Opinion
No. 3:03-CV-883-H.
March 23, 2005
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
Before the Court is Petitioner's motion to amend her petition and motion to dismiss counts four and eight of her petition. On April 14, 2003, Petitioner filed this petition pursuant to 28 U.S.C. § 2254. On January 14, 2005, this Court entered findings, conclusions and a recommendation that the petition be denied. On January 20, 2005, Petitioner filed a motion to amend her petition and a motion to dismiss grounds four and eight. The Court finds Petitioner's motion to amend should be denied and her motion to dismiss grounds four and eight should be granted.
Petitioner seeks to amend grounds three, seven and ten of her original petition. Petitioner's original claim number three states: GROUND THREE: INEFFECTIVE ASSISTANCE OF COUNSEL
Supporting Facts: Applicant asserts that she was incorrectly advised by her trial counsel that mere presents (sic) at the scene of the instant offense was sufficient to convict her of the charged offense, and therefore, since the state could prove she was present at the time of the offense, she would be convicted. As a result, Applicant entered a guilty plea despite telling her lawyers that she did not participate in any manner in the offense. In fact, Applicant testified in the punishment phase that she was present but did not either anticipate that an offense would occur, nor did Applicant participate in the offense itself. Had Applicant's trial counsel advised her of the defense of mere presence there is a reasonable probability that the outcome of the trial would have been different in that Applicant would have insisted on pleading not guilty and proceeding to trial.
Petitioner seeks to amend this claim as follows:
GROUND THREE: INEFFECTIVE ASSISTANCE OF COUNSEL
Supporting Facts: Petitioner asserts that she was incorrectly advised by her trial counsel that mere presence was sufficient evidence to convict her of the charged offense, and therefore, since the State could prove she was present at the time of the offense, she would be convicted. As a result, Petitioner entered a guilty plea despite telling her lawyers that she did not participate in any manner in the offense. In fact, Petitioner testified in the punishment phase that she was present but did not either anticipate that an offense would occur, nor did Petitioner participate in the offense.
The Court finds the proposed amended claim raises the same issues as the original claim. The Court therefore finds the amendment should be denied.
Petitioner seeks to amend ground number seven. The Court finds that the proposed ground number seven raises the same claims that Petitioner raised in her original ground number nine. In her original petition, ground number nine states:
GROUND NINE: DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL
Supporting Facts: Applicant asserts that the record fails to show that she was properly admonished regarding the range of punishment prior to the entry of her guilty plea, therefore requiring a new trial. This issue was never raised in Applicant's direct appeal to the Court of Appeals. Counsel's failure to raise the issue on direct appeal constituted ineffective assistance of counsel on appeal.
Petitioner's proposed amended ground number seven states:
GROUND SEVEN: INEFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL
Supporting Facts: Petitioner asserts the record fails to show that she was properly admonished regarding the range of punishment prior to entry of her plea, therefore requiring a new trial. This issue was never raised in Petitioner's direct appeal to the Court of Appeals. Counsel's failure to raise the issue on direct appeal constituted ineffective assistance of counsel on appeal.
Because Petitioner raised the same claims in her original petition, the amendment should be denied.
Finally, Petitioner seeks to amend claim number ten. The amended claim is the same as Petitioner's original claims number eleven and twelve. The original claims eleven and twelve state:
GROUND ELEVEN: DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL
Supporting Facts: Applicant asserts that her trial counsel was ineffective for failing (sic) advise her that there existed the possibility that, through proper investigation, Applicant could be exonerated of any criminal culpability in the commission of the offense for which she was charged through the defense on (sic) DURESS SPECIFICALLY AND OTHER DEFENSES GENERALLY. . . .
GROUND TWELVE: DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL
Supporting Facts: Applicant asserts that she was denied the effective assistance of counsel at trial where trial counsel failed to present the defense of DURESS, both in examination, cross-examination, introduction of evidence, closing arguments, and request for inclusion of this defense in the written instructions to the jury. . . . . Petitioner's proposed amended claim number 10 states:GROUND TEN: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Supporting Facts: Petitioner was denied the effective assistance of counsel at trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution where defense counsel failed to present the defense of DURESS, both in examination, cross-examination, closing arguments, and request for inclusion of this defense in the written instructions to the jury. Evidence clearly raised this defense, emanating from both Petitioner and Petitioner's co-defendant, the latter which testified as a key witness for the prosecution. Had this defense been presented at trial in this cause, there is a strong likelihood that, in its deliberations, the jury would have acquitted Petitioner of the offense for which she was indicted and tried.
Petitioner seeks to amend her petition to add claims that are contained in her original petition. The Court addressed these claims in its January 14, 2005, findings, conclusions and recommendation. The Court finds the amendment should be denied.
Petitioner also seeks to dismiss grounds four and eight of her original petition. As stated in the Court's findings and recommendation, these claims are without merit. The Court therefore finds these claims should be dismissed with prejudice.
RECOMMENDATION
For the foregoing reasons, the Court recommends that Petitioner's motion to amend her petition be denied and that Petitioner's motion to dismiss grounds four and eight of her original petition be granted.