Opinion
Civil Action No. 5:97-CV-288 C
February 12, 2002
ORDER
Petitioner Stewart Larue Hites ("Hites"), acting pro se, timely filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 on September 18, 1997, alleging that the guilty plea which led to his current incarceration was involuntary because his counsel was constitutionally ineffective. Respondent Janie Cockrell ("Respondent") filed an Answer with Brief in Support and copies of Hites' relevant state court records. Hites filed objections to Respondent's Answer on November 22, 1999.
Hites originally filed his petition on September 18, 1997, and dated it May 16, 1997. By Order dated September 18, 1997, the petition was referred to the United States Magistrate Judge. On December 3, 1997, pursuant to a Motion to Dismiss by Respondent, the United States Magistrate Judge recommended that the petition be dismissed as time-barred by the statute of limitations in 28 U.S.C. § 2244(d).
By Order dated January 5, 1998, this Court adopted the findings and recommendation of the United States Magistrate Judge and ordered that Hites' petition he dismissed with prejudice. Hites appealed the dismissal to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit subsequently determined that the petition was not time-barred, vacated the judgment of the District Court, and remanded the petition to the District Court by Order dated August 19, 1999.
Respondent has lawful and valid custody of Hites pursuant to a judgment and sentence of the 137th Judicial District Court of Lubbock County, Texas, in cause no. 94-419, 160, styled The State of Texas v. Stewart Larue Hites. Hites was charged by indictment in cause no. 94-419, 160 with four counts of felony aggravated sexual assault. Pursuant to a plea bargain agreement, on November 9, 1995, Hites pleaded guilty to one count of aggravated sexual assault and the other three counts were dismissed. The Court subsequently sentenced Hites to forty (40) years' incarceration in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"). Hites did not appeal his conviction and sentence or file a petition for discretionary review.
Hites did, however, challenge his conviction and sentence in two state applications for habeas relief. In the first application, no. 30, 963-01, Hites alleged that his guilty plea was involuntary and unknowing because his attorney failed to investigate the facts of his case or prepare for trial. The state trial court applied the test for ineffectiveness enunciated in Strickland v. Washington, 466 U.S. 668 (1984), but found that Hites had failed to allege any facts to support his argument. The trial court recommended denying the application and on November 27, 1996, the Texas Court of Criminal Appeals dismissed the application.
In his second state application, no. 30, 963-02, Hites raised the following complaints:
(1) His guilty plea was involuntary and unknowing because his trial counsel was constitutionally ineffective;
(2) His trial counsel was constitutionally ineffective because he failed to investigate the facts of the case, he failed to prepare for trial, he failed to know the applicable law, and he failed to file a motion to suppress evidence;
(3) His counsel's misrepresentations caused Hites to falsely believe that he would receive a probated sentence; and
(4) His counsel allowed a psychologist to give legal advice.
The trial court first recommended that this second application be dismissed pursuant to article 11.07 § 4 of the Texas Code of Criminal Procedure, but the court alternatively made findings of fact and conclusions of law and recommended that the second application be denied. On November 6, 1996, the Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court without a hearing.
GROUNDS FOR REVIEW
The Court understands Hites to allege in his federal petition that his guilty plea in state court was involuntary because his trial counsel rendered constitutionally ineffective assistance of counsel. He specifically argues that counsel was ineffective for the following reasons:
1. He never explained the lesser included offenses of indecency with a child by contact and indecency with a child by exposure.
2. He failed to interview the state's witnesses "by not contacting the victim or her mother and securing an affidavit of non-prosecution."
3. He failed to seek out, interview, and subpoena the psychologists Dr. Wall and Dr. Brown, the four CPS workers who had previously investigated Hites, and the character witnesses.
4. He failed to prepare for trial by not discussing Hites' testimony, the trial procedures, the burden of proof, evidentiary rules, and courtroom etiquette.
5. Trial counsel threatened Hites with a "life sentence" if he did not accept the plea bargain offer of forty years.
6. Trial counsel informed Hites that he could not file an appeal if he was found guilty.
7. He did not explain the consequences of a guilty plea.
8. He did not subpoena the minutes from two grand jury proceedings to impeach the state's extraneous offense witnesses.
9. He refused to interview Hites' fiancee even though she was well acquainted with all parties involved.
10. Trial counsel failed to explain such options as pleading open to the court or a jury's ability to find a lesser included offense of the charged offenses.
11. Trial counsel failed to file a motion to quash the indictment, failed to have the state elect between the counts it would rely on to convict, and failed to carry any pretrial motions to a ruling.
This Court has jurisdiction over the parties and subject matter pursuant to 28 U.S.C. § 2241 and 2254.
STANDARD OF REVIEW
Hites filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"); therefore, the AEDPA standards apply. See Lindh v. Murphy, 521 U.S. 320 (1997) (holding that all non-capital federal writs of habeas corpus filed on or after April 24, 1996, are subject to the AEDPA). The AEDPA enacted the present 28 U.S.C. § 2254(d) which provides that a state prisoner may not obtain federal relief
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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.
"Adjudication on the merits" is a habeas term of art which refers to the state court's disposition; that is, whether the state court's disposition was substantive or procedural as opposed to the quality of the review. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).
For cases found to have been adjudicated on the merits in state court, the Supreme Court has determined that a federal court may grant a writ under the § 2254(d)(1) "contrary to" clause, only "if the state court arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decide[d] a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the [Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "Distinguishing between an unreasonable and an incorrect application of federal law, [the Supreme Court] clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable." Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 1918 (2001) (citing Williams v. Taylor, 529 U.S. at 410, 411).
Pure questions of law and mixed questions of law and fact should be reviewed under § 2254(d)(1) while pure questions of fact should be reviewed under § 2254(d)(2). Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000); Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir. 1998).
Findings of fact made by the state courts should be presumed correct unless the petitioner rebuts such findings with clear and convincing evidence. 28 U.S. 2254(e)(1). See Jackson v. Anderson, 112 F.3d 823, 824 (5th Cir. 1997) (holding that the burden of rebutting the presumption was made more onerous by the AEDPA's amendment to § 2254).
DISCUSSION
"The longstanding test for determining the validity of a guilty plea is `whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). "Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice `was within the range of competence demanded of attorneys in criminal cases.'" Id. (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)).
Hites argues only that his plea of guilty was rendered involuntary and unintelligent because his counsel's performance was not "within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. at 771.
"[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. at 58 (citing Strickland v. Washington, 466 U.S. 668 (1984)). Thus, Hites must demonstrate (1) that his counsel's performance was objectively deficient and (2) the deficient performance prejudiced his defense. Strickland v. Washington. 466 U.S. at 687. "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland v. Washington, 466 U.S. at 700 (emphasis added).
To demonstrate that his counsel's performance was objectively deficient, Hites must show that his attorney did not insure that he knowingly and voluntarily agreed to plead guilty. Randle v. Scott, 43 F.3d 221, 225 (5th Cir. 1995). The Supreme Court has determined that "[j]udicial scrutiny of counsel's performance must be highly deferential" because
[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. 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.Strickland v. Washington, 466 U.S. at 689 (internal quotations and citations omitted). See Neal v. Puckett, 239 F.3d 683, 687 (5th Cir. 2001) (holding that in considering whether an attorney's performance was objectively reasonable, a court "must determine whether there is a gap between what counsel actually did and what a reasonable attorney would have done under the circumstances.").
To demonstrate that he was prejudiced by his counsel's performance, Hites "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. at 59. "Simply alleging prejudice will not suffice"; the petitioner must affirmatively prove prejudice. Mangum v. Hargett, 67 F.3d 80, 84 (5th Cir. 1995). Deville v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994).
The state trial court considered Hites' claims of ineffective assistance and ordered trial counsel to file an affidavit regarding his representation of Hites. Hites did not file any affidavits in the state courts. The trial court specifically found that Hites had failed to allege what evidence he wanted his counsel to have suppressed; the videotape depicting the offense could not be suppressed because there was no seizure by the State — the video was given to the State by the victim; counsel had obtained copies of the Child Protective Services ("CPS") reports; counsel had viewed the videotape several times; counsel met several times with the defendant's ex-wife, the mother of the victim; counsel contacted a psychologist to assist with Hites' defense; counsel met with the prosecuting attorney; counsel had numerous conversations with Hites, both in person and over the telephone; and counsel filed several pretrial motions, including a motion for continuance which was granted. The trial court also found that trial counsel denied advising Hites that probation was a likely sentence and Hites signed written admonishments indicating that he understood there were no promises regarding what sentence would be imposed. The trial court concluded that there was no evidence to support Hites' allegation that his trial counsel was constitutionally ineffective.
In his affidavit, trial counsel also stated that "the State had a videotape that Mr. Hites had taken of the victim in this case, which videotape is quite graphic in its portrayal of the victim's vagina and Mr. Hites' penis touching the victim's thigh near her rectum." He further opined that if Mr. Hites had proceeded to trial, the evidence from the videotape and the extraneous offenses would most likely have resulted in a life sentence. He believed that in light of this evidence, the facts in this case did not lend themselves to the construction of a defense, let alone a viable defense. Hites does not deny the existence of the videotape or that he had previously been charged with similar offenses. He argues only that the evidence could have been impeached.
A state court's findings of fact made in the course of deciding a claim of ineffective assistance of counsel are entitled to a presumption of correctness, but the "ultimate conclusion that counsel did not render ineffective assistance . . . is a legal question which must be reviewed de novo." Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995); Wheat v. Johnson, 238 F.3d 357, 362 (5th Cir. 2001). Thus, the ultimate determination whether counsel was constitutionally effective is a mixed question of law and fact that is reviewed under subsection (d)(1) of § 2254. See Kitchens v. Johnson, 190 F.3d 698, 700 (5th Cir. 1999). Because Hites has failed to present any evidence to rebut the state court's findings of fact, they shall be presumed correct.
Hites first complains that his attorney was ineffective because he failed to explain the lesser included offenses of indecency with a child by contact and indecency with a child by exposure, but he fails to explain how or why this failure rendered his guilty plea involuntary. To the extent that this complaint can be liberally construed as an argument that he did not understand the nature of the charges against him, the record clearly refutes this argument. On November 9, 1995, the same day that he pleaded guilty, Hites and his attorney signed a "Written Admonishments on Plea of Guilty or Nolo Contendere Pursuant to Article 26.13, C.C.P." In this document, Hites acknowledged that he fully understood the range of punishment attached to the offense alleged against him and to which he intended to enter a plea. Hites and his attorney also signed a Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession on November 9, 1995. In that document, Hites swore that he understood the allegations and confessed that they were true. He further indicated that he waived the reading of the complaint and information, consented to the oral and written stipulation of evidence, and had been advised of the range of punishment. Cf. Marshall v. Lonberger, 459 U.S. 422, 437 (1983) (noting that a defendant is presumed to have been informed of the charges when he has been indicted). A defendant's signature on guilty plea documents is prima facie proof of the validity of his plea. Theriot v. Whitley, 18 F.3d 311, 314 (5th Cir. 1994). See United States v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994) (holding that a signed unambiguous plea agreement is accorded great evidentiary weight).
Hites also complains that his attorney did not explain the consequences of pleading guilty, but the record indicates otherwise. In the written admonishments signed by Hites, he stated that he understood the following:
(1) The state's recommendation was not binding on the court but if the court failed to follow the recommended plea agreement, he would be allowed to withdraw his guilty plea;
(2) He could not prosecute an appeal without permission from the trial court if his punishment did not exceed the recommended sentence unless he had raised the issues prior to trial in a written motion; and
(3) He waived his rights to a trial by jury, to confront and cross-examine witnesses, and to not be compelled to testify against himself at trial by pleading guilty. In the waiver of rights signed by Hites, he declared under oath that he had "fully discussed" the case with his attorney; he waived any further time to prepare for trial; and he stated that he was satisfied that the attorney representing him had "properly represented" him.
"The Constitution does not require a great deal of knowledge on the part of the defendant" for his plea of guilty to be knowing. United States v. Guerra, 94 F.3d 989, 995 (5th Cir. 1996). As long as a defendant understands the maximum prison term and fine for the offense he is charged with, he is "fully aware of his plea's consequences." Id. (quoting United States v. Rivera, 898 F.2d 442, 447 (5th Cir. 1990) (quoting Barbee v. Ruth, 678 F.2d 634, 635 (5th Cir. 1982)). Because the record clearly demonstrates that Hites knew the maximum prison sentence and fine which he could receive and indicates that he understood the nature of the charged offense, Hites has failed to show that his trial counsel did not sufficiently explain the consequences of his plea and he has not demonstrated that he was prejudiced by a failure to explain lesser included offenses.
Hites next complains that his attorney failed to contact the victim or her mother and obtain an affidavit of non-prosecution; he failed to interview and subpoena the psychologists Dr. Wall and Dr. Brown; he failed to interview and subpoena the four CPS workers who had previously investigated Hites; he failed to interview Hites' fiancee; and he did not subpoena the transcripts from two prior grand jury proceedings to impeach the state's extraneous offense witnesses.
[W]here the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error `prejudiced the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the `prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.Hill v. Lockhart, 474 U.S. at 59; Armstead v. Scott, 37 F.3d at 206. Other than his conclusory allegations that these witnesses would have changed his attorney's recommendation to plead guilty, Hites has presented no evidence to show that the testimony of the witnesses would have changed the outcome of a trial if he had elected to go to trial. See Syre v. Anderson, 238 F.3d 631, 635 (5th Cir. 2001) (holding that a defendant's self-serving conclusory statement that his testimony would have resulted in an acquittal fell "far short of satisfying Strickland's prejudice element" where he never explained what his testimony would have been).
Moreover, Hites admits that counsel had represented him in the prior CPS and grand jury proceedings, and counsel confirms this in his affidavit when he states that he represented Hites on previous occasions when "he was accused of the same type of conduct as in this case." See Mangum v. Hargett, 67 F.3d at 85 (finding that counsel was not ineffective for failing to interview witnesses prior to a guilty plea where he was aware of the fact that the witnesses' testimony would have supported the defendant's claim to self defense). Thus, his trial counsel would have been aware of the testimony from witnesses from the prior investigations. Furthermore, counsel states in his affidavit that he advised Hites that character witnesses could not be used because they could be turned against him at trial when the State presented the videotape. Hites provided no affidavits, either in this Court or in the state courts, from the character witnesses, CPS employees, his fiancee, or his ex-wife and her daughter to show what their testimony would have been, nor has he demonstrated that such testimony would have changed his attorney's recommendation to plead guilty. See Sayre v. Anderson, 238 F.3d at 736 ("It is clear that [petitioner's] conclusory speculation about the effect of the unidentified favorable witness' testimony falls far short of the prima facie showing of prejudice . . .").
Hites also alleges that his counsel failed to prepare for trial by not discussing his own testimony, the trial procedures, the burden of proof, evidentiary rules, and courtroom etiquette, and he did not explain alternatives to pleading guilty such as pleading open to the court or explaining that a jury could find a defendant guilty of lesser included offenses. Hites, however, never explains how these alleged failures rendered his plea involuntary or that if his attorney had performed these acts he would have insisted on going to trial. "[C]onclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding." Miller v. Johnson, 200 F.3d at 282.
Although Hites also alleges that counsel failed to file a motion to quash the indictment, failed to have the state elect between counts, and failed to carry any pretrial motions to a ruling, he has not shown that the indictment could have been quashed nor has he demonstrated how carrying the pretrial motions to a ruling would have changed his counsel's advice to plead guilty. The state trial court determined that Hites had, in fact, obtained copies of the Child Protective Services ("CPS") reports, viewed the videotape of the alleged offense several times, met several times with the defendant's ex-wife, the mother of the victim, contacted a psychologist, met with the prosecuting attorney, had numerous conversations with Hites, and filed several pretrial motions. Hites has neither rebutted these findings with clear and convincing evidence nor demonstrated how he was prejudiced by his trial counsel's alleged failures.
To the extent that Hites argues that his trial counsel "threatened" him with a life sentence if he did not accept the plea offer of forty (40) years, he has failed to present evidence sufficient to demonstrate that his plea was coerced. In his petition, Hites clearly states that his counsel said, "[t]hey are offering you forty (40) years and if you don't take it, they will give you life. . . ." He also argues that his counsel and the psychologist "teamed up" to coerce him into pleading guilty at the last minute by threatening him with a life sentence. He does not, however, allege actual or threatened physical harm, bribes, or mental coercion so overwhelming that it overcame his free will. See Jones v. Estelle, 584 F.2d 687, 690 (5th Cir. 1978) (holding that allegations of impatience, stern demands for a quick decision regarding a plea offer, and the threat of a life sentence if defendant went to trial, did not amount to mental coercion sufficient to render a plea of guilty involuntary). Moreover, a prediction or mere statement of the probabilities of a length of sentence is not sufficient to render a guilty plea involuntary when a petitioner states in the plea proceedings that there have been no promises and he understands the maximum exposure. Harmason v. Smith, 888 F.2d 1527, 1531-32 (5th Cir. 1989).
Hites' argument that the psychologist provided legal advice is refuted by his own petition. He quotes the psychologist as saying "The state's case is like a big train that you cannot get out from in front of. If you don't take the 40 years, you will get a life sentence." This quote clearly demonstrates that the doctor was expressing his opinion regarding the state's evidence and a possible sentence if Hites proceeded to trial. See Brady v. Johnson, 397 U.S. 742, 751 (1970) (declining to find a guilty plea compelled and invalid when motivated by a defendant's desire to accept the certainty of a lesser penalty rather than face a higher penalty that is authorized by law for the offense charged).
Finally, Hites contends that his guilty plea was involuntary because counsel erroneously informed him that he could not file an appeal if he proceeded to trial and was found guilty. In the written admonishments signed by Hites, he declared under oath that he understood that by pleading guilty he was waiving his right to appeal any matters without permission of the court except for those issues raised by written motion filed prior to trial. Thus, he has presented conflicting evidence regarding his knowledge of the right to appeal. If counsel did in fact advise Hites that he could not file an appeal following a trial and a guilty verdict, his advice was incorrect and constitutionally deficient. Other than his conclusory allegation of prejudice, however, Hites has failed to demonstrate that, but for this advice, he would not have pleaded guilty and would have insisted on going to trial.
Hites also complains that he was incorrectly advised about his eligibility for parole, but even if he was erroneously advised, it does not render his guilty plea involuntary. See Hill v. Lockhart, 474 U.S. at 60 ("[P]etitioner's mistaken belief that he would become eligible for parole after serving one-third of his sentence would seem to have affected not only his calculation of the time he likely would serve sentenced pursuant to the proposed plea agreement, but also his calculation of the time he likely would serve if he went to trial and were convicted;" therefore, he did not demonstrate sufficient prejudice to support a claim of ineffective assistance); Spinelli v. Collins, 992 F.2d 559, 562 (5th Cir. 1993) (holding that a defendant's mistaken belief about parole does not warrant setting aside a plea of guilty "where the misunderstanding did not rest on any promises" and the defendant understood the maximum amount of time he could receive).
Accordingly, the Court finds that Hites has failed to demonstrate that the state court's finding that counsel was not constitutionally ineffective is either contrary to or an unreasonable application of clearly established Supreme Court law, and his Petition for Writ of Habeas Corpus should be denied and dismissed with prejudice.
SO ORDERED.
JUDGMENT
For the reasons stated in the Court's Order of even date,
IT IS ORDERED, ADJUDGED, AND DECREED that the above-styled and numbered cause is dismissed with prejudice.