Opinion
No. 3:02-CV-0733-P.
June 11, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
Parties
Petitioner is an inmate in the custody of the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Procedural History
Petitioner challenges Respondent's custody of him pursuant to a state court judgment based upon a conviction for aggravated robbery. State v. Mitchell, No. F-9615692-SP (203rd Dist. Ct., Dallas County, Tex. Jan. 30, 1997). Petitioner was charged with the felony offense of aggravated robbery with a deadly weapon. On January 30, 1997, Petitioner was admonished in writing of the complete range of punishment for the first degree felony of aggravated robbery. He signed written waivers, a judicial confession, the court's admonition of statutory and constitutional rights, and an acknowledgment. Ex parte Mitchell, No. 50,045-01, at 27-31 (Tex.Crim.App. Sept. 19, 2001). Petitioner agreed to the terms of the proposed plea bargain wherein the State's recommended punishment was ten years probation and a $500.00 fine. Id. He pled guilty to the charge, and the trial court placed Petitioner on probation for ten years and assessed a $500.00 fine. Petitioner did not appeal or otherwise challenge the conviction based upon the guilty plea or the sentence. Eight months later, the State moved to revoke Petitioner's probation after he shot and injured an elementary school principal with a pistol during the theft of the principal's wallet. After an October 24, 1997 hearing on the State's motion to proceed with the adjudication of guilt, the court found Petitioner guilty, revoked his probation, and sentenced him to life in the custody of TDCJ-CID.
On December 3, 1998, Petitioner's conviction was affirmed on appeal. Mitchell v. State, No. 08-97-00615-CR (Tex.App.-El Paso Dec. 3, 1998). His petition for discretionary review was denied by the Texas Court of Criminal Appeals on April 14, 1999. Mitchell v. State, PDR No. 403-99.
On September 22, 1999, Petitioner filed a state application for writ of habeas corpus. Ex parte Mitchell, No. 50, 045-01. The Texas Court of Criminal Appeals denied the application without written order on September 19, 2001. Id., at Cover. Mitchell filed his petition for writ of habeas corpus in this Court on March 27, 2002.
Exhaustion of State Court Remedies
Respondent does not move for dismissal for failure to exhaust available state court remedies.
Issues
Petitioner raises the following issues:
1. The deferred adjudication order of January 30, 1997 and the judgment adjudicating guilt on October 24, 1997 were void because the trial court failed to adopt the actions of the magistrate as required by State law, under TEX. GOV'T CODE ANN. § 54.312;
2. He received ineffective assistance of counsel at trial and on appeal;
3. The adjudication of guilt was void; and
4. The guilty plea was not voluntarily entered where the magistrate judge did not verbally admonish Petitioner as to the range of punishment as well as admonish Petitioner verbally that the plea of guilty may result in deportation or denial of citizenship.
Procedural Issue
Respondent asserts that Petitioner's claims challenging his guilty plea are barred by the statute of limitations in 28 U.S.C. § 2244(d)(1). The premise for such argument lies in Respondent's position that the applicable state judgment became final thirty days after the trial court entered its order of deferred adjudication, when Petitioner failed to appeal from that order. Relying upon Rubio v. State, 843 S.W.2d 184, 185-186 (Tex.App.-Fort Worth, Nov. 12, 1992), Respondent asserts that a defendant may request an adjudication of guilt within thirty days; then, after the adjudication of guilt, the defendant's normal appellate remedies were available to him. Id. Second, there is a right to appeal even without an adjudication of guilt. Id. Thus, Respondent claims Petitioner's chance to appeal issues relating to the original plea proceeding expired thirty days after the trial court imposed the deferred adjudication probation.Statute of Limitations
Section 2244(d)(1) of Title 28 of the United States Code provides that "[a] 1-year period of limitation shall apply to an application for writ of habeas corpus by a person in custody pursuant to a judgment of a State court." It further states that "[the limitation period shall run from the latest" of four specific dates, including "the date on which the judgment became final" mentioned in subparagraph (A). Id. Respondent urges the Court to find Petitioner's claims untimely by finding that the date Petitioner's judgment became final was January 30, 1997, when the trial court placed Petitioner on deferred adjudication probation.The Court rejects Respondent's theory of untimeliness. On previous occasions, the courts in this district have rejected Respondent's theory. See Curter v. Cockerel, No. 3:01-CV-841-D (N.D.Tex. June 26, 2002) (adopting a recommendation by United States Magistrate Judge Paul D. Stickney that rejects the same theory); Crenshaw v. Cockrell, No. 4:01-CV-405-Y, 2002 WL 356513, at *1, 4-5 (N.D.Tex. Mar. 5, 2002) (adopting a recommendation that rejects the same theory); Davis v. Cockrell, No. 3:01-CV-1946-D, 2002 WL 226367, at *1-2 (N.D.Tex. Feb. 12, 2002) (adopting a recommendation that rejects the same theory); Jordan v. Cockrell, No. 3:01-CV-1162-G, 2001 WL 1388015, at *1-2 (N.D.Tex. Nov. 6, 2001) (adopting a recommendation that rejects the same theory); Estrada v. Johnson, No. 3:01-CV-0371-P, 2001 WL 1825827, at *1-2 (N.D.Tex. July 26, 2001) (same).
Under the facts of this case the theory does not withstand close scrutiny. On January 30, 1997, the trial court entered a "Deferred Adjudication Order." This order does not constitute a judgment under Texas law. See TEX. CODE CRIM. PROC. ANN. art 42.01, § 1. Under section 1 of Article 42.01, "[a] judgment is the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant." In this case, the order of deferred adjudication shows neither a conviction nor an acquittal. Tr. at 16-18. The order also lacks other typical indicia of a Texas judgment. See TEX. CODE CRIM. PROC. ANN. art 42.01, § 1 (indicating that a judgment should reflect among other things: a section addressing the proper punishment; the term of sentence; the date judgment was entered; the date sentence was imposed; the date sentence was to commence; and the credit for time served). The Deferred Adjudication Order contains none of these enumerated items. The "Judgment Adjudicating Guilt", on the other hand, contains all of these items and specifically states "DATE OF JUDGMENT: 10/24/97." Id. at 26-28. Without a state judgment, § 2244(d)(1) simply has no applicability. Additionally, Petitioner appealed his underlying plea after the trial court revoked his probation, raising the same issues he raises here. See Mitchell v. State, No. 08-97-00615-CR (Tex.App.-El Paso Dec. 3, 1998); Ex Parte Mitchell, at 32.
The Court notes recent Texas authority that the original plea proceeding is the final stage for raising complaints on appeal relating to that proceeding. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999) (analyzing TEX. CODE CRIM. PROC. ANN. art. 44.01(j) to hold that "a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed"). Nevertheless, the state appellate court considered Petitioner's appeal before the Manuel decision from the Texas Court of Criminal Appeals. The state appellate court considered the same issues Petitioner raises here. Neither TEX. CODE CRIM. PROC. art. 42.12, § 5(b) nor Manuel convince the Court that the order of deferred adjudication entered in this case is a judgment within the meaning of Texas law or 28 U.S.C. § 2244(d). Neither § 5(b) nor the case discuss whether an order of deferred adjudication is an appealable judgment or simply an appealable order. Under Texas law, a defendant who has not filed a timely motion for new trial must file a notice of appeal "within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order." TEX. R. APP. P. 26.2(a)(1) (emphasis added). From the previous discussion of TEX. CODE CRIM. PROC. ANN. art 42.01, § 1, it appears necessary to consider the order of deferred adjudication as simply "an appealable order." Rule 26.2(a)(1) is not limited to appealing state-court criminal judgments. The fact that a petitioner has a right to appeal the imposition of deferred adjudication when it is imposed does not make the order of deferred adjudication a final judgment that commences the federal statute of limitations.
Only one state judgment relevant to the petition before the Court has been entered in this case — the one entered by the trial court on October 24, 1997. This judgment is thus the one whose finality commences the limitations period under § 2244(d)(1)(A) in this case. Petitioner's federal petition is timely when measured against one year of that judgment becoming final. Contrary to Respondent's position, neither federal nor Texas law supports finding the imposition of deferred adjudication probation as a final judgment for purposes of the federal statute of limitations. The Court thus proceeds to the merits of petitioner's claims.
Standard of Review
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The pertinent terms of the AEDPA provide:
(d) An application for 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 the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding.28 U.S.C.A. § 2254(d). The AEDPA applies to all federal habeas corpus petitions that were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).
Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus 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 from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412 (2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 412. Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. A claim of ineffective assistance of counsel is a mixed question of law and fact that courts review under the "contrary to" and "unreasonable application" prongs of 28 U.S.C. § 2254(d). Valdez v. Cockerel, 274 F.3d 941, 946 (2001).
Discussion
Once a plea of guilty has been entered, all non-jurisdictional challenges to a conviction's constitutionality are waived. U.S. v. Davilla, 698 F.2d 715 (5th Cir. 1983). See Kelley v. State of Ala., 636 F.2d 1082, 1083-84 (5th Cir. 1981). Only an attack on the voluntary and knowing nature of the plea can be sustained. Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir. 1981). To show that defense counsel's performance was constitutionally ineffective assistance, a complainant must meet the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). The petitioner must show that (1) the errors were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) the result of the proceeding would have been different but for counsel's errors. Id. at 694. In the context of a guilty plea, the second prong requires that the defendant show a reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). Ineffectiveness of counsel is a mixed question of law and fact. Id. at 698; Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir.). An attorney's duty to a defendant who wants to enter a guilty plea is to make certain that the plea is voluntarily and knowingly made. U.S. v. Diaz, 733 F.2d 371, 375 (5th Cir. 1984).
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. Diaz, 733 F.2d at 373; U.S. v. Nuckols, 606 F.2d 566, 569 (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. Diaz, 733 F.2d at 373 (citing Blackledge v. Allison, 431 U.S. 63, 75 (1977)).
Before the 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." Boykin v. Alabama, 395 U.S. 238, 244 (1969). 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). 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. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983).
Petitioner claims that because the trial court did not acknowledge in writing that it was adopting the magistrate judge's findings with respect to the guilty plea, his convictions are void. This is a matter of state law and does not raise a constitutional issue. Moreover, when Petitioner raised this issue on appeal, the state appellate court noted that under Texas law, a magistrate's actions are deemed to be adopted by the trial court if the trial court does not alter them. TEX. GOVT. CODE § 54.312(b). See Davis v. State, 956 S.W.2d 555, 560 n. 4 (Tex.Crim.App. 1997). Thus Petitioner's claim is without merit.
Petitioner claims his plea was involuntary because the magistrate judge failed to verbally admonish him (a) on the range of punishment in accordance with TEX. CODE CRIM PROC. § 26.13(a)(1); and (b) that a plea of guilty may result in deportation or the denial of citizenship.
Failure to comply with the requirements of a Texas criminal procedure statute does not, of itself, raise a federal constitutional question cognizable in a federal habeas corpus proceeding. Similarly, the trial court was not required to admonish Petitioner about the possibility of deportation. United States v. Osiemi, 980 F.2d 344, 349 (5th Cir. 1993).
On January 30, 1997, Petitioner was admonished in writing of the complete range of punishment for the first degree felony of aggravated robbery. He signed written waivers, a judicial confession, the court's admonition of statutory and constitutional rights, and an acknowledgment. Ex parte Mitchell, at 27-31. Additionally, Petitioner was admonished in writing about the possibility of deportation. Ex parte Mitchell, at 28, 31. At the hearing on the guilty plea, the magistrate judge asked Petitioner if he was able to read the English language and whether he had read and had his lawyer explain to him all of the papers that he signed in the case, including the Court's written admonition of statutory and constitutional rights. (Record, Vol. I at 4-5.) Petitioner answered, "Yes, sir." ( Id. at 5.) The magistrate judge determined that Petitioner knew that he had a right to have a jury trial and that he was giving up that right. ( Id.) He determined that Petitioner was entering his guilty plea freely and voluntarily. ( Id at 6-7.) Then Petitioner's counsel questioned him. ( Id.) Petitioner agreed with his counsel that they had spent a lot of time talking about the case, reviewing the police report and going over the indictment. ( Id). Petitioner responded that he was comfortable that he knew what his options were and was satisfied he was making the right choice. ( Id.) In open court Petitioner confessed that he committed the offense as it was stated in the indictment. ( Id. at 8.) He also stated he understood the judicial confession, went over it with his lawyer, and signed it because what it states is true and correct. ( Id. at 9.) Petitioner agreed to the terms of the proposed plea bargain wherein the State's recommended punishment was probation for ten years and a $500.00 fine. He pled guilty to the charge, and the trial court placed Petitioner on probation for ten years and assessed a $500.00 fine. The Court has examined the record and concludes that Petitioner has failed to prove that his guilty plea was involuntary and unintelligent.
Petitioner claims his attorney did not prepare for trial, investigate the case, file any pre-trial motions or engage in discover. However, these claims of ineffective assistance were waived by his knowing and voluntary guilty plea. Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). Petitioner presents no evidence of what an investigation would have revealed or what kind of motions should have been filed. Under Strickland, a petitioner must affirmatively prove prejudice to prevail on a claim of ineffective assistance for counsel's failure to investigate. Wilkerson v. Collins, 950 F.2d 1054, 1056 (5th Cir. 1992). Further, Counsel is not required to make meritless motions. Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990). Petitioner has failed to prove that his trial counsel provided ineffective assistance. Additionally, Petitioner's allegations of ineffective assistance of counsel on appeal are entirely conclusory and without merit. Petitioner has failed to satisfy the requirements of Strickland to prove that counsel provided ineffective assistance.
On habeas corpus review, the state court concurred with the state appellate court's opinion that the trial court fully complied with state law by providing all of the required admonitions in writing and by obtaining a statement signed by Petitioner and his attorney that Petitioner understood the admonitions and the consequences of his plea. Ex parte Mitchell, at 22-23. The trial court found that trial counsel spoke with Petitioner and his family and fully prepared for trial. Id. It further found that counsel is a highly competent and capable attorney who obviously prepared this case and negotiated a favorable plea bargain agreement. Id. It also found that Petitioner did not establish that a viable defense to the charge existed or that counsel was ineffective in failing to discover that defense. Id. It found the ineffective assistance allegation to be without merit. Id. The Texas Court of Criminal Appeals denied Petitioner's habeas corpus application. The state court's decision to deny Petitioner a writ of habeas corpus was not contrary to, and it did not involve an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States. Further, the decision was not based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.
RECOMMENDATION
Petitioner has failed to make a substantial showing of the denial of a federal constitutional right. The petition for habeas corpus relief should be denied.