Opinion
No. 3:02-CV-1463-M.
January 14, 2005.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties : At the time petitioner filed this action, he was incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural and Factual History : On March 30, 2001, the State indicted petitioner for possession of one to four grams of methamphetamine. See HR-62 at 42. On April 2, 2001, the State indicted petitioner for possession with intent to deliver 400 grams or more of amphetamine. See HR-61 at 43. On June 1, 2001, petitioner signed plea agreements whereby he agreed to enter an open plea of guilty to the methamphetamine charge and to a reduced amphetamine charge of possession of four to four hundred grams of amphetamine. See HR-61 at 50-51; HR-62 at 49-50. He also executed judicial confessions in which he confessed that on March 27, 2001, he did "unlawfully, intentionally and knowingly possess" one to four grams of methamphetamine and four to four hundred grams of amphetamine. HR-61 at 52; HR-62 at 51. Petitioner also pled true to the enhancement paragraphs in the indictments and judicially confessed that he is the same person who was convicted of the offenses alleged therein. HR-61 at 51; HR-62 at 50. On July 12, 2001, the trial court entered judgments on the guilty pleas, and sentenced petitioner to ten years imprisonment for each offense to run concurrently. HR-61 at 46; HR-62 at 45.
"HR-62" denotes the state habeas records in Cause No. F01-40162 attached to Ex parte Anderson, No. 52,640-02, slip op. (Tex.Crim.App. June 12, 2002).
"HR-61" denotes the state habeas records in Cause No. F01-40161 attached to Ex parte Anderson, No. 52,640-01, slip op. (Tex.Crim.App. June 12, 2002).
Petitioner did not appeal his convictions or sentences. ( See Pet. for Writ of Habeas Corpus (Pet.) at 3; Answer at 2.) On January 28, 2002, petitioner filed state applications for writ of habeas corpus to challenge his convictions. See HR-61 at 2; HR-62 at 2. On June 12, 2002, the Texas Court of Criminal Appeals denied the applications without written order on findings of the trial court without a hearing. See Ex parte Anderson, No. 52,640-01, slip op. at 1 (Tex.Crim.App. June 12, 2002); Ex parte Anderson, No. 52,640-02, slip op. at 1 (Tex.Crim.App. June 12, 2002).
Petitioner filed the instant federal petition on June 22, 2002, to challenge his convictions in Cause Nos. F01-40161 and F01-40162. (Pet. at 2, 9); see also Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (recognizing that prisoners file their federal pleadings when they place them in the prison mail system). Respondent filed his answer on September 12, 2002, ( see Answer at 1) and submitted petitioner's state court records. On October 28, 2002, the Court received petitioner's traverse to respondent's answer. ( See Traverse at 1.)
Petitioner also had "two probation revocation causes (F99-55098-M and F98-55663-M)." See HR-61 at 38; HR-62 at 38. Although petitioner's third claim mentions an order revoking his probation, he does not challenge any probation revocation in the instant action. ( See Pet. at 2, 7; Mem. Supp. at 1-12.)
D. Substantive Issues : Petitioner claims that the State is unlawfully holding him because (1) his attorney rendered ineffective assistance by (a) coercing him to plead guilty, (b) failing to adequately investigate the case, (c) failing to request an examining trial, (d) failing to request an independent analysis of the drugs, (e) failing to file a motion to suppress, (f) failing to explain the law and the consequences of his pleas, and (g) failing to challenge the sufficiency of the evidence. Petitioner further asserts that (2) there is no evidence that he possessed four hundred grams or more of methamphetamine and (3) his guilty plea was not knowingly and voluntarily made. ( See Pet. at 7; Mem. Supp. at 3-12.) E. Exhaustion : Although respondent "believes" that petitioner "has sufficiently exhausted his state court remedies" on the enumerated claims, he contends that petitioner has procedurally defaulted his sufficiency-of-the-evidence claim (Claim 2). ( See Answer at 3, 8-9.) Respondent thus seeks dismissal of this claim on that basis. ( Id. at 8-9.) Because it appears that petitioner is entitled to no habeas relief on the alleged insufficiency claim, the Court bypasses the procedural bar dispute and proceeds to the merits of the claim.
Although the charged offenses do not allege possession of four hundred grams or more of methamphetamine, the Court will construe this claim as challenging the legal sufficiency of the evidence. See Haley v. Cockrell, 306 F.3d 257, 266-67 (5th Cir. 2002) (noting that a claim of "no evidence" is the same as a claim of insufficiency of the evidence), vacated on other grounds, ___ U.S. ___, 124 S. Ct. 1847 (2004).
The Court has listed the claims as presented by petitioner, but will consider the claims in a different sequence because resolution of some claims are somewhat dependent upon rulings on other claims.
The Court need not definitively decide whether a claim should be procedurally barred. Although a petitioner must generally exhaust state remedies before seeking federal habeas relief, the Court may, nevertheless, deny a habeas petition on the merits, "notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b) (2). The Fifth Circuit has recognized that federal courts may not grant habeas corpus relief on claims which were "denied review by the state courts because of a procedural default, absent a showing both of cause for the default and resulting prejudice." McKinney v. Estelle, 657 F.2d 740, 743 (5th Cir. 1981). McKinney thus implies that the district courts may deny habeas relief for procedurally defaulted claims.
II. APPLICABLE LAW
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA or the Act), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date, which is the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after the effective date of the AEDPA, the Act applies to his petition.Title I of the AEDPA substantially changed the way federal courts handle habeas corpus actions. Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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 proceeding. "In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).
Denial of a petitioner's state writ constitutes an adjudication on the merits. See Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex.Crim.App. 2004) (holding that a denial, rather than a dismissal, generally signifies an adjudication on the merits, but recognizing that when the Texas Court of Criminal Appeals denies a state writ without written order, such denial constitutes a procedural ruling on claims of insufficiency of the evidence); Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) (holding that a denial, rather than a dismissal, signifies an adjudication on the merits). The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply to petitioner's claims with the possible exception of his insufficiency claim. In an abundance of caution, the Court will not apply the more restrictive AEDPA standards to the federal insufficiency claim
It is unclear whether the AEDPA standards apply to petitioner's insufficiency claim because the Texas Court of Criminal Appeals denied petitioner's state writs without written order on the findings of the trial court, rather than simply without written order. In both of petitioner's state cases, the trial court found the evidence sufficient to support petitioner's convictions. See HR-61 at 35; HR-62 at 35. In Cause No. F01-40162, the trial court also recognized that petitioner cannot challenge the sufficiency of the evidence in a state petition for writ of habeas corpus. See HR-62 at 35. In Cause No. F01-40161, the trial court made no mention of any inability to challenge the sufficiency of the evidence in a state writ. See HR-61 at 32-36. Thus, it appears from the findings of the trial court that the State adjudicated the sufficiency claim raised in Cause No. F01-40161 on the merits, and that the State adjudicated the sufficiency claim raised in Cause No. F01-40162 both on the merits, and alternatively on a procedural basis. Due to the nature of the sufficiency claim, and the fact that petitioner pled guilty in both state cases challenged in this action, the Court need not definitively decide whether the State adjudicated the sufficiency claims on the merits.
Section 2254(d) (1) concerns pure questions of law and mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A decision is contrary to clearly established federal law, within the meaning of § 2254(d) (1), "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
With respect to the "unreasonable application" standard, Williams instructs that a writ must issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." 529 U.S. at 413; accord Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." 529 U.S. at 407. "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; accord Penry, 532 U.S. at 793.
Section 2254(d) (2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000). Under § 2254(d) (2), federal courts "give deference to the state court's findings unless they were `based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e) (1).
III. VOLUNTARINESS OF PLEA
In this case, petitioner asserts that his guilty pleas were neither knowing nor intelligent due to ineffective assistance of counsel. (Mem. Supp. at 10-12.) With respect to the involuntariness of his pleas, he also asserts that the State "failed to prove that [he] ever possessed 400 grams or more of methamphetamine, and the State failed to prove every element of the offense." (Pet. at 7.)
Petitioner also states that "[t]here is no preponderance of the evidence supporting the order revoking the applicant's probation." (Pet. at 7.) Because petitioner expressly does not challenge the revocation of his probation in this action, ( see Pet. at 2; Mem. Supp. at 1-12), the Court construes petitioner's arguments regarding his guilty plea as attacking the sufficiency of the evidence to support the pleas.
A plea of guilty waives a number of constitutional rights. Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); Joseph v. Butler, 838 F.2d 786, 789 (5th Cir. 1988). Thus, the Fourteenth Amendment Due Process Clause imposes certain requirements to ensure the validity of a guilty plea. Fischer v. Wainwright, 584 F.2d 691, 692 (5th Cir. 1978) (citing Brady v. United States, 397 U.S. 742 (1970); Boykin, 395 U.S. 238; Johnson v. Zerbst, 304 U.S. 458 (1938)). " Boykin requires that defendants have a hearing prior to entry of the plea, at which there needs to be an affirmative showing that the decision to plead guilty was voluntarily and intelligently made." Matthew v. Johnson, 201 F.3d 353, 368 n. 22 (5th Cir. 2000). In addition, "the voluntary and intelligent nature of the plea [must] be apparent on the face of the record." See Holloway v. Lynaugh, 838 F.2d 792, 793 (5th Cir. 1988). Boykin also sets out "the contemporary standards for plea bargain admonishments." See United States v. Barlow, 17 F.3d 85, 89 (5th Cir. 1994).
Fed.R.Crim.P. 11(c) "codifies" the Boykin admonishments. See Fed.R.Crim.P. 11(c) advisory committee's note on 1974 amendments.
A plea "is constitutionally valid only to the extent it is `voluntary' and `intelligent.'" Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Brady, 397 U.S. at 748). "The voluntariness of a plea is determined by `considering all of the relevant circumstances surrounding it.'" Id. (quoting Brady, 397 U.S. at 749). Pleas are involuntary when induced by threats, improper promises, deception, or misrepresentation. See United States v. Amaya, 111 F.3d 386, 389 (5th Cir. 1997). A plea qualifies as intelligent when the criminal defendant enters it after receiving "real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process." Bousley, 523 U.S. at 618 (quoting Smith v. O'Grady, 312 U.S. 329, 334 (1941)). "Before the trial court may accept a guilty plea, the court must ensure that the defendant `has a full understanding of what the plea connotes and of its consequence.'" Taylor v. Whitley, 933 F.2d 325, 329 (5th Cir. 1991) (quoting Boykin, 395 U.S. at 244). "A guilty plea is invalid if the defendant does not understand the nature of the constitutional protection that he is waiving or if he has such an incomplete understanding of the charges against him that his plea cannot stand as an admission of guilt." James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995) (citing Henderson v. Morgan, 426 U.S. 637, 645 n. 13 (1976)). In determining whether a plea is voluntary and intelligent, "the critical issue is whether the defendant understood the nature and substance of the charges against him, and not necessarily whether he understood their technical legal effect." Taylor, 933 F.2d at 329.
A prisoner may not generally "collaterally attack a voluntary and intelligent" plea. Id. "A federal court will uphold a guilty plea challenged in a habeas corpus proceeding if the plea was knowing, voluntary and intelligent." James, 56 F.3d at 666. A guilty plea "entered by one fully aware of the direct consequences . . . must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business ( e.g. bribes)." See Brady, 397 U.S. at 755. "If a defendant understands the charges against him, understands the consequences of a guilty plea, and voluntarily chooses to plead guilty, without being coerced to do so, the guilty plea . . . will be upheld on federal review." Frank v. Blackburn, 646 F.2d 873, 882 (5th Cir. 1980) ( en banc), modified on other grounds, 646 F.2d 902 (5th Cir. 1981). "When considering challenges to guilty plea proceedings, [the courts] have focused on three core concerns: absence of coercion, the defendant's understanding of the charges, and a realistic understanding of the consequences of a guilty plea." United States v. Gracia, 983 F.2d 625, 627-28 (5th Cir. 1993). The consequences of a guilty plea means only that the defendant knows "the maximum prison term and fine for the offense charged." Ables v. Scott, 73 F.3d 591, 592 n. 2 (5th Cir. 1996) (internal quotations omitted). The Court thus considers whether petitioner's pleas were voluntarily and intelligently made.
The core concerns recognized by the Fifth Circuit Court of Appeals are addressed by the admonishments contained in Article 26.13 of the Texas Code of Criminal Procedure. The Fifth Circuit has held that the admonishments under Rule 11 of the Federal Rules of Criminal Procedure provide "prophylactic protection for the constitutional rights involved in the entry of a guilty plea." United States v. Gracia, 983 F.2d 625, 627 (5th Cir. 1993). The requirements of Rule 11 and Article 26.13 are substantially similar. Compare Fed.R.Crim.P. 11 with TEX. CODE CRIM. PROC. ANN. art. 26.13. It therefore follows that the same "prophylactic protections" attach to the admonishments under Article 26.13 as under Rule 11.
In this case, petitioner pled guilty to two possession offenses. His signed plea agreements show that he entered open pleas of guilty in exchange for concurrent sentences and the reduction of one charged offense from possession with intent to deliver four hundred grams or more of amphetamine to mere possession of four to four hundred grams of amphetamine. HR-61 at 50; HR-62 at 49. Those agreements contain a section entitled "Court's Admonitions to Defendant" which set forth the charges against petitioner as modified by the plea agreement. HR-61 at 50; HR-62 at 49. Those sections also indicate the range of punishment for the two offenses — 5 to 99 years or life for the amphetamine offense and 2 to 20 years imprisonment for the methamphetamine offense. HR-61 at 50; HR-62 at 49. The forms admonished petitioner of his constitutional rights and that he could not appeal without permission of the court, unless the court imposed a punishment greater than the one agreed to by the petitioner. HR-61 at 50; HR-62 at 49. In a section of the agreements entitled "Defendant's Statements and Waivers" petitioner stated:
I am the accused in the charging instrument and am mentally competent. I understand the nature of the accusation made against me, the range of punishment for such offense, and the consequences of a plea of guilty. . . .
I hereby waive my right to be tried on an indictment returned by a grand jury, any and all defects, errors, or irregularities, whether of form or substance, in the charging instrument . . . I affirm that my plea and judicial confession are freely and voluntarily made, and not influenced by any consideration of fear, persuasion, or delusive hope of pardon or parole.
HR-61 at 51; HR-62 at 50. The Acknowledgment section of the plea agreements provides: "I have read and I understand, all the foregoing admonitions and warnings regarding my rights and my plea, and that my statements and waivers are freely and voluntarily made with full understanding of the consequences." HR-61 at 51; HR-62 at 50.
The trial court found that petitioner "knowingly and voluntarily entered" his pleas. HR-61 at 34; HR-62 at 34. It found that petitioner had been "thoroughly and properly admonished" as to the meaning and consequences of his pleas. HR-61 at 34; HR-62 at 34. In this case, furthermore, the trial court secured an affidavit from trial counsel before considering the state writs. HR-61 at 33; HR-62 at 33. With respect to the claimed involuntary pleas counsel averred:
I met with Mr. Anderson on six occasions. I fully advised and explained to him the law and range of punishment for each case. I fully advised Mr. Anderson of all his rights in each case, including his right to a jury trial in the two new cases. I did not at anytime `Brow beat', `Verbally Abuse' or coerce Mr. Anderson in any way into pleading guilty and true to the charges and allegations.
On July 12, 2001, after again explaining Mr. Anderson's rights to him and discussing the facts of the cases with him, including the positive results of the lab report, it was Mr. Anderson's decision to enter pleas of guilty and true before the court in each case and go open to the court for punishment. The court also admonished him of his rights and the consequences of pleading guilty and true in each case. He pleaded guilty and true in each case knowingly, intelligently, and voluntarily. He testified at the open plea hearing and was aware of and understood the possible consequences of his pleas of guilty and true.
HR-61 at 38-39; HR-62 at 38-39. The trial court found counsel "trustworthy" and the statements in his affidavit "worthy of belief." HR-61 at 33-34; HR-62 at 33-34. Such credibility finding is presumed correct unless petitioner rebuts it with clear and convincing evidence. See 28 U.S.C. § 2254(e) (1).
Petitioner has not shown clear and convincing evidence that overcomes the presumption of correctness. The record simply does not support a finding that petitioner's guilty pleas were involuntary. The totality of the circumstances reflects that petitioner had a clear understanding of the proceedings against him, the nature of the offenses for which he was charged, and the consequences of entering his pleas.
Furthermore, petitioner has also not overcome the presumption of verity accorded solemn declarations made in open court. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (holding that "[s]olemn declarations in open court carry a strong presumption of verity [and] [t]he subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal"). He has not overcome the presumption of regularity and "great weight" accorded state-court records. See Bonvillian v. Blackburn, 780 F.2d 1248, 1252 (5th Cir. 1986) (holding that state-court records are "accorded great weight"); Webster v. Estelle, 505 F.2d 926, 929-30 (5th Cir. 1974) (holding that state-court records "are entitled to a presumption of regularity"). Petitioner's contention that his pleas were involuntary and coerced is unsupported by the record and contradicts his statements in open court. Such contention also contradicts the signed plea agreements that he entered his pleas "freely and voluntarily."
Given the totality of the circumstances, it is evident that petitioner fully understood the charges against him and the consequences of his pleas. Thus, his pleas appear knowing, intelligent, and voluntary. Unless petitioner's specific claims of ineffective assistance of counsel impacted his decisions to plead guilty, the Court should find that petitioner entered his pleas knowingly, intelligently, and voluntarily.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner specifically alleges that his trial attorney rendered ineffective assistance by (a) coercing him into pleading guilty, (b) failing to adequately investigate the case, (c) failing to request an examining trial, (d) failing to request an independent analysis of the drugs, (e) failing to file a motion to suppress, (f) failing to explain the law and the consequences of his pleas, and (g) failing to challenge the sufficiency of the evidence.
To successfully state a claim of ineffective assistance of counsel under existing precedent of the United States Supreme Court, petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The Strickland test applies when a petitioner alleges he was denied effective assistance of counsel in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). "[I]n a guilty plea scenario, a petitioner must prove not only that his attorney actually erred, but also that he would not have pled guilty but for the error." See Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994).
A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. See 466 U.S. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000). To determine whether counsel's performance is constitutionally deficient courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691.
When a prisoner challenges his plea based on ineffective assistance of counsel, the "prejudice" requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill, 474 U.S. at 58. To satisfy this requirement in the plea context, the prisoner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. Furthermore, when alleged deficiencies of trial counsel occur in a non-capital, state sentencing context "a court must determine whether there is a reasonable probability that but for trial counsel's errors the defendant's non-capital sentence would have been significantly less harsh." Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993); see also United States v. Grammas, 376 F.3d 433, 438 n. 4 (5th Cir. 2004) (holding that Spriggs survived Glover v. United States, 531 U.S. 198 (2001) in the § 2254 context). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96.
A guilty plea is "open to attack on the ground that counsel did not provide the defendant with `reasonably competent advice.'" Cuyler v. Sullivan, 446 U.S. 335, 344 (1980) (quoting McMann v. Richardson, 397 U.S. 759, 770-771 (1970)). With respect to such pleas, "[c]ounsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution." Argersinger v. Hamlin, 407 U.S. 25, 34 (1972). However, once a criminal defendant enters a knowing, intelligent, and voluntary guilty plea, all non-jurisdictional defects in the proceedings below are waived except for claims of ineffective assistance of counsel relating to the voluntariness of the plea. United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000); Nelson v. Hargett, 989 F.2d 847, 850 (5th Cir. 1993); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983).
When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.Tollett v. Henderson, 411 U.S. 258, 267 (1973).
A. Ineffective Assistance Claims Directly Related to Voluntariness of Plea
In this instance, petitioner raises two ineffective assistance claims that specifically relate to the voluntariness of his guilty pleas, i.e., the claim that his attorney coerced him to plead guilty and the claim that his attorney failed to explain the law and consequences to him. However, in light of the trial court's credibility finding with respect to the affidavit of counsel and petitioner's failure to overcome the presumption of correctness of such finding, the Court finds that petitioner's attorney did not coerce him into pleading guilty. It further finds no deficiency with respect to explaining the law and consequences of the pleas to petitioner. Because the Court finds no deficiency of counsel in these respects, these claims of ineffective assistance do not entitle petitioner to federal habeas relief and do not impact the voluntariness of his pleas.
B. Other Pre-plea Ineffective Assistance Claims
Petitioner also claims that his attorney rendered ineffective assistance by failing to investigate his case, file pre-trial motions, and request an examining trial. Because such alleged failures occurred prior to his guilty pleas and do not affect the jurisdiction of the trial court or the voluntariness of the pleas, these claims were waived by petitioner's knowing, intelligent, and voluntary plea. See United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000).
In addition, to the extent these claims survive the waiver associated with a voluntary guilty plea, they fail because petitioner has not affirmatively shown prejudice. He does not explain how the failure to request an examining trial prejudiced him. He does not show that an independent analysis of the drugs would have revealed evidence favorable to him. He fails to show that a motion to suppress would have been successful. He merely argues that an adequate investigation could or would have raised an illegal search and seizure defense and would have called into doubt the weight of the illegal substances. ( See Mem. Supp. at 7.) Despite his arguments, petitioner has not shown that further investigation would have created a reasonable probability that he would have insisted on pleading not guilty and proceeding to trial. He has not shown that he had a viable basis to exclude evidence from trial based upon an illegal search and seizure. He has not shown that the weight of the illegal substances was lower than the amounts alleged by the State so that a reasonable probability existed that he would not have pleaded guilty and insisted on going to trial. He has also not shown that the weight of the drugs created a reasonable probability that he would have received a lighter sentence had counsel obtained an independent analysis of the drugs.
Furthermore, in his traverse, petitioner focuses on the absence of laboratory results showing 400 grams of methamphetamine. (Traverse at 5.) He provides a lab report that shows the analysis of two exhibits totaling 1.49 grams which tested positive for methamphetamine. (Ex. B attached to Traverse.) However, the fact that there is no lab report which shows he possessed 400 grams of methamphetamine is immaterial to petitioner's claims of ineffective assistance of counsel or his claim that his guilty pleas were involuntary. Petitioner was charged with and pled guilty to possessing one to four grams of methamphetamine and four to four hundred grams of amphetamine.
Considering all the circumstances, petitioner has not shown a reasonable probability that, but for the alleged deficiencies of counsel, he would have pleaded not guilty and insisted on going to trial. Nor has he shown a reasonable probability that absent these alleged deficiencies of counsel, his sentence would have been significantly less harsh. He thus has shown no ineffective assistance of counsel that rendered his pleas involuntary or unknowing.
C. Post-plea Ineffective Assistance Claim
Petitioner further claims that his attorney failed to challenge the sufficiency of the evidence. Texas courts hear evidence "to support the judgment, not to accept a plea." Vanderburg v. State, 681 S.W.2d 713, 718 (Tex.App.-Houston [14 Dist.] Aug. 16, 1984, pet. ref'd). Under TEX. CODE CRIM. P. ANN. art. 1.15, the state must produce sufficient evidence to support a judgment of guilty "[ a]fter a defendant has entered a plea of guilty." Id. (emphasis added). In Texas, a guilty plea "is a conviction with nothing remaining but for a court to render judgment and determine punishment." Id. Thus, the waiver principle associated with the entry of a plea of guilty appears inapplicable because the alleged failure to challenge the sufficiency of the evidence occurred after petitioner's guilty pleas. Accordingly, the Court considers this claim on its merits.
Although Article 1.15 was amended in 1991, the amendment merely removed a clause that limited pleas to "felony cases less than capital."
The Court notes that the state requirement that sufficient evidence support a judgment of guilty differs from the constitutional requirement that sufficient evidence support the conviction. As will be discussed in greater detail, petitioner waived his right to demand that sufficient evidence support his conviction. See United States v. Broce, 488 U.S. 563, 569 (1989). Under state law, however, a guilty plea does not waive the Texas requirement.
In this instance, the trial court considered petitioner's judicial confessions and guilty pleas as evidence to support his guilt. HR-61 at 35; HR-62 at 35. Under Texas law, "[i]t is well settled that a judicial confession, [s]tanding alone, is sufficient to sustain a conviction upon a guilty plea." Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1979); accord Ramirez v. State, 139 S.W.3d 731, 733 (Tex.App. — Fort Worth 2004, pet. ref'd). Because the judicial confessions are sufficient to support the pleas, counsel had no basis to challenge the sufficiency of the evidence. Attorneys do not render deficient representation when they fail to challenge the sufficiency of the evidence to support a guilty plea, when the trial court considers a judicial confession which goes to the charges against the client. Consequently, this claim of ineffective assistance entitles petitioner to no federal habeas relief.
To the extent petitioner claims that the trial court erred in the evidence it received to support the guilty pleas, ( see Pet. at 7 (stating that "the trial court abused its discretion" related to the evidence submitted to the trial court)), such claim also entitles petitioner to no federal habeas relief because the judicial confessions are sufficient to support the pleas under state law.
V. INSUFFICIENCY OF EVIDENCE
Petitioner also claims that "no evidence" supports the allegation that he possessed four hundred grams or more of methamphetamine. As noted previously, whether petitioner possessed four hundred grams of methamphetamine is immaterial to this action. Petitioner was charged with, and he pled guilty to, possessing one to four grams of methamphetamine and four to four hundred grams of amphetamine. Because there was no allegation regarding possession of four hundred grams or more of methamphetamine, the facts of this case do not entitle petitioner federal habeas relief on this claim.
Furthermore, to the extent that petitioner intends to challenge the legal sufficiency of the evidence, see Haley v. Cockrell, 306 F.3d 257, 266-67 (5th Cir. 2002) (noting that a claim of "no evidence" is the same as a claim of insufficiency of the evidence), vacated on other grounds, ___ U.S. ___, 124 S. Ct. 1847 (2004), petitioner's pleas relieved the State of its Constitutional burden to put forth evidence sufficient to sustain his convictions. As already discussed, his guilty pleas were knowing, intelligent, and voluntary. By entering said pleas petitioner has, therefore, waived his right to demand any evidence to sustain his convictions. See United States v. Broce, 488 U.S. 563, 569 (1989) (holding that "when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary"). A "failure of the Texas state court to require evidence of guilt corroborating a voluntary plea" raises "[n]o federal constitutional issue." Smith v. McCotter, 786 F.2d 697, 702 (5th Cir. 1986) (quoting Baker v. Estelle, 715 F.2d 1031, 1036 (5th Cir. 1983)). The "mandate that sufficient evidence exist from which a rational fact finder could find guilt beyond a reasonable doubt is inapplicable to convictions based on a guilty plea." Id. at 702-03. Accordingly, this claim is not proper for federal habeas review.
To the extent such claim should be construed as a claim of actual innocence, the claim entitles petitioner to no federal habeas relief. A claim of actual innocence is not an independent basis for federal habeas relief. E.g., Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000); Graham v. Johnson, 168 F.3d 762, 788 (5th Cir. 1999); Lucas v. Johnson, 132 F.3d 1069, 1075 (5th Cir. 1998).
VI. EVIDENTIARY HEARING
Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.VII. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.