Opinion
2:00-CV-0269
August 13, 2003
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
Petitioner TERRY LYNN LUKE, a state prisoner, has filed with this Court a petition for a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 29, 2001, respondent Janie Cockrell filed an answer opposing petitioner's habeas application. Petitioner, on October 30, 2001, filed a reply brief to respondent Cockrell's original answer. For the reasons set forth below, it is the opinion of the undersigned United States Magistrate Judge that petitioner's federal application for a writ of habeas corpus should be DENIED.
I. PROCEDURAL BACKGROUND
Based on a review of the official docketing system of Potter County, Texas, petitioner's criminal history in that county began with his May 12, 1989 conviction for the indicted offense of delivery of a controlled substance for which petitioner was assessed punishment at five (5) years confinement in the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). State v. Luke, No. 27, 558-E. On July 18, 1996, petitioner was convicted in Potter County, Texas, of the felony offense of robbery and was assessed punishment at eight (8) years confinement. However, the state trial court suspended petitioner's sentence and placed petitioner on adult probation for eight years. State v. Luke, No. 35, 283.
On February 6, 1997, petitioner was charged by indictment in Cause No. 37, 342-B, out of the 181st Judicial District Court of Potter County, Texas, with the state jail felony offense of delivery of a controlled substance, said offense alleged to have been committed on April 15, 1996. Said indictment also alleged petitioner's 1989 delivery of a controlled substance conviction for purposes of enhancing punishment.
Simultaneously, in Cause No. 37, 343-B out of the 181st Judicial District Court of Potter County, Texas, petitioner was charged by indictment with committing the felony offense of delivery of a controlled substance, such offense alleged to have been committed on or about April 10, 1996. The indictment also alleged petitioner's 1989 delivery of a controlled substance conviction for purposes of enhancing punishment.
On February 24, 1997, the State filed a motion to revoke petitioner's probation in Cause No. 35, 283. The state court appointed the same defense counsel to represent petitioner in the revocation proceeding, as well as on the two new felony controlled substance charges.
On April 24, 1997, in Cause No. 37, 342-B, petitioner entered a guilty plea to the state jail felony charge of delivery of a controlled substance, was convicted of the offense, and was assessed a 1-year sentence of confinement in a state jail facility and ordered to pay $140.00 in restitution. Imposition and execution of petitioner's sentence, however, was suspended and petitioner was placed on probation for five (5) years with the condition that he successfully complete a SAFPF program.
Contemporaneously, in Cause No. 37, 343-B, petitioner entered a plea of guilty to the felony offense of delivery of a controlled substance. Instead of adjudicating petitioner's guilt and assessing a sentence, the trial court deferred petitioner's adjudication, placed petitioner on probation for a period often (10) years, and ordered petitioner to successfully complete the SAFPF program, pay a $2,000 fine, and pay $140 in restitution.
In May 1997, the state trial court continued petitioner's adult probation for his robbery conviction, extending said probated sentence with additional conditions.
On February 16, 1999, in Cause No. 35, 283 (the robbery conviction), the State moved to revoke petitioner's probation and reinstate his 8-year sentence. In Cause No. 37, 342-B, the State moved to revoke petitioner's probation and reinstate his 1-year state jail sentence, In Cause No. 37, 343-B, the State moved to adjudicate petitioner's guilt for the felony delivery of a controlled substance charge, convict petitioner of the originally charged offense, and assess petitioner's punishment at a term of imprisonment. Alleged as violations of his various probations and as grounds for revocation in Cause Nos. 37, 342-B and 37, 343-B, the State alleged petitioner used illegal drugs, failed to report to the supervision officer as directed, consumed alcohol, failed to pay toward court costs, his restitution and, in Cause No. 37, 343-B, failed to pay his fine, and failed to successfully complete the SAFPF program as directed.
On April 13, 1999, new counsel was appointed to represent petitioner in all three proceedings. On May 10, 1999, in Cause No. 35-283, the state trial court revoked the order suspending the imposition of petitioner's sentence and placing petitioner on probation, and reinstated petitioner's original sentence of 8-years confinement in TDCJ-ID. In Cause No. 37, 342-B, as part of a plea agreement with the State, petitioner entered a plea of true to the State's motion to revoke probation imposed for the state jail felony conviction. Consequently, the state trial court revoked the order suspending the imposition of petitioner's sentence and placing petitioner on probation, reinstated petitioner's original sentence of 1-year confinement in a state jail facility, and waived his previously assessed fees and restitution. Petitioner advised the state trial court that he did not wish to appeal his case.
In Cause No. 37, 343-B, as part of the plea agreement with the State, petitioner entered a plea of true to the violations alleged in the State's motion to adjudicate petitioner's guilt for the felony delivery of a controlled substance charge. After hearing evidence and argument of counsel, the state trial court found the State had proven the alleged violations by a preponderance of the evidence, and that said violations were true. Consequently, the state trial court revoked petitioner's probation and found petitioner guilty of the offense of delivery of a controlled substance/enhanced as alleged in the original indictment. Having heard "evidence on the question of punishment and argument of counsel thereon," the state trial court, following the recommendation of the state, assessed petitioner's punishment at fourteen (14) years confinement in TDCJ, ID, assessed costs against petitioner, but eliminated the previously assessed fine, fees and restitution. It is this conviction and sentence which petitioner challenges in the instance federal habeas corpus proceeding.
Petitioner did not appeal either the original April 24, 1997 proceeding pursuant to which he was placed on deferred adjudication, nor did he appeal the subsequent adjudication of guilt on May 10, 1999. On November 3, 1999, petitioner filed a state application for a writ of habeas corpus challenging his conviction and sentence on grounds of ineffective assistance of counsel and trial court error. On March 1, 2000, the Texas Court of Criminal Appeals denied petitioner's application without written order. Ex parte Luke, Application No. 43, 967-01.
Petitioner also filed a state habeas application challenging his conviction in Cause No. 37, 342-B which was denied without written order on March 1, 2000. Ex parte Luke, Application No. 43, 967-02.
II. PETITIONER'S ALLEGATIONS
In support of his contention that he is being confined in violation of the Constitution and laws of the United States, petitioner appears to present the following grounds:
1. Petitioner was denied effective assistance of counsel because trial counsel:
a. failed to object to the trial court assessing petitioner's punishment without petitioner having the opportunity to present mitigating evidence, to wit: petitioner's own testimony, in a separate punishment hearing;
b. failed to move for a new trial on the grounds that petitioner was denied a separate punishment hearing during which petitioner would have testified as petitioner was clearly eligible for probation;
c. failed to file a notice of appeal;
d. failed to apply for straight probation prior to revocation of petitioner's deferred adjudication probation; and
e. failed to request a pre-sentence investigation report.
2. The trial court erred:
a. when it denied petitioner's motion to appeal from the original proceeding placing him on deferred adjudication; and
b. because it did not advise him of his right to appeal from the original proceeding.
III. EXHAUSTION OF STATE COURT REMEDIES
Respondent concedes petitioner has sufficiently exhausted his state court remedies with regard to the issues raised in the instant habeas application, and does not move for dismissal for failure to exhaust. Review of the records from the state court proceedings indicates petitioner has presented, to the highest court in the State of Texas, the substance of the claims he now presents to this federal court. It is, therefore, the opinion of the undersigned that petitioner's habeas application not be dismissed due to any failure to exhaust state court remedies, but instead the petition should be determined on the merits.IV. STANDARD OF REVIEW
Petitioner may not obtain relief in this Court with respect to any claim adjudicated on the merits in the 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). Further, all factual determinations made by a state court are presumed to be correct and such presumption can only be rebutted by clear and convincing evidence presented by petitioner. 28 U.S.C. § 2254(e).
Here, the state courts heard and adjudicated, on the merits, the claims petitioner presents to this Court. More specifically, the Texas Court of Criminals Appeals denied petitioner's application for state habeas relief without a written order. Ex parte Luke, 43, 967-01. The ruling of the Texas Court of Criminal Appeals constitutes an adjudication of petitioner's claims on the merits. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997). Petitioner's burden is significantly heightened in that petitioner can not prevail even if it is shown that the state court's determination was incorrect. Petitioner must also show the state court unreasonably applied federal law or made an unreasonable determination of the facts. Neal v. Puckett, 239 F.3d 683 (5th Cir.), on rehearing 286 F.3d 230 (5th Cir. 2002), cert. denied Neal v. Epps, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003).
V. EFFECTIVENESS OF COUNSEL
Petitioner contends his conviction was obtained in violation of his constitutional right to effective assistance of counsel, In order to amount to ineffective assistance of counsel, counsel's performance must have fallen below an objective standard of reasonableness as determined by the norms of the profession. Counsel's performance is reviewed from counsel's perspective at the time of trial, not from hindsight. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reviewing court's scrutiny of trial counsel's performance is highly differential, with a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Id.
The proper standard for judging a petitioner's contention that he is entitled to relief on the ground that his trial counsel rendered ineffective assistance is enunciated in Strickland. Under the Strickland standard, a petitioner must show defense counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment to the United States Constitution.
A petitioner must also show counsel's deficient performance prejudiced the defense. To establish this prong, petitioner must show counsel's errors were so serious as to deprive petitioner of a fair trial. Specifically, as set forth in Creel v. Johnson, 162 F.3d 385 (5th Cir. 1998), to prove prejudice petitioner must show (1) there is a reasonable probability that, but for counsel's unprofessional errors, the ultimate result of the proceeding would have been different, see id. at 694, 104 S.Ct. at 2068, and (2) that counsel's deficient performance rendered the trial fundamentally unfair, see Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993). "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Id., 113 S.Ct. at 844. A showing of significant prejudice is required. Spriggs v. Collins, 993 F.2d 85, 88, n. 4. (5th Cir. 1993). Further, the court need not even consider the deficiency prong if no prejudice has been demonstrated.
A. Failure to Object to Assessment of Punishment without Petitioner's Testimony
Petitioner contends trial counsel was ineffective for failing to object to the trial court assessing petitioner's punishment without allowing petitioner to present mitigating evidence in the form of petitioner's own testimony. The undersigned notes petitioner entered a plea of true to the alleged violations of his probation as part of a plea bargain agreement with the state whereby the state would recommend petitioner receive a 14-year sentence upon adjudication of guilt. The sentencing state court followed the state's recommendation and assessed petitioner's punishment at confinement in the TDCJ-ID for fourteen (14) years.
Petitioner has not shown the Court would have granted any request made on the part of petitioner to "testify" at the proceeding. Moreover, petitioner does not detail, much less suggest, what mitigating evidence he could have, and would have, offered through his testimony. Nor does petitioner argue or demonstrate that even if he had been allowed to testify as to any "mitigating evidence," that his testimony would have resulted in a different sentence being assessed by the state court. The state court followed the sentencing recommendation of the state which was part of the plea agreement petitioner made with the state. Lastly, in an affidavit submitted by the state in the state habeas proceedings, petitioner's defense counsel averred that after entering pleas of true to the alleged violations in this case, "petitioner did not request that he be allowed to offer any testimony in the hopes that the Trial Court would sentence him to less time than offered by the State in its plea bargain offer [14 years] or that he believed that the Trial Court would consider allowing him to remain on Community Supervision." Petitioner has not rebutted this sworn statement by his defense counsel.
Petitioner has not shown counsel was ineffective for failing to request petitioner be allowed to offer his own testimony for mitigation purposes prior to his sentencing, nor has petitioner shown he was prejudiced by any failure. Petitioner's argument is entirely conclusory, see Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (bald assertions are not of probative evidentiary value); West v. Johnson, 92 F.3d 1385, 1400 (5th Cir. 1996) (conclusory assertions of ineffective assistance of counsel), and fails to meet either prong of the Strickland test. Petitioner's first claim should be DENIED.
B. Failure to Move for a New Trial
Petitioner next argues trial counsel was ineffective for failing to file, after petitioner's guilt was adjudicated and sentence assessed, a motion for new trial arguing that a new "trial" was warranted on the basis that petitioner was not given the opportunity to offer evidence in mitigation of punishment through his own testimony. Petitioner appears to argue a new trial was warranted because petitioner was eligible for a probated sentence and would have received probation had he been allowed to present his mitigating evidence.Again, petitioner entered a plea of true pursuant to a plea bargain. The plea bargain provided that in return for his plea of true to the alleged violations in the state's motion to adjudicate guilt, the State would make a recommendation of a 14-year sentence in TDCJ-ID. The state court accepted petitioner's plea and, following the state's recommendation, assessed petitioner's punishment at fourteen (14) years confinement. Petitioner was not eligible for a probated sentence as probation can only be granted in a case where the sentence is ten (10) years or less. Tex. Code Crim. Proc. Art. 42.12 § 3(e)(1). Therefore, any mitigation evidence petitioner could have offered would not have resulted in his receiving a probated sentence. Any motion for new trial made on this basis would have been frivolous. Counsel was not ineffective for failing to file a frivolous motion for new trial. Petitioner's second ground should be DENIED.
C. Failure to File a Notice of Appeal
Petitioner argues his defense counsel was ineffective for failing to file a notice of appeal on petitioner's behalf, thereby denying petitioner a meaningful direct appeal, In cases involving claims of actual or constructive denial of appeal (or denial of counsel on appeal), prejudice under Strickland is presumed. Penson v. Ohio, 488 U.S. 75, 88-89 (1988). Consequently, the only issue to be resolved is whether petitioner suffered an actual or constructive denial of appeal.
In Childs v. Collins, 995 F.2d 67 (5th Cir.), cert. denied, 510 U.S. 1016, 114 S.Ct. 613, 126 L.Ed.2d 577 (1993), the Fifth Circuit set forth what is required of trial counsel to preserve the appellate rights of a criminal defendant. The court explained that the duty to perfect an appeal on behalf of a convicted client does not arise upon conviction, rather such a duty arises only when the client makes known, to counsel or the court, his desire to appeal the conviction. Id. at 69. The court further noted the right to appeal is a positive right that must be affirmatively exercised. A convicted client who has knowledge of his right to appeal but fails to make known his desire to exercise that right effectively waives that right to appeal.
In his affidavit submitted during state habeas proceedings, defense counsel averred that "[a]fter the Trial Court sentenced Mr. Luke in the above cases, Mr. Luke never ask[ed] me or requested that I give notice of appeal in the case in question." Petitioner has not rebutted this sworn statement through affidavit, nor has he specifically refuted such representation other than to cite, in his reply, a case where an evidentiary hearing was appropriate when a factual dispute existed as to whether a petitioner requested an attorney to file an appeal. Petitioner has not shown, in any evidentiary manner, that he affirmatively told counsel he wanted to appeal and, thus, did not effectively waive his right to appeal. The undersigned finds defense counsel was not deficient in failing to seek an appeal on petitioner's behalf. It is important to again note that petitioner entered a guilty plea to the original charges, thereby strictly limiting his right to appeal, and then entered into a multi-case plea bargain agreement with the state whereby he entered a plea of true to the alleged probation violations and received the sentence previously agreed upon with the State. It is doubtful that petitioner would seek an appeal, which would be limited to matters raised by pretrial written motions and the voluntariness of the plea, when he received the full benefit of his bargain with the State. This claim should be DENIED.
In his reply, petitioner maintains the state habeas courts did not allow him the opportunity to counter counsel's affidavit and did not hold an evidentiary hearing wherein he could present evidence countering counsel's affidavit. Deficiencies in state habeas proceedings due not present constitutional claims appropriate for federal habeas relief. Moreover, petitioner has not shown he submitted a counter affidavit in the state habeas proceedings, but that such affidavit was disallowed. Further, petitioner has not shown how any actions of the state habeas courts have prevented petitioner from submitting a counter affidavit in these proceedings.
Petitioner apparently is seeking an appeal because he is under the impression the conviction of his co-defendant, Donald Williams, was reversed. Williams, who originally received 10-years probation with adjudication being deferred, was assessed a 12-year sentence upon adjudication. Petitioner's appeal of this conviction and sentence was dismissed for lack of jurisdiction. The state trial court did, however, subsequently grant Williams a new trial after which Williams entered a guilty plea pursuant to a plea bargain with an agreed punishment recommendation. The trial court again adjudicated Williams guilty of the offense but, pursuant to the State's recommendation, assessed a 10-year sentence, probated. Williams' probation was subsequently revoked and he was given a 5-year sentence in TDCJ-ID.
D. Failure to Apply for Probation
Petitioner argues his defense counsel was ineffective for failing to "make application and qualify petitioner for regular probation" prior to or upon the revocation of petitioner's deferred adjudication probation and adjudication of guilt. Petitioner maintains counsel's failure to move for probation prejudiced petitioner because he "was on deferred adjudication probation and was eligible to have said probation changed to `straight probation.'"
As noted above, petitioner's 14-year sentence rendered him ineligible for a suspension of his sentence and probation. Any motion for probation would have been frivolous, and counsel was not ineffective for failing to file such a motion. This claim should be DENIED.
E. Failure to Request a Pre-Sentence Investigation Report
Petitioner argues he was denied effective assistance of counsel because defense counsel failed to request a pre-sentence investigation report prior to the trial court's assessment of petitioner's punishment. Petitioner maintains such a report would have shown a "total life change" (although he does not opine as to any specifics any such report would have purportedly reflected) and, apparently, that such a report would have resulted in his receiving a lesser sentence.Once again, petitioner, as part of plea bargain with the State, agreed to a 14-year sentence recommendation. The trial court followed such recommendation. Petitioner has not shown how a pre-sentence report would have changed the sentence he received, nor has he shown, considering the probation violations he admitted, how such a report would reflect a "total life change" on petitioner's part. This claim should be DENIED.
Petitioner has failed to show defense counsel's performance was in any way deficient. Moreover, petitioner has failed to show he was prejudiced by any purported deficiency on the part of defense counsel. Specifically, petitioner has not demonstrated the result of the proceeding of which he complains would have been different had counsel performed in a different manner. Even if counsel did commit errors, such errors were not so serious as to deprive petitioner of a fair trial, i.e., it does not appear that but for any of counsel's purported failures, petitioner's sentence would have been significantly less harsh. See Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993).
Further, the state court heard and adjudicated petitioner's ineffective assistance of counsel claims on the merits. Petitioner has not shown the state court unreasonably applied federal law or made an unreasonable determination of the facts. Petitioner's claims of ineffective assistance of counsel should be DENIED.
V. TRIAL COURT ERROR
Lastly, petitioner argues the state trial court committed constitutional error when it denied petitioner's motion requesting permission to appeal his original plea of guilty to the charged offense. Petitioner further maintains his constitutional rights were violated when he "was neither inquired of or advised of his right to appeal original plea placing [petitioner] on [deferred adjudication] probation."
As noted by respondent, petitioner charges the state trial court with constitutional error in denying a purported attempt by petitioner to appeal his original guilty plea, but in the same ground alleges constitutional error on the part of the state trial court for failing to inform petitioner of any purported right he may have had to appeal his original guilty plea — inconsistent positions alleging constitutional deprivations. Nonetheless, the undersigned has considered both arguments made by petitioner. Initially, the record does not contain, nor does the docket reflect, any motion by petitioner seeking permission to appeal his guilty plea. No such motion was filed by petitioner either immediately after the entry of the guilty plea or after revocation of the deferred adjudication probation. Moreover, petitioner was informed prior to the state trial court's acceptance of his guilty plea that if the court assessed punishment in accordance with the plea agreement between petitioner and the state, that permission of the court was required to prosecute any appeal on any matter in the case except for those matters raised by written pretrial motions. Further, petitioner has failed to show he had a constitutional right to again be informed, after the revocation of his deferred adjudication probation, of his limited right to appeal his guilty plea. The undersigned finds petitioner has not demonstrated any action on the part of the state trial court resulting in the denial of petitioner's constitutional rights in the underlying proceeding.
Moreover, the state court heard and adjudicated, on the merits, petitioner's claim of trial court error. Petitioner has not shown the state court unreasonably applied federal law or made an unreasonable determination of the facts. Petitioner's claims of trial court error should be DENIED.
VI. RECOMMENDATION
It is the RECOMMENDATION of the undersigned United States Magistrate Judge to the United States District Judge that the instant Petition for a Writ of Habeas Corpus filed by petitioner TERRY LYNN LUKE be DENIED.
VII. INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by certified mail, return receipt requested, and to respondent's attorney of record by regular U.S. mail or other agreed means.
Any party may object to this Report and Recommendation within fourteen (14) days after the date of its filing. See 28 U.S.C. § 636(b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts. Any such objections shall be in the form of a written pleading entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.