Opinion
WR-90,248-01 & WR-90,248-02
10-09-2024
EX PARTE STEVEN MAJID HAMIDI, Applicant
Do not publish
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. CR2014-014-001 & CR2014-015-001 IN THE 207TH DISTRICT COURT FROM COMAL COUNTY
Yeary, J., filed a dissenting opinion.
OPINION
Per curiam
Applicant pleaded guilty to retaliation and aggravated robbery and was sentenced to thirty years' imprisonment for each charge. Through habeas counsel, Applicant filed these applications for writs of habeas corpus in the county of conviction, and the district clerk forwarded them to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant pleaded guilty in 2014 under plea agreements for two thirty-year sentences. In his habeas applications filed in 2019, Applicant claimed that his guilty pleas were involuntary because he was erroneously advised that he faced habitual offender punishment based on prior convictions from other states that were not final under Texas law. Applicant argued that Ex parte Pue, 552 S.W.3d 226 (Tex. Crim. App. 2018), which addressed the issue, should apply retroactively.
In Ex parte Pue, this Court established that Texas law, rather than the law of another jurisdiction, determined whether a prior conviction was final for purposes of enhancing a punishment. This Court emphasized that the Texas Legislature should determine Texas law and public policy, not other jurisdictions. This Court addressed the question of Pue's retroactivity in Ex parte McMillan, 688 S.W.3d 336 (Tex. Crim. App. 2024), holding that the rule established in Pue applied retroactively. This means that even for cases predating Pue, like Applicant's case, Texas law should determine the finality of prior convictions for enhancement purposes rather than federal or other jurisdictions' laws.
Applicant's indictment alleged five separate enhancement paragraphs for offenses committed out-of-state. However, none of the prior convictions ever became final to be eligible to use as a punishment enhancement. Applicant has shown that his punishment was erroneously enhanced. See Cromeans v. State, 268 S.W.2d 133, 135 (Tex. Crim. App. 1954) ("A conviction in which the sentence is suspended is not such a final conviction as will support an enhancement of punishment, unless the suspension has been revoked").
Relief is granted. The judgments in cause numbers CR2014-014 and CR2014-015 in the 207th District Court of Comal County are set aside, and Applicant is remanded to the custody of the Sheriff of Comal County to answer the charges as set out in the indictments. See Ex parte Rich, 194 S.W.3d 508, 514-15 (Tex. Crim. App. 2006). The trial court shall issue any necessary bench warrant within ten days from the date of this Court's mandate.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and the Board of Pardons and Paroles.
Yeary, J., filed a dissenting opinion.
Applicant pled guilty in 2014 to both retaliation and aggravated robbery and was sentenced to thirty years' imprisonment for each charge. Applicant filed these applications for writs of habeas corpus in the convicting court in 2019. He contended that his pleas were involuntary because trial counsel allowed him to plead true to enhancement counts based upon foreign convictions that, at the time of the prosecution, were not available for use to enhance punishment according to the law applicable in that foreign jurisdiction. See Tex. Code Crim. Proc. art. 11.07. In 2021, the Court remanded these applications to the trial court for further fact development, including a response from trial counsel, and a determination of whether the enhancement allegations were final and available for enhancement purposes under the law of the jurisdiction of conviction. See Ex parte Hamidi, Nos. WR-90,248-01 & WR-90,248-02, 2021 WL 1396170, at *1 (Tex. Crim. App. Apr. 14, 2021) (order, not designated for publication).I dissented to the remand based upon "my position that challenges to enhancement allegations are not ordinarily cognizable on post-conviction habeas corpus review[,]" so that a remand for further fact development would be pointless. Id. at *2 (Yeary, J., dissenting).
As of 2021, when the Court entered its remand order in this case, it had already decided that the finality of a conviction from a foreign jurisdiction for enhancement purposes would be determined according to Texas law. Ex parte Pue, 552 S.W.3d 226, 229, 235 (Tex. Crim. App. 2018). But the Court had yet to declare that determination to have retroactive effect, as the Court would ultimately do in Ex parte McMillan, 688 S.W.3d 336, 340, 341 (Tex. Crim. App. 2024). Presumably the 2021 remand was to determine availability of the foreign convictions to enhance according to the foreign jurisdiction's law as a kind of failsafe in case this Court were to later declare that Pue would not have retroactive application.
I.
Today, the Court grants Applicant substantive relief, and I continue to dissent. It remains my position that challenges to enhancement allegations are not ordinarily cognizable on post-conviction habeas corpus review-at least not in the guise of illegal-sentence claims. Hestand v. State, 587 S.W.3d 409, 409-10 (Tex. Crim. App. 2019) (Yeary, J., dissenting); Rodriguez v. State, 578 S.W.3d 92, 94 (Tex Crim App 2019) (Yeary, J, dissenting); Ex parte Pointer, Nos WR-84,786-01 & WR-84,786-02, 2019 WL 6719996, at *3 (Tex Crim App Dec 11, 2019) (not designated for publication) (Yeary, J, concurring); Ex parte McMillan, 688 S.W.3d 336, 344 (Tex Crim App 2024) (Yeary, J, concurring). The appropriate avenue for Applicant to be entitled to relief on an illegal sentence claim, in my view, would have been to object at trial and raise the issue on direct appeal, not to wait until the conviction was final to challenge the enhancements in a collateral attack. "The goal of preventing potentially unauthorized enhancements is not so critical to the proper functioning of the criminal justice system as to outweigh the State's legitimate interest in the repose of its final convictions." Ex parte Pue, 552 S.W.3d 226, 243 (Tex. Crim. App. 2018) (Yeary, J., dissenting).
Moreover, Applicant does not bring an illegal sentence claim in his writ application-at least not per se. Instead, he argues that his trial counsel was ineffective in failing to challenge his out-of-state convictions as ineligible for use for enhancement, and that his pleas were involuntary because of trial counsel's having misled him about their availability for enhancement. It is unclear from the Court's order today what the precise legal basis is for the Court's decision to grant Applicant relief. While recognizing that Applicant argues that trial counsel's ineffectiveness rendered his plea involuntary, Court's Order at 1, the Court grants relief simply because "Applicant has shown that his punishment was erroneously enhanced." Id. at 2. If this represents a holding that Applicant's sentence was illegal, then I dissent for the reasons I have already articulated above: Illegal-sentence claims are not cognizable. Finally, even if I agreed that such a claim is cognizable in post-conviction habeas corpus proceedings, which I emphatically do not, I would not fashion Applicant's legal arguments for him, especially where, as here, he is ably represented by counsel. See Ex parte Hicks, 640 S.W.3d 232, 235-36 (Tex. Crim. App. 2022) (Yeary, J., dissenting) (citing Ex parte Carter, 521 S.W.3d 344, 350 (Tex. Crim. App. 2017)) ("Especially because Applicant is now represented by counsel, this Court should not sua sponte 'create' Applicant's claim for him even if it thinks that claim has merit.").
II.
Also, to be clear, I would still dissent if the Court were to purport to grant relief on either of the theories Applicant actually does raise in his writ application. I do not agree either that his counsel performed deficiently or that his plea was thereby rendered involuntary. At the time of Applicant's guilty pleas, in 2014, it was uncertain whether the availability of prior convictions from foreign jurisdictions to enhance a sentence, as a function of finality, would be determined according to Texas law or the law of the foreign jurisdiction itself. This Court did not resolve that uncertainty until 2018, in Pue. 552 S.W.3d at 229, 235. And it did not declare its resolution of that question to apply retroactively until six years later, in McMillan. 688 S.W.3d at 340, 341.
In light of this manifest uncertainty in the law, it is hard to fault Applicant's counsel for advising Applicant to accept a favorable plea bargain. This Court typically declines to find trial counsel ineffective "for failing to take a specific action on an unsettled issue." State v. Bennett, 415 S.W.3d 867, 869 (Tex. Crim. App. 2013). Nor does counsel's inability to accurately predict how unsettled law may ultimately be resolved operate to render his client's guilty plea involuntary. See Ex parte Palmberg, 491 S.W.3d 804, 808 (Tex. Crim. App. 2016) ("ordinary error" in a defendant's attorney's "assessment of the law" is not enough to render the defendant's guilty plea "an unintelligent and voidable act") (quoting McMann v. Richardson, 397 U.S. 759, 769 (1970)). In my opinion, Applicant has failed to prove facts entitling him to relief under either of the legal theories he did plead in his writ application.
I respectfully dissent.