Opinion
No. 2:01-CV-0454.
July 2, 2004
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner KURT WILLIAM MORRIS has filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging a state judgment of conviction or sentence. For the reasons hereinafter set forth, it is the opinion of the undersigned United States Magistrate Judge that the petition for a writ of habeas corpus should be denied.
I. PROCEDURAL HISTORY
On September 29, 1994, in Cause No. 34,281-C, petitioner was charged by indictment, in Potter County, Texas, with the 3rd degree felony offense of aggravated assault with a deadly weapon, said offense alleged to have been committed on August 20, 1994. On January 12, 1998, in the 251st Judicial District Court, petitioner entered a plea of guilty to the charge in the indictment and the trial court accepted his plea. Pursuant to a mutually agreed punishment recommendation, the trial court deferred adjudication of petitioner's guilt, and placed petitioner on two (2) years of deferred adjudication community supervision. Petitioner did not appeal the imposition of the deferred adjudication community supervision.
On September 30, 1999, the State submitted a Report of Probation Violation alleging, inter alia, that petitioner had admitted to the repeated use of cocaine while on deferred adjudication community supervision. On October 12, 1999, the State moved to proceed with adjudication of petitioner's guilt on the original charge based on the probation violations. On February 7, 2000, instead of adjudicating petitioner's guilt, the state trial court continued petitioner's probation, amending his conditions of probation to include treatment for drug abuse and extending the probationary period to three (3) years, to expire on January 12, 2003.
On March 14, 2000, the State submitted a second Report of Probation Violation alleging, inter alia, petitioner's continued drug use and failure to complete his treatment for drug abuse. The State again moved to proceed with adjudication of petitioner's guilt on the original charge but subsequently withdrew said motion on the condition that petitioner would successfully complete a drug treatment program.
On July 19, 2000, the State submitted a third Report of Probation Violation alleging, inter alia, new criminal charges against petitioner for possession of a controlled substance and possession of drug paraphernalia. On October 4, 2000, the state trial court adjudicated petitioner guilty of the original charge of aggravated assault with a deadly weapon as alleged in the indictment, and assessed his punishment at four (4) years imprisonment. See State v. Morris, Cause No. 34-281-C. Petitioner did not appeal the order adjudicating his guilt.
On June 19, 2001, petitioner filed an application for a state writ of habeas corpus. On August 15, 2001, the Texas Court of Criminal Appeals denied petitioner's application without written order on findings of the trial court without a hearing. In re Morris, Cause No. 49,875-01.
Petitioner verifies he placed the instant habeas application in the prison mail system on November 21, 2001, however, such application was not received and filed with a federal Court until December 19, 2001.
II. ALLEGATIONS
In the instant case, petitioner challenges the original 1998 proceeding where he entered a plea of guilty, adjudication of guilt was deferred, and petitioner was assessed a 2-year community supervision period. Petitioner appears to assert the following grounds:
1. Petitioner's original plea of guilty was involuntary because:
a. of the extended delay (41 months) between petitioner's arrest and his guilty plea;
b. of the inaction of his attorney in preparing petitioner's case; and
c. he was not informed of the critical elements of the crime with which he was charged or the parole eligibility requirements after a conviction of an aggravated offense.
2. Petitioner was denied effective assistance of counsel in the original proceeding because his attorney:
a. failed to inform him of his right to a speedy trial and the consequences of not asserting that right;
b. failed to insure that he was not unduly influenced to enter a plea of guilt;
c. failed to file a motion to dismiss the indictment for the speedy trial violation; and
d. failed to prepare for a trial on the charges against petitioner, i.e., failed to file any motions or take depositions or develop strategies of defense, instead inducing petitioner to accept the plea offer.
3. Petitioner was denied his Constitutional right to due process because he was on bond for forty-one months after his arrest in violation of his right to a speedy trial.
III. PROCEDURAL DEFAULT
The exhaustion doctrine set forth in 28 U.S.C. § 2254 requires that the state courts be given the initial opportunity to address and, if necessary, correct alleged deprivations of federal constitutional rights in state cases. Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 1059 (1989). If a claim is not presented to the State's highest court for consideration, then such a claim is not exhausted. Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985). The undersigned has reviewed the claims at issue brought in the instant federal habeas application, as well as the court records reflecting the underlying state habeas action, and find that claims 1(b) and (c) and 2(b) were not, in fact, presented to the state's highest court and, thus, are not exhausted. From a review of petitioner's state court records, it appears petitioner has not satisfactorily exhausted his available state court remedies with regard to these issues.The undersigned further finds petitioner would be precluded, by the Texas abuse of the writ doctrine, see Tex. Code Crim. Proc. Ann. art. 11.07 § 4, from asserting, in a successive habeas petition in Texas state court, claims 1(b) and (c) and 2(b) herein alleged. If a petitioner "fails to exhaust available state remedies and 'the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would find the claims procedurally barred'," then the claim is procedurally defaulted. Jones v. Jones, 163 F.3d 285, 296 (5th Cir. 1998) (quoting Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). In other words, when federal habeas claims "are 'technically' exhausted because, and only because, [petitioner] allowed his state law remedies to lapse without presenting his claims to the state courts . . .[,] there is no substantial difference between nonexhaustion and procedural default." Id. (quoting Magouirk v. Phillips, 144 F.3d 348, 358 (5th Cir. 1998)). Here, because petitioner failed to exhaust claims 1(b) and (c) and 2(b), said claims are procedurally defaulted.
The abuse of the writ rule can be an adequate and independent state ground foreclosing federal habeas review. Lowe v. Scott, 48 F.3d 873, 875 (5th Cir. 1995). Such a procedural rule that acts as a bar, however, must be "firmly established and regularly followed." Ford v. Georgia, 498 U.S. 411, 423, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). The Fifth Circuit Court of Appeals has determined that the Texas abuse of the writ doctrine has been strictly and regularly applied since 1994. Fuller v. Johnson, 158 F.3d 903, 905 (5th Cir. 1998); Emery v. Johnson, 139 F.3d 191, 195, 201 (5th Cir. 1997), cert. denied, 525 U.S. 969, 119 S.Ct. 418, 142 L.Ed.2d 339 (1998).
There is, however, a "cause and prejudice" exception to the bar for failure to exhaust. "When the ground upon which the petitioner relies for habeas relief was not exhausted in state court and state procedural rules would bar subsequent presentation of the argument," this Court will not consider petitioner's unexhausted claim absent 'cause' and 'prejudice.'" Beazley v. Johnson, 2001 WL 118393, *15 (5th Cir. 2001) (quoting Little v. Johnson, 162 F.3d 855, 859 (5th Cir. 1998), cert. denied, 526 U.S. 1118, 119 S.Ct. 1768, 143 L.Ed.2d 798 (1999)). Federal habeas relief will not be granted on a procedurally defaulted claim unless the petitioner can demonstrate both good cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Id. (citing Moawad v. Anderson, 143 F.3d 942, 947 (5th Cir.), cert. denied, 525 U.S. 952, 119 S.Ct. 383, 142 L.Ed.2d 316 (1998) (pre-AEDPA); Nobles, 127 F.3d at 423 n. 33 (post-AEDPA); Williams v. Cain, 125 F.3d 269, 276 (5th Cir. 1997), cert. denied, 525 U.S. 859, 119 S.Ct. 144, 142 L.Ed.2d 116 (1998) (post-AEDPA); cf. United States v. Flores, 135 F.3d 1000, 1006 n. 23 (5th Cir. 1998), cert. denied, 525 U.S. 1091, 119 S.Ct. 846, 142 L.Ed.2d 700 (1999) (post-AEDPA, section 2255)).
Petitioner has not argued, much less demonstrated, just cause for his failure to raise these claims in his state court proceeding. The undersigned finds no factors constituting just cause for petitioner's failure to raise these claims before the state's highest court. These claims were readily apparent at the time petitioner's state habeas application was filed and petitioner could have included such claims in said action. Because petitioner has failed to show sufficient cause for his state procedural default, a "prejudice" analysis is not necessary. The undersigned further finds that failure to consider the claims will not result in a fundamental miscarriage of justice. It is the opinion of the undersigned that petitioner's claims 1(b) and (c) and 2(b) have been procedurally defaulted as a result of petitioner's failure to exhaust at the state court level, and are not cognizable in federal habeas proceedings.
III. TIME BAR
In his answer, respondent argues the instant federal habeas application is time barred. The judges in the Northern District of Texas have differed on when a deferred adjudication probation becomes a final conviction for purposes of the one-year limitation period — i.e., whether it is the date on which a petitioner pleads guilty/nolo contendere and is placed on deferred adjudication probation, or the date his deferred adjudication probation is revoked and he is adjudicated guilty. See Daugherty v. Cockrell, 2003 WL 23193260, 3:01cv202-N (N.D. Tex., Dallas Div., Dec. 24, 2003) (Recommendation of Magistrate Judge Ramirez, filed on December 24, 2003, and adopted on February 12, 2004, summarizing the split among the judges in the Northern District). The Fifth Circuit Court of Appeals may resolve this issue in Foreman v. Director, No. 03-40527, which was heard on oral argument on June 10, 2004. Consequently, the undersigned does not recommend the instant petition be dismissed on the basis of any time bar until this issue has been determined by the Fifth Circuit Court of Appeals.
IV. MERITS OF PETITIONER'S ALLEGATIONS
Federal habeas corpus will not lie unless an error was so gross or a trial so fundamentally unfair that the petitioner's constitutional rights were violated. In determining whether an error was so extreme or a trial so fundamentally unfair, this Court must review the putative error at issue, looking at the totality of the circumstances surrounding the error for a violation of the petitioner's constitutional rights.
Petitioner initially contends his guilty plea was involuntary. A federal court will uphold a guilty plea challenged in a habeas corpus proceeding if the plea was knowing, voluntary and intelligent. Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir.), cert. denied, 474 U.S. 838, 106 S.Ct. 117, 88 L.Ed.2d 95 (1985). A guilty plea is only invalid if the defendant does not understand the nature of the constitutional protection that he is waiving or if he has such an incomplete understanding of the charges against him that his plea cannot stand as an admission of guilt. Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S.Ct. 2253, 2257 n. 13, 49 L.Ed.2d 108 (1976). The critical issue in determining whether a plea was voluntary and intelligent is "whether the defendant understood the nature and substance of the charges against him, and not necessarily whether he understood their technical legal effect." Taylor v. Whitley, 933 F.2d 325, 329 (5th Cir. 1991), cert. denied, 503 U.S. 988, 112 S.Ct. 1678, 118 L.Ed.2d 395 (1992). If the record shows the defendant "understood the charge and its consequences," this Court will uphold a guilty plea as voluntary even if the trial judge failed to explain the offense. Davis v. Butler, 825 F.2d 892, 893 (5th Cir. 1987).
Petitioner also contends his conviction was obtained in violation of his constitutional right to effective assistance of counsel. In order to amount to ineffective assistance of counsel, counsel's performance must have fallen below an objective standard of reasonableness as determined by the norms of the profession. Counsel's performance is reviewed from counsel's perspective at the time of trial, not from hindsight. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reviewing court's scrutiny of trial counsel's performance is highly differential, with a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Id.
The proper standard for judging a petitioner's contention that he is entitled to relief on the ground that his trial counsel rendered ineffective assistance is enunciated in Strickland Under the Strickland standard, a petitioner must show defense counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment to the United States Constitution.
A petitioner must also show counsel's deficient performance prejudiced the defense. To establish this prong, petitioner must show counsel's errors were so serious as to deprive petitioner of a fair trial. Specifically, as set forth in Creel v. Johnson, 162 F.3d 385 (5th Cir. 1998), to prove prejudice petitioner must show (1) there is a reasonable probability that, but for counsel's unprofessional errors, the ultimate result of the proceeding would have been different, see id. at 694, 104 S.Ct. at 2068, and (2) that counsel's deficient performance rendered the trial fundamentally unfair, see Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993). "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Id., 113 S.Ct. at 844. A showing of significant prejudice is required. Spriggs v. Collins, 993 F.2d 85, 88, n. 4. (5th Cir. 1993). Further, the court need not even consider the deficiency prong if no prejudice has been demonstrated.
A. Speedy Trial Issues: Voluntariness of Original Plea of Guilty and Effectiveness of Counsel
By ground 1.a., petitioner argues his guilty plea was involuntarily entered because of the extended delay (41 months) between petitioner's arrest and his guilty plea. Petitioner argues this delay, "by placing undue restraints upon his liberty, creating undue anxiety, and forcing [petitioner] to live under a cloud of suspicion," unduly influenced his decision to enter a plea of guilty to a recommendation of 2-years community supervision, with adjudication being deferred.
Petitioner was released on bond after his arrest and remained on bond prior to the guilty plea hearing.
By grounds 2.a. and 2.b., petitioner contends he was denied effective assistance of counsel because counsel failed to inform him of his right to a speedy trial and failed to insure the delay did not unduly influence petitioner's guilty plea.
Petitioner's state court attorney addressed these issues in an affidavit submitted during the state habeas proceeding. In that affidavit, petitioner's counsel states:
I did not request a speedy trial in this case since Mr. Morris and I both felt, after having reviewed all of the evidence against him and discussing speedy trial as opposed to delay, that it was in Mr. Morris's best interest to have the case delayed as long as possible. For that reason I did not file a motion for a speedy trial. It should also be noted that Mr. Morris relocated at least once, for occupational reasons, during my representation and was not in the Amarillo area for an extended period of time. When his case could not be postponed any longer, and the State of Texas was still offering a deal for five years or probation pursuant to a deferred adjudication, I told Mr. Morris I was fully prepared to try his case before a jury. Mr. Morris asked that I try to get a better deal, which I did. When the State's prosecutor offered to recommend a sentence of two years deferred adjudication and a $400.00 fine in exchange for Mr. Morris' plea of guilty, he was more than willing to accept the State's plea bargain offer and expressed to me that he was most grateful for my efforts on his behalf.
Petitioner has not argued, much less shown, that he did not understand the nature of the constitutional protections he was waiving by entering his guilty plea, or that he had such an incomplete understanding of the charges against him to the extent that his plea did not amount to an admission of guilt. Petitioner has not demonstrated he did not understand the nature and substance of the charges against him and, in fact, the record shows petitioner "understood the charge and its consequences." Moreover, petitioner's claim that the delay in bringing him to trial unduly influenced and, in fact, coerced his decision to plead guilty to a 2-year term of probation without an adjudication of guilt when petitioner was facing a sentence of up to 10 years imprisonment and a fine up to $10,000 is incredulous. Petitioner has not shown he did not participate in the decision to delay the proceedings as a matter of trial strategy due to the nature of the evidence against petitioner. More importantly, petitioner has not shown he would have insisted on a speedy trial instead of pleading guilty. Petitioner has not met his burden to show his guilty plea was not voluntary.
Petitioner also contends he was denied effective assistance of counsel with regard to the speedy trial issues by alleging counsel failed to inform him of his right to a speedy trial and failed to insure the delay did not unduly influence petitioner's guilty plea. In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court established a four-part balancing test for determining whether a defendant was denied of his constitutional rights to a speedy trial within the meaning of the Sixth Amendment. Under Barker, a court must consider: (1) the length of the delay; (2) whether the defendant asserted his right; (3) the reason for the delay; and (4) the prejudice to the defendant. See also Knox v. Johnson, 224 F.3d 470, 477 (5th Cir. 2000). As noted above, the delay appears to be attributable to petitioner, rather than to the State, as a matter of defense strategy. Moreover, petitioner did not ever assert his right to a speedy trial and demand to go to trial on the charges. It appears that any challenge to the aggravated assault charges on the basis of a denial of petitioner's right to a speedy trial would have been denied by the trial court as petitioner has failed to show how he was prejudiced by any delay. The undersigned does not find counsel was deficient in his representation of petitioner and, in fact, counsel obtained a very beneficial plea agreement for petitioner. Grounds 1.a., 2.a., and 2.b. should be DENIED.
B. Preparation for Trial: Effectiveness of Counsel
Petitioner also maintains his counsel was deficient because he failed to prepare for a trial on the charges against petitioner, i.e., failed to file any motions or take depositions or develop strategies of defense, and, instead, induced petitioner to accept the plea offer. Petitioner, however, has failed to identify which depositions counsel could or should have taken, what information would have been gleaned from such depositions, or how this information would have aided petitioner's defense. Further, and contrary to petitioner's allegation, trial counsel's affidavit submitted during state habeas proceedings states that counsel was fully prepared to try the case. Consequently, petitioner's allegations are conclusory, are insufficient to state a constitutional claim, and will not support federal habeas corpus relief. See Beazley v. Johnson, 242 F.3d 248, 270 (5th Cir. 2001). Petitioner has not shown his counsel was deficient in his representation of petitioner, nor has petitioner shown he was prejudiced due to any inaction on the part of his counsel. Again, petitioner received a very beneficial plea agreement due to counsel's efforts. Only after repeatedly violating the conditions of his community supervision and having his probation revoked has petitioner registered any complaint about his counsel. Petitioner's allegations of ineffective assistance of counsel are unmeritorious and should be DENIED.
C. Due Process Violations
Petitioner also contends he was denied his Constitutional right to due process because he was on bond for forty-one months after his arrest in violation of his right to a speedy trial. As noted above, any challenge to the aggravated assault charges on the basis of a speedy trial violation is without merit. Further, petitioner has not shown any prejudice as a result of the delay. Petitioner's allegation of a due process violation is without merit and should be DENIED.
V. RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the petition for a writ of habeas corpus filed by petitioner KURT WILLIAM MORRIS be DENIED.
VI. INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by certified mail, return receipt requested, and to respondent by the most efficient means available.Any party may file objections to this Report and Recommendation within fourteen (14) days after its date of filing. 28 U.S.C. § 636(b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts. See Fed.R.Civ.P. 5(b); 6(e). Any such objections shall be made in the form of a written pleading entitled "Objections to Report and Recommendation" and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, setting out fully the basis for each objection. Petitioner shall file the written objections with the United States District Clerk and serve a copy of such objections to all other parties. Petitioner's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in the original Report and Recommendation shall bar him, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.