Opinion
CIVIL ACTION NO. 4:03-CV-1194-Y
February 13, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636(b). The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Darnyl R. Henderson, TDCJ-CID #1022516, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is presently incarcerated in the Dalhart Unit in Dalhart, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. PROCEDURAL HISTORY
Henderson was indicted for aggravated sexual assault of a child under 14. (State Habeas R. at 124.) On December 11, 2000, Henderson pleaded guilty to the court without a plea agreement, and the trial court sentenced him to 15 years' confinement. (Id. at 130.) The Second District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Henderson's petition for discretionary review. Henderson v. State, No. 2-01-021-CR (Tex.App.-Fort Worth May 2, 2002, pet. ref'd) (not designated for publication).Henderson filed a state application for writ of habeas corpus on December 3, 2002, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Henderson, No. 56, 003-01 (Tex.Crim.App. June 25, 2003) (not designated for publication). Henderson filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on July 15, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
Although Henderson initially filed his federal petition in the United States District Court for the Northern District of Texas, Amarillo Division, the petition was transferred to this division. 28 U.S.C. § 2241 (d).
D. ISSUES
Henderson argues that trial counsel was constitutionally ineffective because he:
1. told him he would get probation if he pleaded guilty,
2. did not object to the trial court's excessive sentence,
3. failed to object when Henderson was denied the opportunity to challenge the presentence investigation report, and
4. did not require the State to provide documentary proof of the victim's age. He also asserts that his guilty plea was involuntary based on trial counsel's ineffectiveness and that appellate counsel was ineffective.
E. RULE 5 STATEMENT
Dretke argues that Henderson's claims regarding trial counsel's failure to object to the lack of documentary evidence of the victim's age and to challenge the presentence report before sentencing have not been exhausted and asserts that these claims have been procedurally defaulted; however, Dretke believes that Henderson's remaining allegations have been properly exhausted.F. DISCUSSION 1. Exhaustion and Procedural Default
Applicants seeking habeas relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. Picard v. Connor, 404 U.S. 270, 275-76 (1981); Fisher, 169 F.3d at 302. This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
Henderson did not raise in either his petition for discretionary review or his state habeas corpus application his arguments that trial counsel was ineffective for failing to request documentary evidence of the victim's age and for failing to ensure Henderson had an opportunity to challenge the presentence investigation report. Thus, Henderson seeks federal habeas relief on factual allegations that were never made in the Texas courts, which renders these claims unexhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
However, Henderson cannot return to the Texas court to cure this deficiency. The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert, denied, 513 U.S. 1084 (1995). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20.
Henderson has not given any explanation to excuse his default. Indeed, any problem with counsel's representation was known to Henderson before he filed his state habeas corpus application. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999). Accordingly, these claims are procedurally defaulted.
2. Remaining Claims a. Standard of review
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law 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. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002). (en banc per curiam), cert. denied, 537 U.S. 1104 (2003).
Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
b. Voluntary guilty plea
Because Henderson pleaded guilty, he may only challenge the voluntary character of his guilty plea. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983), cert. denied, 466 U.S. 906 (1984). Henderson argues that his guilty plea was involuntary because his attorney told him he would get probation if he pleaded guilty. (Federal Pet. at 7 attach, p. 3; Pet'r Answer at 13.)
If a challenged guilty plea is knowing, voluntary, and intelligent, it will be upheld on federal habeas review. James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). Although a defendant's attestation of voluntariness at the time of the plea is not an absolute bar to later contrary contentions, it places a heavy burden upon him. United States v. Diaz, 733 F.2d 371, 373-74 (5th Cir. 1979). He must show such a strong degree of misunderstanding, duress, or misrepresentation by others that his plea would become a constitutionally inadequate basis for imprisonment. Id. (citing Blackledge v. Allison, 431 U.S. 63, 75 (1977)). Before a 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," but not that he understood the "technical legal effect" of the charges. Boykin v. Alabama, 395 U.S. 238, 244 (1969); James, 56 F.3d at 666. A plea is involuntary, and thus insufficient to support a conviction, if the defendant "has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt." Henderson v. Morgan, 426 U.S. 637, 645 n. 13 (1976). If the defendant understands the maximum prison term and fine for the offense, the subsequent guilty plea is knowingly entered. Abies v. Scott, 73 F.3d 591, 592 n. 2 (5th Cir.) (per curiam), cert. denied, 517 U.S. 1198 (1996). Absent supporting evidence in the record, a court cannot consider a habeas petitioner's mere assertions on a critical issue in his pro se petition to be of probative evidentiary value. Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994), cert. denied, 514 U.S. 1071 (1995); Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (per curiam).
The record reflects that Henderson (1) stated that he was pleading guilty freely and voluntarily, (2) understood the plea admonishments, and (3) was aware of the consequences of his plea. (State Habeas R. at 127; Guilty Plea Rep. R. at 3-4; Sentencing Rep. R. at 6.) Henderson has offered nothing more than his self-serving allegation that his plea was involuntary, which is insufficient to rebut the presumption of regularity of the state court records. Babb v. Johnson, 61 F. Supp.2d 604, 606 (S.D. Tex. 1999); see also Armstead, 37 F.3d at 210.
c. Ineffective assistance of counsel
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST, amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); Carter v. Collins, 918 F.2d 1198, 1200 (5th Cir. 1990). To satisfy the prejudice prong in a guilty-plea context, the petitioner must show that he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Montoya v. Johnson, 226 F.3d 399, 408 (5th Cir. 2000), cert. denied, 532 U.S. 1067 (2001).
Henderson asserts that trial counsel was ineffective because he told Henderson he would get probation if he pleaded guilty and failed to object to the trial court's excessive sentence. Because Henderson pleaded guilty, he may only challenge the voluntary character of his guilty plea in raising an ineffective-assistance-of-counsel claim. Hill, 474 U.S. at 56-57; Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983), cert. denied, 466 U.S. 906(1984).
As discussed above, Henderson has failed to show that his plea was involuntary. Thus, he has failed to overcome the presumption that he was properly admonished and that his pleas were voluntary. Henderson's guilty plea waived his ineffective-assistance-of-counsel claims. Beasley v. McCotter, 798 F.2d 116, 118 n. 1 (5th Cir. 1986) (percuriam op. on reh'g), cert. denied, 479 U.S. 1039 (1987); see also Toilet v. Henderson, 411 U.S. 258, 267 (1973) (stating guilty plea waives all nonjurisdictional defects occurring before entry of plea).
Henderson also argues that appellate counsel was ineffective. This claim does not implicate the voluntariness of his plea or whether he understood its consequences and is also waived by his voluntary guilty plea. Abies, 73 F.3d at 592 n. 2.
II. RECOMMENDATION
Henderson's petition for writ of habeas corpus should be denied.III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until March 5, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until March 5, 2004 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.