Opinion
CIVIL ACTION NO. 3:01-CV-2236-L
April 26, 2002
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 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 Eddie Love Austin ("Austin") is an inmate confined at the T.L. Roach Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) at Childress. Respondent is the Director of TDCJ-ID.
Statement of the Case: On January 21, 1999, Petitioner entered an "open plea" of guilty to the offense of aggravated robbery as charged in the indictment returned in No. F-9837451 ( Austin v. State of Texas, C.R at 002,4,9). Thereafter, the trial court assessed punishment at a term of imprisonment of twenty years in the Texas Department of Criminal Justice ( See Id., at 012-14).
An open plea is a guilty plea wherein no recommendation as to punishment has been agreed to and in which the sentence to be imposed is left to the sole discretion of the sentencing judge.
Austin directly appealed his conviction. On November 10, 2000, the Texas Fifth Court of Appeals affirmed Petitioner's conviction in an unpublished opinion. See Austin v. State, No. 05-99-0345-CR, 2000 WL 1683009 (Tex.App.-Dallas 2000, pet. ref'd) (attached to Appl. 43, 265-04, at 000021-22). Petitioner subsequently filed a petition for discretionary review ("PDR") with the Texas Court of Criminal Appeals. Austin's PDR was refused on March 21, 2001. Austin v. State, PDR No. 119-01 (Tex.Crim.App. 2001).
Austin subsequently challenged his conviction in the Texas state courts. On July 18, 2001, he filed a state application for writ of habeas corpus pursuant to Texas Code of Criminal Procedure art. 11.07. Ex Parte Royale, Appl. No. 43, 265-04 at 000002. The Texas Court of Criminal Appeals denied his application without a written order on September 19, 2001. See Appl. at cover.
Petitioner's prior state court records reflect that Austin had previously filed three prior article 11.07 applications in Texas state court. Austin filed his first and second applications on August 18, 1999 and November 15, 1999, respectively. See, e.g., Ex parte Austin, Appl. 43, 265-01, and Appl. 43, 265-02. These first two applications were dismissed by the Texas Court of Criminal Appeals due to the pendency of Austin's direct appeal. Austin then filed his third art. 11.07 application on May 2, 2000 — six months before the intermediate court of appeals affirmed his conviction —, which was denied without written order on the findings of the trial court without a hearing on August 16, 2000. Ex parte Austin, Appl. 43, 265-03 at cover. Following the affirmance of his conviction and subsequent refusal of his petition for discretionary review (i.e., the end of his avenues of direct appeal), Austin filed his fourth art. 11.07 application. Although the trial court found that Austin was procedurally barred from presenting this fourth (subsequent) art. 11.07 application citing TEX. CRIM. PROC. CODE ANN. Art. 11.07 § 4(a), the Texas Court of Criminal Appeals rejected Austin's claims on their respective merits. See Bledsue v. Johnson, 188 F.3d 250, 257 (5th Cir. 1999) (federal courts construe the statement, "Application denied without written order," as a rejection of the claims on the merits); see also Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) (in Texas jurisprudence, a "denial" signifies an adjudication on the merits, whereas a "dismissal" signifies that the court declined to consider the claims on the merits).
In response to the instant petition and this court's show cause order, on January 14, 2002, Respondent filed an answer together with a copy of Austin's state court records.
Notwithstanding Respondent's claim that Austin has failed to exhaust his state remedies with respect to two subparts related to his ineffective assistance of counsel claim, the court will proceed to address the claims presented by Petitioner under the authority of § 2254(b)(2).
Respondent contends that Austin has failed to exhaust his state court remedies with respect to the following: the failure of his trial counsel to question the credibility of the complainant and to make an independent investigation of the facts in Petitioner's case. See Resp.'s Answer at 3-4. However, the court notes that these two issues were not presented in the instant petition.
Findings and Conclusions:
Austin presents four grounds in his petition before this court:
1. Ineffective assistance of counsel: defense counsel allowed the prosecution to cross-examine Petitioner regarding prior, sealed, juvenile records; allowed Petitioner to execute waivers without any explaining their meaning; failed to consult with Petitioner; failed to inquire as to any defenses; failed to advise Petitioner generally; failed to inquire about Petitioner's guilt or innocence; failed to advise Petitioner regarding the elements of the offense of aggravated robbery; and provided erroneous and misleading information regarding Petitioner's eligibility for shock probation.
2. Conviction obtained by a confession that was coerced; made under duress; made involuntarily due to promises of leniency and to a bring Petitioner's cooperation to the attention of the prosecutor; and made because of false and misleading statements and questions.
3. Guilty plea involuntarily entered due to erroneous and misleading information from defense counsel regarding Petitioner's eligibility for shock probation.
In his petition, Austin included this final issue as the crux of his involuntary guilty plea claim in #3.
4. Conviction obtained via an unlawful arrest.
In his first ground for relief, Austin alleges that he was denied effective assistance of counsel because his trial counsel, George Conkey ("Conkey"), allowed the prosecution to cross-examine Petitioner regarding prior, sealed, juvenile records; allowed Petitioner to execute waivers without explaining their meaning; failed to consult with Petitioner; failed to inquire as to any defenses; failed to advise Petitioner generally; failed to inquire about Petitioner's guilt or innocence; failed to advise Petitioner regarding the elements of the offense of aggravated robbery; and provided erroneous and misleading information regarding Petitioner's eligibility for shock probation.
In this first ground for relief Austin levels a number of claims which he alleges establishes ineffective assistance of his trial attorney. Since Petitioner pled guilty to the aggravated robbery charge, in order to show ineffective assistance of counsel he must show that but for his counsel's representation which fell below the objective standards of the Sixth Amendment, he would have pled not guilty and demanded a trial. Hill v. Lockhart, 474 U.S. 52, 60, 106 S.Ct. 366, 370 (1985); Craker v. McCotter, 805 F.2d 538, 541 (5th Cir. 1986). Counsel's alleged errors are wholly conclusory and are therefore insufficient to establish "cause." Moreover, Austin has neither alleged nor established that he would have demanded to plead not guilty.
Although most the claims alleged in his first ground for relief are foreclosed by Hill v. Lockhart, a few warrant further discussion. Austin claims that during the punishment phase, his counsel failed to object to questions propounded by the prosecutor with respect to his prior juvenile record. However, he has cited no authority which prohibits the admission of prior juvenile delinquency adjudications in the sentencing phase of a subsequent prosecution. Therefore, he cannot prove "cause" under the Strickland standard incorporated in Hill v. Lockhart.
Insofar as Petitioner complains that counsel allowed him to sign waivers without explaining their meaning and misinformed him regarding his eligibility for shock probation, each of these complaints are without merit. A document entitled "Waiver of Jury/Felony Plea of Guilty" ( see Appl. at 007-8), which Petitioner signed, indicates that he " read all of the above waivers, consents, agreements, and statements and having had them explained to me by my attorney, I now request the Court accept them and I state that they are made voluntarily, knowingly, and intelligently and I further state that the statements contained in my judicial confession are true and correct" ( See id.). Accordingly, to the extent that Petitioner made a solemn declaration in open court, which directly contradicts his current complaint, absent the proffering of any objective, controverting evidence he is faced with a barrier he cannot overcome. See Blackledge v. Allison, infra. Moreover, 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. Phan v. Cockrell, 4:01-CV-0499-A, 2002 WL 413875 *4 (N.D. Tex. March 13, 2002) ( citing Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983)). To the extent that Austin has offered nothing more than his unsubstantiated allegation that his trial counsel failed to inform him regarding the meaning of the various waivers and documents he signed, he has failed to rebut the presumption of regularity of the state court records and the correctness of the state courts' determination of the issue. See Phan v. Cockrell, at *4 ( citing Babb v. Johnson, 61 F. Supp.2d 604, 607 (S.D. Tex. 1999); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Thus, Austin has failed to overcome the presumption that he received effective assistance of counsel.
See Appl. at 010.
Assuming arguendo that counsel informed Petitioner that "shock probation" was a sentencing option, the court finds that such advice was technically in error. However, although he was not eligible for either shock or regular probation, by virtue of the charged offense-aggravated robbery — (TEX. CRIM. PRoc. CODE ANN. Art. 42.12 § 3g(a)(1)(F) (West 1998)), he was, at all times, eligible for deferred adjudication probation (art. 42.12 § 5a). As a matter of fact, deferred adjudication probation — for which Austin was eligible — appears to be less harsh than shock probation, as the former does not require that a defendant serve any prison time. Thus, notwithstanding Petitioner's failure to establish that but for counsel's advice he would have pled not guilty and demanded a trial, Austin cannot demonstrate that he was prejudiced by counsel's advice.
Section 6(a) of article 42.12 of the Texas Code of Criminal Procedure governs shock probation. That section provides:
For the purposes of this section, the jurisdiction of a court in which a sentence requiring
imprisonment in the institutional division of the Texas Department of Criminal Justice is imposed by the judge of the court shall continue for 180 days from the date the execution of the sentence actually begins. Before the expiration of 180 days from the date the execution of the sentence actually begins, the judge of the court that imposed such sentence may on his own motion, on the motion of the attorney representing the state, or on the written motion of the defendant, suspend further execution of the sentence and place the defendant on community supervision under the terms and conditions of this article, if in the opinion of the judge the defendant would not benefit from further imprisonment and:
(1) the defendant is otherwise eligible for community supervision under this article; and
(2) the defendant had never before been incarcerated in a penitentiary serving a sentence for a felony.
(emphasis added).
Accordingly, under shock probation, a defendant may serve up to 180 days of jail time (i.e., the shock period) (see § 12 a) before the judge may suspend further execution of the sentence and place the defendant in community supervision (i.e., probation), assuming, of course, that the defendant was not convicted of a crime for which community supervision is prohibited. See § 6a. § 3g of article 42.12 prohibits the imposition of judge-ordered community supervision based on the convicted offense. Austin was convicted of one of the offenses-aggravated robbery — for which community supervision is prohibited. See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 3g(a)(1)(F) (West 1998). Thus, in light of his ineligibility for community supervision, Austin was also ineligible for "shock probation." See Ex parte Austin, 746 S.W.2d 226, 229 (Tex.Crim.App. 1988).
In point of fact, Austin was asked the following questions by his trial counsel, on the record, " you've decided you'd rather go open to Judge Wade here to ask him to consider you for probation, is that correct?" and " you understand the range of punishment, you could get all the way up to 99 years or a life sentence in the penitentiary for this" (R.R. at 5). Austin answered each of these questions in the affirmative. See id. He cannot now claim that he was mislead by his trial counsel, when he is on the record affirming his understanding. These findings preclude relief on Petitioner's first and third grounds.
With respect to Petitioner's third ground — involuntary guilty plea —, the language contained in the document entitled "Waiver of Jury/Felony Plea of Guilty" ( See Appl. at 008), which Petitioner signed, expressly provides that
I do further admit and judicially confess that I am the person named in the charging instrument and that I understand the charge contained therein and: I am GUILTY of the offense of aggravated robbery with a deadly weapon exactly as alleged in the charging instrument . . . and I confess that I did unlawfully commit the said offense . . . and I further state that my plea is made freely and voluntarily and is not influenced by any consideration of fear, persuasion . . . and I request that the Court to consider probating any sentence imposed.
(see id) (emphasis added).
"Ordinarily, a defendant will not be heard to refute his testimony given under oath when pleading guilty." United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985). Unless, however, the defendant offers specific factual allegations supported by the affidavit of a reliable third person, then he is entitled to a hearing on his allegations. Id. at 1099. "Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977); United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). Additionally, the representations made by the defendant, his lawyer, and the prosecutor at a plea hearing, as well as the findings made by the trial judge accepting the plea, constitute a formidable baffler to any subsequent collateral attack. See Blackledge v. Allison, 431 U.S. at 73-74, 97 S.Ct. at 1629. Any documents signed by the defendant at the time of the guilty plea are entitled to "great evidentiary weight." See United States v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994), cert. denied, 513 U.S. 1064, 115 S.Ct. 681, 130 L.Ed.2d 613 (1994). In this cause, as in Petitioner's state habeas corpus proceedings, Petitioner has offered absolutely no affidavits or proof from any third party refuting his own sworn representations in his plea documents.
Moreover, the Texas Court of Criminal Appeals implicitly found that Austin was "throughly and properly admonished as to the meaning and consequences of his plea," and that his plea of guilty was "knowingly and voluntarily" entered. These findings are wholly consistent with the record which forecloses relief.
Pursuant to § 2254(e)(1), "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254 (e)(1); See also Loyd v. Smith, 899 F.2d 1416, 1424 (5th Cir. 1990)("[f]ederal courts in habeas proceedings are required to grant a presumption of correctness to a state court's explicit and implicit findings of fact if supported by the record."), cert. denied, 508 U.S. 911, 113 S.Ct. 2343 (1993).
With respect to Petitioner's second and fourth grounds for relief, attacking the constitutionality of his confession and underlying arrest, respectively, such claims are noncognizable following the entry of a knowing and voluntary guilty plea.
A guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel fell below constitutionally mandated standards.Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1605, 1608 (1973). Accordingly, to the extent that a plea of guilty, if voluntarily and understandingly made, is conclusive as to a defendant's guilt and waives all non-jurisdictional defects including claimed deprivation of federal constitutional due process, Young v. State, 8 S.W.3d 656, 659 (Tex.Crim.App. 2000) ( citing Law v. Beto, 370 F.2d 369 (5th Cir. 1966), and factual guilt is subsequently validly established by the state — as in this case — Austin may not be heard to raise these complaints. RECOMMENDATION:
" counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established." Menna v. New York, 423 U.S. 61, 63 n. 2, 96 S.Ct. 241, 242 (1975).
For the foregoing reasons it is recommended that the petition for writ of habeas corpus be DENIED.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.