Opinion
CIVIL ACTION NO. 4:00-CV-1445-Y
May 31, 2001
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS (With Special Instructions to Clerk of the Court)
The Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States Magistrate Judge filed on May 10, 2001.
3. The Petitioner's written objections to the proposed findings, conclusions and recommendation of the United States Magistrate Judge filed on May 24, 2001.
The Court, after de novo review, finds and determines that Petitioner's objections must be overruled, the respondent's motion for summary judgment should be granted and the petition for writ of habeas corpus denied for the reasons stated in the magistrate judge's findings and conclusions, and as set forth herein.
The primary focus of Highman's objections to the magistrate judge's report is whether his claims one through three are procedurally defaulted because they were not raised in his first state application associated with the conviction for indecency with a child in cause number 0582215D. As noted by the magistrate judge, a federal court does not have license to question a state court's finding of procedural default, if based upon an adequate and independent state ground, and article 11.07 § 4 is an adequate and independent state procedural ground that has been strictly and regularly applied since 1994. Highman, however, again challenges the state court's application of its own law, by citing the decision of the Texas Court of Criminal Appeals in Ex parte McPherson, 32S.W.3d 860, 861 (Tex.Crim.App. 2000). In McPherson, the Texas Court of Criminal Appeals held that an initial state application that sought only the opportunity to file an out-of-time appeal, did not pertain to the validity of the prosecution or judgment of guilt and thus was not a challenge to the conviction sufficient to invoke the procedural bar against a successive application of article 11.07 § 4. Ex parte McPherson, 32 S.W.3d at 861. Highman argues that as a result of McPherson, it cannot be said that the procedural bar has been strictly and regularly applied to claims in which the initial application seeks an out-of-time appeal.
Highman has filed three state applications for writ of habeas corpus, No. 18, 661-01-03. The first dealt with another prior conviction for aggravated sexual assault, but 18,661-02 and 03 relate to the instant indecency with a child conviction.
Although Highman's argument is attractive in principle, it is not applicable to his procedural history. In his first state application for writ of habeas corpus on his indecency conviction Highman referenced an "out-of-time appeal;" however, at that time he already had completed a direct appeal and been denied a petition for discretionary review, and sought substantive relief on the basis that his counsel on that direct appeal was ineffective. Ex parte Highman, No. 18,661-02 at 5. The claim was treated by the state courts as a claim for ineffective assistance of counsel on appeal. Ex parte Highman, No. 18,661-02 at 193, 187. Thus, unlike the McPherson case, Highman's initial state writ application ing the effectiveness of counsel on appeal was a challenge to the validity of his conviction sufficient to invoke the article 11.07 § 4 bar.
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.
It is further ORDERED that the Respondent's September 29, 2000 Motion for Summary Judgment [document no. 7] be, and is hereby, GRANTED.
It is further ORDERED that Petitioner's Petition for Writ of Habeas Corpus be, and is hereby, DENIED.
It is further ORDERED that the clerk of the Court shall transmit a copy of this order to Petitioner by certified mail, return receipt requested.