Opinion
NO. 4:03-CV-037-A
January 3, 2004
ORDER
Came on for consideration the above-captioned action wherein David Enos is petitioner and Douglas Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division, is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The court is now considering the proposing findings, conclusions, and recommendation of the United States Magistrate Judge on the merits of the petition. The findings were issued December 5, 2003. By order signed December 19, 2003, the court granted petitioner an extension of time in which to file his written objections. On December 29, 2003, the court received petitioner's objection. The court has reviewed the record de novo in light of the objection and finds that the proposed findings, conclusions, and recommendation should be accepted.
Petitioner's objection focuses on his December 5, 2001, filing of an application for writ of habeas corpus in the state court. Petitioner contends that that application, which was denied without written order on May 8, 2002, should not have counted as an application under article 11.07 of the Texas Code of Criminal Procedure, because the main purpose of the filing was to seek a transfer of petitioner back to the Tarrant County jail so that he could work on his appeal. Although that may have been the primary purpose of the application, petitioner also included therein grounds alleging that he received ineffective assistance of counsel. In re Enos, No. 48, 275-03 at 6-7. And, the application was submitted on the form designated "APPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07." Id. at 2. Understandably, the state court considered the application as one brought under article 11.07. Thus, when petitioner filed another application in June 2002, the application was denied as successive by order signed August 14, 2002. In re Enos, No. 48,275-05 at cover.
Even if the state court should have been more lenient in interpreting petitioner's pro se filings, petitioner has not shown actual prejudice or that a miscarriage of justice will result if the court fails to consider his claims. See Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992). The fact is that petitioner pleaded guilty to aggravated assault with a deadly weapon, as well as all lesser-included offenses, In re Enos, No. 48, 275-03 at 35; that he was placed on community supervision, id. at 38-39; and, that he violated the terms of his supervision, was adjudicated guilty of the underlying charge, and was sentenced to ten year's confinement, id. at 46-47. Whether petitioner had access to the police report and complaint pertaining to the original charge is irrelevant. Nor has petitioner shown that any of his other grounds would entitle him to relief. Accordingly,
The court ORDERS that the magistrate judge's findings and conclusions be, and are hereby, accepted, and that the petition in this action be, and is hereby, denied.