Opinion
No. 3:04-CV-128-M.
January 21, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and an order of the District Court in implementation thereof, the subject cause has previously been referred to the undersigned United States Magistrate Judge. The findings, conclusions, and recommendations 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: Petitioner David Gonzales Martinez ("Martinez" or "Petitioner") is confined at the McConnell Unit of the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID") at Beeville, Texas. Respondent is the Director of TDCJ-CID.
Statement of the Case: The history of Petitioner's prior proceedings in the Texas judicial system is set out in the magistrate judge's recommendation filed on October 1, 2004. In this § 2254 proceeding the court has previously denied Respondent's motion to dismiss and the petition is present before the court for consideration of the claims set out therein. Findings and Conclusions:
Review of Petitioner's claims is governed by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") which in pertinent part provides that a federal court cannot grant relief under § 2254 unless the adjudication of the state prisoner's claim in the state court system "resulted in a decision that involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." § 2254(d)(1) (2). Further, findings of fact made by a State court are presumed to be correct absent clear and convincing evidence rebutting the presumption. § 2254(e)(1).
In his first ground for relief, Petitioner asserts that he was denied the right to an adequate and sufficient appellate process because he did not learn that his motion for rehearing had been overruled until after the deadline to file a petition for discretionary review ("PDR") with the Texas Court of Criminal Appeals had passed. Although an indigent defendant is entitled to the full rights of direct appeal afforded to a non-indigent defendant, it is clear that under Texas state law in non capital cases a criminal defendant is not entitled to review by the Texas Court of Criminal Appeals as a matter of right. See Ayala v. State, 633 S.W.2d 526, 528 (Tex.Crim.App. 1982) (en banc); see also Tex. R. App. P. 66.2. Further, discretionary review is limited to alleged error or a conflicting decision of the intermediate court of appeals. Id. at R. 66.3. In Ayala the court expressly relied on the United States Supreme Court's decisions in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437 (1974) (holding that a defendant had no Sixth Amendment right to counsel in seeking discretionary review of a conviction beyond the first steps of a direct appeal) and in Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300 (1982) (reaffirming the holding in Ross v. Moffitt).
In point of fact his appellate attorney notified Martinez that he no longer represented him and that he had the right to file his own petition for discretionary review within thirty days of the affirmance of his conviction. However Petitioner chose to file a motion for rehearing in the Fifth Court of Appeals. See Ex Parte Martinez, Appl. No. 54, 403-01 at 9-10.
In order to be entitled to relief, Martinez must show that the Court of Criminal Appeals' decision "resulted in a decision that involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." § 2254(d)(1). "Clearly established federal law 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'" Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002), citing Williams v. Taylor, 529 U.S. 362, 412, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000). He has failed to show that the decision of the Texas Court of Criminal Appeals was an unreasonable application of federal law or determination of the facts as required under § 2254(d)(1) or (2).
In his second and third grounds for relief, Petitioner asserts that the trial judge in case number F99-02247-KL lacked the authority to preside over his case or to impanel a grand jury because the record does not reflect that he had taken an oath of office or had a license to practice law. In his fourth and fifth grounds for relief he claims that he is entitled to relief because either the district attorney or other state officials who procured his indictment were not licensed to practice law. In adopting the trial court's findings, the Court of Criminal Appeals found the grounds to be without merit. See Appl. No. 54, 403-02 at cover and at 70 ¶¶ 1-4 and at 72-73 ¶¶ 6-9; see also Marshall v. Longberger, 459 U.S. 422, 433, 103 S.Ct. 843, 850 (1983); Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir. 2001). Petitioner has presented no evidence which shows that this is an unreasonable determination of the facts in his case, therefore he is not entitled to relief on these grounds. § 2254(d)(2).
In support of these claims Martinez tendered a statement of a fellow inmate. See Appl. No. 54,403-02 at 13-14. The same is both incompetent and unreliable and therefore fails to sustain the burden imposed on a habeas petitioner.
In his sixth ground for relief, Petitioner claims that the Criminal District Court of Dallas County, Texas lacked subject matter jurisdiction over him and the subject matter of his case. This ground presents an issue of state law only. Moreover, district courts in Texas have jurisdiction over all felony cases. Tex. R. Crim. P. art. 4.05. Martinez is therefore not entitled to relief on this ground.
Reference to Martinez's second art. 11.07 application suggests that he is actually arguing that the trial court lacked personal jurisdiction over his case because it was transferred from the Criminal District Court No. 4 without a transfer order. See Ex Parte Martinez, Appl. No. 54, 403-02 at 30-32, 55-56. This argument is equally unavailing. Under Texas law, lack of a transfer order from one court to another is a procedural mistake and failure to plead to the lack of jurisdiction on the part of the second court waives any chance to complain that a transfer order does not appear in the record. E.g., Garcia v. State, 901 S.W.2d 731, 732-33 (Tex.App.-Houston 1995); Watson v. State, No. 11-02-00095-CR., 2003 WL 21804811 *1 (Tex.App.-Eastland Aug. 7, 2003, no pet.).
In his seventh ground for relief, Petitioner asserts that the State impermissibly used a deferred adjudication probation to enhance his sentence. Martinez argues that, at the time he was placed on deferred adjudication probation, Texas law did not allow for such to enhance sentences for subsequent offenses. See Scott v. State, 55 S.W.3d 593, 596-97 (Tex.Crim.App. 2001). The Fifth Court of Appeals declined to extend Scott's holding to Martinez, distinguishing Martinez's case on the grounds that he had not successfully completed his deferred adjudication probation. Martinez v. State, 2002 WL 257697 *4. The Texas Court of Criminal Appeals found that Petitioner was procedurally barred from challenging the sufficiency of the evidence of the enhancement allegation, Ex Parte Martinez, Appl. No. 54, 403-01 at 72 ¶ 5, and that he had failed to present any questions which would entitle him to relief. Id. at ¶ 7. A federal habeas court is not authorized to review a state court's interpretation of state law. E.g. Young v. Dretke, 356 F.3d 616, 628 (5th Cir. 2004). Therefore relief on this ground is foreclosed as well.
In his eighth ground for relief, Petitioner asserts that the state failed to introduce evidence into the record that he failed to complete his prior deferred adjudication probation. Even if the court were not foreclosed from considering this ground by the decision of the Texas Court of Criminal Appeals, see paragraph supra, the record reflects that the jury properly found that Martinez had been previously placed on deferred adjudication for sexual assault. (Reporter's Record at 321-22). Martinez himself admits that his deferred adjudication probation would not have been completed until 2004. (Pet.'s Traverse to the Resp.'s Supp. Ans. with Incorporated Br. in Supp. at 31).
In his ninth ground for relief, Petitioner argues that the trial court erroneously instructed the jury that they were only required to find whether he had been placed on deferred adjudication, not whether that deferred adjudication had been revoked. The Fifth Court of Appeals found as fact that Martinez had not completed his deferred adjudication probation and obtained a dismissal or discharge, suggesting by implication that the State was required only to show that Martinez was then currently on deferred adjudication. Martinez v. State, 2002 WL 257697 *4. Petitioner can therefore not show "prejudice of constitutional magnitude" in the jury instructions. Galvan v. Cockrell, 293 F.3d 760, 764 (5th Cir. 2002), quoting Sullivan v. Blackburn, 804 F.2d 885, 887 (5th Cir. 1986).
In his tenth ground for relief, Martinez contends that he was denied effective assistance of both his trial and appellate counsel. In the case of his trial counsel, he contends that his counsel failed to inform him of a plea bargain offered by the State, failed to challenge the jurisdiction of the trial court, failed to challenge the authority of the prosecutor and judge, failed to object to the jury instructions and to request a limitation on the use of Petitioner's prior deferred adjudication for enhancement purposes, and that she did not have a license to practice law. With respect to his appellate council, Martinez asserts that he failed to inform him of his right to file a PDR, failed challenge the use of Petitioner's prior deferred adjudication on the grounds that the evidence did not show that Petitioner's deferred adjudication had not been successfully completed or discharged, and that he did not have a license to practice law.
Petitioner's prior admissions conclusively refute this claim. See note 1, supra.
An attorney's conduct is governed by the standards set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). There is a strong presumption that an attorney's conduct falls within the broad range of reasonable professional assistance required under the Sixth Amendment. Id. at 690, 104 S.Ct at 2065. To overcome this presumption a habeas petitioner must establish that the attorney's conduct was constitutionally deficient (cause) and that but for such unprofessional errors the result probably would have been different (prejudice). Failure to prove either prong of the two part test forecloses relief. Id at 694, 104 S.Ct. at 2068. A petitioner's allegations with regards to his appeals counsel are also evaluated under the Strickland standard. Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 764 (2000).
Martinez has failed to show evidence that the State offered him a plea bargain. In her affidavit, his trial attorney asserted that there was no plea bargain offered in his case. Appl. No. 54,403-02 at 74. This statement was found worthy of belief by the state court. Id. at 71 ¶ 2. Petitioner's conclusory allegations to the contrary cannot overcome the presumption of correctness that attaches to state court decisions. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000).
Assuming arguendo that Martinez's trial attorney could have objected to the transfer of Petitioner's case between Criminal District Court Number 4 and Criminal District Court Number 5, Martinez has failed to show that he was prejudiced by his attorney's failure to do so. If his counsel had objected to the fact that a transfer order was not filed, the likely remedy would have been the filing of a transfer order. See, e.g., Wright v. State, No. 11-00-00342-CR, 2001 WL 34373598 *2 (Tex.App.-Eastland Aug. 2, 2001, no pet.). Therefore, Petitioner has not shown that the result of his trial would have been different had his trial counsel objected to the lack of a transfer order.
As noted supra, there is no indication that either Martinez's prosecutor or judge was disqualified for any reason. Trial counsel also stated in her affidavit that she was licensed to practice law in the state of Texas at the time of Petitioner's trial, and her statements were found to be credible by the state court. Appl. No. 54,403-02 at 74; Id. at 71 ¶ 2. Petitioner's conclusory allegations to the contrary may not serve as a basis for habeas relief. See Miller v. Johnson, 200 F.3d at 282.
The record reflects that Petitioner's trial attorney objected to the admission of the "pen packet" relating to his prior deferred adjudication on the basis that it was not a final adjudication of guilt. (Reporter's Record at 299). She also objected to the use of the deferred adjudication for enhancement purposes on constitutional grounds. ( Id. at 312-13). Petitioner has not shown any other objections counsel could have made to the use of his prior deferred adjudication for enhancement purposes, nor that such objections would have been sustained under Texas law, thereby failing to rebut the presumption of counsel competence.
As noted supra, Petitioner has provided no evidence that his prior deferred adjudication was successfully discharged at the time of his trial, and, in fact, has provided statements to the contrary. "The Constitution does not require appellate counsel to raise every nonfrivolous ground that might be pressed on appeal." Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989). Instead, appellate counsel should winnow out "weaker arguments on appeal" and focus on "one central issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 3313 (1983). In light of the ruling by the Fifth Court of Appeals that Martinez would have had to fully complete his deferred adjudication for Scott v. State, 55 S.W.3d 593 to apply, it is apparent that he can make no showing that he would have prevailed on appeal with this argument. See, e.g., Briseno v. Cockrell, 274 F.3d 204, 207 (5th Cir. 2001).
Finally, Petitioner has made no showing that his appellate counsel did not have a license to practice law at the time of his appeal, and his allegations to the contrary are wholly conclusory. RECOMMENDATION:
Petitioner has failed to show that he is entitled to relief pursuant to 28 U.S.C. § 2254. Specifically, he has failed to establish that the decision of the Texas Court of Criminal Appeals constituted a decision which met the prerequisites of § 2254(d)(1) or (2). It is therefore recommended that the petition be denied on the merits.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.