Opinion
Civil Action No. 5:05cv193.
April 24, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner Clarence Merrett Swafford, an inmate confined in the Texas prison system, filed, pursuant to 28 U.S.C. § 2254, this petition for writ of habeas corpus. The petition was referred for findings of fact, conclusions of law, and recommendations for disposition of the case.
Procedural Background
Petitioner is challenging his Franklin County conviction for driving while intoxicated ( Ex parte Swafford, WR-60,341-02 at cover), to which he pled guilty and for which he was sentenced on October 16, 2003, to forty years imprisonment in TDCJ-CID ( Ex parte Swafford, WR-60,341-02 at 35). He did not appeal the conviction. Ex parte Swafford, WR-60,341-01, Application at 3.
He filed an application for a writ of habeas corpus in state court on February 20, 2004 ( Ex parte Swafford, WR-60,341-01, Application at 1), and that the petition was dismissed for noncompliance with appellate rules on January 26, 2005 ( Ex parte Swafford, WR-60,341-01). He filed a second application for a writ of habeas corpus in state court on March 7, 2005 ( Ex parte Swafford, WR-60,341-02, Application at 1), and that the petition was denied without written order on August 17, 2005 ( Ex parte Swafford, WR-60,341-02).
The present petition was filed in this Court on October 17, 2005. Petitioner specified that he placed the petition in the prison mail system on October 3, 2005. Petition at 9. In the case of a pro se prisoner, a habeas corpus petition should be deemed filed when the petition is handed over to prison authorities for mailing. Cousin v. Lensing, 310 F.3d 843, 847 (5th Cir. 2002), cert. denied 539 U.S. 918 (2003). On January 27, 2006, this Court granted Respondent an extension until to file a Response. On January 30, 2006, Petitioner filed a motion for default judgment because Respondent had not filed an answer within the forty-day time limit originally given by this Court.
Petitioner's Claims
Petitioner alleges that because his plea was coerced, he was denied his right to appeal; his conviction was obtained by violation of the privilege against self-incrimination; he was denied effective assistance of counsel because counsel did not make the judge keep his part of the plea agreement; his guilty plea was unlawfully induced because the seven day release in the plea agreement was not followed ( Petition at 7), and he would not have pled guilty if he had known that the plea agreement would not be followed ( Petition at 8).
Standards and Discussion
Courts frown on the use of default judgments to grant habeas relief without reaching the merits of the claim. See Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir. 1981), cert. denied, 452 U.S. 920, 101 S. Ct. 3059. The writ of habeas corpus may not issue unless the prisoner is in custody in violation of the Constitution or laws or treaties of the United States. Id. Respondent's failure to file a Response within the original forty-day time limit does not constitute a showing that Petitioner is in custody in violation of the Constitution or laws or treaties of the United States.
Title 28 U.S.C. § 2254(d) dictates a highly deferential standard for evaluating state-court rulings. Bell, 535 U.S. 685. State courts are presumed to know and follow the law. Id. State court factual findings are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear, convincing evidence. Murphy v. Dretke, 416 F.3d 427, 432 (5th Cir. 2005), cert. denied ___ S. Ct. ___, 2006 WL 37197 (2006); 28 U.S.C. § 2254(e)(1). Because 28 U.S.C. § 2254(d) dictates a highly deferential standard for evaluating state-court rulings, state court decisions must be given the benefit of the doubt. Bell, 535 U.S. 685.
The Texas Court of Criminal Appeals already has denied Petitioner's claims; consequently, Petitioner cannot obtain federal habeas corpus relief unless he can show that the state court's adjudication of those claims either (1) is contrary to, or involving an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States ( see Riddle, 288 F.3d at 716; 28 U.S.C. § 2254(d)(1)) or (2) is based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding ( see Riddle, 288 F.3d at 716; 28 U.S.C. § 2254(d)(2)). Under 28 U.S.C. § 2254(d)(1), a state court decision is:
1. contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law ( Salazar v. Dretke, 419 F.3d 384, 399 (5th Cir. 2005); Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied 532 U.S. 1039 (2001)) or if the state court decides a case differently than the Court on a set of materially indistinguishable facts ( Bell, 535 U.S. at 694; Salazar, 419 F.3d at 399).
2. contrary to clearly established precedent if the state court applies a rule contradicting the governing law set forth in United States Supreme Court cases or if the state court confronts a set of facts materially indistinguishable from a United States Supreme Court decision and nevertheless arrives at a result different from United States Supreme Court precedent ( Lockyer v. Andrade, 538 U.S. 63, 73 (2003)); and
3. an unreasonable application of clearly established federal law, as determined by the United States Supreme Court, 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 ( Wiggins v. Smith, 539 U.S. 510, 520 (2003); Ward v. Dretke, 420 F.3d 479, 486 (5th Cir. 2005); Salazar, 419 F.3d at 399) in light of the record the court had before it ( Holland v. Jackson, 542 U.S. 649 (2004)).
The unreasonable application clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Brown v. Payton, 125 S. Ct. 1432, 1442 (2005). The habeas petitioner has the burden of showing that the state court applied the law to the facts of his case in an objectively unreasonable manner. Woodford v. Visciotti, 537 U.S. 19, 25 and 27 (2003); see also, Price v. Vincent, 538 U.S. 634, 641 (2003).
Waived Claims
A guilty plea generally waives constitutional deprivations occurring prior to the plea ( Haring v. Prosise, 462 U.S. 306, 319-20 (1983)), except a habeas claim challenging the validity of the guilty plea itself ( Matthew v. Johnson, 201 F.3d 353, 364 (5th Cir. 2000), cert. denied 531 U.S. 830). Once a valid guilty plea has been entered, all non-jurisdictional defects in the proceedings are waived; this waiver includes all claims of ineffective assistance of counsel except insofar as the alleged ineffectiveness relates to the giving of the guilty plea. Reeves v. Pettcox, 19 F.3d 1060, 1062 (5th Cir. 1994); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983), cert. denied, 466 U.S. 906 (1984). Consequently, unless Petitioner can show that his guilty plea was involuntary, his claims are waived except his claims relating to the guilty plea itself.Voluntariness of Petitioner's Guilty Plea
Solemn declarations in open court carry a strong presumption of verity. Blackledge v. Allison, 431 U.S. 63, 74 (1977) (quoted in United States v. Cothran, 302 F.3d 279, 284 n. 2 (5th Cir. 2002)). If a petitioner challenges his guilty plea, there must be independent indicia of the likely merit of his contentions, and mere contradiction of his statements at the guilty plea hearing will not carry his burden. Davis v. Butler, 825 F.2d 892, 894 (5th Cir. 1987). Such indicia may include an affidavit from a reliable third party. Harmason v. Smith, 888 F.2d 1527, 1529 (5th Cir. 1989). The validity of a guilty plea is a question of law and will be upheld on habeas review if entered into knowingly, voluntarily, and intelligently. Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000).
Absent record evidence, a court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition, unsupported and unsubstantiated by anything else contained in the record, to be of probative evidentiary value. Joseph v. Butler, 838 F.2d 786, 788 (5th Cir. 1988). Mere conclusory allegations do not raise a constitutional issue in a habeas proceeding. Murphy, 416 F.3d at 437.
The state court records include the Plea Agreement and the State's Written Plea Admonishments, neither of which mentions anything about a seven day release. Petitioner's assertions that the Plea Agreement included a seven day release are unsupported and unsubstantiated by anything else contained in the record, and therefore lack probative evidentiary value. See Joseph, 838 F.2d at 788. His conclusory allegations do not raise a constitutional issue for habeas relief. See Murphy, 416 F.3d at 437.
All Petitioner's claims are premised on his contention that the seven day release was not followed. Petitioner has not shown that the state court's adjudication of those claims either (1) is contrary to, or involving an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States ( see Riddle, 288 F.3d at 716; 28 U.S.C. § 2254(d)(1)) or (2) is based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding ( see Riddle, 288 F.3d at 716; 28 U.S.C. § 2254(d)(2)).
Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a habeas corpus proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). Although Petitioner has not yet filed a notice of appeal, this Court may sua sponte rule on a certificate of appealability because the district court that denies a petitioner relief is in the best position to determine whether the petitioner has made a substantial showing of a denial of a constitutional right on the issues before that court, and further briefing and argument on the very issues the court has just ruled on would be repetitious. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
To obtain a certificate of appealability, a petitioner must make a substantial showing of the denial of a constitutional right. United States v. Webster, 392 F.3d 787, 791 (5th Cir. 2004); 28 U.S.C. § 2253(c)(2). The petitioner must demonstrate that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. United States v. Webster, 392 F.3d at 791; 28 U.S.C. § 2253(c)(2). In determining whether to grant a certificate of appealability, a court is limited to a threshold inquiry into the underlying merit of the petitioner's claims; this threshold inquiry does not require full consideration of the factual and legal bases adduced in support of the claims, but instead is based on an overview of the claims in the habeas petition and a general assessment of their merits. United States v. Webster, 392 F.3d at 791.
In cases where a district court rejected a petitioner's constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003), cert. denied 540 U.S. 956; see also Houser v. Dretke, 395 F.3d 560, 561 (5th Cir. 2004).
The petitioner's arguments ultimately must be assessed under the deferential standard required by 28 U.S.C. § 2254(d)(1): Relief may not be granted unless the state court adjudication "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." Tennard v. Dretke, 542 U.S. 274 (2004); Bagwell v. Dretke, 372 F.3d 748, 753 (5th Cir. 2004), cert. denied 125 S. Ct. 498). A state court's decision is contrary to clearly established Federal law, as determined by the Supreme Court of the United States if the state court arrives at a conclusion opposite to that reached by the Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts. Bagwell, 372 F.3d at 753 n. 4. In this case, reasonable jurists could neither debate the denial of Petitioner's petition on procedural grounds nor find that the issues presented are adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
Recommendation
It is accordingly recommended that Petitioner's motion (dkt#8) for default judgment be denied, that the petition for writ of habeas corpus be denied, that the case be dismissed with prejudice as time-barred, and that Petitioner be denied a certificate of appealability.
Objections
Within ten days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations contained in this Report within ten days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United States Auto Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).