Opinion
No. 3:00-CV-2780-M
January 22, 2002
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, as evidenced by her signature hereto, are as follows:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Jerome Mazelle Jones is an inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
Procedural History: On August 6, 1999, petitioner pled guilty to possession of a controlled substance. S.H. Tr. at 12. James Jenkins represented him at his plea. Id . Petitioner did not appeal his conviction. (Pet. Writ of Habeas Corpus (Pet.) ¶ 8.) He did, however, file a state writ seeking habeas relief. S.H. Tr. at 15-36. The Texas Court of Criminal Appeals initially remanded the state writ for evidentiary hearing or affidavits and held the writ in abeyance pending the trial court's compliance. Ex Parte Jones , No. 45,225-01, slip op. at 2-3 (Tex.Crim.App. May 17, 2000) (not designated for publication). After receiving supplemental findings, it denied the state writ without written order on findings of the trial court without a heating. Ex Parte Jones , No. 45,225-01, slip op. at 1 (Tex.Crim.App. Sept. 13, 2000). In November 2000, petitioner filed the instant federal petition seeking habeas relief in the Eastern District of Texas and that court subsequently transferred the action to this Court. Respondent thereafter filed an answer and provided the state-court records. Petitioner then filed "Petitioner's Rebut to Respondent Johnson's Answer."
"S.H. Tr." denotes the state habeas records attached to Ex Parte Jones, No. 45,225-01, slip op. (Tex.Crim.App. May 17, 2000).
Substantive Issues: Petitioner asserts that
1. he was subjected to an illegal "pretext arrest",
2. he was wrongfully and unlawfully charged with possession of a controlled substance, because there is no evidence that he possessed such substance;
3. his guilty plea was unknowingly and involuntarily given; and
4. he was denied the effective assistance of counsel in that counsel
a. allowed the trial court to abuse its discretion and charge him with this crime;
b. performed in an inadequate, inept, hasty, and perfunctory manner;
c. failed to call or question exculpatory witnesses;
d. failed to investigate the reason and legality of his stop, detention, and arrest;
e. failed to cross-examine witnesses;
f. failed to secure character evidence; and
g. failed to secure any credible lab analysis of the alleged controlled substance.
(Pet. at 7 and attached pages 2-4; Mem. attached to Pet. at 1-5.)
Exhaustion: Respondent contends that petitioner has not sufficiently exhausted his state remedies with respect to Claim 1. She does not, however, seek dismissal for the failure to exhaust. She instead argues that the unexhausted claim is procedurally barred from federal habeas review.
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.
II. Standard of Review
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act substantially changed the way federal courts handle habeas corpus actions. It applies to all federal petitions for habeas corpus filed on or after its effective date. Lindh v. Murphy , 521 U.S. 320, 326 (1997). Petitioner filed the instant petition after the effective date of the AEDPA. Title I of the Act thus applies to his petition.
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.), cert. denied , 531 U.S. 849 (2000).
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.), cert. denied, 122 S.Ct. 194 (2001). "[A] decision is contrary to clearly established Federal law `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.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.) (as modified on denial of rehearing) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)), cert. denied, 531 U.S. 1002 (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.'" Id . (quoting Williams, 529 U.S. at 413); see also, Penry v. Johnson, 532 U.S. 782, ___, 121 S.Ct. 1910, 1918 (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 ___, 121 S.Ct. at 1918 .
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000), cert. denied, 121 S.Ct. 1420 (2001). 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, 218 F.3d at 363 . 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); see also, Sumner v. Mata, 449 U.S. 539 (1981).
III. Examination of the Issues
Petitioner claims that (1) his arrest was pretextual; (2) the evidence was insufficient to support his conviction; (3) he entered an unknowing and involuntary guilty plea; and (4) he received ineffective assistance from his trial attorney.
Petitioner raised the last three claims in his state writ. The Texas Court of Criminal Appeals denied that writ without written order on the findings of the trial court. Ex Parte Jones, No. 45,225-01, slip op. at 1 (Tex.Crim.App. Sept. 13, 2000). In Texas jurisprudence, a "denial" signifies an adjudication on the merits, whereas a "dismissal" signifies that the court declined to consider the claims on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997). In this instance, therefore, the state court rejected petitioner's last three federal claims on the merits. The AEDPA standards enumerated in 28 U.S.C. § 2254 (d) thus apply to them.
Petitioner has not raised Claim 1 to the Texas Court of Criminal Appeals. Respondent urges the Court to find the claim procedurally barred. The Court will address Claim 1 after first considering the voluntariness of petitioner's plea and his claims of ineffective assistance of counsel and insufficiency of the evidence. To the extent his arguments on the latter two claims imply that his he involuntarily entered his plea, the Court will address them in that context.
A. Voluntariness of Plea
Petitioner contends that he entered his guilty plea involuntarily and unknowingly, because he had insufficient time "to weigh the options." (Pet. at attached page 2.) He further contends that he was not adequately apprised of "the circumstances." (Id.) He asserts that he had no option but to follow his attorney's advice and plead guilty. (Id.) He also suggests that ineffective assistance of counsel rendered his plea involuntary and unknowing. (Id.)
A plea of guilty waives a number of constitutional rights. Boykin v. Alabama, 395 U.S. 238, Such 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 v. United States , 397 U.S. 742, 748 (1970)). The Fourteenth Amendment Due Process Clause imposes these requirements. Fischer v. Wainwright, 584 F.2d 691, 692 (5th Cir. 1978) (citing Brady, 397 U.S. 742; Boykin, 395 U.S. 238; Johnson v. Zerbst, 304 U.S. 458 (1938)). "The voluntariness of a plea is determined by `considering all of the relevant circumstances surrounding it.'" Id . (quoting Brady, 397 U.S. at 749). A plea qualifies as intelligent, furthermore, 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)).
"A federal court will uphold a guilty plea challenged in a habeas corpus proceeding if the plea was knowing, voluntary and intelligent." James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). "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) (per curiam).
"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 v. Alabama, 395 U.S. 238, 244 (1969)). A plea of guilty "is more than a mere confession; it is an admission that the defendant committed the charged offense." Id . at 327. Generally, therefore, a prisoner "may not collaterally attack a voluntary and intelligent guilty plea." Id . "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, 56 F.3d at 666 (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 .
Once a criminal defendant enters a knowing, intelligent, and voluntary plea of guilty, all nonjurisdictional 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.), cert. denied, 531 U.S. 919 (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 [v. Richardson, 397 U.S. 759, 770-771 (1970)].Tollett v. Henderson , 411 U.S. 258, 267 (1973).
The record shows that the trial court admonished petitioner of the consequences of his plea. The trial court read the indictment to petitioner at his arraignment on June 4, 1999. S.H. Tr. at 4. With respect to his guilty plea, furthermore, he signed a form that contained "Admonishments to Defendant"; "Waivers and Stipulations"; and "Judicial Confession." Id . at 9-9A (altered to lower case). The trial court therein admonished him as to the range of punishment — no more than twenty years imprisonment and a fine not to exceed $10,000. Id . at 9. It also informed him that he was charged with possession of a controlled substance with intent to deliver. Id . The Waivers and Stipulation section provides that: "I, the defendant, . . . agree to waive a trial by jury and agree to receive from the court the admonitions in writing . . . and I state to the court that I understand those admonitions and understand the consequences of my plea." Id . at 9A (altered text to lower case). The Judicial Confession states: "I admit and judicially confess that I am the same person named in the charging instrument and I committed the offense as alleged in the charging instrument including any amendments or modifications thereto." Id . (altered text to lower case). Defense counsel, furthermore, indicated that he had consulted with petitioner concerning his plea and had advised him of his rights and was satisfied that petitioner understood the consequences of his plea and the waivers entered. Id .
After accepting the guilty plea, the trial court stated in its Judgment that
The Defendant further waived the reading of the indictment and, upon being asked by the Court as to how the Defendant pleaded, entered a plea of guilty to POSSESSION OF A CONTROLLED SUBSTANCE. Thereupon, the Defendant was competent to stand trial and that the Defendant was not influenced in making said plea by any consideration of fear or by any persuasion prompting a confession of guilt, the free and voluntary plea of guilty was received by the Court and is now entered of record in the minutes of the Court as the plea of the Defendant.S.H. Tr. at 13.
Petitioner specifically complains that he had insufficient time to decide whether to plead and that he did not understand "the circumstances." He further argues that the plea resulted from ineffective assistance of counsel.
With respect to the argument that petitioner did not understand the circumstances, the Court finds that the record does not support such argument. Donald E. Maxfield, the lead prosecutor in the state criminal case against petitioner, submitted an affidavit wherein he averred that the State was prepared to present evidence that showed that petitioner constructively possessed nearly nine grams of cocaine found in the vehicle occupied by petitioner. S.H. Tr. II at 7-10. Specifically, it was prepared to present testimony from an undercover officer who, on the date of petitioner's arrest in Ennis, Texas, had set up a purchase from petitioner for one ounce of crack cocaine in Ennis. Id . at 8. The State's evidence would have been that all of the dealings for the purchase of the cocaine went through petitioner. Id . at 8-9. The State was also prepared to introduce into evidence a receipt taken from petitioner that contained a handwritten notation as to "the name and location of the motel where the undercover officers had asked the drugs to be delivered, the motel's phone number, and the room number of the undercover officer." Id . at 9. The State was prepared to introduce a lab analysis that showed the drug quantity found in the vehicle to be "just under 9 grams of cocaine." Id . Mr. Maxfield also averred that he informed counsel for petitioner of all of these facts. Id . at 8.
"S.H. Tr. II" refers to the state habeas records attached to Ex Parte Jones, No. 45,225-01, slip op. (Tex.Crim.App. Sep. 13, 2000).
Counsel for petitioner submitted an affidavit to the trial court in which he averred that he told petitioner everything that he knew, including what Mr. Maxfield had conveyed to him, so that petitioner could make an informed decision as to whether he should plead guilty. Id . at 14-15. He informed petitioner that the State had had petitioner under surveillance for some time and had set up a drug purchase in Ellis County on the date of petitioner's arrest. Id . at 13-14. He told petitioner that law enforcement officers initially stopped the vehicle in which he was a passenger "for erratic driving" and that the State had an officer ready to testify that he stopped the vehicle for "traffic violations." Id . at 14. He told petitioner that the State found a receipt on petitioner that indicated the location for the proposed drug purchase. Id .
The affidavit of counsel shows that counsel made petitioner aware of the circumstances of his case. The trial court implicitly found the attorney and Mr. Maxfield credible, when it relied upon their affidavits in its Supplemental Findings of Fact. Id . at 20-22. This Court presumes such findings to be correct, unless petitioner presents clear and convincing evidence to the contrary. See 28 U.S.C. § 2254 (e)(1); Valdez v. Cockrell, ___ F.3d ___, ___, 2001 WL 1530153, at *25 n. 11 (5th Cir. Dec. 3, 2001) (holding that "[t]he presumption of correctness not only applies to explicit findings of fact, but it also applies to those unarticulated findings which are necessary to the state court's conclusions of mixed law and fact"); Goodwin v. Johnson, 132 F.3d 162, 183-84 (5th Cir. 1998) (holding that courts may infer findings of fact from explicit conclusions of law), cert. denied, 531 U.S. 1120 (2001). Petitioner has not rebutted the presumption. Accordingly, the Court defers to the credibility findings of the state court and finds that he was aware of the circumstances.
With respect to the argument that a time constraint rendered his plea involuntary, petitioner has not shown that he was coerced into pleading guilty by any time constraint. Placing a deadline for acceptance of a plea offer is not the type of coercive action that can render a plea invalid.
In addition, petitioner argues that his guilty plea "stemmed from a state of discomfort and urgency from the uninvestigated facts, non-thorough and unreliable advice from [his] counsel." A guilty plea is "open to attack on the ground that counsel did not provide the defendant with `reasonably competent advise.'" Cuyler v. Sullivan, 446 U.S. 335, 344 (1980) (quoting McMann v. Richardson, 397 U.S. 759, 770-771 (1970)). With respect to guilty 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). To successfully state a claim of ineffective assistance of counsel, 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).
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 . "[E]ffective assistance of counsel on the entry of a guilty plea requires that counsel ascertain whether the pleas are entered voluntarily and knowingly." Randle v. Scott, 43 F.3d 221, 225 (5th Cir. 1995) (quoting United States v. Diaz, 733 F.2d 371, 376 (5th Cir. 1984)). Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Strickland, 466 U.S. at 691 . A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. Id . at 696.
By pleading guilty petitioners waive all non-jurisdictional defects occurring prior to their pleas. United States v. Glinsey, 209 F.3d 386, 392 (5th Cir.), cert. denied, 121 S.Ct. 282 (2000). "This includes claims of ineffective assistance of counsel except insofar as the ineffectiveness is alleged to have rendered the guilty plea involuntary." Id .
Petitioner provides no specificity with respect to his claim that ineffective assistance of counsel rendered his plea involuntary. The only specificity he provides with respect to ineffective assistance of counsel lies within his fourth claim. He therein claims that he received ineffective assistance of counsel when his attorney (a) allowed the trial court to abuse its discretion by charging him; (b) performed in an inadequate, inept, hasty, and perfunctory manner; (c) failed to call or question exculpatory witnesses; (d) failed to investigate the reason and legality of the stop, detention, and arrest; (e) failed to cross-examine any witnesses; (I) failed to secure character evidence; and (g) failed to secure any credible lab analysis of the alleged controlled substance.
Although Claims 4(b), (c), and (d) have some potential relevance to the voluntariness of petitioner's guilty plea, the Court finds them conclusory. Petitioner provides no support for finding his plea involuntary or unknowing due to these alleged deficiencies of counsel. Claiming that an attorney performed in an inadequate, inept, hasty, or perfunctory manner, without more, is insufficient to render a plea involuntary. As for the alleged failure to investigate encompassed by Claim 4(c), petitioner has identified no exculpatory witness or what evidence such a witness would provide that renders his plea involuntary. As for the alleged failure to investigate the reason and legality of the stop, detention, and arrest, petitioner has not identified what evidence would have been produced by such investigation that would have rendered his plea involuntary. "[C]onclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding." Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 531 U.S. 849 (2000).
In Claim 1, petitioner argues that his arrest was pretextual. Although such argument suggests a belief that an investigation into the stop would have resulted in the inadmissibility of the cocaine found in the vehicle, he provides no sufficient basis for that suggestion. He presents nothing to show that the driver of the vehicle did not in fact violate the traffic code by "swerving on the white line" or otherwise. In Texas, furthermore, there is no longer any such thing as a pretextual arrest. In 1992, the Texas Court of Criminal Appeals "rejected the notion of pretext stops" and "explained that the phrase `pretext arrest' was used to refer to an `objectively' valid stop for an allegedly improper reason." Walter v. State, 28 S.W.3d 538, 543 (Tex.Crim.App. 2000) (citing Garcia v. State, 827 S.W.2d 937 (Tex.Crim.App. 1992)). The Texas Court of Criminal Appeals "abandoned the `pretext arrest' concept in favor of a purely objective analysis" and "held that, "as long as an actual violation occurs, law enforcement officials are free to enforce the laws and detain a person for that violation . . . regardless of the officer's subjective reasons for the detention.'" Id . (quoting Garcia, 827 S.W.2d at 944). "Where an officer makes a valid traffic stop, the existence of another motive for the stop is irrelevant because the prohibition against pretextual stops has been abandoned in Texas." Villareal v. State, 2001 WL 1590048, at *9 n. 5 (Tex.App. — Hous. [14 Dist.] Dec. 13, 2001, no pet. h.). When an officer has "probable cause to believe that petitioner had violated the traffic code . . . the stop [is] reasonable under the Fourth Amendment land] the evidence thereby discovered admissible." Whren v. United States, 517 U.S. 806, 819 (1996). Petitioner provides nothing to support a finding that the arresting officer did not have probable cause to believe that a traffic code violation had occurred. Claim 1 thus provides no basis for finding petitioner's guilty plea involuntary.
Petitioner, furthermore, has demonstrated no prejudice. When a prisoner challenges a guilty 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 . He must show a reasonable probability that absent counsel's errors, his sentence would have been significantly less harsh. See United States v. Segler, 37 F.3d 1131, 1136 (5th Cir. 1994). 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 .
Although he argues that the charges could not stand against him, because he did not physically possess the cocaine found in the vehicle, petitioner has not shown he would have insisted on going to trial in the absence of the alleged ineffective assistance from his attorney. Under Texas law and the facts of this case, the State could successfully show petitioner to be in constructive possession of the cocaine.
"To prove unlawful possession of a controlled substance, "the State must prove that [the defendant] exercised actual care, control and management over the contraband; and second, that [he] had knowledge that the substance in his possession was contraband." King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). In other words, the State must present evidence that affirmatively links the defendant to the controlled substance. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). Such evidence, whether direct or circumstantial, "suffices for proof that he possessed it knowingly." Id . The evidence "must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. Id . "[W]hen an accused is not in exclusive possession of the place where the contraband is found, it cannot be concluded that the accused had knowledge of or control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband." Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App. 1986). "No set formula of facts exists which would dictate a finding of an `affirmative link' sufficient to support an inference of knowing possession of contraband. Each case depends on the evidence adduced therein." Porter v. State, 873 S.W.2d 729, 732 (Tex.App.-Dallas 1994, pet. ref'd) (citation omitted). The courts of Texas "have divined numerous factors useful in determining whether the accused's link to the contraband was more than mere fortuity." Park v. State, 8 S.W.3d 351, 353 (Tex.App. — Amarillo 1999, no pet.). "The number of factors present is not as important as the `logical force' or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband." Wallace v. State, 932 S.W.2d 519, 524 (Tex.App. — Tyler 1995, pet. ref'd). Sufficient evidence supports a possession conviction, "if the evidence establishes, beyond reasonable doubt, [defendant's] knowing link to the drugs." Park, 8 S.W.3d at 353 .
A showing of actual or constructive possession suffices to show the requisite control. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App. 1985); Porter, 873 S.W.2d at 734 . "Constructive possession" means "the knowing exercise of, or knowing power to exercise, dominion and control over contraband." Porter, 873 S.W.2d at 734; see also, McGoldrick, 682 S.W.2d at 578 (recognizing "that `possession' means more than being where the action is; it involves the exercise of dominion and control over the thing actually possessed"). The State may establish such possession "by showing ownership, dominion or control over contraband." Porter, 873 S.W.2d at 734 . As long as the defendant "has actual ownership of contraband or a power to exercise control over contraband, he will be in constructive possession of contraband." Id . "The issue is whether the evidence will support a reasonable inference that the defendant knowingly possessed the contraband." Victor v. State, 995 S.W.2d 216, 220 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd).
In this instance, the affidavit of Mr. Maxfield shows that the State was prepared to present evidence that demonstrated petitioner constructively possessed the cocaine found. S.H. Tr. II at 7-10. In view of the evidence the State was prepared to present at trial, it appears that the State could have affirmatively linked petitioner to the cocaine. With the evidence set out by Mr. Maxfield it appears that petitioner's connection with the cocaine was more than just fortuitous.
The State, furthermore, was prepared to present evidence that petitioner had two prior felony convictions which upon proof of either one would have meant that petitioner "would face not less than 15 years confinement and up to a maximum confinement of 99 years or life." S.H. Tr. II at 9. Petitioner has presented nothing to convincingly show that the State could not have proved one of the enhancement convictions.
Considering all the circumstances, petitioner has not shown a reasonable probability that, but for errors of counsel, he would have pleaded not guilty and insisted on going to trial. Nor has he shown a reasonable probability that absent errors of counsel, his sentence would have been significantly less harsh. He thus has shown no ineffective assistance of counsel that rendered his plea involuntary or unknowing.
Petitioner was fully aware of the consequences of his plea as shown by the fact that the trial court specifically admonished him as to the maximum term of imprisonment and fine that could be imposed. See S.H. Tr. at 9. 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 v. United States, 397 U.S. 742, 755 (1970). When "deception, an unfulfillable promise, or misrepresentation" induces a plea, the plea is involuntary. United States v. Amaya, 111 F.3d 386, 389 (5th Cir. 1997).
Petitioner, furthermore, has not overcome the presumption of regularity accorded state-court records. See Bonvillian v. Blackburn, 780 F.2d 1248, 1252 (5th Cir. 1986) (holding that State-court records, furthermore, are given a presumption of regularity). Given the totality of the circumstances, it is evident that petitioner voluntarily and knowingly pled guilty. Likewise, it is clear that he entered his plea without coercion. The record does not support a claim that a threat or misrepresentation by counsel or anyone else induced his plea. The record does not reflect that the plea was induced by some unkept promise. Petitioner has shown no ineffective assistance of counsel that rendered his plea invalid. His plea appears knowing, intelligent, and voluntary.
The state court finding that petitioner entered his plea knowingly and voluntarily appears consistent with precedent of the United States Supreme Court. It appears to be a reasonable application of such precedent and based upon a reasonable determination of the facts. Consequently, petitioner is entitled to no habeas relief on this claim. See 28 U.S.C. § 2254 (d) .
B. Effectiveness of Counsel
In Claim 4, petitioner makes several claims of ineffective assistance of counsel. The Court finds Claim 4(a) waived by the guilty plea entered by petitioner. Petitioner does not allege that his attorney's failure to prevent the "trial court" to charge him rendered his guilty plea involuntary. As the alleged deficiency clearly occurred prior to his plea, it is waived.
The Court, furthermore, has found Claims 4(b), (c) [to the extent it alleges a failure to investigate], and (d) conclusory. It has also found no prejudice with respect to those claims. It now finds Claims 4(c) [to the extent it alleges a failure to call exculpatory witnesses to testify], (e), (f), and (g) conclusory. Petitioner again identifies no exculpatory witness that counsel failed to call to testify. He identifies no character evidence that counsel should have presented. He presents no lab analysis that contradicts the State's analysis that the substance found in the vehicle was cocaine. Upon a voluntary, knowing, and intelligent guilty plea that specifies the precise sentence to be imposed and grants the defendant the right to withdraw the plea in the event of a different sentence (as is the case here), moreover, counsel is not deficient when he fails to call witnesses to testify, cross-examine witnesses, secure character evidence, and pursue other laboratory analysis of the alleged controlled substance. By his guilty plea, petitioner relieved his attorney of such duties.
The state court disposition of the ineffective-assistance-of-counsel claim appears consistent with precedent of the United States Supreme Court. It appears to be a reasonable application of such precedent and based upon a reasonable determination of the facts. Consequently, petitioner is entitled to no habeas relief on this claim. See 28 U.S.C. § 2254 (d) .
C. Insufficiency of Evidence
Petitioner further attacks his conviction as unsupported by sufficient evidence. By his guilty plea, however, he has relieved the State of its burden to put forth evidence sufficient to sustain his conviction. As already discussed, his guilty plea was knowingly, intelligently, and voluntarily entered. 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.
D. Pretextual Arrest
Plaintiff also tries to raise a claim that he was subjected to an illegal "Pretext Arrest." He admits that he raises this claim for the first time in the instant federal petition. (Pet. ¶ 22.) The State contends that the claim is procedurally barred from federal review. It argues that were this Court to require petitioner to present this unexhausted claim to the state courts of Texas, they would dismiss the claim pursuant to the Texas abuse-of-the-writ doctrine, TEX. CODE CRIM. PRO. ANN. art. 11.07, § 4 That doctrine "prohibits a second [state] habeas petition, absent a showing of cause, if the applicant urges grounds therein that could have been, but were not, raised in his first habeas petition." Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997) (footnote omitted). In his brief to "rebut" respondent's answer, petitioner suggests that, at the time of his first state writ, he had insufficient information to assert his claim of pretext.
Texas also has an abuse of writ doctrine specifically applicable to capital cases. See Tex. Code Crim. P. Ann. art. 11.071, § 5(a). No material difference exists between the rules or their analysis. Emery v. Johnson, 139 F.3d 191, 195 n. 3 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998). The Court may thus freely cite to either capital or non-capital cases that address the abuse of writ doctrine.
If petitioner indeed had insufficient information to assert the claim of pretext in his first state writ, then the abuse-of-the-writ doctrine would not prohibit a second state petition. The Court need not definitively decide the matter. 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). In this instance, it appears most efficient to deny Claim 1 on the merits. By his voluntary, knowing, and intelligent guilty plea, petitioner has waived all nonjurisdictional defects occurring prior to his plea. United States v. Glinsey, 209 F.3d 386, 392 (5th Cir.), cert. denied, 121 S.Ct. 282 (2000). Claim 1 is not a jurisdictional defect. As already discussed in footnote five, furthermore, it does not render petitioner's plea involuntary, unintelligent, or unknowing. Petitioner has thus waived his claim of pretextual arrest.
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.