Opinion
Civil Action No. 3:03-CV-139-L.
October 29, 2004
ORDER
This is a habeas case brought under 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this action was referred to the United States Magistrate Judge for proposed findings and recommendation. On September 14, 2004, the Findings, Conclusions and Recommendation of the United States Magistrate Judge were filed, to which Petitioner filed objections on September 30, 2004.
The magistrate judge recommended that Petitioner's request for habeas corpus relief be denied because he failed to prove that he has been denied a constitutionally protected interest. He concluded that the state courts' determination that Petitioner was not entitled to relief was "not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of facts in light of the evidence presented in the state court proceedings."
Findings, Conclusions and Recommendations of the United States Magistrate Judge at 8.
The magistrate judge identified Petitioner's claims as: 1) his guilty plea was involuntary; 2) trial counsel was constitutionally ineffective; 3) his conviction was obtained through the use of evidence that was illegally seized and was the product of an unlawful arrest; and 4) he was denied a complete record of the arrest and search warrant on appeal. The magistrate judge found that Petitioner did not raise in either his petitions for discretionary review or his state habeas corpus applications his arguments that: 1) trial counsel was ineffective for failing to challenge the arrest and search warrant because his name had been illegally added; 2) he was denied a complete record of the arrest and search warrant on appeal; and 3) his conviction was obtained through illegally seized evidence and an unlawful arrest. The magistrate judge concluded, therefore, that Petitioner failed to exhaust all his claims in state court and these claims are procedurally defaulted.
With regards to Petitioner's claim of involuntary guilty pleas, the magistrate judge concluded that Petitioner pled guilty freely and voluntarily, and that Petitioner failed to offer any evidence to support his claim that his plea was involuntary other than his self-serving allegation.
The magistrate judge next considered Petitioner's remaining claim that he received ineffective assistance because his attorney: 1) failed to challenge that the arrest and search warrant were not signed by a magistrate, had no description of Petitioner, and did not otherwise name him; 2) failed to file a motion to suppress the illegally seized evidence; 3) did not request an examining trial; and 4) did not call available witnesses. The magistrate judge concluded that because Petitioner failed to show that his guilty pleas were involuntary, he waived his ineffective assistance of counsel claims occurring before he pled guilty.
Petitioner filed objections to the recommendation made by the magistrate judge. He contends that procedural default is not a jurisdictional bar to habeas relief. He further contends that "The factual representation . . . if liberally construed is the substantial equivalent of the factual basis of his federal supplication and should have been held by the Magistrate to be a fair presentation of Pet.'s claims to the State Court." Pet.'s Objections at 1. He also maintains: 1) the claims were fairly presented to the state court and should be deemed technically exhausted; 2) the magistrate judge abused his discretion in failing to order a hearing because Petitioner raised issued that are not determinable from the record based on trial counsels actions taken outside the presence of a judge; 3) the magistrate judge erroneously applied the presumption of correctness and regularity standards because Petitioner has not been afforded a hearing on any of these claims; 4) the state habeas paper hearing was inadequate to present the errors of counsel coercion and misrepresentation in order to obtain Petitioner's guilty plea; and 5) nonjurisdictional errors are not waived by a guilty plea in an open plea proceeding.
After careful review, the court overrules Petitioner's "objections. Petitioner seeks federal habeas relief on factual allegations that were never made to the state courts. These claims, therefore, are unexhausted and procedurally defaulted. See Finely v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001). The record reflects that Petitioner freely and voluntarily pled guilty, and Petitioner fails to offer any evidence to the contrary, other than his self-serving allegations. Federal courts uphold guilty pleas challenged in a habeas corpus proceeding if the plea was knowing, voluntary and intelligent. James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). Because Petitioner has failed to show that his guilty pleas were involuntary, he has waived his ineffective assistance of counsel claim occurring before he pled guilty. Matthew v. Johnson, 201 F.3d 353, 364 (5th Cir. 2000).
Having reviewed the pleadings, objections, file and record in this case, the findings and conclusions of the magistrate judge, the court determines that the findings and conclusions are correct, and are accepted as those of the court. Accordingly, Petitioner's petition for habeas corpus is hereby denied, and this action is dismissed with prejudice.
It is so ordered.