Opinion
No. 3:03-CV-1169-D
April 1, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and an order of the District Court in implementation thereof, the subject cause has previously been referred to the undersigned United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner David Woodrow Jones, Sr. ("Jones" or "Petitioner") is confined at the Montford Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) at Lubbock, Texas. Respondent is the Director of TDCJ-CID. Statement of the Case: Pursuant to negotiated plea bargains Jones pled guilty to the charges of possession of marijuana, as charged in the indictment in Cause No. F-0021778; possession of methamphetamine with intent to deliver, as charged in the indictment in Cause No. F-0021776; delivery of methamphetamine, as charged in the indictment in Cause No. F-9921750; and possession of cocaine with intent to deliver, as charged in the indictment in Cause No. F-0021775. The trial court sentenced Petitioner to a term of 10 years in Cause No. F-0021778 and to 35 year terms in each of the remaining charges. Jones did not appeal his convictions.
Petitioner filed four applications for habeas corpus relief pursuant to TEX. CODE CRIM. PROC. art. 11.07 on February 5, 2003. Ex Parts Jones, Appl. No. 20,724-02; Ex Parte Jones, Appl. No. 20,724-03; Ex Parte Jones, Appl. No. 20,724-04; Ex Parte Jones, Appl. No. 20,724-05. On April 9, 2003, the Texas Court of Criminal Appeals denied all four applications without written orders on the findings of the trial court. Ex Parte Jones, Appl. No. 20,724-02 at cover; Ex Parte Jones, Appl. No. 20,724-03 at cover; Ex Parte Jones, Appl. No. 20,724-04 at cover; Ex Parte Jones, Appl. No. 20,724-05 at cover.
Jones had previously filed an 11.07 application in an unrelated case. See Ex Parte Jones, Appl. No. 20,724-01.
In response to the Petition and this court's show cause order, Respondent filed an answer on December 16, 2003 together with copies of Petitioner's prior state proceedings. Jones filed a traverse on March 15, 2004.
The pleadings and judgment in F-0021775 are not contained in the state court records. See Appl. No. 20,724-05. However, in light of the fact that it is undisputed that a plea bargain was entered and that Jones was sentenced to a 35 year term of imprisonment, the absence of these documents is irrelevant to the issues presented in the § 2254 petition.
Findings and Conclusions:
In his answer Respondent seeks dismissal of the petition as being time barred and in the alternative that the petition be denied on the merits.
The sentences in each of the cases attacked in the petition were imposed on July 18, 2000. No appeals were taken and the convictions therefore became final on August 17, 2000. Jones did not file an art. 11.07 application until February 5, 2003, long after the one year limitations period had expired. See § 2254(d)(1).
In both his response to the court's show cause order which he filed on August 5, 2003 and his reply to Respondent's answer filed on March 15, 2004 Jones claims that his ability to seek collateral relief was impeded by State action, specifically that he was denied access to a law library during his incarceration at the Middleton Transfer Facility and at the Dick Wayne State Jail. He claims not to have access to a law library until he was transferred to the Montgomery Unit of the TDCJ-CID in August 2002.
In a slightly different context, in Egerton v. Cockrell, 334 F.3d 433 (5th Cir. 2003), the Court found that the absence of federal law materials, including a copy of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") which incorporated the one year limitations period, constituted an "impediment to filing an application created by State action." Id. at 438. The existence of such an impediment precludes the commencement of the one year period. See § 2254(d)(1)(B). In the present case Jones was confined for two years at two correction units which he claims had inadequate libraries, including the Middleton Unit which was also involved in the Egerton case. Respondent has not attempted to make any showing with respect to the adequacy of the prison libraries while Jones was confined at the units prior to his transfer at the Montford Unit or to demonstrate his access to the libraries during his periods of incarceration. On the other hand Petitioner does not claim that he was unaware of the limits imposed by the AEDPA — which may be the sole ratio decidendi for the Court's decision in Egerton. Under the current state of the record and pleadings and to avoid additional delay I am of the opinion that it is more appropriate to consider Petitioner's claims on the merits which Respondent has addressed alternatively in his answer. See, e.g., Busby v. Dretke, __F.3d__, 2004 WL 206179 *9 (5th Cir. Feb. 4, 2004) wherein the Court chose to look past a difficult procedural default issue when the issue at hand could be decided on the merits.
The issue in Egerton was whether the petitioner knew of the limitations period imposed by the AEDPA prior to the expiration of the one year period.
In his first and fourth grounds for relief, Jones contends that he was denied effective assistance of counsel because counsel failed to investigate and suppress the search warrant in his case, failed to prepare adequately for trial, and failed to raise or investigate the issue of Petitioner's competency to enter guilty pleas. The representation afforded by an attorney is governed by the standards set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). There is a strong presumption that an attorney's conduct falls within the broad range of reasonable professional assistance required under the Sixth Amendment. Id. at 690, 104 S.Ct at 2065. To overcome this presumption a habeas petitioner must establish that the attorney's conduct was constitutionally deficient (cause) and that but for such unprofessional errors the result probably would have been different (prejudice). Failure to prove either prong of the two part test forecloses relief. Id at 698, 104 S.Ct. at 2069. Moreover, in order to be entitled to relief Jones must show that the Court of Criminal Appeals' denial of these claims were objectively unreasonable applications of federal law. See Yarborough v. Gentry, __ U.S. __, 124 S.Ct. 1 (2003).
Petitioner's pleas of guilty waived all non-jurisdictional defects, including any right to contest his arrest, search, and seizure. Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608 (1973). The Court of Criminal Appeals found that Jones' trial attorney was familiar with the facts surrounding the warrant and rendered effective assistance of counsel. Ex Parte Jones, Appl. No. 20,724-02 at 53; Ex Parte Jones, Appl. No. 20,724-03 at 53; Ex Parte Jones, Appl. No. 20,724-04 at 52; Ex Parte Jones, Appl. No. 20,724-05 at 53. The court also found that Jones was competent at the time he entered his guilty plea. Ex Parte Jones, Appl. No. 20,724-02 at 54-55; Ex Parte Jones, Appl. No. 20,724-03 at 54-55; Ex Parte Jones, Appl. No. 20,724-04 at 53-54; Ex Parte Jones, Appl. No. 20,724-05 at 54-55. Petitioner has submitted no evidence to rebut the State court's findings of fact or to refute the presumption of effective assistance of counsel under Strickland, much less shown that the Court of Criminal Appeals' determinations constituted unreasonable applications of clearly established federal law. See § 2254(d)(1).
The "standard for competence to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of understanding and has a rational as well as factual understanding of the proceedings against him." Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 2685 (1993), citing Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788 (1960).
In his second ground for relief, Jones asserts that the trial court erred when it imposed an unjust sentence of thirty-five years in the penitentiary instead of admitting Petitioner to a drug treatment program. The trial court was not required to place him in a drug treatment program instead of assessing penitentiary sentences. Moreover, his convictions in three of the four cases were pursuant to plea agreements whereby Jones agreed to 35 year terms.
Any suggestion that his sentences were in excess of the statutory minimums is equally lacking in merit. In Nos. F-9921750, F-0021775, and F-0021776 Jones was charged with delivery and transfer of quantities of methamphetamine in amounts equal to one or more grams but less than four grams. In No. F-0021778 he was charged with possessing less than five pounds but more than for ounces of marijuana. The primary offense alleged in the respective indictments alleged second degree felonies under Texas state law, the punishment for which is a term of imprisonment of not less than 2 years or more than 20 years. TEX. PEN. CODE § 12.33. However, when it is proved that a defendant was previously convicted of a felony, a defendant is subject to the punishment provided for a first degree felony, See TEX. PEN. CODE § 12.42(b), the punishment for which is a term of imprisonment not less than 5 years or more than 99 years or life imprisonment. TEX. PEN. CODE § 12.32. As noted above each of the methamphetamine charges alleged two prior felony convictions to which Jones entered pleas of true. Therefore his sentences were well within the maximum under Texas state law, and he is not entitled to relief. See also Lockyear v. Andrade, 538 U.S. 63, 123 S.Ct. 1166 (2003).
In his third ground for relief, Petitioner contends that he was not given fair notice of the 1996 amendments to the current TEX. GOV'T CODE § 508.149(b), which allows a parole panel to refuse to release an inmate on mandatory supervision. Under pre-AEDPA law, a trial judge was not required to inform a defendant of his parole eligibility status. E.g. McChesney v. Henderson, 482 F.2d 1101, 1108 (5th Cir. 1973); LeBlanc v. Henderson, 478 F.2d 481, 483 (5th Cir. 1973). Petitioner has presented no case authority which suggests that the Texas Courts of Criminal Appeals' decision was an unreasonable application of Federal law as determined by the Supreme Court of the United States. RECOMMENDATION:
Petitioner has failed to show that he is entitled to relief pursuant to 28 U.S.C. § 2254. Specifically, he has failed to establish that the decision of the Texas Court of Criminal Appeals constituted a decision which met the prerequisites of § 2254(d)(1) or (2). It is therefore recommended that the petition be denied and dismissed.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten (10) days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten (10) day period may bar a de novo determination by the district judge of any finding of fact and conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.