Opinion
Civil Action No. 5:00-CV-016C
February 12, 2002
ORDER
Petitioner Shannon Ray Lindsey ("Petitioner"), 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 January 3, 2000, alleging that he received ineffective assistance of counsel during his guilty plea proceedings in state court. Respondent filed an Answer with Brief in Support and copies of Petitioner's relevant state court records. Petitioner did not file a response.
Respondent has lawful and valid custody of Petitioner pursuant to a judgment and sentence of the 364th Judicial District Court of Lubbock County, Texas, in cause no. 98-427766, styled The State of Texas v. Shannon R. Lindsey. Petitioner was charged by indictment in cause no. 98-427766 with the felony offense of burglary of a habitation. Pursuant to a plea bargain agreement, Petitioner pleaded guilty to the offense on February 8, 1999, and was sentenced to ten years' incarceration in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"). Petitioner filed neither a direct appeal nor a petition for discretionary review.
Petitioner did, however, challenge his conviction and sentence in a state application for habeas relief. Although Petitioner alleged that counsel was constitutionally ineffective during his plea proceedings, the state trial court determined that he failed to demonstrate that counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), and recommended that the application be denied. The Texas Court of Criminal Appeals subsequently denied the application without written order on October 27, 1999.
In the instant petition, Petitioner complains only that his guilty plea was involuntary and unknowing because his counsel provided ineffective assistance. This Court has jurisdiction over the parties and subject matter pursuant to 28 U.S.C. § 2241 and 2254.
STANDARD OF REVIEW
Petitioner 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). In Texas writ jurisprudence, a "denial" of relief usually serves to dispose of the merits of claims. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). See Exparte Torres, 943 S.W.2d 469, 474 (Tex.Crim.App. 1997) (holding that "denial" signifies the Court of Criminal Appeals addressed and rejected the merits of a state habeas claim, while "dismissal" signifies the Court declined to consider the claim for reasons unrelated to the merits).
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.C. § 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 5. 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)).
Petitioner argues only that his counsel was ineffective for failing to independently investigate the facts of his case.
"[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. 52, 58 (1985) (citing Strickland v. Washington, 466 U.S. 668 (1984)). Thus, Petitioner 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, Petitioner 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). To demonstrate that he was prejudiced by his counsel's performance, Petitioner "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).
Nowhere in his petition does Petitioner allege that but for his counsel's failure to investigate he would have pleaded guilty and insisted on going to trial. He argues only that but for his counsel's failure, the "judge may have elected" to find him guilty of the lesser included offense of criminal trespass.
Moreover, the Supreme Court has determined that
where 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.Hill v. Lockhart, 474 U.S. at 59; Armstead v. Scott, 37 F.3d at 206. Thus, a petitioner arguing a failure to investigate must allege with specificity what facts an investigation would have revealed and how such facts would have altered the outcome of a trial or his counsel's decision to recommend a plea of guilty. Lockett v. Anderson, 230 F.3d 695, 713 (5th Cir. 2000) (quoting United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989)).
Petitioner contends that his counsel should have discovered that he had previously lived with the victim and this would have explained his fingerprint being found in the residence. The Court finds that this information was clearly known by Petitioner prior to his guilty plea and he gives no explanation for failing to give this information to his trial counsel. Petitioner cannot now complain of his counsel's failure to discover evidence that was actually in his possession.
For these reasons, the Court finds that Petitioner has failed to demonstrate that his trial counsel's performance was objectively deficient or that he suffered any prejudice. Furthermore, the denial of relief by the Texas Court of Criminal Appeals was neither contrary to nor an unreasonable application of clearly established Supreme Court law and Petitioner has failed to demonstrate that he is entitled to federal habeas relief
It is therefore ORDERED that Petitioner's Petitioner for Writ of Habeas Corpus is denied and dismissed with prejudice.