Opinion
3-01-CV-484-L.
September 25, 2001.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge The findings, conclusions and recommendation 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 brought by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is confined as an inmate at the Allred Unit of the Texas Department of Criminal Justice, Institutional Division, at Iowa Park, Texas, serving a conviction for aggravated sexual assault.
Respondent is the Director of the Texas Department of Criminal Justice, Institutional Division.
Statement of the Case: After having pled not guilty to the offense of aggravated sexual assault as charged in the indictment returned in No. F98-48043-RU Adams was scheduled for a jury trial on March 9, 1999. At the time the State had offered a recommended punishment of 15 years incarceration in exchange for a plea of guilty which Petitioner had refused.
Prior to jury selection Adams appeared with counsel in open court. The judge reiterated the charge and the maximum penaltiesSee Vol. 1, S.O.F, March 9, 1999, at page 3. Before the jury panel was seated the court reiterated in detail the options with which Petitioner was confronted under Texas state law including the possibility of a probated sentence in the event that he entered an open plea of guilty before the court. Id. at pages 5-9. Petitioner's counsel requested an opportunity to confer with him, Id. at page 10, at the conclusion of which the court re-arraigned Adams, Id. 10-18. After accepting Petitioner's judicial confession, States's Exhibit 1, the court continued the proceeding until the following day to receive the victim witness's testimony.
The court reconvened the proceedings on March 10, 1999, at which the Petitioner's biological daughter — the victim — testified. She testified that Adams had engaged in sexual assaults on her person over a two-year period prior to her fifteenth birthday, which was inclusive of August 31, 1997, the date alleged in the indictment. Vol III, S.O.F.
The victim's date of birth was September 13, 1983. Vol. II at page 25.
Proceedings were recessed to allow the preparation of a pre-sentence report. Vol. II at page 30. On April 12, 1999, Adams appeared for sentencing. See Vol. III S.O.F. At this proceeding Adams testified in his own behalf and testifiedinter alia that he examined his daughter's genital area on a single occasion, but that he never inserted his finger in her vagina. He testified that her previous testimony to the contrary was false He also denied ever having fondled or "examined" her breasts. After the court heard Petitioner's testimony and heard his counsel's argument, the judge stated that he did not believe his testimony, Id. at page 26, found him guilty and assessed punishment at 20 years confinement in the Texas Department of Criminal Justice
Adams effected a direct appeal from his conviction, which was affirmed by the Fifth Court of Appeals of Texas in an unpublished opinion filed on February 25, 2000. Although it appears that Adams may have contemplated filing a petition for discretionary review, he filed a pro se motion to withdraw his request for an extension of time to file which the Texas Court of Criminal Appeals granted on April 19, 2000. Subsequently he filed an application for habeas corpus relief pursuant to art. 11.07, Texas Code of Criminal Procedure. His state application was denied on March 21, 2001, by the Texas Court of Criminal Appeals without written order on findings of the trial court without a hearing
In response to the petition Respondent filed an answer on July 19, 2001, arguing that Petitioner's petition should be denied in part on the merits and dismissed in part on procedural grounds. In addition Respondent filed copies of Adams's prior state proceedings. Adams filed pleadings responding to the answer on July 25 and July 31, 2001, respectively.
Findings and Conclusions: Adams's federal petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). This statute provides in pertinent part that a state petitioner may not obtain federal habeas corpus 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. 28 U.S.C. § 2254(d).
In review of a state prisoner's federal petition "a determination of a factual issue made by a state court shall be presumed to be correct." Id. § 2254(e)(1).
In his first two grounds for relief Adams claims that his guilty plea was not knowingly and understandingly entered, that his attorney told him that the attorney had a "deal" with the court to grant him a probated sentence and that the attorney coerced him into pleading guilty asserting that if he pled not guilty Adams would receive a 99 year term of imprisonment.
The Statement of Facts from Petitioner's arraignment on March 9, 1999, conclusively refutes the claim that the court failed to admonish him concerning the applicable punishment which could apply in the event that he was found guilty of aggravated sexual assault. This record shows that the trial court thoroughly and in minute detail described to Adams the options which were available to him including his right to a jury trial.
With respect to his claim that his attorney promised that he would receive a probated sentence and that the attorney threatened him with the possibility of a 99 year term of imprisonment if he refused to enter a plea of guilty, it is to be observed that these assertions are wholly uncorroborated. The arraignment transcript shows that the trial court specifically advised him that the only way he could expect a "guaranteed sentence" was to accept the state's 15 year sentence offer (S.O.F. Vol. 1 at page 8), that the State would continue to urge that a prison sentence be imposed, but that only the court would make the ultimate decision as to the sentence to be imposed (Id. at page 13; see also page 14).
Although Petitioner's trial attorney's affidavit filed in the course of his art. 11.07 application does not specifically address Adams's claims that the attorney made any promise about the sentence and that the attorney threatened him in any manner (See Application No. 48,649-01 at pages 46-47), in determining whether the Texas courts' decision on these claims was based on an unreasonable determination of the facts in light of the evidence presented, this court is required to accept the implicit findings of the state courts. See Marshall v. Lonberger, 459 U.S. 422, 434-436, 103 S.Ct. 843, 850-51 (1983).
The Texas courts founds that Petitioner's trial attorney's affidavit was true and dispositive of Adams's claims directed against the attorney (See Application No. 48,649-01, Findings of Fact and Conclusions of Law at page 41, et seq; ¶ 2 at pages 42-43). The affidavit of Mr. Thomas, Petitioner's trial attorney, stated explicitly that the attorney never told him to lie or to plead guilty to something he didn't do and further related that he saw no signs that Petitioner's plea was made involuntarily. Given the deference which must be given to the state courts' findings Adams has failed to carry his burden under § 2254(d)(2).
Petitioner's remaining grounds for relief — to the extent that they do not relate to the voluntariness of his plea — also fail to present cognizable grounds for federal habeas corpus relief Respondent correctly points out that many of the specific allegations directed against his counsels' representation are procedurally barred because Adams failed to present such claims to the Texas state court. Further, a number of his claims — aside from their conclusary nature — are foreclosed by reason of the fact that his guilty plea waived all non-jurisdictional defects.
Insofar as Adams alleges deficiencies in his trial attorney's investigation and preparation for trial no basis for relief is presented. Ineffective assistance of counsel claims raised in the context of guilty pleas are governed by a modification of the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), in accordance with the holding in Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370 (1985). In order to establish the "prejudice" prong of the two-part test the defendant must allege and prove 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. See also Craker v. McCotter, 805 F.2d 538, 541-42 (5th Cir. 1985).
In addition to the statements of Petitioner's trial attorney which the Texas courts found to be credible, the record reflects that counsel filed a motion for discovery and for notice. See No. F-98-48043-RU, Record Vol. 1 at pages 008-13.
A review of Adams's art. 11.07 application and his pleadings filed in this federal habeas petition reflects that he has failed to allege any prejudice consistent with the requirements of Hill v. Lockhart. Further, despite the plethora of alleged deficiencies attributed to his trial attorney, all are conclusary and fail to show that relevant evidence was available which was undiscovered by his attorney. Conclusion: Adams was confronted by a very serious first degree felony charge. Fully understanding the options which were available he elected to enter an open plea of guilty in the hope that he could obtain a probated sentence. However, rather than accept responsibility for his conduct he chose to deny any wrongdoing at his sentencing including accusing his daughter of testifying falsely, thus seriously prejudicing the possibility of obtaining a probated sentence. The fact that he received a penitentiary term is attributable solely to his own conduct and is neither the result of an involuntary guilty plea nor of being denied effective assistance of counsel.
Petitioner's claim that he was denied an appeal and that his appellate counsel was ineffective is conclusively refuted by the record which shows that he did effect a direct appeal and that his appellate lawyer presented non-frivolous — albeit unsuccessful — points of error.
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition be denied on the merits and dismissed.
A copy of this recommendation shall be transmitted to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar ade novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.