Opinion
Civil Action No. 4:02-CV-055-Y
November 13, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
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 Lupe Salazar, Jr., TDCJ-ID #0915295, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in Tulia, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
In state court, Salazar was charged by indictment with sexual assault of a child and indecency with a child by contact. (State Habeas R. at 2.) On November 16, 1998, Salazar entered into a plea agreement with the state to plead guilty to the lesser offense of indecency with a child, in exchange for the state's recommendation of ten years' deferred adjudication community supervision. (Resp't Supp. Answer at Ex. A.) In accordance with the plea agreement, the trial court accepted Salazar's guilty plea, deferred a finding of guilt, and placed him on deferred adjudication community supervision for ten years. (State Habeas R. at 3.) Subsequently, the state moved to adjudicate Salazar's guilt. On February 24, 2000, after a hearing, the trial court found Salazar guilty of the offense and assessed his punishment at eleven years' confinement. ( Id. at 7-9.)
Salazar did not appeal the order placing him on deferred adjudication community supervision or the order adjudicating his guilt. (Pet. at 3.) He did file a state application for writ of habeas corpus raising the claims presented, which was dismissed without written order. Ex parte Salazar, No. 46, 092-01 (Tex.Crim.App. Aug. 30, 2000) (not designated for publication). The instant federal petition for writ of habeas corpus was filed in the United States District Court for the Northern District of Texas, Amarillo Division, on March 30, 2001, and transferred to this court by order dated January 25, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding prose habeas petition filed when papers delivered to prison authorities for mailing).
D. Issues
In four grounds, Salazar contends he received ineffective assistance of counsel, which violated his right to due process and rendered his guilty plea involuntary. (Pet. at 7-8.)
E. RULE 5 STATEMENT
Cockrell filed an answer raising only the issue of statute of limitations, wherein she argues Salazar's petition is time barred under 28 U.S.C. § 2244(d). (Resp't Answer 4-6.) 28 U.S.C. § 2244(d). Subsequently, she filed a supplemental answer, pursuant to this court's order, wherein she addresses the issue of exhaustion and the merits of the grounds presented. (Resp't Supp. Answer at 4-29.) 28 U.S.C. § 2254(b)-(c). Cockrell believes that Salazar has sufficiently exhausted available state remedies on all issues presented. (Resp't Supp. Answer at 4.)
F. STATUTE OF LIMITATIONS
As a preliminary matter, the court must address Cockrell's assertion that Salazar's petition is time barred. (Resp't Answer at 7-9.) The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA) imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d). Section 2244(d) provides:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation 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 such 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.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(1)-(2).
Cockrell argues that because Salazar's claims relate to his original guilty plea and deferred adjudication order, the one-year period ran from the date on which the deferred adjudication order became final by the conclusion of direct review or the expiration of the time for seeking such review. (Resp't Answer at 5.) 28 U.S.C. § 2244(d)(1)(A). Cockrell contends that the order placing Salazar on deferred adjudication community supervision became final on December 16, 1998, 30 days after the order was entered, and, thus, Salazar's federal petition was due no later than December 16, 1999, absent any applicable tolling. ( Id.)
This court has previously rejected Cockrell's argument in the deferred adjudication context. While Cockrell is correct that, under Texas law, a defendant must immediately appeal when deferred adjudication community supervision is first imposed, the AEDPA specifies that limitations begins on "the date on which the judgment became final by the conclusion of direct review orthe expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A) (emphasis added). A deferred adjudication judgment is not a final judgment because there has been no determination of guilt. See Davis v. State, 968 S.W.2d 368, 371 (Tex.Crim.App. 1998); Crenshawv. Cockrell, No. 4:01-CV-405-Y, 2002 WL 356513, at *5 (N.D. Tex. Mar. 5, 2002). Thus, limitations did not begin until the date on which the state trial court's judgment adjudicating Salazar's guilt became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A).
In the instant case, Salazar did not appeal the order adjudicating his guilt; thus, the limitations period began to run upon expiration of the time for seeking direct review, or on March 26, 2000 — 30 days from February 24, 2000, and expired on March 26, 2001, absent any applicable tolling. See TEX. R. APE. P. 26.1. Applying the tolling provision of 28 U.S.C. § 2244(d)(2) for the period of time Salazar's state writ application was pending, or 113 days, Salazar's petition, filed on March 30, 2001, was timely. See 28 U.S.C. § 2244(d)(2).
G. Discussion 1. Legal Standard 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 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). 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.
Further, 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. The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 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. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Involuntariness of Guilty Plea
Salazar alleges that his guilty plea was rendered involuntary as a result of ineffective assistance and erroneous advice and coercion of counsel. (Pet. at 7.) According to Salazar, he repeatedly expressed his innocence to his attorney and his desire to go to trial and was told by his attorney that he would not have to enter a guilty plea to receive deferred adjudication community supervision. He further contends that on the day of the plea proceeding, his attorney sent another lawyer who was unfamiliar with the case to represent him in court. (Pet. at 7-8.) He was advised to "take the probation" and that, if he did not do so, he had a "50/50 chance of a "good o'l boy' jury giving [him] 20 years in prison." ( Id.) He also alleges he did not have a "rational and factual understanding" of the consequences of his guilty plea in the event of revocation of his deferred adjudication community supervision. ( Id.)
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). Thus, before a trial court may accept a guilty plea, the court must ensure that the defendant is advised of the consequences of his plea and the various constitutional rights that he is waiving by entering such a plea. Boykin v. Alabama, 395 U.S. 238, 243 (1969). 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 (5th 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 (5th 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)).
The record in this case does not demonstrate that Salazar's guilty plea was in any way induced by misunderstanding, coercion, or misrepresentation on the part of his trial counsel or others. Rather, the record reflects that Salazar entered his guilty plea in open court knowingly and voluntarily and was advised by counsel and the trial court of the consequences of his plea, including the full range of punishment for the offense upon adjudication of guilt. (Resp't Supp. Answer at Ex. A Ex. B.) Further, Salazar executed the written plea admonishments in which he acknowledged that he was aware of the consequences of his plea, that his plea was "knowingly, freely and voluntarily entered," that he was "totally satisfied" with the representation received from counsel, and that counsel provided "fully effective and competent representation." ( Id. at Ex. A.) See Blackledge, 431 U.S. at 74; Kelley v. Alabama, 636 F.2d 1082, 1084 (5th Cir. 1981). Salazar also acknowledged in the affirmative during the plea proceeding that he understood the consequences of his plea, that he was pleading guilty because he was guilty, and that he was pleading guilty on his own free will. ( Id. at Ex. B. 8-10.) Such representations by a defendant during plea proceedings "carry a strong presumption of verity." Blackledge, 431 U.S. at 74.
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 (5th 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 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 (2nd Cir. 1991) (a defendant's testimony after the fact suffers from obvious credibility problems). Salazar 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 court's determination of the issue. (State Habeas R. at cover, 26.) 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 (5th Cir. 1994), cert. denied, 514 U.S. 1071 (1995). Thus, Salazar has failed to overcome the presumption that his plea was voluntary.
3. INEFFECTIVE ASSISTANCE OF COUNSEL
Salazar also alleges that he received ineffective assistance of counsel in violation of his constitutional rights because his trial counsel (1) failed to investigate the allegations against him, (2) failed to contact witnesses who would have testified favorably for him, (3) failed to interview the state's witnesses before trial, (4) failed to advise him that he would have to plead guilty to receive deferred adjudication community supervision, and (5) failed to advise him of the terms and conditions of his community supervision as well as the consequences upon revocation. He also alleges counsel was ineffective by sending another lawyer to represent him at the plea proceeding who was unfamiliar with the case and unwilling to assist him at the proceeding. (Pet. at 7-8.)
Once a guilty plea has been entered, all nonjurisdictional defects in the proceedings against a defendant are waived, including all claims of ineffective assistance of counsel that do not attack the voluntariness of the guilty plea. Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983), cert. denied, 466 U.S. 906 (1984); Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir. 1981), cert. denied, 456 U.S. 992 (1982). Accordingly, to the extent Salazar complains of his trial counsel's inadequate investigation or preparation, these claims are nonjurisdictional and are waived by the plea.
Further, as discussed above, Salazar failed to show that his guilty plea was involuntary. 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 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, 711 F.2d at 682. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 688 (1984).
An independent review of the state court records does not reveal clear and convincing evidence that would rebut the presumption of correctness of the state court's adjudication of Salazar's ineffective assistance claims. (State Habeas R. at cover, 26.) Rather, Salazar executed the written plea admonishments, in which he acknowledged that trial counsel provided "fully effective and competent representation" and that he was "totally satisfied" with counsel's representation. See Blackledge, 431 U.S. at 74; Kelley v. Alabama, 636 F.2d 1082, 1084 (5th Cir. 1981). Moreover, at no point before or during the plea proceeding did Salazar object to the other attorney appearing on his behalf.
It appears from the record that Randy Myers was retained to represent Salazar in the case and that Myers's father, Pat Myers, who is also an attorney, interviewed Salazar in jail and appeared on Salazar's behalf at two pretrial hearings and the plea proceeding. (Clerk's R. at 4-5.)
As previously stated, 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, 694 F.2d at 1011-12. The record belies Salazar's complaint of deficient performance by his trial attorney, and he has not demonstrated prejudice sufficient to undermine the voluntary nature of his guilty plea. He has offered nothing more than his unsubstantiated allegations that his plea was entered as a result of erroneous advice and/or coercion from counsel. (Pet. at 8.) This is insufficient to rebut the presumption of regularity of the state court records and the correctness of the state court's determination of the issue. Babb, 61 F. Supp.2d at 607; see also Hill, 210 F.3d at 485; Armstead, 37 F.3d at 210. Thus, Salazar has failed to overcome the presumption that he received effective assistance of counsel.
4. SUMMARY
In sum, Salazar is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. The state court's determination that Salazar was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Salazar's 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 December 4, 2002. 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 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until December 4, 2002, 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.