Washington v. Dretke

Full title: ALONZO RICARDO WASHINGTON, PETITIONER, v. DOUGLAS DRETKE, DIRECTOR, TEXAS…

Court: United States District Court, N.D. Texas, Fort Worth Division

Date published: Dec 28, 2004

Civil Action No. 4:04-CV-0570-Y (N.D. Tex. Dec. 28, 2004)

Opinion

Civil Action No. 4:04-CV-0570-Y.

December 28, 2004

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER

CHARLES BLEIL, Magistrate Judge

This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:

I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE

This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.

B. PARTIES

Petitioner Alonzo Ricardo Washington, TDCJ-ID #1093348, is a state prisoner in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Huntsville, Texas.

Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.

C. FACTUAL AND PROCEDURAL HISTORY

In 2000, Washington was charged by indictment with delivery of cocaine in the amount of one gram or more but less than four grams in the 29^th Judicial District Court of Palo Pinto County, Texas. (2State Habeas R. at 29.)¹ The indictment also included an enhancement paragraph alleging a prior conviction for burglary of a habitation. ( Id.) On March 19, 2002, Washington pled guilty to the offense, and true to the enhancement paragraph, and a jury found him guilty and assessed his punishment at sixty years' confinement. ( Id. at 30.) Washington appealed the trial court's judgment, however the Eleventh Court of Appeals dismissed the appeal after the trial court granted Washington's motion for new trial. ( Id. at 33.) Washington v. Texas, No. 11-02-119-CR, slip op., 2002 WL 32344581 (Tex.App.-Eastland May 30, 2002). On July 11, 2002, pursuant to a plea bargain agreement, Washington pled guilty to the offense and true to the enhancement paragraph before the trial court. ( Id. at 41.) The trial court admonished Washington regarding his rights and waivers, accepted his plea, found him guilty of the offense and true to the enhancement paragraph, and assessed his punishment at thirty years' confinement in accordance with the plea agreement. ( Id. at 34-42.) Washington again appealed the trial court's judgment, however the appellate court dismissed the appeal for want of jurisdiction pursuant to Texas. Rule of Appellate Procedure 25.2(b)(3). Washington v. Texas, No. 11-02-257-CR, slip op. (Tex.App.-Eastland, January 16, 2003). The appellate court overruled Washington's motion for rehearing on March 3, 2003. Washington did not seek further direct review. (Petition at 3.)

Washington has filed two state applications for writ of habeas corpus raising one or more of the claims raised herein. The first was dismissed by the Texas Court of Criminal Appeals on June 18, 2003 on the grounds that Washington's direct appeal remained pending. Ex parte Washington, Application No. 55,896-01, at cover. The second was denied without written order on March 17, 2004. Ex parte Washington, Application No. 55,896-02, at cover. Washington filed this federal petition for writ of habeas corpus on July 30, 2004. See Spotville v. Cain, 149 F.3d 374, 377 (5^th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).

D. ISSUES

Washington raises the following grounds for relief: (1) his trial counsel breached his duty to Washington by rendering ineffective assistance in various respects and engaging in constructive fraud; (2) his right to appeal was waived prior to trial against his wishes in violation of due process; and, (3) his plea was not intelligently entered because the second trial was pre-arranged by his counsel and the state and because he was not informed of the particulars regarding available defenses, the probability of success at the second trial, and the fact that there was no evidence to convict him on the charged offense. (Petition at 7; Pet'r Brief, Section B, Argument of the Grounds at 1-10.)

E. RULE 5 STATEMENT

Dretke believes that one or more of Washington's claims are unexhausted and, thus, procedurally defaulted. (Resp't Supp. Answer at 5-8.) Applicants seeking habeas corpus 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 (5^th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest court of the state. O'Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999); Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5^th Cir. 1982). For purposes of exhaustion, the Texas Court of Criminal Appeals is the highest court in the state. Richardson v. Procunier, 762 F.2d 429, 431 (5^th Cir. 1985). Thus, a Texas prisoner may satisfy the exhaustion requirement by presenting both the factual and legal substance of his claims to the Texas Court of Criminal Appeals in either a petition for discretionary review or a state habeas corpus proceeding pursuant to article 11.07 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2004).

Washington did not file a petition for discretionary review; thus, in order for him to exhaust his claims, it was necessary that he raise the claims in the Texas Court of Criminal Appeals by way of writ of habeas corpus under article 11.07. Upon review of his first state habeas application, it appears Washington did raise one or more of the claims presented, however the application was dismissed by the Texas Court of Criminal Appeals on the ground that his direct appeal remained pending at the time. (1State Habeas R. at 6-7, 10-13.) Under these circumstances, the dismissal by the Court of Criminal Appeals was procedural, as opposed to substantive, and signifies that the state court did not consider the merits of Washington's claims raised therein. See Neal v. Puckett, 286 F.3d 230, 235 (5^th Cir. 2002), cert. denied, 537 U.S. 1104 (2003).

Upon review of his second state habeas application, it appears Washington raised only the issue of ineffective assistance to the extent he complained counsel filed a motion to dismiss his first pro se appeal without consulting him in violation of rule 42.2 of the Texas Rules of Appellate Procedure, thus foreclosing appeal of his unlawful sixty-year sentence that he would have otherwise taken. (2State Habeas R. at 21-22.) Washington did not raise his remaining ineffective assistance claims under ground one nor did he raise the claims presented in grounds two and three. ( Id. at 6-7, 19-22.) Accordingly, those claims are unexhausted for purposes of federal habeas review.

Assuming the unexhausted claims could have been raised on collateral review, under the Texas abuse-of-the-writ doctrine, Washington cannot now return to the state courts for purposes of exhausting the unexhausted claims. The Texas abuse-of-the-writ doctrine prohibits a successive state habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in an earlier habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5^th Cir. 1997); Nobles v. Johnson, 127 F.3d 409, 423 (5^th Cir. 1997). To overcome the procedural bar established by the abuse-of-the-writ doctrine, a petitioner must 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. Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Smith v. Johnson, 216 F.3d 521, 524 (5^th Cir. 2000).

Washington has neither alleged nor demonstrated cause and prejudice and essentially concedes that this cause has now been narrowed to one ground. (Pet'r Reply to Resp't Supp. Answer at 8-A.) The second exception is inapplicable as Washington twice pled guilty to committing the offense as charged in the indictment. See Glover v. Hargett, 56 F.3d 682, 684 (5^th Cir. 1995). Consequently, Washington's ineffective assistance claims under his first ground and his second and third grounds not previously exhausted are procedurally barred from federal habeas review.

F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief

Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court 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 as determined by the Supreme Court, 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 Supreme Court of the United States 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 (5^th Cir. 2000). A state court decision will be an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.

Further, federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. 28 U.S.C. § 2254(e)(1). Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 225(d)(2), (e); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); Williams, 529 U.S. at 399. This presumption of correctness applies to both explicit findings of fact and those findings of fact implicit in the state court's mixed law and fact conclusions. Valdez v. Cockrell, 274, F.3d 941, 948 n. 11 (5^th Cir. 2001), cert. denied, 537 U.S. 883 (2002). The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Typically, when the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written opinion, as here, it is an adjudication on the merits, which is entitled to this presumption. Neal, 286 F.3d at 235; Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997). Under these circumstances, a federal court may assume that the state court applied correct standards of federal law to the facts, unless there is evidence that an incorrect standard was applied, and imply fact findings consistent with the state court's disposition. Townsend v. Sain, 372 U.S. 293, 314 (1963);² Catalan v. Cockrell, 315 F.3d 491, 493 n. 3 (5^th Cir. 2002); Valdez, 274 F.3d at 948 n. 11; Goodwin v. Johnson, 132 F.3d 162, 183 (5^th Cir. 1997).

2 The standards of Townsend v. Sain have been incorporated into 28 U.S.C. § 2254(d). Harris v. Oliver, 645 F.2d 327, 330 n. 2 (5^th Cir. 1981).

2. Ineffective Assistance of Counsel

Washington contends his trial counsel, Kenneth N. Tarlton, was ineffective by signing and filing a motion to dismiss his first pro se appeal without his knowledge, consent, or signature as required by Texas Rule of Appellate Procedure 42.2(a). (Pet'r Reply to Resp't Supp. Answer at 9.)

A criminal defendant has a constitutional right to the effective assistance of counsel at trial and on a first appeal as of right. U.S. CONST. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984); Anders v. California, 386 U.S. 738, 744 (1967). An ineffective assistance claim is governed by the standards set forth in Strickland v. Washington. Strickland, 466 U.S. at 668. See also Styron v. Johnson, 262 F.3d 438, 450 (5^th Cir. 2001), cert. denied, 534 U.S. 1163 (2002) (applying the Strickland, standard to ineffective assistance claims against appellate counsel). To establish ineffective assistance of counsel a petitioner must show that counsel's performance was deficient and that he was prejudiced as a result. Strickland, 466 U.S. at 688.

Texas Rule of Appellate Procedure 42.2(a) provides that an appellate court may dismiss an appeal if the appellant files a written withdrawal with the court that is personally signed by the appellant. TEX.R.APP.P. 42.2(a). In this instance, counsel filed a motion to dismiss Washington's first appeal, and the appellate court dismissed the appeal, because the state trial court granted Washington's motion for a new trial. (2State Habeas R. at 24.) Washington, No. 11-02-119-CR, slip op., 2002 WL 32344581, at *1. Texas Rule of Appellate Procedure 21.9 states: "Granting a motion for new trial restores the case to its position before the former trial, including, at any party's option, arraignment or pretrial proceedings initiated by that party." TEX.R.APP.P.21.9. State law suggests that under these circumstances, the appeal is rendered moot and/or the appellate court no longer has jurisdiction to consider the appeal. See Belcher v. Texas, Nos. 14-00-811-CR 14-00-812-CR, 2004 WL 1946073, at *1 (Tex.App.-Houston [14th Dist.] Sept. 2, 2004, no pet.) (not designated for publication); Hopkins v. Texas, No. 5-02-1804-CR, 2003 WL 21508760 (Tex.App.-Dallas July 2, 2003, no pet.) (not designated for publication); Seaton v. Texas, No. 5-00-1565-CR, 2001 WL 1263688, at *1 (Tex.App.-Dallas Oct. 23, 2001, no pet.) (not designated for publication). Washington urges, however, that simply because a new trial was granted does not relax the requirement that he personally sign the motion to dismiss. ( Id.)

The Texas Court of Criminal Appeals considered and rejected Washington's claim. This court must defer to that determination unless Washington can show that the state court's decision is contrary to, or involves an unreasonable application of, clearly established Supreme Court precedent, or that the state court's decision is based on an unreasonable determination of the facts in light of the evidence presented in the state court. Although there is no written opinion or findings of fact, the Court of Criminal Appeals necessarily concluded that, as a procedural matter, Washington's signature was not required on the motion to dismiss and/or that his attorney's omission did not rise to the level of a Strickland violation. In either event, no Supreme Court case addressing Washington's ineffective assistance claim has been found nor does the state court's adjudication of the claim appear to be based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. The record reflects that, both, Washington's attorney and Washington himself signed the motion for new trial as part of an agreement with the state that it would recommend a thirty-year sentence upon retrial in exchange for information Washington gave law enforcement pertaining to an unrelated case. (2State Habeas R. at 32; Reporter's R. of Hearing on Court of Appeals' Mandate at 11, 13.) Washington's after-the-fact assertions regarding his wishes do not aid him. See Siao-Pao v. Keane, 878 F.Supp. 468, 472 (S.D.N.Y. 1995); see also, e.g., Panuccio v. Kelly, 927 F.2d 106, 109 (2^nd Cir. 1991) (a defendant's testimony after the fact suffers from obvious credibility problems). Even if an argument could be made that counsel was ineffective by not obtaining Washington's signature on the motion to dismiss, Washington cannot satisfy the prejudice prong of Strickland because it appears he got what he bargained for, a sentence reduction from sixty years to thirty years. In light of these facts, Washington has failed to overcome the presumption that the state court's adjudication of the issue is correct.

II. RECOMMENDATION

Washington's petition for writ of habeas corpus should be denied.

III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until January 18, 2005. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5^th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5^th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until January 18, 2005, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.

It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.