Opinion
No. 3:04-CV-1709-L.
January 3, 2005
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 been previously 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 pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Rickey W. Tolbert ("Tolbert" or "Petitioner") is an inmate confined at the Ellis Unit of the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID") at Huntsville, Texas. Respondent is the Director of TDCJ-CID.
Statement of the Case: Pursuant to a plea bargain Tolbert pled guilty to the offense of aggravated sexual assault of a child under the age of fourteen years as charged in the indictment in cause number F-02-2223-VP and entered pleas of true to the enhancement paragraphs of the indictment. In accordance with the State's recommendation, the court sentenced him to a twenty-five year term of imprisonment. Tolbert did not appeal his conviction. He filed an application for habeas corpus relief pursuant to Tex. Code Crim. Proc. art. 11.07 on October 14, 2003, which was denied by the Texas Court of Criminal Appeals on January 14, 2004. Ex Parte Tolbert, Appl. No. 14,650-06.
Tolbert has filed five previous art. 11.07 applications relating to prior felonies. Subsequent to his sixth art. 11.07 application, he filed an application for writ of mandamus in the instant matter which was denied on July 21, 2004.
Petitioner filed the instant habeas petition on July 26, 2004. Respondent filed an answer addressing the merits of his claim and submitted a copy of the state court proceedings.
Findings and Conclusions: Petitioner contends that he received ineffective assistance of counsel, that the indictment in No. F-02-2223-VP was defective, and that there was no evidence to prove the conviction in the second paragraph of his indictment.
The allegations contained in Petitioner's § 2254 petition are entirely conclusory. Therefore, his allegations are fleshed out by reference to his art. 11.07 application.
Review of Tolbert's claims is governed by the provisions of the Antiterrorism and Effective Death Penalty Act which in pertinent part provides that a federal court cannot grant relief under § 2254 unless the adjudication of the state prisoner's claim in the state court system "resulted in a decision that involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." § 2254(d)(1) (2).
In his first ground for relief, Petitioner complains that his attorney was ineffective because he informed Tolbert that any problems in the indictment were harmless, failed to investigate the problems in the indictment, failed to request rulings on Petitioner's pro se motions relating to problems in the indictment, and had a conflict of interest because Petitioner had filed a grievance with the state bar. An attorney's conduct is governed by the standards set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). There is a strong presumption that an attorney's conduct falls within the broad range of reasonable professional assistance required under the Sixth Amendment. Id. at 690, 104 S.Ct at 2065. To overcome this presumption a habeas petitioner must establish that the attorney's conduct was constitutionally deficient (cause) and that but for such unprofessional errors the result probably would have been different (prejudice). Failure to prove either prong of the two part test forecloses relief. Id. at 694, 104 S.Ct. at 2068.
Texas substantive law does not require that prior convictions alleged for enhancement of punishment be described in the indictment with the same particularity as the allegations describing the primary offense. The purpose of enhancement paragraphs "is to give the defendant notice of the earlier conviction so that he can prepare a defense." Earl v. State, 870 S.W.2d 669, 671 (Tex.App.-Houston 1994, no writ). Tolbert does not claim that he was not convicted in cause number F91-03160-NT, the prior felony offense alleged in the second paragraph of the indictment. Therefore, assuming arguendo that his attorney advised him that any error in the date on which he was convicted was irrelevant, Petitioner cannot show that such advice was erroneous. Moreover, in his letter to counsel dated April 22, 2003, Tolbert stated that he did not "want to fight the defective indictment, or the defective enhancement in this case." See App. No. 14,650-06 (Supplemental) at 10. He cannot now claim ineffective assistance of counsel based on his attorney's compliance with his request.
Insofar as he complains of his attorney's failure to obtain rulings on any of his pro se motions, he has failed to include in either his art. 11.07 application or his § 2254 petition copies of such pro se motions. Therefore, this conclusory claim fails to present a cognizable claim. Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).
Petitioner also alleges that his attorney was ineffective due to a conflict of interest caused by his filing of a grievance with the state bar. He contends that this was proved because his attorney filed a motion to withdraw which was denied by the trial judge. Since the attorney was not jointly representing persons accused of the offence, nor has Tolbert otherwise established an "actual conflict of interest" the presumption of prejudice under Cuyler v. Sullivan, 446 U.S. 335, 345-50, 100 S.Ct. 1708, 1716-19 (1980) does not apply. In order to constitute a basis for relief a petitioner must prove that the alleged conflict " affected counsel's performance — as opposed to a mere theoretical division of loyalties." Mickens v. Taylor, 535 U.S. 162, 171, 122 S.Ct. 1237, 1243 (2002).
In the course of Petitioner's art. 11.07 application the state court obtained an affidavit from the trial attorney which specifically addressed this claim. See Appl. No. 14,650-06 (Supplemental) at 7-8. Essentially the affidavit states that the grievance did not affect counsel's efforts in representing Petitioner. The trial court found that the statements in the affidavit were true and correct. Id. at 4-5. In addition counsel's conduct was entirely consistent with Tolbert's stated wishes. The disposition of Petitioner's conflict of interest claim by the Texas courts is wholly consistent with Mickens.
On April 22, 2003, subsequent to the date on which the trial court denied the attorney's motion to withdraw, Tolbert wrote the attorney a letter requesting that he seek a plea bargain to dispose of his case. See Appl. No. 14,650-06 (Supplemental) at 10.
It is abundantly clear that even under the pre-AEDPA jurisprudence of the Fifth Circuit applying Strickland v. Washington, Petitioner's ineffective assistance of counsel claims asserted against his trial attorney are without merit. However, dispositive of this ground is the fact that Tolbert cannot show that the Texas state courts' determination that his trial attorney rendered effective assistance of counsel resulted in an unreasonable application of the Strickland standard. As has been made clear in numerous decisions of the United States Supreme Court interpreting the provisions of the AEDPA, see, e.g., Yarborough v. Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 4 (2003), before a federal court may grant habeas corpus relief it must be shown that the State court decision was not only erroneous, but also objectively unreasonable.
In his second ground for relief, Petitioner contends that his indictment was defective because it lacked a grand jury seal. Aside from his self-serving allegation, Tolbert has presented nothing to corroborate his claim that the original bill of indictment filed in the clerk's official file was not in full compliance with the requirements of Texas state law. Moreover, it is well settled that "[w]here the state courts have held that an indictment is sufficient under state law, a federal court need not address this issue." McKay v. Collins, 12 F.3d 66, 68 (5th Cir.), cert denied 513 U.S. 854 (1994). Since the Texas Court of Criminal Appeals denied relief on this claim, habeas corpus relief is foreclosed. See, e.g., Alexander v. McCotter, 775 F.2d 595, 599 (5th Cir. 1985).
In both his second and third grounds for relief Tolbert claims that the evidence was insufficient to prove that he committed the offense charged in cause number F-91-03160-NT on March 11, 1993 (the first enhancement paragraph). Having entered a plea of "true" to this enhancement paragraph, relief on this ground is foreclosed. See, e.g., Kelley v. Alabama, 636 F.2d 1082, 1083-84 (5th Cir. 1981); see also Randle v. Scott, 43 F.3d 221, 226 (5th Cir. 1995). 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.