McMerchant v. Dretke

Full title: JAMES McMERCHANT III, Petitioner, v. DOUGLAS DRETKE, DIRECTOR, TEXAS…

Court: United States District Court, N.D. Texas, Fort Worth Division

Date published: Oct 19, 2004

Civil Action No. 4:04-CV-177-Y (N.D. Tex. Oct. 19, 2004)

Opinion

Civil Action No. 4:04-CV-177-Y.

October 19, 2004

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER

CHARLES BLEIL, Magistrate Judge

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 James McMerchant III, TDCJ # 1199025, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is currently housed at the Tulia Unit in Tulia, Texas.

Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.

C. FACTUAL AND PROCEDURAL HISTORY

In April 2003, McMerchant was charged by indictment in state court with aggravated assault with a deadly weapon. (State Habeas R. at 38.) On October 28, 2003, McMerchant waived his right to a jury trial, entered a negotiated plea of guilty to the charged offense, and, in accordance with the plea bargain agreement, was sentenced by the trial court to six years' confinement. ( Id. at 39-45.) McMerchant did not appeal his conviction and sentence. (Petition at 3.) He did, however, file a state application for writ of habeas corpus raising the claims presented herein, which the Texas Court of Criminal Appeals denied without written order on the findings of the state trial court. Ex parte McMerchant, Application No. 59,094-1, at cover. McMerchant filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on March 8, 2004.¹

D. ISSUES

In three grounds, McMerchant contends that he received ineffective assistance of trial counsel and that the trial judge improperly admonished him regarding the plea and assisted in the plea bargaining. (Petition at 7-8.)

E. RULE 5 STATEMENT

Dretke believes that McMerchant 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

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 (5^th Cir. 2000). 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. This presumption of correctness applies to both explicit findings of fact and those findings of fact implicit in the state court's mixed law and fact conclusions. Valdez v. Cockrell, 274, F.3d 941, 948 n. 11 (5^th Cir. 2001), cert. denied, 537 U.S. 883 (2002). The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Typically, when the Texas Court of Criminal Appeals 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. Neal v. Puckett, 286 F.3d 230, 235 (5^th Cir. 2002), cert. denied, 537 U.S. 1104 (2003); Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).

2. Application

In his first ground, McMerchant contends he received ineffective assistance of trial counsel because counsel failed to conduct an independent investigation into the facts of the case so as to develop a defensive theory and because counsel "placed" fears in him that he would receive a lengthy sentence by an all-white jury if he went to trial. (Petition at 7 Attachments;² State Habeas R. at 10-13.)

2 McMerchant's "Attachments" are not enumerated or otherwise designated for purposes of referencing the documents herein.

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 in the context of a guilty plea, a defendant must demonstrate that his plea was rendered involuntary by showing 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, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 56-59 (1985); Smith v. Estelle, 711 F.2d 677, 682 (5^th Cir. 1983); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). McMerchant asserts that but for counsel's actions he would have insisted on going to trial. Thus, we must determine only whether counsel's representation fell below an objective standard of reasonableness in his case.

In evaluating an ineffective assistance claim, a court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689. Strategic choices made by counsel after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable. Id. at 690.

The state trial court held a hearing by affidavit on McMerchant's ineffective assistance claims. (State Habeas R. at 25-28.) Trial counsel testified, verbatim, in his affidavit as follows:

Applicant, James McMerchant III was indicted with Assault Bodily Injury-Family Member with Prior, thereby elevating the punishment to a Third Degree Felony. Additionally, applicant was indicted for Aggravated Assault with a Deadly Weapon.

The initial plea offer on the Aggravated Assault with a Deadly Weapon was 18 years in the Institutional Division of the Texas Department of Criminal Justice.

From my investigation it was learned that applicant pulled a small semi-automatic handgun and fired it at Christopher Manning, missing him and passing through the right rear passenger window of his vehicle. Applicant chased Marvin Manning and his brother Christopher Manning firing shots at both.

A witness standing in the door of the store saw applicant point the gun and fire the shots. An additional witness was standing at the pay phone in front of the store and observed the entire incident. This second witness at the pay phone confirmed the story of the two victims.

Applicant claimed to be the victim and the two victims were the aggressors. However, both victims were running from applicant while applicant was firing at them. Even if applicant had acted in self-defense initially, it would appear that the defense was lost after the victims fled and applicant was no long[er] in fear of serious bodily injury or death.

In exchange for applicant's plea of guilty, the State agreed to dismiss the Assault-Bodily Injury-Prior and count 2 of the Aggravated Assault-Deadly Weapon. Instead of the 18 years originally offered, applicant was allowed to plead to 6 years. According to the facts and circumstances of this case, I believe this to be in his best interest.

I did not force applicant to plead guilty but only advised him of the evidence against him and the possible results from a trial.

Prior to applicant hiring me to represent him, applicant had taken a polygraph examination on October 28, 2002 and failed the test. A copy of the witness statements and the results of the polygraph examination are attached hereto as Exhibits.

Under the circumstances and the potential for a 20 year sentence and a 10 year sentence running consecutively, it is the opinion of this attorney that applicant received a very fair deal.

Applicant was advised of his right to a jury trial and that the burden of proof was on the State to proof [sic] every element of the allegations contained in the indictment beyond a reasonable doubt. Affiant states that he was ready and willing to try this case to a jury at the request of the applicant. Applicant voluntarily entered a plea of guilty. (State Habeas R. at 26-28.)

In light of counsel's testimony and the documentary evidence in the state record, the trial court entered findings of fact refuting McMerchant's allegations of ineffective assistance. ( Id. at 29-32, 37.) Specifically, the trial court determined that counsel investigated the underlying facts and law of the case, that counsel's investigation was sufficient preparation, that counsel advised McMerchant of the possible results from trial, which included a possible lengthy sentence, and that counsel's advice regarding the possible outcomes of the case was reasonable. ( Id. at 30-31.) In turn, the Texas Court of Criminal Appeals denied relief without written order on the findings of the trial court. Ex parte McMerchant, No. 58,094-01, at cover. In his federal petition, McMerchant makes no reference to the state court findings and makes no effort to rebut the presumptive correctness of the findings. See 28 U.S.C. § 2254(d)(1); Bell v. Cone, 535 U.S. 685, 698-99 (2002); Haynes v. Cain, 298 F.3d 375, 379-82 (5^th Cir.), cert. denied, 537 U.S. 1072 (2002). Nor does an independent review of the state court records reveal clear and convincing evidence that would rebut the presumption of correctness.

As to his first claim, 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 (5^th Cir. 1983); Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5^th Cir. 1981). Thus, to the extent McMerchant complains of his trial counsel's alleged inadequate investigation and preparation, matters unrelated to the voluntariness of his plea, these claims are nonjurisdictional and are waived by the plea. See United States v. Broce, 488 U.S. 563, 573-74 (1989).

As to his second claim, a guilty plea must be a voluntary, knowing, and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences surrounding the plea. Brady v. United States, 397 U.S. 742, 748 (1970). 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 (5^th 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 (5^th Cir. 1979). He must show such a strong degree of misunderstanding, duress, or misrepresentation by the court, prosecutor, or his own counsel that his plea would become a constitutionally inadequate basis for imprisonment. Id. (citing Blackledge v. Allison, 431 U.S. 63, 75 (1977)).

Here, the record of the plea proceedings does not support McMerchant's assertion that his plea was rendered involuntary as a result of coercion or threats on the part of counsel or others of a lengthy sentence by an all-white jury. Although there is no reporter's record of the plea proceeding, the documentary record reflects that McMerchant entered his guilty plea in open court and was advised by counsel and the trial court of his rights, waivers, and the full range of punishment for the offense. (State Habeas R. at 39-43.) McMerchant executed the written plea admonishments in which he acknowledged that he was aware of the consequences of his plea, that his plea was made knowingly, freely, and voluntarily, that no one threatened, coerced, forced, persuaded or promised him anything in exchange for his plea, that he was "totally satisfied" with the representation received from counsel, and that counsel provided "fully effective and competent representation." ( Id. at 41.) See Blackledge, 431 U.S. at 74; Kelley v. Alabama, 636 F.2d 1082, 1084 (5^th Cir. 1981). Such representations by a defendant during plea proceedings "carry a strong presumption of verity." Blackledge, 431 U.S. at 74. McMerchant's claim of coercion, after the fact, supported only by his mother's written statement, is insufficient to rebut the presumption that he received effective assistance of counsel and the presumption of regularity of the state court records. See Webster v. Estelle, 505 F.2d 926, 929-30 (5^th Cir. 1974) (holding state court records "are entitled to a presumption of regularity"); Babb v. Johnson, 61 F. Supp. 2d 604, 607 (S.D. Tex. 1999) (same). Counsel's obligation is to inform a criminal defendant of the advantages and disadvantages of a plea agreement and the attendant statutory and constitutional rights that a guilty plea would forgo. Libretti v. United States, 516 U.S. 29, 50-51 (1995). Often a criminal defendant, even if he is unwilling or unable to admit his guilt, will agree to plead guilty to an offense, having been so informed by counsel, in order to avoid a potentially longer sentence by a jury. Such a decision on the part of a defendant does not render counsel's representation deficient or a plea involuntary. See North Carolina v. Alford, 400 U.S. 25, 37 (1970); Brady v. United States, 397 U.S. 742, 749-50 (1970).

In his second and third grounds, McMerchant contends the trial court failed to determine the voluntariness of his plea and improperly assisted in the plea bargaining process. (Petition at 8.) He alleges the trial court "played a role in placing fears" in him by telling him that he could receive a life sentence and that he could not get probation. ( Id. Attachments.) The record belies McMerchant's first contention. The plea bargain document reflects that the trial court admonished McMerchant in writing, as set out in paragraphs 1 through 15 of the document, before entering his plea, and made a determination that Merchant's plea was intelligently, freely, and voluntarily entered. (State Habeas R. at 43.) See Boykin v. Alabama, 395 U.S. 238, 243 (1969); TEX. CODE CRIM. PROC. ANN. art. 26.13 (Vernon Supp. 2004). Moreover, under state law, McMerchant was subject to a lengthy sentence and, apparently, ineligible for community supervision for the offense as charged. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3(g)(a)(2). Thus, the trial court was merely stating a fact and correctly represented state law to McMerchant. See id. art. 26.13.

In sum, the record supports the state courts' determination of the issues presented in this federal proceeding. The state courts' determination is not contrary to or involve an unreasonable application of federal law in light of the record as a whole and is entitled to deference and the presumption of correctness.

II. RECOMMENDATION

McMerchant'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 9, 2004. 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 (5^th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5^th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until November 9, 2004, 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.