Opinion
No. 3:01-CV-1683-N.
April 28, 2004
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-Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural History : On September 9, 1997, the State indicted petitioner for delivery of a controlled substance. TR at 2. On September 22, 1998, petitioner pled guilty to the charge and true to enhancement paragraphs in the indictment. Id. at 6. On September 25, 1998, the trial court entered a "Deferred Adjudication Order", and thereby placed petitioner on deferred adjudication probation for a period of ten years, fined him $750, and ordered him to serve 180 days in county jail as a condition of his probation. Id. at 6, 27-29; accord RR-Plea at 13.
"TR" refers to the state trial record in Cause No. F98-01294-T.
"RR-Plea" refers to the Reporter's Record of the plea and sentencing hearings.
Less than a year later, on July 14, 1999, the State moved to proceed with adjudication of guilt because petitioner had failed to comply with conditions of probation requiring him to (1) report to a probation officer twice monthly; (2) provide notification of a change of address; (3) pay court costs, his fine, and probation fees; (4) contribute to "Crimestoppers" as directed; (5) participate in a drug offender education program; and (6) submit to drug and alcohol evaluation and treatment. TR at 45-46. On August 20, 1999, petitioner pled true to the alleged violations of his probation. RR at 6. On that same date, the trial court adjudicated him guilty of delivery of a controlled substance in a "Judgment Adjudicating Guilt" and sentenced him to twenty-five years imprisonment, with "[b]ack-time credit to be given." Id. at 14, accord TR at 41 (giving credit for the periods between Jan. 16, 1998, and Mar. 23, 1999, and between July 24, 1999, and Aug. 20, 1999).
"RR" refers to the Reporter's Record of the probation revocation hearing.
On September 20, 1999, petitioner filed a pro se motion for new trial with the trial court. See Patrick v. State, No. 05-00-00107-CR, 2000 WL 920890, at *1 (Tex.App.-Dallas July 10, 2000, no pet.) (setting forth the procedural history of petitioner's state case relevant to his appeal). On November 29, 1999, and December 6, 1999, the trial court received inquiries from petitioner about the status of the motion for new trial. Id. On July 10, 2000, the court of appeals construed the inquiry of November 29, 1999, as a notice of appeal, and dismissed the appeal as untimely. Id. at *1-2. On September 21, 2000, it issued its mandate.
On November 29, 2000, petitioner filed a state application for writ of habeas corpus. S.H. Tr. at 2. On January 8, 2001, the trial court entered findings of fact and conclusions of law that recommended denial of the state application. Supp. S.H. Tr. at 3-6. On February 7, 2001, the Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court without a hearing. Ex parte Patrick, No. 48,324-01, slip op. at 1 (Tex.Crim.App. Feb. 7, 2001.) On April 25, 2001, petitioner filed a second state writ. S.H. Tr. II at 2. On June 20, 2001, the Texas Court of Criminal Appeals dismissed the second writ as successive. Ex parte Patrick, No. 48,324-02, slip op. at 1 (Tex.Crim.App. June 20, 2001.)
"S.H. Tr." refers to the state habeas records attached to Ex parte Patrick, No. 48,324-01, slip op. (Tex.Crim.App. Feb. 7, 2001.)
"Supp. S.H. Tr." denotes the supplemental state habeas record.
"S.H. Tr. II" refers to the state habeas records attached to Ex parte Patrick, No. 48,324-02, slip op. (Tex.Crim.App. June 20, 2001.)
In August 2001, petitioner commenced the instant action without counsel pursuant to 28 U.S.C. § 2254. ( See Pet. Writ of Habeas Corpus (Pet.) file stamped Aug. 27, 2001.) From that point through July 25, 2003, both parties filed numerous documents with the Court. On July 25, 2003, the undersigned Magistrate Judge appointed counsel for petitioner and issued orders to "narrow and focus the issues in this case." ( See Order of July 25, 2003, at 7.) In response to that order, petitioner filed a second amended petition on November 13, 2003. ( See Second Am. Pet.) In December 2003, respondent filed an amended answer. ( See Am. Answer.) Petitioner has filed no traverse or reply brief to the amended answer. D. Substantive Issues : Petitioner asserts seven claims in this action, three of which relate to his receipt of ten years probation on September 25, 1998, which was conditioned on 180 days in custody with no credit given for time already served — (1) denial of due process; (2) denial of equal protection; and (3) double jeopardy. ( See Second Am. Pet. at 16-18.) Claims 4 and 5 relate to a confidential informant who was instrumental in petitioner's arrest — (4) denial of right to compulsory process and (5) ineffective assistance of counsel when counsel failed to file a motion to compel disclosure of the informant's identity prior to petitioner's guilty plea. ( Id. at 18-22.) In Claim 6, petitioner further claims that counsel rendered ineffective assistance "when he failed to force the trial court to drop" the two paragraphs used to enhance his sentence and when he failed to research the law related to illegal enhancement allegations. ( Id. at 22.) In Claim 7, petitioner asserts that trial counsel rendered ineffective assistance by advising him to plead guilty. ( Id. at 23.)
In June 2002, the Court appointed counsel in this action. ( See Order of June 25, 2002.) Contemporaneously with these findings, the Court has entered an order that relieves counsel of further duties in this case. As stated in that order, petitioner now proceeds with this action without counsel, and it is his sole responsibility to file any future necessary documents, including objections to these findings and any papers necessary for purposes of appeal.
By letter to the Court, petitioner indicates that he also wishes to assert a separation-of-powers argument in addition to these legal positions asserted by counsel. ( See Letter from Patrick to Ramirez of 11/19/03, filed on Nov. 25, 2003.)
E. Procedural Issues : Respondent concedes that petitioner has exhausted the claims presented in the second amended petition. (Am. Answer at 4.) He thus does not seek dismissal for any lack of exhaustion. ( Id.) However, he does seek dismissal of the action on grounds that petitioner has failed to timely file his federal petition. The premise for such argument partially lies in respondent's belief that the applicable state judgment became final thirty days after the trial court entered its order of deferred adjudication and petitioner failed to appeal from that order. ( Id. at 6.) Respondent further argues that even if the statute of limitations is calculated from the date the trial court adjudicated petitioner guilty, the instant petition is untimely. ( Id. at 7-9.)
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 first 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 to the claims that petitioner presented in his initial state habeas application.
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. 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, Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise, 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. STATUTE OF LIMITATIONS
Respondent argues that the statute of limitations of 28 U.S.C. § 2244(d)(1) bars consideration of petitioner's claims. (Am. Answer at 5-6.) According to respondent, petitioner's state judgment became final in 1998 when the trial court placed petitioner on deferred adjudication probation, and he failed to appeal that placement. ( Id.) Respondent further contends that even if the Court calculates the statute of limitations from the date the trial court adjudicated petitioner guilty on August 20, 1999, the petition is still untimely. ( Id. at 7-9.)Respondent's second contention appears to have merit. This case has a tortured procedural history — at both the state and federal levels, however, and many factors must be considered to accurately determine the commencement date of the federal statute of limitations and whether tolling principles work to save an otherwise untimely petition. In light of the lack of merit of petitioner's claims, it appears most efficient to consider the merits of petitioner's claims rather of the procedural nuances of the federal statute of limitations and principles of equitable tolling. By reaching the merits of petitioner's claims despite the potential limitations bar, the Court expresses no view as to the timeliness of petitioner's claims.
Despite the sporadic success in other courts of respondent's contention that the federal statute of limitations commenced thirty days after the trial court placed petitioner on deferred adjudication probation and petitioner failed to appeal, this Court has previously rejected such contention. See Daugherty v. Dretke, No. 3:01-CV-0202-N, 2003 WL 23193260, at *5-8 (N.D. Tex. Dec. 24, 2003) (findings, conclusions, and recommendation), accepted by No. 3:01-CV-0202-N, slip op. (N.D. Tex. Feb. 12, 2004) (order accepting recommendation). The facts and circumstances in Daugherty are indistinguishable from the current facts and circumstances.
Because petitioner filed a motion for new trial but filed no timely notice of appeal, his conviction became final for purposes of the federal statute of limitations on November 18, 1999, ninety days after his sentence was imposed in open court. See Lavarry v. Johnson, No. 3:00-CV-2449-G, 2001 WL 376335, at *3 (N.D. Tex. Apr. 12, 2001) (findings, conclusions, and recommendation which found that an untimely appeal fails to "maintain `direct review' of [a] conviction as required under 28 U.S.C. § 2244(d)(1)(A) [thus the] federal court must look to the date on which the time for seeking direct review expired as the date of accrual for purposes of the statute of limitation"), accepted by 2001 WL 484426 (N.D. Tex. May 2, 2001); TEX. R. APP. P. 26.2(a)(2) (setting a ninety day deadline from the date sentence was imposed for filing a notice of appeal when a timely motion for new trial has been filed). Even assuming November 18, 1999, is the commencement date for the statute of limitations, the instant action might very well be untimely in the absence of equitable tolling.
IV. VOLUNTARINESS OF PLEAS
In this case, petitioner pled guilty to the single charge against him, and true to the paragraphs used to enhance his sentence as a habitual offender. Because some of his allegations appear to attack the voluntariness of these pleas, the Court addresses this issue before addressing petitioner's substantive claims.A. Guilty Pleas
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)). " Boykin requires that defendants have a hearing prior to entry of the plea, at which there needs to be an affirmative showing that the decision to plead guilty was voluntarily and intelligently made." Matthew v. Johnson, 201 F.3d 353, 368 n. 22 (5th Cir. 2000). In addition, "the voluntary and intelligent nature of the plea [must] be apparent on the face of the record." See Holloway v. Lynaugh, 838 F.2d 792, 793 (5th Cir. 1988). Boykin also sets out "the contemporary standards for plea bargain admonishments." See United States v. Barlow, 17 F.3d 85, 89 (5th Cir. 1994).
Fed.R.Crim.P. 11(c) "codifies" the Boykin admonishments. See Fed.R.Crim.P. 11(c) advisory committee's note on 1974 amendments.
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, 537 U.S. 874 (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. Id. "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). B. Pleas of True to Enhancement Paragraphs
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.
The Fifth Circuit has employed a "framework" similar to that set forth in Boykin "in rejecting challenges to enhancement pleas on the ground that the `totality of the circumstances' in the record demonstrated that the plea was voluntary and intelligent." See Holloway v. Lynaugh, 838 F.2d 792, 793 (5th Cir. 1988), accord Swift v. Lynn, 870 F.2d 1039, 1042 (5th Cir. 1989); Joseph v. Butler, 838 F.2d 786, 791 (5th Cir. 1988). In Holloway, the Fifth Circuit declined to apply Boykin "`literally' to enhancement pleas because the defendant does not possess the `full panoply of due process and other constitutional protections which attend the determination of guilt or innocence;'" nevertheless, it looked to the "totality of the circumstances" to determine whether the plea of true to enhancement paragraphs was voluntary and intelligent. See id. at 793-94 (quoting Buckley v. Butler, 825 F.2d 895, 902-03 (5th Cir. 1987)). " Boykin `cannot be applied literally' because to do so would require the judge to advise the defendant of rights that he does not possess." See Joseph, 838 F.2d at 791. Subsequent to Holloway, the Fifth Circuit held that courts should examine the totality of the circumstances in determining whether a prisoner has involuntarily entered a plea of true to enhancement paragraphs. See Ellis v. Lynaugh, 883 F.2d 363, 365 (5th Cir. 1989).
An enhancement plea is when a defendant pleads true to prior convictions that result in an enhanced sentence on the current conviction. Holloway, 838 F.2d at 793.
For instance, "[t]he accused cannot be advised that he has a right to trial by jury, for he may have no such right." Buckley, 825 F.2d at 903. In addition, "there is no right to grand jury indictment on the sentencing facts, no right to a petit jury trial on those facts, and no requirement that the facts be established beyond a reasonable doubt." Joseph, 838 F.2d at 791.
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, 838 F.2d at 793. 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). By entering said pleas in this case, petitioner has waived his right to demand any evidence to sustain the enhancement paragraphs. See Long v. McCotter, 792 F.2d 1338, 1341 (5th Cir. 1986) (reaffirming that "[a] plea of `true' . . . relieves the State of its burden of proof"). However, his pleas of true are subject to attack as involuntary as set forth in the preceding paragraph.
C. Voluntariness of Pleas in this Case
In this case, petitioner appeared before the trial judge and pled guilty to delivery of a controlled substance on September 22, 1998. See RR-Plea at 5-10. He also pled true to the enhancement paragraphs of the indictment. See id. at 7.
With respect to his guilty plea, petitioner 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 Del. Con. Subs. and the range of punishment is 25-99, life, up to $10,000 fine." TR at 26. 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 form specifically admonished petitioner:
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 21-22. He further admitted and judicially confessed that he was the person named in the indictment and that he understood the charge contained therein. Id. at 22. He also specifically indicated that he was pleading guilty to the offense of delivery controlled substance. 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. Id. at 25. He entered a "Judicial Confession" wherein he confessed that he "committed the offense" of which he was charged in the indictment, namely delivery of a controlled substance. Id. at 24.
Before the trial court accepted petitioner's guilty plea and pleas of true, the court examined petitioner as to their voluntariness:
The Court: Mr. Patrick, you understand, sir, that you have been charged with the felony offense of delivery of cocaine of over one gram. And it has been enhanced by two paragraphs of prior convictions, which makes the range of punishment for in your offense not less than 25 years nor more than 99 years or life in the penitentiary and it could include a fine of up to $10,000?
Petitioner: Yes, sir.
. . .
The Court: Sir, it's my understanding that you have expressed an intention to enter a plea of guilty to this charge and waive or give up certain legal rights that the law allows you and your have filed documents with the Court to that effect; is that correct?
Petitioner: Yes, sir.
The Court: Did you sign these documents of your own free will?
Petitioner: Yes sir.
The Court: You have been over them with [your attorney]?
Petitioner: Yes, sir.
The Court: And you understand what is contained in them?
Petitioner: Yes, sir.
The Court: And you still wish to give up these rights?
Petitioner: Yes, Your Honor.
The Court: And again, Counsel, you concur?
Counsel: Yes.
The Court: And you understand what is contained in them?
Petitioner: Yes, sir.
. . . The Court: Sir, it's also my understanding according to these papers, that in exchange for your plea of guilty to this offense, you have reached no type of agreement with the State, and I would ask you, sir; is that correct?
Petitioner: Yes, sir.
The Court: And you understand if you have any agreements with them or you feel like you have any types of agreements with them, that I wouldn't be aware of those agreements and I wouldn't be bound by those agreements?
Petitioner: Yes, sir.
The Court: And with that in mind, are you telling me that there is absolutely no agreement?
Petitioner: Yes, sir.
The Court: And Counsel, you concur?
Counsel: Yes, sir.
. . .
The Court: All right. Mr. Patrick, to the charge as set out in the indictment that you committed the felony offense of delivery of a controlled substance, how do you wish to plead?
Petitioner: Guilty, Your Honor.
The Court: And to the enhancement paragraphs alleged in the indictment, how do you wish to plead to those matters, are they true or untrue?
Petitioner: They are true.
The Court: Now, are you entering all of your pleas freely and voluntarily?
Petitioner: Yes, Your Honor.
The Court: Nobody has promised you anything to get you to enter these pleas?
Petitioner: No, Your Honor. The Court: Nobody has forced you or threatened you in any manner?
Petitioner: No, sir.
The Court: Are you pleading guilty simply because you are guilty and for no other reason?
Petitioner: Yes, sir.
The Court: Are you pleading true simply because those matters are true and for no other reason?
Petitioner: Yes, sir.
The Court: And Counsel, you concur in the plea?
Counsel: Yes, sir.
RR-Plea at 5-8. In response to questioning from the prosecutor, petitioner later reiterated that he was making his pleas only because he was guilty and because the enhancement paragraphs were true. Id. at 12. The state trial court thereafter found sufficient evidence to support petitioner's guilty plea. Id. at 13.
The record simply does not support a finding that petitioner's pleas were involuntary. The totality of the circumstances reflect 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 pleas. See generally, TR at 21-26; RR-Plea at 5-8. 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"). Although his claims and arguments suggest that his pleas may have been involuntary, any such suggestion is unsupported by the record and contradicts his statements in open court that his pleas were voluntary. See RR-Plea at 8. Such suggestion also contradicts his signed waivers and judicial confession that he made his waivers "voluntarily, knowingly, and intelligently." TR at 22. When a criminal defendant pleads true to enhancement paragraphs on the advice of counsel and the sentencing hearing was held in a close temporal proximity to the guilty plea to the substantive offense in the same court, before the same judge, and with the same prosecutors and defense counsel, the Boykin requirements that are applicable in the enhancement context are met. See Joseph v. Butler, 838 F.2d 786, 791 (5th Cir. 1988).
Given the totality of the circumstances, it is evident that petitioner fully understood the charges against him and the consequences of his pleas. Thus, his pleas appear knowing, intelligent, and voluntary. Unless petitioner's specific claims of ineffective assistance of counsel impacted his decision to plead guilty or true, the Court should find that petitioner entered his pleas knowingly, intelligently, and voluntarily.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner specifically alleges that his trial attorney rendered ineffective assistance by advising him to plead guilty to the charges against him and true to the enhancement paragraphs. (Second Am. Pet. at 23.) He further alleges that his attorney rendered ineffective assistance when he failed to file a motion pursuant to Texas Rules of Evidence 508(c)(2) to disclose the identity of a confidential informant prior to petitioner's guilty plea. ( Id. at 20-22.) He also alleges that counsel was ineffective when he failed to obtain dismissal of the two enhancement paragraphs or research the law with respect to the enhancement allegations. ( Id. at 22.)
Guilty pleas and pleas of true to enhancement paragraphs are "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) and addressing guilty pleas to underlying charges); Joseph v. Butler, 838 F.2d 786, 791 (5th Cir. 1988) (addressing pleas of true to enhancement paragraphs). With respect to guilty pleas, "[c]ounsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution." Argersinger v. Hamlin, 407 U.S. 25, 34 (1972). However, once a criminal defendant enters a knowing, intelligent, and voluntary guilty 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 appear sufficiently related to the voluntariness of petitioner's pleas to require consideration of them on the merits. 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). "[I]n a guilty plea scenario, a petitioner must prove not only that his attorney actually erred, but also that he would not have pled guilty but for the error." See Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994). The test also applies to claims of ineffective assistance of counsel that allegedly render pleas of true to enhancement paragraphs involuntary. See Joseph v. Butler, 838 F.2d 786, 791 (5th Cir. 1988).
A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. See 466 U.S. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000). To determine whether counsel's performance is constitutionally deficient courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691.
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." Hill, 474 U.S. at 58. To satisfy this requirement in the plea context, the prisoner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. 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"). When a prisoner challenges a plea of true to enhancement paragraphs based upon ineffective assistance of counsel, the petitioner has the "burden to demonstrate a reasonable probability that, but for counsel's errors, he would not have admitted his prior convictions and would have demanded a trial on the multiple offender charge." See Joseph v. Butler, 838 F.2d 786, 791 (5th Cir. 1988). 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.
A. Failures Related to Enhancement Paragraphs
Petitioner claims that his attorney rendered ineffective assistance when he failed to obtain dismissal of the two enhancement paragraphs and failed to adequately research the law with respect to the enhancement allegations. (Second Am. Pet. at 22.) He premises such claims on the fact that the enhancement convictions were not imposed within ten years of the substantive offense in contravention of section 4A1.2(A) of the federal sentencing guidelines. ( Id.) He argues "that had counsel done his homework . . . he would have discovered that under the Federal Sentencing Guidelines neither enhancement paragraph would have been sufficient." ( Id.)
The federal sentencing guidelines have no applicability to petitioner's state conviction and sentence. Such guidelines are immaterial to the validity of the paragraphs used to enhance petitioner's state sentence. Consequently, the Court finds no deficiency of counsel in the failure to research the federal sentencing guidelines to obtain dismissal of the enhancement paragraphs. Furthermore, any motion to dismiss the enhancement paragraphs based upon the federal sentencing guidelines would have failed. Attorneys are "not required by the Sixth Amendment to file meritless motions." United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995). Because the Court finds no deficiency of counsel related to the alleged failures to research the federal sentencing guidelines and obtain dismissal of the enhancement paragraphs petitioner is entitled to no habeas relief on this claim. Such claim thus cannot render petitioner's pleas involuntary.
B. Failure Related to Identity of Confidential Informant
Petitioner also claims that his attorney rendered ineffective assistance when he failed to file a motion to disclose the identity of a confidential informant prior to his guilty plea. (Second Am. Pet. at 20-22.) He contends that his attorney "completely overlooked Rule 508(c)(2) of the Texas Rules of Evidence." ( Id. at 20-21.) He argues that his attorney failed to recognize the "grave importance of obtaining an informant's testimony, which when withheld by the prosecution could be and was devastating to [his] defense." ( Id. at 21.) He further argues that, had counsel made a motion under Rule 508(c)(2) for in camera examination of the confidential informant's testimony, counsel "could have forced the trial court to `depart downward,' perhaps even dropping the alleged enhancements which remained intact to the imminent danger of 25 to 99 yrs. imprisonment." ( Id. at 22.)
The conclusory assertions and arguments of petitioner fail to affirmatively show that he was prejudiced by the alleged deficiency of counsel. Considering all the circumstances, petitioner has not shown a reasonable probability that, but for the failure of counsel to make a motion under Rule 508(c)(2), he would have pleaded not guilty and insisted on going to trial. Nor has he shown a reasonable probability that absent such alleged error of counsel, he would not have admitted his prior convictions but instead would have insisted that the State prove the enhancement paragraphs. Furthermore, he has not shown a reasonable probability that the testimony of the confidential informant would have been beneficial to him. He has also not shown a reasonable probability that absent errors of counsel, his sentence would have been less harsh. Instead, he speculates that examination of the testimony of the confidential informant "could have forced" the court to give a lower sentence "perhaps even dropping" the enhancement paragraphs. Petitioners, however, do not satisfy the prejudice prong of Strickland with mere speculation and conjecture. See Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Conclusory allegations, furthermore, are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990). Because petitioner has shown no prejudice from the failure of counsel to file a motion under Rule 508(c)(2) this claim of ineffective assistance of counsel entitles him to no habeas relief and provides no basis for finding his pleas involuntary.
C. Advice to Plead Guilty
Petitioner further claims that his trial attorney rendered ineffective assistance of counsel when he advised him to plead guilty to the substantive offense and plead true to the enhancement paragraphs. (Second Am. Pet. at 23.) He claims that counsel advised him to plead guilty "to an unprovable case" and to plead true to "flawed" enhancement paragraphs. ( Id.) These conclusory claims are insufficient to obtain habeas relief. Moreover, petitioner has not shown the advice of counsel to be deficient. He has not shown the case to be unprovable or the enhancement paragraphs to be flawed. He has not overcome the strong presumption that counsel's conduct falls within the wide range of reasonable assistance. To satisfy the deficiency prong in a guilty plea context, petitioner must show that the advice to plead falls outside "the range of competence demanded of attorneys in criminal cases." See Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994) (quoting Hill v. Lockhart, 474 U.S. 52, 56 (1985)). He has not made that showing.
Furthermore, petitioner has not shown a reasonable probability that, but for any error of counsel, he would have pleaded not guilty and insisted on going to trial. Nor has he shown a reasonable probability that but for an error of counsel he would not have admitted his prior convictions but instead would have insisted that the State prove the enhancement paragraphs. He has thus not shown his pleas to have prejudiced him within the meaning of Strickland "[I]n a guilty plea scenario, a petitioner must prove not only that his attorney actually erred, but also that he would not have pled guilty but for the error." See Armstead, 37 F.3d at 206.
Because petitioner has shown neither a deficiency with respect to counsel's advice to plead guilty to the charge and true to the enhancement paragraphs nor prejudice from any error of counsel this claim entitles petitioner to no habeas relief and does not render his pleas involuntary.
VI. COMPULSORY PROCESS
Petitioner also claims that he was denied his constitutional right to compulsory process when the confidential informant who provided information that led to his arrest could not be found prior to his guilty plea and when the trial court failed to conduct an in camera hearing related to the testimony of such informant. (Second Am. Pet. at 18-20.) His arguments suggest that testimony from the confidential informant would have created a reasonable doubt of guilt that did not otherwise exist. ( Id. at 19.)
By his voluntary, knowing, and intelligent guilty plea, petitioner waived his right to confront his accusers and his right to compulsory process. See Parke v. Raley, 506 U.S. 20, 29 (1992) (holding that right to confront accusers is waived with valid guilty plea); Boykin v. Alabama, 395 U.S. 238, 243 (1969) (same); United States v. Cuevas-Andrade, 232 F.3d 440, 445 (5th Cir. 2000) (same); Nobles v. Beto, 439 F.2d 1001, 1002 n. 1 (5th Cir. 1971) (holding that right to compulsory process is merely a non-jurisdictional defect which is waived by valid guilty plea). Furthermore, by his guilty plea, petitioner relieved the State of its burden to put forth evidence sufficient to sustain his conviction. By entering said plea, petitioner 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"). 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." Smith v. McCotter, 786 F.2d 697, 702-03 (5th Cir. 1986). For these reasons, this claim entitles petitioner to no habeas relief.
VII. PRE-SENTENCE CLAIMS
Petitioner raises three claims related to his 180 days in custody as a condition of his probation and an alleged failure to receive credit for time served prior to imposition of probation. (Second Am. Pet. at 16-18.) Because these alleged errors occurred after he pled guilty, his voluntary plea did not waive them. He specifically asserts that (A) the State denied him due process when it sentenced him to 180 days custody as a condition of his ten years probation; (B) the State violated his right to equal protection when it imposed that condition of probation without giving credit for the time he spent incarcerated prior to imposition of probation; and (C) the condition of probation and failure to give credit for time already served constitutes double jeopardy. ( Id.)
Respondent contends that these claims are not cognizable on federal habeas review. (Am. Answer at 13.) He asserts that such review is unavailable for claimed violations of state procedure. ( Id.) He further asserts that there is no constitutional right to credit for pre-sentence jail time. ( Id.) He argues that the relevant inquiry is whether petitioner was confined beyond the statutory maximum term of imprisonment. ( Id.)
To the extent petitioner relies upon violations of state rules of procedure, these claims indeed entitle petitioner to no habeas relief. Section 2254(a) of Title 28 of the United States Code directs the courts to "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Federal habeas relief cannot be had "absent the allegation by a [petitioner] that he or she has been deprived of some right secured to him or her by the United States Constitution or the laws of the United States." Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995). Alleged violations of state rules of procedure of themselves do not suffice. Manning v. Warden, 786 F.2d 710, 711 (5th Cir. 1986).
In this instance, however, petitioner does not merely rely upon alleged violations of state rules of procedure. He specifically alleges three constitutional violations. The Court thus examines each of these alleged violations.
A. Due Process
Petitioner asserts that the State denied him due process when he was sentenced to 180 days custody as a condition of receiving ten years deferred adjudication probation. (Second Am. Pet. at 16.) "It is now beyond question that due process rights guaranteed by the Fourteenth Amendment must be afforded to parolees" and probationers. United States v. Tyler, 605 F.2d 851, 852-53 (5th Cir. 1979) (citing Morrissey v. Brewer, 408 U.S. 471, 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778 (1973)); accord Jones v. Johnson, 230 F.3d 825, 827 (5th Cir. 2000). While Morrissey and Gagnon "deal specifically with the right of a probationer to have a hearing, it is clear that the
Fourteenth Amendment due process provisions contemplate that any such hearing must comport with principles of fundamental fairness." Tyler, 605 F.2d at 853.
Notice is a fundamental requirement of due process. See Lambert v. California, 355 U.S. 225, 228 (1958). "Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed." Id. The "touchstone of due process is protection of the individual against arbitrary action of government." Wolff v. McDonnell, 418 U.S. 539, 558 (1974). Nevertheless, the courts have "wide latitude in establishing the conditions for probation." United States v. Kahl, 583 F.2d 1351, 1357 (5th Cir. 1978).
In this instance, petitioner received a hearing when he pled guilty to the charge against him, and true to the enhancement paragraphs. See RR-Plea at 1-10. He received a second hearing when the trial court found the evidence sufficient to support petitioner's pleas, and announced that it was placing petitioner on ten-year deferred adjudication probation and ordering petitioner to serve 180 days in the jail as a condition of his probation. Id. at 11-14. Petitioner had legal representation at both hearings. See id. at 2, 5, 11. At no time during the second hearing did petitioner voice an objection to the 180 days of jail time required as a condition of probation. See id. at 11-14.
From these facts, the Court finds no violation of due process. Petitioner received a hearing. He received notice of the condition of probation. He had representation of counsel. He received all the due process to which he was due. Petitioner could have objected to the conditions of probation when the trial court imposed them, but did not do so. Furthermore, the complained-of condition of probation did not result in the revocation of petitioner's probation. Additionally, the trial court credited petitioner's sentence with time served prior to the revocation of his probation. B. Equal Protection
Petitioner further asserts that the State violated his rights to equal protection when the trial court ordered him to serve 180 days in jail as a condition of probation and failed to credit him for the time he spent incarcerated prior to imposition of probation. (Second Am. Pet at 17.) The Equal Protection Clause of the Fourteenth Amendment commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws," which is essentially a direction that all persons similarly situated should be treated alike. See Plyler v. Doe, 457 U.S. 202, 216 (1982); Piotrowski v. City of Houston, 237 F.3d 567, 578 n. 15 (5th Cir. 2001) (holding that "[t]he equal protection clause requires that all persons similarly situated be treated alike"). "The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons." Romer v. Evans, 517 U.S. 620, 631 (1996). Thus, "a party who wishes to make out an Equal Protection claim must prove "the existence of purposeful discrimination" motivating the state action which caused the complained-of injury." Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997). Furthermore, the Equal Protection Clause does not require pre-sentence jail credit. See Jackson v. Alabama, 530 F.2d 1231, 1235 (5th Cir. 1976).
Petitioner has not shown that the State ordered him to serve 180 days in jail as a condition of his probation or failed to credit him for time served prior to imposition of probation because of purposeful discrimination or any impermissible motive. He has alleged nothing to indicate that he has been treated differently from those situated similarly — the crux of an equal protection claim. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). In addition, the trial court gave pre-sentence jail credit to petitioner for the time he spent in jail related to his current conviction.
Furthermore, neither the Constitution nor federal laws require pre-sentence jail credit. See Jackson v. Alabama, 530 F.2d 1231, 1235 (5th Cir. 1976). As argued by respondent, (Am. Answer at 13), the appropriate inquiry with respect to entitlement to jail credit is whether petitioner was confined beyond the statutory maximum term of imprisonment for his offense due to his indigence, see Jackson, 530 F.2d at 1235. In this instance, petitioner was sentenced for unlawful delivery of a controlled substance under TEX. HEALTH SAFETY CODE ANN. § 481.112(c) (Vernon 1997) enhanced by two prior felony convictions. The maximum sentence for such offense is ninety-nine years imprisonment. See TEX. PENAL CODE ANN. § 12.42(b), (d)(1) (Vernon 1997). Petitioner received a twenty-five year sentence. Because petitioner was not sentenced beyond the statutory maximum sentence there is no equal protection violation.
For all of these reasons, petitioner has stated no viable equal protection violation. He is thus entitled to no habeas relief on this claim.
C. Double Jeopardy
Petitioner also argues that the 180-day custody condition of probation and failure to give credit for time already served constitutes double jeopardy. (Second Am. Pet at 17-18.) "[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 implicate the third protected interest. Despite his arguments, petitioner has not received multiple punishments for the same offense. On August 20, 1999, he received his one punishment for his offense — a twenty-five year sentence. See RR at 14, accord TR at 41. The trial court specifically credited petitioner's sentence with time already served prior to the date of sentencing, i.e. the time periods between January 16, 1998, and March 23, 1999, and between July 24, 1999, and August 20, 1999. See TR at 41. The time period from September 25, 1998, through March 23, 1999, constitutes the 180 days that petitioner had to serve as a condition of his probation. The time period prior to September 25, 1998, is that period prior to placement on deferred adjudication probation. Petitioner has not received multiple punishments for the same offense.
To the extent petitioner contends that his deferred adjudication probation and subsequent adjudication of guilt constitutes prosecution of the same offense twice, such contention 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 delivery-of-a-controlled-substance offense.
For all of these reasons, petitioner has not been subject to double jeopardy. This claim thus entitles petitioner to no habeas relief.
VIII. STATE-COURT CONSIDERATION
Petitioner raised each of the foregoing claims in his state writ. The Texas Court of Criminal Appeals denied that writ and thus adjudicated the claims on the merits. The decision of the state court with respect to petitioner's claims appear consistent with Supreme Court precedent. The decision involved no unreasonable application of Supreme Court precedent. The adjudication of these claims did not result in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented to the state court.
IX. SEPARATION OF POWERS
By letter to the Court, petitioner asserts an argument premised upon the separation of powers. ( See Letter from Patrick to Ramirez of 11/19/03, filed on Nov. 25, 2003.) He contends that "[b]ecause the Texas legislature has authorized `punishment prior to an adjudication of guilt' . . . the separation-of-powers argument . . . supplied in [his] amended petition filed on 9-25-01 @ p. 10, Pro Se Traverse filed 01-04-02 . . . relying onUS v. Klein, 80 U.S. (13 Wall) 128 . . . (1872) . . . clarifies today's Texas Deferred Adjudication law." ( Id.) He asserts that the present deferred adjudication law "was nothing more than a legislative response to . . . Ex Parte Gingell, 842 S.W.2d 284 @ 285 n. 1 (Tex.Crim.App. 1992)." ( Id.)This separation-of-powers argument is patently frivolous. Petitioner provides nothing that supports the argument. Neither Klein nor Ex Parte Gingell support finding a separation-of-powers violation. Petitioner complains of Texas legislation that allegedly usurps power from the Texas courts. Consequently, the claim is based upon some state separation-of-powers violation. Such a state claim is not subject to federal habeas review. "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Furthermore, in the instant case, the state trial court credited petitioner for the time he spent in custody prior to the adjudication of his guilt. That petitioner was held in custody as a condition of his deferred adjudication probation does not make his current incarceration unconstitutional or in violation of federal law. Because petitioner can only attack his current conviction and sentence on grounds that he is held in custody in violation of the United States Constitution or federal law counsel properly omitted his separation-of-powers argument from the second amended petition, and such argument is not cognizable on federal habeas review.
X. EVIDENTIARY HEARING
Upon review of the second amended petition and amended answer filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.
XI. 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 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).