Opinion
NO. 3:03-CV-2123-R
March 30, 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 Jon Lee Alien ("Alien" or "Petitioner") is an inmate confined at the French Robinson Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) at Abilene, Texas. Respondent is the Director of TDCJ-CID.
Statement of the Case: Petitioner pled guilty to three counts of aggravated sexual assault of a child as charged in the indictment in Cause No. F33537. The jury assessed punishment in each of the three counts at seventy five years in the penitentiary and a ten thousand dollar fine. On August 1, 2001, the Tenth Court of Appeals affirmed his convictions and sentences. Alien v. State, 54 S.W.3d 427 (Tex.App. — Waco. 2001, pet. ref'd). His petition for discretionary review was refused on January 16, 2002.
Alien filed an application for habeas corpus relief pursuant to TEX. CODE CRIM. PROC. art. 11.07 which was denied without written order on August 27, 2003. Ex Parte Alien, No. 56, 605-01.
Petitioner filed the instant habeas petition on September 20, 2003. Respondent filed an answer addressing the merits of his claim and attaching the state court papers on January 12, 2004. Petitioner filed a traverse on January 22, 2004.
Findings and Conclusions:
Review of Alien'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 ground for relief, Alien attacks the Texas statutory scheme which required that convicted sex offenders register. See Ch. 62, Sex Offender Registration Program, art. 62.01 et seq. TEX. CODE CRIM. P. The Supreme Court recently found that Connecticut's sex offender registration law, which is remarkably similar to ch. 62, was not unconstitutional, observing that "the law's requirements turn on an offender's conviction alone — a fact a convicted offender has already had a procedurally safeguarded opportunity to contest . . . No other fact is relevant to the disclosure of registrants' information." Connecticut Dept. of Pub. Safety v. Doe, 538 U.S. 1, 7-8, 123 S.Ct 1160, 1164-65 (2003). Therefore, Petitioner cannot show that the Texas Court of Criminal Appeals's decision is an unreasonable application of federal law. § 2254(d).
In light of his lengthy prison sentence and the fact that a convicted sex offender is not required to register except "as a condition of parole, release to mandatory supervision, or community supervision," See art. 62.02(a), it is questionable as to whether Alien has standing to attack the registration program at this time. Petitioner will not become eligible for parole until February 7, 2030. See TEX. GOV'T CODE § 508.145. However, since this claim also relates to his ineffective assistance of trial counsel claim, infra, the magistrate judge will address the merits of this ground.
In his second ground for relief, Petitioner contends that the jury never considered the collateral consequences of ch. 62 in determining Alien's sentence, thus rendering the sentence invalid. Petitioner's citations to this issue are inapposite, as ch. 62 is not a punitive measure, but rather is a public safety measure to help protect communities from and apprehend repeat sex offenders. Mitschke v. State, ___ S.W.3d ___, 2004 WL 438394 *5 (Tex.Crim.App. Mar. 10, 2004). In Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140 (2003), the Supreme Court reviewed the Alaska Sex Offender Registration Act in the context of an Ex post facto clause objection (U.S. CONST, art. I, § 10, cl. 1) and held that this constitutional provision did not apply because the imposition of a registration requirement was a legitimate non-punitive governmental objective of the state law. Smith v. Doe, 538 U.S. at 93-94, 123 S.Ct at 1147-48. Petitioner has cited no United States Supreme Court authority which suggests that he was entitled to have the jury consider ch. 62 in determining his punishment.
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) stands for the proposition that any fact which increases a criminal penalty beyond a statutory maximum must be proved beyond a reasonable doubt. Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215 (1999) concerns the elements of the federal crime of kidnapping.
In his third ground for relief, Alien asserts that he was not admonished in open court as to ch. 62's lifetime applicability, thus rendering his plea unknowing and involuntary. The requirement that when released from confinement a convicted sex offender register pursuant to art. 62.02(a) is a collateral consequence of the conviction, and failure to advise a defendant of such a collateral consequence does not render a guilty plea involuntary. See, e.g. United States v. Gavilan, 761 F.2d 226 (5th Cir. 1985) — ignorance of fact that conviction could result in deportation held not to be a matter on which the court was required to advise the defendant. Accord Mitschke, ___ S.W.3d ___, 2004 WL 438394 *5. The fact that the Supreme Court held that sex offender registration laws were not penal in nature, See Smith v. Doe, supra, provides further support for the proposition that the trial court was not required under the United States Constitution to advise Alien of the provisions of ch. 62 at the time he entered his guilty pleas. Moreover, he cannot show that the Texas Court of Criminal Appeals' rejection of this ground constituted an unreasonable application of federal law. E.g. Duke v. Cockrell, 292 F.3d 414 (5th Cir. 2002), cert. denied 537 U.S. 975, 123 S.Ct. 447 (2002).
In his fourth ground for relief, Petitioner contends that he received ineffective assistance of trial counsel when counsel failed to object to the constitutionality of ch. 62 and its application to Alien, failed to advise Petitioner that the sex offender registration act could apply to him, failed to object to a judicial, rather than jury, determination that he be required to register under ch. 62, and failed to preserve the jury selection error for appellate review.
An attorney's conduct is governed by the standards set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). There is a strong presumption that an attorney's conduct falls within the broad range of reasonable professional assistance required under the Sixth Amendment. Id. at 690, 104 S.Ct at 2065. To overcome this presumption a habeas petitioner must establish that the attorney's conduct was constitutionally deficient (cause) and that but for such unprofessional errors the result probably would have been different (prejudice). Failure to prove either prong of the two part test forecloses relief. Id. at 694, 104 S.Ct. at 2068.
Petitioner has cited no case authority which calls the constitutionality of ch. 62 into question; to the contrary, similar statutes have been found to be constitutional. E.g. Connecticut Dept. of Pub. Safety v. Doe, supra. Alien cannot show deficient performance by his counsel for failing to assert a frivolous objection.
As stated supra, ch. 62 is a collateral consequence of Petitioner's criminal conviction. An attorney does not render ineffective assistance under Strickland merely in failing to inform a defendant of collateral consequences to his plea of guilty. United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993).
Alien's petition fails to raise a cognizable issue in light of his plea of guilty. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366 (1985); see also Craker v. McCotter, 805 F.2d 538, 541-32 (5th Cir. 1986).
Allen is not entitled to consideration for exemption from registration pursuant to TEX. CODE CRIM PROC. art. 62.0105. See also note 1, supra. Any claim to the contrary would have been fufile, thus foreclosing an ineffective assistance of counsel claim.
Alien's contention that his attorney failed to preserve the alleged jury selection error for appellate review is baseless in light of the fact that the Court of Appeals specifically ruled that the alleged jury selection error had been preserved for review, but proceeded to find that no error had occurred. Alien v. State, 54 S.W.3d at 430. Alien has therefore failed to show that he is entitled to relief under Strickland, much less that the state court's determination of effective assistance of trial counsel was objectively unreasonable. See § 2254(d).
In his fifth ground for relief, Petitioner asserts that his appellate counsel rendered ineffective assistance when he failed to raise the first three issues discussed supra. A claim for ineffective assistance of appellate counsel is adjudicated under the Strickland test. Smith v. Robbins, 528 U.S. 259, 285-86, 120 S.Ct. 746, 764 (2000). As stated supra, all three grounds are meritless. Therefore Alien can show neither deficient assistance of counsel nor prejudice.
In his sixth ground for relief, Petitioner asserts that two members of his jury panel were biased because they were unwilling to consider probation as a punishment. "The standard for determining whether a proposed juror may be excluded for cause is `whether the prospective juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" United States v. Wharton, 320 F.3d 526, 535 (5th Cir. 2003) (quoting Soria v. Johnson, 207 F.3d 232, 242 (5th Cir. 2000) (quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852 (1985))). The Texas Court of Appeals found that "[t]he prospective jurors that remained on the panel at the conclusion of voir dire were able to conceive of situations where either probation or the maximum punishment . . . would be appropriate for the offense submitted for their consideration." Alien v. State, 54 S.W.3d at 430. Where there has been one reasoned judgment rejecting a federal claim, later unexplained orders rejecting the same claim are presumed to rest upon the same grounds. Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 2594 (1991). Petitioner has failed to show that the decision of the Court of Appeals "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." § 2254(d)(2). RECOMMENDATION:
Petitioner has failed to show that he is entitled to relief pursuant to 28 U.S.C. § 2254. Specifically, he has failed to establish that the decision of the Texas Court of Criminal Appeals constituted a decision which met the prerequisites of § 2254(d)(1) or (2). It is therefore recommended that the petition be denied on the merits.
A copy of this recommendation shall be transmitted to the Petitioner and to 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 (10) days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. 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 (10) day period may bar a de novo determination by the district judge of any finding of fact and 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.