Opinion
Civil Action No. 4:01-CV-783-A
April 2, 2002
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 Title 28 of the United States Code, § 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 Title 28 of the United States Code, § 2254.
B. PARTIES
Petitioner Manh Huu Vo, TDCJ-ID #918684, is in custody of the Texas Department of Criminal Justice, Institutional Division.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
Vo was charged with aggravated robbery with a deadly weapon. (State Habeas R. at 97.) After a jury found Vo guilty of the alleged offense, he withdrew his plea of not guilty and, pursuant to a plea bargain agreement, entered a plea of guilty in exchange for a recommended sentence by the state of 35 years' imprisonment. ( Id. at 99-102; 108-09.) On March 30, 2000, according to the agreement, the trial court found Vo guilty of the offense and sentenced him to 35 years' confinement. ( Id. at 104.) He did not appeal the judgment of conviction. (Federal Pet. at 3.)
Vo did file a state application for writ of habeas corpus, which the Texas Court of Criminal Appeals denied without written order on the findings of the state trial court. Ex parte Vo, No. 49, 267-01, at cover (Tex.Crim.App. June 20, 2001) (not designated for publication). He 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 September 13 2001. 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).
D. Issues
In one ground, Vo contends he received ineffective assistance of trial counsel, thereby rendering his guilty plea involuntary, because counsel (1) failed to investigate the facts of the case or hire an investigator to conduct an investigation into the facts of the case, (2) failed to consult with him about the case, review the prosecutor's files with him, or interview state witnesses, (3) failed to inquire into the circumstances surrounding his statement to the police or move to suppress the statement, (4) failed to know the facts or law pertinent to the case and advise him as to the nature of the state's evidence against him, and (5) had a conflict of interest because he had been the victim of an aggravated robbery. (Federal Pet. at 7, 7A-C.)
E. RULE 5 STATEMENT
Cockrell believes that Vo has sufficiently exhausted his state remedies on the issues presented and, thus, does not move for dismissal on this ground.
F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDRA"). 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.
The Act further requires that 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. Ineffective Assistance of Counsel
A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. CONST. amend. VI. To prevail on an ineffective assistance claim, a petitioner must show 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, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Carter v. Collins, 918 F.2d 1198, 1200 (5th Cir. 1990). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 687. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 688.
Vo raised his ineffective assistance claims in the state habeas court, but, in light of counsel's affidavit concerning his representation of Vo, the court found that counsel rendered effective representation. (State Habeas R. at 22-24, 92-96.) As previously noted, the Texas Court of Criminal Appeals denied relief on Vo's state writ application without written order on the findings of the trial court. Ex parte Vo, No. 49, 267-01 at cover. An ineffective assistance claim is a mixed question of law and fact. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). Where, as here, the claims have been reviewed on their merits and denied by the state courts, this court can grant federal habeas relief only if the state courts' decision was contrary to or involved an unreasonable application of the standard set forth in Strickland. Id. at 418; Jones v. Jones, 163 F.3d 285, 299 (5th Cir. 1998), cert. denied, 528 U.S. 895 (1999). Having independently reviewed each of Vo's claims in conjunction with the state courts' records, the adjudication of his claims does not appear to have resulted in a decision that was contrary to or involved an unreasonable application of the Strickland standard.
The state habeas record reveals that, in the early morning hours of April 28, 1999, Vo and two others entered the residence of Sing Rasaphangthong with the intent to rob Rasaphangthong of money they believed to be hidden in his house. (State Habeas R. at 22, 97, 55, 90-91.) All three were armed. ( Id. at 90-91.) A gun battled ensued, and Rasaphangthong and his son were both shot, leaving one of them paralyzed. ( Id. at 22.) A fourth participant, who was arrested near the scene shortly after the shootings, identified those involved in the robbery, including Vo. (State Habeas R. at 26-29.) Vo was arrested, and, after being advised of his rights, he gave a written statement confessing his participation in the robbery. ( Id. at 30-31, 106-07.)
Trial counsel testified by affidavit in the state habeas proceeding that he investigated the facts of case and that the state's attorney provided him with all reports, forensic documents, and witness statements, which he copied and forwarded to Vo. Counsel indicated that he did not hire an investigator because Vo never provided the necessary funds to secure an investigator. ( Id. at 23.) Counsel also alluded to a suppression hearing, although the nature of the evidence sought to be suppressed cannot be determined from the record. What is clear is that the trial court, outside the presence of the jury, at some point addressed the issue of Vo's written statement and determined that the statement was given knowingly and voluntarily after he was informed of his rights, according to state law and Miranda v. Arizona, 384 U.S. 436 (1966), and that the statement was admissible. (State Habeas R. at 106-07.) Thus, any motion to suppress Vo's written confession was either unsuccessful or would have been unsuccessful if made. Further, there is no evidence that counsel was in fact the victim of an aggravated robbery in the past or that this fact, if true, adversely affected counsel's representation of Vo. Similarly, the remainder of Vo's ineffective assistance claims are mere assertions, unsupported and unsupportable by anything else contained in the record, which have no probative evidentiary value in this proceeding. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983). Vo has not demonstrated deficient performance on one or more of the grounds given or prejudice. Strickland, 466 U.S. at 697.
Further, Vo withdrew his plea of not guilty after the jury found him guilty and entered a negotiated guilty plea. 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). Vo has not called into question the voluntary and intelligent character of his plea, and therefore his ineffective assistance claims are nonjurisdictional and are waived by the plea. United States v. Broce, 488 U.S. 563, 573-74 (1989).
Moreover, 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). The record in this case indicates that Vo entered his guilty plea in open court knowingly, freely, and voluntarily and was advised by counsel and the trial court of the consequences of his plea. (State Habeas R. at 99-102.) Counsel fully reviewed and explained to Vo his options of withdrawing his not-guilty plea and entering a guilty plea in exchange for the state's recommendation of a 35-year sentence or proceeding to the jury for determination of his punishment. ( Id. at 100.) Vo executed the written plea admonishments in which he acknowledged that he was aware of the consequences of his plea, that his plea was "knowingly, freely, and voluntarily entered," that he was "totally satisfied" with the representation received from counsel, and that counsel provided fully effective and competent representation. ( Id.) See Blackledge v. Allison, 431 U.S. 63, 74 (1977); Kelley v. Alabama, 636 F.2d 1082, 1084 (5th Cir. 1981). Further, he judicially confessed to committing the offense as charged in the indictment. (State Habeas R. at 101.) Such representations by a defendant during plea proceedings carry a strong presumption of verity," which Vo has failed to overcome. Blackledge, 431 U.S. at 74.
In sum, the record supports the state courts' determination of the issues presented in this federal proceeding. The state courts' determination is not contrary to or involve an unreasonable application of federal law in light of the record as a whole and is entitled to deference and the presumption of correctness.
II. RECOMMENDATION
Vo's petition for writ of habeas corpus should be denied.
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until April 23, 2002, 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.