Opinion
No. 3:01-CV-1041-M
July 31, 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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties: Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
C. Factual and Procedural History: In 1997, the State indicted petitioner for aggravated assault with a deadly weapon. TR at 2 (Indictment). The indictment also contained two enhancement paragraphs based on two prior felonies committed by petitioner, a 1974 conviction for murder without malice and a 1962 conviction in Crosby County for driving a vehicle without the owner's consent. Id. at 4.
"TR" refers to the trial record in Cause No. F97-02432-TN.
The complainant in the instant aggravated assault case was the petitioner's estranged wife, who testified at trial that petitioner shot her while she was trying to unlock the door to her place of employment. Reporter's Record, Volume II at 91-95 [hereinafter cited as RR-volume #, at page]. Two eyewitnesses also testified to the shooting, and one of them identified petitioner as the shooter. Id. at 13, 55-56, 62. The complainant's mother testified that petitioner called her the morning of the shooting and told her "you better go see about your daughter because I might have killed her." Id. at 133-35. A police officer testified that petitioner informed him where he discarded the weapon. Id. at 178. The officer further testified that petitioner told him: "I knew that something like this was going to happen. . . . I started carrying a gun when I found out that she was . . . messing around on me. . . . I've been out to the pistol range . . . practicing with it." Id. at 181.
On July 30, 1998, a jury found petitioner guilty of aggravated assault, found the two enhancement paragraphs true, and assessed punishment at life imprisonment. TR at 40 (Judgment). On November 19, 1999, the court of appeals affirmed petitioner's conviction. See Staley v. State, No. 06-99-00281-CR, 1999 WL 1044927, at *1 (Tex.App. — Texarkana Nov. 19, 1999, pet. refd). On November 8, 2000, the Texas Court of Criminal Appeals denied his state petition for writ of habeas corpus without written order. See Ex Parte Staley, No. 47,596-01, slip op. at 1 (Tex.Crim.App. Nov. 8, 2000).
Petitioner filed the instant federal writ of habeas corpus on May 29, 2001. ( See Pet. at 9.) Respondent filed an answer on September 26, 2001. ( See Answer at 1.) Petitioner thereafter filed a response with objections to the answer. (See Petitioner's Resp. (hereinafter Reply).) D. Substantive Issues: Petitioner claims he is being held unlawfully because (1) his trial attorney rendered ineffective assistance and (2) his sentence was wrongly enhanced by the 1962 conviction for driving a vehicle without the owner's consent. ( See Pet. at 7.)
E. Exhaustion: Respondent concedes that petitioner has sufficiently exhausted his state remedies. ( See Answer at 5.)
III. APPLICABLE LAW
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA or the Act), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date, which is the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after the effective date of the AEDPA, the Act applies to his petition.
Title I of the AEDPA substantially changed the way federal courts handle habeas corpus actions. Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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 proceeding.
"In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).
Subparagraph (1) concerns pure questions of law and mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.), cert. denied, 534 U.S. 885 (2001). A decision is contrary to clearly established Federal law, within the meaning of § 2254(d)(1), "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). With respect to the "unreasonable application" standard, Williams instructs that a writ must issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." 529 U.S. at 413; see also, Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." 529 U.S. at 407. "[A] federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; see also, Penry, 532 U.S. at 793.
Subparagraph (2) of § 2254(d) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000). Under this subparagraph, federal courts "give deference to the state court's findings unless they were 'based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
In this case, petitioner raised his claims of ineffective assistance of counsel on direct appeal, and the court of appeals affirmed the conviction on the merits. See Staley v. State, No. 06-99-00281-CR, 1999 WL 1044927, at *2 (Tex.App.-Texarkana Nov. 19, 1999, pet. refd). He raised his claims relating to the enhancement of his sentence in his state petition for writ of habeas corpus. See S.H. Tr. at 4-10. The Texas Court of Criminal Appeals denied that writ without written order. See ExParte Staley, No. 47,596-01, slip op. at 1 (Tex.Crim.App. Nov. 8, 2000). In Texas jurisprudence, a "denial" signifies an adjudication on the merits whereas a "dismissal" signifies that the court declined to consider the claims on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997). Because the state court rejected the instant claims on the merits, the AEDPA standards enumerated in 28 U.S.C. § 2254 therefore apply in this case.
"S.H. Tr." refers to the state habeas record attached to Ex Parte Staley, No. 47,596-01, slip op. (Tex.Crim.App. Nov. 8, 2000).
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner first claims that his trial attorney rendered ineffective assistance by failing to properly conduct voir dire, failing to properly investigate his case, and failing to call certain witnesses. (Pet. at 7; Petitioner's Mem. of Law at 4, 11-13 [hereinafter Mem.].) Petitioner raised these claims on direct appeal, and the court of appeals found no ineffective assistance of counsel after applying the well-established standard for analyzing claims of ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Staley v. State, No. 06-99-00281-CR, 1999 WL 1044927, at *2-3 (Tex.App.-Texarkana Nov. 19, 1999, pet. ref'd).
The state disposition of the ineffective assistance claims raised by petitioner appears consistent with existing precedent of the United States Supreme Court. To successfully state a claim of ineffective assistance of counsel under Supreme Court precedent, petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland, 466 U.S. at 687. A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. Id. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000).
To determine whether counsel's performance is constitutionally deficient courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. Further, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691.
To establish prejudice, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The prejudice component of the Strickland test "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Williams v. Taylor, 529 U.S. 362, 393 n. 17 (2000) (citations and internal quotation marks omitted). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96.
Petitioners must "affirmatively prove prejudice." Id. at 693. They cannot satisfy the second prong of Strickland with mere speculation and conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Conclusory allegations, furthermore, are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
A. Failure to Properly Conduct Voir Dire
Petitioner complains that his attorney failed to properly conduct voir dire. (Mem. at 11-12.) He asserts that his attorney could have planted the issue of mitigation or justification into the minds of the jurors through proper voir dire. ( Id. at 11.) He further asserts that the record shows that at least one prospective juror indicated he could not give a two-year sentence in an aggravated assault case involving a gun, so his attorney should have individually talked to the jurors to determine whether the jurors were biased. ( Id. at 12.)
Petitioner is entitled to no habeas relief on this claim under Strickland. As stated above, petitioner must "affirmatively prove prejudice." See 466 U.S. at 693. In the sentencing context, to establish prejudice in a non-capital case, the petitioner must show there is a reasonable probability that his sentence would have been significantly less harsh absent counsel's errors. See Glover v. United States, 531 U.S. 198, 200 (2001) (holding "that if an increased prison term did flow from an error [of counsel] the petitioner has established Strickland prejudice"); United States v. Segler, 37 F.3d 1131, 1136 (5th Cir. 1994). In this case, petitioner has demonstrated no prejudice in the way his attorney conducted voir dire. He has shown no reasonable probability that the alleged errors of counsel during voir dire affected the sentence imposed by the jury. He has provided nothing that undermines confidence in the sentence. Consequently, this claim fails under Strickland. B. Failure to Investigate Case and Call Witnesses to Testify at Trial
Petitioner also argues that his trial attorney rendered ineffective assistance by failing to properly investigate the case and "pursue witnesses crucial to the development of potentially mitigating evidence." (Mem. at 4.) He identifies three witnesses that counsel failed to call to testify at trial who "could have made a difference" in his case: (1) an unnamed taxi driver who identified another man as a potential suspect in the shooting; (2) Officer Wesley, a police officer who interviewed the taxi driver; and (3) Detective Everett, a detective who interviewed petitioner and took his statement that the complainant "had been messing around on me, we had been separated 4 or 5 weeks, I went to my wife's job to reconcile, and I saw her kissing that guy and I lost my head." ( Id. at 7-8.) Petitioner argues that the statement given to Detective Everett presents a heat-of-passion defense and could have reduced the punishment imposed. ( Id. at 8.) He further argues that counsel might have "generated some sympathy for petitioner in the punishment phase, and maybe persuaded the jury that petitioner had gone to the beauty shop that morning to reconcile." ( Id. at 9.)
A failure to investigate the basis of a mitigation defense can amount to ineffective assistance of counsel. See, e.g., Williams v. Taylor, 529 U.S. 362, 390 (2000). A "failure to develop . . . mitigating background evidence is not[, however,] per se deficient performance." Moore v. Johnson, 194 F.3d 586, 615 (5th Cir. 1999). The merits of such claim "are squarely governed" by Strickland. Williams, 529 U.S. at 390.
Under Strickland, petitioner is entitled to no habeas relief on this claim. He has demonstrated no prejudice due to any lack of investigation, inadequate preparation for trial, or failure to call fact witnesses. "Complaints of uncalled witnesses are not favored in federal habeas corpus review because allegations of what a witness would have testified are largely speculative. Where the only evidence of a missing witnesses' testimony is from the defendant, this Court views claims of ineffective assistance with great caution." Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir. 2001) (citations omitted). Unless a petitioner provides the court "with affidavits (or similar matter)" from the alleged favorable witnesses "suggesting what they would have testified to," claims of ineffective assistance of counsel fail for lack of prejudice. Id. at 636.
In this instance, petitioner provides no affidavit or similar matter with respect to the testimony that would have been given by the taxi driver or the officer that interviewed such driver. Consequently, under Sayre, the claims relating to the failure to call these witnesses fail for lack of prejudice. Further, the potential testimony of these witnesses (as set forth by petitioner) would at best point to a different suspect in the shooting. However, the evidence at trial overwhelmingly shows that petitioner was the shooter. Thus, testimony that someone else might have been the shooter provides no reasonable probability of a different outcome at trial.
With respect to potential testimony from Detective Everett, petitioner provides a State-generated document to show what that testimony would have been. See TR at 20 (Notice of Def.'s Oral Statements). Nevertheless, in view of the overwhelming evidence showing that petitioner intentionally shot the complainant, in conjunction with petitioner's own statements that show premeditation rather than a heat-of-passion shooting, testimony from Detective Everett as to what petitioner told him, would have created no reasonable probability of a different outcome at trial. He has thus shown no prejudice from the failure to call Detective Everett at trial.
See RR-II at 91-95 (testimony of complainant); 13, 55-56, 62 (testimony of two other eyewitnesses); 133-35 (testimony of complainant's mother that petitioner told her "you better go see about your daughter because I might have killed her"); 178, 181 (testimony from police officer regarding statements made by petitioner as to where he discarded the weapon and that he "knew that something like this was going to happen", that he "started carrying a gun when [he] found out that she was . . . messing around on [him and that he had] been out to the pistol range . . . practicing with it").
In short, the petitioner's "conclusory speculation about the effect" of the alleged favorable witnesses' testimony "falls far short" of demonstrating prejudice. Sayre, 238 F.3d at 636.
C. Failure to Call Witnesses During Punishment
Petitioner also claims that the failure of his attorney to call any witnesses at punishment constitutes ineffective assistance of counsel. (Mem. at 13.) He points to his "several children" and "maintained employment," arguing that "Surely, had he tried, defense counsel could have [come] up with someone to testify about the good qualities of petitioner's character." ( Id.)
Petitioner has failed to show prejudice from the alleged deficiency of counsel in this regard as well. To show prejudice in the sentencing context, he must affirmatively demonstrate that the failure to call the character witnesses created a reasonable probability that his sentence would have been less harsh. See Glover v. United States, 531 U.S. 198, 200 (2001); United States v. Segler, 37 F.3d 1131, 1136 (5th Cir. 1994). Petitioner has not shown which specific character witnesses were not called or what they would have stated on examination that would have reduced the imposed sentence. To establish prejudice from errors that allegedly occurred during sentencing, a petitioner must "show the existence of evidence of sufficient quality and force to raise a reasonable probability that, had it been presented to the jury" he would have received a significantly less harsh sentence. See Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992). Petitioner here has not made such a showing. He has provided nothing from which the Court can find a reasonable probability that his sentence would have been less harsh in the absence of the alleged errors of counsel. Conclusory allegations are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990). Petitioner presents nothing to undermine confidence in the sentence imposed.
III. UNCONSTITUTIONAL ENHANCEMENT
Petitioner further argues that the sentence on his 1998 aggravated assault conviction was wrongly enhanced by a 1962 conviction in Crosby County for driving a motor vehicle without the owner's consent. (Pet. at 7; Mem. at 14.) He contends that the prior conviction is void because his guilty plea in that case fails to comply with TEX. CODE CRIM. PROC. ANN. art. 1.15 in that there is no "writing" that demonstrates that he waived his right to trial by jury, and that there is no evidence to support the guilty plea. (Mem. at 15.) Petitioner also claims that his prior conviction is constitutionally infirm because he had no meaningful assistance from counsel. ( Id. at 15-16.) He claims that although he had appointed counsel, he was nevertheless "constructively denied" counsel like the petitioner in Childress v. Johnson, 103 F.3d 1221 (5th Cir. 1997) because his attorney's only duty was to help him waive his right to a jury trial. ( See id. at 13-20.)
Counsel never discuss [ed] with petitioner what occurred surrounding his arrest and indictment of driving a motor vehicle without the owner's consent or whether the plea was voluntary or, was it forced upon him through coercion and duress. Petitioner's appointed counsel did no further investigative work to determine if petitioner in fact, was guilty, and did he understand the consequences of his guilty plea or, that sentence could be suspended and petitioner placed on probation. Petitioner did not know he could have counsel petition the court to suspend his sentence and request application for probation nor that he could appeal court's judgment.
( Id.) Petitioner states that he "never communicated before trial with his court appointed attorney except to discuss his waiver of jury trial, and 10 days to prepare for trial." ( Id. at 16.) He asserts that his attorney told him that "he was being appointed for the sole purpose of explaining waiver and that was his total involvement." ( Id.) A. Jurisdiction
Respondent argues that this Court lacks subject matter jurisdiction over the challenges to petitioner's 1962 enhancement conviction. (Answer at 15-17.) She contends that petitioner is no longer in custody on the 1962 conviction, and thus, under Lackawanna County District Attorney v. Coss, 532 U.S. 394, 401-02 (2001) and Maleng v. Cook, 490 U.S. 488, 493-94 (1989), this Court lacks jurisdiction. ( Id. at 15-16.) She asserts that Coss dictates dismissal of the challenges to the 1962 conviction "because that sentence has fully expired and the record reflects and the state court found that Staley was represented by counsel." ( Id. at 17.)
Federal district courts have jurisdiction to entertain petitions for writs of habeas corpus only from persons who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. One satisfies the "in custody" requirement when the challenged conviction has not fully expired when the petitioner files his or her petition under § 2254. See Carafas v. Lavallee, 391 U.S. 234, 238 (1968). One is not "in custody" for a particular conviction, however, when he or she "suffers no present restraint" from the challenged conviction. Maleng v. Cook, 490 U.S. 488, 492 (1989). "[O]nce the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual 'in custody' for the purposes of a habeas attack upon it." Id.
That petitioner is no longer in physical custody pursuant to his 1962 conviction is immaterial to jurisdiction in this instance. Petitioner specifically challenges the sentence imposed in his 1998 conviction, for which he remains in custody, as enhanced by his 1962 conviction. In Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 401-02 (2001), the Supreme Court found that where a petitioner challenges a sentence as enhanced by an allegedly invalid prior conviction, the "in custody" requirement for federal habeas jurisdiction is satisfied. See also Maleng, 490 U.S. at 493-94; Dilworth v. Johnson, 215 F.3d 497, 500 (5th Cir. 2000); Herbst v. Scott, 42 F.3d 902, 905 (5th Cir. 1995). Thus, notwithstanding the expiration of his 1962 sentence, this Court has jurisdiction over petitioner's challenge to his 1998 sentence as enhanced by his 1962 conviction.
B. Scope of Challenge to Enhancement Conviction
While Coss specifically permits petitioner to attack the validity of his current sentence on the basis that it was enhanced by the allegedly invalid prior 1962 conviction, Coss also sets the parameters for challenging the prior conviction. In Coss, the Supreme Court specifically addressed "the extent to which the [prior expired] conviction itself may be subject to challenge in the attack upon the [current] senten[ce] which it was used to enhance." 532 U.S. at 402 (quoting Maleng, 490 U.S. at 494). The Supreme Court extended the holding in Daniels v. United States, 532 U.S. 374 (2001), which was decided in the context of a motion to vacate filed under 28 U.S.C. § 2255, "to cover § 2254 petitions directed at enhanced state sentences." Coss, 532 U.S. at 402. In Daniels the Court held that
[i]f . . . a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant is without recourse . . . [and] may not collaterally attack his prior conviction through a motion under § 2255.Daniels, 532 U.S. at 382. When a prior conviction that has been used to enhance a state sentence is no longer open to direct or collateral attack, the prior conviction "may be regarded as conclusively valid." Coss, 532 U.S. at 403.
No one contests that petitioner's 1962 conviction is now closed to direct or collateral attack. As a general rule, this Court may therefore regard it as conclusively valid. See id. However, the general rule is not without exception. See id. at 404-05. When the enhancement conviction "was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment," as set forth in Gideon v. Wainwright, 372 U.S. 335 (1963), such conviction may be attacked whether or not that prior conviction remains open to direct or collateral attack. Coss, 532 U.S. at 404. This exception appears facially inapplicable in the instant case because the state record shows that petitioner was represented by appointed counsel in his 1962 case. See RR-III, attached as part of State's Ex. 21 (Judgment entered in 1962 conviction which states: "the Defendant GEORGE STALEY appeared in person, his counsel being present, L.A. Wicks, Jr.").
C. Constructive Denial of Counsel
Despite the appointment of counsel shown in the state court records, petitioner relies upon Childress v. Johnson, 103 F.3d 1221 (5th Cir. 1997) for his claims that he was "constructively denied counsel" during his 1962 conviction, and that such denial makes the enhancement of his 1998 sentence unconstitutional. ( See Mem. at 13-20.) In Childress, the Fifth Circuit combined the Gideon concept that a sentence cannot be enhanced by a prior conviction in which the defendant had no appointed counsel with the concept set forth in United States v. Cronic, 466 U.S. 648 (1984) that a defendant might be constructively denied counsel although an attorney had been appointed. See Childress, 103 F.3d at 1222-32. It recognized the long-standing principle that "the performance of counsel may be so inadequate" as to constitute no assistance of counsel at all, despite the physical presence of an attorney. Id. at 1228 (quoting Cronic, 466 U.S. at 654 n. 11). It found that "[t]he state court's factual findings . . . based upon the uncontroverted and unimpeached defense testimony, support the conclusion that Childress was aided, if at all, by standby counsel rather than full-fledged defense counsel." Id. at 1231. Consequently, it held that Childress's then current sentence could not be enhanced "based upon convictions secured a half-century ago in violation of his right to counsel." Id.
In certain circumstances, the combination of Cronic and Gideon compel the courts to find that a criminal sentence cannot be enhanced by a conviction in which the defendant was constructively denied his constitutional right to the assistance of counsel. See Childress, 103 F.3d at 1231-32. However, the instant case is distinguishable from Childress in several material respects. Childress dealt with appointment-of-counsel practices in Harris County in 1946 and 1948. Id. at 1222-23. The state court "accepted as true" testimony from Childress and corroborating testimony from an attorney who practiced in Harris County during the relevant time period regarding those practices. Id. at 1223. The state court made the following specific fact findings, which the Fifth Circuit found particularly cogent:
generally, prosecutors in non-capital cases engaged in plea discussions with defendants who were not represented by counsel. Plea bargains were typically reached on the day of the plea hearing. At the hearing itself, court-appointed counsel "would stand in and basically determine whether or not the defendant wanted to withdraw from the plea" agreement. Assigned counsel waived the defendants' right to jury trial and remained in the courtroom while the plea was taken. As the state court remarked from the bench, "[T]hat was the extent of the 'right to counsel' quote, unquote, that was occurring in 1946 through 1948 from all indications."Id. at 1226, 1231-32. In its holding, the Childress court emphasized that it was "not expanding the reach of the constructive denial of counsel doctrine." Id. at 1231. Rather, it noted:
Our holding is rooted in the unusual circumstances of this case, particularly the long-since abandoned state procedure of appointing counsel solely to waive the defendant's right to jury trial, together with the state court's determination that counsel infact did nothing to represent appellant's interests. When defense counsel is appointed solely to execute the defendant's waiver of jury trial, and when the evidence establishes that counsel performed no other service for the defendant, it cannot be said that the defendant received the assistance of counsel for his defense.See id. at 1231-32 (emphasis added).
The state-court findings upon which the Childress decision largely rests have no parallel in the instant case. Here, the relevant appointment of counsel occurred in Crosby County in 1962. The state courts have not taken, let alone credited or accepted, testimony regarding the appointment practices in that county during the relevant time period. Further, no state court has made any specific finding of fact with respect to the relevant appointment practices in 1962.
The record in the instant case shows that counsel was appointed "to represent" petitioner in his 1962 case for at least a one-day period. ( See Order Appointing Attorney, attached to Mem.) It also shows that petitioner alone signed the written waiver of trial by jury. ( See Application to Waive Trial by Jury, attached to Mem.) It further shows that counsel joined petitioner in signing a waiver of time for preparation. ( See Waiver of Defendant of Time for Preparation by Appointed Counsel, attached to Mem.) The Judgment entered in the 1962 case also reflects the presence of appointed counsel. See RR-III, attached as part of State's Ex. 21 (Judgment entered in 1962).
Petitioner claims that the state record reflects that counsel represented him for only one day. (Mem. at 16.) However, the state record is unclear in that it states that the "Attorney will expend 2 day(s) in representing the Defendant" but the "(s)" has a large "X" through it. ( See Order Appointing Attorney, attached to Mem.) As it makes no difference to the determination of this action, the Court will proceed as though counsel in the 1962 case represented petitioner only on the day petitioner pled guilty.
Petitioner argues that these documents clearly show that his appointed attorney's only duty was to assist him to waive his right to a jury trial. ( See Mem. at 17.) While the state documents reflect that counsel indeed assisted petitioner when he pled guilty and waived his right to a jury trial in 1962, the Court disagrees that the documents provide sufficient proof that petitioner was constructively denied counsel. The documents certainly do not equate to the "uncontroverted and unimpeached" testimony that the state court credited in Childress. Nothing of record in this case definitively indicates that appointed counsel did not represent petitioner's interests in 1962. This is not a case like Childress where the state courts found that counsel did nothing to represent the defendant's interests. This Court has no factual findings by the state court upon which to find that petitioner was constructively denied the assistance of counsel. It simply has petitioner's unsupported contentions and allegations that his guilty plea was uncounseled and uninformed, and that he was constructively denied counsel in 1962. Petitioner cannot rely solely upon his unsupported allegations and the findings in Childress to support a finding that he was constructively denied counsel in a different Texas county some 14 to 16 years after Childress was constructively denied counsel through the appointment practices in 1946 and 1948.
Petitioner has submitted no affidavit either from himself or a disinterested third party which supports his contention that he was constructively denied counsel in 1962. He has the burden to show that he was constructively denied counsel. See Childress, 103 F.3d at 1228, 1231-32. A conclusory allegation of constructive denial of counsel does not entitle a petitioner to habeas relief. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (holding that conclusory allegations are insufficient to obtain habeas relief). Petitioner has not shown that he was constructively denied counsel. Consequently, petitioner has not shown himself to fall within any exception to the general rule that the Court may regard the 1962 conviction conclusively valid. The established exception to the conclusive validity of the prior conviction has no apparent applicability here.
Furthermore, when prior convictions are collaterally attacked, the judgments reflecting those convictions are presumed to be regular, and the accused bears the burden of defeating that presumption. Sones v. Hargett, 61 F.3d 410, 421 n. 19 (5th Cir. 1995) (citing Parke v. Raley, 506 U.S. 20, 29 (1992)). Petitioner's bare allegation that he was not represented by counsel when he pled guilty in 1962 is insufficient to overcome the presumption of regularity. Such allegation, moreover, is unsupported by the record. See RR-III, attached as part of State's Ex. 21 (Judgment entered in 1962 conviction which shows that petitioner was represented by counsel). Petitioner has not overcome the presumption of regularity.
In addition, the disposition of the state-court habeas petition on the enhancement issue appears consistent with existing precedent of the United States Supreme Court. In Parke v. Raley, 506 U.S. 20 (1992) the Supreme Court recognized a "'presumption of regularity' that attaches to final judgments, even when the question is waiver of constitutional rights." Id. at 29. It held that state courts may properly "presum[e], at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained." Id. at 30. It further held that "the presumption of regularity that attaches to final judgments makes it appropriate to assign a proof burden to the defendant." Id. at 31. The Texas procedure for determining a prior conviction's validity places the burden on the person challenging the conviction. See West v. State, 720 S.W.2d 511, 519 (Tex.Crim.App. 1986) ( en banc). Texas, like the Supreme Court, recognizes a presumption of regularity for judgments and proceedings relating to the voluntariness of guilty pleas. See Lee v. State, 39 S.W.3d 373, 375 (Tex.App.-Houston [1st Dist.] 2001, no pet. h.).
In this instance, the decision to deny petitioner's state writ is consistent with Supreme Court precedent. The decision involved no unreasonable application of such precedent. The adjudication of the claim did not result in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented to the state court. Petitioner has not overcome the presumption of regularity that is accorded the judgment of the challenged 1962 conviction. The copy of the final judgment clearly reflects that petitioner had a prior felony conviction in 1962. It shows that he was represented by counsel on that conviction. No facial impropriety appears from the use of the prior conviction to enhance the sentence currently under attack. Petitioner has not shown that he was constructively denied counsel in 1962.
For all of these reasons, the Court should find the 1962 conviction conclusively valid under Coss. As such, the use of that conviction to enhance petitioner's 1998 sentence provides petitioner no basis for habeas relief.
IV. EVIDENTIARY HEARING
Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary. In addition, 28 U.S.C. § 2254(e)(2) of the AEDPA precludes such a hearing under the facts of this case. That section provides:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2) (emphasis added).
"Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 432 (2000). In this instance, petitioner did not diligently develop the factual basis for his claims relating to the enhancement of his 1998 sentence by his 1962 conviction. His attempt to develop the factual basis of such claims consists solely of filing a state writ of habeas corpus. See S.H. Tr. at 1-43. The state habeas record shows nothing else filed in state court with respect to the enhancement claims of petitioner. Nothing indicates that petitioner even sought an evidentiary hearing in state court on the claim. Consequently, he has shown no due diligence and thus must satisfy subparagraphs (A) and (B) to escape the prohibition of § 2254(e)(2). See Riddle v. Cockrell, 288 F.3d 713, 719 (5th Cir.) (holding that a failure to request an evidentiary hearing in state court on the claim precludes an evidentiary hearing at the federal level), cert. denied, 123 So. Ct. 420 (2002); Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000) (holding that "[m]ere requests for evidentiary hearings will not suffice; the petitioner must be diligent in pursuing the factual development of his claim").
Petitioner suggests that the state court failed to develop the record as shown by the findings entered by the 195th Judicial District Court of Dallas County on his state habeas action. (Reply at 5-6.) Those findings, however, do not show that petitioner sought an evidentiary hearing on his claims. S.H. Tr. at 26-29. They do not show any efforts to develop the factual basis for his claims other than filing the state writ. See id. Petitioner also suggests that he requested that his original state writ be forwarded to the proper state court for consideration. ( See Reply at 5-6.) Such request does not absolve him of the failure to develop the factual basis for his claims at the state level. The fault for such failure still lies with petitioner.
Petitioner has not shown that his enhancement claims rely on any new rule of constitutional law or that he could not have previously discovered the factual predicate of such claims through the exercise of due diligence. At the time of his guilty plea in 1962, petitioner would have known the factual predicate for his enhancement claims. Because petitioner has failed to diligently develop the factual basis for his enhancement claims at the state level and because he has failed to satisfy § 2254(e)(2)(A), the Court is precluded from holding an evidentiary hearing.
V. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).