Opinion
Civil Action No. 4:02-CV-514-A
November 26, 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 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 Ronald Eugene Wilkinson, TDCJ-ID #859849, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in Cuero, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
In state court, Wilkinson was charged by indictment with sexual assault of a child and indecency with a child by exposure. (1 State Habeas R. at 26.) On March 25, 1996, Wilkinson entered into a plea agreement with the state to plead guilty to indecency with a child by exposure, in exchange for the state's recommendation of four years' deferred adjudication community supervision. ( Id. at 27-30.) In accordance with the plea agreement, the trial court accepted Wilkinson's guilty plea, deferred a finding of guilt, and placed him on deferred adjudication community supervision for four years. ( Id. at 32-33.) Subsequently, the state moved to adjudicate Wilkinson's guilt. ( Id. at 39-41.) On January 28, 1999, after a hearing, the trial court found Wilkinson guilty of the offense and assessed his punishment at ten years' confinement. ( Id. at 44-45.)
Wilkinson appealed the judgment adjudicating his guilt, but the Second Court of Appeals dismissed the appeal for want of jurisdiction on November 4, 1999. ( Id. at 46-47.) Wilkinson v. State, No. 2-99-068-CR (Tex.App.-Fort Worth Nov. 4, 1999) (not designated for publication). On June 7, 2000, the Texas Court of Criminal Appeals refused his petition for discretionary review. Wilkinson v. State, No. 516-00 (Tex.Crim.App. June 7, 2000) (not designated for publication). Wilkinson did not seek writ of certiorari.
Wilkinson has filed two state applications for writ of habeas corpus. In the first, filed on August 2, 2000, the Texas Court of Criminal Appeals denied relief without written order on November 14, 2001. Ex parte Wilkinson, No. 46,663-01 (Tex.Crim.App. Nov. 14, 2000) (not designated for publication). On March 6, 2002, the remaining application, filed on January 15, 2002, was dismissed by the Texas Court of Criminal Appeals as abusive. Ex parte Wilkinson, No. 46,663-02 (Tex.Crim.App. Mar. 6, 2000) (not designated for publication). Thereafter, on June 3, 2002, Wilkinson filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division. 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 four grounds, Wilkinson raises the following claims:
(1) The four-year probationary "sentence" was void or illegal because he "was sentenced below the minimum allowed by state statute" for the offense.
(2) His plea was rendered involuntary as a result of the void or illegal sentence which was "misrepresented as a legal sentence" by the prosecutor.
(3) His trial and appellate counsel rendered ineffective assistance by failing to "investigate the facts surrounding the probation order" and the fact that it was an illegal sentence. (Pet. at 7-8.)
E. RULE 5 STATEMENT
Cockrell believes that Wilkinson has sufficiently exhausted available state remedies on all claims presented. (Resp't Answer at 4.)F. STATUTE OF LIMITATIONS
As a preliminary matter, the court must address Cockrell's assertion that Wilkinson's first two claims are time barred. (Resp't Answer at 7-9.) The Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), effective April 24, 1996, imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d). Section 2244(d) provides:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(1)-(2).
Cockrell argues that because Wilkinson's first and second claims relate to his original guilty plea and deferred adjudication order, the one-year period ran from the date on which the deferred adjudication order became final by the conclusion of direct review or the expiration of the time for seeking such review. (Resp't Answer at 5-7.) 28 U.S.C. § 2244(d)(1)(A). Cockrell contends that the order placing Wilkinson on deferred adjudication community supervision became final on April 24, 1996, 30 days after the order was entered, and, thus, Wilkinson's federal petition was due no later than April 24, 1997, absent any applicable tolling. ( Id.)
This court has previously rejected Cockrell's argument in the deferred adjudication context. While Cockrell is correct that, under Texas law, a defendant must immediately appeal when deferred adjudication community supervision is first imposed, the AEDPA specifies that limitations begins on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A) (emphasis added). A deferred adjudication judgment is not a final judgment because there has been no determination of guilt. See Davis v. State, 968 S.W.2d 368, 371 (Tex.Crim.App. 1998). Thus, limitations did not begin until the date on which the state trial court's judgment adjudicating Wilkinson's guilt became final by the conclusion of direct review or the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A); Anderson v. Cockrell, No. 4:02-CV-157-A, 2002 WL 1782222, at *3-4 (N.D. Tex. July 30, 2002); Crenshaw v. Cockrell, No. 4:01-CV-405-Y, 2002 WL 356513, at *5 (N.D. Tex. Mar. 5, 2002).
Wilkinson appealed the judgment adjudicating his guilt, but did not seek writ of certiorari; thus, the limitations period began to run upon expiration of the time for seeking writ of certiorari, or on September 5, 2000 — 90 days from June 7, 2000, and expired on September 5, 2001, absent any applicable tolling. See TEX. R. APP. P. 26.1. Applying the tolling provision of 28 U.S.C. § 2244(d)(2) for the period of time Wilkinson's state writ applications were pending, or 519 days, Wilkinson's petition, filed on June 3, 2002, was timely as to all his claims. See 28 U.S.C. § 2244(d)(2).
G. 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. Discussion
In the instant case, Wilkinson claims that (1) the original judgment placing him on deferred adjudication community supervision was void or illegal because he was placed on community supervision for a period below the minimum allowed by state law, (2) his guilty plea was rendered involuntary because the prosecutor misrepresented the period of community supervision as "a legal sentence," and (3) his trial and appellate counsel were ineffective by failing to determine that the original deferred adjudication judgment was illegal on this basis. (Pet. at 7-8.)
Cockrell notes that all of Wilkinson's claims are based on the premise that Texas law required a minimum community supervision period of five years for his crime, while Wilkinson received a four-year period. (Resp't Answer at 9.) However, as further noted by Cockrell, effective January 1, 1996, the date Wilkinson committed the offense, the applicable Texas statute did not require a minimum five-year community supervision period for the particular offense. ( Id. at 9-10 Ex. A, B.)
Prior to January 1, 1996, Texas law provided that the minimum period of community supervision for the charged offense was five years. See Act of May 26, 1995, 74th Leg., R.S. ch. 256, § 2, 1995 Tex. Gen. Laws 2190, 2191. Effective January 1, 1996, state law was amended to delete the minimum five-year community supervision period. See Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 53, 1995 Tex. Gen. Laws 2734, 2750 (current version at TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5 (Vernon Supp. 2002)).
In reply, Wilkinson contends that the actual date of the offense was New Year's Eve, December 31, 1995, and that the police report would verify this fact. (Pet'r Reply at 4-5.) However, 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. See Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983). A determination of a factual issue made by a state court shall be presumed to be correct. 28 U.S.C. § 2254(e)(1). The state records reflect that Wilkinson pleaded guilty to committing the offense "on or about" January 1, 1996, as alleged in the indictment, and that Wilkinson judicially confessed that the facts alleged in the indictment were true and correct. (1 State Habeas R. at 30.) The state court apparently determined that the offense, in fact, occurred on January 1, 1996, and Wilkinson presents nothing to rebut the presumption of correctness of this factual determination. See Id.
Further, Wilkinson erroneously relies upon former article 42.12, § 3 of the Texas Code of Criminal Procedure, entitled "Judge Ordered Community Supervision," in support of his argument. The relevant statute, however, is former article 42.12, § 5, which applies specifically to deferred adjudication cases. (Pet'r Reply Ex. C.) Article 42.12, § 5, in effect at the time of the offense, did not require a minimum five-year probationary period for the offense. Thus, Wilkinson's claims have no arguable basis in fact and are without merit.
In sum, the state court's determination that Wilkinson 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 presented in the state court proceedings.
II. RECOMMENDATION
Wilkinson'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 December 18, 2002. 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 December 18, 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.