Opinion
Civil Action No. 4:02-CV-584-Y
November 5, 2002
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 pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. 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 Michael Dwayne Jones, TDCJ-ID #896660, is in custody of the Texas Department of Criminal Justice, Institutional Division, in Iowa Park, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
Jones was charged by indictment with the attempted murder of Robin Solomon. (Clerk's R. 3-4.) The indictment also included enhancement and habitual-offender allegations. ( Id.). On August 30, 1999, Jones waived his right to a jury trial and entered an open plea of guilty to the charged offense and a plea of true to the enhancement and habitual allegations. ( Id. at 48-52.) On October 18, 1999, the trial court sentenced Jones to thirty years' confinement. (Id. at 53-54.) Jones appealed his conviction and sentence but the Second Court of Appeals determined the appeal was frivolous and affirmed the trial court's judgment on January 11, 2001. Jones v. State, No. 2-99-481-CR, slip op. (Tex.App.-Fort Worth Jan. 11, 2001) (not designated for publication). Jones did not file a petition for discretionary review.
Jones filed a state application for writ of habeas corpus raising various ineffective assistance claims, which the Texas Court of Criminal Appeals denied without written order on the findings of the state trial court. Exparte Jones, No. 51, 267-01, at cover (Tex.Crim.App. Feb. 6, 2002) (not designated for publication). Jones filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on June 1, 2002, and the petition was subsequently transferred to this court by order dated July 5, 2002. See Spot yule v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
In one ground, Jones contends he received ineffective assistance of trial counsel because counsel failed to investigate the facts of the case or interview potential alibi witnesses.
E. RULE 5 STATEMENT
Cockrell believes that Jones has sufficiently exhausted his state remedies on the claims presented and, thus, does not move for dismissal on this ground. (Resp't Answer at 3.)
F. DISCUSSION
1. Legal Standard for Granting Habeas Corpus Relief
This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDRA"). Under 28 U.S.C. § 2254 (d), a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court 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 Supreme Court of the United States 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 federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
The Act further requires that federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. 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 the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 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. Exparte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Ineffective Assistance of Counsel
A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. CONST. amend. VI. To prevail on an ineffective assistance claim, a petitioner must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) 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 (1984); Carter v. Collins, 918 F.2d 1198, 1200 (5th Cir. 1990). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 687. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 688.
Jones raised his ineffective assistance claims in the state habeas court, but, in light of counsel's affidavit concerning his representation of Jones, the court found that counsel rendered effective representation. (State Habeas R. at 29-34.) As previously noted, the Texas Court of Criminal Appeals denied relief on Jones's state writ application without written order on the findings of the trial court. Ex parte Jones, No. 51, 267-01, at cover.
An ineffective assistance claim is a mixed question of law and fact. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). Where, as here, the claims have been reviewed on their merits and denied by the state courts, this court can grant federal habeas relief only if the state courts' decision was contrary to or involved an unreasonable application of the standard set forth in Strickland. ld. at 418 Jones v. Jones, 163 F.3d 285, 299 (5th Cir. 1998), cert. denied, 528 U.S. 895 (1999). Having independently reviewed Jones's claims in conjunction with the state court records the adjudication of his claims does not appear to have resulted in a decision that was contrary to or involved an unreasonable application of the Strickland standard.
Trial counsel testified by affidavit in the state habeas proceeding that he did not fail to investigate Jones's case and that he spent considerable time and effort conferring with the state's attorney and Jones himself regarding the case. (State Habeas R. at 26.) Counsel testified that he obtained the State's entire file and reviewed the file, individually and with Jones. ( Id.) He further testified that he talked with Jones at length and on several occasions about the allegations, the plea offer, his defense, his criminal history, and the punishment he was facing. ( Id.) Counsel also testified that he did not interview any potential alibi witnesses because Jones admitted to committing the offense and because Jones never suggested that he had an alibi or any alibi witnesses who would testify on his behalf. ( Id.) Jones's mere assertions to the contrary, unsupported and unsupportable by anything contained in the record, have no probative evidentiary value in this proceeding. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983).
Further, once a guilty plea has been entered, all nonjurisdictional defects in the proceedings against a defendant are waived, including all claims of ineffective assistance of counsel that do not attack the voluntariness of the guilty plea. Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983), cert. denied, 466 U.S. 906 (1984); Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir. 1981), cert. denied, 456 U.S. 992 (1982). Jones has not called into question the voluntary and intelligent character of his plea, and therefore his ineffective assistance claims are nonjurisdictional and are waived by the plea. United States v. Broce, 488 U.S. 563, 573-74 (1989).
II. RECOMMENDATION
Jones'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 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, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until November 26, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); 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 November 26, 2002, to serve and file, not merely place in the mail, 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, a 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, be and hereby is returned to the docket of the United States District Judge.