Opinion
No. 3:03-CV-0596-L
March 27, 2003
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 District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for a writ of habeas corpus brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently incarcerated at the Estelle Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-TD) in Huntsville, Texas. Respondent is the Director of the TDCJ-ID. No process has been issued in this case.
Statement of the Case: Pursuant to a plea agreement, Petitioner pled guilty to murder in exchange for an agreed term of fifteen years imprisonment in the 40th District Court of Ellis County, Texas, Cause No. 22820. Petitioner appealed. On January 30, 1998, the court of appeals dismissed the appeal for want of jurisdiction. Cooper v. State. Slip Op. No. 10-97-331-CR.
Petitioner has filed one prior federal habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his conviction. See Cooper v. Johnson, 3:99-CV-1078-H (N.D. Tex., Dallas Div.). On February 17, 2000, the District Court adopted the findings, conclusions and recommendation of the Magistrate Judge and denied the petition on the merits. See Attachment I (Magistrate Judge's recommendation). Petitioner appealed. On May 9, 2000, the Fifth Circuit Court of Appeals dismissed the appeal.
In the present petition for a writ of habeas corpus, Petitioner seeks to challenge his murder conviction (as he did in his prior federal habeas action), as well as retaliatory and disciplinary actions which he received during the last six months. Regarding his murder conviction, he alleges the prosecution with the help of defense counsel fabricated evidence, distorted the truth, and coerced him to confess to crime of murder. (Petition ¶ 12(A) and (b) at p. 7). He further alleges the prosecution failed to disclose favorable evidence, and his plea was unlawfully induced and involuntary. (Memorandum in Support of Petition, styled as a "Motion to Vacate, Set Aside . . . Sentence," at 2-3).
Findings and Conclusions: The instant petition is subject to the screening provisions set out in 28 U.S.C. § 2244(b)(3)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 336 (1997) (the AEDPA governs petitions filed after its effective date of April 24, 1996). Section 2244(b)(3)(A) provides that a second or successive habeas petition filed pursuant to § 2254 must be certified by a panel of the appropriate court of appeals before it can be heard in the district court. See In re Epps, 127 F.3d 364 (5th Cir. 1997); see also In re Tolliver, 97 F.3d 89, 90 (5th Cir. 1996) (addressing a similar provision applicable to second or successive motions pursuant to 28 U.S.C. § 2255). In Felker v. Turpin, 518 U.S. 651, 663-64 (1996), the Supreme Court observed that the amendments to § 2244 "simply transfer from the district court to the court of appeals a screening function which would previously have been performed by the district court as required by . . . Rule 9(b)."
The claims relating to Petitioner's underlying murder conviction were available to him when he filed his first federal habeas petition. United States v. Orozco-Ramirez, 211 F.3d 862, 866-871 (5th Cir. 2000). They are, therefore, "second or successive" under the AEDPA. See In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) (a subsequent petition is second or successive when it "raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition, or otherwise constitutes an abuse of the writ.").
In his first federal habeas action, Petitioner challenged the voluntariness of his guilty plea and defense counsel's use of threats which forced him to plead guilty. See Attachment I.
The Magistrate Judge recognizes that petitioner's remaining claims relate to retaliatory and disciplinary actions which occurred during the last six months, and thus were not available when he filed his previous federal petition. That fact does not affect whether the application is successive. An application is either successive or not. The Fifth Circuit has specifically determined that an application is second or successive when it raises a claim that was or could have been raised in an earlier petition. Orozco-Ramirez, 211 F.3d at 867; In re Cain 137 F.3d 234, 235 (5th Cir. 1998) (per curiam). In a different, but analogous, context, the United States Supreme Court has recognized the distinction between "application" and "claim". See Artuz v. Bennett, 531 U.S. 4, 9 (2000) (discussing procedurally defaulted claims in conjunction with "properly filed" applications). A "mixed-application" that contains both claims that could have been raised previously and claims that could not have been so raised is nevertheless successive. This Court does not parcel out and decide claims from a successive petition, even those claims that could not have been raised previously.
Unless the Fifth Circuit Court of Appeals first grants Petitioner leave to file the present petition, this court lacks jurisdiction to consider the same. Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). Accordingly, this petition should be dismissed for want of jurisdiction. Such a dismissal, however, is without prejudice to Petitioner's right to file a motion for leave to file a second or successive § 2254 petition in the United States Court of Appeals for the Fifth Circuit pursuant to § 2244(b)(3)(A). See In re Epps, 127 F.3d at 364 (setting out the requirements for filing a motion for authorization to file a successive habeas petition in the Fifth Circuit Court of Appeals).
RECOMMENATION:
For the foregoing reasons it is recommended that the District Court dismiss the habeas corpus petition for want of jurisdiction, but without prejudice to Petitioner's right to file a motion for leave to file a second or successive § 2254 petition in the United States Court of Appeals for the Fifth Circuit pursuant to 28 U.S.C. § 2244(b)(3)(A).
The Clerk will mail a copy of this recommendation to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Sen's. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.
ATTACHMENT 1
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION
NUBIAN DELLEON COOPER ) ) v. ) No. 3-99-CV-1078-H ) GARY JOHNSON, DIRECTOR, TEXAS ) DEPARTMENT OF CRIMINAL JUSTICE ) INSTITUTIONAL DIVISION )
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, the subject-cause-has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: The Petitioner is confined as an inmate at the Gurney Unit of the Texas Department of Criminal Justice, Institutional Division, Tennessee Colony, Texas.
The Respondent is the Director of the Texas Department of Criminal Justice, Institutional Division.
Statement of the Case: The Petitioner is currently incarcerated pursuant to a judgment and sentence of the 40th District Court of Ellis County, Texas, in Cause No. 22820CR, styled The State of Texas v. Nubian Cooper. The Petitioner was charged by indictment with the felony offense of capital murder in the course of committing the offense of robbery. See Application No. 37, 193-01 at page 0003. Pursuant to a plea agreement (Id. at page 0052) Cooper entered a plea of guilty to the lesser included offense of murder in exchange for an agreed term of fifteen years imprisonment on October 7, 1997. On the same date he signed a judicial confession (Id. at page 0050) and was assessed a fifteen year term of imprisonment in accordance with the plea agreement (Id. at page 0054). Following imposition of punishment Petitioner waived his right to file a motion for new trial and to appeal his conviction (Id. at page 0051).
Petitioner filed a pro se notice of appeal with the trial court on December 29, 1997 (Id. at page 0057). On January 8, 1998, the Petitioner sent a letter to the trial judge requesting that an attorney be appointed to represent him on appeal. On the same day, the trial court notified his trial attorney that he was to remain on the case and handle the appeal. On January 16, 1998, the Petitioner's attorney filed a motion for extension of time to file a notice of appeal.[1] On January 30, 1998, the appeals court, in an unpublished opinion, dismissed the appeal for want of jurisdiction, saying that the appeal was not timely filed, nor was the motion to extend time to file the notice of appeal. Cooper v. State, Slip Op. No. 10-97-331-CR.
Pursuant to TEX.R.APP.P. 26.2(a)(1), the Petitioner had thirty (30) days from the date the sentence is imposed to file his notice of appeal.
Cooper has filed two state applications for writ of habeas corpus. The first, filed on February 23, 1998, was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court without a hearing on April 29, 1998. Ex Parte Cooper, Application No. 37, 193-01 at cover. The second application, filed on October 5, 1998, was denied by the Texas Court of Criminal Appeals without written order on December 23, 1998. Ex Parte Cooper, Application No. 37, 192-02. This is his first § 2254 petition.
Cooper alleges the following as grounds for relief:
1. He received ineffective assistance of trial counsel because counsel:
a. Failed to advise the Petitioner of his right to appeal during the plea bargain process;
b. Advised the Petitioner that he would not file an appeal after the Petitioner had requested an appeal;
c. Forced the Petitioner to enter a guilty plea through the use of threats;
d. Failed to advise the Petitioner of the consequences of pleading guilty;
e. Failed to conduct any pretrial investigation of the facts of the case; and
f. Relied exclusively on the State's representations of the facts of the case.
2. The Petitioner's guilty plea was involuntary because:
a. The trial court failed to properly admonish the Petitioner;
b. The trial court failed to determine whether the Petitioner's guilty plea was given freely and voluntarily; and
c. The trial court failed to require that the Petitioner personally enter the plea.
Findings and Conclusions: In his first ground for relief, the Petitioner alleges that he received ineffective assistance of counsel related to his appeal. Specifically, the Petitioner alleges that his counsel failed to advise him of his right to appeal during the plea bargain process and he advised the Petitioner that he would not file an appeal after the Petitioner had requested an appeal.
A defendant in a criminal case is entitled to a direct appeal as a matter of right. However, this right like other rights — e.g. the right to a jury trial — may be waived. See e.g. United States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992). In the present case as part of the plea agreement Cooper expressly waived his right to a direct appeal in open court. See Application No. 37, 193-01, supra, at page 0051. Having bargained away his right to appeal his sentence which was imposed in accordance with the express terms of the plea agreement, he cannot establish any error in his attorney's failure to file a timely notice of appeal. It is, therefore, unnecessary to consider the second part of this ground, i.e. that counsel refused to appeal the conviction. However, it is noted parenthetically that counsel represented in his motion to extend time (Id. at pages 68-70) that Cooper never asked him to appeal his conviction. See also counsel's affidavit, Id. at 104.
In his second ground for relief Cooper claims that his guilty plea was rendered involuntary by reason of deficiencies committed by the trial court in accepting his guilty plea. This claim was first raised in his second art. 11.07 application. See Application No. 37, 192-02 at page 006. Respondent argues that merits review of this ground is procedurally barred.
In addressing the second application the trial court found that it could not consider the merits of the claims presented under the provisions of art. 11.07. Although the court did not identify the specific provisions of art. 11.07 on which it relied, the language appearing in its order reiterated the language appearing in art. 11.07 § 4, V.A.C.C.P. (Id. at page 0029).
§ 4 is a statute which applies to state habeas applications filed on or after September 1, 1995. It limits the number of post-conviction habeas corpus applications which the Court of Criminal Appeals may consider. Ex Parte Rawlinson, 955 S.W.2d 198 (Tx.Crim.App. 1997). In Rawlinson the court found that the applicant had failed to satisfy any of the exceptions enumerated in § 4 and therefore held that it would not consider the merits of his claims presented in his second application and accordingly dismissed it pursuant to art. 11.07, § 4. See also Ex Parte Sowell, 956 S.W.2d 39 (Tx.Crim.App. 1997).
A review of Cooper's second art. 11.07 applications discloses that all of the alleged deficiencies in the trial court's arraignment occurred prior to his sentencing, thus foreclosing application of § 4(a)(1). Further, in light of his guilty plea § 4(a)(2) clearly does not apply. Since the Texas court system was barred from addressing the claims alleged in support of Petitioner's second ground for relief, this court is precluded from addressing these claims as well.
In recommending that the District Court find that Cooper's second ground for relief is procedurally barred, the magistrate judge is not unmindful of the Fifth Circuit's recent decision in Bledsue v. Johnson, 188 F.3d 250 (5th Cir.). However, for the reasons stated below, Bledsue is clearly distinguishable and its holding is not binding in this § 2254 action.
In Bledsue the record reflected that the petitioner had filed three art. 11.07 applications and that he had one direct appeal. In his initial art. 11.07 application he sought an out-of-time appeal. The Court of Criminal Appeals granted relief as a result of which he filed an appeal in the appropriate intermediate appellate court which affirmed his conviction. Bledsue did not seek a petition for discretionary review, but proceeded to file a second art. 11.07 application.
In both his direct appeal and in his second art. 11.07 application, Bledsue attacked the sufficiency of the evidence. The Fifth Circuit found that he asserted his claim sufficiently to exhaust state remedies. 188 F.3d at 255.[2]
In light of this finding, the Fifth Circuit had no occasion to address Bledsue's third art. 11.07 application, art. 11.07 § 4, or the disposition made by the Court of Criminal Appeals on his third application.
Under established Texas state law, sufficiency of the evidence claims are ordinarily not cognizable in a collateral proceeding. See Bledsue at 256 n. 12. Further, since Bledsue did not file a petition for discretionary review, in order to exhaust state remedies he was required to seek relief via an art. 11.07 application. See e.g. Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). Thus when Bledsue's second art. 11.07 application was before the Court of Criminal Appeals, that court could have dismissed the application on procedural grounds, citing Ex Parte Colemen, 599 S.W.2d 305, 306-07 (Tx.Crim.App. 1979) and its progeny. However, the trial court found that the sufficiency of the evidence claim lacked merit. See 188 F.3d at 252-53. In ruling on this application the Court of Criminal Appeals order read: "Application denied without written order".
It is well settled that federal court will not apply a procedural bar to a state prisoner's claim when the state courts have not invoked such a basis in disposing of an issue rather than addressing the merits of a claim. See Lefkowitz v. Newsome, 420 U.S. 283, 292 n. 9, 95 S.Ct. 886, 891 n. 9 (1975) wherein the Court noted that if "the state courts entertained the federal claims on the merits, a federal habeas corpus court must also determine the merits of the applicant's claim"; Ratcliff v. Estelle, 597 F.2d 474, 478 (5th Cir. 1979).
In finding that Bledsue's sufficiency of the evidence claim had been decided on the merits, the Fifth Circuit relied upon the Court of Criminal Appeals' own distinction between the effect of "a `denial' [signifying] that we addressed and rejected the merits of a particular claim while `dismissal' means that we declined to consider the claim for reasons unrelated to the claim's merits," Ex Parte Thomas, 953 S.W.2d 286, 289 (Tex.Crim.App. 1997) (citing Ex Parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997). Bledsur, supra, 188 F.3d at 257.
Notwithstanding the terminology used by the Court of Criminal Appeals in disposing of a state writ, it is clear that that court does not apply such terms in a mechanical and inflexible manner. In Ex Parte Torres, supra, the court observed that in determining the effect of a disposition of a prior collateral attack "we look beyond mere labels to the substance of the action taken," 943 S.W.2d at 472. See also Ex Parte Thomas, 953 S.W.2d 286 (Tex.Crim.App. 1997) where the court held that a second writ application was not barred by art. 11.07 § 4, noting that the order filed in the first application denying it without written order was improvidently entered and that the initial application should have been dismissed for want of jurisdiction.
Looking to the substance of the action taken with respect to Cooper's second art. 11.07 it is clear that the Court of Criminal Appeals' order denying it without written order was improvidently entered. As distinguished from the facts described in Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998) where the trial court explicitly ruled on the merits of the claim, the convicting court in Cooper's case specifically set out the reasons why the merits of his second application could not be considered. In order to find that the stated disposition of Cooper's second art. 11.07 application constituted a disposition on the merits this court would have to disregard the "substance analysis" which the Court of Criminal Appeals applies its own prior orders. Further, to interpret the signature of a single judge of that court on the wrong form as overruling the full court's published opinion in Ex Parte Rawlinson, supra, would stand the precept of stare decisis squarely on its head.
In his third and final ground for relief Cooper asserts additional alleged deficiencies in his trial attorney's representation constituting ineffective assistance of counsel. His contention that his attorney failed to advise him of the consequences of pleading guilty and that his guilty plea was induced by threats made by him were first raised in Cooper's second art. 11.07 application, and for the reasons stated above are procedurally barred. Cooper's third factual basis in support of his third ground i.e. counsel's failure to investigate and his reliance solely on the prosecutor's version of the facts have never been presented to the state courts.[3]
In his initial art. 11.07 application Cooper claimed that he was forced to plead guilty because his "Attorney was not prepaired (sic) for Trial" (Application No. 37, 193-01, at page 0084). This conclusory allegation is insufficient to raise a cognizable basis for relief. Ross v. Estelle, 694 F.2d 2008, 1011-12 (5th Cir. 1983).
In light of the Court of Criminal Appeals interpretation of art. 11.07 § 4 in Ex Parte Rawlinson, supra, it is clear that any effort to attempt to present this claim in another art. 11.07 application would be futile. Therefore, this court is procedurally barred from considering Petitioner's "failure to investigate" claim. O'Sullivan v. Boerckel, ___ U.S. ___, 119 S.Ct. 1728, 1734 (1999); Nobles v. Johnson, 127 F.3d 409, 422-423 (5th Cir. 1997) cert. denied ___ U.S. ___, 118 S.Ct. 1845 (1998).
RECOMMENDATION:
For the foregoing reasons it is recommended that the District Court enter its order denying Petitioner's first ground for relief and dismissing his second and third grounds as being procedurally barred and that judgment be entered dismissing and denying the petition.
A copy of this recommendation shall be transmitted to Petitioner and Respondent.
NOTICE
In the event that a party wishes to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United States Services Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc) a party's failure to file written objections to this recommendation within such ten day period may bar a de novo determination by the District Judge of any findings of fact or conclusions of law and shall bar such party, except upon grounds of plain error from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the District Court.