Opinion
No. 3:03-CV-685-D.
April 20, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
I. BACKGROUND
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 Michael Allen Biter is an inmate currently incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division. Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. Procedural History : On November 3, 2000, Biter pleaded guilty, without a plea-bargain agreement, to robbery and aggravated robbery. (23280 C.R. at 14, 19; 23287 C.R. at 8, 13.) The trial court assessed punishment at twenty years of confinement for each offense, to run concurrently. (23280 C.R. at 19; 23287 C.R. at 13.) The Fifth District Court of Appeals affirmed the trial court's judgments, but Biter did not file a petition for discretionary review with the Texas Court of Criminal Appeals. Biter v. State, Nos. 5-00-1877 1878-CR, 2001 WL 1191816 (Tex.App.-Dallas Oct. 10, 2001, no pet.) (not designated for publication).
On April 18, 2001, while his direct appeal was pending, Biter filed a state application for writ of habeas corpus challenging his convictions, which the Texas Court of Criminal Appeals denied without written order. Ex parte Biter, No. 49,574-01 (Tex.Crim.App. June 27, 2001) (not designated for publication). On June 4, 2002 and August 7, 2002, Biter filed two state habeas applications challenging his convictions, which the Court of Criminal Appeals denied without written orders on the findings of the trial court. Ex parte Biter, Nos. 49,574-02 -03 (Tex.Crim.App. Oct. 9, 2002).
Biter filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on February 28, 2003. See RULES GOVERNING SECTION 2254 CASES 3(d) (mandating timeliness determined by date petition placed in institution's internal mailing system); Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
Although Biter initially filed his federal petition in the United States District Court for the Eastern District of Texas, Beaumont Division, the petition was transferred to this Court. 28 U.S.C. § 2241(d).
D. Issues : Biter argues that (1) trial counsel was constitutionally ineffective during plea negotiations and (2) he was denied due process when the trial court (a) failed to follow the plea agreement, (b) failed to properly admonish Biter that he was not eligible for parole, and (c) did not allow Biter to withdraw his pleas.
E. Exhaustion : Dretke argues that Biter's denial of due process claims based on the trial court's failure to follow the plea agreement and its refusal to allow him to withdraw his plea (claims (2)(a) and (2)(c), respectively) have not been exhausted and that these claims have been procedurally defaulted. However, Dretke concedes that Biter's remaining allegations have been properly exhausted.
II. EXHAUSTION AND PROCEDURAL DEFAULT
Applicants seeking habeas 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 state court. Picard v. Connor, 404 U.S. 270, 275-76 (1981); Fisher, 169 F.3d at 302. 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. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
Biter did not raise in his state habeas corpus application his arguments that he was denied due process when the trial court failed to follow the plea agreement and did not allow him to withdraw his guilty pleas. Thus, he seeks federal habeas relief on factual allegations that were never made in the Texas courts, which renders these claims unexhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
However, Biter cannot return to the Texas courts to cure this deficiency. The Texas abuseof-the-writ doctrine prohibits a successive habeas application, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas application. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). 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.
Biter has not given any explanation to excuse his default. Indeed, the trial court's actions with respect to his guilty pleas were known to Biter before he filed his state habeas corpus applications. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999). Accordingly, these claims are procedurally barred. See Bousley v. United States, 523 U.S. 614, 621-22 (1998) (holding that claim of involuntary guilty plea based on insufficient information, as opposed to involuntariness based on coercion by government agent, was procedurally barred because it was raised for the first time on federal habeas corpus review).
III. STANDARD OF REVIEW
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a state court judgment 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 adjudication: (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 United States Supreme Court 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), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it in an objectively unreasonable manner to the facts of the case. Holland v. Jackson, 124 S. Ct. 2736, 2738-39 (2004); see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002) (en banc per curiam), cert. denied, 537 U.S. 1104 (2003).
Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
IV. INVOLUNTARY GUILTY PLEA
Biter's claims necessarily implicate the voluntariness of his guilty pleas, which is the initial inquiry in a guilty-plea case. Because Biter pleaded guilty, he may only challenge the voluntary character of his guilty pleas. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983), cert. denied, 466 U.S. 906 (1984).
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 others that his plea would become a constitutionally inadequate basis for imprisonment. Id. (citing Blackledge v. Allison, 431 U.S. 63, 75 (1977)). Before a trial court may accept a guilty plea, the court must ensure that the defendant "has a full understanding of what the plea connotes and of its consequence," but not that he understood the "technical legal effect" of the charges. Boykin v. Alabama, 395 U.S. 238, 244 (1969); James, 56 F.3d at 666. A plea is involuntary, and thus insufficient to support a conviction, if the defendant "has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt." Henderson v. Morgan, 426 U.S. 637, 645 n. 13 (1976). If the defendant understands the maximum prison term and fine for the offense, the subsequent guilty plea is knowingly entered. Ables v. Scott, 73 F.3d 591, 592 n. 2 (5th Cir.) (per curiam), cert. denied, 517 U.S. 1198 (1996). Absent supporting evidence 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. Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994), cert. denied, 514 U.S. 1071 (1995); Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (per curiam).
The record reflects that Biter (1) was pleading guilty freely and voluntarily, (2) was aware of the applicable punishment ranges, (3) had not been promised anything in return for his guilty pleas and had not been coerced, (4) was mentally competent, (5) understood the plea admonishments, and (6) was aware of the consequences of his pleas. (2 State Habeas R. at 43-44, 47-48; 3 State Habeas R. at 43-44, 47-48; 2 R.R. at 8-10.) Biter has offered nothing more than his self-serving allegations that his pleas were involuntary, which is insufficient to rebut the presumption of regularity of the state court records. Babb v. Johnson, 61 F. Supp. 2d 604, 606 (S.D. Tex. 1999); see also Armstead, 37 F.3d at 210. Biter's attacks on his guilty pleas do not undermine the sufficiency of the information he was provided before he pleaded guilty. Ables, 73 F.3d at 592 n. 2. Further, the trial court made factual findings and concluded that the plea was voluntary. (2 State Habeas R. at 38; 3 State Habeas R. at 38.) Biter has not overcome the presumption of correctness, which applies to these factual findings, with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Biter asserts that trial counsel was ineffective before he pleaded guilty because she told Biter that he would get probation, but she never moved for a probated sentence. Because Biter pleaded guilty, he may only challenge the voluntary character of his guilty pleas in raising an ineffective-assistance-of-counsel claim. Hill, 474 U.S. at 56-57; Smith, 711 F.2d at 682. As discussed above, Biter has failed to show that his plea was involuntary. Thus, he has failed to overcome the presumption that he was properly admonished and that his plea was voluntary. Biter's guilty plea waived any ineffectiveness of counsel occurring before Biter pleaded guilty. Beasley v. McCotter, 798 F.2d 116, 118 n. 1 (5th Cir. 1986) (per curiam), cert. denied, 479 U.S. 1039 (1987); see also Tollet v. Henderson, 411 U.S. 258, 267 (1973) (stating guilty plea waives all nonjurisdictional defects occurring before entry of plea); Matthew v. Johnson, 201 F.3d 353, 364 (5th Cir.), cert. denied, 531 U.S. 830 (2000) (noting long-standing rule that valid guilty plea bars habeas review of nonjurisdictional claims alleging antecedent violations of constitutional rights). Further, the trial court made factual findings based upon trial counsel's affidavit and concluded that counsel was not ineffective. (2 State Habeas R. at 38; 3 State Habeas R. at 38.) Biter has not overcome the presumption of correctness that applies to these factual findings with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Counsel stated in her affidavits that Biter was aware of the available sentencing options:
I, as well as the Judge, admonished [Biter] of the full range of punishment. NO promises of probation were made to Mr. Biter. From our initial meeting and confronted with overwhelming evidence from the State, Mr. Biter admitted his guilt to me as his lawyer. We discussed all options, including trial. Mr. Biter decided he wanted to plea[d] guilty and try to mitigate the offense in an open plea. He was informed the Judge could pronounce any sentence he felt justified (i.e. deferred probation to life). Mr. Biter was fully admonished as to the consequences of aggravated time and that as the offense was one of 3G, the only probation option would be deferred. Contrary to Mr. Biter's misdirected writ, he was . . . eligible for a deferred probation after entering a guilty plea to the Court and going open for sentencing.
(2 State Habeas R. at 41; 3 State Habeas R. at 41.)
VI. TRIAL COURT FAILURE TO ADMONISH
Biter argues that the trial court deprived him of due process when it failed to admonish him that he was not eligible for probation. As discussed above, Biter has failed to show that his plea was involuntary. Thus, he has failed to overcome the presumption that he was properly admonished and that his pleas were voluntary. Further, the trial court made factual findings and concluded that Biter had been properly admonished. (2 State Habeas R. at 38; 3 State Habeas R. at 38.) Biter has failed to overcome the presumption of correctness of these findings. Id.
VII. SUMMARY
Biter is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Biter was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.VIII. EVIDENTIARY HEARING
Upon review of the pleadings filed and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary. RULES GOVERNING SECTION 2254 CASES 8(a).IX. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY the request for habeas corpus relief brought under 28 U.S.C. § 2254.