Opinion
No. 3:00-CV-2566-H
April 8, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties: Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
C. Procedural History: On March 31, 1999, the State indicted petitioner for aggravated sexual assault of a child and two counts of indecency with a child. S.H. Tr. at 19. Petitioner pled guilty to the two counts of indecency with a child on February 3, 2000. Id. at 6, 15, 20, and 36. He received a five-year sentence in the TDCJ-ID on one count and a ten-year deferred adjudicated probation on the other count. Id. at 6, 15.
"S.H. Tr." refers to the state habeas record attached to Ex parte Medlinger, No. 47.549-01, slip op. at 1 (Tex.Crim.App. Nov. 8, 2000).
Petitioner did not appeal his conviction or sentence. ( See Pet. for Writ of Habeas Corpus (Pet.) ¶ 8.) On August 22, 2000, he filed a state application for writ of habeas corpus. See S.H. Tr. at 27. On October 16, 2000, the trial court found "no controverted, previously unresolved issues of fact material to the legality of [petitioner's] confinement" and ordered various documents certified and sent to the Texas Court of Criminal Appeals. S.H. Tr. at 79. On November 8, 2000, the Texas Court of Criminal Appeals denied the application without written order. See Ex parte Medlinger, No. 47, 549-01, slip op. at 1 (Tex.Crim.App. Nov. 8, 2000).
Petitioner filed the instant federal writ of habeas corpus on November 20, 2000. (Pet. at 9.) Respondent filed an answer on December 26, 2000. ( See Answer at 1.) On January 17, 2001, petitioner filed a reply to the answer. ( See Reply at 1.)
D. Substantive Issues: In six grounds for relief, petitioner raises five bases for habeas relief in the instant federal petition: (1) insufficiency of the evidence; (2) ineffective assistance of trial counsel; (3) involuntary guilty plea; (4) denial of due process; and (5) breach of the plea agreement. (Pet. at 7-8 and attached page [hereinafter identified as 8a].)
E. Exhaustion: Petitioner raised each of these claims in his state writ. See S.H. Tr. at 42-64. Respondent concedes that petitioner has sufficiently exhausted his state remedies with respect to the claims raised in the instant federal petition. ( See Answer at 2.)
II. APPLICABLE LAW
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA or the Act), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date, which is the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition on November 20, 2000, after the effective date of the AEDPA, the Act applies to his petition.
Title I of the AEDPA substantially changed the way federal courts handle habeas corpus actions. Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
"In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). In this case, the denial of petitioner's state writ constitutes an adjudication on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) (holding that a denial, rather than a dismissal, signifies an adjudication on the merits). The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply.
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, 534 U.S. 885 (2001). A decision is contrary to clearly established Federal law, within the meaning of§ 2254(d)(1), "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
With respect to the "unreasonable application" standard, Williams instructs that a writ must issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." 529 U.S. at 413; see also, Penny v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." 529 U.S. at 407. "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; see also, Penny, 532 U.S. at 793.
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were `based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
III. EXAMINATION OF THE ISSUES
A. Voluntariness of Plea
Petitioner "contends that but for the ill advise [sic] of his counsel, he would have never changed his original plea of not guilty, but counsel threatened [him] with a greater sentence and told him he could not get a fair trial because the D.A. [(District Attorney)] had too much influence in th[e] county." (Pet. at 8.) He argues that the actions of his counsel coerced him to plead guilty. (Reply at 7.) He contends that he has "never admitted guilt and has and always will contend he is innocent." ( Id.)
A plea of guilty waives a number of constitutional rights. Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); Joseph v. Butler, 838 F.2d 786, 789 (5th Cir. 1988). Thus, the Fourteenth Amendment Due Process Clause imposes certain requirements to ensure the validity of a guilty plea. Fischer v. Wainwright, 584 F.2d 691, 692 (5th Cir. 1978) (citing Brady v. United States, 397 U.S. 742 (1970); Boykin, 395 U.S. 238; Johnson v. Zerbst, 304 U.S. 458 (1938)). A plea "is constitutionally valid only to the extent it is `voluntary' and `intelligent.'" Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Brady, 397 U.S. at 748). "The voluntariness of a plea is determined by `considering all of the relevant circumstances surrounding it.'" Id. (quoting Brady, 397 U.S. at 749). Pleas are involuntary when induced by threats, improper promises, deception, or misrepresentation. See Daniel v. Cockrell, 283 F.3d 697, 702-03 (5th Cir.), cert. denied, 123 S.Ct. 286 (2002); United States v. Amaya, 111 F.3d 386, 389 (5th Cir. 1997).
A plea qualifies as intelligent when the criminal defendant enters it after receiving `real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.'" Bousley, 523 U.S. at 618 (quoting Smith v. O'Grady, 312 U.S. 329, 334 (1941)). "Before the trial court may accept a guilty plea, the court must ensure that the defendant `has a full understanding of what the plea connotes and of its consequence.'" Taylor v. Whitley, 933 F.2d 325, 329 (5th Cir. 1991) (quoting Boykin, 395 U.S. at 244). "A guilty plea is invalid if the defendant does not understand the nature of the constitutional protection that he is waiving or if he has such an incomplete understanding of the charges against him that his plea cannot stand as an admission of guilt." James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995) (citing Henderson v. Morgan, 426 U.S. 637, 645 n. 13 (1976)). In determining whether a plea is voluntary and intelligent, "the critical issue is whether the defendant understood the nature and substance of the charges against him, and not necessarily whether he understood their technical legal effect." Taylor, 933 F.2d at 329.
A prisoner may not generally "collaterally attack a voluntary and intelligent" plea. Taylor, 933 F.2d at 329. "A federal court will uphold a guilty plea challenged in a habeas corpus proceeding if the plea was knowing, voluntary and intelligent." James, 56 F.3d at 666. A guilty plea "entered by one fully aware of the direct consequences . . . must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes)." See Brady, 397 U.S. at 755. "If a defendant understands the charges against him, understands the consequences of a guilty plea, and voluntarily chooses to plead guilty, without being coerced to do so, the guilty plea . . . will be upheld on federal review." Frank v. Blackburn, 646 F.2d 873, 882 (5th Cir. 1980) ( en banc), modified on other grounds, 646 F.2d 902 (5th Cir. 1981) (per curiam). "When considering challenges to guilty plea proceedings, [the courts] have focused on three core concerns: absence of coercion, the defendant's understanding of the charges, and a realistic understanding of the consequences of a guilty plea." United States v. Gracia, 983 F.2d 625, 627-28 (5th Cir. 1993). The consequences of a guilty plea means only that the defendant knows "the maximum prison term and fine for the offense charged." Ables v. Scott, 73 F.3d 591, 592 n. 2 (5th Cir. 1996) (internal quotations omitted).
The core concerns recognized by the Fifth Circuit Court of Appeals are addressed by the admonishments contained in Article 26.13 of the Texas Code of Criminal Procedure. The Fifth Circuit has held that the admonishments under Rule 11 of the Federal Rules of Criminal Procedure provide "prophylactic protection for the constitutional rights involved in the entry of a guilty plea." United States v. Gracia, 983 F.2d 625, 627 (5th Cir. 1993). The requirements of Rule 11 and Article 26.13 are substantially similar. Compare Fed.R.Crim.P. 11 with TEX. CODE CRIM. PROC. ANN. art. 26.13. It therefore follows that the same "prophylactic protections" attach to the admonishments under Article 26.13 as under Rule 11.
In this case, petitioner appeared before the trial judge and pled guilty to two counts of indecency with a child on February 3, 2000. See S.H. Tr. at 2, 4, 19-26. With respect to his plea, he signed (in eighteen different locations) a form entitled "Guilty Plea Memorandum." See id. at 20-24. That form states at the outset:
In open Court, the Defendant waives a jury trial, waives all rights secured by law pursuant to Article 1.14, Texas Code of Criminal Procedure, waives ten days preparation for trial with approval of counsel, agrees to the stipulation of evidence, waives the reading of the charging instrument (whether by indictment or information) and the service of a copy of the charging instrument on Defendant; acknowledges the Defendant understands the charging instrument and the Defendant enters a plea of GUILTY to the offense of INDECENCY WITH A CHILD.Id. at 20. The form also contains petitioner's signature immediately following numerous specific provisions, including the following:
1. A "Waiver of Rights" wherein petitioner states that he "waives any and all rights secured the Defendant by law, whether of substance or of procedure, and states that any error which may have been committed is harmless." Id.
2. A "Stipulation of Evidence and Waiver of Confrontation" in which he "consents . . . to waive the appearance, confrontation and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony of affidavits, written statements of witnesses and any other documentary evidence in support of the judgment of the Court." Id. at 21.
3. A "Sworn Judicial Confession" wherein he swears that he has "read the charging instrument" and understands it; that he "committed each and every element alleged therein" that is essential to the offenses to which he has pled guilty; and that he is "guilty of such offense and all lesser offenses." Id.
4. The "Court's Admonishment of Defendant on Guilty Plea" in which the Court admonished petitioner in writing about the range of punishment for the two counts to which he was pleading guilty. Id. at 22.
5. A provision addressing the "Plea Bargain" in which petitioner and his attorney acknowledge that they have read and understand the terms of the plea bargain entered in this case and that the terms are as they "understood the State would recommend to the Court" and they agree that these terms are the "entire plea bargain in this case." Id. at 23.
6. A provision addressing the "Voluntariness of Plea" wherein petitioner specifically "states that the plea of guilty is freely and voluntarily made, and made only because [he] is guilty." Id. Petitioner also specifically confirms within this provision that he "completely understands all of the written waivers, stipulations, admonitions, th[e] Guilty Plea Memorandum, motions filed in connection with [his] plea, and the consequences of [his] plea, and that each is done freely, voluntarily, and that [he] is guilty as charged." Id. Petitioner's counsel also confirms that petitioner "understands all admonitions and the consequences of th[e] plea." Id. (emphasis added).
7. A provision entitled, "Joinder and Certification", in which petitioner and his counsel certify "that everything in th[e] Guilty Plea Memorandum is correct and accurate." Id. The provision also indicates that "the Court consents to and approves, in writing, the waiver of a jury trial, the stipulation of evidence and the judicial confession, and admits the same in evidence." Id. Within this provision, the court also certifies that petitioner "was duly admonished in writing, as provided in Article 26.13 of the Texas Code of Criminal Procedure . . . and certifies that [petitioner] is aware of the consequences of [his] plea." Id. In addition, the court "accepts" petitioner's plea and "certifies that all admonishments have been made and waivers approved in open court, in writing, with [petitioner] and [his] counsel present." Id.
8. A "Waiver of Rights and Acknowledgment of Admonishments" wherein petitioner "swears or affirms that he has read, and fully understands, each of the foregoing paragraphs . . . [and] that he signed each paragraph freely and voluntarily, and that he waives each of the above rights, and acknowledges each of the above admonishments." Id. at 24.
Notwithstanding the above, petitioner complains that he involuntarily pled guilty due to coercion by his attorney. (Pet. at 8.)
The state trial court found "that there are no controverted, previously unresolved issues of fact material to the legality of [petitioner's] confinement." See S.H. Tr. at 79. In reaching its determination, the trial court considered an affidavit of petitioner's attorney which specifically responded to petitioner's allegations of the involuntariness of his plea. See S.H. Tr. at 68-71. In particular, the affidavit stated:
The plea bargain was fully and fairly discussed in open court, and [petitioner] accepted the plea bargain as enumerated in the plea papers and in open court on the record.
. . .
. . . I fully explained to [petitioner] the range of punishment and applicable criminal statutes governing his case. I also explained to him my opinion of the outcome of the case as well as the sufficiency of the state's evidence. I further explained to [petitioner] his right to a jury trial; his right to subpoena witnesses and his right to confront and cross examine the state's witnesses. I also told [petitioner] of his right not to testify against himself and to not incriminate himself. I also explained [his] rights to testify in his own behalf if he wanted to do so. [Petitioner] freely and voluntarily waived his rights to enter the plea bargain in this case.
. . .
In response to allegation of an involuntary plea, I state the following. I did not misrepresent any facts to [petitioner]. I never told [him] that the aggravated count would be dropped, and this is not anywhere in the plea papers that [petitioner] signed, and the court followed the plea agreement, so there was no need or right for [petitioner] to withdraw his plea. I did inform [petitioner] that if the court did not follow the plea agreement, he could withdraw his plea.Id. at 69-70. This version of events is entirely consistent with the state court records. Id. at 20-26.
By its findings, the trial court implicitly credited this affidavit of counsel. Id. at 79-80. This Court presumes the implicit credibility finding of the state court to be correct, unless petitioner presents clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir. 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"). Petitioner has not rebutted the presumption.
The record simply does not support a finding that petitioner's plea was coerced or otherwise involuntary. Rather, it reflects that petitioner had a clear understanding of the proceedings against him, the nature of the offenses for which he was charged, and the consequences of entering his plea. See generally, S.H. Tr. at 20-24, 68-71. Petitioner has not overcome the presumption of verity accorded solemn declarations made in open court. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (holding that "[s]olemn declarations in open court carry a strong presumption of verity land] [t] he subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal"). He has not overcome the presumption of regularity and "great weight" accorded state-court records. See Bonvillian v. Blackburn, 780 F.2d 1248, 1252 (5th Cir. 1986) (holding that state-court records are "accorded great weight"); Webster v. Estelle, 505 F.2d 926, 929-30 (5th Cir. 1974) (holding that state-court records "are entitled to a presumption of regularity"). He has not overcome the presumption of correctness that attached to the credibility finding of the trial court. See 28 U.S.C. § 2254(e)(1). He simply presents self-serving assertions of coercion which are unsupported by the record and which contradict his statements in open court that his guilty plea was "freely and voluntarily made, and made only because [he was] guilty." See S.H. Tr. at 23.
Given the totality of the circumstances, it is evident that petitioner fully understood the charges against him and the consequences of his plea. Thus, his plea appears knowing, intelligent, and voluntary. Unless petitioner's specific claims of ineffective assistance of counsel impacted his decision to plead guilty, the Court should find that petitioner entered his plea knowingly, intelligently, and voluntarily.
B. Ineffective Assistance of Counsel
Petitioner specifically alleges that his trial attorney rendered ineffective assistance by conducting no pretrial discovery, filing no motion to suppress evidence or quash the indictment, questioning no witness, and lodging no "objection during the trial even though the case and evidence was questionable enough for the [first] grand jury to no-bill [him]." (Pet. at 7.) He suggests that these allegations relate to the voluntariness of his plea. ( See Pet. at 7; Reply at 7.)
A guilty plea is "open to attack on the ground that counsel did not provide the defendant with `reasonably competent advice.'" Cuyler v. Sullivan, 446 U.S. 335, 344 (1980) (quoting McMann v. Richardson, 397 U.S. 759, 770-771 (1970)). With respect to such pleas, "[c]ounsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution." Argersinger v. Hamlin, 407 U.S. 25, 34 (1972). However, once a criminal defendant enters a knowing, intelligent, and voluntary plea, all non-jurisdictional defects in the proceedings below are waived except for claims of ineffective assistance of counsel relating to the voluntariness of the plea. United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000); Nelson v. Hargett, 989 F.2d 847, 850 (5th Cir. 1993); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983).
When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.Tollett v. Henderson, 411 U.S. 258, 267 (1973).
In this instance, the alleged deficiencies of counsel do not appear to relate to the voluntariness of petitioner's guilty plea. Petitioner provides no explanation as to how the alleged deficiencies impacted his decision to plead guilty, and there is no obvious connection between the deficiencies and such decision. The Court has already found that petitioner's plea was knowing, intelligent, and voluntary. In view of this, petitioner has waived his specific claims of ineffective assistance of counsel. See Glinsey, 209 F.3d at 392.
Even assuming for purposes of this motion that the claimed ineffective assistance of counsel did relate to the voluntariness of petitioner's plea, however, petitioner would still be entitled to no habeas relief on such claim. To successfully state a claim of ineffective assistance of counsel under existing precedent of the United States Supreme Court, petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The Strickland test applies when a petitioner alleges he was denied effective assistance of counsel in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985).
In this instance, petitioner has shown no prejudice from the alleged deficiencies of counsel. When a prisoner challenges his plea based on ineffective assistance of counsel, the "prejudice" requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Id. 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. To show prejudice in the sentencing context, he must demonstrate that the deficiencies of counsel created a reasonable probability that his sentence would have been less harsh. See Glover v. United States, 531 U.S. 198, 200 (2001) (holding "that if an increased prison term did flow from an error [of counsel] the petitioner has established Strickland prejudice"). 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.
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 less harsh. In the absence of prejudice, petitioner's claims of ineffective assistance of counsel necessarily fail.
C. Beach of Plea Agreement
Petitioner contends that the State breached his plea agreement by failing to "drop the `aggravated' part of the charge." (Pet. at 8a.) He asserts that, although he bargained for such "dropping" so that he "would be eligible for mandatory supervised release," when he arrived in prison he learned that his conviction would still be considered "aggravated." ( Id.) In his reply brief, petitioner asserts:
The whole reason for [him] to want the charge to be changed was so that he would not have to be incarcerated under aggravated conditions, the fact that the change in the charge did not make a difference to anything in the plea agreement except as to the type of sentence that [he] would spend incarcerated and his eligibility for mandatory supervision is proof that [his] claims are true.
(Reply at 8-9.) Respondent argues that there has been no breach of the plea agreement. (Answer at 8.) She submits that the written plea agreement contains no provision to drop the aggravated portion of the charge. ( Id.) She also points out that trial counsel avers that such provision was not part of the plea agreement. ( Id.)
"[W]hen the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand." Mabry v. Johnson, 467 U.S. 504, 509 (1984). Such a breach implicates the Due Process Clause of the United States Constitution. See id. Whether government conduct "violate[s] the terms of the plea agreement is a question of law" and "[t]he party alleging a breach of the plea agreement bears the burden of proving the underlying facts establish a breach by a preponderance of the evidence." See United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). "In determining whether the terms of a plea agreement have been violated, the court must determine whether the government's conduct is consistent with the defendant's reasonable understanding of the agreement." United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993).
In this instance, the plea agreement contains nothing about dropping the "aggravated" part of the charges of indecency with a child to which petitioner pled guilty. See S.H. Tr. at 25-26. It specifically indicates that the prosecution will only "proceed on Counts Two Three." Id. at 25. The Indictment shows that those counts are for indecency with a child. Id. at 19. Although the form "Plea Bargain Agreement" has space to indicate that the prosecution proceed only on a "lesser offense," that space is blank. See id. at 25. Moreover, petitioner acknowledged that the written plea agreement was "the entire plea bargain in this case." Id. at 23. Also, counsel avers that he "never told [petitioner] that the aggravated count would be dropped." Id. at 70.
Petitioner has not shown that he had a reasonable understanding that the State would reduce the indecency-with-a-child counts to a non-aggravated offense. Consequently, he has not shown facts sufficient to establish a breach by the State. One could reasonably understand the plea agreement to "drop" Count One of the indictment — the charge of aggravated sexual assault of a child. The State's conduct is consistent with such an understanding. With respect to that "aggravated" part of the charges, the State fully complied with the plea agreement and "dropped" the aggravated-sexual-assault charge. Prosecution did not proceed on that charge. The petitioner has not established that the State has not breached the plea agreement.
D. Insufficiency of Evidence
Petitioner also 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.
E. Due Process
In his last claim, petitioner asserts "that he was denied due process from his arrest to his conviction" by the State's use of perjured and unreliable evidence, his lack of effective assistance of counsel, and his malicious prosecution by the State. ( See Pet. at 8a.) However, petitioner waived these non-jurisdictional defects when he knowingly, intelligently, and voluntarily entered his guilty plea. See United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000).
IV. STATE-COURT DETERMINATION
In his state writ petitioner raised each of his claims he now raises in the instant federal petition. Compare S.H. Tr. at 48-59 (state claims) with Pet. at 7-8a. As already discussed, the denial of that state writ constitutes an adjudication on the merits under Texas law. Implicit within that adjudication, the Texas Court of Criminal Appeals found petitioner's plea voluntary and found no ineffective assistance of counsel, breach of plea agreement, insufficiency of the evidence, or violation of due process. Such findings appear consistent with precedent of the United States Supreme Court. They appear 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 his claims. See 28 U.S.C. § 2254(d).
V. 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.
VI. 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.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).