William Kelly Vaughn V Director, TDCJ

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATIONS - ORDERED that the petition for a writ of habeas corpus is DENIED and the case is DISMISSED with prejudice. A certificate of appealability is DENIED. All motions not previously ruled on are hereby DENIED. Signed by Judge Rodney Gilstrap on 7/12/2017. (ch, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
WILLIAM KELLY VAUGHN, #1859690

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 2:15cv127

ORDER OF DISMISSAL

Petitioner William Kelly Vaughn, proceeding pro se and in forma pauperis, filed the abovestyled and numbered petition for habeas corpus. The above-entitled and numbered civil action was
heretofore referred to United States Magistrate Judge Roy Payne, who issued a Report and

Recommendation concluding that the petition should be dismissed with prejudice. Mr. Vaughn has
filed objections.
Standard of Review and Reviewability
Where a magistrate judge's report has been objected to, the district court reviews the
recommendation de novo pursuant to Federal Rule of Civil Procedure 72. See also 28 U.S.C. § 636(b)
(1) (“A judge of the court shall make a de novo determination of those portions of the report or
specified proposed findings and recommendations to which objection is made.”). During a de novo
review, a court examines the entire record and makes an independent assessment of the law. When
no objections are filed, plaintiff is barred from de novo review by the district judge of those findings,
conclusions, and recommendations and, except upon grounds of plain error, from appellate review of
the unobjected-to factual findings and legal conclusions accepted and adopted by the district court.
Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir.1996) (en banc ).
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Discussion and Analysis of Plaintiff’s Objections
The Report concluded that the petition for writ of habeas corpus should be denied and that
the case should be dismissed with prejudice because the claims were meritless. Mr. Vaughn argues
that the Report was incorrect.
In his first objection, Mr. Vaughn repeats his argument that he was denied the effective
assistance of counsel by his trial attorney. Mr. Vaughn, however, pled guilty to the charges against
him. By entering a guilty plea, a defendant waives all non–jurisdictional defects. Tollett v.
Henderson, 411 U.S. 258, 267 (1973). Any challenge to a conviction obtained by a guilty plea is
limited to issues concerning the voluntariness of the plea, the defendant’s understanding of the
charges against him, and his understanding of the consequences of the plea. Hill v. Lockhart, 474
U.S. 52, 56–57 (1985); Diaz v. Martin, 718 F.2d 1372, 1376-77 (5th Cir. 1983). A plea of guilty is
more than a mere confession; it is “an admission that [the defendant] committed the crime charged
against him.” United States v. Broce, 488 U.S. 563, 570 (1989); Taylor v. Whitley, 933 F.2d 325, 327
(5th Cir. 1991); see also North Carolina v. Alford, 400 U.S. 25, 32 (1970). “A plea of guilty and the
ensuing conviction encompass all of the factual and legal elements necessary to sustain a binding,
final judgment of guilt and a lawful sentence.” Broce, 488 U.S. at 569. Specifically, a defendant
waives his right to challenge the effectiveness of his counsel except as the alleged ineffectiveness
relates to the voluntariness of his guilty plea. Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983).
Mr. Vaughn again complains that his trial counsel was ineffective for failing to investigate,
confer with him, and advise him. See Fed. Writ Pet. at 7. He has failed to demonstrate, however, that
his attorney’s actions caused him to plead guilty without a full understanding of the nature of the
charges against him or the consequences of his plea. Grabowski v. Hargett, 47 F.3d 1386, 1389 (5th

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Cir. 1995). Because Mr. Vaughn has failed to prove that his guilty plea was in any way involuntary
or that his attorney’s actions caused him to plead guilty, he has waived the right to argue that his
counsel was ineffective. Smith, 711 F.2d at 682 (because petitioner’s guilty plea was entered into
voluntarily, he waived his ineffective assistance of counsel claims with regard to failure to
investigate).
Mr. Vaughn further re-urges his claims that his sentence was illegally enhanced, the judge
had a conflict of interest, and the prosecution presented false information about his prior offenses
to the grand jury. See Fed. Writ Pet. at 6–7. These claims are also waived by Mr. Vaughn’s voluntary
guilty plea. See Tollett v. Henderson, 411 U.S. 258, 265 (1973) (voluntary guilty plea waives
non–jurisdictional defects in a criminal proceeding); Matthew v. Johnson, 201 F.3d 353, 364 (5th
Cir. 2000) (noting long–standing rule that valid guilty plea bars habeas review of non–jurisdictional
claims alleging antecedent violations of constitutional rights).
Regarding his objection about the enhancement of his sentence, Mr. Vaughn’s claim that the
second enhancement paragraph was improper because it was a misdemeanor is meritless. The
relevant enhancement statute for driving while intoxicated offenses does not require the prior
offenses to be felonies. The first and second enhancement paragraphs (paragraphs two and three) of
the indictment alleged prior offenses related to driving while intoxicated for the purposes of §
49.09(b)(2) of the Texas Penal Code, which provides that the offense of driving while intoxicated
can be enhanced to a third degree felony if the defendant has been previously convicted two prior
offenses related to operating a motor vehicle while intoxicated. Tex. Penal Code Ann. § 49.09(b)(2)
(West 2012); SHCR-02 at 2. That section, as opposed to the punishment enhancements contained
in § 12.42(a), does not require any prior offenses to be felonies. See Tex. Penal Code Ann. §
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12.42(a). Thus, Mr. Vaughn’s claim that the indictment contained an illegal enhancement is
groundless based on the language of the Texas Penal Code.
Further, Mr. Vaughn’s claim raises a state law question. Claims based exclusively on state
law are not cognizable in a § 2254 proceeding. “A state prisoner seeking federal review of his
conviction pursuant to 28 U.S.C. § 2254 must assert a violation of a federal constitutional right.”
Lawrence v. Lensing, 42 F.3d 255, 258 (5th Cir. 1994). Federal habeas corpus relief will not issue
to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also
presented. Pemberton v. Collins, 991 F.2d 1218, 1223 (5th Cir. 1993).
Whether an offense has been properly enhanced is generally a matter of state law. See Rubio
v. Estelle, 689 F.2d 533, 536 (5th Cir. 1982); Donald v. Jones, 445 F.2d 601, 606 (5th Cir. 1971).
Similarly, “[t]he sufficiency of a state indictment is not a matter for federal habeas relief unless it
can be shown that the indictment is so defective that it deprives the state court of jurisdiction.”
McKay v. Collins, 12 F.3d 66, 68 (5th Cir. 1994). When a state court has held that an indictment is
sufficient under state law, a federal court need not address that issue. Evans v. Cain, 577 F.3d 620,
624 (5th Cir. 2009); see also McKay, 12 F.3d at 68). Because the state courts already addressed the
sufficiency of Mr. Vaughn’s indictment, this court will not consider his claim that the indictment
was faulty and that the use of the enhancement paragraph was unlawful. Id.; SHCR–02 at “Action
Taken” page. Since Mr. Vaughn’s claim presents a state law issue, he is not entitled to relief.
Finally, this objection is also meritless because he fails to meet AEDPA’s burden of proof.
He has not shown that the state habeas court’s denial of the claim was contrary to, or an unreasonable
application of Supreme Court law. Mr. Vaughn is not entitled to relief because he cannot show “that
the state court’s ruling on the claim being presented in federal court [is] so lacking in justification
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that there was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Richter, 130 S. Ct. at 786–87. Thus, he is not entitled to relief.
Mr. Vaughn also objects to the Report’s conclusion that his claim regarding the trial judge’s
conflict of interest was meritless. The Report found that this claim is unexhausted and procedurally
barred because it was not raised in a state habeas application. Pursuant to 28 U.S.C. § 2254
(b)(1)(A), a state prisoner’s application for a federal writ of habeas corpus shall not be granted unless
the applicant has exhausted his state court remedies. In order to satisfy the exhaustion requirement,
a claim must be presented to the highest court of the state for review. Deters v. Collins, 985 F.2d
789, 795 (5th Cir. 1993); see also Jones v. Jones, 163 F.3d 285, 297–99 (5th Cir. 1998) (distinct
claims of ineffective assistance of counsel are separate claims for purposes of the exhaustion
requirement). This claim is unexhausted because it was never presented to the Texas Court of
Criminal Appeals during direct appeal or the state habeas proceedings. Mr. Vaughn would be cited
for abuse of the writ if he were to present the claim in another application for state writ of habeas
corpus; therefore, the claim is now procedurally barred. Neville v. Dretke, 423 F.3d 474, 480 (5th
Cir. 2005); Tex. Code Crim. Proc. 11.07 § 4 (West 2015).
Mr. Vaughn does not address the procedural bar to this claim. Where there is a procedural
bar, a state prisoner may not obtain federal habeas corpus relief absent a showing of cause for the
default and actual prejudice that is attributable to the default, or 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
(1991); Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995). A miscarriage of justice in this context
means that the petitioner is actually innocent of the crime of which he was convicted. Sawyer v.
Whitley, 505 U.S. 333, 339–40 (1992); see Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001). Mr.
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Vaughn has failed to show cause and prejudice, or a miscarriage of justice, so the Report is correct
that this claim is procedurally barred from federal habeas corpus review.
In his next objection, Mr. Vaughn repeats his claim that the District Attorney perjured
himself to the Grand Jury. The Report found that this claim was meritless because it was unfounded
and conclusory. “Mere conclusory statements do not raise a constitutional issue in a habeas case.”
Schlang v. Heard, 691 F.2d 796, 799 (5th Cir. 1982). Under Rule 2© of the Rules Governing Section
2254 cases, a petitioner is required to plead facts in support of his claims. The Fifth Circuit has held
“[a]bsent evidence in the record, a court cannot consider a habeas petitioner’s bald assertions on a
critical issue in his pro se petition, unsupported and unsupportable by anything else contained in the
record, to be of probative evidentiary value.” Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983);
see also Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000). Accordingly, “the presentation of
conclusory allegations unsupported by specifics is subject to summary dismissal.” Blackledge v.
Allison, 431 U.S. 63, 74 (1977). Mr. Vaughn again has offered nothing to this court beyond
conclusory claims with no support in the record. The Court will overrule this objection.
Mr. Vaughn also generally objects to the Report and Recommendation. (Dkt. #31, p. 9).
Objections to a Report and Recommendation must specifically identify portions of the Report and the
basis for those objections. See Fed. R. Civ. P. 72(b). If the party fails to properly object because the
objections lack the requisite specificity, then de novo review by the court is not required. See Battle
v. United States Parole Commission, 834 F.2d at 421. Mr. Vaughn’s general objections in this
instance are not specific enough to warrant de novo review. They are overruled.
Further, Mr. Vaughn has not met his burden of proof to demonstrate that the state habeas
court’s denial of the claims was contrary to, or an unreasonable application of Supreme Court law.

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He is not entitled to relief because he cannot show “that the state court’s ruling on the claim being
presented in federal court [is] so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562
U.S. at 101-102. Mr. Vaughn has failed to overcome the presumption of correctness afforded the
implicit findings of the state court, and he has failed to demonstrate that its decision to deny relief
was unreasonable. Mr. Vaughn’s objections are without merit.
The Report of the Magistrate Judge, which contains the proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and having
made a de novo review of the objections adequately presented by the Petitioner to the Report, the

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Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct.
Therefore the Court hereby adopts the findings and conclusions of the Magistrate Judge as the
findings and conclusions of the Court. It is accordingly
ORDERED that the petition for a writ of habeas corpus is DENIED and the case is
DISMISSED with prejudice. A certificate of appealability is DENIED. All motions not previously
ruled on are hereby DENIED.

SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 12th day of July, 2017.

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RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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