Opinion
CIVIL ACTION NO. 4:03-CV-877-Y
January 9, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
1. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Raymond Alonzo Bingham, Jr., TDCJ-CID #1093309, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is presently incarcerated in the Michael Unit in Tennessee Colony, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. PROCEDURAL HISTORY
On March 19, 2002, Bingham pleaded guilty to aggravated robbery causing serious bodily injury. (1 State Habeas R. at 131, 139.) The trial court, without a punishment recommendation from the State, sentenced Bingham to 60 years' confinement. ( Id.) On that same date, Bingham pleaded guilty to robbery causing bodily injury. (2 State Habeas R. at 132, 140.) Again without a punishment recommendation from the State, the trial court sentenced Bingham to 60 years' confinement, to be served concurrently. ( Id.) Bingham, who had waived his right to appeal under the terms of his guilty pleas, did not file an appeal. (1 State Habeas R. at 131; 2 State Habeas R. at 132.)On January 7, 2003, Bingham filed two state applications for writ of habeas corpus challenging his convictions, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court without a hearing. Ex parte Bingham, Nos. 55, 852-01 -02 (Tex.Crim.App. June 18, 2003) (not designated for publication). Bingham filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on August 12, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Bingham argues that:
1. because he involuntarily waived his right to appeal with inadequate information, he was denied the right to appeal,
2. he was sentenced in violation of the Fifth Amendment because he testified against himself at sentencing,
3. his guilty pleas were involuntary,
4. counsel were constitutionally ineffective, and
5. the trial court's guilty — plea admonishments were defective under state and federal law, which rendered his guilty pleas involuntary.
E. RULE 5 STATEMENT
Dretke believes Bingham has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.F. DISCUSSION 1. Standard of Review
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings 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 decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002). (en banc per curiam), cert. denied, 537 U.S. 1104 (2003).
Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Involuntary Guilty Pleas
Because Bingham pleaded guilty, he may only challenge the voluntary character of his guilty pleas. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983), cert. denied, 466 U.S. 906(1984). Bingham argues that his guilty pleas were involuntary because they were induced by counsel and because he received inadequate trial court admonishments under the Fifth Amendment and Texas law. (Federal Pet. at 7; Pet'r Mem. in Supp. at 1, 5-13, 22-27; Pet'r Reply at 3-6.)
If a challenged guilty plea is knowing, voluntary, and intelligent, it will be upheld on federal habeas review. James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). Although a defendant's attestation of voluntariness at the time of the plea is not an absolute bar to later contrary contentions, it places a heavy burden upon him. United States v. Diaz, 733 F.2d 371, 373-74 (5th Cir. 1979). He must show such a strong degree of misunderstanding, duress, or misrepresentation by others that his plea would become a constitutionally inadequate basis for imprisonment. Id. (citing Blackledge v. Allison, 431 U.S. 63, 75 (1977)). Before a 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," but not that he understood the "technical legal effect" of the charges. Boykin v. Alabama, 395 U.S. 238, 244 (1969); James, 56 F.3d at 666. A plea is involuntary, and thus insufficient to support a conviction, if the defendant "has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt." Henderson v. Morgan, 426 U.S. 637, 645 n. 13 (1976). If the defendant understands the maximum prison term and fine for the offense, the subsequent guilty plea is knowingly entered. Ables v. Scott, 73 F.3d 591, 592 n. 2 (5th Cir.) (per curiam), cert. denied, 517 U.S. 1198 (1996). Absent supporting evidence in the record, a court cannot consider a habeas petitioner's mere assertions on a critical issue in his pro se petition to be of probative evidentiary value. Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994), cert. denied, 514 U.S. 1071 (1995); Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (per curiam).
The record reflects that Bingham (1) was pleading guilty freely and voluntarily, (2) was mentally competent, (3) understood the plea admonishments, and (4) was aware of the consequences of his pleas. (1 State Habeas R. at 135; 2 State Habeas R. at 136.) Further, the trial court informed Bingham of the maximum prison terms and fines for the offenses. (1 State Habeas R. at 133; 2 State Habeas R. at 134.) Bingham has offered nothing more than his self — serving allegations that his pleas were involuntary, which is insufficient to rebut the presumption of regularity of the state court records. Babb v. Johnson, 61 F. Supp.2d 604, 606 (S.D. Tex. 1999); see also Armstead, 37 F.3d at 210. Further, Bingham's attacks on his guilty pleas do not undermine the sufficiency of the information he was provided before he pleaded guilty. Ables, 73 F.3d at 592 n. 2.
3. Waiver
Bingham asserts that trial counsel were ineffective before he pleaded guilty because counsel (1) did not communicate to the State that Bingham had accepted a plea — bargain offer, (2) failed to memorialize the plea — bargain agreement, and (3) failed to advise Bingham of his right to appeal jurisdictional and constitutional error. (Federal Pet. at 8; Pet'r Mem. in Supp. at 17-21.) Because Bingham pleaded guilty, he may only challenge the voluntary character of his guilty pleas in raising an ineffective — assistance — of — counsel claim. Hill, 474 U.S. at 56-57; Smith, 711 F.2d at 682. As discussed above, Bingham has failed to show that his pleas were involuntary. Thus, he has failed to overcome the presumption that he was properly admonished and that his pleas were voluntary. Bingham's guilty plea waived his ineffective — assistance — of — counsel claims occurring before he pleaded guilty. Beasley v. McCotter, 798 F.2d 116, 118 n. 1 (5th Cir. 1986) (per curiam), cert. denied, 479 U.S. 1039 (1987); see also Toilet v. Henderson, 411 U.S. 258, 267 (1973) (stating guilty plea waives all nonjurisdictional defects occurring before entry of plea). Likewise, Bingham has waived his claims that the trial court's admonishments were defective and that his appeal waivers were involuntary. (Federal Pet. at 7; Pet'r Mem. in Supp. at 2-17; Pet'r Reply at 4-5.) See 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).
To the extent Bingham argues that counsel were ineffective for failing to properly inform him of the right to appeal after sentencing (Pet'r Mem. in Supp. at 4), the state habeas court found that counsel had sufficiently admonished Bingham about his appeal rights. (1 State Habeas R. at 124-25, 128; 2 State Habeas R. at 126-27, 130.) This finding is presumed correct, and Bingham has failed to rebut it.
4. Fifth Amendment
Bingham argues that he was sentenced in violation of he Fifth Amendment because he testified against himself at punishment. (Federal Pet. at 7; Pet'r Reply at 5-7.) The state habeas court found that Bingham "was advised of his 5th Amendment privileges, including his rights against self — incrimination during the guilt and punishment stages, but because [Bingham] insisted on pleading guilty and going open to the Judge, he was informed that his testimony would be crucial." (1 State Habeas R. at 124, 128; 2 State Habeas R. at 126, 130.) This finding is presumed correct. Bingham has failed to rebut this presumption with clear and convincing evidence; thus, his claim fails.
5. Ineffective Assistance of Counsel
Bingham asserts that counsel were ineffective because after he pleaded guilty, they told him to testify at sentencing and did not advise Bingham about the protections against self — incrimination. (Federal Pet. at 8.) The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST, amend. VI. A claim of ineffective assistance of counsel is measured under a two — pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); Carter v. Collins, 918 F.2d 1198, 1200 (5th Cir. 1990). To satisfy the prejudice prong in a guilty — plea context, the petitioner must show that he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59; Montoya v. Johnson, 226 F.3d 399, 408 (5th Cir. 2000), cert. denied, 532 U.S. 1067 (2001).
Bingham has not asserted that he would have pleaded not guilty and proceeded to trial had counsel properly informed him of his Fifth Amendment rights. Additionally, Bingham has failed to bring forward clear and convincing evidence to rebut the presumptively correct finding by the state habeas court that Bingham was properly admonished by counsel of his Fifth Amendment rights. This claim must fail.
G. REQUEST FOR COURT RECORDS
Bingham has repeatedly requested a free copy of the state court records. (Pet'r Mem. in Supp. at 28; Pet'r Reply at 7-8.) Section 2250 provides that where a petitioner for a writ of habeas corpus has been granted leave to proceed in forma pauperis and his application is pending before the court, he may be entitled to be furnished copies of court records that are filed in the Clerk's Office without cost "as may be required by order of the judge before whom the application is pending." 28 U.S.C. § 2250; see also Walker v. United States, 424 F.2d 278 (5th Cir. 1970). However, Bingham must show a need for and the relevance of the requested records. See, e.g., United States v. MacCollom, 426 U.S. 317, 326-28 (1976). Bingham does not make a sufficient showing that the records are imperative to his petition, and his allegations do not warrant production of the requested records at government expense. This is especially true when Bingham has attached extensive portions of the state court records to his federal petition and his reply. Bingham's request is denied.
II. RECOMMENDATION
Bingham's petition for writ of habeas corpus should be denied.III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until January 30, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until January 30, 2004 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above — styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.