Opinion
3-00-CV-2268-M.
September 17, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 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 United States Magistrate Judge. The findings, conclusions and recommendation 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 brought by a state inmate pursuant to 28 U.S.C. § 2254.
Statement of the Case. Sumlin is currently confined following his conviction in Cause No. F-93-59484-KM. He initially was placed on community supervision for a period of 8 years on November 11, 1994. After the state filed a motion to revoke and to proceed with adjudication of guilt he was sentenced to a term of 10 years on September 8, 1997. The procedural history with respect to his conviction is set out in the magistrate judge's prior recommendation filed in this action on March 6, 2001, and is not repeated herein. The record further reflects that the District Court adopted the magistrate judge's recommendation and entered its order denying Respondent's motion to dismiss upon the Respondent's claim that Sumlin's petition was barred by limitations. On August 8, 2001, Respondent filed her answer addressing the merits of Petitioner's claims.
Findings and Conclusions: In Respondent's answer she again reiterates her argument that the petition is barred by limitations, albeit in a much more expanded and fully briefed argument than that contained in the objections filed to the magistrate judge's former recommendation, filed on March 19, 2001. The magistrate judge will not revisit this issue, but addresses the merits of Sumlin's grounds for relief.
Respondent states that the limitations issue previously considered by the court in this case is currently pending review by the Fifth Circuit in Van Duren v. Johnson, 5th Cir. Docket No. 00-20899.
As his first ground for relief Petitioner claims that he was denied the effective assistance of counsel by his trial attorney alleging that his attorney permitted him to plead nolo contendere which was not voluntarily and knowingly made. As the record from proceedings in Cause No. F-93-59484-KM reflects, Petitioner entered an "open plea" of nolo contendere to the offense charged. At the time he entered his plea he also executed a judicial confession admitting that he was guilty of the offense alleged in the indictment. See No. 05-97-1623-CR [F-93-59484-KM] Record, Vol. 1 at pages 009-10; 12. Under Texas state law a plea of nolo contendere has the same legal effect as a guilty plea. Texas Code Criminal Procedure Art. 27.02(5). In order to establish an ineffective assistance of counsel claim pursuant to the requirements set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984) in the context of a guilty plea a petitioner must allege and prove that "but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370 (1985). Sumlin has neither alleged nor proven this prerequisite to relief under the Sixth Amendment. In fact, it is quite clear that his attorney performed more than adequately, given that he was able to obtain a probated sentence on behalf of Sumlin. This ground is patently frivolous.
In his second ground Petitioner claims that the court failed to properly admonish him on the range of punishment which he faced upon his entry of a nolo contendere plea. This ground is conclusively refuted by the record. See Exhibit E to Respondent's answer filed on August 8, 2001; No. 05-97-1623-CR,supra, Record, Vol. 1 at page 011.
In his final ground for relief Sumlin claims that the evidence was insufficient to establish his guilt. In her answer Respondent claims that this ground is procedurally barred. A review of the only proceeding considered by the Texas Court of Criminal Appeals, to wit: Sumlin's Article 11.07 application, reflects that this ground was not presented and that any further attempt to exhaust this ground in a subsequent Article 11.07 application would be futile since consideration of the same would be barred by Article 11.07 § 4. Therefore, relief on this ground is procedurally barred. However, even if this ground were to be considered on the merits, Petitioner is plainly not entitled to any relief. His admission that he was guilty of the offense charged together with his judicial confession provides more than a sufficient basis for finding him guilty. Further, the United States Constitution does not require any evidentiary support for a conviction in which a guilty plea is entered.Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1712 (1969). Moreover, in having entered a plea of nolo contendere Sumlin waived his right to challenge the sufficiency of the evidence to support his conviction. See e.g. Kelly v. Alabama, 636 F.2d 1082, 1083 (5th Cir. 1981).
RECOMMENDATION:
For the foregoing reasons it is recommended that the District Court enter its order and judgment denying Sumlin's petition on the merits.
A copy of this recommendation shall be transmitted to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc,) a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar ade novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.