, Fort Worth Division

Date published: Jan 10, 2005

Civil Action No. 4:04-CV-677-Y (N.D. Tex. Jan. 10, 2005)

Opinion

Civil Action No. 4:04-CV-677-Y.

January 10, 2005

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER

CHARLES BLEIL, Magistrate Judge

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 Stephen Russell Herman, TDCJ #1178183, is a state prisoner in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Lovelady, Texas.

Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.

C. FACTUAL AND PROCEDURAL HISTORY

In March 2003, Herman was charged by indictment with debit card abuse in the 29^th Judicial District Court of Palo Pinto County, Texas. (State Habeas R. at 60.) The indictment also included two enhancement paragraphs, alleging a prior 1992 felony conviction for delivery of a controlled substance and a 1994 felony conviction for burglary of a building. ( Id.) On June 13, 2003, Herman entered a negotiated plea of guilty to the charged offense and a plea of true to the enhancement allegation, and, in accordance with the plea bargain agreement, was sentenced by the trial court to fifteen years' confinement.¹ ( Id. at 61-62.) Herman did not appeal his conviction and sentence. (Petition at 3.) He did, however, file a state application for writ of habeas corpus raising the claims presented herein, which the Texas Court of Criminal Appeals denied without written order on the findings of the state trial court. Ex parte Herman, Application No. 35,804-02, at cover. Thereafter, Herman filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, and the action was transferred to this division.

1 At the time, Herman was also charged with the misdemeanor offenses of assault causing bodily injury and interfering with an emergency phone call. (State Habeas R. at 27-28.) As part of the plea agreement, the state moved to dismiss, and the trial court dismissed, the misdemeanor cases. ( Id.)

D. ISSUES

Herman contends that he received ineffective assistance of trial counsel, that his guilty plea was unlawfully induced, that the indictment and sentence are illegal, and that the state withheld evidence favorable to him. (Petition at 7 Insert; Pet'r Memorandum in Support.)

E. RULE 5 STATEMENT

Dretke believes that Herman has exhausted his state remedies on the claims presented as required by 28 U.S.C. § 2254(b)(1)(a). (Resp't Answer at 3.)

F. DISCUSSION

1. Legal Standard and 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. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5^th 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. Williams, 529 U.S. at 407-08.

The statute further requires that federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state 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. Valdez v. Cockrell, 274, F.3d 941, 948 n. 11 (5^th 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, it is an adjudication on the merits, which is entitled to this presumption. Neal v. Puckett, 286 F.3d 230, 235 (5^th Cir. 2002), cert. denied, 537 U.S. 1104 (2003); Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997.)

2. Application

Herman contends he received ineffective assistance of trial counsel because counsel did not adequately investigate the facts of the case or his prior criminal history and because counsel influenced his decision to accept the plea agreement by threats. As a result, Herman contends his plea was rendered involuntary.

A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. CONST. amend. VI. To prevail on an ineffective assistance claim in the context of a guilty plea, a defendant must demonstrate that his plea was rendered involuntary by showing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's deficient performance, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 56-59 (1985); Smith v. Estelle, 711 F.2d 677, 682 (5^th Cir. 1983); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). In evaluating an ineffective assistance claim, a court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Strickland, 466 U.S. at 668, 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. Strategic choices made by counsel after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Id. at 690.

Once a guilty plea has been entered by a criminal defendant, all nonjurisdictional defects in the proceedings preceding the plea are waived, including all claims of ineffective assistance of counsel that do not attack the voluntariness of the guilty plea. Smith, 711 F.2d at 682; Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5^th Cir. 1981). Therefore, to the extent Herman complains trial counsel failed to interview the arresting officer or potential defense or prosecution witnesses, a matter unrelated to the voluntariness of his plea, the claim is nonjurisdictional and is waived by the plea. See United States v. Broce, 488 U.S. 563, 573-74 (1989).

A guilty plea must be a voluntary, knowing, and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences surrounding the plea. Brady v. United States, 397 U.S. 742, 748 (1970). If a challenged guilty plea is knowing, voluntary, and intelligent, it will be upheld on federal habeas review. James v. Cain, 56 F.3d 662, 666 (5^th Cir. 1995). Although a defendant's attestation of voluntariness at the time of the plea is not an absolute bar to later contrary contentions, it places a heavy burden upon him. United States v. Diaz, 733 F.2d 371, 373-74 (5^th Cir. 1979). He must show such a strong degree of misunderstanding, duress, or misrepresentation by the court, prosecutor, or his own counsel that his plea would become a constitutionally inadequate basis for imprisonment. Id. (citing Blackledge v. Allison, 431 U.S. 63, 75 (1977)).

Herman alleges that his plea was unlawfully induced by counsel directly, and by the prosecution and the trial court indirectly, based on threats of additional criminal charges and stacked sentences. The state habeas record, however, does not support Herman's assertion that his plea was rendered involuntary as a result of coercion or threats on the part of counsel or others. The state court held a hearing by affidavit, in which Herman's trial counsel, Jimmy L. Browning, testified that Herman told Browning to do what he thought best regarding his case. (State Habeas R. at 63-64.) Browning testified that he felt it highly risky to go to trial in light of the evidence of Herman's guilt and his six prior felony convictions. (State Habeas R. at 64.) Browning further testified that Herman was reluctant to accept the plea offer so Browning told Herman that he did not have to plead and could go to trial. ( Id.) According to Browning, after some consideration, Herman agreed to enter the plea. ( Id.) Based on counsel's affidavit and the documentary evidence,² the state trial court found that Herman was properly admonished in writing and in open court as to the range of punishment prior to his plea and that all aspects of the plea hearing were regular on their face. (State Habeas R. at 67.) In his federal petition, Herman makes no reference to the state court findings and makes no effort to rebut the presumptive correctness of the findings. See 28 U.S.C. § 2254(d)(1); Bell v. Cone, 535 U.S. 685, 698-99 (2002); Haynes v. Cain, 298 F.3d 375, 379-82 (5^th Cir.). Nor does an independent review of the state court records reveal clear and convincing evidence that would rebut the presumption of correctness.

2 In its "Postconviction Habeas Corpus Order," the state court refers to the "Guilty Plea Memo." A copy of the memo is not included in the state habeas record nor have the parties provided a copy.

Without substantiation in the record, a court cannot consider a habeas petitioner's mere assertions on a critical issue in his pro se petition to be of probative evidentiary value. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5^th Cir. 1983). Accordingly, a habeas petitioner's self-serving assertion, after the fact, that he was persuaded or coerced into entering a guilty plea by counsel or others is in and of itself insufficient. See Siao-Pao v. Keane, 878 F. Supp. 468, 472 (S.D.N.Y. 1995); see also, e.g., Panuccio v. Kelly, 927 F.2d 106, 109 (2^nd Cir. 1991) (a defendant's testimony after the fact suffers from obvious credibility problems). Herman has offered nothing more than his unsubstantiated allegations concerning counsel's representation and influence on his decision to plead guilty, which are insufficient to rebut the presumption of regularity of the state court records and the correctness of the state courts' adjudication of the issue. See Babb v. Johnson, 61 F. Supp. 2d 604, 607 (S.D. Tex. 1999); see also Hill, 210 F.3d at 485; Armstead v. Scott, 37 F.3d 202, 210 (5^th Cir. 1994). Counsel's obligation is to inform a criminal defendant of the advantages and disadvantages of a plea agreement and the attendant statutory and constitutional rights that a guilty plea would forgo. Libretti v. United States, 516 U.S. 29, 50-51 (1995). Often a criminal defendant, even if he is unwilling or unable to admit his guilt, will agree to plead guilty to an offense, having been so informed by counsel, in order to avoid a potentially longer sentence by a jury. Such a decision on the part of a defendant does not render counsel's representation deficient or a plea involuntary. See North Carolina v. Alford, 400 U.S. 25, 37 (1970); Brady v. United States, 397 U.S. 742, 749-50 (1970).

Herman also contends counsel was ineffective by not investigating his prior convictions used for enhancement purposes. According to Herman, the indictment is defective and his fifteen-year sentence is illegal because the two prior felony convictions alleged in the enhancement paragraphs do not have the same elements and are not the same type of offense and because the 1992 conviction was final more than ten years before the instant offense occurred. (Petition at 7.) He argues that had counsel investigated these matters, he would have known that one or more of the convictions could not be used to enhance his sentence for the instant offense. The state court found, however, that these claims have no basis in law and noted that Herman apparently confuses the state evidentiary rules with the state enchantment rules. (State Habeas R. at 66-67.) The court determined that Herman's punishment was enhanced under § 12.42(a)(2) of the Texas Penal Code, which provides: "If it is shown on the trial of a state jail felony . . . that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second-degree felony." (State Habeas R. at 66.) TEX. PENAL CODE ANN. § 12.42(a)(2) (Vernon Supp. 2005). There is no requirement under this provision that the prior convictions have the same elements or be of the same type as the instant offense or that the previous felony convictions occur within ten years of the instant offense. Thus, both the prior convictions alleged in the enhancement paragraphs were properly included in the indictment and used to enhance Herman's sentence.

Finally, Herman contends the state failed to disclose to the court evidence favorable to him in the form of an affidavit of nonprosecution executed by the victim. As a matter of Texas law, however, the state is not required to accept an affidavit of nonprosecution and such an affidavit has no effect on whether a case is prosecuted. (State Habeas R. at 66.) See Jackson v. Texas, 624 S.W.2d 306, 309 (Tex.App.-Dallas 1981, no pet.). Moreover, the affidavit in question is not necessarily exculpatory. ( Id. at 59.) The affidavit was prepared by the defense, executed by the victim who remained Herman's girlfriend at the time of his trial, and did not specifically state that no offense had occurred.

II. RECOMMENDATION

Herman has failed to satisfy the legal standard for habeas corpus relief set forth above, and his 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 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, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until January 31, 2005. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5^th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5^th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until January 31, 2005, to serve and file, not merely place in the mail, 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.