Summary
recognizing that persons charged with aggravated sexual assault remain eligible for deferred adjudication probation under Texas law
Summary of this case from Montemayor v. ValdezOpinion
No. 3-04-CV-2552-R.
March 16, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Richard Guerrero, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner pled guilty to aggravated sexual assault of a child under 14 years of age. Punishment was assessed at 15 years confinement and a $1,000 fine. His conviction and sentence were affirmed on direct appeal. Guerrero v. State, 2003 WL 21508815 (Tex.App.-Dallas, Jul. 1, 2003, pet. ref'd). Petitioner also filed an application for state post-conviction relief. The application was denied without written order. Ex parte Guerrero, No. 59,359-03 (Tex. Crim, App. Aug. 25, 2004). Petitioner then filed this action in federal court.
II.
In his sole ground for relief, petitioner contends that his guilty plea was involuntary because his attorney misrepresented that he was eligible for probation.
A.
The Sixth Amendment to the United States Constitution guarantees a defendant reasonably effective assistance of counsel at all critical stages of a criminal proceeding. See Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). That right is denied when the performance of counsel falls below an objective standard of reasonable professional assistance and thereby prejudices the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In the context of a guilty plea, prejudice results when there is a reasonable probability that, but for counsel's unprofessional errors, the petitioner would not have pled guilty and insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 60, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203 (1985).Where, as here, a state court has already rejected an ineffective assistance of counsel claim, a federal court may grant habeas relief only if the state court adjudication:
(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.28 U.S.C. § 2254(d). A state court decision is contrary to clearly established federal law "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, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An unreasonable application of clearly established federal law is one in which "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." Id., 120 S.Ct. at 1523; see also Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003); Pondexter v. Dretke, 346 F.3d 142, 145-46 (5th Cir. 2003), cert. denied, 124 S.Ct. 2160 (2004). Stated differently, "a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins, 123 S.Ct. at 2535, quoting Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003).
With respect to mixed questions of fact and law, a federal habeas court must give deference to state court findings unless they are "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.), cert. denied, 121 S.Ct. 508 (2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the petitioner rebuts the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
B.
A trial judge is required to ensure that a guilty plea is knowing and voluntary. See James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). The defendant must have "a full understanding of what the plea connotes and of its consequences." Taylor v. Whitley, 933 F.2d 325, 329 (5th Cir. 1991), cert. denied, 112 S.Ct. 1678 (1992), quoting Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). This constitutional inquiry focuses on three core concerns: (1) the absence of coercion; (2) an understanding of the charges; and (3) a realistic understanding of the consequences of the guilty plea. United States v. Bernal, 861 F.2d 434, 436 (5th Cir. 1988), cert. denied, 110 S.Ct. 203 (1989). These core concerns are addressed by the admonishments contained in article 26.13 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art 26.13 (Vernon Supp. 2004).
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 guilty pleas." 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 and TEX. CODE CRIM. PROC. ANN. art 26.13. It therefore follows that the same "prophylactic protections" attach to the admonishments under article 26.13. See Jamme v. Cockrell, 2002 WL 1878403 at *5 n. 4 (N.D. Tex. Aug. 12, 2002).
C.
Petitioner was charged with aggravated sexual assault against his 12 year-old stepdaughter. Instead of accepting the state's offer of a 15-year sentence, petitioner entered an "open plea" of guilty. The plea agreement signed by petitioner and his attorney discloses the nature of the charge, the range of punishment, and leaves open the possibility of deferred adjudication. (St. App. Tr. at 7). Before accepting his guilty plea, the trial judge reminded petitioner that the range of punishment for aggravated sexual assault of a child was not less than five years nor more than 99 years or life imprisonment. (SF-II at 2-3). Petitioner told the judge that he read the plea documents, understood everything he signed, and reviewed the consequences of his plea with counsel. ( Id. at 3). At sentencing, petitioner admitted to having sexual relations with his stepdaughter two or three times. (SF-III at 17-18). He also acknowledged that the court could sentence him to the maximum of 99 years in prison, which is "as serious as our judicial system goes." ( Id. at 21). In his closing argument, counsel asked for leniency:
He's — he's remorseful, understanding that what he's done to the little girl can never be taken back. And he also knows that — in our discussions up there just a minute ago, that this is as serious as it gets. So we're respectfully requesting the Court to consider probation for Mr. Guerrero. If he's eligible for deferred probation, we'd request that as well. Register as a sex offender. Get all the counseling he can get. Stay away from the kids. Anything that the Court sees that might help this man and help his family try to get over this.
But if the Court is more inclined to penitentiary time, we would respectfully request a minimum number of five years. ( Id. at 32-33). The trial court declined petitioner's request for deferred adjudication probation and sentenced him to 15 years confinement. ( Id. at 35).
Petitioner now contends that his guilty plea was involuntary and unlawfully induced because counsel misrepresented that he was eligible for probation. In support of this argument, petitioner points to Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(E), which excludes from probation or community supervision those persons convicted of aggravated sexual assault. Petitioner maintains that "this misunderstanding of the applicable statutes and laws by trial counsel and the relating of the same to the guilty pleading defendant [sic] denied him effective assistance of counsel during the pleading of guilty to the charges." (Pet. Mem. Br. at 4).
Mark Bragg, the attorney who represented petitioner at trial, refuted this accusation in a sworn affidavit filed with the state habeas court. According to Bragg:
Mr. Guerrero was eligible for deferred probation and this is what I asked the court to consider. I have never promised a defendant a particular result when entering an open plea or when going to trial. I advised Mr. Guerrero that he was subject to the entire range of punishment, which included ten years deferred adjudication probation, and the maximum sentence of life or ninety-nine years.
(St. Hab. Tr. at 30-31). The state court rejected petitioner's ineffective assistance of counsel claim, finding that he was "thoroughly and property admonished . . . as to the meaning and consequences of said plea" and that he "was represented by an attorney who exercised all of the skill and expertise which one could reasonably expect of an attorney[.]" ( Id. at 27). This finding is conclusive in a subsequent federal habeas proceeding unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir. 2001), cert. denied, 123 S.Ct. 106 (2002) (presumption of correctness applies to both explicit and implicit findings necessary to state court's conclusions of mixed law and fact). Petitioner has failed to offer any evidence, much less clear and convincing evidence, to rebut the state court findings. To the contrary, as stated by Bragg, petitioner was eligible for deferred adjudication probation under Texas law. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (Vernon Supp. 2004); see also Garcia v. State, 2000 WL 552404 at *3 (Tex.App.-Houston [14th Dist.], May 4, 2000, pet. ref'd). Nothing in the record suggests that petitioner was misled by his attorney. Consequently, this ground for relief should be overruled.
Article 42.12, § 5(a) provides, in pertinent part:
Except as provided by Subsection (d) of this section, when in the judge's opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision. A judge may place on community supervision under this section a defendant charged with . . . [aggravated sexual assault], regardless of the age of the victim . . . only if the judge makes a finding in open court that placing the defendant on community supervision is in the best interest of the victim.
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a). Subsection (d) excludes from deferred adjudication those persons charged with certain sex offenses who previously have been placed on community supervision. Id. art. 42.12, § 5(d)(2). However, that exclusion is not applicable to petitioner.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.