Opinion
No. 3:02-CV-2463-D.
April 29, 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 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:
I. BACKGROUND
A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties : Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural History: On January 24, 2000, Danielle Mormon reported to police that petitioner had raped her at his house during a date. See Aff. in Any Fact, attached to Reporter's Record (RR). She alleged that when he started removing her clothes, she told him "to stop", and that he proceeded to engage in sexual intercourse with her although she was crying and telling him to stop. Id. She further alleged that he quit momentarily before twice pushing her "back down with his arm" as she tried to get up. Id.
Two days later, on January 26, 2000, petitioner made a voluntary statement to police officials concerning the rape allegations against him. See Voluntary Statement, attached to RR. He stated that he and Ms. Mormon engaged in consensual "foreplay and sex" for twenty-five minutes before she told him to "stop for a minute." Id. He stated that they talked while he laid "on top of her" and then he "commenced to have sex again" until "she pushed" him off and again told him to stop. Id. He further stated: "She seemed angry this time and I held her wrist in case she was going to hit me." Id.
On February 2, 2000, the State indicted petitioner for sexual assault in Cause No. F00-15012-NR. See S.H. Tr. at 109 (Indictment). On July 27, 2000, petitioner appeared in state court to enter a plea of guilty to the charge. See id. at 43, 46 (Tr. of Hearing on Plea of Guilty). That same day, the trial court accepted the plea and placed petitioner on deferred adjudication probation for six years. Id. at 112 (Deferred Adjudication Order). As a condition of that probation, petitioner was ordered to complete sex offender treatment. Id. at 61 (Tr. of Hearing on Revocation of Probation). Nothing of record reflects that petitioner appealed any aspect of his placement on deferred adjudication probation.
"S.H. Tr." refers to the state habeas record attached to Ex parte Duarte, No. 52,647-01, slip op. (Tex.Crim.App. July 31, 2002.)
On November 6, 2000, petitioner was discharged from his treatment program for lack of participation. Id. The State moved to adjudicate petitioner's guilt on December 6, 2000. See S.H. Tr. at 116 (Tr. of Hearing on Revocation of Probation). On January 5, 2001, the state court held a revocation hearing with respect to allegations that petitioner had not complied with the conditions of his probation. Id. at 51-107 (Tr. of Hearing on Revocation of Probation). On that same date, the trial court adjudicated petitioner guilty and sentenced him to twelve years imprisonment. Id. at 116 (Judgment).
Petitioner did not appeal the January 5, 2001 revocation of probation or adjudication of guilt and resulting sentence. ( See Pet. for Writ of Habeas Corpus (Pet.) at 2-3.) On September 21, 2001, petitioner filed a state habeas application in which he challenged the voluntariness of his July 27, 2000 guilty plea and claimed that his attorney rendered ineffective assistance during the plea process. See S.H. Tr. at 2, 6-7. On February 25, 2002, the trial court conducted an evidentiary hearing on that application. See RR at 1. On May 1, 2002, the trial court entered findings of fact and conclusions of law on the state application and recommended that it be denied. S.H. Tr. at 32-36. On July 31, 2002, the Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court after hearing. See Ex parte Duarte, No. 52,647-01, slip op. at 1 (Tex.Crim.App. July 31, 2002.)
On November 12, 2002, petitioner, through counsel, filed the instant petition for federal habeas relief challenging the voluntariness of his July 27, 2000 guilty plea. ( See Pet. at 1-2; Application for Post-Conviction Writ of Habeas Corpus (hereinafter Mem. Supp.) at 1.) On February 14, 2003, respondent filed the relevant state court records and an answer with brief in support in which he seeks dismissal of this action as time-barred. ( See Answer at 5-7.) On February 27, 2003, petitioner responded to the time-bar allegation and urged the Court to decline to dismiss the action as untimely. D. Substantive Issues: In two grounds for relief, petitioner asserts that (1) his guilty plea was not voluntarily or knowingly entered and (2) was the result of ineffective assistance of counsel. ( See Pet. at 7; Mem. Supp. at 11-14.) In particular, he claims that his trial attorney rendered ineffective assistance when he misinformed petitioner about the elements of the charged offense. (Mem. Supp. at 13.)
E. Procedural Issues: Petitioner raised each of these claims in his state writ. See S.H. Tr. at 5-6. Respondent concedes that petitioner has sufficiently exhausted his state remedies with respect to the claims raised in the instant federal petition. ( See Answer at 3.) He asserts, however, that the claims are barred by the statute of limitations of 28 U.S.C. § 2244(d)(1). ( Id. at 5-7.)
II. APPLICABLE LAW
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA or the Act), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date, which is the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after the effective date of the AEDPA, the Act applies to his petition.
Title I of the AEDPA substantially changed the way federal courts handle habeas corpus actions. 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. 2000). In this case, the denial of petitioner's state writ constitutes an adjudication on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) (holding that a denial, rather than a dismissal, signifies an adjudication on the merits). The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply.
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. 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; accord 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; accord 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). 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. 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).
III. STATUTE OF LIMITATIONS
Respondent argues that the statute of limitations of 28 U.S.C. § 2244(d)(1) bars consideration of petitioner's claims because the claims relate to petitioner's placement on deferred adjudication probation on July 27, 2000. (Answer at 5-7.)
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 provides that the limitation period shall run from the latest of four specific dates, including "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." See 28 U.S.C. § 2244(d)(1)(A).
No one argues that any of the three other potential commencement dates apply to the instant federal petition.
Respondent takes the position that in the context of claims related to placement on deferred adjudication probation, the relevant state-court "judgment" for purposes of § 2244(d)(1)(A) is the July 27, 2000 trial court document that placed petitioner on deferred adjudication probation. He argues that petitioner had thirty days from the entry of the deferred adjudication order to appeal, and that the AEDPA statute of limitations runs from expiration of that thirty-day period. (Answer at 5.) He cites Wilkinson v. Cockrell, 240 F. Supp. 2d 617, 621 (N.D. Tex. 2002) for his conclusion that the limitations period runs from the expiration of that thirty-day period. ( Id. at 6-7.)
Petitioner, on the other hand, urges the District Court to follow its holding in Cutrer v. Cockrell, No. 3:01-CV-0841-D, 2002 WL 1398558, at *2-5 (N.D. Tex. June 26, 2002), prior to Wilkinson, in which it expressly rejected the same position urged by respondent in this case.
A. Cutrer v. Cockrell
In Cutrer v. Cockrell, the District Court found that the relevant judgment for purposes of calculating the § 2244(d) limitations period is the judgment that adjudicates guilt and sentences the defendant to a term of imprisonment, not any order that places the defendant on deferred adjudication probation. See 2002 WL 1398558, at *2-5. The facts and issues in Cutrer are nearly indistinguishable from the facts in this case. In October 1995, the trial court entered a "Deferred Adjudication Order" which placed Cutrer on deferred adjudication probation. Id. at *3. In April 1998, the trial court revoked his deferred adjudication probation, adjudicated him guilty, entered a "Judgment Adjudicating Guilt", and sentenced him to twenty-five years imprisonment. Id. at 1.
Cutrer filed a federal petition for writ of habeas corpus challenging the voluntariness of his plea, the effectiveness of his attorney during the plea process and on appeal, and the manner in which the state court handled his state writ; in response, the respondent urged the Court to find some of petitioner's claims untimely on the basis that the relevant judgment for purposes of federal limitations on those claims became final thirty days after the trial court placed him on deferred adjudication probation. See id. at *1-2. Respondent relied upon Manuel v. State, 994 S.W.2d 658 (Tex.Crim.App. 1999), as he does now, to argue that petitioner's time to appeal issues relating to the original plea proceeding expired thirty days after the trial court imposed the deferred adjudication probation. Id. at *2. Respondent also relied upon federal sentencing guideline cases for urging the Court to treat deferred adjudication probation as a prior conviction that commences the limitations period. Id. Respondent further contended "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." Id.
Section 5(b) 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.
The Court addressed respondent's various arguments and contentions and noted prior rejections of the respondent's theory of untimeliness. Id. at *2-5. In rejecting respondent's theory, it focused exclusively on whether the document that placed Cutrer on deferred adjudication probation constituted a judgment within the meaning of § 2244 because the finality of such document is immaterial under § 2244(d)(1)(A) unless the document constitutes a judgment. The Court specifically stated:
By its very terms, the statute commences the statute of limitations from "the date on which the judgment became final." See 28 U.S.C. § 2244(d)(1)(A) (emphasis added).
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.Id. at *4.
Under Texas law, "[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." TEX. CODE CRIM. PROC. ANN. art 42.01, § 1 (Vernon Supp. 1994). Section 1 of Article 42.01 indicates that a judgment should reflect among other things, (13) the offense for which the defendant was convicted; (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. See id.
At the time the Court decided Cutrer, courts had essentially adopted two rationales for rejecting respondent's theory of untimeliness — one based upon whether placement on deferred adjudication probation constituted "a judgment of a State court" and one based upon when such placement became a final judgment. See Daugherty v. Dretke, No. 3:01-CV-0202-N, 2003 WL 23193260, at *6 (N.D. Tex. Dec.24, 2003) (setting forth the two rationales and collecting cases that had rejected respondent's theory), accepted by 2004 WL 993822 (N.D. Tex. Feb. 12, 2004). Cutrer focused exclusively on the first rationale, and the Court concluded that an order of deferred adjudication probation did not constitute a judgment within the meaning of § 2244(d)(1) and state law. B. District-Wide Split of Authority
See, e.g., Standridge v. Cockrell, No. 4:02-CV-462-Y, 2002 WL 31045977, at *3 (N.D. Tex. Sept. 10, 2002); Caldwell v. Cockrell, No. 4:02-CV-326-A, slip op. (N.D. Tex. Aug. 27, 2002); Jamme v. Cockrell, No. 3:01-CV-1370-L, 2002 WL 1878403, at *2-3 (N.D. Tex. Aug. 12, 2002); Cutrer v. Cockrell, No. 3:01-CV-0841-D, 2002 WL 1398558, at *2-5 (N.D. Tex. June 26, 2002); Smith v. Cockrell, No. 3:02-CV-0503-M, 2002 WL 1268016, at *2 (N.D. Tex. June 3, 2002); Crenshaw v. Cockrell, No. 4:01-CV-405-Y, 2002 WL 356513, at *1, 4-5 (N.D. Tex. Mar. 5, 2002); Davis v. Cockrell, No. 3:01-CV-1946-D, 2002 WL 226367, at *1-2 (N.D. Tex. Feb. 12, 2002); Jordan v. Cockrell, No. 3:01-CV-1162-G, 2001 WL 1388015, at *1-2 (N.D. Tex. Nov. 6, 2001); Estrada v. Johnson, No. 3:01-CV-0371-P, 2001 WL 1825827, at *1-2 (N.D. Tex. July 26, 2001).
In December 2002, the apparent district-wide unanimity in rejecting respondent's theory ended when the court in Wilkinson v. Cockrell, 240 F. Supp. 2d 617 (N.D. Tex. 2002) concluded that "[u]pon further review of the authorities, including legislative history of the habeas corpus statutes, and after a study of the reasoning of the judges of the Southern District [of Texas] . . . respondent's position on this subject is correct." See id. at 621 (footnote omitted). The Wilkinson court noted that Wilkinson pled guilty and cited to entry of an "Unadjudicated J. on Plea of Guilty or Nolo Contendere Suspending Imposition of Sentence, signed March 28, 1996." See id. at 619. It reasoned that the incarceration of the petitioner before the court "was the product of two judgments" — the first one placed him on deferred adjudication probation and the second one adjudicated him guilty. Id. Stating that it could not "discern anything in the text or history of § 2244(d)(1)(A) that would lead to the conclusion that the first judgment is not a `judgment of a State court' within the meaning of that section", the Court thus concluded, without further discussion, that the first judgment was such a judgment within the meaning of the statute. Id. at 621-22.
The Wilkinson decision cited three unpublished decisions out of the Southern District — Johnson v. Cockrell, No. H-02-0502, slip op. at 5-7 (S.D. Tex. Sept. 30, 2002); Clewis v. Cockrell, No. H-01-1547, slip op. at 7 (S.D. Tex. Sept. 17, 2002); and Meldon v. Cockrell, No. H-01-4039, slip op. at 7-9 (S.D. Tex. Aug. 1, 2002). In Johnson, the Southern District cited Manuel v. State, 994 S.W.2d 658 (Tex.Crim.App. 1999) and Webb v. State, 20 S.W.3d 834, 836 n. 2 (Tex.App. — Amarillo 2000, no pet. h.) for the proposition that "a defendant placed on deferred adjudication community supervision must appeal any issue relating to the original plea hearing at the time he is placed on deferred adjudication." Johnson, slip op. at 7 (emphasis added). Each of these three cases expressly noted that the trial court had issued an order deferring adjudication of guilt and placing petitioner on deferred adjudication probation; however, each case found, without discussion or explanation, that the petitioner had not appealed this judgment.
In the aftermath of Wilkinson, courts in this district have disagreed about the validity of respondent's position. Compare, e.g., Manchen v. Dretke, No. 4:05-CV-049-A, 2005 WL 910450, at *2 (N.D. Tex. Apr. 19, 2005) (findings and recommendation not yet accepted by District Court reiterating that a "Texas state court's deferred adjudication judgment or order becomes final by the conclusion of direct review or the expiration of the time for seeking such review, notwithstanding the fact that there has been no determination of guilt"); Brown v. Dretke, No. 4:04-CV-0870-Y, 2005 WL 440500, at *2 (N.D. Tex. Feb. 22, 2005) (same); Wilson v. Dretke, No. 3:02-CV-2734-K, 2005 WL 170718, at *2 (N.D. Tex. Jan. 21, 2005) (holding that a conviction in the deferred adjudication probation context becomes final "30 days after the order placing [the defendant] on deferred adjudication probation") with, e.g., Patrick v. Dretke, No. 3:01-CV-1683-N, 2004 WL 915591, *4 n. 9 (N.D. Tex. Apr. 28, 2004) (findings and recommendation rejecting respondent's position on the deferred adjudication issue), accepted by 2004 WL 1108500 (N.D. Tex. May 14, 2004); Daugherty v. Dretke, No. 3:01-CV-0202-N, 2003 WL 23193260, at *5-8 (N.D. Tex. Dec.24, 2003) (findings and recommendation rejecting respondent's position and distinguishing Wilkinson), accepted by 2004 WL 993822 (N.D. Tex. Feb. 12, 2004); see also, Chandler v. Cockrell, No. 4:03-CV-241-Y, 2003 WL 22077881, at *2 (N.D. Tex. Aug. 22, 2003) (findings and recommendation accepting respondent's position), accepted as modified on other grounds, 2003 WL 22838770, at *1-2 (N.D. Tex. Nov. 24, 2003) (finding the petition untimely whether or not the Court accepts the respondent's position); Jimenez v. Cockrell, No. 4:03-CV-0090-Y, 2003 WL 21321256, at *3 n. 4 (N.D. Tex. May 19, 2003) (findings and recommendation accepting respondent's position), accepted as modified on other grounds, 2004 WL 1969824, at *2 (N.D. Tex. Sept. 7, 2004) (finding the petition untimely whether or not the Court accepts the respondent's position, and specifically noting that it does not reach "the magistrate judge's recommendation as to the timeliness of the claims arising out of the deferred-adjudication proceedings"). In recognition of the clear disagreement on this subject, one court specifically declined to dismiss a federal petition on the basis of respondent's position "until this issue has been determined by the Fifth Circuit Court of Appeals." See Morris v. Dretke, No. 2:01-CV-0454, 2004 WL 1490100, at *3 (N.D. Tex. July 2, 2004) (report and recommendation), adopted by 2004 WL 1672207 (N.D. Tex. July 27, 2004).
At the time Morris was decided, the Fifth Circuit had the issue before it "in Foreman v. Director, No. 03-40527." See Morris v. Dretke, No. 2:01-CV-0454, 2004 WL 1490100, at *3 (N.D. Tex. July 2, 2004) (report and recommendation), adopted by 2004 WL 1672207 (N.D. Tex. July 27, 2004). The Foreman case, however, did not resolve the matter. See Foreman v. Dretke, 383 F.3d 336 (5th Cir. 2004). The Fifth Circuit now has the issue before it in the consolidated appeals in Beck v. Dretke, No. 04-10062; Caldwell v. Dretke, No. 03-40927; and Martinez v. Dretke, No. 03-20900. See Pitts v. Dretke, No. 3:04-CV-2444-P, 2005 WL 396290, at *2 (N.D. Tex. Feb. 17, 2005) (findings and recommendation noting that, regardless of the outcome of such appeal, the petition before the Court was untimely), adopted by 2005 WL 517857 (N.D. Tex. Mar. 4, 2005).
C. Roberts v. Cockrell
Shortly after Wilkinson, in Roberts v. Cockrell, 319 F.3d 690 (5th Cir. 2003), the Fifth Circuit considered the timeliness of a federal petition in light of 28 U.S.C. § 2244(d)(1). See 319 F.3d at 692-95. It began "by noting that when interpreting the statutory language of 28 U.S.C. § 2244(d)(1)(A), [the federal courts] are not bound by the state law's definition of finality." Id. at 693. Although it recognized that the federal courts "look to state law for a determination of how long a prisoner has to file a direct appeal", the court concluded that there is "no reason to look to state law to determine when a state conviction becomes final for the purposes of § 2244(d)(1)(A)" because the statute specifically "provides that a decision becomes final `by the conclusion of direct review or the expiration of the time for seeking such review.'" Id. at 694.
Although not directly on point, Roberts suggests that the Fifth Circuit might look to the federal definition of judgment, not the state definition, in determining whether an order of deferred adjudication probation equates to a "judgment of a State court" under § 2244(d). If the Fifth Circuit were to hold that the federal definition of judgment controls, it would then likely look to the definition provided in Fed.R.Civ.P. 54(a). That rule states: "`Judgment' as used in these rules includes a decree and any order from which an appeal lies." Under this definition, appealable orders of deferred adjudication probation would constitute judgments.
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts provides that the courts may apply the Federal Rules of Civil Procedure to the extent they are "not inconsistent" with the 2254 rules or any statutory provision. Rule 54(a) is neither inconsistent with the habeas rules nor § 2244(d), the relevant federal statute in this instance.
Roberts also provides direct guidance as to the meaning of finality under 28 U.S.C. § 2244(d)(1)(A) that was unavailable when Wilkinson and Cutrer were decided. Roberts specifically holds that § 2244(d)(1)(A) commences the limitations period only upon the expiration of the time for seeking direct review, except when the Supreme Court either rejects a petition for writ of certiorari or rules on its merits. See 319 F.3d at 694. Although Roberts makes clear that federal courts are not bound by state law determinations of finality, it also recognizes that state law guides the federal courts with respect to when the time to seek direct review expires. See id. at 693-94.
Roberts does not mandate the disregard of state law in all circumstances related to 28 U.S.C. § 2244(d)(1). See Salinas v. Dretke, 354 F.3d 425, 430 n. 5 (5th Cir. 2004). In Salinas, the Fifth Circuit recognized that the federal courts properly look to relevant state law to determine whether authorization for a particular type of post-judgment relief arises from the state direct or collateral review process. Id. at 430 n. 5. Furthermore, Roberts itself recognized that the federal courts properly "look to state law for a determination of how long a prisoner has to file a direct appeal." See Roberts, 319 F.3d at 694. Thus, although the Fifth Circuit might look to federal law to determine whether an order of deferred adjudication probation constitutes a judgment within the meaning of 28 U.S.C. § 2244(d)(1), the court of appeals will look to state law to determine how long a defendant has to engage the direct appeal process afforded under state law.
D. Other Support for Respondent's Position
In addition to Wilkinson, respondent relies upon TEX. R. APP. P. 26.2 (West 1999); TEX. CODE CRIM. PROC. ANN. art 42.01, § 23(b) (West 1999); United States v. Vasquez, 298 F.3d 354 (5th Cir. 2002); and Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999) for the proposition that petitioner had thirty days from the entry of the deferred adjudication order to appeal, and that the AEDPA statute of limitations runs from expiration of that thirty-day period. (Answer at 5.)
Respondent would have the Court deem Manuel v. State, 994 S.W.2d 658 (Tex.Crim.App. 1999) in conjunction with TEX. R. APP. P. 26.2(a)(1) as setting the time frame for commencing an appeal. State law, however, may not be so clear cut. Although Manuel and TEX. R. APP. P. 26.2(a)(1) provide for a thirty-day period to appeal "issues related to the original plea proceedings," see 994 S.W.2d at 661-62; state law also provides that, "[a]fter 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", see TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (emphasis added). The use of the term "continue" in § 5(b) seems to indicate that expiration of the initial thirty-day period does not entirely extinguish petitioner's right to appeal. This Court has previously indicated that § 5(b) seems contrary to respondent's position that the appeal from the original plea proceeding is the final appellate stage. See Cutrer v. Cockrell, No. 3:01-CV-0841-D, 2002 WL 1398558, at *4 (N.D. Tex. June 26, 2002) (citing Dillehey v. State, 815 S.W.2d 623, 626 n. 7 (Tex.Crim.App. 1991) for proposition that a defendant's appellate rights may continue after he is adjudicated guilty and noting that Webb v. State, 20 S.W.3d 834, 836 n. 2 (Tex.App. — Amarillo 2000, no pet. h.) questioned "the legal foundation of Manuel given its potential conflict with legislative dictate" of § 5(b), but nevertheless followed Manuel). In addition, it further appears that, under state law, petitioner may continue the direct review process after adjudication of guilt, at least in some respect. See Nix v. State, 65 S.W.3d 664, 667 (Tex.Crim.App. 2001) (recognizing that Manuel sets forth a general rule that the original plea cannot be attacked on an appeal of the revocation proceedings, but also recognizing that such general rule is subject to exceptions).
In light of § 5(b) and Nix, the Court will not deem Manuel and Rule 26.2(a)(1) as definitively establishing the time-period in which a defendant has to seek direct review. For the reasons already discussed, neither Rule 26.2 nor Manuel provide a sufficient basis to accept respondent's theory of untimeliness. In addition, neither Vasquez nor § 23(b) provide such basis. Section 23(b) provides:
No part of the time that the defendant is on community supervision shall be considered as any part of the time that he shall be sentenced to serve. The right of the defendant to appeal for a review of the conviction and punishment, as provided by law, shall be accorded the defendant at the time he is placed on community supervision. When he is notified that his community supervision is revoked for violation of the conditions of community supervision and he is called on to serve a sentence in a jail or in the institutional division of the Texas Department of Criminal Justice, he may appeal the revocation.
That the defendant has a right to appeal when he is placed on community supervision does not mean that such right is entirely extinguished thirty days after placement on deferred adjudication probation.
In addition, Vasquez dealt with whether a federal defendant may receive an enhanced sentence under 21 U.S.C. § 841(b)(1)(A) for a prior, unadjudicated state drug offense that had resulted in deferred adjudication probation. See United States v. Vasquez, 298 F.3d 354, 359 (5th Cir. 2002). The Fifth Circuit found that the federal sentence was properly enhanced based upon the prior state "conviction." Id.
The danger of relying on federal cases dealing with deferred adjudication probation in varying contexts is highlighted by a comparison of Vasquez with a recent Fifth Circuit case which considers the Texas deferred adjudication probation scheme in the context of determining whether an individual on such probation remains "under indictment" within the meaning of 18 U.S.C. § 922(n), see United States v. Valentine, 401 F.3d 609, 614-15 (5th Cir. 2005), cert. filed Mar. 2, 2005. In Valentine, the Fifth Circuit noted that "Texas's deferred adjudication scheme leaves a defendant with a `pending charge' such that he is not qualified to serve as a juror because he currently has `a charge pending against him for the commission' of a felony." Id. at 615 (quoting United States v. Bishop, 264 F.3d 535, 555 (5th Cir. 2001)). It further noted "that a Texas deferred adjudication leaves a defendant without an adjudication of guilt or `conviction' under Federal Rule of Evidence 609." Id. (citing United States v. Hamilton, 48 F.3d 149, 153 (5th Cir. 1995)). Consequently, it agreed with the government that an individual on deferred adjudication probation remains "under indictment" for the entire term of deferred adjudication. Id. at 614-16. In other words, "Texas's deferred adjudications leave a charge pending against the defendant." Id. at 616. Thus, while a prior, unadjudicated drug offense may be used to enhance a federal defendant's sentence as a prior "conviction" under § 841(b)(1)(A), the placement on deferred adjudication probation does not remove a person from being "under indictment" for purposes of § 922(n). The context of a given case thus has great implications with respect to how the courts construe placement on deferred adjudication probation. Due to the context in which Vasquez was decided, the case does not persuade the Court to accept respondent's position. E. Conclusion
Distinguishing Vasquez on the basis of its context also comports with Cutrer's handling of respondent's argument that, based upon federal sentencing guideline cases, an order of deferred adjudication is a "prior conviction." See Cutrer v. Cockrell, No. 3:01-CV-0841-D, 2002 WL 1398558, at *4-5 (N.D. Tex. June 26, 2002). In Cutrer, the Court found such cases "inapposite to the matters currently before the Court." Id. at *5. It stated: "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." Id.
Additionally, although one could perhaps read Valentine as providing some support for rejecting respondent's theory — either on the basis that a deferred adjudication order does not act as a judgment under state law which commences the statute of limitations for § 2254 actions or as support that orders of deferred adjudication probation are not final until after adjudication of guilt — the differing contexts between Valentine and the instant case, provide sufficient reason to proceed cautiously when applying the case to the current context. The Court, nevertheless, notes that Valentine also rejected the notion that Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999), upon which respondent also relies, stands for the proposition "that Texas law deems a deferred adjudication final, and by implication, removes the defendant from under an indictment." Id. at 616. It noted that "what the Court of Criminal Appeals sought in Manuel was to avoid giving a defendant two bites at the apple or two chances to appeal matters regarding the validity of the order deferring adjudication." Id. (quoting Webb v. State, 20 S.W.3d 834, 836 (Tex.App. — Amarillo 2000, no writ)). It held that " Manuel did not conclusively hold that a deferred adjudication renders the indictment null as a matter of Texas law." Id. The reliance upon Webb and its interpretation of Manuel are entirely consistent with the District Court's interpretation of those cases in Cutrer. See Cutrer, 2002 WL 1398558, at *4.
Respondent urges this Court to follow the holding in Wilkinson, and find the instant action untimely. Petitioner urges the Court to follow its previous decision in the factually-similar Cutrer to find the petition timely. Since Wilkinson, the Fifth Circuit has shed some light on the issue in Roberts, although there still may be reason to reject respondent's position on the timeliness issue. As noted above, courts in this district have disagreed regarding this issue since Cutrer, and a consolidated action that addresses the timeliness of a federal petition in the context of placement on deferred adjudication probation is pending before the Fifth Circuit. For these reasons, and because the limitations issue does not affect the final outcome of this case since petitioner's claims lack merit and he is therefore entitled to no habeas relief, the Court declines to determine whether to accept or reject respondent's timeliness argument and proceeds to the merits.
IV. VOLUNTARINESS OF PLEA
In his first claim, petitioner asserts that his plea of guilty to the single charge against him was not knowing or voluntary because of ineffective assistance of counsel. (Mem. Supp. at 11-13.) Specifically, he claims that defense counsel misrepresented the elements of sexual assault under state law, thus causing him to lack an understanding of the law in relation to the facts. ( Id. at 11.) He does not contend that the trial court neglected any duty to explain the nature of the offense, but instead, he relies upon Henderson v. Morgan, 426 U.S. 637 (1976) for the proposition that, when a defense attorney fails to explain an element of an offense to the defendant prior to such defendant pleading guilty, the plea is involuntary and habeas relief is appropriate. (Mem. Supp. at 12-13.)
Under the law in effect at the time of the alleged sexual assault committed by petitioner, a sexual act is without consent when "the actor compels the other person to submit or participate by the use of physical force or violence." TEX. PENAL CODE ANN. § 22.011(b)(1) (Vernon 1994). The facts of this case do not require consideration of the other statutory definitions of lack of consent set forth in § 22.011(b)(2)-(10).
A. Legal Principles Related to Guilty Plea
A plea of guilty 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). Thus, the Fourteenth Amendment Due Process Clause imposes certain requirements to ensure the validity of a guilty plea. Fischer v. Wainwright, 584 F.2d 691, 692 (5th Cir. 1978) (citing Brady v. United States, 397 U.S. 742 (1970); Boykin, 395 U.S. 238; Johnson v. Zerbst, 304 U.S. 458 (1938)). " Boykin requires that defendants have a hearing prior to entry of the plea, at which there needs to be an affirmative showing that the decision to plead guilty was voluntarily and intelligently made." Matthew v. Johnson, 201 F.3d 353, 368 n. 22 (5th Cir. 2000). In addition, "the voluntary and intelligent nature of the plea [must] be apparent on the face of the record." See Holloway v. Lynaugh, 838 F.2d 792, 793 (5th Cir. 1988). Boykin also sets out "the contemporary standards for plea bargain admonishments." See United States v. Barlow, 17 F.3d 85, 89 (5th Cir. 1994).
Fed.R.Crim.P. 11(c) "codifies" the Boykin admonishments. See Fed.R.Crim.P. 11(c) advisory committee's note on 1974 amendments.
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, 397 U.S. at 748). "The voluntariness of a plea is determined by `considering all of the relevant circumstances surrounding it.'" Fischer v. Wainwright, 584 F.2d 691, 693 (5th Cir. 1978) (quoting Brady, 397 U.S. at 749). Pleas are involuntary when induced by threats, improper promises, deception, or misrepresentation. See United States v. Amaya, 111 F.3d 386, 389 (5th Cir. 1997). A plea qualifies as intelligent 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)). "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, 395 U.S. at 244). "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 v. Cain, 56 F.3d 662, 666 (5th Cir. 1995) (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.
A prisoner may not generally "collaterally attack a voluntary and intelligent" plea. Id. "A federal court will uphold a guilty plea challenged in a habeas corpus proceeding if the plea was knowing, voluntary and intelligent." James, 56 F.3d at 666. A guilty 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, 397 U.S. at 755. "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). "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). 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 as under Rule 11.
A guilty plea is "open to attack on the ground that counsel did not provide the defendant with `reasonably competent advice.'" 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).
Under these principles of law, the Court thus considers whether petitioner's plea was voluntarily and intelligently made.
B. Guilty Plea
Petitioner appeared before the trial judge and pled guilty to sexual assault. See S.H. Tr. at 46-50. He signed a form entitled "Court's Admonition of Statutory and Constitutional Rights and Defendant's Acknowledgement [sic]," which stated "You are charged with the crime of sexual assault and the range of punishment is 2-20 years, fine to $10,000." Id. at 124-25. The form further stated that recommendations of punishment would not bind the court, but that the court would follow the plea agreement, if able; if unable to do so, the court would allow petitioner to withdraw the plea. Id. at 124, ¶ 2. The form admonished that petitioner could not appeal without permission of the court, unless the court imposed a punishment greater than the one agreed to by the petitioner. Id. ¶ 3. It further admonished petitioner about consequences relating to being a non-United States citizen, his rights if he had court-appointed counsel, and effects of probation violations on deferred adjudication. Id. ¶¶ 4-6. The Acknowledgment section of this form provided: "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. at 125.
Petitioner also signed a form entitled "Defendant's Waivers and Judicial Confession" in which he stated that he understood the charge against him, that he had been advised of the consequences of his plea, that he waived his right to remain silent and confrontation and cross-examination of witnesses, that he consented to an oral or written stipulation of the evidence and testimony, and that he agreed to the introduction of testimony by affidavit, written statements of witnesses, a judicial confession, and any other documentary evidence. Id. at 121-22. He further admitted and judicially confessed that he was the person named in the indictment and that he understood the charge contained therein. Id. at 122. He also specifically indicated that he was pleading guilty to the offense of sexual assault. Id. Defense counsel indicated that he had consulted with petitioner concerning his plea, and that he had advised petitioner of his rights and the charge to which he was pleading. Id. Petitioner entered a "Judicial Confession" wherein he confessed that, on January 24, 2000, he "unlawfully then and there intentionally and knowingly cause[d] the penetration of the female sexual organ of Danielle Mormon . . . without the consent of the complainant, by . . . [his] sexual organ." Id. at 123.
Before the trial court accepted petitioner's guilty plea, both his attorney and the court examined petitioner as to its voluntariness. See id. at 46-50. The trial court orally admonished petitioner of the punishment range, including the possibility of a fine not to exceed $10,000. Id. at 46. It noted the papers that petitioner had signed, and petitioner indicated that his attorney had explained such documents to him. Id. Petitioner thereafter entered his plea of guilty, and the trial court accepted such plea. Id. at 47. In response to questioning from his attorney, petitioner testified that he was pleading guilty because he was "guilty and for no other reason." Id. at 48. He further testified that he understood that he was giving up his right to a trial, and that he "willingly and voluntarily" entered his plea. Id. C. Evidentiary Hearing on State Application for Writ of Habeas Corpus
On February 25, 2002, the trial court conducted a hearing on petitioner's state application for writ of habeas corpus. See RR at 1-45. Petitioner and his former attorney testified at that hearing. Id. at 3. The court accepted into evidence the voluntary statement that petitioner gave to police officials and a police report that contained the statement of the victim in this case. Id.
At the hearing, petitioner's former attorney specifically stated that, in petitioner's case, a lack of consent was shown by petitioner's use of force. See RR at 10. The attorney explained his questioning at the revocation as follows:
I was trying to get Michael to admit in front of the judge that he was guilty of sexual assault, which he was, based both on his own statement prior to his plea that he'd already given to the police, and especially the evidence showed that if they were to believe the victim's version, there was enough in his version that he'd already told the police before I was ever even in this case, where is weight was on top of this woman and at some point he held her hands down, pushed her down and so forth.Id. at 17. The attorney clearly thought that the combination of petitioner's voluntary statement and the victim's allegations were enough to convict petitioner. Id. at 17-19. The attorney would not concede that petitioner's statement alone was enough to convict him. Id. at 19. Based upon prior discussions with petitioner, the attorney expected petitioner to "admit guilt" at the revocation hearing and to admit that "he applied physical pressure on her as well as not stopping." Id. at 20. He testified that as he and petitioner "went over his statement" to the police, petitioner had "admitted to [him] that he used force or held this woman down." Id. at 21. The attorney testified that petitioner's voluntary statement suggests that he used force against the victim in that it indicates that he "was on top of her the whole time." Id. at 23. He further testified that he believed that the combination of staying on top of the victim after she told petitioner to stop, and petitioner's statement that he held her wrist to prevent her from hitting him, was enough to constitute force in light of the overlap between the allegations of the victim and the petitioner's voluntary statement. Id. at 23-24.
The attorney indicated that he informed petitioner that his voluntary statement "would be enough" to get him convicted at trial, if the victim also testified as to the matters in her affidavit. Id. at 24. He testified that, although petitioner's version of events had not changed since his "guilty plea until the revocation hearing", petitioner would not admit at the revocation hearing that he used force to compel the victim to have sex. Id. at 26. He testified that petitioner
wouldn't come right out and say that what he had done, by pushing her down, whether that constituted force. He wouldn't say that in response to my questioning in front of the judge at the revocation hearing, even though we had talked about that back before, prior to, and those are the answers that I got from him and that was it.Id. The attorney believed that petitioner had admitted to more than just "the moral fault of continuing to have sex with this girl after she had verbally expressed her desire to stop." Id. at 26-27.
Upon questioning by the State, the attorney testified that he explained to petitioner the chances of success if he proceeded to trial, what a plea would involve, the range of sentencing, the possibility of deferred adjudication, and the possibility that the trial court could reject deferred adjudication and sentence petitioner anywhere within the range of punishment. Id. at 30-31. The attorney believed that when petitioner "entered his plea he fully understood the circumstances, the range of punishment, all of the necessary facts in order to make an informed decision to enter a plea." Id. at 31. The attorney felt that petitioner entered the plea knowingly and voluntarily. Id. Although the attorney did not know whether petitioner understood the elements of sexual assault prior to entering his plea, he testified that he did go over the elements with petitioner. Id. at 32.
Petitioner testified at the hearing on his state application for writ of habeas corpus that his attorney "never explained . . . the elements of sexual assault." Id. at 38. He testified that he understood from his attorney's representations that he was guilty "simply" because he "continued to have sex with this girl when she gave . . . a verbal request to stop." Id. at 39-40. He further testified that he considered the victim's statement when he decided to plead guilty. Id. at 43.
The trial court found the testimony given by petitioner's former attorney at the state evidentiary hearing on petitioner's state application for writ of habeas corpus credible. See S.H. Tr. at 33. It further found the testimony of petitioner at that hearing not credible. Id. D. Presumption of Correctness of State Court Findings
This Court presumes credibility findings of the state courts correct unless petitioner rebuts them with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). In this instance, petitioner has not shown clear and convincing evidence that overcomes the presumption of correctness. Although petitioner infers that his former attorney did not understand the elements of sexual assault, ( see Mem. Supp. at 7-11), the testimony of the attorney at the state evidentiary hearing reflects a clear understanding of such elements, see RR at 7-10. The attorney expressly testified that he discussed such elements with petitioner. See id. at 32. Furthermore, questioning at the revocation hearing was not intended to go to the voluntariness of petitioner's plea, but rather was intended to show the trial court that petitioner was trying to cooperate with the sex offender treatment but the counselor was being unreasonable. See id.
In addition, while petitioner's former attorney testified that petitioner's version of events had not changed "from the time that Michael had entered the guilty plea until the revocation hearing", and that petitioner would not admit at the revocation hearing that he used force during the sexual encounter with the Ms. Mormon, see id. at 26, such testimony is not inconsistent. It is entirely reasonable to interpret the first statement as indicating that petitioner's version had not changed until petitioner testified at the revocation hearing. Such interpretation is supported by other testimony of counsel — the attorney's testimony reflects an expectation of counsel from prior discussions with petitioner that petitioner would testify at the revocation hearing that "he applied physical pressure on her as well as not stopping." Id. at 20. All testimony from counsel indicates that petitioner's version of events contained an element of force sufficient to convict petitioner, especially when that version is compared to the more damaging version presented by the victim.
For all of these reasons, the Court finds that petitioner has not shown clear and convincing evidence that overcomes the presumption of correctness accorded to the trial court's credibility finding. Contrary to petitioner's assertion, the record before this Court does not establish that petitioner's former attorney misinformed petitioner of the elements of sexual assault. This Court thus defers to the credibility finding of the trial court.
E. Conclusion
Based upon the credibility findings of the trial court, this Court finds that petitioner's former attorney discussed the elements of sexual assault with petitioner based upon a correct understanding of such elements. Petitioner's reliance upon Henderson is thus misplaced, and the Court finds that petitioner voluntarily and knowingly entered his plea.
The record simply does not support a finding that petitioner's guilty plea was involuntary. The totality of the circumstances reflects that petitioner had a clear understanding of the proceedings against him, the nature of the offense for which he was charged, and the consequences of entering his plea. Petitioner has not overcome the presumption of verity accorded solemn declarations made in open court. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (holding that "[s]olemn declarations in open court carry a strong presumption of verity [and] [t]he subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal"). He has not overcome the presumption of regularity and "great weight" accorded state-court records. See Bonvillian v. Blackburn, 780 F.2d 1248, 1252 (5th Cir. 1986) (holding that state-court records are "accorded great weight"); Webster v. Estelle, 505 F.2d 926, 929-30 (5th Cir. 1974) (holding that state-court records "are entitled to a presumption of regularity"). Although he asserts that his plea was involuntary because his attorney misinformed him about the elements of sexual assault, such assertion is not supported by the credible testimony of his former attorney.
Given the totality of the circumstances, it is evident that petitioner fully understood the charge against him and the consequences of his plea. Thus, his plea appears knowing, intelligent, and voluntary. For the reasons already discussed and discussed more specifically in the next section, petitioner's claim of ineffective assistance of counsel does not make his decision to plead guilty unknowing, unintelligent, or involuntary.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner also contends that his attorney rendered ineffective assistance by misinforming him of the elements of sexual assault. (Mem. Supp. at 13-14.) Although such contention lies at the heart of petitioner's claim that he entered his guilty plea involuntarily, it appears appropriate to also consider the claim in the more specific context of ineffective assistance of counsel.
To successfully state a claim of ineffective assistance of counsel under existing precedent of the United States Supreme Court, 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). "[I]n a guilty plea scenario, a petitioner must prove not only that his attorney actually erred, but also that he would not have pled guilty but for the error." See Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994).
A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. See 466 U.S. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000). 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. Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691.
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, 474 U.S. at 58. 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. 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, 466 U.S. at 695-96.
With regard to the first prong, the Court finds no deficiency in counsel's representations regarding the elements of sexual assault. Counsel's testimony at the state evidentiary hearing reflects a clear and accurate understanding of such elements and a discussion of such elements with petitioner. In the absence of a deficiency of counsel, a claim of ineffective assistance necessarily fails.
In addition, with regard to the second prong, the Court finds that petitioner has failed to affirmatively show that he was prejudiced by any deficiency of counsel. He has not shown a reasonable probability that, had counsel better explained the elements of sexual assault, he would have pleaded not guilty and insisted on going to trial. Although petitioner contends that the State lacked strong evidence to pursue a case against him, ( see Mem. Supp. at 13), the State had petitioner's voluntary statement to use against him. That statement in conjunction with likely testimony from the victim caused his former attorney to calculate petitioner's odds of success at trial as less than "a 50/50 chance." See RR at 27. Petitioner's former attorney was also "pretty sure" that petitioner would get deferred adjudication probation "because of his young age and no priors." Id. at 31. When a defendant faces a range of punishment from two to twenty years imprisonment upon a guilty verdict at trial, it appears highly unlikely that such defendant would proceed to trial in a case such as petitioner's when there appears to be a reasonable probability that the court will place him on deferred adjudication probation because of his age (21) and lack of prior criminal history. For all of these reasons, the Court finds that petitioner has established no prejudice from any deficiency of counsel.
Petitioner argues that "[p]rejudice could not be more plain" in his case, because he "is now serving a twelve year prison sentence." (Mem. Supp. at 14.) The Court, however, does not look at the guilty plea through the lens of hindsight by focusing on the fact that petitioner received a twelve year sentence after the revocation of his probation. That petitioner is now serving a twelve year sentence does not of itself demonstrate prejudice within the meaning of Strickland and Hill.
Petitioner raised his ineffective assistance of counsel claim in his state writ. S.H. Tr. at 7. The Texas Court of Criminal Appeals denied that writ on the findings of the trial court and thus adjudicated the claims on the merits. See Ex parte Duarte, No. 52,647-01, slip op. at 1 (Tex.Crim.App. July 31, 2002). The trial court found no ineffective assistance of counsel. S.H. Tr. at 33-34. The decision of the state courts with respect to petitioner's ineffective assistance claim is consistent with Strickland, the applicable Supreme Court precedent. The decision involved no unreasonable application of such precedent. The adjudication of the claim did not result in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented to the state court.
VI. 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.
VII. 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.