Opinion
Civil Action No. 4:01-CV-278-Y
March 15, 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 Emerito Zelaya, TDCJ-ID #934523, was in custody of the Texas Department of Criminal Justice, Institutional Division, when this petition was filed, but has since been released on parole.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURE HISTORY
On July 26, 1996, pursuant to a plea bargain agreement, Zelaya pleaded nolo contendere to possession of cocaine in the amount of more than four grams but less than two hundred grams with the intent to deliver it. (1 State Habeas R. at 28, 30-37.) In accordance with the plea agreement, the trial court placed him on deferred adjudication community supervision for seven years. (Id. at 37.) Zelaya did not appeal the judgment placing him on deferred adjudication community supervision (Federal Pet. at 3.)
On February 10, 2000, the state filed a petition to proceed to adjudication of guilt alleging Zelaya had violated certain conditions of his community supervision. (1 State Habeas R. at 39-40.) On May 22, 2000, Zelaya entered a plea of true to paragraph one of the petition in exchange for the state's recommendation on punishment of six years' confinement. (Id. at 42-45.) After a hearing, the trial court adjudicated Zelaya's guilt and, in accordance with the plea agreement, assessed his punishment at six years' confinement. (Id. at 45.) Zelaya did not appeal the judgment adjudicating his guilt. (Federal Pet. at 3.)
Zelaya did file two post-conviction state applications for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2002). In his first state application, filed on June 5, 2000, Zelaya alleged that he was denied due process of law because he was not admonished regarding the immigration consequences of his plea as required by article 26.23 of the Texas Code of Criminal Procedure and that he received ineffective assistance of counsel at the original plea proceedings, rendering his plea involuntary. (1 State Habeas R. at 2-16.) See TEX. CODE CRIM. PROC. ANN. art. 26.23 (Vernon Supp. 2002). Zelaya alleged his trial counsel was ineffective because counsel mislead and coerced him into pleading guilty by withholding pertinent information and misinforming him regarding the law applicable to his case, failed to inform him regarding possible defenses, failed to investigate the facts of his case, failed to advise him of the immigration consequences of his plea, and failed to request an "independent court-appointed interpreter" fluent in Spanish, his native language. (1 State Habeas R. at 5-15.) The state trial court recommended that relief be denied. (Id. at 26.) The application was subsequently dismissed by the Texas Court of Criminal Appeals. Ex parte Zelaya, No. 46, 358-01, at cover (Tex.Crim.App. Sept. 13, 2000) (not designated for publication).
The record reflects that the plea proceedings were translated to Zelaya by Francisco Hernandez, Sr. (State Habeas R. at 33.)
On November 21, 2000, Zelaya filed his second state application for writ of habeas corpus complaining that the trial court improperly refused to allow him a "probation revocation hearing," which denied him the opportunity to develop a record in support of his contentions that he was deprived of a fair trial and that he received ineffective assistance of counsel for purposes of collaterally attacking his conviction. (2 State Habeas R. at 2-6.) The second application was denied without written order. Ex parte Zelaya, No. 46, 358-02, at cover (Tex.Crim.App. Jan. 24, 2001) (not designated for publication). Zelaya 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 April 3, 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
Zelaya raises the following issues in three grounds for relief
1. He was denied due process of law because he does not speak or understand English and his attorney failed to provide him with an interpreter or explain the possible immigration consequences of his plea, thereby rendering his plea involuntary.
2. He was denied effective assistance of counsel because his trial attorney did not investigate his case, advise him regarding available defenses or his eligibility for community supervision, or "go over" the admonishments with him.
3. His plea was involuntary because his attorney coerced him into entering his plea by withholding pertinent information, misinforming him of the applicable law, and failing to inform him of evidence favorable to his "claims of innocence" and possible defenses.
E. RULE 5 STATEMENT
Cockrell argues that Zelaya's claims, while unexhausted, are procedurally barred because he no longer has an available state-court avenue for raising his claims.F. Procedural Default
The preliminary issue then is whether Zelaya has exhausted his state court remedies as to the claims raised in this habeas corpus proceeding, and, if not, whether the unexhausted claims are procedurally barred as argued by Cockrell. (Resp't Answer at 3-5.)
Applicants seeking habeas corpus relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief 28 U.S.C. § 2254 (b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest court of the state. O'Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999); Fisher 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056 (1983). In Texas, the highest state court for criminal matters is the Texas Court of Criminal Appeals. Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985). Thus, the Court of Criminal Appeals must be given a full and fair opportunity to address the claim on its merits, which in turn requires that the applicant present the claim before that court in a procedurally proper manner according to the rules of the state courts. Depuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). In Texas writ jurisprudence, a "denial" means that the Texas Court of Criminal Appeals addressed and rejected the merits of a particular claim while a "dismissal" means that the court declined to consider the claim for reasons unrelated to the claim's merits. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
Although Zelaya raised the issues presented in this federal application in his first state habeas corpus application, that application was dismissed by the Texas Court of Criminal Appeals. Ex parte Zelaya, No. 46, 358-01, at cover. A "dismissal" signifies that the state court did not consider Zelaya's claims on their merits. Ex parte Torres, 943 S.W.2d at 472. Thus, Zelaya could have presumably raised the issues in a subsequent writ. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4; Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995). ln his second state habeas corpus application, however, Zelaya did not raise the claims and, in fact, represented that the issues raised therein had not been previously presented in his first application. (2 State Habeas R. at 3.) Thus, Zelaya failed to exhaust his federal court claims by presenting them to the Texas Court of Criminal Appeals. See Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
Zelaya cannot, however, return to the Texas courts to cure this deficiency. The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in a previous habeas petition. Ex parte Barber, 879 S.W.2d at 891 n. 1. This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice, or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 33940 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20.
Zelaya has not given any explanation to excuse his default. Nor has he demonstrated that failure to consider his claims will result in a miscarriage of justice, i.e., that he is innocent of the crime for which he was charged and convicted. Accordingly, Zelaya's grounds are procedurally barred from federal habeas review. See Coleman, 501 U.S. at 750-51.
II. RECOMMENDATION
Zelaya'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 April 5, 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 Serv's. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Coffins, 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 April 5, 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.