Opinion
2:01-CV-0123
November 17, 2003
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
Petitioner GENARO SANDOVAL, JR., a state prisoner, has filed with this Court a petition for a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 10, 2001, respondent filed an answer opposing petitioner's habeas application. For the reasons set forth below, it is the opinion of the undersigned United States Magistrate Judge that petitioner's federal application for a writ of habeas corpus should be DENIED.
I. PROCEDURAL BACKGROUND
Petitioner GENARO S ANDOVAL, JR. pled guilty to three (3) counts of delivery of a controlled substance and one (1) count of possession with intent to deliver a controlled substance. The pleas of guilty were entered without any plea bargain, and, on October 27, 1999, the trial court sentenced petitioner to a term of forty (40) years confinement in the Texas Department of Criminal Justice, Institutional Division (TDC J-ID), and a fine of $40,000 with regard to the possession with intent to deliver count in cause no. 40,460-C. State v. Sandoval, No. 40,460. Also, on October 27, 1999, the trial court sentenced petitioner to prison time in the three (3) counts of delivery of a controlled substance. In cause nos. 40,461-C and 40,459-C petitioner received ten (10) years in TDCJ-ID and a $5,000 fine on each count, and in 40,462-C he received two (2) years in TDCJ-ID. State v. Luke, Nos. 40,461-C, 40, 459-C, 40,462-C. All sentences were ordered to run concurrently.Petitioner did not file a direct appeal. On December 11, 2000, petitioner filed state applications for a writ of habeas corpus challenging his convictions and sentences on grounds of ineffective assistance of counsel and his denial of due process. On February 28, 2001, the Texas Court of Criminal Appeals denied petitioner's applications without written order. Ex parte Sandoval, Application Nos. 48,450-01, 48,450-02, 48,450-03, 48,450-04.
II. PETITIONER'S ALLEGATIONS
In support of his contention that he is being confined in violation of the Constitution and laws of the United States, petitioner presents the following grounds:
1. Petitioner was denied effective assistance of counsel because trial counsel failed to file a notice of appeal; and
2. Petitioner was denied due process.
III. EXHAUSTION OF STATE COURT REMEDIES
Respondent concedes petitioner has sufficiently exhausted his state court remedies with regard to the issues raised in the instant habeas application, and does not move for dismissal for failure to exhaust. Review of the records from the state court proceedings indicates petitioner has presented, to the highest court in the State of Texas, the substance of the claims he now presents to this federal court. It is, therefore, the opinion of the undersigned that petitioner's habeas application not be dismissed due to any failure to exhaust state court remedies, but instead the petition should be determined on the merits.
IV. STANDARD OF REVIEW
Petitioner may not obtain relief in this Court with respect to any claim adjudicated on the merits in the state court proceedings unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). Further, all factual determinations made by a state court are presumed to be correct and such presumption can only be rebutted by clear and convincing evidence presented by petitioner. 28 U.S.C. § 2254(e).
Here, the state courts heard and adjudicated, on the merits, the claims petitioner presents to this Court. More specifically, the Texas Court of Criminals Appeals denied each of petitioner's applications for state habeas relief without a written order. Ex parte Sandoval, Id. The ruling of the Texas Court of Criminal Appeals constitutes an adjudication of petitioner's claims on the merits. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997). Petitioner's burden is significantly heightened in that petitioner cannot prevail in this federal action even if it is shown that the state court's determination was incorrect. Petitioner must also show the state court unreasonably applied federal law or made an unreasonable determination of the facts. Neal v. Puckett, 239 F.3d 683 (5th Cir.), on reh'g, 286 F.3d 230 (5th Cir. 2002), cert. denied, Neal v. Epps, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003).
V. EFFECTIVENESS OF COUNSEL
Petitioner contends his conviction was obtained in violation of his constitutional right to effective assistance of counsel. In order to prevail in an ineffective assistance of counsel claim, counsel's performance must have fallen below an objective standard of reasonableness as determined by the norms of the profession. Counsel's performance is reviewed from counsel's perspective at the time of trial, not from hindsight. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reviewing court's scrutiny of trial counsel's performance is highly deferential, with a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Id.The proper standard for judging a petitioner's contention that he is entitled to relief on the ground that his trial counsel rendered ineffective assistance is enunciated in Strickland. Under Strickland, a petitioner must show defense counsel's performance was deficient. This requires a showing that errors made were so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment to the United States Constitution.
A petitioner must also show counsel's deficient performance prejudiced the defense. To establish this prong, petitioner must show counsel's errors were so serious as to deprive petitioner of a fair trial. Specifically, as set forth in Creel v. Johnson, 162 F.3d 385 (5th Cir. 1998), to prove prejudice petitioner must show (1) there is a reasonable probability that, but for counsel's unprofessional errors, the ultimate result of the proceeding would have been different, see id. at 694, 104 S.Ct. at 2068, and (2) that counsel's deficient performance rendered the trial fundamentally unfair, see Lockhart v. Fretwell, 506 U.S. 364, 372,113 S.Ct. 838, 844,122 L.Ed.2d 180 (1993). "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Id., 113 S.Ct. at 844. A showing of significant prejudice is required. Spriggs v. Collins, 993 F.2d 85, 88, n. 4. (5th Cir. 1993). Further, the court need not even consider the deficiency prong if no prejudice has been demonstrated.
Petitioner argues his defense counsel was ineffective for failing to file a notice of appeal on petitioner's behalf, thereby denying petitioner a meaningful direct appeal, hi cases involving claims of actual or constructive denial of appeal (or denial of counsel on appeal), prejudice under Strickland is presumed. Penson v. Ohio, 488 U.S. 75, 88-89, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Consequently, the only issue to be resolved is whether petitioner suffered an actual or constructive denial of appeal.
Even though prejudice is presumed in a case involving claims of actual or constructive denial of appeal, petitioner has not indicated what issues he thinks were appealable in light of his open plea of guilty. He has not alleged any of the sentences he received were illegal.
In Childs v. Collins, 995 F.2d 67 (5th Cir.), cert. denied, 510 U.S. 1016, 114 S.Ct. 613, 126 L.Ed.2d 577 (1993), the Fifth Circuit set forth what is required of trial counsel to preserve the appellate rights of a criminal defendant. The court explained that the duty to perfect an appeal on behalf of a convicted client does not arise upon conviction, rather such a duty arisesonly when the client makes known, to counsel or the court, his desire to appeal the conviction. Id. at 69. The court further noted the right to appeal is a positive right that must be affirmatively exercised. A convicted client who has knowledge of his right to appeal but fails to make known his desire to exercise that right effectively waives that right to appeal.
In his affidavit submitted during state habeas proceedings, defense counsel averred that "[o]n September 8, 1999, Mr. Sandoval entered pleas of guilty in the above cases without a plea bargain recommendation from the State's attorney. On October 27, 1999, the trial court sentenced Mr. Sandaval (sic) in the above cases. After Mr. Sandaval (sic) was sentenced I told Mr. Sandaval (sic) and his family that in my opinion an appeal would be frivolous, but that I would file a Motion for New Trial in the hopes that the trial court would reconsider the punishment it had assessed. I did file a Motion For New Trial which was overruled by operation of law. After the Motion For New Trial was overruled by operation of law, Mr. Sandaval (sic) never requested that I give notice of appeal." (Emphasis in original). By denying relief, the state habeas court obviously found defense counsel's affidavit and the assertions in it more credible than petitioner's claims. Other than his own uncorroborated allegations, petitioner has presented nothing to show defense counsel's affidavit was not true. Petitioner has not alleged he was unaware of his right of direct appeal, nor has petitioner shown defense counsel's performance was in any way deficient. The undersigned finds defense counsel not to have been deficient as alleged by petitioner.
Further, the state court heard and adjudicated petitioner's ineffective assistance of counsel claims on the merits. Petitioner has not shown the state court unreasonably applied federal law or made an unreasonable determination of the facts. Petitioner's claim of ineffective assistance of counsel should be DENIED.
VI. DENIAL OF DUE PROCESS RIGHTS
Petitioner contends he was denied his constitutional right of due process because he was effectively denied his right to appeal. This claim is merely a reassertion of petitioner's argument that he was rendered ineffective assistance of counsel. Since the undersigned has already found that petitioner's ineffective assistance of counsel claim lacks merit, this claim must fail for the same reason.
Moreover, the state court heard and adjudicated, on the merits, petitioner's claim of a denial of his due process rights. Petitioner has not shown the state court unreasonably applied federal law or made an unreasonable determination of the facts. Petitioner's claims of a denial of his due process rights should be DENIED.
VII. RECOMMENDATION
It is the RECOMMENDATION of the undersigned United States Magistrate Judge to the United States District Judge that the instant Petition for a Writ of Habeas Corpus filed by petitioner GENARO SANDOVAL, JR. be DENTED.
VIII. INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by certified mail, return receipt requested, and to respondent's attorney of record by regular U.S. mail or other agreed means.
Any party may object to this Report and Recommendation within fourteen (14) days after the date of its filing. See 28 U.S.C. § 636(b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts. Any such objections shall be in the form of a written pleading entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.