Opinion
No. 3:01-CV-1729-H.
June 16, 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 and Factual History : In July 1998, the State indicted petitioner in Cause No. F98-69173 for aggravated sexual assault of a child less fourteen years of age. S.H. Tr. at 70. On March 26, 1999, he pled guilty to the charge. See Reporter's Record at 1, 7 (hereinafter referred to as RR). The trial court took testimony from various witnesses, including the complainant, prior to accepting the plea and assessing punishment. Id. at 7-80. One of the witnesses, petitioner's minor niece who is referred to herein as SG, did not want to testify because she was scared. Id. at 24. The trial court stated on the record that it did not "need to hear from [SG]." Id. at 26. Nevertheless, the trial judge met with SG ex parte on March 26, 1999. See S.H. Tr. at 55, 61. The trial judge sentenced petitioner to twenty-five years confinement and entered judgment on March 29, 1999. Id. at 71 (judgment).
"S.H. Tr." denotes the state habeas records attached to Ex parte Wood, No. 47,571-01, slip op. (Tex.Crim.App. Dec. 20, 2000).
Petitioner filed a notice of appeal on April 7, 1999. TR at 14. On February 28, 2000, the court of appeals received a motion to withdraw the notice and to dismiss the appeal. Wood v. State, No. 07-99-0174-CR, slip op. at 2 (Tex.App.-Amarillo Mar. 1, 2000, no pet. h.) (not designated for publication). The court of appeals dismissed the appeal on March 1, 2000. See id. Mandate issued that same day. See Mandate (contained in state court record). On June 12, 2000, petitioner filed a state application for writ of habeas corpus to challenge his conviction. See S.H. Tr. at 2. On December 20, 2000, the Texas Court of Criminal Appeals denied the application without written order on findings of the trial court without a hearing. See Ex parte Wood, No. 47,571-01, slip op. at 1 (Tex.Crim.App. Dec. 20, 2000).
"TR" refers to the state trial records.
Petitioner filed the instant federal petition through counsel on August 31, 2001. ( See Pet. at 1.) The Court denied respondent's motion to dismiss this action as time-barred on December 31, 2002, and directed respondent to file an answer on the merits. (Order Denying Mot. to Dismiss.) Respondent filed his answer on January 28, 2003.
D. Substantive Issues : Petitioner asserts that his conviction and sentence are constitutionally void under the Constitutions of the United States and Texas, and he is therefore being held unlawfully, based on (1) denial of due process; (2) ineffective assistance of counsel; and (3) denial of the right of confrontation. (Pet. at 7.)
E. Procedural Issues : Although respondent contends that petitioner has not sufficiently exhausted his state remedies with respect to "his first claim for relief", he does not seek dismissal due to any failure to exhaust or procedural default. ( See Answer at 4-21.) Thus, the Court does not further address these issues.
Respondent also asserts that after the District Court's December 31, 2002 order denying his motion to dismiss petitioner's claims as time-barred, the Fifth Circuit Court of Appeals rejected the use of the date of mandate for determining when a state conviction becomes final. Id. (citing Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003)). He asks the Court to reconsider its decisions on the time-bar issue and the effect of petitioner's voluntary withdrawal of his appeal. Id.
II. APPLICABLE LAW
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA or the Act), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date, which is the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after the effective date of the AEDPA, the Act applies to his petition.Title I of the AEDPA substantially changed the way federal courts handle habeas corpus actions. Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
"In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). In this case, the denial of petitioner's state writ constitutes an adjudication on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) (holding that a denial, rather than a dismissal, signifies an adjudication on the merits). The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply to the claims in petitioner's federal petition which were presented in his 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 under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." 529 U.S. at 407. "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; see also, Penry, 532 U.S. at 793.
Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were `based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Petitioner argues that the State's fact-finding procedures were inadequate, and thus do not invoke the presumed correctness generally afforded to fact findings under § 2254(d)(2). (Pet. at 7-10.) He contends that he was denied a full and fair hearing. ( Id. at 7.) He contends that the State's utilization of Fred McDaniel, a private attorney, in the state habeas application process deprived him of a fair, impartial, and detached tribunal in which to litigate his claims. ( Id. at 8.) He further contends that the trial court's denial of discovery, refusal to conduct an evidentiary hearing, and failure to address his confrontation claim deprived him of a full and fair hearing. ( Id. at 8-9.)
These arguments and contentions were specifically addressed by the Fifth Circuit in Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001). In Valdez, the Fifth Circuit rejected a similar challenge to the application of the presumption of correctness to state court findings based on the allegation that the petitioner had not received a full and fair hearing before the state court. The Fifth Circuit held that in cases governed by the AEDPA, a full and fair hearing at the state court level is no longer a "prerequisite to operation of AEDPA's deferential framework" as it was under pre-AEDPA standards. Id. at 948. Thus, petitioner's argument that the state court's factual findings are not entitled to deference due to an inadequate state court hearing process fails under Valdez, and AEDPA's presumption of correctness applies in this case.
III. STATUTE OF LIMITATIONS
Respondent urges the Court to revisit the time-bar issue based upon the intervening decision of the Fifth Circuit Court of Appeals in Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). (Answer at 2.) He also asks the Court to reconsider its prior ruling on the effect of petitioner's voluntary withdrawal of his appeal. Id.
The Fifth Circuit's subsequent decision in Roberts does not affect the Court's finding that petitioner timely filed the instant federal petition. Roberts held that the "issuance of the mandate by the state court of appeals is of no consequence for the purposes of § 2244(d)(1)(A)." Section 2244(d)(1)(A) provides that a judgment becomes final "by the conclusion of direct review or the expiration of time for seeking such review." The Roberts court defined "the conclusion of direct review" as being "when the Supreme Court either rejects the petition for certiorari or rules on its merits." 391 F.3d at 694. If the conviction does not become final through this process, then it becomes final by "the expiration of the time for seeking such review," which includes the ninety days allowed for filing a petition for certiorari. Id. Where "the defendant stops the appeal process before that point, the conviction becomes final when the time for seeking further direct review in the state court expires." Id.
In this case, the Court calculated the one-year period of limitations from March 1, 2000. Not only is this the date of the mandate, but it is also the date that the court of appeals issued its opinion granting petitioner's request to withdraw the appeal. Under Roberts, the statutory period of limitations would still commence on March 1, 2000, because it is the date when petitioner's "time for seeking further direct review in the state court expire[d]." See id. Thus, Roberts does not alter the outcome in this case.
With regard to the effect of petitioner's voluntary withdrawal of his appeal, Respondent provides no basis to reconsider the Court's previous decision. Until the court of appeals granted petitioner's request to withdraw his appeal, petitioner was still technically seeking direct review in the state court and could, at least theoretically, withdraw the request to withdraw the appeal. Moreover, Roberts expressly contemplates that a defendant might stop the appeal process before conclusion of direct review. Accordingly, the Court proceeds to the merits.
IV. NON-COGNIZABLE CLAIMS
Petitioner makes several arguments regarding errors which allegedly occurred during resolution of his state habeas application. (Pet. at 7-10.) He argues that he was deprived of his right to due process when the state habeas court denied him a full and fair hearing, utilized a private attorney in the state habeas application process, denied discovery, and failed to address his confrontation claim. ( Id.) He also specifically argues that his conviction and sentence are constitutionally void under the Texas Constitution. ( Id. at 10, 15.)
These arguments raise no claim cognizable under 28 U.S.C. § 2254. 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); accord 28 U.S.C. § 2254(a). A violation of the Texas Constitution without a corresponding violation of the United States Constitution or federal law does not state a basis for federal habeas relief. Furthermore, this Court cannot grant habeas corpus relief "to correct alleged errors in state habeas proceedings." See Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999) (holding that habeas relief was not available for such alleged errors). "[E]rrors in state postconviction proceedings will not, in and of themselves, entitle a petitioner to federal habeas relief." Morris v. Cain, 186 F.3d 581, 585 n. 6 (5th Cir. 1999). Such errors necessarily fail "because infirmities in state habeas proceedings do not constitute grounds for relief in federal court." Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997). Accordingly, these arguments entitle petitioner to no habeas relief.
V. VOLUNTARINESS OF PLEA
In this case, petitioner asserts that his plea of guilty to the single charge against him was not knowing or voluntary because of ineffective assistance of counsel. (Pet. at 17, 20.)
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).
The core concerns recognized by the Fifth Circuit Court of Appeals are addressed by the admonishments contained in Article 26.13 of the Texas Code of Criminal Procedure. The Fifth Circuit has held that the admonishments under Rule 11 of the Federal Rules of Criminal Procedure provide "prophylactic protection for the constitutional rights involved in the entry of a guilty plea." United States v. Gracia, 983 F.2d 625, 627 (5th Cir. 1993). The requirements of Rule 11 and Article 26.13 are substantially similar. Compare Fed.R.Crim.P. 11 with TEX. CODE CRIM. PROC. ANN. art. 26.13. It therefore follows that the same "prophylactic protections" attach to the admonishments under Article 26.13 as under Rule 11.
In this case, petitioner appeared before the trial judge and pled guilty to aggravated sexual assault of a child under the age of fourteen. See RR at 5-7. He signed a form entitled "Court's Admonition of Statutory and Constitutional Rights and Defendant's Acknowledgement [sic]," which stated "You are charged with the crime of aggravated sexual assault and the range of punishment is 5-99/life." TR at 9. The form further stated that recommendations of punishment would not bind the court, but that the court would follow the plea agreement, if able; 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 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 5-6. 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 6. He also specifically indicated that he was pleading guilty to the offense of aggravated sexual assault. Id. Defense counsel indicated that he had consulted with petitioner concerning his plea and had advised him of his rights and the charge to which he was pleading. Id. Petitioner entered a "Judicial Confession" wherein he confessed that, on December 18, 1990, he "unlawfully, knowingly and intentionally cause[d] the contact and penetration of the mouth of [the complainant], a child . . . by . . . [his] sexual organ, and at the time of the offense, the child was younger than 14 years of age." Id. at 8.
Before the trial court accepted petitioner's guilty plea the court examined petitioner as to its voluntariness. See RR at 5-6. The trial court orally admonished petitioner of the punishment range, including the possibility of a fine not to exceed $10,000. Id. at 5. It inquired about petitioner's understanding of his waiver to a jury trial, his signing of the judicial confession, and the limitations on his right to appeal. Id. at 5-6. His attorney entered his plea and stated on the record that petitioner understood "the charges against him, his right to a jury trial, right to call witnesses on his own behalf, right to confront and cross-examine the State's witnesses . . . and waives those rights and pleads guilty exactly as charged." Id. at 6. Furthermore, petitioner testified that he had admitted the charges and taken responsibility for them. Id. at 66. He testified that he confessed to the police that he committed the offense. Id. at 67. He expressed remorse about what he did to the complainant and her brother. Id. at 67-69. The trial court thereafter accepted his guilty plea and found "that it has been freely and voluntarily made." Id. at 77.
The record simply does not support a finding that petitioner's guilty plea was involuntary. The totality of the circumstances reflects that petitioner had a clear understanding of the proceedings against him, the nature of the offense for which he was charged, and the consequences of entering his plea. See generally, TR at 5-9; RR at 5-6. 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 plea may have been involuntary, any such suggestion is unsupported by the record and contradicts his statements in open court. See RR at 5-6. Such suggestion also contradicts his signed waivers and judicial confession that he made his waivers "voluntarily, knowingly, and intelligently." TR at 6.
Given the totality of the circumstances, it is evident that petitioner fully understood the charge against him and the consequences of his plea. Thus, his plea appears knowing, intelligent, and voluntary. Unless petitioner's specific claims of ineffective assistance of counsel impacted his decision to plead guilty, the Court should find that petitioner entered his plea knowingly, intelligently, and voluntarily.
VI. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner specifically alleges that his trial attorney rendered ineffective assistance by advising him that no statute of limitations applied to aggravated-sexual-assault offenses. (Pet. at 15.) He identifies the following alleged deficiencies of counsel: (A) failure to interview complainant; (B) failure to investigate a statute-of-limitations defense; (C) failure to object to an in camera conference between the trial court and a witness, SG, who did not testify at punishment; (D) failure to interview SG; (E) failure to present petitioner's version of what happened with SG; (F) failure to object to hearsay testimony relating to an incident involving SG; (G) failure to investigate and offer defensive and/or mitigating evidence related to SG's complaint; and (H) giving erroneous advice regarding the applicable statute of limitations. ( Id. at 18-19.)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).
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"). 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 guilty plea is "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)). With respect to such 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, petitioner raises two ineffective assistance claims that specifically relate to the voluntariness of his guilty plea, i.e., the claims relating to the applicable statute of limitations. Because these claims specifically impact the voluntariness of his guilty plea, the Court addresses them first.
A. Deficiencies Related to Statute of Limitations
Petitioner claims that his attorneys rendered ineffective assistance by (1) failing to investigate a statute-of-limitations defense and (2) providing erroneous advice regarding the applicable statute of limitations. (Pet. at 18-19.) Petitioner contends that a ten-year statute of limitations applies to his offense. ( Id. at 15-16.) He argues that because the offense occurred in 1987, his indictment in July 1998 was outside the limitations period. ( Id. at 15.)
For purposes of these findings, the Court assumes, without deciding, that a ten-year statute of limitations applied to petitioner's offense. Nevertheless, the Court finds no deficiency of counsel with respect to the statute of limitations. In this case, the trial court secured essentially identical affidavits from petitioner's two trial attorneys before considering the state writ. See S.H. Tr. at 37. Each attorney averred in their respect affidavit that no one told petitioner or anyone else that no statute of limitations applied to this case. See id. at 54, 60. According to the affidavits, petitioner had voluntarily admitted his guilt to relevant police authorities prior to counsel's involvement with petitioner's criminal case. Id. at 53, 59. Petitioner's stated sole intent was to "come clean", accept responsibility, repair the damage to his family, and "seek mercy from the Court." Id. at 53-54, 59-60. Petitioner "did not want to contest the matter" and continually denied requests from his attorneys to interview the complainant and her mother. Id. at 54, 60. The affidavits also stated that the complainant had referenced incidents dating up to December 1990; that petitioner himself initially believed the sexual assaults occurred over a two-year period, 1988 to 1990; and that during his videotaped confession, petitioner repeatedly stated that, although he did not know when the events occurred, they could have occurred up to six years prior — in other words, in 1992. Id. at 54-55, 60-61. The trial court found counsel "trustworthy" and the statements in their affidavits "worthy of belief." Id. at 38. Such credibility finding is presumed correct unless petitioner rebuts it with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Petitioner has not shown clear and convincing evidence that overcomes the presumption of correctness. This Court thus defers to that credibility finding.
Due to various amendments to the statute, the applicable statute of limitations could differ depending upon when the offense actually occurred.
Strickland requires counsel to "make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." 466 U.S. 668, 687 (1984). With the information available to counsel, counsel had ample reason to decide that an investigation of a limitations defense was unnecessary. Under the circumstances of this case, the decision not to further investigate such defense appears entirely reasonable. Petitioner has not overcome the strong presumption that his attorneys' conduct falls within the wide range of reasonable assistance. He has not shown that counsel erred in either foregoing an investigation of the limitations defense or in the advice given with respect to such defense.
Petitioner has also shown no prejudice from the alleged deficiencies relating to the limitations defense. Petitioner himself testified at punishment that the offense occurred in 1990. See RR at 67. Furthermore, he judicially confessed to having committed the offense on December 18, 1990. See TR at 8. His current self-serving allegation that the offense occurred in 1987 is not supported by the record. He has shown no reasonable probability that, but for the alleged errors of counsel, he would not have pleaded guilty and would have insisted on going to trial.
Because petitioner has shown neither a deficiency with respect to his attorneys' consideration of a potential limitations defense nor prejudice from any alleged error of counsel related to such limitations defense this claim entitles petitioner to no habeas relief and does not render his guilty plea involuntary.
B. Other Alleged Deficiencies of Counsel
Petitioner also claims that his attorneys rendered ineffective assistance of counsel when they failed to interview either the complainant or SG; failed to object to an in camera conference between the trial court and SG; failed to present petitioner's version of what happened with SG; failed to object to hearsay testimony relating to an incident involving SG; and failed to investigate and offer defensive and/or mitigating evidence related to SG's complaint. (Pet. at 18-19.)
Petitioner specifically claims that his trial attorneys were ineffective for failing to object to hearsay testimony offered by the complainant's mother regarding SG. ( See Pet. at 19.) As pointed out by respondent, ( see Answer at 18), the complainant's mother presented no testimony regarding SG. See RR at 18-22. Thus, there is no factual basis for this alleged deficiency of counsel, and the claim is without merit.
The Court notes that the complainant's mother did present hearsay testimony regarding alleged abuse to her son by petitioner. See RR at 21. Also, SG's mother presented hearsay testimony regarding events involving SG. See id. at 23-25. Because petitioner is represented by counsel in this federal habeas action, the Court is bound by the specific allegations in the federal petition. It does not liberally construe petitions filed by attorneys. Even if petitioner had specifically complained of counsel's failure to object to the hearsay testimony which was actually presented, however, such a claim would also provide no basis for habeas relief. Trial counsel's affidavits, which the state habeas court found credible, provided reasons for the failure to object to the testimony of both mothers. See S.H. Tr. at 56, 62. Petitioner has shown neither a deficiency of counsel nor prejudice.
To the extent petitioner is complaining that his attorneys failed to discover some possible defense prior to the entry of his guilty plea, such claims are waived by his voluntary and knowing guilty plea. See 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). However, claims that relate to the effectiveness of counsel at sentencing survive such waiver. Accordingly, the Court considers those claims on their merits.
In their affidavits to the trial court, petitioner's attorneys explained the deficiencies alleged by petitioner. See S.H. Tr. at 53-57, 60-63. According to the affidavits, petitioner repeatedly refused counsel's requests to interview the complainant. Id. at 53, 60. Petitioner also instructed counsel to be non-confrontational with witnesses. Id. at 55-56, 61-62. With respect to the alleged deficiencies pertaining to SG, counsel further averred that SG was not the complainant, her allegations were that petitioner "touched her leg around the thigh", no charges were filed on her allegation, and the trial judge had read the pre-sentence report which contained petitioner's version of what transpired with SG. Id. Counsel also averred that they did not object to testimony regarding petitioner's abuse of the complainant's brother because petitioner had admitted to such abuse in the pre-sentence report and had instructed them to be non-confrontational with witnesses. Id. at 56, 62.
Based upon the affidavits of counsel, which the trial court found credible, this Court finds that counsel was not deficient at sentencing as alleged by petitioner. Without a showing of deficiency petitioner's claim of ineffective assistance of counsel fails. Furthermore, petitioner has not shown that he was prejudiced by any of the alleged deficiencies. He has not shown a reasonable probability that absent errors of counsel, his sentence would have been less harsh. He instead speculates that the alleged extraneous offense concerning SG affected the imposed sentence. Speculation is insufficient to succeed on a claim of ineffective assistance of counsel.
VII. TRIAL COURT ERROR
Petitioner claims that he was denied due process and a fair trial when the trial court interviewed SG off the record and outside the presence of petitioner and his attorney. (Pet. at 11.) He also claims that this interview denied him his right to confront and cross-examine the witness. ( Id.)
A. Confrontation Clause
"The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination." Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). However, by his voluntary, knowing, and intelligent guilty plea, petitioner waived his right to confront his accusers. 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). Petitioner specifically waived "the appearance, confrontation and cross-examination of witnesses." See TR at 5 (Def.'s Waivers and Judicial Confession). Having waived his right to confront and cross-examine witnesses presented against him his claims based upon such right entitles him to no habeas relief. B. Due Process
Respondent argues that petitioner's trial attorneys made a strategic decision to waive petitioner's right to confront SG at the sentencing hearing. (Answer at 15-17.) Because petitioner pled guilty and signed a specific waiver of his right to confront witnesses, the Court need not address whether another waiver occurred at sentencing.
Petitioner claims that the trial court deprived him of his right to due process and fair trial when it interviewed SG off the record and outside the presence of petitioner and his attorney. (Pet. at 11.) It is undisputed that the trial court met with SG off the record. See S.H. Tr. at 24, 55, 61 (verification of petitioner and affidavits of petitioner's trial attorneys which reflect such meeting). According to petitioner, the meeting occurred at the close of the hearing of March 26, 1999. Id. at 24, 30, 32-34. Nevertheless, the record contains very little information regarding such meeting.
Although in camera or ex parte conferences between a trial judge and a witness "should occur but rarely, especially in criminal cases", such conferences are not per se unconstitutional; "indeed, in some situations the trial judge may find an ex parte conference necessary." United States v. Adams 785 F.2d 917, 920 (11th Cir. 1986); accord LaChappelle v. Moran, 699 F.2d 560, 566 (1st Cir. 1983). While such conferences may be proper, "the district court must insure that the conference is carefully conducted so that no rights of the defendant are threatened." Adams, 785 F.2d at 920. One way to protect such rights is to transcribe the conference. Id.
When considering an alleged violation of due process, the courts must determine "whether or not the judge's actions were so egregious and fundamentally unfair as to deprive the defendant of his constitutional rights." LaChappelle, 699 F.2d at 566-67 (citing Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). "In making this determination, the Court looks to the reasons for conducting the ex parte conference and the impact that the conference might have had on defendant's right to a fair [proceeding]." Scott v. Shelton, 295 F. Supp.2d 1244, 1257 (D. Kan. 2003). In the sentencing context, the Court asks whether the complained-of actions "so infected the sentencing proceeding with unfairness as to render the [resulting sentence] a denial of due process." Romano v. Oklahoma, 512 U.S. 1, 12 (1994). The touchstone of due process analysis is the fairness of the proceeding, not the culpability of the actor. See Smith v. Phillips, 455 U.S. 209, 219 (1982) (addressing due process in context of prosecutorial misconduct). A proceeding "is fundamentally unfair if there is a reasonable probability that the [outcome] might have been different had the [proceeding] been properly conducted." See Foy v. Donnelly, 959 F.2d 1307, 1317 (5th Cir. 1992) (making statement in context of trial).
This is the only test for generic violations of due process. If the alleged misconduct rises to the level of constitutional error, the Court need not apply a harmless error test. Darden v. Wainwright, 477 U.S. 168, 183 n. 15 (1986). The Fifth Circuit Court of Appeals has observed, furthermore, that application of a harmless error test would be "superfluous" after a determination that the trial was rendered fundamentally unfair. Kirkpatrick v. Blackburn, 777 F.2d 272, 280 (5th Cir. 1985).
The seminal case regarding due process procedures in the sentencing context is Williams v. New York, 337 U.S. 241 (1949). Although the Supreme Court decided this case more than a half century ago, it remains a viable authority for non-capital sentencing procedures. The Supreme Court noted:
In Gardner v. Florida, 430 U.S. 349 (1977), the Supreme Court distinguished Williams in the capital sentencing context, noting its "obligation to re-examine capital-sentencing procedures against evolving standards of procedural fairness in a civilized society". 430 U.S. at 357.
Tribunals passing on the guilt of a defendant always have been hedged in by strict evidentiary procedural limitations. But both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind the extent of punishment to be imposed within limits fixed by law. Out-of-court affidavits have been used frequently, and of course in the smaller communities sentencing judges naturally have in mind their knowledge of the personalities and backgrounds of convicted offenders.Id. at 246 (footnotes omitted). The Supreme Court specifically admonished "against treating the due-process clause as a uniform command that courts throughout the Nation abandon their age-old practice of seeking information from out-of-court sources to guide their judgment toward a more enlightened and just sentence." Id. at 250-51. It held that the Constitution does not restrict
the view of the sentencing judge to the information received in open court. The due-process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure. So to treat the due-process clause would hinder if not preclude all courts — state and federal — from making progressive efforts to improve the administration of criminal justice.Id. at 251. It further held that the due-process clause does not render "a sentence void merely because a judge gets additional out-of-court information to assist him in the exercise of [his discretion to determine the proper sentence]." Id.
In this case, it is undisputed that the trial judge interviewed SG in chambers because she was too nervous to testify. See S.H. Tr. at 29-35 (various affidavits contained in state habeas record). Her mother testified that SG was scared and did not want to come into the courtroom. RR at 24. One affiant stated that SG told petitioner's son that "she didn't wo[nt] his Daddy to go to jail, and that she wished that she had kept her mouth shut." Id. at 35. The meeting between the trial judge and SG was not transcribed, and the record does not reveal whether the trial judge took any other steps to ensure that no rights of petitioner were threatened. See Adams, 785 F.2d at 920. Despite this troubling omission, however, petitioner must still demonstrate that he was prejudiced by the meeting before this claim entitles him to relief. Adams, 785 F.2d at 921. Without some showing of prejudice, the Court cannot find the sentencing proceeding fundamentally unfair.
Petitioner alleges that SG may have told the judge something during the ex parte meeting which negatively impacted his sentence. SG's proposed testimony related to an extraneous event unrelated to the specific aggravated-sexual-assault charge to which petitioner had pled guilty. The pre-sentence report alleged that petitioner "touched her leg around the thigh" — an allegation which did not rise to the level of a separate actionable criminal offense. S.H. Tr. at 55, 61. Petitioner's version of the events, as contained in the pre-sentence report, also included a statement that he helped SG undress. Id. at 56, 62. SG's mother testified that petitioner watched and touched SG while helping her bathe. RR at 23, 25. A psychologist testified that petitioner told him that he had watched SG take a bath. Id. at 43. The record before the Court contains considerable evidence regarding the extraneous event(s) involving SG. Significantly, the record also amply reflects that SG did not want to testify against petitioner and did not want to see him go to jail. S.H. Tr. at 35. There is nothing of record which shows that SG told the trial court anything detrimental to petitioner. Nothing in the record even reasonably suggests that the ex parte meeting resulted in a harsher sentence.
Moreover, the complainant in this case testified during sentencing about three incidents with petitioner, including fondling and forcing his genitals into her mouth. RR at 8-12. Her mother testified that "bad touchings" also happened to her son by petitioner. Id. at 21. In addition, petitioner admitted to violating the complainant and her brother. Id. at 10-16 (testimony of complainant), 66-69 (testimony of petitioner); TR at 8 (judicial confession). The evidence and petitioner's admissions regarding the offense against the complainant and the extraneous offense against her brother were sufficient to justify the imposed twenty-five year sentence.
Petitioner has demonstrated no prejudice. He has not shown that his sentencing was rendered fundamentally unfair by the meeting between SG and the sentencing judge. Petitioner has offered nothing to establish or even suggest a causal link between the ex parte meeting and the length of his sentence, and nothing in the record even reasonably suggests that the ex parte meeting resulted in a harsher sentence. In light of Williams, there appears to be no due process violation by the trial court's ex parte interview of SG despite the lack of transcription or other evidence that petitioner's rights were protected. Due process does not preclude sentencing courts from obtaining and considering out-of-court information relevant to the issues of sentencing. Given the evidence presented at sentencing, and considering the sentencing hearing as a whole, the Court finds no fundamental unfairness from that proceeding.
The finding of no fundamental unfairness also means that petitioner would not have succeeded on his alleged confrontation violation even had he not waived his right to confront witnesses. A violation of the confrontation clause is subject to a harmless error analysis. A finding of no fundamental unfairness by implication demonstrates no harm to petitioner.
VIII. STATE CONSIDERATION OF CLAIMS
Petitioner raised each of his federal claims in his state writ. The Texas Court of Criminal Appeals denied that writ and thus adjudicated the claims on the merits. The decision to deny habeas relief at the state level is consistent with applicable Supreme Court precedent. The decision involved no unreasonable application of Supreme Court precedent. The adjudication of the 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. Under applicable Supreme Court standards and the AEDPA standards, petitioner is entitled to no habeas relief on the claims raised in the instant petition.IX. REQUEST FOR DISCOVERY
Petitioner seeks leave of Court to engage in discovery related to the matters concerning SG. (Pet. at 21-22.) Under Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has discretion to grant leave to invoke the processes of discovery upon a showing of good cause. The Court finds no good cause for the requested discovery. Petitioner provides nothing which suggests that the ex parte meeting involving SG had any impact on his sentence. The sentencing court already had information relating to the allegations against petitioner by SG. The information before the sentencing court justified the twenty-five year sentence imposed upon petitioner. Furthermore, this Court cannot grant petitioner's federal writ of habeas corpus unless the stringent standards of 28 U.S.C. § 2254(d) are met. Such standards have not been met in this instance. For all of these reasons, the Court denies the request for discovery.
X. EVIDENTIARY HEARING
Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.