Opinion
Civil Action No. 4:04-CV-443-A.
November 4, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Marshall Lee Barnett Jr., TDCJ #1128135, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is currently housed at the Preston E. Smith Unit in Lamesa, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
In May 2002, Barnett was charged by indictment with manufacturing a controlled substance, namely methamphetamine, in an amount of four grams or more but less than 200 grams within 1,000 feet of a drug free zone in the 29th Judicial District Court of Palo Pinto County, Texas. (State Habeas R. at 16.) The indictment also included an enhancement paragraph, alleging a prior 1998 felony conviction for delivery of a controlled substance. ( Id.) On September 20, 2002, Barnett waived his right to a jury trial, entered a negotiated plea of guilty to the charged offense and a plea of true to the enhancement allegation, and, in accordance with the plea bargain agreement, was sentenced by the trial court to twenty-five years' confinement. ( Id. at 17-25.) Barnett did not appeal his conviction and sentence. (Petition at 3.) He did, however, file a state application for writ of habeas corpus raising the claims presented herein, which the Texas Court of Criminal Appeals denied without written order on the findings of the state trial court. Ex parte Barnett, Application No. 58,824-01, at cover. Barnett filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on May 15, 2004.D. ISSUES
In one ground, Barnett contends that he received ineffective assistance of trial counsel because counsel (1) failed to request an examining trial, (2) failed to interview and subpoena a key defense witness, and (3) coerced, persuaded and threatened him to agree to the plea offer or receive a life sentence. (Petition at 7 Memorandum in Support.)
E. RULE 5 STATEMENT
Dretke believes that Barnett has not exhausted his state remedies on the claims presented because he did not raise the precise claims raised herein in his state habeas application and, thus, the claims are procedurally barred from federal habeas review. (Resp't Answer at 2.)
Applicants seeking habeas corpus relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest court of the state. O'Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999); Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Depuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
Barnett did not raise in state court his claim (1) above. Thus, to the extent Barnett seeks federal habeas relief on a claim that was never made in the Texas courts, the claim is unexhausted. See Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001). Barnett cannot, however, return to the Texas courts to cure this deficiency. The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Cotton v. Cockrell, 343 F.3d 746, 755 (5th Cir. 2003), cert. denied, 124 S. Ct. 1417 (2004); Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice, or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20.
Barnett has not given a valid justification to excuse his default. Nor has he demonstrated that failure to consider the claims will result in a miscarriage of justice, i.e., that he is innocent of the crime for which he was charged and convicted. Accordingly, Barnett's ineffective assistance claim (1) not raised in his state habeas application is procedurally barred from federal habeas review.
As to Barnett's remaining ineffective claims (2) and (3), upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state court records. Barnett tangentially raised similar ineffective assistance claims on the same grounds in his state writ application. (State Habeas R. at 8.) This was sufficient to exhaust claims (2) and (3) for purposes of federal habeas review. Mack v. Lynaugh, 754 F.Supp. 1116, 1122 2(W.D. Tex. 1990).
As previously stated, under claim (3), Barnett contends counsel was ineffective because he coerced, persuaded and threatened him to accept the plea offer. In his state habeas application, Barnett alleged his conviction was obtained by the use of a coerced "confession." (State Habeas R. at 6-7.) Having considered the facts underlying the allegation as set forth by Barnett in his state habeas application, in conjunction with his federal pleadings, the state claim, although not treated as such by the state courts, is interpreted as an allegation that his conviction was obtained by the use of a coerced guilty plea.
F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief.
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudications: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, 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. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court of the United States on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). A state court decision will be an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
The statute further requires that federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. This presumption of corrections applies to both explicit findings of fact and those findings of fact implicit in the state court's mixed law and fact conclusions. Valdez v. Cockrell, 274, F.3d 941, 948 n. 11 (5th Cir. 2001), cert. denied, 537 U.S. 883 (2002). The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Typically, when the Texas Court of Criminal Appeals denies relief in a state habeas courpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002), cert. denied, 537 U.S. 1104 (2003); Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Application
Barnett contends he received ineffective assistance of trial counsel because counsel failed to interview and subpoena a key defense witness, Robert Ethan Maroon, and because counsel coerced, persuaded and threatened him to accept the plea offer or receive a life sentence. (Petition at 7 Memorandum in Support at 2; Pet'r Response at 2.)
A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. CONST. amend. VI. To prevail on an ineffective assistance claim in the context of a guilty plea, a defendant must demonstrate that his plea was rendered involuntary by showing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's deficient performance, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 56-59 (1985); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). Barnett asserts that but for counsel's actions he would have insisted on going to trial. (Pet'r Response at 1.) Thus, we must determine only whether counsel's representation fell below an objective standard of reasonableness in his case.
In evaluating an ineffective assistance claim, a court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Strickland, 466 U.S. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689. Strategic choices made by counsel after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Id. at 690.
As to his first claim, once a guilty plea has been entered, all nonjuridictional defects in the proceedings against a defendant are waived, including all claims of ineffective assistance of counsel that do not attack he voluntariness of the guilty plea. Smith, 711 F.2d at 682; Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir. 1981). Thus, to the extent Barnett complains trial counsel failed to interview and subpoena a key defense witness, a matter unrelated to the voluntariness of his plea, the claim is nonjurisdictional and is waived by the plea. See United States v. Broce, 488 U.S. 563, 573-74 (1989).
As to his second claim, the state trial court held a hearing by affidavit, which proves relevant to the issue. (State Habeas R. at 25-28.) Trial counsel testified, verbatim, in his affidavit as follows:
[D]uring negotiations with the District Attorney, a plea bargain offer of 30 years in the Texas Department of Criminal Justice was offered. At that time, his range of punishment for the manufacture of a controlled substance over 4 grams and less than 200 grams with an enhancement paragraph was a minimum of 15 years and a maximum of 99 years or life; in addition, the allegation was made that the offense was committed within a drug-free zone which, if proven, would have added 5 years to the minimum sentence imposed. At that meeting, Applicant stated that he would think about the offer and would let me know. Some two weeks later, Applicant filed a request with the Court that I be removed as his lawyer. In accordance with those instructions, I filed a formal Motion to Withdraw on August 21, 2002, which was denied by the Court on August 23, 2002.
Subsequent to this time, I again met with the District Attorney and the District Attorney agreed to drop the drug-free zone portion of the indictment. On that date, I met with the Applicant to transmit the latest offer to him and he expressed his desire to accept the 30 years but asked that I try to get the sentence lowered. On August 27, 2002, I again met with the District Attorney and the District Attorney agreed to an offer of 25 years confinement, which I relayed to the Applicant who in turn agreed to accept said offer.
A plea date was set on September 20, 2002. On that date, the Applicant expressed some concern about accepting the plea. When I informed him that it was his decision and that I would abide by his decision, he stated "nobody stands a chance in hell." This occurred at 8:50 a.m. Applicant further stated that he would think about whether to plead or not and would notify me of his decision in one hour. At 10:10 a.m., Applicant informed me that he would take the deal that had been offered. Then, Applicant pled guilty to the charge and received the sentence as had been agreed upon.
I had previously told Applicant that at trial we would use the affidavit of Ethan Maroon, a co-defendant in this case. I further told him that Mr. Maroon would not be a credible witness based upon my experience and understanding of the situation. At no time did I tell Applicant that I would not subpoena any witness. At no time did I tell Applicant that I wanted off his case and would not represent him to the best of my ability. (State Habeas R. at 13-14.)
In light of counsel's testimony and the documentary evidence in the state record, the trial court entered findings of fact refuting Barnett's allegations of ineffective assistance. ( Id. at 27.) Specifically, the court found that counsel is an experienced trial lawyer (for 30 years) and provided effective assistance and representation to Barnett. ( Id.) The court further found that Barnett pled guilty, signed a judicial confession, was properly admonished and persisted in such plea. ( Id.) The Texas Court of Criminal Appeals thereafter denied relief without written order on the trial court's findings. Ex parte Barnett, No. 58,824-01, at cover. In his federal petition, Barnett makes no reference to the state court findings and makes no effort to rebut the presumptive correctness of the findings. See 28 U.S.C. § 2254(d)(1); Bell v. Cone, 535 U.S. 685, 698-99 (2002); Haynes v. Cain, 298 F.3d 375, 379-82 (5th Cir.), cert. denied, 537 U.S. 1072 (2002). Nor does an independent review of the state court records reveal clear and convincing evidence that would rebut the presumption of correctness.
A guilty plea must be a voluntary, knowing, and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences surrounding the plea. Brady v. United States, 397 U.S. 742, 748 (1970). If a challenged guilty plea is knowing, voluntary, and intelligent, it will be upheld on federal habeas review. James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). Although a defendant's attestation of voluntariness at the time of the plea is not an absolute bar to later contrary contentions, it places a heavy burden upon him. United States v. Diaz, 733 F.2d 371, 373-74 (5th Cir. 1979). He must show such a strong degree of misunderstanding, duress, or misrepresentation by the court, prosecutor, or his own counsel that his plea would become a constitutionally inadequate basis for imprisonment. Id. (citing Blackledge v. Allison, 431 U.S. 63, 75 (1977)).
Here, the record of the plea proceedings does not support Barnett's assertion that his plea was rendered involuntary as a result of coercion or threats on the part of counsel or others. Although there is no reporter's record of the plea proceeding, the documentary record reflects that Barnett entered his guilty plea in open court and was advised by counsel and the trial court of his rights, waivers, and the full range of punishment for the offense. (State Habeas R. at 17-21.) Barnett executed the written plea admonishments in which he acknowledged that he was aware of the consequences of his plea, that his plea was made knowingly, freely and voluntarily, that his plea was "not made because of fear, threats, or persuasion, or any promises from any source causing him to confess guilt," that he was "totally satisfied" with the representation received from counsel, and that counsel was "competent in every aspect of representation." ( Id. at 17-18.) See Blackledge, 431 U.S. at 74; Kelley v. Alabama, 636 F.2d 1082, 1084 (5th Cir. 1981). Such representations by a defendant during plea proceedings "carry a strong presumption of verity." Blackledge, 431 U.S. at 74.
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. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983). Accordingly, a habeas petitioner's self-serving assertion, after the fact, that he was persuaded or coerced into entering a guilty plea by counsel is in and of itself insufficient. See Siao-Pao v. Keane, 878 F. Supp. 468, 472 (S.D.N.Y. 1995); see also, e.g., Panuccio v. Kelly, 927 F.2d 106, 109 (2nd Cir. 1991) (a defendant's testimony after the fact suffers from obvious credibility problems). Barnett has offered nothing more than his unsubstantiated allegations concerning counsel's representation and influence on his decision to plead guilty, which are insufficient to rebut the presumption of regularity of the state court records and the correctness of the state courts' adjudication of the issue. See Babb v. Johnson, 61 F.Supp. 2d 604, 607 (S.D. Tex. 1999); see also Hill, 210 F.3d at 485; Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994). Counsel's obligation is to inform a criminal defendant of the advantages and disadvantages of a plea agreement and the attendant statutory and constitutional rights that a guilty plea would forgo. Libretti v. United States, 516 U.S. 29, 50-51 (1995). Often a criminal defendant, even if he is unwilling or unable to admit his guilt, will agree to plead guilty to an offense, having been so informed by counsel, in order to avoid a potentially longer sentence by a jury. Such a decision on the part of a defendant does not render counsel's representation deficient or a plea involuntary. See North Carolina v. Alford, 400 U.S. 25, 37 (1970); Brady v. United States, 397 U.S. 742, 749-50 (1970).
The record supports the state courts' determination of Barnett's ineffective assistance claims. The state courts' decision is not contrary to or involve an unreasonable application of federal law in light of the record as a whole and is entitled to deference and the presumption of correctness.
3. Evidentiary Hearing
By separate motion, Barnett requests that this court hold an evidentiary hearing so that he may develop facts supporting his ineffective assistance claims. If a petitioner failed to develop a factual basis for a claim in state court, a federal habeas court shall not conduct an evidentiary hearing on the claim unless the claim relies on a new rule of constitutional law or on "a factual predicate that could not have been previously discovered through the exercise of due diligence" and the facts "would be sufficient to establish by clear and convincing evidence" the petitioner's actual innocence. 28 U.S.C. § 2254(e)(2). A factual basis was adequately developed by affidavit testimony in the state trial court on the claims presented. Carter v. Johnson, 131 F.3d 452, 460 n. 13 (5th Cir. 1997). In-person repetition of trial counsel's account of his representation of Barnett could not alter that. Further, Barnett cannot satisfy the statutory requirements. His claims do not rely on a new rule of constitutional law or on a legal or factual basis that did not exist at the time of the state court proceedings. 28 U.S.C. § 2254(e)(2)(A)(i)-(ii); see also Williams, 529 U.S. at 435-36. Barnett received a full and fair adjudication of his claims at the state level and the state court's factual determinations are fairly supported by the record as a whole. Thus, an evidentiary hearing is not warranted.
II. RECOMMENDATION
Barnett's petition for writ of habeas corpus and his motion for an evidentiary hearing should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until November 25, 2004. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until November 25, 2004, to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby is returned to the docket of the United States District Judge.