Estradav.Cockrell

United States District Court, N.D. Texas, Dallas DivisionOct 4, 2002
No. 3:01-CV-0371-P (N.D. Tex. Oct. 4, 2002)

No. 3:01-CV-0371-P

October 4, 2002


FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE


IRMA CARRILLO RAMIREZ, United States District Magistrate Judge

This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The following are the findings and recommendation of the magistrate judge:

I. INTRODUCTION

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Petitioner John Albert Estrada, Sr. is an inmate in the Texas prison system. Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.

Petitioner pled nolo contendere to aggravated sexual assault of a child under fourteen in 1994. The trial court deferred an adjudication of guilt and placed petitioner on probation for ten years. On the same day as his nolo contendere plea, petitioner also pled guilty to a separate charge of sexual assault of a child and was sentenced to ten years probation on that case. On March 1, 1996, the trial court revoked petitioner's probation in both cases and found him guilty of both underlying offenses. The court sentenced petitioner to twenty years confinement on the aggravated sexual assault of a child under fourteen and to ten years confinement on the sexual assault of a child case.

Petitioner's conviction for aggravated sexual assault of a child under fourteen and sentence were affirmed on direct appeal. Estrada v. State, No. 05-96-00752-CR, slip op. (Tex.App.-Dallas, July 23, 1999, pet. refd) (not designated for publication). However, petitioner's conviction for sexual assault of a child and sentence were reversed. Estrada v. State, No. 05-96-00753-CR, slip op. (Tex.App. — Dallas, July 23, 1999, no pet.) (not designated for publication). On June 20, 2000, petitioner entered a plea of nolo contendere to the sexual assault of a child charge and was again placed on ten years probation. (St. Hab. Tr. 150-51.)

The Texas Court of Criminal Appeals denied habeas relief. Exparte Estrada, No. 40,443-02, slip op. (Tex.Crim.App. Jan. 10, 2001). Petitioner then filed this action in federal court on February 26, 2001.

II. PETITIONER'S CLAIMS

Petitioner raises the following issues related to his conviction and sentence for aggravated sexual assault: (1) his nolo contendere plea was coerced and unknowing; (2) there was insufficient evidence to support his conviction; (3) evidence was admitted in the original proceeding in violation of due process and equal protection; (4) he was deprived of a fair trial in the original proceeding; (5) the trial court failed to rule on a motion for continuance before trial; (6) the terms of his probation violate his right against self-incrimination; (7) he received ineffective assistance of counsel in the original and revocation proceedings and on appeal; (8) he was denied a hearing on the determination to adjudicate his guilt; (9) the trial court failed to hold a punishment hearing; (10) the prosecutor failed to disclose exculpatory evidence and submitted tainted evidence; (11) the state appellate statute is unconstitutional; (12) newly discovered evidence establishes his innocence; (13) the state breached his plea agreement; (14) he was illegally arrested on the revocation warrant; (15) he is entitled to release on mandatory supervision; and (16) the probation statutes are conflicting and thus unconstitutional.

The reversal of the probation revocation in the sexual assault of a child charge and petitioner's subsequent nolo conrendere plea clearly moot any claims regarding earlier proceedings related to that charge. Accordingly, the Court will not address those moot claims.

III. ANALYSIS

A. Standard of Review

The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996. See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub.L. 104-132 110 Stat. 1214 (1996) (AEDPA). Under the AEDPA, a habeas petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law; 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. 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court of the United States] on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). An unreasonable application of clearly established federal law is one in which "the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. A state court decision is entitled to deference unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A presumption of correctness attaches to factual determinations made by a state court. 28 U.S.C. § 2254(e)(1). A habeas petitioner must rebut this presumption by clear and convincing evidence. Id.; Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998).

B. Voluntariness of Plea

Petitioner first challenges the voluntariness and validity of his plea in several related grounds for relief. He claims that: (1) he was repeatedly assured that he would not have to admit his guilt because he was merely pleading nolo contendere; (2) his plea was tainted because the trial judge initiated the plea discussions; and (3) he was told he could petition for a new trial at any time. Petitioner further contends that his plea was invalid because: (4) he was not informed of the conditions of his probation prior to his plea; and (5) the judge erroneously told him he would serve one quarter of his sentence if he was sent to prison.

A trial judge is required to ensure that a guilty plea is knowing and voluntary. See James v. Cain, 56 F.3d 662, 666 (5th Cir. 1996). A defendant must have "a full understanding of what the plea connotes and of its consequences." Taylor v. Whitley, 933 F.2d 325, 329 (5th Cir. 1991) (quoting Boykin v. Alabama, 395 U.S. 238, 244 (1969)). This constitutional inquiry focuses on three core concerns: (1) the absence of coercion; (2) an understanding of the charges; and (3) a realistic understanding of the consequences of the guilty plea. United States v. Bernal, 861 F.2d 434, 436 (5th Cir. 1988). These core concerns are addressed by the admonishments contained in Article 26.13 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 26.13 (Vernon 1989),

The Fifth Circuit has held that the admonishments in 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 admonishments under Article 26.13 provide the same type of "prophylactic protection."

The record shows that petitioner was properly admonished in accordance with Article 26.13. He signed a judicial confession and written waivers acknowledging the nature of the charges and the range of punishment. (St. App. Tr. 22-23, 25.) Petitioner also was admonished in open court. The trial judge told petitioner that the range of punishment for aggravated sexual assault of a child under fourteen was not less than five nor more than ninety-nine years or life imprisonment. (SFII 6.) Petitioner indicated that he understood the charges and the punishment range. ( Id.) The judge also explained to petitioner that his plea of nolo contendere was a sufficient basis for a finding that he was guilty. ( Id. at 7.) The judge then reviewed the terms of the plea agreement and the effect of deferred adjudication probation. ( Id. at 7-10.) Petitioner said that he wanted to go forward with his plea. (Id. at 10.) He also testified that he understood his nolo contendere plea was essentially a guilty plea, and that his plea was free, voluntary, and not the product of coercion. ( Id. at 14, 16.) This sworn testimony carries a strong presumption of veracity in a subsequent federal habeas proceeding. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); Bonvillian v. Blackburn, 780 F.2d 1248, 1250 (5th Cir. 1986).

Petitioner challenged his plea both on direct appeal and in an application for state post-conviction relief. On direct appeal, the state appellate court found that petitioner s plea was voluntary. Estrada v. State, No. 05-96-00752-CR, slip op. at 2 (Tex.App.-Dallas, July 23, 1999, pet. refd) (not designated for publication). The trial judge found that petitioner's allegations that his plea was not voluntary were without merit. (St. Hab. Tr. 152.) This finding is not "unreasonable" in light of the evidence contained in the state court record.

Additionally, petitioner's claims that his plea was invalid because he was not informed of the conditions of his probation prior to his pleading guilty and the judge erroneously told him he would serve one quarter of his sentence if he was sent to prison are patently frivolous. First, a trial court is not required to admonish a defendant regarding the collateral consequences of his guilty plea. See e.g., James v. Cain, 56 F.3d 662, 666 (5th Cir. 1996) (holding that constitution does not require furnishing defendant with information about parole eligibility); United States v. Gavilan, 761 F.2d 226, 228 (5th Cir. 1985) (holding that there is no due process right to be informed of collateral consequences of criminal conviction); George v. Black, 732 F.2d 108, 110-11 (8th Cir. 1984) (holding that the trial court is not required to admonish defendant of mandatory mental health commitment proceeding after release from prison). Second, petitioner specifically agreed to participate in the Specialized Sex Offender Program as a condition of his probation. (St. App. Tr. at 26.) These grounds for relief are without merit and should be overruled.

Petitioner apparently misunderstood the trial judge's attempt to inform him of the time he was statutorily required to serve in prison before becoming eligible for parole, if his probation was revoked. ( See SF-II 9, 20.)

C. Voluntary Plea Waives Non-Jurisdictional Claims

Petitioner also complains that: (1) there is no evidentiary support for his conviction; (2) the prosecutor used statements against him which alleged incidents dating back more than twenty years, when petitioner was a minor; (3) the outcry statements of the victim were the result of suggestive therapy; and (4) the trial court failed to rule on a motion for continuance before his plea hearing. However, these non-jurisdictional claims are waived by petitioner's voluntary guilty plea. See Tollett v. Henderson, 411 U.S. 258, 265 (1973) (holding that a voluntary guilty plea waives non-jurisdictional defects in a criminal proceeding); Matthew v. Johnson, 201 F.3d 353, 364 (5th Cir.), cert. denied, 531 U.S. 830 (2000) (noting long-standing rule that valid guilty plea bars habeas review of non-jurisdictional claims alleging antecedent violations of constitutional rights). D. Violation of Right Against Self-Incrimination

Moreover, a review of the trial court records reveals no reference to victim outcry statements or allegations of prior incidents. Petitioner has, therefore, failed to establish any improper admission of evidence against him.

Petitioner next maintains that the terms of his probation violated his right against self-incrimination. The terms included a requirement that he participate in a sex offender program. According to petitioner, the therapist required him to admit his guilt during therapy. He claims his refusal to do so resulted in the revocation of his probation.

As discussed above, petitioner was admonished that his plea of nolo contendere was equivalent to a guilty plea. (SF-II 7, 14.) Moreover, as part of his written waiver and plea, petitioner agreed to waive my right to remain silent and state that I will testify and make a judicial confession of my guilt knowing anything I may say can be used against me." (St. App. Tr. 22.) Clearly, this constituted a waiver of his right against self-incrimination in this matter. This claim is, therefore, without merit and should be denied.

E. Ineffective Assistance of Counsel

Next, petitioner contends that he received ineffective assistance of counsel during the plea hearing because his attorney: (1) did nothing to object to the charges; (2) failed to request a ruling on the motion for continuance; (3) did not object to the prosecutor's last minute addition of a witness; (4) advised him that an appeal based on the failure to grant a continuance would succeed, but he would spend two to three years in prison during the process; (5) failed to request recusal of the trial judge when the judge involved himself in the plea process; (6) maneuvered him into pleading guilty by failing to properly advise him; and (7) did not inform him that other witnesses were not present. Petitioner also claims that his attorney failed to inform him of his appellate rights following the plea hearing. Further, petitioner complains that counsel during the revocation proceeding: (1) did not object to the admission of evidence; (2) failed to offer evidence and testimony; (3) did not ask for a hearing on the issue of whether the court should go forward with the adjudication of guilt; and (4) failed to object to the lack of a punishment hearing. Finally, he maintains that appellate counsel erred in not raising the improper admission of hearsay evidence at the revocation hearing.

1. Standard

The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). In order to obtain federal habeas relief due to ineffective assistance of counsel, a petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984). To successfully state a claim of ineffective assistance of counsel under this test, 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). Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 694; see also, Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (holding that habeas petitioner must show that trial result was unreliable or proceeding fundamentally unfair due to deficient performance of counsel). There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989). In order to obtain federal habeas relief, a petitioner must affirmatively show how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).

2. Prior to Voluntary Plea

The first seven instances of ineffective assistance cited by petitioner occurred prior to the entry of his plea. As previously noted, a voluntary guilty plea waives all non-jurisdictional defects in a criminal proceeding. United States v. Smallwood, 920 F.2d 1231, 1240 (5th Cir. 1991). This includes claims alleging ineffective assistance of counsel that do not implicate the validity of the plea itself. United States v. Glinsey, 209 F.3d 386, 392 (5th Cir.), cert. denied, 531 U.S. 919 (2000). Since petitioner has failed to establish that his guilty plea was involuntary, these claims are waived.

3. After Voluntary Plea

Petitioner also contends that his attorney failed to inform him of his appellate rights following the plea hearing. That may be so. However, during the hearing the following colloquy occurred:

THE COURT: You can always appeal matters on file with the court, or the basic plea itself; do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: By pleading nolo contendere, do you understand that you are giving up your right to appeal, except for matters on file with the Court?

THE DEFENDANT: Yes, sir.

(SF-II 9.) Even if counsel failed to further inform him following the hearing, petitioner cannot claim that he was unaware of his appellate rights. He has not, therefore, shown prejudice resulting from this alleged deficiency. See White v. Johnson, 180 F.3d 648, 65 1-52 (5th Cir. 1999) (stating that defendant prejudiced by counsel's failure to inform him of appellate rights when failure actually causes defendant to lose right to appeal).

4. Revocation Hearing

Petitioner next complains that counsel did not object to the admission of a letter contained in his probation file during the revocation proceeding. The file was introduced at the revocation hearing through the testimony of Dallas County probation officer Gene Benevedes. (SF-IV 6-8.) The letter was attached to a "closure notice" completed by the Travis County probation department. The notice informed Dallas County probation officials that Travis County had closed petitioner's file based on his failure to attend sex offender treatment. (SF-IV 7-8; St. Ex. 3.) The letter details missed appointments and difficulty in obtaining petitioner's cooperation during his sex offender treatment. It was signed by Vivian Heine of the Orion Treatment Center in Austin. (St. Ex. 3 at 2-3.) The probation file and the testimony of Benevedes were the only evidence presented by the state at the hearing. Based on that evidence, the trial judge revoked petitioner's probation for both this conviction and a separate sexual assault conviction.

Petitioner appealed the revocation of probation for both convictions. In the appeal of the revocation of his probation for the sexual assault only, petitioner argued that counsel was ineffective for failing to object to the Heine letter as inadmissible hearsay during the revocation hearing. The appellate court agreed and reversed the judgment revoking petitioner's probation for sexual assault. However, the court affirmed the conviction for aggravated sexual assault. Estrada v. State, No. 05-96 0075 2-CR, slip op. at 4-5 (Tex.App.-Dallas, July 23, 1999, pet. ref'd) (not designated for publication). Not surprisingly, petitioner now claims that counsel was ineffective for also failing to challenge the hearsay evidence as to the revocation of his deferred adjudication probation for aggravated sexual assault.

Petitioner first raised the alleged deficiencies in counsel's performance at the revocation hearing in a motion for new trial. The trial court held hearings on the motion on April 19 and 26 and May 3, 6, and 8, 1996. Petitioner presented the testimony of himself and his three sisters. The state called petitioner's Dallas County and Travis County probation officers. John Schatte, the Travis County probation officer, testified that petitioner was kicked out of one treatment program by Dr. Ferrara because he refused to take a polygraph. (SF-VIII 9.) Petitioner also refused to participate in treatment with Dr. Heine. ( id.) Schatte also testified that he was concerned because petitioner was living in a house suspected of drug activity and visited by minor children. ( Id. at 9.) The trial court denied the motion for new trial. (SF-IX 6.)

Although he did not assert this precise claim, petitioner did argue that counsel should have subpoenaed his Travis County therapist to testify. (St. App. Tr. 40-43.)

Petitioner specifically raised the ineffective assistance claim based on the Heine letter in his state habeas proceeding. The state court found:

The constitutional issue facing the court is the finding of ineffective assistance of counsel for failing to object to the introduction of hearsay evidence sufficient to grant relief. In answering this question the court will review the entire record in this case, including the hearing on the motion for new trial. At the original hearing the State offered the testimony of the local [Dallas] probation officer who testified that [petitioner's] file, which had been transferred to Travis County, contained a letter from a local service provider that [petitioner] has failed to participate in the court ordered sexual offender treatment program. [Petitioner's] attorney did not object to the introduction of the letter. This action was later held to be ineffective. At the hearing on the motion for new trial, held on May 6 and May 8, 1996 the actual Travis County probation officer testified to the information in the [petitioner's] file and testified to the difficulty in getting a program for [petitioner] to participate in because he insisted on denying his guilt in the offenses. It is undisputed that [petitioner] did not complete one program because he refused to participate in a polygraph. The court finds that all the evidence in this case support [sic] the fact that [petitioner] did not complete the terms and conditions of probation. While counsel may have been found ineffective on direct appeal in one case, the fact remains that upon full review, including the testimony presented at the motion for new trial, the court cannot conclude that the ineffective assistance of counsel meets the test set out in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Had counsel objected to the hearsay evidence, the State had the testimony of the Travis County probation officer to substantiate the claims in the motion to proceed with adjudication. The court finds that after a full review of the record that this claim of ineffective assistance of counsel does not amount to a constitutional violation that requires the granting of habeas relief.

(St. Hab. Tr. 153-54.) To overcome this finding petitioner must show the state court applied the Strickland standard in an objectively unreasonable manner. See 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 409 (2000).

The Court agrees with the state appellate court that counsel could have challenged the admission of the letter at the revocation hearing. The question is whether this resulted in prejudice to petitioner. Clearly, exclusion of the only evidence presented against petitioner in the revocation hearing would have affected the outcome of the revocation hearing. Under Strickland, however, prejudice with respect to ineffective assistance of counsel hinges on the fairness of the proceedings and the reliability of the resulting judgment. See Goodwin v. Johnson, 132 F.3d 162, 174 (5th Cir. 1997), cert. denied, 531 U.S. 1120 (2001). In this case, counsel timely filed a motion for new trial. The trial court thus retained jurisdiction to set aside, modify, or amend the final judgment. See TEX. R. APP. P. 21, formerly TEX. R. APP. P. 30. Pursuant to that jurisdiction, the state court held multiple hearings to reconsider its ruling. During those hearings, additional evidence was presented, including direct testimony from petitioner's probation officer. In light of that evidence, the trial court found that petitioner was not entitled to relief, both as to the motion and on habeas review. The Court concludes that the finding is not an objectively unreasonable application of federal law. See United States v. Cortinas, 142 F.3d 242, 250-51 (5th Cir. 1998) (declining to find counsel ineffective for failing to seek suppression of evidence when sufficient evidence existed independently to support conviction).

Petitioner further claims his counsel failed to offer evidence and testimony during the revocation hearing. He argues that his attorney should have: (1) called his sister, Vicky Estrada, to testify regarding scheduling problems which resulted in missed treatment appointments; (2) obtained the testimony of Dr. Ferrara regarding his attendance at treatment classes; and (3) called his Travis County probation officer as a witness. The Court first notes that both Estrada and the probation officer were called to testify at the motion for new trial. As discussed above, the introduction of evidence at this hearing essentially acted to cure any defects in the revocation hearing. As to other witnesses, petitioner has failed to provide an affidavit or other proof as to the content of their testimony. These allegations are thus insufficient to entitle petitioner to habeas relief. See Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001) (noting that complaints of uncalled witnesses are disfavored in federal habeas corpus review because allegations of what witness would have testified is largely speculative); Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (noting that court cannot even begin to analyze ineffective assistance of counsel claim without affirmative showing of missing evidence or testimony).

5. Appeal

Petitioner finally complains that appellate counsel erred in not raising the failure of counsel at the revocation hearing to challenge the improper admission of the letter as an issue in the appeal of this case. The Court has already concluded that counsel was not ineffective for failing to challenge the letter as hearsay. Appellate counsel was not, therefore, ineffective for failing to raise a meritless claim on appeal.

F. Failure to Hold Separate Hearings

Petitioner next asserts that the trial court failed to hold a separate hearing on the determination to adjudicate his guilt and on his punishment as required by state law. This claim fails for at least two reasons. First, a violation of state law does not merit federal habeas relief. See Porter v. Estelle, 709 F.2d 944, 957 (5th Cir. 1983). Second, following the revocation of probation and acceptance of petitioner's guilty plea, the trial judge asked petitioner's counsel whether he had any evidence to present on punishment. Counsel declined to present any evidence, thus waiving a punishment hearing. (SF-IV 18.) Consequently, this ground for relief should be overruled.

G. Prosecutor Misconduct

Petitioner further complains that the prosecutor failed to disclose exculpatory evidence and submitted tainted evidence to the trial court. He alleges that the prosecutor did not explain to the court that the complaining victim's statements were the product of coercive regressive therapy and were not made within six months of the alleged offense. Petitioner also claims that the prosecutor has refused to provide favorable statements from family members. This claim fails for at least two reasons. First, petitioner has not shown any reason that he could not point out the deficiencies in the victim's statements himself. Nor has he indicated why he was unable to obtain statements from family members himself. Second, petitioner has failed to make any showing, beyond his own assertions, of the exculpatory evidence. This type of conclusory allegation is not sufficient to support habeas relief. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994).

It is not clear whether petitioner is claiming this evidence was admitted during the original plea proceeding or in the revocation process. The Court has already concluded, however, that any claim regarding the admission of evidence during the original plea hearing was waived by petitioner's voluntary plea.

H. Unconstitutionality of State Appellate Statute.

Petitioner next contends that the state appellate statute is unconstitutional. He claims that under that statute he was permitted only a partial right to appeal. According to petitioner, this violated his rights to effective assistance of counsel, equal protection, and due process.

The precise nature of petitioner's complaint is unclear. He first appears to complain that he was not permitted to attack the voluntariness of his plea on appeal. This allegation is clearly negated by the record. Estrada v. State, No. 05-96-00752-CR, slip op. at 2 (Tex.App. — Dallas, July 23, 1999, pet. ref'd) (not designated for publication).

Petitioner also maintains that he was not permitted to attack the decision to adjudicate guilt. See TEX. CODE CRIM. PRO. ANN. art. 42.12 § 5(b) (no appeal of decision to proceed with adjudication of guilt in deferred adjudication proceeding). In considering this claim, the state habeas court found "[t]he legislative decision not to permit appeals from the decision to adjudicate a deferred adjudication probation has consistently been held constitutional." (St. Hab. Tr. 160.) Texas courts have consistently held the statue constitutional. See Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992) (holding that appeal not constitutionally mandated thus legislature can statutorily limit or deny right to appeal criminal conviction); Rocha v. State, 903 S.W.2d 789, 791 (Tex.App.-Dallas 1995, no pet.) (noting that differentiation of appellate rights between defendants placed on probation and deferred adjudication probation rationally related to the legitimate state interest of conserving resources). Petitioner has not shown that this finding is contrary to clearly established federal law. See Doleac v. Michalson, 264 F.3d 470, 492 (5th Cir. 2001) (holding that there is no constitutional right to appellate review even in criminal cases). Moreover, as noted above, petitioner consented to the limitation on his right to appeal when he pled guilty. (SF-II 9); see also, United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992) (noting that defendant may waive statutory right to appeal if waiver is knowing and voluntary). The Court, therefore, concludes that petitioner has not shown he is entitled to relief on this claim.

I. Newly Discovered Evidence

Petitioner also claims that newly discovered evidence establishes his innocence. However, such a claim, standing alone, is insufficient to merit federal habeas relief. See Herrera v. Collins, 506 U.S. 390, 400 (1993); Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000), cert. denied, 532 U.S. 915 (2001). There also must be evidence of an independent constitutional violation in the state criminal proceeding. Dowthitt, 230 F.3d at 741. Here, petitioner has failed to establish an underlying constitutional violation.

Nor has petitioner presented any affirmative evidence of his innocence. He asserts that an affidavit was submitted to the trial court in a motion for new trial. Petitioner claims that the unidentified witness avers that he or she did not believe or witness any illegal acts between the complainant and petitioner. He further states that his sister, Helen Estrada, was willing to testify that no illegal activity took place between them. However, petitioner has not provided a copy of the alleged affidavit or anything else evidencing the purported testimony. Moreover, it is not clear that any of the evidence described by petitioner includes any recantation or exculpation of his conduct with the victim, his daughter Elaine Estrada, in this case. These self-serving, unsupported allegations do not merit relief. See Fahle v. Cornyn, 231 F.3d 193, 196-97 (5th Cir. 2000), cert. denied, 532 U.S. 1043 (2001).

The Court has reviewed the transcript of the hearing of the motion for new trial. Counsel for petitioner indicates that affidavits of family members were attached to the motion. (Heating Tr. 4/19/96 at 18.) The affidavits are not, however, included in any of the state court records provided by respondent.

J. Breach of Plea Agreement

Petitioner next asserts that the state breached his plea agreement. Essentially, he contends that the plea agreement on his two charges was presented as a "package deal." Apparently he believes that this entitled him to the identical treatment on each charge. Petitioner also contends that: (1) the trial court assured him that he could petition for a new trial if new evidence was discovered; (2) the trial judge promised release on parole after service of one quarter of his sentence; and (3) the conditions of his probation were changed without his consent.

The failure to comply with a plea agreement may be a basis for federal habeas relief. United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993); Bonvillain v. Blackburn, 780 F.2d 1248, 1251 (5th Cir. 1986). A petitioner must prove the terms of the plea bargain and facts giving rise to the alleged breach by a preponderance of the evidence. United States v. Garcia-Bonilla, 11 F.3d 45, 46 (5th Cir. 1993). In order to prevail on his claim, petitioner must specifically identify: (1) the terms of any promise made by the prosecutor; (2) the facts and circumstances surrounding the promise; and (3) any witnesses to the promise. See Blackledge v. Allison, 431 U.S. 63, 76 (1977); Hayes v. Maggio, 699 F.2d 198, 203 (5th Cir. 1983). Conclusory allegations do not satisfy this burden and are not a basis for federal habeas relief. See, e.g. Ross v. Estelle, 672 F.2d 1008, 1011 (5th Cir. 1983), Schlang v. Heard, 691 F.2d 796, 799 (5th Cir. 1982).

This claim fails, first, because petitioner fails to point to any evidence in the record which reflects the promises he asserts were made regarding the "package" nature of his plea agreements. Second, petitioner has not shown how statements made by the trial judge in accepting his plea could constitute a portion of an agreement between the prosecutor and petitioner. Nor has he established that the trial judge erred in outlining petitioner's ability to seek a new trial based on new evidence or that he was eligible for release on parole after service of one quarter of his sentence. Finally, the Court has previously concluded that petitioner agreed to the conditions of his probation, including sex offender counseling. (St. App. Tr. at 26.) This claim is without merit and should be denied.

K. Violation of Fourth Amendment

Petitioner further alleges that his arrest on the revocation warrant violated the Fourth Amendment. He asserts that the warrant was not supported by sufficient credible evidence of a violation. However, absent a showing that the arrest resulted in a confession, or evidence used against him at trial, a claim of false arrest is not cognizable in a federal habeas action. See Davis v. United States, 424 F.2d 1061, 1063 (5th Cir. 1970).

L. Entitlement to Mandatory Supervision

Petitioner also argues that he is entitled to release on mandatory supervision. According to him, the state statute enumerating offenses not eligible for mandatory supervision release, Article 42.18 of the Texas Code of Criminal Procedure, was declared unconstitutional. As proof, petitioner points to the fact that the statute was subsequently repealed. He also contends that the differentiation of inmates based on their underlying offense violates equal protection.

This claim fails for at least two reasons. First, the mere fact that the Texas legislature subsequently repealed a statute is not tantamount to a finding that the statute was unconstitutional. Second, distinctions between persons are presumptively valid if the classification is rationally related to a legitimate state interest. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985); Schweiker v. Wilson, 450 U.S. 221, 230 (1981). Protection of the public from persons convicted of serious offenses is clearly a legitimate state interest.

M. Unexhausted Claims

Petitioner finally claims that: (1) counsel was deficient for failing to request a separate hearing on the issue of whether the court should go forward with the adjudication of guilt; (2) his attorney erred in failing to object to the lack of a punishment hearing; and (3) the probation statutes are conflicting and thus unconstitutional. Respondent counters that these claims are barred from review because they were never presented to the highest available state court in a procedurally correct manner and any attempt to do so at this juncture would be futile.

A federal court may not consider the merits of a habeas claim if a state court has denied relief due to a procedural default. Sawyer v. Whitley, 505 U.S. 333, 338 (1992). Only procedural rules that are firmly established and regularly followed by state courts can prevent habeas review of federal constitutional rights. Hathorn v. Lovorn, 457 U.S. 255, 262-63 (1982). Article 11.07 of the Texas Code of Criminal Procedure prohibits a second habeas petition if the petitioner urges grounds therein that could have been, but were not, raised in his first habeas petition. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2002). This statute constitutes an adequate state procedural bar for purposes of federal habeas review. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995). The procedural bar doctrine also applies to unexhausted claims if the state court would likely dismiss a successive habeas petition under Article 11.07. See Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991) (noting that procedural default occurs when prisoner fails to exhaust available state remedies and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred").

The statute provides, in relevant part, that:


(a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or
(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt . . .

TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a).

Petitioner has never challenged the constitutionality of the Texas probation statutes in any state court proceeding. Although he sought state post-conviction relief on the grounds of ineffective assistance of counsel, petitioner did not argue that his attorney failed to request a separate hearing on the issue of whether the court should go forward with the adjudication of guilt or failed to object to the lack of a punishment hearing. No explanation is offered to excuse this procedural default. The Court finds that a Texas court, presented with these claims in a successive habeas petition, would likely find them barred under Article 11.07. Consequently, federal habeas relief is not proper. See Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991); Nobles v. Johnson, 127 F.3d 409, 422-23 (5th Cir. 1997).

IV. 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), and 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).