Opinion
3-02-CV-494-M
November 14, 2002
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 an inmate confined at the French Robertson Unit of the Texas Department of Criminal Justice, Institutional Division at Abilene, Texas, pursuant to convictions for aggravated sexual assault of a child under 14 years of age and indecency with a child under 17 years of age.
The Respondent is the Director of the Texas Department of Criminal Justice, Institutional Division.
Statement of the Case: Upon his "open plea" of guilty to the offense of aggravated sexual assault of a child under 14 years of age as charged by the indictment returned in Cause No. F-99-72407-WK Bailey was found guilty and assessed a term of 50 years imprisonment in the Texas Department of Criminal Justice.
On the same date Bailey entered a plea of guilty to the charge of indecency with a child under the age of 17 years in Cause No. F-99-72408-WK. The court imposed a sentence of 20 years imprisonment in that case. However, the conviction is not in issue in the present petition.
Bailey appealed his conviction and on March 5, 2001, the Fifth Court of Appeals issued its unpublished opinion affirming both the aggravated sexual assault conviction and the indecency with a child conviction, with modifications. Petitioner did not seek discretionary review in the Court of Criminal Appeals. Thereafter he filed an application for habeas corpus relief pursuant to art. 11.07, Texas Code of Criminal Procedure, which was denied by the Texas Court of Criminal Appeals on September 19, 2001. He then filed the present petition in response to which the Director has filed her answer together with copies of Bailey's prior state proceedings.
Findings and Conclusions: In her answer Respondent contends that Bailey has failed to present his claims that counsel rendered ineffective assistance in (1) eliciting damaging extraneous offense testimony from Athena Wilborn and (2) failing to file a motion to quash the indictment to the Texas state courts and that such claims are unexhausted and procedurally barred. See Respondent's answer at pages 3-4 and 10-12.
Since Bailey did not seek a petition for discretionary review the only way in which he could have exhausted available state remedies would have been in his art. 11.07 application. A review of his state application (No. 49,962-01 at pages 004-010; 014-30) reflects that neither claim was raised. Since both of these alleged deficiencies occurred prior to the date on which Bailey filed his art. 11.07 application any attempt to present these claims in a subsequent application would be barred. See art. 11.07 § 4, Texas Code of Criminal Procedure. Accordingly merits review of these claims is procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1 (1991).
In his application he raised a claim that the trial court erred in admitting evidence of extraneous offenses. Id. at 023. Further, the trial record reflects that counsel lodged a timely objection which was overruled. See Reporter's Record, Vol. 1 at 59.
The remaining claims with respect to his attorney's representation are cognizable only if they affected the voluntariness of his guilty plea. Moreover in the context of a guilty plea a petitioner must allege and demonstrate that "but for his counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370 (1985); Craker v. McCotter, 805 F.2d 538, 541 (5th Cir. 1986). As the record reflects, not only did Bailey execute a judicial confession, but he also testified that he had committed the offense charged in the indictment. See Reporter's Record, Vol. 1 at pages 25-28.
Accordingly his ineffective assistance of counsel claims which are not procedurally barred are without merit. RECOMMENDATION:
In his direct appeal Bailey asserted that his guilty plea was involuntary. This claim was rejected by the Fifth Court of Appeals. See Opinion filed on March 5, 2001, at pages 2-3. He does not raise this claim in the instant petition.
For the foregoing reasons it is recommended that the petition be denied.