Opinion
3:01-CV-0392-R
February 7, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. NATURE OF THE CASE
Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
II. PARTIES
At the time Petitioner filed this petition, he was an inmate in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"). Petitioner is currently on parole. Respondent Janie Cockrell is Director of the TDCJ-ID.
III. PROCEDURAL BACKGROUND
On July 9, 1999, Petitioner pled guilty to the felony charge of retaliation in the 265th District Court of Dallas County, Texas. Pursuant to a plea bargain agreement, Petitioner was sentenced to four years deferred adjudication. On February 11, 2000, the court found that Petitioner violated the terms and conditions of his community supervision, adjudicated guilt, and sentenced Petitioner to six years imprisonment. Petitioner did not appeal his conviction.
On August 25, 2000, Petitioner filed a state petition for writ of habeas corpus. See Ex parte Rone, Application No. 47,595,01. On November 15, 2000, the Texas Court of Criminal Appeals denied the petition without written order on the findings of the trial court. Id. at cover.
On December 19, 2000, Petitioner filed this petition for writ of habeas corpus. Petitioner argues: (1) the trial court erred in accepting Petitioner's guilty plea because the plea was not knowingly and intelligently entered; (2) he received ineffective assistance of counsel because his counsel failed to interview and subpoena any witnesses and failed to conduct any investigation or present any evidence; and (3) there was no evidence and no proof to support the conviction.
IV. DISCUSSION
1. Standard of review
The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254 provide:
(d) An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted 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 a State court proceeding.28 U.S.C. § 2254 (d). Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 380-84 (2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United states Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Id.
This amendment applies to all federal habeas corpus petitions which are adjudicated on the merits in state court after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2049 (1997). The petition in this case is subject to review under the AEDPA.
Additionally, under 28 U.S.C. § 2254 (d), a presumption of correctness must be accorded findings of fact made by a state habeas court if supported by the record. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994) (citation omitted).
2. Guilty plea
Petitioner claims the trial court erred in accepting his guilty plea because the plea was not knowingly and intelligently entered. As a general rule, a defendant may not collaterally attack a voluntary and intelligent guilty plea. Taylor v. Whitley, 933 F.2d 325, 327 (citing Mabry v. Johnson, 467 U.S. 504, 508 (1984) and Tollett v. Henderson, 411 U.S. 258, 266-67 (1973). Before the trial court may accept a guilty plea, it must ensure that the defendant "has a full understanding of what the plea connotes and of its consequences." Taylor, 3933 F.2d at 330 (5th Cir. 1991) (quoting Boykin v. Alabama, 395 U.S. 238, 244 (1969)). A plea is involuntary, and therefore insufficient to support a conviction, if the defendant "has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt." Taylor, 933 F.2d at 330 (quoting Henderson v. Morgan, 426 U.S. 637, 645 n. 13 (1976)).
In this case, Petitioner has not shown that his plea was involuntary. The state record shows that the trial judge repeatedly and thoroughly questioned Petitioner regarding his knowledge and understanding of the charges against him and the effects of a guilty plea. The plea transcripts state:
Court: Mr. Rone, you're charged with the offense of retaliation. The range of punishment for that is anywhere from 2 to 10 years in the penitentiary, a fine of up to $10,000.00; and you understand that?
Petitioner: Yes.
Court: Now, you've gone through several papers and signed several papers. I'm looking at your signature, I can tell you can read and write, so you were able to read through those and your lawyer explained the different legal parts; is that right?
Petitioner: Yes.
Court: Do you have any questions about any of the papers you've signed, anything that's happened on your case so far, what we're doing today, any questions about anything?
Petitioner: No.
Court: Understanding everything then, what's your plea to this charge: Guilty or not guilty?
Petitioner: Guilty.
Court: And no one's forced you, threatened you, promised you anything, done anything to you to get you to plead guilty; is that right?
Petitioner: No.
Court: All right. I'll accept your plea of guilty.
(Tr. pp. 3-4). The transcripts of the plea hearing also show that Petitioner's attorney questioned him at length regarding whether he understood the consequences of pleading guilty. Petitioner stated that he understood. ( Id. at pp. 4-6). The transcript of Petitioner's guilty plea clearly shows that Petitioner's plea was voluntarily and knowingly made.
Moreover, the state court found that the plea transcripts and judicial confession showed that Petitioner's guilty plea was knowingly and voluntarily entered. In light of the state record in this case, the Court finds that the state court's denial of habeas relief did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established precedent of the United States Supreme Court. The denial, furthermore, does not appear to be based upon any unreasonable determination of the facts in light of the evidence presented. Petitioner's claims that his guilty plea was not knowingly and voluntarily entered should be denied.
3. Ineffective assistance of counsel and insufficiency of the evidence
Petitioner also argues that his counsel was ineffective for failing to interview and subpoena witnesses, and for failing to conduct any investigation or present any evidence. Petitioner's plea was knowingly, intelligently, and voluntarily entered. Once a guilty plea has been entered, all nonjurisdictional defects are waived. See Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983) (citing Barrientos v. United States, 668 F.2d 838, 842 (5th Cir. 1982)). This waiver includes all claims of ineffective assistance of counsel, except those claims that relate to the voluntariness of the guilty plea. Smith, 711 F.2d at 682 (citations omitted). Petitioner's claims that his counsel was ineffective for failing to interview and subpoena witnesses and for failing to conduct an investigation or present evidence do not relate to the voluntariness of the plea. Petitioner's claims are therefore waived.
Petitioner also claims the evidence was insufficient to support his conviction. Petitioner's plea was knowingly, intelligently, and voluntarily entered. Petitioner, therefore, has waived his right to demand any evidence to sustain his conviction. See United States v. Broce, 488 U.S. 563 (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."); see also Cutrer v. Cockrell, No. 3:01-CV-841-D, 2002 WL 1398558 (ND. Tex. June 26, 2002) (finding defendant's plea of nolo contendere waived his claims regarding insufficiency of the evidence). Petitioner's claims are without merit and should be denied.
RECOMMENDATION:
For the foregoing reasons, the Court recommends that Petitioner's habeas corpus petition pursuant to 28 U.S.C. § 2254 be denied with prejudice for failure to make a substantial showing of the denial of a federal right.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file 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. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, (1985). Additionally, any 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 Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th (en banc).