Opinion
Civil Action No. 4:01-CV-636-Y
March 1, 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, United States Code, Section 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:
FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to Title 28 of the United State Code, Section 2254.
B. PARTIES
Petitioner Donivian Lee Douglass, TDCJ-ID #865069, is in the custody of the Texas Department of Criminal Justice, Institutional Division and is presently incarcerated in the Stevenson Unit in Cuero, Texas. Douglass is represented by counsel in the current proceedings.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
Douglass is in custody pursuant to four judgments entered by the 372nd District Court of Tarrant County, Texas. He first pleaded guilty pursuant to a plea bargain to the offense of possession of a controlled substance in Cause #0507079D on March 28, 1994, and was placed on five years' deferred adjudication probation. (State Habeas R. 57). On March 6, 1998, Douglass pleaded guilty pursuant to a plea bargain in Cause #0667057D to the offense of aggravated robbery with a deadly weapon, a firearm, for which he was also placed on deferred adjudication probation. (State Habeas R. 89). On June 11, 1998, Douglass was indicted in Cause #0693072D and Cause #0693073D for two charges of aggravated robbery by threat of an elderly person. Also on June 11, 1998, the State filed a petition to proceed to adjudication in Cause #0507079D and Cause H0667057D because of the new indictments and on the grounds that Douglass had committed other technical violations of the terms of his probation. (State Habeas R. 60, 94). Douglas pleaded not guilty to the new charges, and pleaded not true to the allegations in the State's petition to proceed to adjudication. Douglass waived his right to a jury trial and a consolidated bench trial and probation revocation hearing was held before the state court.
On February 19, 1999, the trial court entered judgment in Cause 110693072D finding Douglass guilty of aggravated robbery by threats of an elderly or disabled person and sentencing him to thirty (30) years' confinement. (State Habeas R. 119). The trial court entered judgment in Cause #06930731) finding Douglass guilty of the lesser included offense of aggravated assault with a deadly weapon, to-wit: a chair, and sentenced him to twenty (20) years' imprisonment. (State Habeas R. 139). in addition, the trial court entered a judgment adjudicating guilt in Cause #0507079D and sentencing Douglass to twenty (20) years' confinement. (State Habeas R 64). On November 11, 1999, the trial court also entered judgment adjudicating guilt in Cause #0667057D based on Douglass's commission of the two new offenses, and sentenced him to thirty (30) years confinement and a $500 fine for that offense. (State Habeas R. 98). Douglass's sentences run concurrently.
Douglass's convictions were affirmed on direct appeal to the Texas Court of Appeals, and his petition for discretionary review was refused. Douglas v. State, Nos. 2-99-086-CR, 2-99-087-CR, 2-99-101-CR, 2-99-102-CR (Tex.App.-Fort Worth Oct. 28, 1999, pet. ref'd). Douglass has also filed one state application for habeas relief, which the Texas Court of Criminal Appeals denied without written order based on findings of the trial court entered without a hearing. Ex parte Douglas, No. 47, 720-01 (Tex.Crim.App. Dec. 6, 2000). Douglass, with the assistance of counsel, filed his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Texas, Fort Worth Division, on July 27, 2001.
The state court record recognize Petitioner's legal name as Douglas: however, the petition for writ of habeas corpus indicates Petitioner's name is Douglass and that spelling will be used in the present proceedings.
D. ISSUES
Petitioner presents the following as grounds for relief:
1. He was denied due process by the conduct of his counsel both at trial and during the hearing to revoke his probation and proceed to adjudication
2. He was denied the effective assistance of counsel both at trial and during the hearing to revoke his probation and proceed to adjudication.
3. The evidence is factually insufficient.
4. The trial court denied him due process when it adjudicated guilt and sentenced him.
E. RULE 5 STATEMENT
Respondent believes Petitioner has sufficiently exhausted available state remedies on the issues presented and does not move for dismissal on this ground.
F. LEGAL STANDARD FOR GRANTING HABEAS CORPUS RELIEF
The standards codified in 28 U.S.C. § 2254 guide our review of a petition for writ of habeas corpus filed by a state prisoner:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 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.28 U.S.C. § 2254 (d). See also Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Relief is authorized if a 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 Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523, 1518, 146 L.Ed.2d 389 (2000). Relief is also available if the state court identifies the correct legal principle but unreasonably applies that principle to the facts of the prisoner's case or reaches a decision based on an unreasonable factual determination. See 28 U.S.C. § 2254 (d)(1)-(2), Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000). Mere disagreement with the state court is not enough: The standard is one of objective reasonableness. Montoya, 226 F 3d at 404. State court determinations of underlying factual issues are presumed correct, and the petitioner has the burden to rebut the presumption with clear and convincing evidence. 28 U.S.C. § 2254 (e)(1).
G. DISCUSSION
1. Ineffective Assistance of Counsel
Douglass asserts that he was denied due process and his right to the effective assistance of counsel due to counsel's errors and omissions at the trial for his new offenses and during the hearing to adjudicate his guilt for the previous offenses.
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. Amend. VI. Complaints about the performance of defense counsel are evaluated under the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984). The first prong of Strickland requires the defendant to show that counsel's performance was deficient. Id. at 698, 104 S.Ct. at 2064, 80 L.Ed.2d 674. The defendant must show that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d 674. The second prong requires the defendant to show prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d 674. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d 674. The court need not address both prongs of the Strickland standard if the complainant has made an insufficient showing on one. Id. at 697, 104 S.Ct. at 2069. 80 L.Ed.2d 674.
A claim of ineffective assistance is a mixed question of law and fact. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070, 80 L.Ed 2d 674. Therefore, the federal court cannot grant habeas relief unless the state court's rejection of the claim involved an unreasonable application of the law to the facts. 28 U.S.C. § 2254 (d)(1).
Douglass criticizes the state court for focusing its inquiry solely on the performance of defense attorney Lawrence Brown, who represented Douglass at his trial and revocation hearing, and failing to obtain any evidence from the other attorneys who previously represented him when he entered his guilty pleas. His complaint is not well-founded as the state court that reviewed his stale habeas application ordered and received affidavits from Brown as well as Douglass' previous attorneys, Kyle Claunch and Hobert Douglas. (Stale Habeas R. 31-40).
Douglass complains that counsel lacked a firm command of the facts and applicable law and was ineffective in failing to conduct an adequate pretrial investigation into the underlying facts or potential witnesses, failing to file pretrial motions or make proper objections at trial, failing to communicate with his client or adequately advise his client about plea bargain offers, failing to call available witnesses, and failing to marshal and present mitigating evidence on punishment. The state court entered the following factual findings:
16. The Honorable Lawrence Brown represented the applicant during the trial of cause numbers 0693072 and 0693073 and during the probation revocation of cause numbers 0507079 and 0667057.
17. During the six months preceding June 4, 1998 Mr. Brown had a number of telephone conversations with Ms. Joyce Bigelow, the applicant's mother. During these conversations, Ms. Bigelow advised Mr. Brown that her son was being held in the Tarrant Count Jail for three aggravated robbery cases that he did not commit, and two probation revocation matters based in large part on the new aggravated robbery offenses. Ms. Bigelow explained to Mr. Brown in detail that her son could not have committed the aggravated robberies because he had an alibi
18. On June 4, 1998 Mr. Brown had a lengthy discussion with Ms. Bigelow in his office regarding his possible representation of the applicant. At the end of their meeting, Mr. Brown agreed to represent the applicant, and he began work immediately.
19. Mr. Brown started his work by visiting the District Clerk's office and reviewing the files in the applicant's cases.
20. After reviewing all documentation in the Clerk's files, Mr. Brown proceed to the Tarrant County Jail where he visited with the applicant for well over one hour. Mr. Brown advised the applicant that his family had retained him, and they began to discuss the cases.
21. The applicant advised Mr. Brown that he could not have committed the new aggravated robberies in question because he had an alibi. The applicant gave Mr. Brown the names of witnesses who would offer alibi testimony, and advised him to obtain further information from his mother regarding full names, addresses and phone numbers for the alibi witnesses.
22. From the time Mr. Brown entered the cases on June 4, 1998 throughout the time of sentencing on February 19, 1999, Mr. Brown had significant and detailed communication with the applicant. He had conferences with the applicant at the county jail, numerous telephone conversations, and he answered a number of letters
23. During their conversations, Mr. Brown and the applicant discussed their trial strategy. Base on Mr. Brown's recommendation, the applicant elected to proceed with a combined bench trial on the new cases and probation revocation hearing in the old cases.
24. Mr. Brown had significant communication with the applicant's mother, sister, pastor, and uncle. They communicated on at least a weekly basis. The applicant's family provided Mr. Brown detailed and significant input regarding names, addresses, telephone numbers of witnesses, and the details of the applicant's alibi.
25. At trial, Mr. Brown called six witnesses during the defense case in chief All of the witnesses were interviewed well in advance of trial and were prepared to testify at trial shortly prior to their being called. The witnesses put on a significant alibi defense on the applicant's behalf
26. As part of Mr. Brown's pretrial preparation, he and his partner interviewed two local physicians and reviewed the applicant's medical records. This investigation was done in the hopes that either physician testimony or medical documentation would further strengthen their alibi defense. Because the medical records and physicians' testimony would have undercut rather than bolstered their alibi defense, no such evidence was presented.
27. As part of pretrial preparation, Mr. Brown interviewed the State's witnesses, Vera Anderson and Sam White. During the interview, it was clear that both witnesses would be very strong for the State. Mr Brown advised the applicant regarding the interviews he had conducted, and he further advised that he expected Ms. Anderson and Mr. White to be very strong witnesses. The applicant adamantly denied his guilt and refused to discuss the possibility of a plea bargain. Mr. Brown respected the applicant's position and continued to vigorously prepare for trial.
28. Between the time of the applicant's conviction and sentencing, Mr. Brown interviewed numerous witnesses regarding their possible testimony during the sentencing. Mr Brown fully prepared each of the witnesses prior to calling them to testify during sentencing.
29. Mr. Brown conducted a very thorough pretrial investigation, which allowed him to present a significant alibi defense. The applicant also received the benefit of his very concerned family, who provided Mr. Brown with significant information.
30. Mr. Brown never attempted to coerce the applicant to plead guilty. Mr. Brown advised the applicant as to the lengthy statutory maximum in each case, and that Vera Anderson and Sam White would be strong witnesses for the State, and he suggested that the applicant consider a plea bargain. When the applicant maintained his innocence and stated that he wished to proceed to trial and contested revocation hearing, Mr. Brown prepared vigorously for a contested matter.
Brown called eight witnesses to testify on Douglass' behalf during sentencing.
Brown called eight witnesses to testify on Douglass' behalf during sentencing.
(State Habeas State Habeas R. 44-46) (citations omitted). Douglass has not produced clear and convincing evidence to rebut the presumption of correctness afforded to these findings and in light of these findings, the state court s decision to reject his complaints of constitutionally ineffective counsel during pretrial preparations and during the trial and adjudication hearing cannot be considered an unreasonable determination.
Douglass also contends that counsel was ineffective in failing to investigate any taint associated with his prior guilty pleas. Douglass contends that his prior guilty plea was involuntary, although he does not specify whether he is referring to his plea of guilty to possession of a controlled substance (Cause # 0507079) or his plea of guilty to the charge of aggravated robbery (Cause #06670571)).
In Cause #0507079, Douglass was represented by Hobert Douglas, who later provided an affidavit about his representation to the court. A plea bargain of five years' deferred adjudication was offered. Hobert Douglas informed Douglass of his right to a jury trial and asked if he wanted to accept the offer or proceed to trial. Douglass chose to accept the offer. Robert Douglass stated that he has never advised a client to plead guilty when they express that they are not guilty. (State Habeas State Habeas R. 43). Douglass has not demonstrated that his plea in Cause #0507079 was involuntary or unknowing.
In Cause #0667057, Douglass was represented by Kyle Claunch, who also provided an affidavit about his representation of Douglass. Claunch stated that he and Douglass met on several occasions, and Douglass was very concerned about keeping a felony conviction off of his record. Douglass gave Claunch a list of witnesses, and Claunch spoke to the witnesses about the case. Claunch also negotiated for a probated sentence, specifically deferred adjudication, at Douglass' direction. Douglass told Claunch that, if a deferred adjudication offer was made, he would readily accept it. (State Habeas R. 43-44). Claunch advised Douglass that he would need to deal with his substance abuse problems and avoid any further encounters with law enforcement, Claunch denied coercing or attempting to coerce Douglass to enter a guilty plea. (State Habeas R. 44). Again, Douglass fails to demonstrate that his plea was involuntary or unknowing.
Both pleas were entered after Douglass received written admonishments, waived his rights, and executed a judicial confession. (State Habeas R. 50-54, 84-88). Douglass has not demonstrated that either guilty plea was unknowing and involuntary, or that his new counsel had any basis for suspecting his previous pleas were tainted, and there is no merit to his contentions that counsel was ineffective in failing to investigate or challenge the validity of his pleas.
Douglass also complains that counsel should have taken steps to decrease the punishment range Douglass was facing by submitting a lesser included offense for the court's consideration or filing a motion for reduction of the unadjudicated aggravated robbery charge. Douglass concedes that he had already pleaded guilty to aggravated robbery, but asserts that it was still possible for the trial court, prior to adjudicating guilt, to reduce his offense to the lesser included offense of robbery, which would substantially lessen the available penalty range. Douglass does not cite any authority to support his position, and state law governing deferred adjudication probation explicitly states that the adjudication hearing itself is limited to one question: Whether the court will proceed to enter an adjudication of guilt on the original charge. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b). Moreover, Douglass has not produced any evidence to suggest that, if guilty, he was guilty only of robbery as opposed to the charge of aggravated robbery to which he pleaded guilty. His contention that counsel was ineffective in this regard is without merit.
Douglass also contends counsel was ineffective in failing to preserve issues for appeal by making proper objection or filing a motion for new trial. Douglass does not specify what objectionable material or issues he wanted to raise on appeal but for a lack of preservation, or otherwise demonstrate that he had grounds for appeal that would have been meritorious if preserved. Mere conclusory allegations in support of a claim of ineffective assistance of counsel do not raise a constitutional issue in a habeas proceeding Alexander v. McCotter, 775 F.2d 595, 602-03 (5th Cir. 1985).
Finally, Douglass contends that counsel's cumulative errors and omissions constitute ineffective assistance. Because his individual complaints about counsel's errors and omissions are meritless, his complaint that the cumulative effect of counsel's conduct constitutes ineffective assistance of counsel also presents no ground for habeas relief.
2. Factual Sufficiency of the Evidence and Due Process
Douglass contends that the evidence is factually insufficient to support his convictions for aggravated robbery of an elderly person as charged in the indictment in Cause # 0693072D or for aggravated assault with a deadly weapon, a lesser included offense in Cause #0693073D, because his alibi evidence was substantial and there is no evidence he possessed a deadly weapon before, during or after the robbery. Douglass further contends that his right to due process of law was violated when the trial court adjudicated him guilty and assessed his punishment in Cause #06675057D and Cause #0507079D because the trial court proceeded to adjudication based on factually insufficient evidence that Douglass had committed the later offenses and the state courts have since refused to review his complaint when raised in his direct appeal and by collateral attack.
The indictment charged that Douglass. on or about April 13. 1998.
WHILE IN THE COURSE OF COMMITTING THEFT OF PROPERTY AND WITH INTENT TO OBTAIN OR MAINTAIN CONTROL OF Of SAID PROPERTY. THREATEN OR PLACE SAM WHITE, A PERSON 65 YEARS OF AGE OR OLDER. IN FEAR OF IMMINENT BODILY INJURY OR DEATH.
(Slate Habeas R. 116).
Texas law allows for a review of both the legal and factual sufficiency of the evidence underlying a conviction, while the federal courts review only for legal sufficiency of the evidence under the standard outlined by the United States Supreme Court in Jackson v. Virginia. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Compare West v. Johnson, 92 F.3d 1385, 1394 (5th Cir. 1986) (noting that challenged state conviction is reviewed only to ensure Jackson standard is satisfied, even if state law would impose higher burden) with Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996) (distinguishing proper standard of review for factual sufficiency from legal sufficiency standard set out in Jackson). To the extent Douglass is contesting only the factual sufficiency of the evidence as governed by state law, he states no cognizable basis for federal habeas relief Out of an abundance of caution, however, the court will assume that Douglass is contesting the sufficiency of the evidence under the standard enunciated in Jackson. The standard is whether, when viewed in the light most favorable to the verdict, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d 560 (1979).
The state appellate court summarized the facts underlying Douglass's convictions:
On Easter Sunday of 1998, Sam White, a seventy-one-year-old man, was returning home from a friend's house late at night. White testified that as he got out of his truck he was approached by a man he had never seen before who demanded his money. White explained that the man concealed his right hand under his shirt as if he had a weapon, causing White to fear for his safety. White identified appellant [Douglass] in court as the man who robbed him. He stated that appellant was no more than six feet from him when he took the money and explained that both his and the neighbor's porch lights were on enabling him to see appellant's face clearly.
White testified appellant fled down the street after the robbery, and he immediately called the police to make a report. At trial, White stated he was unaware of the exact time the robbery occurred, testifying only that it was after 10 p.m. However, appellant and the State both stipulated that Officer A.B. Rambo was called to White's address at 12:55 and White related to Rambo that he had been robbed at 12:50.
The following night, White testified, he was returning from the grocery store around 10:30. As he climbed out of his truck after parking in the driveway, he was approached again by appellant who said, "I heard that you called the police on me." When White responded that he had, appellant knocked him back into the truck with his fist. White testified he immediately recognized appellant on sight and by voice as the man who had robbed him the night before. White said he and appellant began scuffling in the truck, when appellant picked up a folding metal lawn chair and hit him in the arm with it, causing the arm to go numb. White then pick up a mop and hit appellant with the handle. White then went to the back porch door where his daughter saw him and told her to call the police. Later, White was able to pick appellant out of a photograph line-up at the police station.
White's daughter, Vera Anderson, testified she was sleeping on Easter night, close to 11:00 when White came in the house upset and told her he had been robbed. Anderson testified the police had already left by the time White woke her. She testified that on the following night, she was in the kitchen talking to her sister on the phone when she heard loud voices outside. When she looked out the window, she saw that White was on the porch, the light was on, and appellant had an object in his hand preparing to hit White. She then heard White say, "Call 9-1-1, he's here jumping on me again" and she dialed the police. Anderson testified she was able to get a good look at appellant's face through the kitchen window and was later able to identify him from a photograph line-up. She explained that she recognized appellant as a person she had seen at her next door neighbor's house on several occasions in 1997, but she did not realized who he was until after she returned home from the police station.
Appellant presented an alibi defense claiming he was at home recovering from a toothache at the time both offenses were committed. Appellant's first witness was Edward Holmes. Homes testified that he and appellant both worked for Regency Communications, a Christian fund-raising organization, and stated that on August [sic] 11, the day before White was robbed, he and appellant drove to work together. Holmes remembered appellant complaining of a toothache that day and saying he intended to spend the weekend in bed. Holmes testified that appellant had been suffering from a toothache for several days and had made an appointment to see a dentist the following Monday. Holmes claimed he remembered that day in particular because it was the day before Easter. Holmes did not know of appellant's whereabouts on the days of the offenses.
Derrick Douglas, appellant's brother and a teacher with the Tarrant County Juvenile Justice Alternative Education Program, testified he was living at his parents' house with appellant at the time of the offenses. Douglas stated he went to bed at 11:30 Easter night and appellant was at home the entire time. He could not remember seeing the appellant the evening of the second offense. Douglas said he was able to remember the weekend clearly because it was the weekend he moved back home
Douglas further testified the street White lived on was approximately a ten-minute drive from appellant's residence. Douglas explained that he and his mother drove appellant around when he needed a ride, but appellant was not otherwise allowed to use any of the family cars because he had an expired license.
Joyce Bigelow, appellant's mother and a social worker with the Tarrant County Advocacy Program, testified appellant was at home with a toothache the entire evening on Easter Sunday. She stated she saw him last that evening at around 10:50 when she went to work but testified that appellant paged her between 12:30 and 1:00. She said the phone number of the incoming call was from her home phone, and she called and spoke with appellant there for approximately forty-five minutes. Bigelow explained she spoke with appellant almost every night, and she remembered that night specifically because appellant complained of a toothache the entire weekend. She also stated appellant had been suffering from a toothache since he had been released from jail in February. Bigelow testified that the following day appellant was at home the entire evening until she went to bed at 12:00 and was not allowed to use any of the family cars.
Bigelow also testified that appellant was excited about a job opportunity coming up with the railroad, that he was attending church, and reporting regularly to his probation officer.
Detherine Sims, a family friend and teacher with the Fort Worth independent School District, testified for appellant and said she spoke with him between 10:00 and 11:00 on the evening of Easter Sunday. She explained that appellant was suffering from a toothache, and she prescribed a home remedy for him. She did not know where appellant was the following night during the second offense.
Reverend C.W. Gillespie, Senior Pastor at Concord Baptist Church in Fort Worth, also testified for appellant. Gillespie testified that he and appellant had several conversations and that appellant expressed a desire to change his life and wanted to work with children in the congregation in an effort to keep them on the right track Gillespie testified that he saw both appellant and Bigelow at church on Easter Sunday at around 2:00.
Appellant's final witness was his probation officer, Jose Vega. Vega testified that appellant failed to report to the Tarrant county Probation Department on one occasion, April 13th, but had called in that day. He confirmed that appellant appeared every Monday as ordered, with the exception of the 13th. He also testified appellant testified positive for cocaine on April 16th.Douglas v. State, No. 2-99-086-CR, slip op. at 4-10,
Douglass continues to advance his alibi defense, but it is axiomatic that credibility choices and choices between conflicting evidence are matters within the province of the factfinder, which was the state trial court's role in the present case. See Schrader v. Whitley, 904 F.2d 282, 287 (5th Cir. 1990); Knox v. Baler, 884 F.2d 849. 851 (5th Cir. 1989). Viewed in the light most favorable to the prosecution, the evidence supports Douglass's convictions for aggravated robbery of an elderly person and aggravated assault with a deadly weapon.
The deadly weapon. as found by the slate trial court, was a chair. (State Habeas R. 139).
Douglass also contends that he has been denied due process of law because the state courts have refused to review his complaint that the trial court was acting on factually insufficient evidence when he revoked Douglass's probation, adjudicated him guilty of aggravated robbery with a deadly weapon and possession of a controlled substance, and imposed sentence. When Douglass attempted to raise this complaint on direct appeal, the court of appeals dismissed the matter for lack of jurisdiction. Douglas v. State, No. 2-99-086-CR, slip op. at 12-13. He then attempted to collaterally attack the court of appeals' action, but the state court found that alleged errors in the appellate court did not stale a basis for relief via a post-conviction writ of habeas corpus. (State Habeas R. 9). Douglass complains that this refusal to review his complaint further denied him due process.
Douglass, in entering his guilty pleas and accepting deferred adjudication, acknowledged that he would have only limited appellate rights and could not appeal the trial court's decision to proceed with an adjudication of guilt. (State Habeas R. 52, 86). His execution of the written admonitions and indication that he understood the limits placed upon his right to appeal carries a strong presumption of truthfulness and poses a formidable barrier in subsequent collateral proceedings. See Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed. 136 (1977).
Upon an adjudication of guilt and imposition of sentence, Douglass had a limited right to appeal similar to that of a defendant who pleads guilty pursuant to a plea bargain where adjudication has not been deferred. See generally TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b); White v. Johnson, 180 F.3d 648, 653-654 (5th Cir. 1999). To the extent Douglass is complaining of the correctness of the state appellate court's assessment. of what matters are properly appealable under state law, his complaint fails to state a cognizable ground for relief. Federal habeas corpus relief addresses errors of constitutional dimension and does not lie for errors of state law. See Williams v. Fott, 813 F.2d 700 (5th Cir. 1987).
Similarly unmeritorious are Douglass' contentions that the state trial court itself acted in violation of due process in proceeding to adjudicate his guilt and impose sentence based on factually insufficient evidence. The first condition of Douglass' deferred adjudication probation for each offense was that he commit no further offense in violation of state or federal law. (State Habeas R. 58, 91). Having found beyond reasonable doubt that Douglass subsequently committed the offenses of aggravated robbery of an elderly person and aggravated assault, the trial court also found that Douglass had violated the terms of his probation. The trial court then entered adjudications of guilt based on Douglass' previous guilty pleas and imposed sentences that fall within the applicable statutory range for each offense, of which Douglass had previously been advised. Douglass does not demonstrate an entitlement to federal habeas corpus relief under the criteria of 28 U.S.C. § 2254.
RECOMMENDATION
The Petition for Writ of Habeas Corpus should be denied.
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until March 22, 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, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby is returned to the docket of the United States District Judge.