Opinion
NO. 3-01-CV-1370-L
March 27, 2002
FINDINGS AND RECOMMENDATION OF TILE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a habeas case brought under 28 U.S.C. § 2254. Petitioner Joseph Dominic Jamme was placed on five years deferred adjudication probation following his plea of guilty to aggravated sexual assault. Thereafter, petitioner was charged with a probation violation. The trial court revoked his probation, found petitioner guilty of the underlying offense, and sentenced him to 25 years confinement. His conviction and sentence were affirmed on direct appeal. Jamme v. State, Nos. 05-98-01394-CR (Tex.App.--Dallas, Jan. 21, 2000, pet. ref'd). Petitioner also filed an application for state post-conviction relief. The Texas Court of Criminal Appeals denied the application without written order. Ex parte Jamme, No. 49, 533-01 (Tex.Crim.App. Jun. 27, 2001). Petitioner then filed this action in federal court.
II.
Petitioner challenges his guilty plea, probation revocation, and resulting conviction on multiple grounds. Succinctly stated, petitioner contends that: (1) the indictment was defective; (2) his guilty plea was involuntary; (3) the trial court did not properly admonish him regarding the terms of his probation; (4) the state breached the plea agreement; (5) the evidence was insufficient to support his conviction; (6) the complaining witness lied to the police; (7) the police did not conduct an adequate investigation; (8) the grand jury did not interview impartial witnesses to determine whether a crime had been committed; (9) several grand jurors had a conflict of interest; (10) he was denied the right to an examining trial; (11) he was never formally arraigned or permitted to enter a "not guilty" plea; (12) his bail was revoked without a hearing; (13) he was denied a speedy trial; (14) he was denied the right to a jury trial; (15) he received ineffective assistance of counsel; (16) the complaining witness was not subject to cross-examination; (17) the prosecutor made inflammatory comments about his testimony; (18) his punishment hearing was held more than 10 days after the adjudication of guilt; (19) the trial court failed to rule on his pro se motions; (20) he was denied a meaningful appeal; (21) the Texas Penal Code is unconstitutional; (22) his sentence exceeds the maximum penalty for the offense; (23) he is actually innocent; and (24) he was denied due process and equal protection in the adjudication of his application for state post-conviction relief.
As part of her answer, respondent argues that petitioner is barred from challenging his original guilty plea on limitations grounds. Alternatively, respondent maintains that petitioner is not entitled to habeas relief on the merits. The Court will address the limitations issue first.
III.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year statute of limitations for federal habeas proceedings. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132, 110 Stat. 1214 (1996). In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. 28 U.S.C. § 2244(d)(1)(A). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. Id. § 2244(d)(2). The one-year limitations period is also subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
The statute provides that the limitations period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking direct review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1).
On August 18, 1997, petitioner pled guilty to aggravated sexual assault and was placed on deferred adjudication probation for five years. The trial court subsequently revoked his probation, found petitioner guilty of the underlying offense, and sentenced him to 25 years confinement. A judgment of conviction was entered on August 6, 1998 and affirmed on January 21, 2000. The Texas Court of Criminal Appeals refused a petition for discretionary review on June 7, 2000. Petitioner filed an application for state post-conviction relief on April 17, 2001, which was denied on June 27, 2001. This action was filed on July 17, 2001.
Petitioner's application for writ of habeas corpus is dated July 9, 2001, but was not file-stamped until July 17, 2001. The Court will consider the application filed as of the earlier date. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) ( pro se habeas petition deemed filed when delivered to prison authorities for mailing).
Respondent argues that the limitations period on any claims arising out of petitioner's guilty plea started to run on September 17, 1997 — 30 days after he was placed on deferred adjudication probation. According to respondent, Texas law requires a defendant to appeal any issues related to a deferred adjudication probation within 30 days of the conclusion of that proceeding. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999). Therefore, respondent believes that the deferred adjudication order became final for limitations purposes upon the expiration of the original appellate deadline. (Resp. Ans. at 5).
While state procedural rules require a defendant to appeal any errors in a deferred adjudication proceeding within 30 days, the limitations period under the AEDPA starts to run from "the date on which the judgment bec[omes] final." 28 U.S.C. § 2244(d)(1)(A) (emphasis added). Deferred adjudication is not a final judgment because there has been no determination of guilt. See, e.g. Davis v. State, 968 S.W.2d 368, 371 (Tex.Crim.App. 1998) (deferred adjudication is not a judgment, conviction, or sentence); Rough v. Ojeda, 954 S.W.2d 127, 131 (Tex.App.--San Antonio 1997) (deferred adjudication is not a final disposition of underlying complaint); TEX. CODE CRIM. PROC. ANN. art 42.01, § 1 (Vernon Supp. 1994) (judgment is written declaration of the court showing "conviction or acquittal of the defendant").
The statute of limitations started to run on "the date the judgment became final by conclusion of direct review." 28 U.S.C. § 2244(d)(1)(A). This occurred on September 5, 2000- 90 days after the Texas Court of Criminal Appeals denied discretionary review and the deadline for filing a petition for writ of certiorari expired. Cf. United States v. Gamble, 208 F.3d 536, 537 (5th Cir. 2000) (federal conviction final upon expiration of deadline for filing petition for writ of certiorari). Petitioner filed this action in federal court less than one year later. Accordingly, none of his claims are time-barred.
IV.
Petitioner raises a myriad of complaints relating to the sufficiency of the indictment and the validity of his guilty plea. Specifically, he contends that: (1) the indictment does not identify the complaining witness by her pseudonym; (2) his guilty plea was involuntary; (3) the trial court did not properly admonish him regarding the terms of his probation; and (4) the state breached the plea agreement.
A.
Under the AEDPA, a habeas petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding 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 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 of the United States] 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. A state court decision is entitled to deference unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 121 S.Ct. 2001 (2001). A presumption of correctness attaches to factual determinations made by a state court. 28 U.S.C. § 2254(e)(1). A habeas petitioner must rebut this presumption by clear and convincing evidence. Id.; Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998), cert. denied, 119 S.Ct. 1339 (1999).
B.
Petitioner contends that the indictment was defective because the it does not identify the complaining witness by her pseudonym and "fails to insure double jeopardy protection." (Hab. Pet. at 21).
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).
2.
Petitioner was charged with aggravated sexual assault, a first-degree felony under Texas law. A person commits aggravated sexual assault if he: (1) intentionally or knowingly, (2) causes penetration of the female sexual organ of another person by any means, (3) without consent, and (4) causes the victim to fear, or threatens the victim with, death or serious bodily injury. TEX. PENAL CODE ANN. § 22.021(a)(1)(A) (a)(2)(A) (Vernon 1994).
The indictment alleges that petitioner:
did unlawfully, knowingly and intentionally cause the penetration of the female sexual organ of JAMIE ANN COFFEE, hereinafter called the complainant, without the consent of the complainant, by means of an object, to-wit: sexual organ of JOSEPH DOMINIC JAMME, and by acts and words occurring in the presence of the complainant, said defendant threatened to cause the death, serious bodily injury and kidnapping of complainant and other persons,
And unlawfully, knowingly and intentionally cause the penetration of the female sexual organ of JAMIE ANN COFFEE, hereinafter called the complainant, without the consent of the complainant, by means of an object, to-wit: sexual organ of JOSEPH DOMINIC JAMME, and by acts and words placed complainant in fear that death, serious bodily injury and kidnapping will be imminently inflicted on said complainant and other persons,
unlawfully, knowingly and intentionally cause the contact and penetration of the female sexual organ of JAMIE ANN COFFEE, hereinafter called the complainant, without the consent of the complainant, by means of an object, to-wit: the mouth of JOSEPH DOMINIC JAMME, and by acts and words occurring in the presence of the complainant, said defendant threatened to cause the death, serious bodily injury and kidnapping of complainant and other persons,
And unlawfully, knowingly and intentionally cause the contact and penetration of the female sexual organ of JAMIE ANN COFFEE, hereinafter called the complainant, without the consent of the complainant, by means of an object, to-wit: the mouth of JOSEPH DOMINIC JAMME, and by acts and words placed complainant in fear that death, serious bodily injury and kidnapping will be imminently inflicted on said complainant and other persons . . .
(St. App. Tr. at 2). Clearly, the indictment contains the essential elements of aggravated sexual assault under Texas law. The complaining witness is identified by her true name, Jamie Ann Coffee. This was sufficient to enable petitioner to plead a bar in jeopardy. The fact that the indictment does not identify the victim by her pseudonym does not raise a jurisdictional defect which merits federal habeas relief.
The indictment was subsequently amended to delete the words "and other persons" from the second, third and fourth counts. (St. App. Tr. at 13).
C.
Petitioner further contends that he was "forced" to plead guilty by his lack of confidence in the criminal justice system. In a related ground, petitioner criticizes the trial judge for failing to properly admonish him regarding his obligation to perform community service as a condition of probation.
1.
A trial judge is required to ensure that a guilty plea is knowing and voluntary. See James v. Cain, 56 F.3d 662, 666 (5th Cir. 1996). A defendant must "[have] a full understanding of what the plea connotes and of its consequences." Taylor v. Whitley, 933 F.2d 325, 329 (5th Cir. 1991), cert. denied, 112 S.Ct. 1678 (1992), quoting Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). This constitutional inquiry focuses on three core concerns: (1) the absence of coercion; (2) an understanding of the charges; and (3) a realistic understanding of the consequences of the guilty plea. United States v. Bernal, 861 F.2d 434, 436 (5th Cir. 1988), cert. denied, 110 S.Ct. 203 (1989). These core concerns are addressed by the admonishments contained in Article 26.13 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 26.13 (Vernon l989).
The Fifth Circuit has held that the admonishments under Rule 11 of the Federal Rules of Criminal Procedure provide "prophylactic protection for the constitutional rights involved in the entry of a guilty plea." United States v. Gracia, 983 F.2d 625, 627 (5th Cir. 1993). The requirements of Rule 11 and Article 26.13 are substantially similar. Compare FED. R. CRIM. P. 11 with TEX. CODE CRIM. PROC. ANN. art. 26.13. It therefore follows that the same "prophylactic protections" attach to the admonishments under Article 26.13.
2.
The record shows that petitioner was properly admonished in accordance with Article 26.13. He signed a judicial confession and written waivers acknowledging the nature of the charges and the range of punishment. (SF-II, Exhs. 3, 4 5). Petitioner also was admonished in open court. The trial judge told petitioner that the range of punishment for aggravated sexual assault was not less than five nor more than 99 years or life imprisonment. (SF-I at 8). Petitioner indicated that he reviewed the indictment with his attorney and understood the charges and the punishment range. ( Id. at 6-8). The judge then reviewed the terms of the plea agreement and the effect of deferred adjudication probation. ( Id. at 8-10). Petitioner said that he wanted to go forward with his plea. ( Id. at 10-11). When asked by the judge if he committed the offense charged in the indictment, petitioner responded, "Yes, ma'am." ( Id. at 12). This sworn testimony carries a strong presumption of veracity in a subsequent federal habeas proceeding. See Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977); Bonvillian v. Blackburn, 780 F.2d 1248, 1250 (5th Cir.), cert. denied, 106 S.Ct. 2253 (1986).Petitioner challenged his guilty plea in an application for state post-conviction relief. The trial judge denied the application. On direct appeal, the state appellate court found that petitioner's guilty plea was voluntary. Jamme v. State, No. 05-98-01375-CR (Tex.App.--Dallas, Jan. 21, 2000, pet ref'd). This finding is not "unreasonable" in light of the evidence contained in the state court record. See 28 U.S.C. § 2254(d).
D.
In two related grounds, petitioner contends that: (1) the trial judge failed to admonish him that community service was a condition of his probation; and (2) the state breached the plea agreement by requiring him to perform community service. These claims are patently frivolous. First, a trial court is not required to admonish a defendant regarding the collateral consequences of his guilty plea. See e.g., James, 56 F.3d at 666 (constitution does not require furnishing defendant with information about parole eligibility); United States v. Gavilan, 761 F.2d 226, 228 (5th Cir. 1985) (no due process right to be informed of collateral consequences of criminal conviction); George v. Black, 732 F.2d 108, 110-11 (8th Cir. 1984) (trial court not required to admonish defendant of mandatory mental health commitment proceeding after release from prison). Second, petitioner specifically agreed to perform 320 hours of community service through the Dallas County Day Reporting Center as a condition of his probation. (St. App. Tr. at 19). These grounds for relief are without merit and should be overruled.
E.
Petitioner also complains that: (1) the evidence was insufficient to support his conviction; (2) the complaining witness lied to the police; (3) the police did not conduct an adequate investigation; (4) the grand jury did not interview impartial witnesses to determine whether a crime had been committed; (5) several grand jurors had a conflict of interest; (6) he was denied the right to an examining trial; (7) he was never formally arraigned or permitted to enter a "not guilty" plea; (8) his bail was revoked without a hearing; (9) he was denied a speedy trial; and (10) he was denied the right to a jury trial. However, all these claims are waived by petitioner's voluntary guilty plea. See Tollett v. Henderson, 411 U.S. 258, 265, 93 S.Ct. 1602, 1607, 36 L.Ed.2d 235 (1973) (voluntary guilty plea waives non-jurisdictional defects in a criminal proceeding); Matthew v. Johnson, 201 F.3d 353, 364 (5th Cir.), cert. denied, 121 S.Ct. 291 (2000) (noting long-standing rule that valid guilty plea bars habeas review of non-jurisdictional claims alleging antecedent violations of constitutional rights).
V.
Next, petitioner contends that he received ineffective assistance of counsel because his attorney: (1) waived an examining trial without permission; (2) did not inform petitioner of the indictment or otherwise explain the charges against him; (3) refused to visit petitioner in jail; (4) did not return telephone calls; (5) failed to advise petitioner that the charge had been reduced to a second-degree felony; (6) told petitioner that he had no right to a speedy trial; (7) did not file pretrial motions; (8) negotiated a plea bargain that involved community service; (9) coerced petitioner into dropping a grievance; (10) did not object to inflammatory comments made by the prosecutor and improper cross-examination of a defense witness during the revocation hearing; (11) failed to advise petitioner of his appellate rights; and (12) did not adequately prosecute a direct appeal or an application for writ of habeas corpus.
A.
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). In order to obtain federal habeas relief due to ineffective assistance of counsel, a petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner first must demonstrate that counsel's performance fell below an objective standard of reasonableness. Id., 104 S.Ct. at 2064. He then must show how this deficiency prejudiced the defense. Id. at 2067. Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 2068. See also Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (habeas petitioner must show that trial result was unreliable or proceeding fundamentally unfair due to deficient performance of counsel). There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 110 S.Ct. 1311 (1990). In order to obtain federal habeas relief, a petitioner must affirmatively show how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
B.
The first nine instances of ineffective assistance cited by petitioner occurred prior to the entry of his guilty plea. As previously noted, a voluntary guilty plea waives all non-jurisdictional defects in a criminal proceeding. United States v. Smallwood, 920 F.2d 1231, 1240 (5th Cir. 1991). This includes claims alleging ineffective assistance of counsel that do not implicate the validity of the plea itself. See United States v. Glinsey, 209 F.3d 386, 392 (5th Cir.), cert. denied, 121 S.Ct. 282 (2000). Since petitioner has failed to establish that his guilty plea was involuntary, these claims are waived.
Petitioner further contends that his attorney failed to object to inflammatory comments made by the prosecutor during the revocation hearing. According to petitioner, the prosecutor's remarks were "rude, out of context, and inaccurate." (Hab. Pet. at 33). However, petitioner does not identify the improper comments allegedly made by the prosecutor. Nor are these remarks apparent from the record. This conclusory assertion does not merit federal habeas relief. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 121 S.Ct. 122 (2000).
Petitioner also criticizes his attorney for allowing the prosecutor to cross-examine a defense witness regarding his criminal record. At the revocation hearing, Jason Jamme testified that the complaining witness, Shannon Bush, had falsely accused him of assaulting her in the past. (SF-III at 93-95). On cross-examination, the prosecutor inquired:
The state moved to revoke petitioner's probation and proceed with an adjudication of guilt based, in part, on an allegation that he assaulted Shannon Bush "by striking complainant's head with his hand and grabbing complainant's head with his hand." (St. App. Tr. at 26).
Q: Sir, are you the same Jason Paul Jamme, who in Cause number F94-30220, was convicted of possession of a controlled substance back on October 21st, 1994, and was sentenced to two years in the penitentiary?
A: Yes, sir.
Q: Are you also the same person who in Cause number F94-33609, pled guilty and was convicted of possession of a controlled substance and was also sentenced on October 19th, 1994, to two years in the penitentiary?
A: Yes.
Q: And, are you also the same person who is currently on probation for criminal mischief right now?
A: Yes.
( Id. at 95). Petitioner maintains that counsel should have objected to this improper attempt to "undermine the credibility" of this key defense witness. (Hab. Pet. at 33). However, Texas law allows for impeachment of a witness with evidence of a prior felony conviction. See TEX. R. EVID. 609(a). Any attempt to prevent this cross-examination would have been futile. See Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990) (counsel not required to make futile objections).
Finally, petitioner contends that this attorney failed to advise him of his appellate rights and did not adequately prosecute a direct appeal or an application for writ of habeas corpus. The record shows that petitioner was fully informed of his right to a limited appeal. In a written admonishment given prior to the entry of his guilty plea, the trial court advised:
If judgment is rendered in this case and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by you and your attorney, in order to prosecute an appeal for a non-jurisdictional defect or error that occurred prior to the entry of the plea, the Notice of Appeal shall state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before trial.
If you receive deferred adjudication and a violation of probation occurs, you may be arrested, detained, and a hearing conducted, limited to the determination of whether the court should proceed to adjudication of guilt on the original charge or not. No appeal may be taken from this determination. If there is an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and your right to appeal continue as if the adjudication of guilt had not been deferred.
(SF-II, Exh. 3). Petitioner signed this document, acknowledging that he understood his appellate rights. This forecloses any claim of ineffective assistance of counsel.
Moreover, counsel duly perfected an appeal and filed an application for writ of habeas corpus. Although petitioner argues that his attorney did not adequately pursue these appellate and post-conviction remedies, he fails to explain how the performance of counsel was deficient. Consequently, habeas relief is not proper. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (court cannot even begin to analyze ineffective assistance of counsel claim without affirmative showing of missing evidence or testimony).
The Court further notes that an ineffective assistance of counsel claim cannot be predicated on the failure to pursue discretionary state appeals or post-conviction remedies. See Jackson v. Johnson, 217 F.3d 360, 365 (5th Cir. 2000).
VI.
Petitioner challenges his revocation hearing, adjudication of guilt, and resulting punishment on various grounds. Specifically, petitioner argues that: (1) the complaining witness was not subject to cross-examination; (2) the prosecutor made inflammatory comments about his testimony; (3) his punishment hearing was held more than 10 days after the adjudication of guilt; (4) the trial court failed to rule on his pro se motions; (5) he was denied a meaningful appeal; (6) the Texas Penal Code is unconstitutional; (7) his sentence exceeds the maximum penalty for the offense; and (8) he is actually innocent.A.
Petitioner contends that he was denied due process at the revocation hearing because the complaining witness, Shannon Bush, did not testify and was not subject to cross-examination. A defendant in a criminal case has a right "to be confronted with the witnesses against him." U.S. CONST. amend VI; Cruz v. New York, 481 U.S. 186, 189, 107 S.Ct. 1714, 1719, 95 L.Ed.2d 162 (1987). The purpose of this constitutional safeguard is to prevent improper restrictions on the types of questions defense counsel may ask on cross-examination. See Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 999, 94 L.Ed.2d 40 (1987); Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985). However, the state was under no obligation to call Bush as a witness just so petitioner could cross-examine her. Petitioner could have subpoenaed this witness if he wanted her testimony. Under these circumstances, there was no confrontation clause violation.
The state presented its case through the testimony of Scott Boldin, a witness to the assault. Boldin testified that petitioner confronted Bush in her apartment, pinned her down, put his hand over her mouth, and hit her on the head. (SF-III at 18-19). On cross-examination, defense counsel tried to elicit testimony that Bush was an intravenous drug user who may have been intoxicated at the time of the alleged assault. ( Id. at 28-39).
B.
Petitioner further alleges that the prosecutor made certain comments at the revocation hearing "that were neither true nor relevant." (Hab. Pet. at 33). However, petitioner does not identify any of these remarks. Such conclusory allegations are insufficient to merit relief See Miller, 200 F.3d at 282.C.
Next, petitioner argues that his punishment hearing was held more than 10 days after the adjudication of guilt in violation of state law. This claim fails for at least two reasons. First, a violation of state law does not merit federal habeas relief. See Porter v. Estelle, 709 F.2d 944, 957 (5th Cir. 1983), cert. denied, 104 S.Ct. 2367 (1984). Second, petitioner does not cite to any legal authority requiring the trial court to hold a punishment hearing within a specified time period. Consequently, this ground for relief should be overruled.
D.
Petitioner also complains that the trial court failed to rule on his pro se motions. The record shows that petitioner filed several motions while he was represented by counsel. (St. App. Tr. 11-12, 31-36). Although a defendant has a constitutional right to represent himself, there is no right to hybrid representation. See United States v. Mikolajczyk, 137 F.3d 237, 246 (5th Cir.), cert. denied, 119 S.Ct. 250 (1998) (defendant has right to represent himself, or to receive competent representation from an attorney, but not both). Under these circumstances, the trial court was not required to rule on pro se motions.
E.
Petitioner argues that he was denied a meaningful appeal because the state appellate court dismissed his claims on procedural grounds. On direct appeal of his final conviction, petitioner challenged the validity of his guilty plea, counsel's waiver of an examining trial, and the sufficiency of the indictment. The court of appeals held that petitioner should have raised these claims in an appeal from the deferred adjudication order. Jamme, No. 05-98-01394-CR, op. at 2, citing Manuel, 994 S.W.2d at 661-62. This ruling is neither contrary to clearly established federal law or otherwise unreasonable. To the contrary, it is based on well-established rules of state appellate procedure. This ground for relief should be overruled.
In a separate appeal, petitioner challenged the denial of his application for state post-conviction relief on the ground that his guilty plea was involuntary. The court of appeals addressed the merits of this claim, but ultimately found that petitioner "did not meet his burden of proving his allegations by a preponderance of the evidence." Jamme, No. 05-98-01375-CR, op. at 2.
F.
Next, petitioner contends that the Texas Penal Code was never "constitutionally enacted, re-enacted or promulgated in accordance with law." (Hab. Pet. at 36). Not surprisingly, no authority is cited for this rather extraordinary claim. Consequently, petitioner is not entitled to relief on this basis.
G.
Petitioner further argues that his 25-year sentence exceeds the maximum penalty for the offense. Evidently, petitioner believes that he was charged with sexual assault, a second-degree felony, rather than aggravated sexual assault, a first-degree felony. Such is not the case. The indictment clearly charges the offense of aggravated sexual assault. Petitioner pled guilty to this offense and was admonished as to the range of punishment for a first-degree felony. All the orders and judgments entered of record indicate that petitioner was convicted of aggravated sexual assault. Despite his protestations to the contrary, petitioner was sentenced well within the statutory range of punishment.
Although the docket sheet reflects an entry of "Sexual Assault, A 2nd Degree Felony Offense as Charged in the Indictment," this obviously is a clerical error. (St. App. Tr. at 4).
H.
Petitioner also claims actual innocence. However, such a claim, standing alone, is insufficient to merit federal habeas relief. See Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 860, 122 L.Ed.2d203 (1993); Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000), cert. denied, 121 S.Ct. 1250 (2001). There also must be evidence of an independent constitutional violation in the state criminal proceeding. Dowthitt, 230 F.3d at 741. Here, petitioner has failed to establish an underlying constitutional violation. Nor is there any affirmative evidence of his innocence. Rather, petitioner merely asserts that he "did not commit a crime and was falsely accused." (Hab. Pet. at 20). This self-serving, conclusory allegation does not merit relief. See Fahle v. Cornyn, 231 F.3d 193, 196-97 (5th Cir. 2000), cert. denied, 121 S.Ct. 2010 (2001).
VII.
Lastly, petitioner maintains that he was denied due process and equal protection in the adjudication of his application for state post-conviction relief. The Fifth Circuit has repeatedly held that defects in a state habeas proceeding are not cognizable under 28 U.S.C. § 2254. See Rudd v. Johnson, 256 F.3d 317, 319-20 (5th Cir.), cert. denied, 121 S.Ct. 477 (2001) (noting long line of cases dictating that infirmities in state habeas proceeding do not warrant federal habeas relief). Accordingly, this ground for relief should be overruled.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.