Opinion
No. 3:01-CV-0841-D
June 4, 2002
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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS I. Background
Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
Procedural History: On March 27, 1995, the State indicted petitioner for aggravated robbery with a deadly weapon. TR at 2. On July 24, 1995, petitioner pled guilty to robbery. Statement of Facts, Vol. 1 at 2, 6 [hereinafter SF-volume at page]. On July 31, 1995, petitioner informed the trial court that he was pleading guilty so that he could get into a drug and alcohol program. SF-II at 23. In response to specific questioning from the trial court, petitioner stated that he had not committed the robbery offense. Id. at 24. The court thus withdrew the plea. Id.
"TR" refers to the state trial record.
On October 5, 1995, petitioner entered a plea of nolo contendere to the charge of aggravated robbery. TR at 72-73. He also pled true to two enhancement paragraphs. Id. at 78. The court thus entered an order of deferred adjudication, in which it ordered ten years supervision and included as a condition of probation that petitioner complete a drug treatment program. Id. at 78, 80.
On February 3, 1998, the State moved to proceed with the adjudication of guilt, because petitioner failed to complete the required drug program. TR at 97. On April 24, 1998, petitioner pled true to the alleged violation of his probation. Id. at 91-92. On that same date, the trial court adjudicated him guilty of the aggravated robbery in a "Judgment Adjudicating Guilt" and sentenced him to twenty-five years imprisonment. Id. at 93.
On March 24, 1999, the court of appeals affirmed his conviction on direct appeal. Cutrer v. State, 995 S.W.2d 703, 709 (Tex.App. — Texarkana 1999, pet. ref'd). On November 7, 2000, he filed a state application for writ of habeas corpus. Partial S.H. Tr. at 2. On February 2, 2001, the trial court entered findings of fact and conclusions of law that recommended denial of the state application. Supp. S.H. Tr. at 3-9. On April 18, 2001, the Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court without a hearing. Ex parte Cutrer, No. 48,161-01, slip op. at 1 (Tex.Crim.App. Apr. 18, 2001.)
"S.H. Tr." refers to the state habeas records. The designation "Partial" refers to the specific set of records.
"Supp. S.H. Tr." denotes that the supplemental state habeas record.
On May 2, 2001, petitioner executed the instant federal writ of habeas corpus and placed it in the prison mailing system. He thus filed it on that date. See Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999). With permission of the Court, petitioner filed a Supplemental Amended Brief in Support of his federal petition. On September 17, 2001, respondent filed her answer. On September 28, 2001, petitioner filed a traverse.
Substantive Issues: In four grounds for relief, petitioner raises three bases for habeas relief in the instant federal petition: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; and (3) violation of due process and equal protection by the Texas Court of Criminal Appeals.
In one ground for relief, petitioner claims a "denial of assistance of counsel." caused by the trial court taking no action on a pro se request for appointment of different trial counsel. (Pet. at 7.) In his brief in support of his federal writ, petitioner clarifies that the trial court's denial of his request for different counsel deprived him of his right to effective assistance of counsel. (Brief in Support at 5.) Such claim falls within the parameters of his claim that his trial attorney rendered ineffective assistance.
Procedural Issues: Respondent concedes that petitioner has sufficiently exhausted his state remedies. She asserts, however, that his claims of ineffective assistance of counsel are barred by the statute of limitations of 28 U.S.C. § 2244 (d)(1). The premise for such argument lies in respondent's belief that the applicable state judgment became final thirty days after the trial court entered its order of deferred adjudication and petitioner failed to appeal from that order. Relying upon Manuel v. State, 994 S.W.2d 658 (Tex.Crim.App. 1999), respondent asserts that petitioner's chance to appeal issues relating to the original plea proceeding expired thirty days after the trial court imposed the deferred adjudication probation. Relying upon United States v. Cisneros, 112 F.3d 1272 (5th Cir. 1997), respondent contends that the determination of when the state judgment became final is a question of federal law that may be answered by looking to state law for guidance. Citing Cisneros and United States v. Stauder, 73 F.3d 56 (5th Cir. 1996), respondent contends that federal law dictates that deferred adjudication probation be treated as a "prior conviction." Respondent further contends that TEX. CODE CRIM. PROC. art. 42.12, § 5(b) supports finding the imposition of deferred adjudication probation as a judgment for purposes of statute of limitations. In addition, respondent notes that, in Titus v. Johnson, No. 6:00-CV-007-C, slip op. (N.D. Tex. Aug. 3, 2000), this district has determined that ordinary probation constitutes a judgment for purposes of statute of limitations.
II. Statute of Limitations
Section 2244(d)(1) of Title 28 of the United States Code provides that "[a] 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to a judgment of a State court." It further states that "[t]he limitation period shall run from the latest" of four specific dates, including "the date on which the judgment became final" mentioned in subparagraph (A). Id. Respondent urges the Court to find petitioner's claims of ineffective assistance of counsel untimely by finding that the date petitioner's judgment became final was in 1995, when the trial court placed petitioner on deferred adjudication probation.
The Court rejects respondent's theory of untimeliness. On previous occasions, the courts in this district have rejected respondent's theory. See Crenshaw v. Cockrell, No. 4:01-CV-405-Y, 2002 WL 356513, at * 1, 4-5 (N.D. Tex. Mar. 5, 2002) (adopting a recommendation that rejects the same theory); Davis v. Cockrell, No. 3:01-CV-1946-D, 2002 WL 226367, at * 1-2 (N.D. Tex. Feb. 12, 2002) (accepting a recommendation that rejects the same theory); Jordan v. Cockrell, No. 3:01-CV-1162-G, 2001 WL 1388015, at *1-2 (N.D. Tex. Nov. 6, 2001) (adopting a recommendation that rejects the same theory); Estrada v. Johnson, No. 3:01-CV-0371-P, 2001 WL 1825827, at *1-2 (N.D. Tex. July 26, 2001) (same).
Under the facts of this case, furthermore, the theory does not withstand close scrutiny. On October 5, 1995, the trial court entered a "Deferred Adjudication Order." This order does not constitute a judgment under Texas law. See TEX. CODE CRIM. PROC. ANN. art 42.01, § 1 (Vernon Supp. 1994). Under section 1 of Article 42.01, "[a] judgment is the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant." In this instance, the order of deferred adjudication shows neither a conviction nor an acquittal. See TR at 78-79. The order, furthermore, lacks other typical trappings of a Texas judgment. See TEX. CODE CRIM. PROC. ANN. art 42.01, § 1 (Vernon Supp. 1994) (indicating that a judgment should reflect among other things: (8) a section addressing the proper punishment; (15) the term of sentence; (16) the date judgment was entered; (17) the date sentence was imposed; and (18) the date sentence was to commence and the credit for time served). The order of deferred adjudication contains none of these enumerated items and specifically states: "DATE OF ORDER: 10/05/95." See TR at 78-79. The "Judgment Adjudicating Guilt", on the other hand, contains all of these items and specifically states "DATE OF JUDGMENT: 04/24/98." See id. at 93-94. Without a state judgment, § 2244(d)(1) simply has no applicability.
Respondent argues that TEX. CODE CRIM. PROC. art. 42.12, § 5(b) supports finding the imposition of deferred adjudication probation as a judgment for purposes of statute of limitations. The argument appears to rest on the assumption that § 5(b) indicates some legislative intent that "the original plea proceeding . . . be the final stage for raising complaints." (Resp.'s Answer at 6.) Section 5(b), however, provides:
The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred.
(emphasis added). The emphasized portion of § 5(b) seems to cut against the argument that the original plea proceeding is the final stage for raising complaints. See Dillehey v. State, 815 S.W.2d 623, 626 n. 7 (Tex.Crim.App. 1991) (noting in dicta that, "[a] defendant who has appealed, say, a motion to suppress after he received deferred adjudication, who seeks to appeal that same matter again after he is adjudicated guilty, may under the plain wording of [§ 5(b)] be authorized to do so"); Webb v. State, 20 S.W.3d 834, 836 n. 2 (Tex.App. — Amarillo 2000, no pet. h.) (questioning "the legal foundation of Manuel given its potential conflict with legislative dictate" of § 5(b), but nevertheless following Manuel). In the instant case, furthermore, petitioner appealed his underlying plea after the trial court revoked his probation. See Cutrer v. State, 995 S.W.2d 703, 705-06 (Tex.App.-Texarkana 1999, pet. ref'd). "[O]ut of an abundance of precaution" the appellate court addressed the issues on the merits. Id. at 706. It thus seems that § 5(b) does not indicate any legislative intent that the original plea proceeding be the final stage for raising complaints related to that proceeding.
Respondent, nevertheless, has some support for her argument that the original plea proceeding is the final stage for raising complaints on appeal relating to that proceeding. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999) (analyzing TEX. CODE CRIM. PROC. ANN. art. 44.01(j) to hold that "a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed"). The court of appeals in this case, furthermore, decided Cutrer prior to the Manuel decision from the Texas Court of Criminal Appeals. The Cutrer decision thus has limited precedential value on the issue.
Despite the arguments of respondent, neither TEX. CODE CRIM. PROC. art. 42.12, § 5(b) nor Manuel provide anything to convince the Court that the order of deferred adjudication entered in this case is a judgment within the meaning of Texas law or 28 U.S.C. § 2244 (d). Neither § 5(b) nor the case discuss whether an order of deferred adjudication is an appealable judgment or simply an appealable order. Under Texas law, a defendant who has not filed a timely motion for new trial must file a notice of appeal "within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order." TEX. R. App. P. 26.2(a)(1) (emphasis added). From the previous discussion of TEX. CODE CRIM. PROC. ANN. art 42.01, § 1, it appears necessary to consider the order of deferred adjudication as simply "an appealable order." Rule 26.2(a)(1) is not limited to appealing state-court criminal judgments. That petitioner had a right to appeal the imposition of deferred adjudication when it was imposed thus does not make the order of deferred adjudication a final judgment that commences the federal statute of limitations.
Respondent would have the Court apply Cisneros and Stauder to find the order of deferred adjudication to be a "prior conviction." These cases are inapposite to the matters currently before the Court. Both cases deal with whether deferred adjudication probation constitutes a prior conviction for purposes of federal sentencing guidelines. See United States v. Cisneros, 112 F.3d 1272, 1280-81 (5th Cir. 1997); United States v. Stauder, 73 F.3d 56, 56-57 (5th Cir. 1996). The federal sentencing guidelines are not at issue here. They have a specific provision, furthermore, that guide the determination of which state matters are considered as prior convictions for purposes of calculating the criminal history score of a federal defendant. See USSG § 4A1.2. Whether deferred adjudication probation equates to a prior state conviction for purposes of federal sentencing, moreover, does not affect the finality determination under 28 U.S.C. § 2244 (d)(1)(A) or whether the order of deferred adjudication is even a state judgment for purposes of that statute.
Respondent lastly notes that, in Titus v. Johnson, No. 6:00-CV-007-C, slip op. (N.D. Tex. Aug. 3, 2000), this district has determined that ordinary probation constitutes a judgment for purposes of statute of limitations. Titus, however, does not support finding the order of deferred adjudication entered in this case to be a judgment. The case also does not support finding petitioner's state judgment became final thirty days after the order of deferred adjudication probation. For purposes of the federal statute of limitations, there is a crucial difference between deferred adjudication probation and ordinary probation. That difference being the timing of the adjudication of guilt. See Donovan v. State, 68 S.W.3d 633, 637 (Tex.Crim.App. 2002) (noting that the two different dispositions often have different finality consequences); Jordan v. State, 36 S.W.3d 871, 876-877 (Tex.Crim.App. 2001) (recognizing differences between deferred adjudication probation and ordinary probation). In Titus, the state court accepted the petitioner's plea of guilty, assessed punishment at ten years confinement and a $400 fine, and probated the sentence of confinement to five years. Titus, slip op. at 2. All of these actions occurred on February 15, 1994. Id. In contrast, the trial court in the instance case entered an order of deferred adjudication probation on October 5, 1995, but did not adjudicate guilt until April 24, 1998.
There has only been one state judgment relevant to the instant petition — the one entered by the trial court on April 24, 1998. This judgment is thus the one whose finality commences the limitations period under § 2244(d)(1)(A) for the instant petition. The instant federal petition, moreover, is timely when measured against one year of that judgment becoming final. Contrary to respondent's position, neither federal nor Texas law supports finding the imposition of deferred adjudication probation as a final judgment for purposes of the federal statute of limitations. The Court thus proceeds to the merits of petitioner's claims.
III. Standard of Review
Title I of the AEDPA substantially changed the way federal courts handle habeas corpus actions. It applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Petitioner filed the instant petition after the effective date of the AEDPA. Title I of the Act thus applies to his petition. Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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 proceeding.
"In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.), cert. denied, 531 U.S. 849 (2000).
Section 2254(d)(1) concerns pure questions of law and mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.), cert. denied., 122 S.Ct. 194 (2001). A decision is contrary to clearly established Federal law, within the meaning of § 2254(d)(1), "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
With respect to the "unreasonable application" standard, Williams instructs that a writ must issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." 529 U.S. at 413; see also, Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." 529 U.S. at 407. "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; see also, Penry, 532 U.S. at 793.
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000), cert. denied, 532 U.S. 949 (2001). Under § 2254(d)(2), federal courts "give deference to the state court s findings unless they were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.) (as modified on denial of rehearing), cert. denied, 531 U.S. 1002 (2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254 (e) (1).
Petitioner raised his ineffective-assistance claims in his state writ. Partial S.H. Tr. at 8-49. The trial court submitted findings to the Texas Court of Criminal Appeals regarding the state petition. Supp. S.H. Tr. at 3-9. It found no ineffective assistance of trial or appellate counsel. Id. at 6-8. The Texas Court of Criminal Appeals denied the state writ without written order on the findings of trial court without a hearing. Ex parte Cutrer, No. 48,161-01, slip op. at 1 (Tex.Crim.App. Apr. 18, 2001.) 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. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997). In this instance, therefore, the state court rejected the ineffective-assistance claims on the merits. The AEDPA standards enumerated in 28 U.S.C. § 2254 (d) thus apply to them.
Petitioner has not presented his third claim to the State courts for consideration. The standards of § 2254(d) thus does not apply to it. Although a petitioner must generally exhaust state remedies before seeking federal habeas relief, the Court may, nevertheless, deny a habeas petition on the merits, "notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254 (b)(2). As will be seen infra, it appears most efficient to deny this claim on the merits in this instance.
IV. Examination of the Issues
Petitioner raises three claims in the instant federal petition: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; and (3) violation of due process and equal protection by the Texas Court of Criminal Appeals.
The Court first examines the voluntariness of the petitioner's plea in view of the claimed ineffectiveness of trial counsel. It then considers the claimed ineffective assistance of appellate counsel. Lastly, it will consider the claimed violation of due process.
A. Voluntariness of Plea and Ineffective Assistance of Trial Counsel
Petitioner claims his plea was involuntary because (1) counsel rendered ineffective assistance in the following specific respects: (a) failing to investigate petitioners s version of events; (b) scaring him with statements that the jury was in the hall waiting to give him ninety-nine years imprisonment; (c) advising him to plead nolo contendere; and (d) influencing him to plead rather than go to trial.
Petitioner raised this claim in his state writ. The Texas Court of Criminal Appeals denied that writ on the merits. Ex parte Cutrer, No. 48,161-01, slip op. at 1 (Tex.Crim.App. Apr. 18, 2001.) It accepted the findings of the trial court without a hearing. Id. The trial court found no ineffective assistance of trial counsel. Supp. S.H. Tr. at 3-8. After considering the complainant's version of events that had been presented to the trial court at the hearing of July 31, 1995, and the petitioner's version of events set forth in the state writ, the trial court found "that the [petitioner's] version of the events are [sic] simply not credible and that the victims [sic] version of the facts reflect what actually occurred." Supp. S.H. Tr. at 6. The trial court also noted that, at the plea hearing of October 5, 1995, petitioner indicated that he was satisfied with the representation received. Id. It found "counsel was not ineffective for failing to investigate the offense because there was no favorable defensive evidence available." Id.
With respect to allegations that trial counsel forced petitioner to plead with a threat of a ninety-nine year sentence, the trial court recognized that such allegations related to events that occurred on July 24, 1995, when "the case was set for trial, with the jury in the hall and jury selection about to begin," and petitioner decided to plead guilty to robbery. Id. at 6-7. It further recognized that it withdrew petitioner's plea of guilty on July 31, i995, and thus "whatever happened in July was irrelevant" due to that withdrawal. Id. at 7. The trial court again noted that petitioner had "not alleged any credible evidence that counsel failed to discover." Id.
A plea of guilty or nolo contendere waives a number of constitutional rights. Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); Joseph v. Butler, 838 F.2d 786, 789 (5th Cir. 1988). Such a plea "is constitutionally valid only to the extent it is `voluntary' and intelligent." Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). The Fourteenth Amendment Due Process Clause imposes these requirements. Fischer v. Wainwright, 584 F.2d 691, 692 (5th Cir. 1978) (citing Brady, 397 U.S. 742; Boykin, 395 U.S. 238; Johnson v. Zerbst, 304 U.S. 458 (1938)). "The voluntariness of a plea is determined by considering all of the relevant circumstances surrounding it." Id. (quoting Brady, 397 U.S. at 749). A plea qualifies as intelligent, furthermore, when the criminal defendant enters it after receiving real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process. Bousley , 523 U.S. at 618 (quoting Smith v. O'Grady, 312 U.S. 329, 334 (1941)).
In general, the law applicable to guilty pleas is equally applicable to pleas of nolo contendere. Matthew v. Johnson, 201 F.3d 353, 360 n. 9 (5th Cir.), cert. denied, 531 U.S. 830 (2000); Carter v. Collins, 918 F.2d 1198, 1200 n. 1 (5th Cir. 1990). The Court thus makes no distinction between the type of plea when citing cases and any mention of a guilty plea is equally applicable to a plea of nolo contendere.
"A federal court will uphold a guilty plea challenged in a habeas corpus proceeding if the plea was knowing, voluntary and intelligent." James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). "If a defendant understands the charges against him, understands the consequences of a guilty plea, and voluntarily chooses to plead guilty, without being coerced to do so, the guilty plea . . . will be upheld on federal review." Frank v. Blackburn, 646 F.2d 873, 882 (5th Cir. 1980) (en banc), modified on other grounds, 646 F.2d 902 (5th Cir. 1981) (per curiam).
"Before the 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.'" Taylor v. Whitley, 933 F.2d 325, 329 (5th Cir. 1991) (quoting Boykin v. Alabama, 395 U.S. 238, 244 (1969)). A prisoner may therefore not generally "collaterally attack a voluntary and intelligent" plea. Id. "A guilty plea is invalid if the defendant does not understand the nature of the constitutional protection that he is waiving or if he has such an incomplete understanding of the charges against him that his plea cannot stand as an admission of guilt." James, 56 F.3d at 666 (citing Henderson v. Morgan, 426 U.S. 637, 645 n. 13 (1976)). In determining whether a plea is voluntary and intelligent, "the critical issue is whether the defendant understood the nature and substance of the charges against him, and not necessarily whether he understood their technical legal effect." Taylor, 933 F.2d at 329.
Once a criminal defendant enters a knowing, intelligent, and voluntary plea, all non-jurisdictional defects in the proceedings below are waived except for claims of ineffective assistance of counsel relating to the voluntariness of the plea. United States v. Glinsey, 209 F.3d 386, 392 (5th Cir.), cert. denied, 531 U.S. 919 (2000); Nelson v. Hargett, 989 F.2d 847, 850 (5th Cir. 1993); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983).
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 was not within the standards set forth in McMann [v. Richardson, 397 U.S. 759, 770-771 (1970)].
Toilet v. Henderson, 411 U.S. 258, 267 (1973).
"When considering challenges to guilty plea proceedings, [the courts] have focused on three core concerns: absence of coercion, the defendant's understanding of the charges, and a realistic understanding of the consequences of a guilty plea." United States v. Gracia, 983 F.2d 625, 627-28 (5th Cir. 1993). In the sentencing context, "the consequences" of a guilty plea means only that the defendant knows "the maximum prison term and fine for the offense charged." Ables v. Scott, 73 F.3d 591, 592 n. 2 (5th Cir. 1996) (internal quotations omitted). The core concerns recognized by the Fifth Circuit Court of Appeals are addressed by the admonishments contained in Article 26.13 of the Texas Code of Criminal Procedure.
The Fifth Circuit has held that the admonishments under Rule 11 of the Federal Rules of Criminal Procedure provide "prophylactic protection for the constitutional rights involved in the entry of a guilty plea." United States v. Gracia, 983 F.2d 625, 627 (5th Cir. 1993). The requirements of Rule 11 and Article 26.13 are substantially similar. Compare FED. R. CRIM. P. 11 with TEX. CODE CRIM. PROC. ANN. art. 26.13. It therefore follows that the same "prophylactic protections" attach to the admonishments under Article 26.13.
The record shows that petitioner was properly admonished. With respect to his nolo plea, he signed a form entitled "Court's Admonition of Statutory and Constitutional Rights and Defendant's Acknowledgement [sic]." TR at 77 (stating "You are charged with the crime of Aggravated Robbery with two enhancement paragraphs and the range of punishment is 25-99 years or life confinement in T.D.C."). It admonishes that recommendations of punishment do not bind the court, but the court will follow the plea agreement, if able, and, if unable to do so, the court will allow petitioner to withdraw the plea. Id. ¶ 2. The form admonishes that petitioner cannot appeal without permission of the court, unless the court imposes a punishment greater than the one agreed to by the petitioner. Id. ¶ 3. It further admonishes petitioner about consequences relating to not being a United States citizen, rights he has if he has court-appointed counsel, and consequences relating to the impact that violations of probation has on deferred adjudications. Id. ¶¶ 4-6. The trial court specifically admonished petitioner:
If you receive deferred adjudication and a violation of probation occurs, you may be arrested, detained, and a hearing conducted, limited to the determination of whether the court should proceed to adjudication of guilt on the original charge or not. No appeal may be taken from this determination. If there is an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and your right to appeal continue as if the adjudication of guilt had not been deferred. If there is an adjudication of guilt, the full range of punishment would be applicable to your case.
Id. ¶ 6. The Acknowledgment section of this form provides: "I have read the above and foregoing admonitions by the Court regarding my rights. I understand the admonitions, and I understand and am aware of the consequences of my plea. Furthermore, my lawyer has explained to me all of the admonitions given by the Court in this document." Id.
Petitioner, furthermore, signed a form entitled "Defendant's Waivers and Judicial Confession" in which he states that he understands the charge against him, that he has been advised of the consequences of his plea, that he waives his right to remain silent, that he waives confrontation and cross-examinations of witnesses, that he consents to an oral or written stipulation of the evidence and testimony, that he agrees to the introduction of testimony by affidavit, written statements of witnesses, a judicial confession, and any other documentary evidence. Id. at 72-73. He further admitted and judicially confessed that he is the person named in the indictments and that he understood the charges contained therein. Id. at 73. He also specifically indicated that he was pleading nolo contendere to the aggravated robbery charge. Id. Defense counsel, furthermore, indicated that he had consulted with petitioner concerning his plea and had advised him of his rights and the charges to which he was pleading. Id.
In addition, petitioner pled true to two enhancement paragraphs of the indictment. TR at 75. He further entered a "Stipulation" that states:
Accordingly, having waived my Federal and State constitutional right against self incrimination, and after having been sworn, upon oath, I judicially stipulate to the following facts and agree and stipulate that these facts would be testified to at trial and constitute the evidence in this case:
On the 20 day of March, 1995, in Dallas County, Texas, I did knowingly and intentionally in the course of committing theft of property and with intent to obtain and maintain control of said property of Albert Timothy McKool, hereinafter called complainant, the said property being a pickup truck and current money of the United States of America without the effective consent of the said complainant and with intent to deprive the said complainant of said property, did then and there knowingly and intentionally threaten and place the said complainant in fear of imminent bodily injury and death and the defendant did then and there use and exhibit a deadly weapon, to wit: a steel rod.
TR at 76.
Before accepting petitioner's plea, the trial court also examined petitioner as to its voluntariness:
The Court:
You stand charged by indictment with the offense of aggravated robbery; do you understand that?
Petitioner: Yes, sir.
The Court:
The range of punishment for this offense is five years to 99 years or life confinement in the penitentiary and an optional fine not to exceed $10,000; do you understand that?
Petitioner: Yes, sir.
The Court:
Have you gone over your indictment and discussed — I'm sorry. Also the State has alleged that twice before you have been convicted of felony offenses; you know that, don't you?
Petitioner: Yes, sir.
The Court:
If you plead true to those paragraphs, the second and third paragraphs, and you've been found guilty of the primary paragraph and the evidence shows the second and third paragraphs to be true I will find them true, and under those circumstances the range of punishment is then 25 to 99 years or life confinement in the penitentiary; do you understand that?
Petitioner: Yes, sir.
The Court:
You've gone over your indictment and discussed the facts of your case with your lawyer, right?
Petitioner: Yes, sir.
The Court:
Have you gone over all of the documents that you have signed?
Petitioner: Correct.
The Court:
Do you understand all of your rights and the waiver or giving up of those rights that are contained within those documents?
Petitioner: Yes, sir, I do.
* * * *
The Court:
Are you pleading no contest?
Petitioner: No contest.
The Court:
Are you pleading true to the second and third paragraphs in the indictment?
Petitioner: Yes, sir.
RR at 4-7. Counsel for petitioner followed up the trial court's questioning with the following:
"RR" refers to the Reporter's Record.
Counsel:
Mr. Cutrer, you understand what is taking place today; is that correct?
Petitioner: Yes, I do.
* * * *
Counsel:
[T]he aggravated robbery case, which [sic] in the indictment you are pleading no contest; is that correct?
Petitioner: Yes, sir.
Counsel:
And you are pleading true to the two enhancement paragraphs contained in that case; is that correct?
Petitioner: Correct.
Counsel: You understand that we have a plea bargain in this case?
Petitioner: I understand.
Counsel: And part of the plea bargain is that you are to complete the Cenikor program [(a drug program)], is that correct?
Petitioner: That's correct.
Counsel: You understand that you have been accepted into that program?
Petitioner: Yes, sir.
Counsel: You understand the terms and conditions of that probation?
Petitioner: Yes, sir.
Counsel: This is what you wish to do?
Petitioner: Yes, it is.
Counsel: You have an absolute right to a trial by jury; is that correct?
Petitioner: That's correct.
Counsel: In fact, your case was set for a jury trial this week; is that correct?
Petitioner: Yes, that is correct.
Counsel: Are you entering into this plea bargain freely and voluntarily?
Petitioner: Yes, sir.
* * * *
Counsel: Are you satisfied with my representation?
Petitioner: Yes, I am.
RR at 7-9. The trial court further elaborated on the drug treatment program:
The Court: . . . Clint, let me tell about this Cenikor thing. You go out there and walk away you are in big, big trouble.
Petitioner: I understand.
The Court:
You go out there and don't do what you are supposed to do and you get to smart mouthing and they boot you out, it is just like you ran away.
Petitioner: I understand.
The Court:
So you better go out there and do whatever you [sic] say. Okay?
Petitioner: I intend to.
The Court:
This is your chance to get your life straight.
Petitioner: I do appreciate it.
RR at 12-13.
After accepting petitioner's plea, the trial court stated in the order of deferred adjudication that "DEFENDANT WAS ADMONISHED BY THE COURT OF THE CONSEQUENCES OF SAID PLEA AND DEFENDANT PERSISTED IN ENTERING SAID PLEA, AND IT PLAINLY APPEARING TO THE COURT THAT DEFENDANT IS MENTALLY COMPETENT AND SAID PLEA IS FREE AND VOLUNTARY." TR at 79.
Sworn testimony in open court carries a strong presumption of veracity in a subsequent federal habeas proceeding. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). State-court records, furthermore, are given a presumption of regularity. See Bonvillian v. Blackburn, 780 F.2d 1248, 1252 (5th Cir. 1986); Webster v. Estelle, 505 F.2d 926, 929-30 (5th Cir. 1974).
Petitioner specifically argues that his plea resulted from ineffective assistance of counsel. A guilty or nolo plea is "open to attack on the ground that counsel did not provide the defendant with `reasonably competent advise.'" Cuyler v. Sullivan, 446 U.S. 335, 344 (1980) (quoting McMann v. Richardson, 397 U.S. 759, 770-771 (1970)). With respect to such pleas, "[c]ounsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution." Argersinger v. Hamlin, 407 U.S. 25, 34 (1972).
The disposition the state habeas petition on the issue of ineffective assistance of counsel appears consistent with existing precedent of the United States Supreme Court. To successfully state a claim of ineffective assistance of counsel under such precedent, petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The Strickland test applies when a petitioner alleges he was denied effective assistance of counsel in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). It likewise applies in the context of a plea of nolo contendere.
To determine whether counsel's performance is constitutionally deficient courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. "[E]ffective assistance of counsel on the entry of a guilty plea requires that counsel ascertain whether the pleas are entered voluntarily and knowingly." Randle v. Scott, 43 F.3d 221, 225 (5th Cir. 1995) (quoting United States v. Diaz, 733 F.2d 371, 376 (5th Cir. 1984)). Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Strickland, 466 U.S. at 691. A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. Id. at 696.
Petitioner claims his trial attorney rendered ineffective assistance in the following specific respects: (a) failing to investigate petitioners s version of events; (b) scaring him with statements that the jury was in the hall waiting to give him ninety-nine years imprisonment; (c) advising him to plead nolo contendere; and (d) influencing him to plead rather than go to trial.
In this instance, the deficiency prong appears sufficient to deny the claim that counsel failed to investigate. On habeas review, the trial court found petitioner's version of events incredible and indicated that he had received no ineffective assistance from his trial attorney. Supp. S.H. Tr. at 5-7. Under 28 U.S.C. § 2254 (e)(1) the resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. Petitioner has not rebutted the presumption by clear and convincing evidence. This Court thus defers to the state-court credibility finding. In view of that finding, the Court finds no deficiency in failing to investigate petitioner's story. To render effective assistance of counsel, attorneys need not investigate incredible versions of what happened.
Petitioner, furthermore, has shown no prejudice from the alleged failure to investigate or other deficiencies of counsel. When a prisoner challenges his plea based on ineffective assistance of counsel, the "prejudice" requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 58 (1985). To satisfy this requirement in the plea context, the prisoner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. To show prejudice in the sentencing context, he must demonstrate that the deficiencies of counsel created a reasonable probability that his sentence would have been less harsh. See Glover v. United States, 531 U.S. 198, 200 (2001) (holding "that if an increased prison term did flow from an error [of counsel] the petitioner has established Strickland prejudice"). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland v. Washington, 466 U.S. 668, 695-96 (1984).
Considering all the circumstances, petitioner has not shown a reasonable probability that, but for errors of counsel, he would have pleaded not guilty and insisted on going to trial. Nor has he shown a reasonable probability that absent errors of counsel, his sentence would have been significantly less harsh. He thus has shown no ineffective assistance of counsel that rendered his plea involuntary or unknowing. The allegation that counsel scared petitioner into pleading nolo contendere with statements that the jury was in the hall waiting to give him ninety-nine years imprisonment relates to petitioner's earlier plea that was withdrawn by the trial court. Petitioner has not shown that the statements affected his decision to later plead nolo contendere.
Petitioner was fully aware of the consequences of his plea as shown by the fact that the trial court specifically admonished him as to the maximum term of imprisonment and fine that could be imposed. A guilty or nolo plea "entered by one fully aware of the direct consequences . . . must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes)." See Brady v. United States, 397 U.S. 742, 755 (1970). When "deception, an unfulfillable promise, or misrepresentation" induces a plea, the plea is involuntary. United States v. Amaya, 111 F.3d 386, 389 (5th Cir. 1997).
Given the totality of the circumstances, it is evident that petitioner voluntarily and knowingly pled nolo contendere. Likewise, it is clear that he entered his plea without coercion. The record does not support a claim that a threat or misrepresentation by counsel or anyone else induced his plea. The record does not reflect that the plea was induced by some unkept promise. Petitioner has shown no ineffective assistance of counsel that rendered his plea invalid. His plea appears knowing, intelligent, and voluntary.
The record reflects that petitioner had a clear understanding of the proceedings against him, the nature of the offenses of which he was charged, and the consequences of entering his plea of nolo contendere. Petitioner has not overcome the presumption of verity accorded solemn declarations made in open court. He has not overcome the presumption of regularity accorded state-court records. He has not rebutted by clear and convincing evidence the presumption of correctness accorded factual findings of the state court. Given the totality of the circumstances, it is evident that petitioner fully understood the charges against him and the consequences of his plea. Likewise, it is clear that his plea of October 5, 1995, was entered without coercion. That plea appears knowing, intelligent, and voluntary.
The state court finding that petitioner received effective assistance of counsel appears consistent with precedent of the United States Supreme Court. It appears to be a reasonable application of such precedent and based upon a reasonable determination of the facts. Consequently, petitioner is entitled to no habeas relief on this claim. See 28 U.S.C. § 2254 (d).
B. Ineffective Assistance of Appellate Counsel
Petitioner further attacks his conviction on grounds that his appellate attorney failed to raise the issue of sufficiency of the evidence on appeal. By his plea of nolo contendere to the charged offense, however, he relieved the state of its burden to put forth evidence sufficient to sustain his conviction. As already discussed, his plea was knowingly, intelligently, and voluntarily entered. By entering said plea petitioner has, therefore, waived his right to demand any evidence to sustain his conviction. See United States v. Broce, 488 U.S. 563, 569 (1989) (holding that "when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary"). Attorneys do not render deficient representation by failing to present a claim of insufficiency of evidence on direct appeal when the client has pled nolo contendere to the charge against him.
C. Error in State Habeas Proceedings
In his third claim, petitioner asserts that the Texas Court of Criminal Appeals failed to protect his right to due process and equal treatment when it denied his state writ without addressing the issues raised therein. In other words, he argues that the handling of his state-court petition for writ of habeas corpus violated his rights to procedural due process and equal protection. This Court cannot grant habeas corpus relief "to correct alleged errors in state habeas proceedings." See Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999) (holding that habeas relief was not available for such alleged errors). "[E]rrors in state postconviction proceedings will not, in and of themselves, entitle a petitioner to federal habeas relief." Morris v. Cain, 186 F.3d 581, 585 n. 6 (5th Cir. 1999). Challenges to state habeas proceedings necessarily fail "because infirmities in state habeas proceedings do not constitute grounds for relief in federal court." Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997). This claim of petitioner fails.
V. Evidentiary Hearing
Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.