Opinion
No. 3:04-CV-310-M.
August 23, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and an order of the District Court in implementation thereof, the subject cause has been previously referred to the undersigned United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Carols Sanchez ("Sanchez" or "Petitioner") is an inmate confined at the Pack 1 Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) at Navasota, Texas. Respondent is the Director of TDCJ-CID.
Statement of the Case: Pursuant to a plea bargain in which the State dismissed the third paragraph of the indictment in Cause No. F-02-49694-LM and agreed to a sentence of sixteen years in the penitentiary, Petitioner entered a plea of guilty and was sentenced to a term of sixteen years imprisonment and a fine of one thousand dollars by the court in accordance with the plea bargain. Sanchez did not appeal his conviction.
Sanchez filed an application for habeas corpus relief pursuant to Tex. Code Crim. Proc. art. 11.07 which was denied without written order on the findings of the trial court without a hearing on January 21, 2004. Ex Parte Sanchez, No. 57,026-02.
Sanchez had previously filed an application for writ of mandamus which was denied without written order on October 1, 2003. Ex Parte Sanchez, No. 57,026-01.
In response to Petitioner's petition and this court's show cause order Respondent filed an answer together with a copy of Petitioner's art. 11.07 application on April 14, 2004.
Findings and Conclusions:
Review of Petitioner's claims is governed by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") which in pertinent part provides that a federal court cannot grant relief under § 2254 unless the adjudication of the state prisoner's claim in the state court system "resulted in a decision that involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." § 2254(d)(1) (2). Further, findings of fact made by a State court are presumed to be correct absent clear and convincing evidence rebutting the presumption. § 2254(e)(1).
In his first and second grounds for relief, Sanchez first contends that he was improperly arraigned and that his indictment was defective. Petitioner's trial attorney stated in his affidavit that "he had no need or right to be re-arraigned." No. 57,026-02 at 57. Since Sanchez had notice of the offense with which he was charged, and he plead guilty to the offense without raising the issue of indictment, he has failed to raise a federal constitutional question. Dell v. State, 468 F.2d 324, 325 (5th Cir. 1972) (formal arraignment not constitutionally required if defendant had notice of offense or which he was accused and was able to defend himself adequately); see also Thomas v. United States, 455 F.2d 469, 470 (5th Cir. 1972) (right to re-plead waived). The state courts found that the indictment complied with "Chapter 21, V.A.C.C.P." No. 57,026-02 at 54. Further, in point of fact the indictment was in all respects proper. No. 57,026-01 at 63-64. Therefore Petitioner should be denied relief on these grounds.
Currently Tex. Code Crim. P. art. 21.01-21.31.
Sanchez asserts in his third ground for relief that his plea was involuntary because his counsel erroneously told him that his arraignment and indictment were legal and threatened him with a life sentence if he did not plead guilty. In the art. 11.07 proceeding Sanchez's attorney filed an affidavit in which he described the circumstances surrounding his decision to accept the State's plea bargain. No. 57,026-02 at 56-58. The attorney noted that if he pled not guilty and was found guilty, as a habitual criminal he would be subject to a term of twenty-five years to life, which was a correct statement of the law. The attorney further related that at no time did Petitioner profess his innocence and in fact insisted that he did not want a trial. The trial court found that the statements in the attorney's affidavit were true, correct, and dispositive. Id. at 53, ¶ 3. Further the trial court found that Petitioner's guilty plea would not have been accepted had the court not been convinced that it was knowingly and understandingly made. Id. at ¶ 4. In addition Sanchez signed the plea agreement in which he "affirm[ed] that [his] plea and judicial confession [were] freely and voluntarily made, and not influenced by any consideration of fear, persuasion, or delusive hope of pardon or parole." Id. at 61. The presumption of correctness which applies, § 2254, forecloses relief on this ground.
As noted above the indictment was legally sufficient and Petitioner had adequate and full notice of the charges.
In his fourth ground for relief, Sanchez contends that his attorney was ineffective because he lied about the validity of the indictment and the requirement for arraignment, coerced Petitioner into a guilty plea, and had a conflict of interest because he gave any fees paid by Sanchez to the widow of his first attorney. For the reasons stated above his contentions relating to the sufficiency of the indictment, re-arraignment, and threats by his attorney are without merit. With respect to his "conflict of interest" claim, the basis for the same is set out at page sixteen of the memorandum attached to his petition. A comparison of his contention juxtaposed with the statements of his attorney, No. 57,02602 at 56, demonstrates markedly different versions of the facts. As noted above the State court has found that the attorney's statements were true and correct. As with his third ground for relief, the presumption of correctness which applies to the State court's findings of fact preclude relief. RECOMMENDATION:
For the foregoing reasons it is recommended that the petition be denied.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.