Opinion
No. 3:01-CV-1101-H
August 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 February 6, 1997, the State indicted petitioner for burglary of a habitation; the indictment contained enhancement paragraphs for two prior felonies. S.H. Tr. at 52-53. On March 27, 1997, petitioner pled guilty to the charge and true to the enhancement paragraphs and was sentenced to ten-years deferred adjudication probation. Id. at 54.
"S.H. Tr." refers to the state habeas record attached to Ex parte Mosley, No. 47, 779-01, slip op. (Tex.Crim.App. Dec. 13, 2000).
Subsequently, on May 22, 1997, the trial court adjudicated petitioner guilty and sentenced him to forty years imprisonment. Id. at 58. The court of appeals affirmed petitioner's conviction on September 14, 1999. Mosley v. State, No. 05-97-00876-CR, slip op. at 5 (Tex.App.-Dallas Sept. 14, 1999, pet. ref'd) (not designated for publication). Six days later, on September 20, 2000, he filed a state application for writ of habeas corpus. See S.H. Tr. at 3. On December 13, 2000, the Texas Court of Criminal Appeals remanded the petition to the trial court for evidentiary hearing or affidavits. Ex parte Mosley, No. 47,779-01, slip op. at 1 (Tex.Crim.App. Dec. 13, 2000). On February 14, 2001, the trial court entered supplemental findings. S.H. Tr. Supp. at 2-5. The Texas Court of Criminal Appeals denied the application without written order on findings of the trial court without a hearing on March 28, 2001. Exparte Mosley, No. 47,779-01, slip op. at 1 (Tex.Crim.App. Mar. 28, 2001).
"S.H. Tr. Supp." refers to the state habeas record attached to Ex parte Mosley, No. 47,779-01, slip op. (Tex.Crim.App. Mar. 28, 2001).
Petitioner filed the instant federal writ of habeas corpus on June 7, 2001. (Pet. at 9.) Respondent filed an answer on October 3, 2001. ( See Answer at 1.) Petitioner thereafter filed a brief in opposition to that answer. ( See Petitioners Proposed Findings of Facts in Opp'n [hereinafter Reply].)
D. Substantive Issues: Petitioner raises six bases for habeas relief in the instant federal petition: (1) involuntary guilty plea; (2) constructive denial of counsel at plea hearing; (3) insufficiency of the evidence to support his guilty plea and the convictions underlying his enhancement paragraphs; (4) double jeopardy; (5) failure to receive a lesser included offense instruction; and (6) trial court's failure to conduct an adequate evidentiary hearing on habeas review. (Pet. at 7-8; Brief in Supp. at 7, 12-13.)
E. Exhaustion: Respondent concedes that petitioner has sufficiently exhausted his state remedies with respect to the claims raised in the instant federal petition. ( See Answer at 3.)
II. APPLICABLE LAW
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA or the Act), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date, which is the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after the effective date of the AEDPA the Act applies to his petition.
Title I of the AEDPA substantially changed the way federal courts handle habeas corpus actions. Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
"In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). In this case, the denial of petitioner's state writ constitutes an adjudication on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) (holding that a denial, rather than a dismissal, signifies an adjudication on the merits). The court of appeals also affirmed petitioner's conviction on the merits. See Mosley v. State, No. 05-97-00876-CR, slip op. at 1-5 (Tex.App.-Dallas Sept. 14, 1999, pet. ref'd) (not designated for publication). 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." William v. Taylor 529 U.S. 362, 41243 (2000).
With respect to the "unreasonable application" standard, Williams instructs that a writ must issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." 529 U.S. at 413; see also, Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." 529 U.S. at 407. " [A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; see also, Penry, 532 U.S. at 793.
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were `based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
III. VOLUNTARINESS OF GUILTY PLEA
Petitioner claims that his guilty plea was involuntary because the trial court "failed to inform him of the nature of the charges in the two-count indictment . . . and failed to inform him of his constitutional rights that he would be waiving and the ones he would retain." (Pet. at 7.) 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)).
Petitioner also asserts that the trial court failed to comply with Fed.R. Grim. P. 11(c)(1) and (F). (Brief in Supp. at 7, 20-22,) Because the Federal Rules of Criminal Procedure do not apply to the state courts, the Court only considers his allegation that the state court failed to properly admonish him as required by the United States Constitution.
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 burglary of a habitation on March 27, 1997. See S.H. Tr. at 54. With respect to his guilty plea, he signed a form entitled "Court's Admonition of Statutory and Constitutional Rights and Defendant's Acknowledgement [sic]," which stated "You are charged with the crime of burglary of a habitation with 2 prior felony convictions and the range of punishment is 25-99 years or life TDC and fine up to $10,000". TR at 15. The form further stated that recommendations of punishment would not bind the court, but that the court would follow the plea agreement, if able, and, if unable to do so, the court would allow petitioner to withdraw the plea. Id. ¶ 2. The form admonished that petitioner could not appeal without permission of the court, unless the court imposed a punishment greater than the one agreed to by the petitioner. Id. ¶ 3. It further admonished petitioner about consequences relating to being a non-United States citizen, his rights if he had court-appointed counsel, and effects of probation violations on deferred adjudication. Id. ¶¶ 4-6. The trial court specifically admonished petitioner:
"TR" refers to the state trial record in Cause No. F97-46030-KV.
If you receive deferred adjudication and a violation of probation occurs, you may be arrested, detained, and a hearing conducted, limited to the determination of whether the court should proceed to adjudication of guilt on the original charge or not. No appeal may be taken from this determination. If there is an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and your right to appeal continue as if the adjudication of guilt had not been deferred. If there is an adjudication of guilt, the full range of punishment would be applicable to your case.Id. ¶ 6. The Acknowledgment section of this form provided: "I have read the above and foregoing admonitions by the Court regarding my rights. I understand the admonitions, and I understand and am aware of the consequences of my plea. Furthermore, my lawyer has explained to me all of the admonitions given by the Court in this document." Id.
Petitioner also signed a form entitled "Defendant's Waivers and Judicial Confession" in which he stated that he understood the charge against him, that he had been advised of the consequences of his plea, that he waived his right to remain silent and confrontation and cross-examination of witnesses, that he consented to an oral or written stipulation of the evidence and testimony, and that he agreed to the introduction of testimony by affidavit, written statements of witnesses, a judicial confession, and any other documentary evidence. Id. at 10-11. He further admitted and judicially confessed that he was the person named in the indictments and that he understood the charges contained therein. Id. at 11. He also specifically indicated that he was pleading guilty to the offense of burglary of a habitation. Id. Defense counsel indicated that he had consulted with petitioner concerning his plea and had advised him of his rights and the charges to which he was pleading. Id. In addition, petitioner pled true to two enhancement paragraphs of the indictment. TR at 14. He entered a "Judicial Confession" wherein he confessed that he "committed the offense" of which he was charged in the indictment. Id. at 13.
Before the trial court accepted petitioner's plea, the court and defense counsel examined petitioner as to its voluntariness:
The Court: Mr. Mosley, you stand charged by indictment with the offense of burglary of a habitation having been twice before convicted of an offense of the grade of a felony. Do you understand what you're charged with? Petitioner: Yes, sir. The Court: I'm told by your lawyer that you wish to give up your right to a jury trial and enter a plea of guilty to the first paragraph and a plea of true to the second and third paragraphs of the indictment; is that correct? Petitioner: Yes, sir. The Court: Are you entering those pleas to the respective paragraphs freely and voluntarily? Petitioner: Voluntarily. The Court: The answer is yes or no. Petitioner: Yes, sir. The Court: I have before me a document entitled Court's Admonition of Statutory and Constitutional Rights and Defendant's Acknowledgment. Did you sign those documents knowingly and intelligently after discussing them with your attorney? Petitioner: Yes, sir. Counsel: Mr. Mosley, you and I have gone over the indictment in this cause alleging a burglary of a habitation and you do understand what it is you're charged with; is that correct? Petitioner: Yes, sir. Counsel: You decided to enter a plea of guilty to the indictment as it is charged; is that correct? Petitioner: Yes, sir. Counsel: There is a second page to this indictment called enhancement paragraphs alleging two prior convictions of yours and you have discussed those and you decided to enter a plea of true to those two prior convictions; is that correct? Petitioner: Yes, sir. Counsel: You understand by entering this plea of guilty the Judge can find you guilty on these charges. Do you understand that? Petitioner: Yes, sir. Counsel: We're here today to request the Court to consider you for probation; is that correct? Petitioner: Yes, sir. Counsel: And you understand that the range of punishment on this being a habitual type offense is 25 to life. You understand that? Petitioner: Yes, sir. Counsel: That the Judge can set punishment anywhere within that range he so desires. Do you understand that? Petitioner: Yes, sir.
Reporter's Record on Plea of Guilty (RR) at 4-7. Notwithstanding the above, petitioner complains that the trial court did not properly admonish him and that he involuntarily pled guilty. (Pet. at 7; Brief in Supp. at 7.) The state trial court found sufficient evidence to support petitioner's guilty plea. S.H. Tr. at 33. It further found that petitioner "knowingly and voluntarily" pled guilty. Id. at 34. 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 id. at 34, 43-44. In particular, the affidavit stated:
I discussed the facts of the case with [petitioner] . . . I advised him of his right to a jury trial and his right to enter a plea of guilty or not guilty to the indictment and true or not true to the enhancement paragraphs of the indictment. I advised [petitioner] of the range of punishment if he were found guilty of the indictment and the prior enhancement paragraphs were found to be true. [Petitioner] appeared to be competent and understood all his options. I explained to [him] the option of entering an open plea to the court for possible drug treatment. I advised him to contact Cenikor, which he did, and was tentatively accepted into their program. [Petitioner] elected to waive a jury trial, enter a plea of guilty to the indictment and a plea of true to the enhancement paragraphs and enter an open plea to the court. I agreed to the waivers he signed. At this open plea on March 27, 1997, I argued for the court to place [petitioner] on probation so he could obtain drug treatment. The court placed [petitioner] on deferred probation with the condition he attend the Cenikor program. The presentence interview narrative indicated [petitioner] admitted he committed the burglary offense to help support his drug habit.Id. at 43. This version of events is entirely consistent with the state court records. See S.H. Tr. at 10-16; RR at 4-10.
The trial court found defense counsel "trustworthy" and "the statements made in his affidavit . . . worthy of belief." S.H. Tr. at 34. This Court presumes that 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). Petitioner has not rebutted the presumption.
The record simply does not support a finding that petitioner's plea was involuntary. Rather, it reflects that petitioner had a clear understanding of the proceedings against him, the nature of the offense for which he was charged, and the consequences of entering his plea. See generally, S.H. Tr. at 10-16; RR at 4-10. Petitioner has not overcome the presumption of verity accorded solemn declarations made in open court. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (holding that "[s]olemn declarations in open court carry a strong presumption of verity [and] [t]he subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal"). He has not overcome the presumption of regularity and "great weight" accorded state-court records. See Bonvillian v. Blackburn, 780 F.2d 1248, 1252 (5th Cir. 1986) (holding that state-court records are "accorded great weight"); Webster v. Estelle, 505 F.2d 926, 929-30 (5th Cir. 1974) (holding that state-court records "are entitled to a presumption of regularity"). 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 that he was improperly admonished by the trial court and that his plea was involuntary which are unsupported by the record and which contradict his statements in open court that his guilty plea was "made voluntarily, knowingly, and intelligently." See TR at 11.
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, and he is entitled to no habeas relief on this claim.
IV. CONSTRUCTIVE DENIAL OF COUNSEL
Although petitioner initially alleges that "he was denied the effective assistance of counsel before the plea hearing and during the guilt/innocence phase of his trial," his pleadings make clear that he is alleging constructive denial of counsel rather than ineffective assistance:
Petitioner does not contend that he was entirely without an attorney during his March 27, 1997 Plea hearing, nor that counsel's performance was ineffective within the meaning of Strickland v. Washington, 466 U.S. 668 (1984). He asserts instead that he received no meaningful assistance from his court-appointed lawyer, and thus was constructively denied his Sixth Amendment right to counsel. See United States v. Cronic, 466 U.S. 648 (1984).
(Brief in Supp. at 14.) In Cronic, the Supreme Court recognized that a defendant might be constructively denied counsel although an attorney had been appointed. 466 U.S. at 654 n. 11 ("[T]he performance of counsel may be so inadequate" as to constitute no assistance of counsel at all). Petitioner "does not argue that he had a bad lawyer at the plea hearing proceedings but that he had none at all, except for the purpose of waiving a jury trial." (Brief in Supp. at 18.)
Petitioner's reply brief further supports this characterization of his claim. ( See Reply at 10-11.)
The record in the instant case shows that counsel was appointed "to represent" petitioner in his burglary-of-a-habitation case. See TR at 9. It shows that counsel signed each waiver signed by petitioner. Id. at 10-11, 15. Counsel assisted on the plea bargain agreement reached in this case. Id. at 12. Counsel, in addition to petitioner, signed the judicial confession and petitioner's plea of true. Id. at 13-14. Counsel examined petitioner about the voluntariness of his plea of guilty. RR at 6-9. The record further shows that counsel requested deferred adjudication probation on petitioner's behalf. Id. at 7. Counsel submitted an affidavit to the trial court in which he explains that he did more than simply counsel petitioner to plead guilty. See S.H. Tr. at 43. The trial court found the attorney credible and found that petitioner "was represented by an attorney who exercised all of the skill and expertise which one could reasonably expect of an attorney and that [petitioner] was in no way denied his right to effective assistance of counsel at trial." S.H. Tr. at 34-35. The Texas Court of Criminal Appeals accepted these findings when it denied petitioner's state habeas petition.
The record in this case does not reveal any constructive denial of counsel. Nothing of record in this case indicates that appointed counsel did not represent petitioner's interests. To the contrary, the record shows that counsel did represent petitioner's interests. See S.H. Tr. at 43 (affidavit of counsel). The trial court found the attorney credible and this court defers to such credibility finding unless petitioner overcomes it by clear and convincing evidence. Petitioner has not overcome the credibility finding. He cannot rely solely upon his unsupported allegations to support a finding that he was constructively denied counsel. He has the burden to show such constructive denial of counsel. See Childress v. Johnson, 103 F.3d 1221, 1228, 1231-32 (5th Cir. 1997). A conclusory allegation of constructive denial of counsel does not entitle a petitioner to habeas relief. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (holding that conclusory allegations are insufficient to obtain habeas relief). Petitioner has not shown that he was constructively denied counsel. Such claim entitles petitioner to no habeas relief.
V. INSUFFICIENCY OF EVIDENCE
Petitioner also attacks his guilty plea as unsupported by sufficient evidence. ( See Pet. at 7; Brief in Supp. at 20, 23-25.) By that 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 knowing, intelligent, and voluntary. By entering said plea petitioner has, therefore, waived his right to demand any evidence to sustain his conviction. See United States v. Broce, 488 U.S. 563, 569 (1989) (holding that "when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary"). A "failure of the Texas state court to require evidence of guilt corroborating a voluntary plea" raises "[n]o federal constitutional issue." Smith v. McCotter, 786 F.2d 697, 702 (5th Cir. 1986) (quoting Baker v. Estelle, 715 F.2d 1031, 1036 (5th Cir. 1983)). The "mandate that sufficient evidence exist from which a rational fact finder could find guilt beyond a reasonable doubt is inapplicable to convictions based on a guilty plea." Id. at 702-03. Accordingly, this claim is not proper for federal habeas review.
In addition, petitioner appears to challenge the convictions set forth in his enhancement paragraphs as unsupported by sufficient evidence. ( See Brief in Supp. at 11-13; Reply at 5.) Although petitioner may in effect challenge his prior convictions through a challenge to his enhanced 1997 sentence, he may not challenge the prior convictions on the basis that there is insufficient evidence to support them. See Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 401-05 (2001). Furthermore, by pleading true to enhancement paragraphs, a defendant concedes that he in fact has prior convictions that can be used to enhance his sentence on the current conviction. See Holloway v. Lynaugh, 838 F.2d 792, 793 (5th Cir. 1988). He also waives any complaints about the validity of the prior convictions. Id.; Johnson v. Puckett, 930 F.2d 445, 449-50 (5th Cir. 1991); Zales v. Henderson, 433 F.2d 20, 24 (5th Cir. 1970).
To the extent petitioner may be seeking to challenge the two enhancement convictions on the basis of ineffective assistance of counsel, see Reply at 1-9, such challenge is also not permissible under Coss.
Petitioner's claims relating to the sufficiency of the evidence to support his guilty plea and his prior convictions that underlie the enhancement of his current sentence present no basis for habeas relief.
VI. DOUBLE JEOPARDY
Petitioner also makes a claim under the Double Jeopardy Clause of the United States Constitution. ( See Pet. at 8; Brief in Supp. at 7.) Although the precise contours of such claim is unclear, he argues that after he pled guilty, the trial court violated the Double Jeopardy Clause by accepting a judicial confession as evidence of guilt even though such confession is insufficient to support his plea. ( See Pet. at 8; Brief in Supp. at 27-29; Reply at 19-22.)
"[T]he double jeopardy clause serves three interests, protecting against: (1) prosecution of the same offense after acquittal; (2) prosecution of the same offense after conviction; and (3) multiple punishments for the same offense." United States v. Berry, 977 F.2d 915, 918 (5th Cir. 1992). The arguments of petitioner do not appear to implicate any of these protected interests. As already stated, his guilty plea removed the burden from the State to present sufficient evidence to support his conviction. To the extent petitioner somehow construes his deferred adjudication probation and subsequent adjudication of guilt as prosecution of the same offense twice, such construction simply demonstrates a misunderstanding of deferred adjudication probation. Despite being placed on deferred adjudication probation and subsequently having such probation revoked and being adjudicated guilty, petitioner has only been prosecuted and convicted once for his burglary-of-a-habitation offense. In short, petitioner has not been subject to double jeopardy. This claim thus entitles petitioner to no habeas relief.
VII. LESSER INCLUDED OFFENSE
Petitioner next argues that the Court should vacate his burglary conviction because "it is a lesser included offense." (Brief in Supp. at 7, 29.) He contends that he was entitled to a "lesser included offense instruction under Fed.R.Crim.P. 31(c)." ( Id. at 29; Reply at 23.)
The Federal Rules of Criminal Procedure have no applicability to petitioner's state criminal proceedings. Furthermore, the Fifth Circuit has repeatedly held that there is no federal constitutional right to an instruction on a lesser included offense in a noncapital state trial. See, e.g., Creel v. Johnson, 162 F.3d 385, 390 (5th Cir. 1998); Valles v. Lynaugh, 835 F.2d 126, 127 (5th Cir. 1988). Nevertheless, even were the Court to find that petitioner had some right to a lesser included offense instruction had he proceeded to trial, such right would have evaporated when he pled guilty to the charges against him. He waived all 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). In addition, when one pleads guilty there is no occasion for any jury instruction, let alone one for a lesser included offense. This claim entitles petitioner to no habeas relief.
VIII. STATE DENIAL OF EVIDENTIARY HEARING
Petitioner claims that the trial court on habeas review failed to provide him with an adequate evidentiary hearing. (Brief in Supp. at 10.) This Court cannot grant habeas corpus relief "to correct alleged errors in state habeas proceedings." See Trevinov. Johnson, 168 F.3d 173, 180 (5th Cir. 1999) (holding that habeas relief was not available for such alleged errors). "[E]rrors in state postconviction proceedings will not, in and of themselves, entitle a petitioner to federal habeas relief." Morris v. Cain, 186 F.3d 581, 585 n. 6 (5th Cir. 1999). Challenges to state habeas proceedings necessarily fail "because infirmities in state habeas proceedings do not constitute grounds for relief in federal court." Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997). Accordingly, this claim entitles petitioner to no habeas relief.
In an abundance of caution, the State also addresses this claim as though petitioner raises a claim of ineffective assistance of counsel. ( See Answer at 5, 10-13.) Petitioner, however, has raised no claim of ineffective assistance of counsel in the instant federal petition. He raised the claim of constructive denial of counsel that has already been addressed. He also raised the instant claim relating to the failure of the trial court to hold an evidentiary hearing on claims of ineffective assistance of counsel that he raised at the state level. Petitioner's claim is clear that it relates solely to the failure of the trial court to hold an evidentiary hearing. Furthermore, to the extent petitioner seeks to challenge the convictions used to enhance his current sentence on the basis of ineffective assistance of counsel, the Court has addressed such possibility in a previous footnote.
IX. 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.X. 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).