Payne v. Thaler, No. 4:2010cv00307 - Document 16 (N.D. Tex. 2010)
Court Description: MEMORANDUM OPINION and ORDER... the petition of petitioner for a writ of habeas corpus pursuant to 28 USC 2254 is hereby denied... the court further ORDERS that a certificate of appealability is hereby denied... see Order for further specifics. (Ordered by Judge John McBryde on 11/21/2010) (krg) (Main Document 16 replaced on 11/22/2010) (krg).
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Payne v. Thaler Doc. 16 11.5. DISTRICT CI}{,RT DISTHICTOF TEXAS ___ IN THE UNITED STATES DISTRICT CO FOR THE NORTHERN DISTRICT OF TE FORT WORTH DIVISION JEFFREY K. PAYNE, NOV 2 12010 CLERK, U.S. DISTRICT COURT § § Petitioner, Deputy § § v. No. 4:10-CV-307-A § § RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, § § § § § Respondent. § MEMORANDUM OPINION and ORDER This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § prisoner Thaler, 2254 filed by petitioner, currently incarcerated Director of the Texas Correctional Institutions in Jeffrey K. Cuero, Texas, Department of Division, Payne, a state against Rick Criminal Justice, respondent. After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be denied. I. Factual and Procedural History Petitioner waived a jury and entered an open plea of guilty in the Criminal District Court Number Two of Tarrant County, Texas, to possession of methamphetamine of four or more but less than two Dockets.Justia.com hundred grams with the intent to deliver, enhanced by a prior drug related conviction, and the trial court assessed his punishment at thirty years' confinement. (State Habeas R. at 37-44) appealed, District but the Second Court affirmed the trial court's judgment. of Appeals Petitioner of Texas Petitioner did not file a petition for discretionary review in the Texas Court of Criminal Appeals, but raised one or more of his claims in a state habeas application, which was denied without written order. State, No. 2009) (not designated 2-08-222-CR, slip op. (Tex. for publication) Payne v. App.-Fort Worth July 2, i Ex parte Payne, State Habeas Appl. No. WR-72,716-01, at cover. II. Issues Petitioner raises the following grounds for habeas relief: (1) His conviction was obtained by the use of evidence obtained from an unlawful arrest. (2) His conviction was obtained by the use of a coerced confession induced by promises. (3) He received counsel. (4) His guilty plea was unlawfully induced without the understanding of the consequences of the plea. (Pet. at 7-8) ineffective III. assistance of trial Rule 5 Statement Respondent believes that one or more of petitioner's grounds 2 are unexhausted as required by 28 U.S.C. barred from the court's review. IV. Applicants 2254(b) and procedurally § (Resp't Answer at 6-10) Exhaustion seeking habeas corpus relief under § 2254 are required to exhaust all claims in state court before requesting federal Texas, collateral 169 F.3d relief. 295, 302 28 U. S. C. (5 th Cir. § 2254 (b) (1) Fisher v. The 1999). i 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) F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 i Fisher, 169 (5 th Cir. 1982). The exhaustion requirement is not satisfied where a petitioner presents new legal theories or factual claims in his federal habeas petition. Neville v. Dretke, 423 F.3d 474, 478 (5 th Cir. 2005). In Texas, the highest state court for criminal matters is the Texas Court of Criminal Appeals. 429, 431-32 (5 th Cir. 1985). Richardson v. Procunier, 762 F.2d Thus, a Texas prisoner may satisfy the exhaustion requirement by presenting both the factual and legal substance of a claim 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 in a procedural I y proper manner. 3 See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2009); Depuy v. Butler, 837 F.2d 699, 7 02 ( 5 th Ci r . 198 8) . Petitioner did not discretionary review, thus file a petition for it was necessary that he claims presented herein in his state habeas application. application, petitioner did not raise grounds enumerated above; thus those claims are unexhausted. (1) raise the In that and (2), (State Habeas R. at 7-15) Under the Texas abuse-of-the-writ doctrine, petitioner cannot now return to state court for purposes of exhausting the claims. TEX. CODE CRIM. PROC. ANN. art. 11 . 07, § 4. The abuse-of-the-writ doctrine represents an adequate state procedural bar to federal habeas review. 1997) . See Nobles v. Johnson, 127 F.3d 409, 423 (5 th Cir. Therefore, absent a showing of cause and prejudice or a miscarriage of justice, such showing not having been demonstrated, petitioner's grounds (1) and (2) raised procedurally barred from the court's review. in this petition are See Smith v. Johnson, (5 th Cir. 2000). 216 F.3d 521, 523- 24 v. Discussion Legal Standard and 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 4 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. § contrary to clearly established federal 2254(d). A decision is 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. U.S. 362, 405-06 (2000) 485 Cir. 2000). i Williams v. Taylor, 529 see also Hill v. Johnson, 210 F.3d 481, 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. The statute further requires that federal courts give great deference to a state court's factual findings. 485. Hill, 210 F.3d at Section 2254 (e) (1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. presumption findings of of correctness fact which are extends to necessary 5 explicit to the This and implicit state court's conclusions. (Pet'r Resp. at 5) Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5 th Cir. 2001). 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 order, meri ts, which as here, is an adjudication on the is entitled to this presumption. 178 F.3d 381, 384 (5 Johnson, it th Singleton Cir. 1999) i Ex parte Torres, v. 943 S.W.2d 469, 472 (Tex. Crim. App. 1997.) Guilty Plea A guilty plea must be a voluntary, knowing, and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences surrounding the plea. States, 397 u.s. 742, 748 (1970). Brady v. Uni ted Thus, before a trial court may accept a guilty plea, the court must ensure that the defendant is advised of the consequences of his plea and the various constitutional rights that he is waiving by entering such a plea. Boykin v. Alabama, 395 U.S. guilty plea is knowing, 238, voluntary, upheld on federal habeas review. (5 th Cir. 1995). 243 (1969). If a and intelligent, James v. Cain, challenged it will be 56 F.3d 662, 666 Further, a guilty plea intelligently, knowingly, and voluntarily made generally waives all claims relating to events 6 preceding the guilty plea, including constitutional ones, subsequent habeas proceeding. (5 th Cir. 1986) . in a Smith v. McCotter, 786 F.2d 697, 702 Although a defendant's attestation of voluntariness at the time of the plea is not an absolute bar to la ter contrary contentions, United States v. Diaz, it places a heavy burden upon him. 733 F.2d 371, 373-74 (5 th Cir. 1979). A defendant's solemn declarations in open court are presumed true, and a defendant generally may not recant sworn testimony made at a plea proceeding. United States v. Fuller, 769 F.2d 1095, 1099 (5 th Cir. 1985) Wavier Because petitioner's plea was knowingly and voluntarily made, his remaining grounds-that his plea was rendered involuntary by the state's failure to timely notify him of its revised witness list before trial law (ground three) and because his written statement to enforcement was made preceding his guilty plea, under duress are waived. (ground four)-matters Nothing in the record suggests that petitioner's guilty plea was other than voluntarily, intelligently, and knowingly entered. Peti tioner entered his guilty plea in open court and was advised by counsel and the trial court of his rights, waivers, and the full range of punishment for the offense. Petitioner executed the written plea admonishments, 7 in which he acknowledged that his plea was knowingly, freely, and voluntarily entered, that no one had threatened, coerced, forced, persuaded or otherwise promised him anything in exchange for his plea, and that he was aware of the consequences of his plea. (State Habeas R. at 42) Petitioner waived all pretrial motions and his right to appearance, confrontation, and cross-examination of witnesses and acknowledged during the plea colloquy that he waived the rights and withdrew his motion to suppress. at 43; Reporter's R. at 4-5) (State Habeas R. Thus, he no longer had a right to confrontation and cross-examination of adverse witnesses or to challenge the enforcement. voluntariness of his written See McMann v. Richardson, confession 397 U.S. 759, 766 to law (1970) (providing a valid guilty plea waives a host of constitutional rights, including the right to contest the admissibility of a confession); Boykin v. Alabama, 395 U.S. 238, 243 (1969) (providing a guilty plea involves the waiver of several federal constitutional rights including the right to confront one's accusers); Neyland v. Blackburn, 785 F.2d 1283, 1287 (5 th Cir. 1986). Absent evidence in the record, habeas petitioner's bald a assertions court cannot consider a on a critical issue, unsupported and unsubstantiated by anything in the record, to be of probative evidentiary value. Ross v. Estelle, 694 F.2d 1008, 1011- 8 12 n.2 Cir. 1983); Koch v. Puckett, 907 F.2d 524, 530 Cir. 1990). The state court's rejection of petitioner's claims did not resul t in a decision that was contrary to, or an unreasonable application of, clearly established federal law, nor did it result in a decision that was based on an unreasonable determination of the facts. For the reasons discussed herein, The court ORDERS the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, denied. Pursuant to Rule 22 (b) of the Federal Rules of Appellate Procedure, Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Court, and 28 U.S.C. reasons discussed certificate of herein, the appealability court be, and § further is 2253(c), for the ORDERS hereby, that denied, a as petitioner has not made a substantial showing of the denial of a constitutional right. 2- { , SIGNED November ----'--- 2010.
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