Lewis v. Thaler, No. 4:2009cv04014 - Document 13 (S.D. Tex. 2010)

Court Description: MEMORANDUM OPINION AND ORDER granting 12 MOTION for Summary Judgment with Brief in Support. Denying 1 Petition.(Signed by Judge Sim Lake) Parties notified.(hcarr, )

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IN THE UN ITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIV ISION JAMALE JERROD LEWIS, TDCJ-CID NO . 1414663, Petitioner, CIV IL ACTION NO . H-09-04014 RICK THALER, Director, Texas Department of Crim inal Justice, Correctional Institutions Division , Respondent . MEMORANDUM OPIN ION AND ORDER Jamale Lewis filed a Petition for a Person in State Custody ( Docket Entry No . challenging his Pending before the court state Respondent Thaler's Motion Summary Judgment with Brief Support ( Docket Entry No. court reasons stated below, grant Thaler's motion for summary judgment and deny Lewis's petition Lewis v. Thaler Habeas Corpus a writ of habeas corpus . Doc. 13 History and Claim s A. Statement of Facts On August 16, 2005, Petitioner Lewis entered his neighbor's home armed Dockets.Justia.com with shotgun and engaged forcible sexual intercourse with her . her the trunk He then took her wallet, ordered her into and drove around for som e time . Lewis neighbor's house , ordered her back into her r o o m , returned and sexually assaulted her again . second assault . wooded area . Lewis ran out Police arrived during this the house naked into Houston Police Department Officer nearby Sealy gave pursuit . Sealy caught up pinned O fficer Sealy Fearing and tasered Lewis. Lewis fought back , the ground, and began his life, Sealy pulled out choke him . handgun, pointed Lewis's rib cage , and pulled the trigger . Nothing happened . attempted take the weapon from him . Officer Sealy managed point the gun away and discharge a11 his rounds . Sealy's baton and handcuffs . Lewis Lewis then went the process, he loosened his grip on Sealy, who wrestled free and escaped . Lewis subsequently fled to his residence, where police apprehended him x B . Procedural History Lewis pleaded guilty to the first-degree felony offenses of aggravated sexual assault and attempted capital murder on l Lewis v . State, Nos . 01-07-00022-CR and O1-07-00O23-CR ( Tex. App. -- Houston ( 1st Dist.q 2007, pet. ref'd), attached to Zz parte Lewis, Case No. WR-72,979-01 ( nSHCR-0l'), included in State ' Court Records, Docket Entry No . 9, pp . 80-83 . - 2- October 2006 .2 At the punishment hearing Lewis's neighbor and Officer Sealy testified for the prosecution as Lewis's criminal episode . the events of The defense called various witnesses, who testified about Lewis's traumatic childhood and remorse for his behavior . Lewis also testified . Wh ile he first accepted responsibility for his actions, Lewis claimed during his crossexamination that someone else committed the crimes . redirect he recanted th is testim ony, stating that he committed the crimes but did not remember because he was high on during the offenses . The 184t District Court of Harris County, Texas , sentenced h Lewis to two concurrent October sentences on January 2007, the First Court of Appeals 2 0O7 .3 On Texas affirmed Lewis's conviction .4 Lewis then filed a petition for discretionary review with the Texas Court of Crim inal Appeals, wh ich was refused February 2 OO8 .5 January 2009, Lewis filed applications for a state writ of habeas corpus, each based on one his convictions . Court of Criminal Appeals denied b0th z Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession, SHCR-OI, pp . 88-89. 3 ludgment of Conviction SHCR-OI, p . 102 . Court Waiver Jury Trial , 4lewis v . State , Nos. O1-07-00022-CR and 01-O7-00023-CR ( a Tex. App . -- Houston ( 1st Dist.q 2007, pet. ref/d), SHCR-OI, p . 79. sLewis v . State, P.D. R.-l53O-O7 & 1531-07 ( Tex. Crim . App . 2008), included in State Court Records, Docket Entry No . 9. without written order on November 25, 2009 . 6 present action Lewis filed the habeas corpus relief on December ( Docket Entry No. 2009, Respondent moved for summary judgment on April 28, 2010, ( Docket Entry No . Lewis has not responded the motion . C. Petitioner's Claims and Respondent's Challenges Construing Lewis's pro se petition liberally, the court understands him to raise the following claims for relief: ( l) Lewis was denied effective assistance of counsel, which 1ed to an involuntary and unintelligent guilty plea, because his trial counsel : failed to request a competency hearing prior to the guilty plea; and ( b) failed to counsel Lewis as to the elements of the charges against him . ( 2) Lewis was denied effective assistance counsel because his trial counsel: failed to hire a psychiatrist to give expert testimony at the sentencing hearing ; used abusive language while addressing Lewis; and failed to p repare for trial . ( 3) The trial court abused its discretion by failing to sua sponte reject Lewis's guilty plea and order a f Application for 11 . 07 Writ of Habeas Corpus -- Action Taken, SHCR-OI, cover; Application for 11.07 Writ of Habeas Corpus -Action Taken, attached to Ex parte Lew is, Case No . WR-72,979-02 ( nSHCR-02'), included in State Court Records, Docket Entry No. 9, ' COVe r . competency hearing upon ob serving that Lew is was aware of the charges against him . (4) The evidence presented by the State was legally insufficient to p rove Lewis's guilt beyond a reasonab le doubt because his intoxication prevented him from forming the requisite mental statex Respondent generally accepts that Lewis's claims are 50th timely and properly exhausted . Respondent challenges a1l claims on the merits and challenges claim as procedurally barred . II. StandarG of Review A. Slmmnry Judgment l court should grant summary judgment when uthe pleadings, depositions, answers interrogatories, and admissions together with the affidavits, issue as to any material any, show that there is no genuine and that the moving party is entitled judgment as a matter of law.' FED. ' facts are facts that may uaffect the outcome of 56( c) such that Material suit under the overning law .' Anderson v . Libertv Lobbv , Inc ., ' 2510 ( 1986). file , 2505, issue of material fact is genuine 'if the evidence ' reasonable jury could return verdict for the nonmoving party .' Id . ' The party moving for summary judgment bears the initial burden demonstrating absence of any genuine issues of material 56( e); Celotex Corn . v. Catrett, 7 petition for a Writ of Habeas Corpus by Custody, Docket Entry No . 1, pp . 7-8 . Person State 2548, 2553 ( 1986) movant has met this burden , the Once non-movant must establish that there Anderson , 106 S . at 2511. genuine issue for trial . the non-movant is unable to meet this burden, the motion for summary judgment will be granted. FED. 56 ( ) c B. AEDPA and Habeas Corpus Procedure When considering a summary judgment motion, the court usually resolves any doubts and draws any inferences moving party. Anderson, favor of the non- at 2511 . However, U .S .C . 5 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (' 'AEDPA'), changes this standard in habeas proceedings. ' Federal courts do not view the facts in the light most favorable the non-moving petitioner . Sm ith v . Cockrell, F .3d ( 5th Cir. 2002) ( overruled on other grounds by Tennard v . Dretke , Ct. 2562 ( 2004)). Instead, the court must presume that a11 facts found by the state court are correct. ( 2006). U.S.C. 5 2254( ( e) 1) The court will accept any findings fact by the state unless the petitioner can rebut the presumption of correctness with clear and convincing evidence . Cockrell, The petitioner must prove that he Williams v . Tavlor, 1495, F .3d at 668 . entitled relief . ( 2000). Federal courts may not grant habeas relief on any claim adjudicated on the merits state court unless the petitioner shows that the adjudication: - 6- resulted in decision contrary to or involved an unreasonab le application of established federal law; or ( 2) resulted in a decision based on an unreasonable determination of fact in light of the evidence p resented in state court . 28 U.S.C. 5 2254 4 d). A decision can be contrary to established federal 1aw the state court arrives tWo Ways : conclusion opposite that reached by E the United States Supreme Court) on a question of law/ '; the state court indistingu ishab le from arrives confronts that are materially relevant Supreme Court p recedent and a result opposite at 1519. facts that the Courtq.' ' Tavlor, decision unreasonably app lies established federal 1aw only if the application is uobjectively unreasonable.' ' Id . at 1521. The question of unreasonableness differs from the question of correctness and sets ' substantially higher threshold' 'a ' for obtaining relief . See Schriro v . Landriqan, 127 Ct . 1933, 1939 ( 2007). This inquiry requires nthat state-court decisions be given the benefit of the doubt .' Woodford v . Visciotti, 123 S . ' 357, ( 2002) ( per curiam). 111 . Proc edural Bar - - - Respondent argues that Lewis defaulted claim court and is therefore procedurally barred from raising federal habeas petition . st ate his A. Applicable Law Under the procedural defau lt doctrine, federal courts are precluded from granting habeas relief on claim when the last state court to consider the matter denied adequate ground of state procedural law . S. 2546, 2554 (1991) an independent Coleman v . Thompson, The state must expressly announce that its disposition is 'based on bona fide separate , adequate, and l independent grounds .' Id . at 2556 . ' When state exp licitly relies on a procedural bar, the petitioner may not obtain habeas relief unless he shows cause for and prejudice by the default. Wainwricht v. Svkes, 2508 ( 1977). Valid cause requires factor external 2497, showing that nsome objective the defense impeded counsel's efforts to comply with the State's procedural rule .' Barrientes v . Johnson, 221 F .3d ' 763-764 ( 5th Cir. 2000) ( quoting Murrav v . Carrier, 2639, 2641 (1986)) order meet prejudice standard, upetitionerE) must identify how the alleged violation harmed E his) cause.' Williams v . Whitlev, 994 F. ' 2d 226, ( 5th Cir. 1993). court need not consider the prejudice issue if the petitioner fails demonstrate cause 1454, default . ( 99l). 1 A petitioner who fails seek habeas relief Mcc leskev v . Zant, he meet these requirements may still demonstrate that - 8- miscarriage justice will result from the court's failure Wainwriqht, 97 S . claim . hear at 2508 . However, this exception is 'limited ' to cases where the petitioner can make a persuasive showing that he actually innocent Johnson, the charges against him . ' ' F.3d 2001). petitioner must show that, as uEssentially, factual matter, he did not commit the crime for which he was convicted . ' ' innocence Finlev v . Id . A claim actual itself grounds for habeas relief , ubut instead a gateway through which a habeas petitioner must pass to have otherwise merits .' ' barred constitutional Schluo v . Delo, claim con sidered the 851, 861 ( 1995) ( quoting Herrera v . Collins, 862 ( 1993)) u 'To be credible' a claim of actual innocence must be based on reliab le evidence not presented at trail.' Calderon v . Thomp son, 118 S . Ct . 1489: 1502' ( 1998) ( quoting Schlup, 865) Texas law requires that any claim based upon petitioner raise on direct appeal trial court record before he raises state habeas app lication . Ex p arte Townsend , on S.W .3d 79, 81 ( Tex. Crim . App . 2004). The Fifth Circuit has held that this rule an nadequate state ground capable of barring federal habeas review .' ' Scheanette v . Ouarterman , 482 F .3d 815, 2007). - 9- B. Analysis Respondent argues that Lewis is barred from raising claim because the last state court to consider the matter disposed of it independent and adequate state procedural grounds . record shows that the state habeas court recommended that the claim be denied failure Townsend .8 see raise on direct appeal , citing S . W .3d The Texas Court Appeals adopted the recommendation Criminal denying b0th applicationsx The court concludes that the Court of Crim inal Appeals disp osed of Lewis's claim on independent and adequate state procedural 1aw grounds. C. See Scheanette , F .3d at Cause and Prejudice Exception Lew is has not provided an explanation claim direct appeal. factor external He fails why he raise present objective defense that prevented him from complying with state procedural law and therefore fails to show cause for his default . See Barrientes, 221 F .3d failed show cause : the court does element of prejudice. See Mccleskev, 763-64 . need Since Lewis address 1470. 8 state's Proposed Findings of Fact , Conclusions of Law and Order, SHCR-OI, p . 74; State's Proposed Findings of Fact , Conclusions of Law and Order, SHCR-OZ, p . 51 . g Application for 11 . 07 Writ of Habeas Corpus -- Action Taken , SHCR-OI, cover; Application for 11 . 07 Writ of Habeas Corpus Action Taken , SHCR-OZ, cover . - 10- D. Miscarriage of Justice Exception Lewis makes two distinct claims of innocence in his petition . He first claims that uhe firmly believed that Petitioner him self else .'l '0 those things w as actually Lewis cites to the following exchange b etween prosecutor and him self someone state support of his claim : Do you have any memory of trying to take O fficer Sealy's pistol away from him ? A. don 't remember even, you know what I'm saying , seeing a 1aw man . I don't remember him -- I don't much remember him saying I did what I did do . You know what I'm saying ? I can 't answer you on that question . Q. Well, you know what you have been accused right? A. know what been accused doing, doing . And you know what you pled guilty to doing? pled guilty, yes, sir . Q. Okay . A. Well, no. I don't believe I did it . I believe another person did it for me . But I didn't do it though . do you believe you did those things? somebody else did it? A. Yes? lo Memorandum of Law and Brie f Habeas Corpus, Docket Entry No . 2 , l Reporter's Record , l Support of Application for 1. State v . Lewis, Cause Nos. 1037538 & 1037539 (' AReporter's Record/), included in State Court Records ' Docket Entry No . 9, p . 162, ll. 5-23 . r The court understands While Lewis may raise actual innocence. argument as a ngateway' ' his barred claim , he offers innocencex z claim be the merits of trial testimony as evidence of since he has failed produce any reliable evidence of his actual innocence, he has failed establish sufficiently a m iscarriage of justice. See calderon, 118 S. at 1502-03 . Lewis also claims innocence uby showing he w as not actually aware of under E conductq' ' influence the time drugsx3 the crime because he was During the punishment hearing, Lewis admitted that he had been nsmoking water' throughout the day ' of the crimes.l He further testified that his last memory that day l was asking his neighbor for matchesx s The first thing he claim s remember after sobering up being jai1.l The court does 6 understand this as a valid actual innocence claim because Lew is's testimony does not show as a factual matter that he did not H Lewis later recanted his testimony . 163, ll . 1-13 . See Reporter's Record, OMemorandum of Law and Brief in Support of Application for Habeas Corpus, p . 3 . MReporter's Record , p . 159, 1l. 12, 13. 'Smoking water' ' ' refers to the ingestion of liquid phencyclidine ( PCP) by combining it with marijuana and smoking it. See United States Department of Justice, Drug Enforcement Administration , Druls and Chemicals of Concern : Phencvclidine, http ://www . deadiversion.usdoj. gov/ drugs concern/pcp . htm ( last visited on June 29, 2010). l Reporter's Record , p . 160, s l 6Id . at 160, - 12- 23-25 . commit the crimes . See Finely, F . 3d at valid actual innocence claim, Even if would still fail because Lewis does not support it with evidence not p resented Calderon, were trail . See at 1502-03 . Lewis defaulted claim state court and does show cause for his de fault . He has failed to satisfactorily dem onstrate that a miscarriage of justice will result from the court's refusal hear claim . Lewis raising claim therefore procedurally barred from See Coleman, IV . 2554 . Merits Respondent challenges a11 of Lewis's claims on the merits. The court will separately address the challenge A. each claim . Claim ( and Claim ( 1) 2): Ineffective Assistance of Counsel first two claim s, Lewis argues that his trial counsel was so deficient that Lewis was dep rived of his constitutional right effective assistance of counsel . He identifies five alleged errors committed by his trial counsel . that Lewis's claims are conclusory and Respondent argues fail establish ineffective assistance claim under the test set forth by the United States Supreme Court Strickland v . Washincton, ( 970). 1 - 13- Apo licable Law When a defendant p leads guilty based on the advice of counsel, the validity of that plea is analyzed through the two-part test articulated in Strickland . Hill v . Lockhart , 106 S . 37O ( 1985). counsel To prevail petitioner 366, 369, a claim of ineffective assistance of must prove that ( 1) trial counsel's performance was deficient and ( actual prejudice was suffered due 2) this deficiency . Strickland, 104 at 2064 . The petitioner has the burden to affirmatively p rove each prong of the test . Carter v . Johnson , F.3d 452, meet the first prong of that ( 5th Cir. 1997) test , petitioner must show trial counsel's performance fell below an objective standard of reasonableness such that 'counsel was not functioning ' as the Acounsel' guaranteed by the Sixth Amendment .' Strickland , ' l04 2064 . assessing the time whether, The court determ ines reasonableness by light the circum stances present at counsel's conduct, the alleged act within the b road scope at 2066 . om ission falls of objectively reasonable assistance. Id. Review of trial counsel's performance must be extremely deferential, and the court must indulge a nstrong presumption that counsel's conduct falls within professional assistance .' Id . ' To meet petitioner the must second prong affirmatively the wide range reasonable 2065 . Strickland demonstrate that test , nthere reasonable p robability that , counsel's unprofessional errors, the result of the proceeding would have been different .' ' Id . at 2068 . uReasonable probability' is p robability sufficient ' undermine confidence Strickland, outcome the 20687 Carter, proceedings . F .3d at 463 . Where there is overwhelming record support for the verdict or conclusion , there a lower likelihood of prejudice, and the petitioner must p roduce very compelling evidence conclusion . undermine See , e .q ., Strickland, 1O4 S . verdict at 2069; Moawad v . Anderson, 143 F.3d 942, 946, 947 ( 5th Cir. 1998). nThe failure to prove either deficient performance or actual prejudice forecloses an ineffective assistance claim .' Green v. ' Johnson, 160 F.3d 1029, 1035 ( 5th Cir. 1998). The petitioner must allege facts prove both allegations will not suffice . dispose of the claim based prongs the test ; See id . at 1042-43 . conclusory The court may the petitioner's failure meet either prong. Amos v. Scott, 61 F.3d 333, 348 ( 5th Cir. 1995). A trial court may not accept a defendant's guilty p lea without an affirmative showing that made. voluntarily and intelligently Bovkin v. Alabama, 89 S . Ct. 1709, critical issue intelligent determining whether 'whether ( 1969). 'The ' plea was voluntary and defendant understood nature and substance of the charges against him , and not necessarily whether he understood their technical legal effect .'' James v . Cain , ' 56 F.3d 662, 666 ( 5th Cir. 1995) ( quoting Tavlor v . Whitlev, 933 F.2d 325, 1991)). A guilty plea be upheld the record shows that the defendant understood the charges against him and the consequences guilty p lea . James, 56 F .3d at This information need not come from his lawyer or the judge in particular ; as long as shown that the defendant was fact informed , his guilty plea will be regarded as voluntary and intelligent. Burdick v . Ouarterman, 5O4 F .3d 547-48 ( 5th Cir. 2007). A defendant must also be competent to plead guilty . v . Moran, 113 S . Ct . 2680, 2686 ( 1993). Godinez The conviction of mentally incompetent defendant violates constitutional due p rocess. Pate v . Robinson , 86 S . Ct . 836, than a confession v. Martin, ( 1966) culpability, F.2d 1372, a conviction itself . Diaz ( 5th a violation of due process A guilty plea is more 1983). Therefore, is accept a guilty plea from a mentally incompetent defendant. Theriot v . Whitlev, F.3d ( 5th Cir. 1994). test for competence is whether the defendant had b0th the present ability to consult understanding States, counsel and a rational and factual the proceedings against him . 788-89 (1960). Duskv v . United The Fifth Circuit has adopted this test as the standard for competency to stand trial and competency to give a valid plea. Deville v . Whitlev, F . 3d 654, 656 ( 5th Cir. 1994). To challenge competency on collateral review, - 16- the petitioner must uprove , by that he was incompetent preponderance fact at the Bouchillon v. Collins, evidence, time of the plea . '' ( 5th Cir. 1990). Claim (1) ( a) Lewis claims that he received ineffective assistance of counsel because his trial attorney failed to move for a competency hearing prior guilty plea . claim , Lewis asserts that the court understands his trial counsel's failure prejudiced him because he was actually incompetent the time of his p lea and the trial court would have rejected Lewis's plea had moved for a comp etency hearing . Lewis alleges that the resulting conviction violated his due process rights . entitled counsel Respondent argues he summary judgment on this claim because the state habeas court made a factual finding that Lewis was comp etent and such finding due P resumption Of Correctness. The state habeas court held Lewis failed to demonstrate that he lacked either the present ability consult with counsel rational and factual understanding of the proceedings around himx R The court understands this holding as competence under the Duskv standard . See 80 Texas Court of Crim inal Appeals adopted finding of at 788-89. The this finding its Ustate's Proposed Findings of Fact , Conclusions of Law and Order, SHCR-OI, p . 73; State's Proposed Find ings of Fact , conclusions of Law and Order, SHCR-OZ, p . 50. Findings of competence rejection of by the state are factual findings . 2261, 2264 ( 1983) Lewis's competence See Maqqio v . Fulford , Accordingly, the factual finding of due a presumption correctness under the AEDPA . See Miller-El v. Johnson, 261 F. 445, 454 ( 3d 5th Cir. 2001) ( rev'd on other grounds, 1029 ( 2003)). The AEDPA requires the court to accept the state's findings of fact true unless the petitioner rebuts them with clear and convincing evidence. 28 U.S.C. 2254( ( e) 1); Cockrell F.3d at 668 . Lewis offers two bases for his claim . First, Lewis points several statements made during the punishment hearing in which he alternately claimed that someone else committed the crime for him and that he remember committing crime due intoxication x g These statements refer back to Lewis's mental state at the time of the commission of the offense, not his mental capacity during his guilty plea . They do not speak to his p resent ability consult with counsel understanding proceedings around him at the time of his plea . Lewis's was incompetent . See Bouchillon, 907 F .2d at 592 . HApplication for 11 .07 Writ of Habeas Corpus -- Action Taken , SHCR-OI, cover; Application for 11.07 Writ of Habeas Corpus -Action Taken , SHCR-OZ, cover . l Memorandum of Law and Brief g Habeas Corpus, pp . 1, 3, 4 . Support Application Second, Lewis attached petition documenting mental health problems . medical record contains findings from various medical and psychological evaluations around the age seventeen . Lewis underwent Wh ile this record establishes that Lewis had mental issues several years before the offenses, does not establish , or even document, mental incompetence at the time of guilty plea . See Duskv, at 788-89 . Without a proper factual basis, Lewis's claim little more than a conclusory allegation . Conclusory allegations cannot serve as the grounds 1042-43 . federal habeas relief. See Green , Lewis's claim is particularly unconvincing the numerous sworn statements Lewis himself attest which various peop le F . 3d light including was mentally competent during the proceedings .zo The court gives a presumption of verity to official court documents. See Webster v . Estelle, 1974) Lewis makes these documents . Since F.2d 926, 929-30 attempt to challenge the accuracy of failed produce clear and convincing evidence of the court must accept the state's finding correct . mental competence as See Cockrell, 311 F .3d at 668 . To satisfy prejudice prong must affirmatively prove the Strickland test Lewis reasonable probab ility the 20 see, e . G ., Affidavit of Steven M . Goins, SHCR-OI, p . 65; Waiver of constitutional Rights, Agreement to Stipulate , and Judicial Confession , SHCR-OI, p . 88; Admonishments , SHCR-OI, p . 90 . outcome of the proceedings would have differed but error of counsel . Strickland , 104 S . of the alleged 2068 . In the context guilty plea, the prejudice requirement nfocuses on whether counsel's constitutionally ineffective performance affected outcome of the plea process .' United States v . Glinsev, 209 F .3d ' 386, 392 ( 5th Cir. 2000) ( quoting Hill, 106 S. at 370). Lewis predicates claim would have been rejected had his counsel moved for a Competency hearing . However, as explained above , since the state court's finding amply supported, Lewis cannot show that competency competency hearing would have affected the outcome of the plea process . A ccordingly, Lewis has failed 104 establish prejudice. Ct. at 2068. The court See Strickland, reject Lewis's claim without considering the deficient performance prong of the Strickland test . See Amos, 61 F.3d at 348. The court further finds that Lewis's plea was constitutionally valid with respect Godinez, at 2686. Respondent competency . See entitled to summary judgment on claim Application to Claim (l) ( ) b Lewis claims counsel because that he received ineffective assistance trial attorney failed to in form him of the essential elements of the offenses to which he pled guilty . He alleges that he neither knew of nor actually possessed the mens rea crimes charged against Lewis argues his trial counsel's failure to explain the requisite mental state prejudiced him by leading to an unintelligent guilty p lea . He further claims that the resulting conviction violated due process rights . Respondent argues that the record shows Lewis was admonished as to the essential elements of the offenses, the maximum penalty for each crime, and the rights forfeited by his plea . The court will uphold a guilty p lea if the record shows that petitioner was aware sub stance the charges against him and the consequences of his plea . Bovkin, 89 at 17117 James, 56 F .3d at 666. This information does not necessarily need come from his lawyer . See Burdick, signed various documents swearing F .3d at 547-48 . Lewis he knew and understood substance of the charges and the consequences of his p1ea .21 His lawyer, the prosecutor, and the trial judge signed these documents approva1 .2 2 presumption The court affords these verity . Lewis's challenge challenge See Webster, official documents F .2d at 929-30. the guilty plea may these documents, he offers While understood as specific facts that 2l see, e . g ., Waiver of Constitutional Rightsr Agreement to Stipulater and Judicial Confession, SHCR-OI, pp . 88-89 ( listing the essential elements of the crime and various rights waived by Lewis's plea); Admonishments, SHCR-OI, pp . 90-94 ( outlining the maximum penalty for the charged crime and listing various rights waived by Lewis's plea). 2 21d would support this challenge . conclusory allegations overcome the formidable barrier against collateral attack erected by the presumption of verity . See Blackledqe v . Allison , 97 S . Ct . 1621, 1629 ( 1977). Since the court concludes th at Lewis's p lea was voluntary and intelligent , ineffective assistance claim fails becau se he cannot show prejudice . claim Lewis argues that suffered prejudice by entering an unintelligent plea based on the allegedly incomplete information given Regardless of whether his trial counsel . counsel properly informed him , record reflects that various sources p rovided Lewis information make voluntary and intelligent plea . shown that the outcome of a11 the Lewis p roceedings would have differed for trial counsel's alleged error . See Strickland , 104 2068. court rejects Lewis's claim ( ( 1) b) without considering the deficient performance prong of the Strickland test . See Amos, F .3d at The court further concludes that Lewis's plea was intelligence . respect to voluntariness and See James, summary judgment on claim ( ( 1) b). Respondent entitled Claim ( ) 2 claim ( Lewis states that his trial counsel: 2) hire ( failed a) psychiatrist to testify about Lewis's mental illness, used abusive language while addressing Lewis, and prepare for trial. asserts failed to Specifically regarding claim ( a), Lewis 2)( expert testimony would nclearly have mitigated the petitioner's punishment even as well expanded result of a not guilty by reason later with insanity vote .'23 ' argues that Lewis's claims are conclusory and Respondent to affirmatively prove ineffective assistance of counsel . The court addresses each item within claim separately . Lewis fails to prove either prong of the Strickland test with respeet claim To extent that he argues psychiatric evaluation would have established the affirmative defense of insanity, Lewis waived such defense with his guilty plea. See Speed v. United States, 441 F.2d 1106, 1107 ( 5th Cir. 1971) ( per curiam) ( stating that insanity merits, all of which are waived defense guilty plea). As the the Lewis's claim is unsubstantiated and conclusory . uAlthough failure present mitigating evidence during penalty phase not, per se, ineffective assistance of counsel, counsel has a duty z Memorandum 3 Habeas Corpus, p . Law and Brief Support App lication make to make a reasonable investigation of defendant's case or reasonable decision that particular Ransom v . Johnson, unnecessary . investigation ( 5th 1997) The record shows that Lewis's attorney ( citations omitted) presented witnesses to testify about Lewis's tumultuous childhood and diagnosed illnesses as part of a plea for leniency, indicating that counsel make a reasonable investigation .zl Lewis presents no evidence that persuades the court that his counsel's psychiatrist failure unreasonable . the objectively Lewis does not explain what additional evidence psychiatrist could have added affected was how such evidence would have His outcome conclusory claim Strickland test and affirmatively proves neither prong insufficient for federal habeas relief. See Green, 160 F .3d 1042-43 . Claim ( ( 2) b) similarly without merit. Lewis alleges that his attorney was constitutionally ineffective because coun sel nout of nowhere .- started yelling and screaming the petitioner ./z 's The trail record shows that Lewis's attorney was admonished for raising voice while attempting have Lewis reaffirm 2 see generallv Reporter's Record, pp . 118-36 ( 4 testimony of Fannie Davis, Lewis's grandmother), 136-49 ( testimony of Michael Davis, Lewis's uncle), 150-56 ( testimony of Carlton Lewis, Lewis's brother). MMemorandum of Law and Brief Habeas Corpus, p . 1 . Support Application for criminal culpability .z Lewis has not shown 6 this behavior was objectively unreasonable or that it prejudiced the outcome of the in any way. The court grant summary judgment on claim ( ) ( ). 2 b Lewis alleges that his trial counsel failed to In claim Lewis's This claim trial . prepare guilty plea b0th forfeited and meritless. right waived pursue a1l nonjurisdictional guilty plea. 1983). To Smith v. Estelle, the extent he F.2d 682 ( 5th Cir. challenges preparation for the PSI, Lewis fails to support evidence . trial counsel's claim w ith any His conclusory allegation conflicts with the facts discussed above . alleges no specific omission by counsel that is objectively unreasonable, nor does he explain how such omission prejudiced him. The court must deny claim ( c). 2)( See Green, 16O F .3d at 1042-43. B. Claim ( 3): Abuse of Trial Court Discretion In claim discretion Lewis argues that the trial court abused its by not sua sronte ordering Respondent asserts that this claim without merit . competency procedurally barred As discussed above, Lewis M Reporter's Record , 163, - 25- hearing . barred from seeking relief on this claim . grounds The court additionally finds sufficient deny it on the merits were it not barred . Apolicable Law A trial must conduct a sua sponte defendant's mental competence inquiry into evidence before raises a nbona fide doubt' ' to competence . judge Pate , To determ ine whether a nbona fide doubt' exists, the trial ' court must exam ine : any history the defendant's demeanor opinions on competency . 2000). trial, and any prior medical Mata v . Johnson, 21O F .3d objective review of the evidence yields reasonab le doubt as must conduct irrational behavior, the defendant's competence, the trial court competency inquiry . Id .; Carter, 131 F .3d at 459 n .1O. The determination of whether a reasonable doubt exists falls within the sound Davis, United States v v F.3d 291, 304 ( 5th 1995) Th is determination only reviewed for an abuse of discretion . M e sse rv ev z F .3d United States v . ( 5th 2002). The court will not find an abuse of discretion unless evidence of incompetence was sufficiently manifest to the See id . ( quoting Zapata v . Estelle, 588 F. 2d 1017, 1021 ( 5th nsufficiently m anifest' ' 1979)) uclearly - 26- Evidence connected the competence of the defendant' and presented ' manner that does not require na busy trial judge to aggregate information.' See id. ' The petitioner has burden of p roducing such evidence and proving that reasonable doubt See Tavlor, competence existed at trial. at 1519. Analvsis Lewis supports his claim with : ( a medical record diagnosing 1) post traumatic stress disorder, depression, and anxiety; testimony from his relatives about his mental health issues; and personal testimony committing the crimes due g the crimesq that he either did intoxication or that nanother person E himq.' 7 '2 He offers no evidence as medical opinions prior irrational behavior The court evidence incompetence, sufficiently manifest finding light mental not persuaded that Lewis has produced competency . especially remember otherwise, state habeas court's unchallenged competence . Lewis's personal testimony appears to be a calculated , albeit misguided, challenge mens rea of his offenses rather than a demonstration of mental incompetence . Lewis fails to carry his burden and gives the court no reason to question the trial court's sound discretion . See Messervev , 317 F .3d 457 at z Memorandum of Law and Brief 7 Habeas Corpus, pp . 3-4. Support of Application for claim denied on would the merits were procedurally barred . C. Claim ( 4): Legal Insufficiency of the Evidence Lewis's assertion that offenses due does remember committing the his PCP usage m ay be interpreted as claim of legal insufficiency of the evidence in that he lacked the requisite mental state for the crimes . The court eoncludes that if Lewis has made such a claim , he has forfeited it through guilty plea. Smith , 711 F .2d at 6827 see also Kelley v . A labama, 636 F .2d 1082, 1083-84 Cir. 1981) ( petitioner who pleads guilty may request a new trial on legal sufficiency grounds unless he shows a defect plea). Such a claim would also be meritless, as Texas has long recognized that voluntary intoxication is not defense crime. See Roqas v. State, 986 S. W.2d 241, ( Tex. Crim . App . 1998) ( citing to TEX. PEN. COD S 8.04( E a)). To the extent that Lewis claim s the evidence against him was legally insu fficient support charges against him , the concludes that the respondent is entitled to summary judgment. V . Certificate of Appealabilitv Although Appealability Lewis has not yet C' COA')r the ' Alexander v . Johnson, requested Certificate may deny a COA sua sponte. F.3d 895, 898 ( 5th - 28- 2000) ( per obtain curiam). claims denied the merits Lewis must make ua sub stantial showing of the denial of a constitutional right.' 28 U.S. 5 2253( ' C. c) make such Tennard, at 2569. showing Lewis must demonstrate that the issues are debatable among jurists issues reason, that a court could resolve different manner, that the issues presented are adequate to deserve encouragement the proceed further . Id . When denies relief based on p rocedural grounds and does not reach the petitioner 's underlying constitutional claim, the petitioner must show that njurists of reason would find debatable whether the petitioner states of a constitutional right,' and that they nwould find it debatable ' whether the district court was correct Slack v. McDaniel, 120 its procedural ruling.' ' 1595, 1604 ( 2000). For the reasons stated in this Memorandum Opinion and Order, Lewis has substantial showing denial of a constitutional rightr nor has he shown that a jurist procedural rulings reason would debate whether this case are correct . Certificate Accordingly, this case . VI . For made a reasons Conclusion and Order explained above , the ORDERS following : Lewis's Petition for a Writ of Habeas Corpus b y a Person in State Custody ( Docket Entry No. 1) is DEN IED . the Respondent Thaler's Motion for Summary Judgment ( Docket Entry No. 12) is GRANTED . SIGNED at Houston, Texasr on this the day of June, 2010. f SIM LAKE UN ITED STATES DISTR ICT JUDGE - 30-

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