Opinion
No. 3:02-CV-0546-M.
November 18, 2004.
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 June 10, 2001, the Irving Police Department arrested petitioner for possession of methamphetamine. ( See Arrest Records, attached as App. A to Resp.'s Notice of Filing Police Report Additional State Court Docs.) On June 19, 2001, the State filed an Information in Cause No. F01-34720, which charged that, on or about June 10, 2001, petitioner unlawfully, intentionally, and knowingly possessed cocaine. ( See Information, attached as part of App. B to Resp.'s Notice of Filing Police Report Additional State Court Docs.) On the date the State filed the Information, petitioner signed a plea agreement whereby he agreed to plead guilty to possession of cocaine in exchange for an agreed sentence of eighteen months imprisonment. ( See Plea Agreement, attached as part of App. B.) He also executed a "Judicial Confession" in which he judicially confessed that on June 10, 2001, he did "unlawfully, intentionally and knowingly possess a controlled substance, to-wit: METHAMPHETAMINE." ( See Judicial Confession attached as part of App. B.) After executing the plea agreement and judicial confession, petitioner appeared before the trial judge on June 19, 2001, and pled guilty to possession of cocaine. ( See Tr. of Hearing on Plea of Guilty and Sentencing (Tr.) at 3-10, attached to Resp.'s Notice of Filing State Court Transcript; see also, Pet. Writ Habeas Corpus (Pet.) at 2 (showing he pled guilty to possession of a controlled substance).)
At the plea hearing, the trial court orally informed petitioner that he was "charged in this case with the offense of possession of cocaine." ( See Tr. at 3-10.) Before accepting petitioner's plea, the trial court examined petitioner as to its voluntariness. ( Id. at 3-6.) It orally admonished petitioner of the punishment range, including the possibility of a fine not to exceed $10,000. ( Id. at 3.) Petitioner thereafter entered a plea of guilty, and the trial court accepted the plea and set punishment at eighteen months imprisonment in accordance with the plea agreement. ( Id. at 6, 10.)
Petitioner filed a notice of appeal on July 20, 2001. See Def.'s Notice of Appeal Pauper Oath Appointment of Attorney on Appeal filed in Cause No. 05-01-1218-CR. On October 5, 2001, the court of appeals received a motion to withdraw petitioner's appeal. See Appellant's Mot. to Withdraw Appeal filed in Cause No. 05-01-1218-CR. The court of appeals dismissed the appeal on October 8, 2001. See Cox v. State, No. 05-01-1218-CR, slip op. at 1 (Tex.App.-Dallas Oct. 8, 2001, no pet.). Mandate issued that same day. See Mandate (contained in state court record). On October 17, 2001, petitioner filed a state application for writ of habeas corpus to challenge his conviction. See S.H. Tr. at 2. On February 13, 2002, the Texas Court of Criminal Appeals denied the application without written order on findings of the trial court without a hearing. See Ex parte Cox, No. 23,131-02, slip op. at 1 (Tex.Crim.App. Feb. 13, 2002).
"S.H. Tr." denotes the state habeas records attached to Ex parte Cox, No. 23,131-02, slip op. (Tex.Crim.App. Feb. 13, 2002).
Petitioner filed the instant federal petition on March 8, 2002. The Court received supplemental memorandums from petitioner on April 29, 2002, and August 21, 2002. Respondent filed his answer on September 6, 2002, and submitted state court records. On October 8, 2002, the Court received petitioner's traverse to respondent's answer. On March 10, 2003, the Court ordered respondent to provide a copy of the transcript of petitioner's guilty plea hearing of June 19, 2001, and a copy of the police report of petitioner's arrest. Respondent thereafter filed copies of those items and supplemented his answer.
D. Substantive Issues : In his traverse, petitioner asserts that (1) his guilty plea was not knowingly and voluntarily made; (2) there is no evidence to support his conviction; and (3) he received ineffective assistance of counsel in that his attorney (a) coerced him into pleading guilty, (b) failed to investigate the facts of the case, (c) failed to file pre-trial motions, (d) failed to explain the law and consequences to him, and (e) failed to challenge the sufficiency of the evidence. ( See Traverse §§ II III.)
Petitioner initially raised other substantive grounds in his petition but specifically withdrew them in his traverse. ( See Traverse § III.) The Court cites to the traverse because it succinctly states petitioner's remaining claims.
Because resolution of some claims are somewhat dependent upon rulings of other claims, the Court will consider the raised claims in a different sequence.
E. Exhaustion : Respondent contends that petitioner has not sufficiently exhausted his state remedies with respect to the claim that there is no evidence to support his conviction (Claim 2). ( See Answer at 7.) Respondent further contends that petitioner has not exhausted his state remedies with respect to any claim based upon the variance between his judicial confession and admonishments given to petitioner. ( See Supp. Answer at 2 n. 1.) Respondent argues that such unexhausted claims are procedurally barred from federal habeas review. (Answer at 7-8; Supp. Answer at 2 n. 1.) He does not seek dismissal for the failure to exhaust, but rather on the related ground of procedural bar. (Answer at 7-8; Supp. Answer at 2 n. 1.) Because it appears that petitioner is entitled to no habeas relief on the alleged unexhausted claims, the Court bypasses the procedural bar dispute and proceeds to the merits of claims.
The Court need not definitively decide whether the alleged unexhausted claims 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). In this case, the denial of petitioner's state writ constitutes an adjudication on the merits. See 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). However, the state court did not adjudicate petitioner's insufficiency claim on the merits. See S.H. Tr. at 36-39. It instead found that such "claim is not properly raised in a habeas corpus application." Id. at 38. The Texas Court of Criminal Appeals denied petitioner's state writ on the findings of the trial court. See Ex parte Cox, No. 23,131-02, slip op. at 1 (Tex.Crim.App. Feb. 13, 2002). Such denial constitutes a procedural ruling on the insufficiency claim. See Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex.Crim.App. 2004). The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply to petitioner's claims other than his insufficiency claim.
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; see also, 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; see also, 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 plea of guilty to the single charge against him was not knowing or voluntary because his attorney told him he "had to plea guilty or get life," and that he "may get 2 to life or two charges" if he did not plead guilty. (Pet. at 7.) He further claims that his attorney coerced him to plead guilty with a promise that counsel "would seek a reduction pursuant to 12.44(A) of the Texas Penal Code." (Supp. Mem. received Aug. 21, 2002, at 4.)
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 plea was 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.
A. Plea Hearing
In this case, the State filed an Information which charged petitioner with possession of cocaine. ( See Information.) Petitioner appeared before the trial judge and pled guilty to possession of cocaine despite the fact that his judicial confession and arrest records show he possessed methamphetamine. ( See Tr. at 3-10.) His signed plea agreement shows that he pled guilty in exchange for an eighteen-month sentence. ( See Plea Agreement.) That agreement contains a section entitled "Court's Admonitions to Defendant" which states: "You are charged with the offense of possession of a controlled substance, to-wit: cocaine, as charged in the affidavit and information." ( Id.) That section indicated that the range of punishment is "180 days — 2 years." ( Id.) The form 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. ( Id.) In a section of the agreement entitled "Defendant's Statements and Waivers" petitioner stated:
Petitioner contends that his signed judicial confession constitutes "the charging instrument." ( See Traverse § IV.) Such contention has no basis in fact or law.
Petitioner contends that, although the trial court asked whether he was pleading guilty to possession of methamphetamine, it found him guilty of possession of cocaine. ( See Traverse § IV.) However, the transcript of the guilty plea hearing reflects the court's statement to petitioner that "you're charged in this case with the offense of possession of cocaine." ( See Tr. at 3-10.) The record reflects no inquiry regarding a plea to possession of methamphetamine.
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.
( Id.) The Acknowledgment section of the plea agreement 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." ( Id.)
Before accepting petitioner's guilty plea the trial court examined petitioner as to its voluntariness. ( See Tr. at 3-6.) The trial court orally admonished petitioner of the punishment range, including the maximum fine that could be imposed. ( Id. at 3.) It inquired about petitioner's understanding of the documents that he signed, and petitioner indicated that he understood them. ( Id.) Petitioner conceded that the plea agreement was "a good deal" and indicated that he wanted "to throw [him] self on the mercy of the Court and ask if [he] could get some kind of help or treatment or something while [serving his sentence]." ( Id. at 4.) The trial court discussed the possibility that the State could seek an enhanced range of punishment should the case proceed to indictment. ( Id. at 5.) Petitioner responded: "I understand that my lawyer's doing a fine job here representing me and I think the District Attorney has been more than lenient. . . ." ( Id. at 5.) The trial court thereafter explained that it could order petitioner to "serve part of the sentence in the State Jail Substance Abuse Facility . . . [and he] wouldn't be on probation [after he served his sentence]." ( Id. at 6.) The following exchange then occurred:
The Court: Okay. Understanding everything then, what is your plea to this charge: Guilty or not guilty?
Defendant: I'm guilty.
The Court: And no one's forced you, threatened you, promised you anything, done anything to you to get you to plead guilty; is that right?
Defendant: No, sir.
The Court: I'll accept your plea of guilty.
( Id.)
The State thereafter offered petitioner's judicial confession, and the trial court admitted it after defense counsel stated he had no objection. ( Id. at 7.) Petitioner then testified that he was the same person charged in the Information; that he had gone over the charging document with counsel; that he understood the allegations within that document; that such allegations were "true and correct"; that he was "pleading guilty as charged" in the Information; that he was pleading guilty because he was "guilty and for no other reason"; and that he was pleading guilty "freely and voluntarily." ( Id. at 7-8.) He further testified that he understood that he had a right to be indicted, and that he "freely and voluntarily" desired to "give up that right and go forward" on the Information. ( Id. at 8-9.) He also testified that he "freely and voluntarily" gave up his rights to a jury trial, to present witnesses on his behalf, and to cross-examine state witnesses. ( Id. at 9.)
After the above testimony from the petitioner, petitioner answered affirmatively when the trial court asked whether he understood "everything we've done today?" ( Id. at 10.) The trial court thus accepted the guilty plea, found petitioner guilty, and set punishment at eighteen months imprisonment consistent with the plea agreement. ( Id.)
B. Trial Court Findings
Petitioner challenged the voluntariness of his plea in his state writ. The trial court found that he "knowingly and voluntarily entered" his plea. S.H. Tr. at 37. It found that it had "thoroughly and properly admonished" petitioner as to the meaning and consequences of his plea. Id. In this case, furthermore, the trial court secured an affidavit from trial counsel before considering the state writ. Id. With respect to the claimed involuntary plea counsel averred:
In his state writ, petitioner claimed: "My attorney pressured me into pleading guilty by stating that if I did not plead guilty the State would enhance me up to 20 years. Also my attorney promised I would receive reduced punishments to a misdemeanor." S.H. Tr. at 9.
I did not pressure Mr. Cox into pleading guilty. I relayed what Damita Sangermano, the chief felony prosecutor, furnished me concerning the case. The case had not been indicted. She said that Mr. Cox's T.C.I.C. (his criminal record) showed that he had two prior penitentiary trips. She told me if the case were indicted, she would add two enhancement paragraphs and cause the range of punishment to be that of a second degree felony, two (2) to twenty (20) years in the penitentiary. I also went over the facts of the case as provided me by Ms. Sangermano connecting him to the offense.
I never promised him that he would receive misdemeanor punishment. I told him the assistant district attorney was not offering him a 12.44(a) reduction. I told him that her offer was for eighteen (18) months in the State Jail. He accepted the plea bargain. I told him this was encumbent [sic] upon him pleading guilty on an affidavit and information, and waiving his right to have his case heard before a Dallas County Grand Jury and for them to report out a true bill or no bill of indictment.
As to pre-trial investigation, I went over the police report — that was furnished to me by the assistant district attorney. This was sufficient for him.
I explained that what he was pleading guilty to was an affidavit and information. I told him he had a right to have his case heard before a grand jury and for them to report out a true bill or no bill of indictment. He chose to take the eighteen (18) months rather than risk two (2) to twenty (20) years.
I explained to him that he had ten (10) days from the date of the filing of the affidavit and information before he had to proceed forward with the plea. He waived this right.
He entered his plea freely and voluntarily. There was no coercion involved.
Id. at 46-47. The trial court found counsel "trustworthy" and the statements in his affidavit "worthy of belief." Id. at 31. 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. From the affidavit of counsel, it appears that counsel adequately explained petitioner's rights and did not coerce petitioner into pleading guilty. The record simply does not support a finding that petitioner's guilty plea was involuntary. The totality of the circumstances reflects that petitioner pled guilty to possession of cocaine so as to avoid a potentially enhanced punishment range should the State obtain an indictment against him. The hearing transcript shows that petitioner wanted to accept responsibility and throw himself on the mercy of the court in an effort to obtain drug treatment. The totality of the circumstances show that he had a clear understanding of the proceedings against him, the nature of the offense for which he was charged, and the consequences of entering his plea. ( See generally, Tr. at 3-6.)
Further, although there is a discrepancy between the judicial confession and arrest documents (alleging possession of methamphetamine) and the plea agreement, Information, and oral statements of the trial court (alleging possession of cocaine), such discrepancy does not affect the voluntariness of petitioner's plea. Under state law, when there is "an obvious mistake" between the charging instrument and the written plea, but "no indication that [such mistake] in any way misled or harmed" the defendant, such mistake does not affect the voluntariness of the plea. See Gibson v. State, 747 S.W.2d 68, 70 (Tex.App.-Corpus Christi 1988, no pet.).
In addition, a variance between the charging instrument and the actual facts surrounding the charge does not invalidate the charging instrument when one pleads guilty to the offense charged. See Defore v. State, 460 S.W.2d 128, 129 (Tex.Crim.App. 1970) (finding no error justifying reversal where defendant voluntarily pled guilty to indictment alleging sale of dangerous drug to one person whereas actual sale was made to another).
In the instant case, there is no variance between the charging instrument and the written plea. Furthermore, those two documents are entirely consistent with the oral statements of the trial court regarding the charge faced by petitioner. The record clearly reflects that petitioner pled guilty to the offense charged in the Information, such charge was properly set forth in the written plea agreement, and the trial court admonished petitioner about that charge. As the Gibson court stated, "for a plea of guilty to be effective, it must conform to, or be consistent with, the offense charged in the indictment or information; and a plea of guilty to an offense other than that charged is without effect." 747 S.W.2d at 70. In this instance, petitioner's plea is consistent with the offense charged in the Information. Thus, petitioner effectively and voluntarily plea guilty to possession of cocaine.
Petitioner has 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 plea was involuntary and coerced is unsupported by the record and contradicts his statements in open court. ( See Tr. at 3-6.) Such argument also contradicts the signed plea agreement that he entered his plea "freely and voluntarily." ( See Plea Agreement.)
Given the totality of the circumstances, it is evident that petitioner fully understood the charge against him and the consequences of his plea. Thus, his plea appears knowing, intelligent, and voluntary. Unless petitioner's specific claims of ineffective assistance of counsel impacted his decision to plead guilty, the Court should find that petitioner entered his plea knowingly, intelligently, and voluntarily.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner specifically alleges that his trial attorney rendered ineffective assistance by (a) coercing him to plead guilty; (b) failing to investigate the case; (c) failing to file pre-trial motions; (d) failing to explain the law and consequences; and (e) failing to challenge the sufficiency of the evidence during the plea. ( See Traverse § II.)
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 Related to Voluntariness of Plea
In this instance, petitioner raises two ineffective assistance claims that specifically relate to the voluntariness of his guilty plea, 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 plea 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 plea.
B. Other Pre-plea Ineffective Assistance Claims
Petitioner also claims that his attorney rendered ineffective assistance by failing to investigate his case and file pre-trial motions. Because such alleged failures occurred prior to his guilty plea and do not affect the jurisdiction of the trial court or the voluntariness of the plea, 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).
C. Post-plea Ineffective Assistance Claim
Petitioner further claims that his attorney failed to challenge the sufficiency of the evidence during his plea. Petitioner entered his plea of guilty when he responded "I'm guilty" to the trial court's inquiry: "what is your plea to this charge: Guilty or not guilty?" ( See Tr. at 6.) The court immediately indicated that it accepted the plea. ( Id.) It then asked defense counsel whether petitioner waived formal arraignment and entered a plea of guilty. ( Id. at 7.) After defense counsel answered affirmatively, the court took evidence to support the judgment. ( Id.)
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 pled guilty. 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 State offered petitioner's voluntarily signed, written judicial confession and stipulation of evidence as the only evidence against petitioner. ( See Tr. at 7.) However, that confession provides no evidence that petitioner possessed cocaine as charged in the Information. ( See Judicial Confession.) It instead shows that petitioner confessed to possession of methamphetamine. ( Id.) It thus appears that counsel may have had a legitimate basis to challenge the sufficiency of the evidence presented to support the judgment of guilty.
It is not necessarily deficient representation, however, to proceed with a bargained-for plea despite the availability of a legitimate basis to challenge the sufficiency of the evidence presented to support the judgment. Counsel averred that the prosecutor had informed him that, if the State indicted petitioner, the State "would add two enhancement paragraphs" which would increase petitioner's exposure from a maximum sentence of two years to a sentence ranging from two to twenty years imprisonment. S.H. Tr. at 46. He further averred that petitioner knew that the plea agreement with the State was contingent upon petitioner's plea to an information. Id. Because counsel also averred that he "went over the police report", id., he was aware that petitioner had been arrested for possession of methamphetamine. Counsel averred that petitioner chose to accept eighteen months imprisonment rather than risk two to twenty years imprisonment. Id. at 47.
The Court notes that there is no significant difference between the penalties for possession of cocaine and methamphetamine. Under state law, both drugs fall within "Penalty Group 1." See TEX. HEALTH SAFETY CODE ANN. § 481.102(3)(D) and (6) (Vernon 2003 and Supp. 2004) (showing that amendments in 2001 and 2003 do not change the fact that cocaine and methamphetamine fall within the same Penalty Group). Possession of the same amount of either drug is simply a violation of the same statute and results in the same punishment. See TEX. HEALTH SAFETY CODE ANN. § 481.115(a) and (b) (Vernon 2003). Section 481.115(a) provides that "a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice." Subsection (b) establishes that "[a]n offense under Subsection (a) is a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram."
In light of these averments which the trial court found credible, counsel was clearly cognizant that petitioner could face an enhanced sentence should the State indict petitioner. Under the facts of this case, counsel could reasonably forego the technically available challenge to the sufficiency of the evidence. Success on such challenge might have compelled the State to indict petitioner with an enhanced punishment range. Attorneys reasonably avoid exposing their clients to more severe punishment ranges.
On the other hand, even if counsel had challenged the sufficiency of the evidence, such challenge may have simply resulted in a correction of the discrepancy between the various documents. A correction would have given both sides the benefit of their bargained-for exchange and is entirely plausible in view of the other documents signed by petitioner which indicate that he was pleading guilty to possessing a controlled substance. The State could also have proceeded on an entirely new information which charged possession of methamphetamine. In neither of these circumstances would a challenge to the sufficiency of the evidence have resulted in a tangible benefit to petitioner. Counsel was not unreasonable in foregoing such a challenge.
Because "possession of cocaine and possession of methamphetamine" constitute different statutory offenses, Nichols v. State, 52 S.W.3d 501, 503 (Tex.App.-Dallas 2001, no pet.), the State may have been unable to amend the information had defendant timely objected to such amendment, see TEX. CODE CRIM. PROC. ANN. art. 28.10(c) (Vernon 1989) (prohibiting amendments to an indictment or information which charge a different offense). Even if the State could not amend the information, however, nothing in Article 28.10 would have prevented the State from proceeding on an entirely new information or from indicting petitioner in the first instance. See Wisenbaker v. State, 782 S.W.2d 534, 536 (Tex.App. — Hous. [14th Dist.] 1989) (holding that Article 28.10 has no applicability to a "reindictment").
Further, petitioner signed the judicial confession and plea agreement despite the apparent conflict between them. In open court, he stated that he understood the charges against him and the signed documents. The actions of petitioner thus exhibit acceptance of the discrepancy between the judicial confession and the charging instrument. Because the reasonableness of counsel's actions or inaction may be determined or substantially influenced by petitioner's own statements and actions, the Court finds that petitioner's own actions and statements also support finding the actions of counsel reasonable.
In summary, it appears reasonable for the petitioner's attorney to not challenge the sufficiency of the evidence. Petitioner has not overcome the strong presumption that his attorney's conduct falls within the wide range of reasonable assistance. Petitioner, furthermore, has made no showing that, but for the alleged error of counsel, he would have insisted on pleading not guilty and proceeded to trial. The record does not support such insistence. To the contrary, the record shows that petitioner voluntarily pled guilty so as to obtain an eighteen month sentence and treatment for his drug problem. Petitioner has also not shown that a timely challenge to the sufficiency of the evidence by his attorney would have created a reasonable probability that his sentence would be significantly less harsh in light of the same penalty range associated with possession of cocaine versus methamphetamine. The Court should find no deficiency in petitioner's attorney's failure to challenge the sufficiency of the evidence to support the judgment of guilty. For all of these reasons, petitioner's claim that his attorney failed to challenge the sufficiency of the evidence entitles him to no federal habeas relief.
The Court also notes that petitioner gave testimony at the plea hearing after the admission of his judicial confession where he confirmed that he was "pleading guilty as charged" in the Information, and only because he was guilty as charged. (Tr. at 8.) Under state case law, petitioner's admissions in his signed plea agreement in conjunction with his testimony given in open court are sufficient to support his conviction, notwithstanding the variance between his judicial confession and the other documents with respect to the drug at issue. See Jackson v. State, No. 05-94-00150-CR, 1995 WL 259198, at *1-2 (Tex.App.-Dallas Apr. 27, 1995, pet. ref'd); see also Arellano v. State, No. 13-96-114-CR, 1997 WL 33642760, at *1-2 (Tex.App.-Corpus Christi 1997, no pet. h.) (holding that answers to court's questions can constitute a judicial confession which standing alone will support the judgment).
V. INSUFFICIENCY OF EVIDENCE
Petitioner also claims that "no evidence" supports the conviction. Petitioner's claim that "no evidence" supports his conviction is the same as a challenge to 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). Although the State presented no direct evidence that petitioner possessed cocaine, petitioner's plea relieved the State of its Constitutional burden to put forth evidence sufficient to sustain his conviction. As already discussed, his guilty plea was knowing, intelligent, and voluntary. By entering said plea petitioner has, therefore, waived his right to demand any evidence to sustain his conviction. 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.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.