Opinion
Civil Action No. 4:02-CV-0889-A
January 9, 2003
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 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 Taylor Onie Ray, Jr., TDCJ-ID #1048185, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Wynne Unit in Huntsville, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
In state court, Ray was charged by indictment with possession of a prohibited weapon and escape by use of a deadly weapon. (State Habeas R. at 19-20; Resp't Answer at Exs. A B.) See TEX. PENAL CODE ANN. §§ 38.06, 46.05 (Vernon Supp. 2002 1994, respectively). On June 27, 2001, pursuant to a negotiated plea agreement, Ray entered a plea of guilty to each offense and the trial court assessed his punishment at ten years' and eighteen years' confinement, respectively. (State Habeas R. at 21-22; Resp't Answer at Exs. A C.) Ray did not appeal his convictions. He did, however, file a post-conviction state application for writ of habeas corpus raising the claims presented. Ex parte Ray, No. 52,276-02. The state trial court denied relief on the writ, and, in turn, the Texas Court of Criminal Appeals denied relief without written order. (State Habeas R. at cover, 16.) Thereafter, Ray 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 October 25, 2002. 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).
By way of the instant petition, Ray challenges his conviction for escape (state trial court No. 8343). He challenges his conviction for possession of a prohibited weapon (state trial court No. 8342) in a nearly identical federal petition filed in Civil Action No. 4:02-CV-0882-A.
D. ISSUES
Ray raises the following issues in three grounds for relief:
1. He was denied effective assistance of counsel;
2. He was denied his right to appeal;
3. His plea was unlawfully induced and was not made voluntarily and knowingly. (Pet. at 7-8.)
E. RULE 5 STATEMENT
Cockrell believes that the claims presented were exhausted in Ray's state writ application and thus does not move for dismissal on exhaustion grounds. (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 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). 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.
Further, 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. The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 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. Involuntariness of Guilty Plea
In his third ground, Ray alleges that his guilty plea to the escape charge was unlawfully induced and rendered involuntary and unknowing as a result of "mental coercion" and threats of a life sentence on the part of his trial counsel. (Pet. at 7.) 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). Thus, before a trial court may accept a guilty plea, the court must ensure that the defendant is advised of the consequences of his plea and the various constitutional rights that he is waiving by entering such a plea. Boykin v. Alabama, 395 U.S. 238, 243 (1969). 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 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)).
The record in this case does not demonstrate that Ray's guilty plea was in any way induced by misunderstanding, coercion, or misrepresentation on the part of his trial counsel or others. Rather, the record reflects that Ray entered his guilty plea in open court knowingly and voluntarily and was advised by counsel and the trial court of the consequences of his plea. (Resp't Answer at Ex. C.) Further, Ray executed the written plea admonishments in which he acknowledged that he was aware of the consequences of his plea, that his plea was "freely and voluntarily entered," that he was "totally satisfied" with the representation received from counsel, and that counsel was "completely competent in every respect of representation." ( Id.) See Blackledge, 431 U.S. at 74; Kelley v. Alabama, 636 F.2d 1082, 1084 (5th Cir. 1981). Further, Ray judicially confessed to committing the offense as charged in the indictment. ( Id.) Such representations by a defendant during plea proceedings "carry a strong presumption of verity." Blackledge, 431 U.S. at 74.
Without substantiation 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). Accordingly, a habeas petitioner's self-serving assertion, after the fact, that he was persuaded, coerced, or threatened into entering a guilty plea by counsel is, in and of itself, insufficient. See Siao-Pao v. Keane, 878 F. Supp. 468, 472 (S.D.N.Y. 1995); see also, e.g., Panuccio v. Kelly, 927 F.2d 106, 109 (2nd Cir. 1991) (pointing out a defendant's testimony after the fact suffers from obvious credibility problems). Ray has offered nothing more than his unsubstantiated allegations concerning counsel's representation and counsel's influence on his decision to plead guilty, which are insufficient to rebut the presumption of regularity of the state court records and the correctness of the state courts' determination of the issue. See Babb v. Johnson, 61 F. Supp.2d 604, 607 (S.D. Tex. 1999); see also Hill, 210 F.3d at 485; Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994), cert. denied, 514 U.S. 1071 (1995). Thus, Ray has failed to overcome the presumption that his plea was voluntary.
3. Ineffective Assistance of Counsel
Ray also alleges, in his first ground, that he received ineffective assistance of counsel because his trial counsel (1) failed to conduct a sound and proper investigation; (2) failed to hire a detective or present forensic DNA evidence or a motion supporting such evidence; and (3) failed to subpoena witnesses to testify on his behalf. (Pet. at 7.)
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 (5th Cir. 1983), cert. denied, 466 U.S. 906 (1984); Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir. 1981), cert. denied, 456 U.S. 992 (1982). Accordingly, to the extent Ray complains of his trial counsel's alleged inadequate investigation, preparation, or representation, matters unrelated to the voluntariness of his plea, these claims are nonjurisdictional and are waived by the plea.
Further, as discussed above, Ray failed to show that his guilty plea was involuntary. 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, 711 F.2d at 682. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 688 (1984).
An independent review of the record in the instant case does not reveal clear and convincing evidence that would rebut the presumption of correctness of the state courts' adjudication of Ray's ineffective assistance claims. (State Habeas R. at cover, 16.) Rather, Ray executed the written plea admonishments, in which he acknowledged that trial counsel provided fully effective and competent representation and that he was "totally satisfied" with counsel's representation. ( Id. at 101.) See Blackledge, 431 U.S. at 74; Kelley, 636 F.2d at 1084.
As previously stated, without substantiation 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, 694 F.2d at 1011-12. The record belies Ray's complaint of substandard performance by his trial attorney, and he has neither alleged nor demonstrated prejudice sufficient to undermine the voluntary nature of his guilty plea. He has offered nothing more than his unsubstantiated allegations concerning counsel's deficient representation. (Pet. at 7.) This is insufficient to rebut the presumption of regularity of the state court records and the correctness of the state courts' determination of the issue. Babb, 61 F. Supp.2d at 607; see also Hill, 210 F.3d at 485; Armstead, 37 F.3d at 210. Thus, Ray has failed to overcome the presumption that he received effective assistance of counsel.
4. Right to Appeal
In Ray's second ground, he complains that he was denied his right to appeal and that counsel failed to inform him of his right to file a motion for new trial or out-of-time appeal. (Pet. at 7.) As pointed out by Cockrell, however, under the terms of the plea agreement, Ray expressly waived the time provided for filing a motion for new trial as well as his right to appeal. (Resp't Answer at Ex. C.) In the written plea admonishments, Ray acknowledged that he understood his right to appeal and that, if indigent, counsel would be appointed at no cost to represent him. ( Id.) Nevertheless, he "freely, voluntarily, and intelligently" agreed to waive and abandon the right to appeal. ( Id.)
Where, as here, there is no evidence of unfairness in securing the plea agreement, an express waiver of these rights is valid and enforceable. See Blanco v. Texas, 18 S.W.3d 218, 220 (Tex.Crim.App. 2000). Thus, Ray cannot establish prejudice arising from counsel's failure to inform him of the rights if he had none. See White v. Johnson, 180 F.3d 648, 653 (5th Cir. 1999).
5. Summary
In sum, Ray is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. The state courts' determination that Ray 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
Ray'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 January 31, 2003. 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, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until January 31, 2003, 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.