Opinion
No. 3:03-CV-3014-H.
July 20, 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 Nathaniel Putilla ("Putilla" or "Petitioner") is confined at the Preston E. Smith Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) at Lamesa, Texas. Respondent is the Director of TDCJ-CID. Statement of the Case: Petitioner was charged with aggravated robbery with a deadly weapon, habitual, and entered a plea of not guilty in cause number F-9970465-QP. The jury found him guilty and assessed punishment at ten years in the penitentiary. On January 3, 2000, the court granted Putilla's motion for a new trial. Putilla then plead nolo contendere to the indictment and on May 22, 2000 he was placed on deferred adjudication probation. Putilla did not appeal the deferred adjudication. On May 21, 2001, the State filed a motion to revoke deferred adjudication community supervision and on September 27, 2001 Putilla's deferred adjudication probation was revoked and he was sentenced to twenty years in the penitentiary and a five hundred dollar fine.
Petitioner's conviction was affirmed by the Fifth Court of Appeals after modifying his judgment and sentence by deleting a five hundred dollar fine in Putilla v. State, No. 05-01-1702-CR, 2002 Tex. App. LEXIS 3896 (Tex.App.-Dallas May 31, 2002, pet. ref'd) (not selected for publication). The State filed a petition for discretionary review ("PDR") which was refused on September 11, 2002.
Putilla filed an application for habeas corpus relief pursuant to TEX. CODE CRIM. PROC. art. 11.07. Ex. Parte Putilla, Appl. No. 54,542-01. On January 22, 2003 the Texas Court of Criminal Appeals denied Petitioner's application without written order. See Ex Parte Putilla at cover. Putilla then filed a second art. 11.07 application, which was dismissed on July 16, 2003 pursuant to art. 11.04 § 4. Ex Parte Putilla, Appl. No. 54,542-02.
Putilla filed his petition on December 12, 2003. In response to his petition and this court's show cause order Respondent filed an answer together with copies of Petitioner's prior state proceedings on April 2, 2004. Petitioner filed a response to the answer on May 3, 2004.
Findings and Conclusions:
In his first ground for relief Petitioner claims that his counsel induced him to admit the violations alleged in the State's motion to revoke his term of deferred adjudication probation by allegedly representing that he would serve nine months "SP." In addition he makes numerous claims that his attorney failed to properly investigate the basis on which the State's motion to revoke was predicated.
Contemporaneously with his petition Petitioner filed a memorandum brief purporting to elaborate on his claims for relief. Respondent in turn delineated five grounds for relief. The magistrate judge will address the claims which Petitioner presented, i.e. grounds 1 and 2.
As noted above Putilla filed two art. 11.07 applications. In his first application, No. 54,542-01, the only factual allegation in support of his first ground was his claim that counsel represented that if he plead "true" to the grounds for revocation he would get "S.A.F.P."
It is unclear to what the acronyms "S.F." and "S.A.F.P." refer.
In his second art. 11.07 application, Putilla again raised claims that the attorney representing him at the revocation hearing was ineffective. Specifically, in Ground Number Two he claimed that his attorney failed to properly investigate the grounds on which the State sought revocation. See No. 54,542-02 at 7. In response to his second application the Court of Criminal Appeals dismissed the same pursuant to § 4 of art. 11.07 — abuse of the writ.
A state prisoner seeking federal habeas corpus relief is required to exhaust available state remedies. Indeed, a federal court cannot grant relief on an unexhausted claim. See 28 U.S.C. § 2254(b)(1)(A). In order to exhaust state remedies a petitioner must have fairly presented the substance of his claims to the state courts. Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512-13 (1971). The exhaustion requirement is not satisfied if the prisoner presents new legal theories orfactual claims in his federal petition. Anderson v. Harless, 459 U.S. 4, 6-7, 103 S.Ct. 276, 277-78 (1982).
It is abundantly clear that counsel's alleged failure to investigate was not presented in Putilla's first art. 11.07 application. The omissions attributed to the attorney occurred prior to the date on which his probation was revoked. Although it was raised in his second application, the Court of Criminal Appeals dismissed the application as a successive application. The action of the Court of Criminal Appeals constitutes a procedural bar to consideration of this portion of Petitioner's ineffective assistance of counsel claim brought against his attorney at the revocation hearing. See, e.g., Smith v. Johnson, 216 F.3d 521 (5th Cir. 2000).
With respect to that portion of Petitioner's first ground which is exhausted, this court cannot grant relief unless the State court's denial of relief satisfies either subpart (1) or (2) of § 2254(d).
A review of the state court records reflected no plea agreement was entered with respect to the matter of revocation and that Petitioner was advised both in writing and in open court with respect to his rights and admonishments. See No. F99-70465-PQ, Record at 128-129; Reporter's Record v. 1, Revocation Hearing on September 27, 2001 at 7-14. He specifically denied under oath that any promises of threats had been made to induce him to plead "true" to those allegations in the motion to revoke to which he plead true. Id. at 13. In his initial application he failed to present any evidence other than his own statement that his counsel pressured or induced him to plead "true" in order to get nine months "S.P." Accordingly, he cannot satisfy either subpart of § 2254(d).
In his second ground for relief, he claims that his "guilty pleas" at the revocation hearing were involuntary. Although he raised such issues in his second art. 11.07 application, No. 54,542-02 at 9-10, for the reasons set out above, merits review of these allegations is procedurally barred.
As reflected in the record the formal response made by a Texas state criminal defendant to the charges in a petition to revoke probation is "true" or "not true."
Petitioner's memorandum also addresses the second ground. See footnote 1, supra. His memorandum with respect to this ground appears to attack the voluntariness of his nolo contendere plea made on May 22, 2001. See No. F99-70465-PQ, Record at 110-118; Reporter's Record, v. 7, Statement of Facts, May 22, 2001. A review of his initial art. 11.07 application is wholly silent as to any issues regarding his previously entered plea of nolo contendere.
Essentially Petitioner's second ground is a variation of his first ground. The transcript of proceedings on September 27, 2001, supra, shows that his pleas of "true" were knowingly and understandingly entered.
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 on the merits.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.