Opinion
CIVIL ACTION NO. 4:01-CV-536-A
May 8, 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 under the provisions of Title 28 of the United States Code, § 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 Title 28 of the United States Code, § 2254.
B. PARTIES
Petitioner Steven Lewis LaTour, TDCJ-ID #889818, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Neal Unit in Amarillo, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On August 24, 1995, LaTour pleaded guilty to two charges of indecency with a child by contact in case numbers 0552837 and 0553518 in Criminal District Court Number 1 of Tarrant County, Texas. The trial court found LaTour guilty, suspended imposition of the sentences, and placed him on ten years' community supervision in each case. (Clerk R. at 19; 1 State Habeas R. at 19.) LaTour did not appeal. However, on August 18, 1998, the trial court granted LaTour's oral motions for new trial, vacated the 1995 community supervision judgment, deferred adjudicating his guilt, and sentenced him to ten years' community supervision on each charge. (Clerk R. at 27, 34; 1 State Habeas R. at 20, 24.)
The judgments recite that LaTour was placed on probation." However in 1993, the Texas Legislature amended the Code of Criminal Procedure to change the term "probation" to "community supervision." Rickels v. State, 69 S.W.3d 775, 776 n. 1 (Tex.App.-Corpus Christi 2002, no pet.). Although these terms are used interchangeably, these Findings, Conclusions, and Recommendation will refer to "community supervision," which will also encompass "probation."
Apparently, because LaTour was not eligible for straight community supervision for these offenses, he orally moved for a new trial to rectify this mistake after a community-supervision-violation warrant was issued. (Clerk R. at 4-5; 1 State Habeas R. at 46-47.) See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(1)(C) (Vernon Supp. 2002). In other words, the trial court granted a new trial in order to sentence LaTour to a statutorily permissible sentence. (Pet'r Reply Br. at Ex. B.) See id. art. 42.12, § 5(a).
The State subsequently filed a motion to proceed to adjudication based on fact that LaTour had violated the terms and conditions of the community supervisions. (Clerk R. at 43.) On September 8, 1999, the trial court adjudicated LaTour's guilt, revoked his community supervisions, and sentenced him to 20 years' confinement on each charge. (Clerk R. at 58; 1 State Habeas R. at 25.) LaTour appealed the judgment in case number 0553518, but the court of appeals dismissed the appeal after LaTour filed a motion to voluntarily dismiss it. LaTour v. State, No. 2-99-440-CR (Tex.App.-Fort Worth Feb. 17 2000) (not designated for publication). LaTour did not appeal the judgment in case number 0552837. (1 State Habeas R. at 34; Appellant Br. at 1.)
On March 27, 2000, LaTour filed two, identical state applications for writ of habeas corpus challenging each indecency-with-a-child conviction, which the Texas Court of Criminal Appeals denied without written order. Ex parte LaTour, Nos. 45, 906-01 -02 (Tex.Crim.App. July 12, 2000) (not designated for publication). LaTour 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 June 1, 2001. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing). It appears that he is challenging both convictions. (Federal Pet. at 3.)
LaTour signed his petition under the date of June 1, 2001. (Federal Pet. at 9.) However, the petition was not received and filed in this court until July 2, 2001. The length of delay between the date LaTour claims he delivered his petition to prison authorities and the date the petition was actually filed raises questions about the veracity of LaTour's assertion. However, Cockrell concedes that June 1, 2001 is the date to be used in calculating whether the petition was timely filed. (Resp't Supp. Answer at 3 n. 1.) Thus, this court will assume June 1, 2001 is the filing date under Spotvile.
D. ISSUES
LaTour argues that (1) his original guilty plea was void and (2) he was denied effective assistance of counsel when his trial attorney presented an out-of-time motion for new trial and, thus, continued his void original plea.
E. RULE 5 STATEMENT
Cockrell believes LaTour has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.
F. DISCUSSION 1. Statute of Limitations
Cockrell asserts that LaTour's petition should be dismissed as time-barred. Indeed, federal habeas corpus petitions are subject to a one-year statute of limitations:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244 (d)(1)-(2). Cockrell argues that because LaTour's claims relate to his original guilty plea, limitations began to run 30 days after the trial court suspended imposition of sentence and placed him on ten years' community supervision on August 24, 1995, i.e., on September 23, 1995. TEX. R.APP. P. 26.2(a)(1). However, this judgment was subsequently vacated when the trial court granted LaTour a new trial; thus, it does not start the limitations period primarily because it cannot be considered a "final judgment."
Cockrell alternatively asserts that limitations began to run at the time he was placed on deferred adjudication community supervision on August 18, 1998. While Cockrell is correct that, under Texas law, a defendant must immediately appeal when deferred adjudication community supervision is first imposed, the habeas corpus statute specifies that limitations begins on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244 (d)(1)(A) (emphasis added); Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999). A deferred-adjudication judgment is not a final judgment because there has been no determination of guilt. Davis v. State, 968 S.W.2d 368, 371 (Tex.Crim.App. 1998). Thus, limitations did not begin until after LaTour's deferred adjudication community supervision was revoked on September 8, 1999. See generally Jordan v. Cockrell, No. 3:01-CV-1162-G, 2001 WL 1388015, at *2 (N.D. Tex. Nov. 6, 2001).
Regarding case number 0552837, because LaTour did not appeal that judgment, it became final 30 days after the sentence was imposed — October 8, 1999. TEX. R. APP. P. 26.2(a)(1). Thus, absent application of any tolling provision, LaTour's federal petition challenging cause number 0552837 was due on or before October 8, 2000. If, however, a state prisoner files a timely state post-conviction application for habeas corpus review, the time taken to pursue that remedy is not counted toward the limitation period. 28 U.S.C. § 2244 (d)(2); Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). Thus, the statute of limitations was tolled from March 27, 2000, the date his state habeas applications were filed, to July 12, 2000, when the Court of Criminal Appeals denied his applications — 107 days. Excluding this period, LaTour's federal petition was due on January 23, 2001. LaTour executed his federal petition on June 1, 2001. Thus, LaTour's federal habeas corpus petition as to case number 0552837 is time-barred.
However, regarding case number 0553518, LaTour's federal petition is timely. Although LaTour voluntarily dismissed his appeal, it was a timely appeal that affected the date of a "final judgment" and operated to delay the start of the limitations period. Babers v. Johnson, No. 3:01-CV-411-G, 2001 WL863599, at *2 (N.D. Tex. July 17, 2001). Thus, LaTour's conviction in case number 0553518 became final on March 18, 2000 — 30 days after the court of appeals dismissed the appeal. Cf. Flanagan v. Johnson, 154 F.3d 196, 197, 199 (5th Cir. 1998) (holding limitations triggered 90 days after the Court of Criminal Appeals refused petitioner's discretionary-review petition). Thus, LaTour's federal habeas corpus petition was due on March 18, 2001. However, adding the 107 days that his state habeas corpus applications were pending in the Court of Criminal Appeals yields a due date of July 3, 2001. LaTour's June 1, 2001 federal petition was timely as to case number 0553518. Thus, the following discussion of the merits of LaTour's claims refers only to case number 0553518.
2. Legal Standard for Granting Habeas Corpus Relief
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 objectively 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).
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).
2. Voluntary Pleas
Because LaTour pleaded guilty, he may only challenge the voluntary character of his guilty pleas. 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). Although LaTour does not directly attack the voluntary nature of his 1995 and 1998 guilty pleas, this is a threshold inquiry in guilty-plea cases. Tollett v. Henderson, 411 U.S. 258, 267 (1973).
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); see also 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. Ables v. Scott, 73 F.3d 591, 592 n. 2 (5th Cir.), 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).
The record reflects that in 1995 and 1998 LaTour (1) stated in open court that he was pleading guilty freely and voluntarily, (2) understood the plea admonishments, and (3) was aware of the consequences of his pleas, including the available maximum punishment. (1 State Habeas R. at 61, 63, 71, 73.) Indeed, LaTour was not prejudiced in 1995 by receiving a sentencing alternative that did not exist because the State stuck to its bargain with LaTour and he remained free on community supervision until he violated its terms just as though that community supervision had been properly authorized by law. Carter v. Lynaugh, 826 F.2d 408, 409 (5th Cir. 1987), cert. denied, 485 U.S. 938 (1988). Likewise LaTour's 1998 guilty plea was voluntary based on the record before this court. Thus, LaTour's guilty pleas are presumed to be voluntary. Babb v. Johnson, 61 F. Supp.2d 604, 606 (S.D. Tex. 1999); see also Armstead, 37 F.3d at 210.
Prejudice is a prerequisite to obtaining habeas relief on any ground. Lockett v. Blackburn, 571 F.2d 309, 314 (5th Cir.), cert. denied, 439 U.S. 873 (1978).
Although it seems discordant to hold that a guilty plea is voluntary when the punishment assessed is not statutorily authorized, the critical issue is not whether LaTour understood the technical legal effect of his pleas but is, rather, whether he understood the nature and substance of the charges against him. Taylor v. Whitley, 933 F.2d 325, 329 (5th Cir. 1991), cert. denied, 503 U.S. 988 (1992). The record shows that LaTour clearly understood the nature and substance of the indecency-with-a-child charges brought against him; thus, his pleas were voluntary.
3. Void Guilty Plea
Concomitantly, LaTour's claim that his 1995 guilty plea was void likewise fails. Because his plea was voluntary and knowing, it cannot be void. Matthew v. Johnson, 201 F.3d 353, 364 (5th Cir.), cert. denied, 531 U.S. 830 (2000). Further, the Texas Court of Criminal Appeals has held that an unauthorized grant of community supervision does not render the sentence void. Ex parte Williams, 65 S.W.3d 656, 657 (Tex.Crim.App. 2001). Thus, LaTour's rationale for holding his 1995 guilty plea void — that the sentence was void — does not support his conclusion.
4. 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, 474 U.S. at 59; Montoya v. Johnson, 226 F.3d 399, 408 (5th Cir. 2000), cert. denied, 532 U.S. 1067 (2001).
In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Strickland, 466 U.S. at 689. In general, scrutiny of an attorney's performance is highly deferential, and reviewing courts will not second-guess strategic decisions; rather, the attorney's performance is evaluated in light of all the circumstances as they existed at the time of the conduct, and is presumed to have been adequate. Id. at 689-90.
LaTour's complaints about counsel were reviewed and rejected during state collateral review proceedings. A claim of ineffective assistance is a mixed question of law and fact. Id. at 698. Thus, a federal habeas court cannot grant relief unless the state court's rejection of the claim involved an objectively unreasonable application of the law to the facts. 28 U.S.C. § 2254 (d).
LaTour argues that his 1998 trial counsel, John D. Malanga, was constitutionally ineffective when he moved for an out-of-time motion for new trial. Because LaTour 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, LaTour has failed to show that his pleas were involuntary. Thus, he has failed to overcome the presumption that he was properly admonished and that his pleas were voluntary. LaTour's guilty pleas waived his ineffective-assistance-of-counsel claim. Beasley v. McCotter, 798 F.2d 116, 118 n. 1 (5th Cir. 1986) (per curiam op. on reh'g), cert. denied, 479 U.S. 1039 (1987); see also Tollet, 411 U.S. at 267 (1973) (stating guilty plea waives all nonjurisdictional defects occurring before entry of plea).
LaTour seems to argue for the first time, in his reply to Cockrell's answer, that appellate counsel was ineffective for dismissing his appeal. (Pet'r Reply Br. at 5.) However, this new or expanded argument will not be considered. Tucker v. Johnson, 242 F.3d 617, 624 (5th Cir.), cert. denied, 533 U.S. 972 (2001); Robinson v. Wade, 686 F.2d 298, 304 (5th Cir. 1982).
However, the unusual nature of this case compels this court to address counsel's actions. "A motion for new trial in a criminal case may only be granted upon timely motion of the defendant." Harris v. State, 958 S.W.2d 292, 293 (Tex.App.-Fort Worth 1997, pet. ref'd). In other words, a Texas trial court may only grant a new trial if the defendant moves for one within 30 days after the trial court imposes the sentence. TEX. R. App. P. 21.4(a). Thus, it was deficient for Malanga to move for a new trial three years after LaTour's 1995 sentence was imposed. Although Malanga asserts that he moved for a new trial in an effort to accede to LaTour's wishes and allow him to remain out of prison, this court cannot hold that counsel can request legally impermissible relief and justify it under the rubric of "trial strategy." (1 State Habeas R. at 46-47.) It was objectively unreasonable for Malanga to move for a new trial when the trial court had no jurisdiction over such a motion. See generally Neal, 286 F.3d at 236-37 (discussing counsel's objectively unreasonable, deficient performance in capital sentencing proceeding); Lockett v. Anderson, 230 F.3d 695, 714-15 (5th Cir. 2000) (holding counsel deficient for failing to present mitigating evidence at sentencing because not an informed decision; thus, could not be considered reasonable trial strategy).
However, LaTour must still show that he was prejudiced by Malanga's error, i.e., that he would not have pleaded guilty and would have insisted on going to trial. At no point does LaTour allege that he would not have pleaded guilty if Malanga had not moved for a new trial in 1998. He only argues that, absent Malanga's error, he would still be on community supervision as it was imposed in 1995. (Pet'r Reply Br. at 2, 4.) However, even if habeas relief were granted regarding the 1998 deferred adjudication orders because they were entered without jurisdiction, the proper relief would be to return the case to the trial court to "proceed as if it had not granted the new trial." Harris, 958 S.W.2d at 293. Thus, LaTour would be returned to the situation of being on community supervision for indecency with a child. Habeas relief is not available for such a situation because it does not involve an illegal or void sentence under Texas law. Williams, 65 S.W.3d at 658. Thus, LaTour cannot show prejudice from counsel's error because there is nothing in the record to show that LaTour would have pleaded guilty in 1998 or that he would have benefitted from doing so;
[C]ounsel's ignorance [of the fact that community supervision was not permissible] — if such it was, and a blissful one, at that — that he was receiving a lesser penalty than the law allowed did him no harm, only good; and the fact that he chose [community supervision] although it was not properly available was the same — he got what he chose, the state stuck to its bargain, and matters worked out exactly as though the [community supervision] that he chose had been authorized. He has suffered no harm, indeed has gotten benefits to which he was not entitled; and he merits no relief.Carter, 826 F.2d at 409; see also Williams, 65 S.W.3d at 658.
5. Summary
This very unusual case raises concerns about the clearly erroneous actions by counsel and the trial court in 1995 and 1998. But under the law applicable to guilty pleas and the standard LaTour must meet as explained in Neal, this court is constrained to hold that LaTour is not entitled to habeas relief. See generally Neal, 286 F.3d at 244-46 (clarifying that habeas courts, in examining whether a state court made an unreasonable determination in concluding relief was not warranted, must accord high deference to the underlying determination and must only look objectively at the ultimate legal conclusion and not whether every angle was considered).
In sum, LaTour is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that LaTour was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
LaTour'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 May 29, 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 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 29, 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, 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.