Opinion
No. 3:03-CV-139-L.
September 14, 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 District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
Parties
Petitioner Leon Johnson is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Procedural History
On August 6, 1999, Johnson pled guilty to three offenses: (1) delivery of one gram or more but less than four grams of cocaine in cause number F-9851656-WU, (2) delivery of less than one gram of cocaine in cause number F-9851654-WU, and (3) possession of one gram or more but less than four grams of cocaine in cause number F-9851666-VU. The trial court, without a punishment recommendation from the State, sentenced Johnson to 25 years' confinement in cause numbers F-9851656-WU and F-9851666-VU and to 20 years' confinement in cause number F-9851654-WU, to be served concurrently. (3 State Habeas R. at 76, 80, 84; 4 State Habeas R. at 76, 80, 87; 5 State Habeas R. at 127, 132, 139.) The Fifth District Court of Appeals affirmed the trial court's judgments, and the Texas Court of Criminal Appeals refused Johnson's pro se petitions for discretionary review. Johnson v. State, Nos. 5-99-1379-81-CR (Tex.App. — Dallas Apr. 16, 2001, pets. ref'd) (not designated for publication).
The intermediate appellate court modified the judgment in cause number F-9851654-WU to reflect that the conviction was for a state jail felony and affirmed it as modified.
On June 14, 2002, Johnson filed three 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 Johnson, Nos. 33,137-03, -04, -05 (Tex.Crim.App. Dec. 18, 2002) (not designated for publication). Johnson filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on January 16, 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).
Johnson filed two previous state habeas applications, challenging his 1995 and 1998 convictions for burglary of a building, which were both dismissed. Ex parte Johnson, Nos. 33,137-01, -02 (Tex.Crim.App. Mar. 12, 1997 Sept. 16, 1998); see also Johnson v. Johnson, No. 3:97-CV-604-X (N.D. Tex. Nov. 22, 1999).
Issues
Johnson argues that:
1. his guilty plea was involuntary (Pet'r Mem. in Supp. at 9-12);
2. trial counsel was constitutionally ineffective ( Id. at 3-8);
3. his conviction was obtained through the use of evidence that was illegally seized and was the product of an unlawful arrest (Federal Pet. at 7); and
4. he was denied a complete record of the arrest and search warrant on appeal (Pet'r Mem. in Supp. at 6-7).
Exhaustion of State Court Remedies
Dretke argues that Johnson's claim that counsel was ineffective for failing to challenge the affidavit for arrest because it had been altered when the police officers crossed out the name "John Doe" and replaced it with his name has not been exhausted and asserts that it has been procedurally defaulted. He also asserts that Johnson's claim that the trial court did not give the court of appeals a copy of the arrest and search warrant has likewise not been exhausted and is procedurally defaulted. However, Dretke believes that Johnson's remaining allegations challenging counsel's conduct and the voluntariness of his guilty plea have been properly exhausted.Exhaustion and Procedural Default
Applicants seeking habeas relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. Picard v. Connor, 404 U.S. 270, 275-76 (1981); Fisher, 169 F.3d at 302. This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
Johnson did not raise in either his petitions for discretionary review or his state habeas corpus applications his arguments that (1) trial counsel was ineffective for failing to challenge the arrest and search warrant because his name had been illegally added, (2) he was denied a complete record of the arrest and search warrant on appeal, and (3) his conviction was obtained through illegally seized evidence and an unlawful arrest. Thus, he seeks federal habeas relief on factual allegations that were never made in the Texas courts, which renders these claims unexhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
Johnson argues that he did raise this allegation in his state habeas corpus applications (Pet'r Obj. at 3-4); however, any argument that the warrant was illegally altered was mentioned solely in a cursory manner regarding his claim that counsel was ineffective for failing to request an examining trial. (5 State Habeas R. at 15.)
Dretke does not include this third allegation in his list of issues raised by Johnson; thus, he has not expressly waived the exhaustion requirement as to this issue. (Resp't Answer at 4, 9.) 28 U.S.C. § 2254(b)(3).
However, Johnson cannot return to the Texas courts to cure this deficiency. The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20.
Johnson has not given any explanation to excuse his default. Indeed, any problems with counsel's representation, the illegally seized evidence and unlawful arrest, and the record on appeal were known to Johnson before he filed his state habeas corpus applications. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999). Accordingly, these claims are procedurally defaulted.
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. Holland v. Jackson, 124 S.Ct. 2736, 2738-39 (2004); 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).
Involuntary Guilty Pleas
Because Johnson pled 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). Johnson argues that his guilty pleas were involuntary because they were induced by counsel's representations that he would receive probation if he pled guilty. (Pet'r Mem. in Supp. at 9-12.)
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 Johnson (1) was pleading guilty freely and voluntarily, (2) had not been promised anything in return for the guilty pleas and had not been coerced, (3) was mentally competent, (4) understood the plea admonishments, and (5) was aware of the consequences of his pleas. (3 State Habeas R. at 88; 4 State Habeas R. at 91; 5 State Habeas R. at 143; 1 R.R. at 7-11.) Further, the trial court informed Johnson of the punishment ranges for the offenses. (1 R.R. at 10.) Johnson 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, Johnson'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. Further, the trial court made factual findings and concluded that the pleas were voluntary. (3 State Habeas R. at 27; 4 State Habeas R. at 28; 5 State Habeas R. at 78.) Johnson has not overcome the presumption of correctness, which applies to these factual findings, with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Ineffective Assistance of Counsel
Johnson asserts that trial counsel was ineffective before he pled guilty because counsel (1) failed to challenge that the arrest and search warrant were not signed by a magistrate, had no description of Johnson, and did not otherwise name him; (2) failed to file a motion to suppress the illegally seized evidence; (3) did not request an examining trial; and (4) did not call available witnesses. Because Johnson pled 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, Johnson 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. Johnson's guilty pleas waived his ineffective-assistance-of-counsel claims occurring before he pled 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 Tollet v. Henderson, 411 U.S. 258, 267 (1973) (stating guilty plea waives all nonjurisdictional defects occurring before entry of plea); 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). Further, the trial court made factual findings and concluded that counsel was not ineffective. (3 State Habeas R. at 27-29; 4 State Habeas R. at 28-30; 5 State Habeas R. at 78-80.) Johnson has not overcome with clear and convincing evidence the presumption of correctness, which applies to these factual findings. 28 U.S.C. § 2254(e)(1).
Summary
Johnson is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Johnson was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.