Opinion
No. 3:03-CV-3069-R.
July 20, 2004
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 Earnest Ray Willis ("Willis" or "Petitioner") is an inmate confined at the John R. Connally Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) at Kenedy, Texas. Respondent is the Director of TDCJ-CID.
Statement of the Case: Petitioner pled not guilty to injury of an elderly or disabled person in cause number F99-29421-IS. The jury found Willis guilty and, on his plea of true to an enhancement paragraph, assessed punishment at 60 years imprisonment. Counsel was appointed to represent him in the direct appeal from his conviction. On or about July 4, 2001, counsel filed her brief in the Fifth Court of Appeals. On July 2, 2001, the court informed counsel for the parties that the appeal would be decided without oral argument. Upon learning that Petitioner's court-appointed attorney had died, the court abated the appeal pending the appointment of new counsel. On July 8, 2002 Vicki Solomon was appointed as counsel on appeal for Willis. On August 23, 2002, the Fifth Court of Appeals affirmed his conviction and sentence. Willis v. State, No. 05-00-01378-CR, 2002 Tex. App. LEXIS 6143 (Tex.App.-Dallas August 23, 2002, pet. ref'd). After obtaining an extension of time Willis filed a pro se petition for discretionary review in the Fifth Court of Appeals, and the Texas Court of Criminal Appeals subsequently refused his petition on January 22, 2003. He filed an application for habeas corpus relief pursuant to TEX. CODE CRIM. PROC. art. 11.07 which was denied without written order on the findings of the trial court without a hearing on August 27, 2003. Ex Parte Willis, No. 56,566-01.
Petitioner filed the instant habeas petition on December 24, 2003. Respondent filed an answer addressing the merits of his claim and attaching the state court papers on March 17, 2004. Petitioner filed a traverse on April 9, 2004.
Findings and Conclusions:
In his sole ground for relief Willis claims that he was denied a meaningful and adequate right to seek a petition for discretionary review because he was not given access to the trial record.
Although an indigent defendant is entitled to the full rights of direct appeal afforded to a non-indigent defendant, it is clear that under Texas state law in non capital cases a criminal defendant is not entitled to review by the Texas Court of Criminal Appeals as a matter of right. See Ayala v. State, 633 S.W.2d 526, 528 (Tex.Crim.App. 1982) (en banc); see also TEX. R. App. P. 66.2. Further, discretionary review is limited to alleged error or a conflicting decision of the intermediate court of appeals. Id. at R. 66.3. In Ayala, supra, the court expressly relied on the United States Supreme Court's decisions in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437 (1974) (holding that a defendant had no Sixth Amendment right to counsel in seeking discretionary review of a conviction beyond the first steps of a direct appeal) and in Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300 (1982) (reaffirming the holding in Ross v. Moffitt).
Consistent with the rights of non-indigent defendants, an indigent defendant is entitled to a transcript of proceedings or a sufficient alternative to a transcript where necessary to adequately prosecute points of error on a direct appeal. See Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433-34 (1971).
In order to be entitled to relief, Willis must show that the Court of Criminal Appeals' decision "resulted in a decision that involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." § 2254(d)(1). "Clearly established federal law `refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'" Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002), citing Williams v. Taylor, 529 U.S. 362, 412, 146 L.Ed. 2d 389, 120 S. Ct. 1495 (2000). He has failed to cite a Supreme Court decision holding that a convicted indigent has a constitutional right to access to the trial record for the purpose of pursuing discretionary review of a conviction beyond the rights to which all defendants are entitled under State law. Therefore he is not entitled to habeas corpus relief.
Alternatively, he cannot show that his lack of access to the trial record deprived him of an adequate opportunity to seek discretionary review. As noted above, discretionary review is limited to consideration of the decision of the court of appeals. In his petition for discretionary review he conceded that he had a copy of the appellate brief filed with the Fifth Court of Appeals. An examination of the brief filed on his behalf shows that his attorney provided copious citations to the trial testimony. Indeed, Willis's pro se petition for discretionary review cites portions of the appellate brief verbatim. See Appellant's Br. at 16, 30, Willis v. State (No. 05-00-01378-CR). Finally, the Texas rules permit a judge of the Court of Criminal Appeals to obtain the appellate record from the court of appeals clerk in the event the same is needed to decide whether or not a petition for discretionary review should be granted. TEX. R. APP. P. 66.4.
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition be denied.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.