Opinion
No. 3:02-CV-2734-K.
November 30, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
Parties
Petitioner Lavonda Demetra Wilson is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Procedural History
On October 13, 1994, Wilson pleaded guilty to aggravated robbery. (Clerk R. at 11-12.) The trial court entered an order deferring a finding of guilt and placing her on 10 years' probation. ( Id. at 14.) Although permissible under Texas law, Wilson did not appeal this order. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999) (holding, under Texas law, a defendant placed on deferred adjudication probation may raise issues relating to the original plea proceeding only in appeals taken when deferred adjudication probation is first imposed). On September 10, Wilson violated the terms of her probation, the trial court revoked her probation, adjudicated her guilty of the aggravated robbery and sentenced her to 15 years' confinement. ( Id. at 36.) The Fifth District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Wilson's pro se petition for discretionary review on May 30, 2001. Wilson v. State, No. 5-99-1619-CR (Tex.App. — Dallas Feb. 1, 2001, pet. ref'd) (not designated for publication). Wilson did not file a petition for certiorari with the United States Supreme Court; thus, her conviction became final on August 28, 2001-90 days after the Court of Criminal Appeals entered its judgment. SUP. CT. R. 13.1.
Although Wilson also was convicted of forgery and retaliation on September 10, 1999, the aggravated robbery conviction is the only conviction Wilson challenges in her federal habeas corpus petition. (Federal Pet. at 2; Resp't Answer at 2.)
The intermediate appellate court modified the judgment to delete the $600 fine because it was not authorized.
On August 26, 2002, Wilson, through counsel, filed a state application for writ of habeas corpus challenging her aggravated-robbery conviction, which the Texas Court of Criminal Appeals denied without written order. Ex parte Wilson, No. 54,062-01 (Tex.Crim.App. Dec. 18, 2002) (not designated for publication). Wilson filed her federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on December 20, 2002.
Issue
Wilson argues that trial counsel was constitutionally ineffective, which rendered her guilty plea involuntary.
Exhaustion of State Court Remedies
Dretke believes Wilson has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.
Statute of Limitations
Dretke asserts that the petition for writ of habeas corpus is barred by the statute of limitations. Indeed, federal habeas corpus petitions are subject to a one-year statute of limitations:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(1)-(2). Dretke argues that the date Wilson's conviction became final regarding her claim that counsel's ineffectiveness rendered her 1994 guilty plea involuntary was November 12, 1994-30 days after the order placing her on deferred adjudication probation became final. (Resp't Answer at 7.)
The Court rejects Dretke's theory of untimeliness. As Dretke recognizes, the Courts in this Division have rejected his theory. E.g., Daugherty v. Dretke, No. 3:01-CV-202-N, 2003 WL 23193260, at *6-7 (N.D. Tex. Dec. 24, 2003); Vidal v. Cockrell, No. 3:02-CV-1062-M, 2003 WL 21448465, at *2 (N.D. Tex. May 15, 2003); Cutrer v. Cockrell, No. 3:01-CV-841-D, 2002 WL 1398558, at *3 (N.D. Tex. June 26, 2002); Crenshaw v. Cockrell, No. 4:01-CV-405-Y, 2002 WL 356513, at *4-5 (N.D. Tex. Mar. 5, 2002). But see Wilkinson v. Cockrell, 240 F. Supp. 2d 617, 621 (N.D. Tex. 2002) (holding issues relating to original plea proceeding must be raised in appeal from deferred-adjudication-probation judgment; thus, limitations began to run on such a claim when deferred-adjudication-probation judgment became final). Additionally, the trial court's "Deferred Adjudication Order" is not a judgment under Texas law and is merely "an appealable order." TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1; TEX. R. APP. P. 26.2(a)(1). See generally Daugherty, 2003 WL 23193260, at *7-8; Cutrer, 2002 WL 1398558, at *4-5. Accordingly, the judgment that commences the limitations period under § 2244(d)(1)(A) is the September 10, 1999 judgment adjudicating Wilson guilty and sentencing her to 15 years' confinement, which became final on August 28, 2001.
Absent application of any tolling provision, Wilson's federal petition was due on or before August 28, 2002. If, however, a state prisoner files a timely state post-conviction application for habeas corpus review, the time taken to pursue that remedy is not counted toward the limitation period. 28 U.S.C. § 2244(d)(2); Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998) (per curiam). Thus, the statute of limitations was clearly tolled from August 26, 2002 until December 18, 2002 — during the pendency of Wilson's state habeas corpus applications — for a total of 114 days. Excluding the allowable, 114-day period, Wilson's federal petition was due on December 20, 2002. Wilson's federal petition, filed on December 20, 2002, was timely.
Standard of Review
Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Wilson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Holland v. Jackson, 124 S. Ct. 2736, 2738-39 (2004); see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002) (en banc per curiam), cert. denied, 537 U.S. 1104 (2003).
Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
Involuntary Guilty Plea
Because Wilson pleaded guilty, she may only challenge the voluntary character of her guilty plea. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983), cert. denied, 466 U.S. 906 (1984). Wilson argues that her guilty plea was involuntary because it was induced by counsel's representations that the victim had identified Wilson from a photo line-up. (Federal Pet. at Ex. D; Pet'r Mem. at iv-vi.)
If a challenged guilty plea is knowing, voluntary, and intelligent, it will be upheld on federal habeas review. James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). Although a defendant's attestation of voluntariness at the time of the plea is not an absolute bar to later contrary contentions, it places a heavy burden upon her. United States v. Diaz, 733 F.2d 371, 373-74 (5th Cir. 1979). She must show such a strong degree of misunderstanding, duress, or misrepresentation by others that her plea would become a constitutionally inadequate basis for imprisonment. Id. (citing Blackledge v. Allison, 431 U.S. 63, 75 (1977)). Before a trial court may accept a guilty plea, the court must ensure that the defendant "has a full understanding of what the plea connotes and of its consequence," but not that he understood the "technical legal effect" of the charges. Boykin v. Alabama, 395 U.S. 238, 244 (1969); James, 56 F.3d at 666. A plea is involuntary, and thus insufficient to support a conviction, if the defendant "has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt." Henderson v. Morgan, 426 U.S. 637, 645 n. 13 (1976). If the defendant understands the maximum prison term and fine for the offense, the subsequent guilty plea is knowingly entered. Ables v. Scott, 73 F.3d 591, 592 n. 2 (5th Cir.) (per curiam), cert. denied, 517 U.S. 1198 (1996). Absent supporting evidence in the record, a court cannot consider a habeas petitioner's mere assertions on a critical issue in his pro se petition to be of probative evidentiary value. Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994), cert. denied, 514 U.S. 1071 (1995); Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (per curiam).
The record reflects that Wilson (1) was pleading guilty freely and voluntarily, (2) had not been promised anything in return for the guilty pleas and had not been coerced, (3) was mentally competent, (4) understood the plea admonishments, and (5) was aware of the consequences of her plea. (Clerk R. at 9-10, 12-13; 1 R.R. at 7, 10.) Further, the trial court informed Wilson of the punishment range for the offense. (1 R.R. at 5-6.) Although Wilson does proffer evidence to show that the victim was never shown a photo line-up, Wilson has offered nothing more than her self-serving allegations that counsel advised her that she had been identified from a photo line-up. (Federal Pet. at Ex. E; Pet'r Mem. at ii.). During state habeas corpus proceedings, counsel denied that he told Wilson she had been identified in a photo line-up:
I have no independent recollection of there being a photo line[-]up of Lavonda Wilson. Ms. Wilson admitted that she participated in the armed robbery and my main concern was keeping her out of the Department of Corrections, due to the facts which included a pistol whipping of the victim. However, had the State ever informed me that the victim couldn't identify Ms. Wilson I would have told her. I might point out that the reason that Ms. Wilson is presently serving 15 years is not because she participated in an armed robbery, but because she could not comply with conditions of probations. (State Habeas R. at 73.)
The trial court, and by implication the Court of Criminal Appeals, concluded that Wilson's plea was voluntary. (State Habeas R. at 70-71.) Wilson has not overcome the presumption of correctness, which applies to these factual findings, with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Wilson's conclusory involuntary-plea allegation is insufficient to rebut the presumption of regularity of the state court records. Babb v. Wilson, 61 F. Supp. 2d 604, 606 (S.D. Tex. 1999); see also Armstead, 37 F.3d at 210.
When the Court of Criminal Appeals denies a state habeas application "without written order," it is rejecting the claims on the merits. Bledsue v. Johnson, 188 F.3d 250, 257 (5th Cir. 1999).
Ineffective Assistance of Counsel
Wilson asserts that trial counsel was ineffective because he erroneously told her that the victim had identified her as one of the robbers. Because Wilson pleaded guilty, she may only challenge the voluntary character of her guilty plea in raising an ineffective-assistance-of-counsel claim. Hill, 474 U.S. at 56-57; Smith, 711 F.2d at 682. As discussed above, Wilson has failed to show that her plea was involuntary. Thus, she has failed to overcome the presumption that she was properly admonished and that her pleas was voluntary. Wilson's guilty plea waived her ineffective-assistance-of-counsel claim occurring before she pleaded guilty. Beasley v. McCotter, 798 F.2d 116, 118 n. 1 (5th Cir. 1986) (per curiam), cert. denied, 479 U.S. 1039 (1987); see also Tollet v. Henderson, 411 U.S. 258, 267 (1973) (stating guilty plea waives all nonjurisdictional defects occurring before entry of plea); Matthew v. Wilson, 201 F.3d 353, 364 (5th Cir.), cert. denied, 531 U.S. 830 (2000) (noting long-standing rule that valid guilty plea bars habeas review of non-jurisdictional claims alleging antecedent violations of constitutional rights). Further, the trial court made factual findings and concluded that counsel was not ineffective. (State Habeas R. at 70.) Wilson has not overcome the presumption of correctness, which applies to these factual findings, with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).Summary
Wilson is lawfully restrained because she has failed to prove that she has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Wilson was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.