Sanchez v. Quarterman

Filing 19

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION for 16 Report and Recommendations. Signed by Judge David Folsom on 1/09/12. (mrm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
GILBERT FRANK SANCHEZ

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 5:09-CV-113

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner, Gilbert Frank Sanchez, an inmate currently confined at the T.L. Roach Unit in
Childress, Texas, proceeding pro se and in forma pauperis, filed this petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
The Court referred this matter to the Honorable Caroline Craven, United States
Magistrate Judge, at Texarkana, Texas, for consideration pursuant to applicable laws and orders
of this Court. The Magistrate Judge recommends this petition be dismissed.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, and pleadings. Petitioner
filed objections to the Report and Recommendation of United States Magistrate Judge. This
requires a de novo review of the objections in relation to the pleadings and applicable law. See
FED . R. CIV . P. 72(b).
After careful consideration, the Court finds petitioner’s objections lacking in merit. As
the Magistrate Judge correctly concluded, the record of the plea proceedings does not support
petitioner’s assertion that his plea was rendered involuntarily as a result of coercion or threats on
the part of counsel or others. Without substantiation 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. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983). Accordingly, a
habeas petitioner’s self-serving assertion, after the fact, that he was persuaded, threatened, or
coerced into entering a guilty plea by counsel is in and of itself insufficient. 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 (2nd Cir. 1991) (a defendant’s testimony after the fact suffers from obvious credibility
problems).
Petitioner has presented no legal authority or evidence concerning counsel’s
representation and influence on his decision to plead guilty sufficient to rebut the presumption of
regularity of the state court records and the correctness of the state courts’ adjudication of the
issue. See Babb v. Johnson, 61 F.Supp.2d 604, 607 (S.D. Tex. 1999); see also Hill v. Johnson,
210 F.3d 481, 485. The record supports the state courts determination of petitioner’s ineffective
assistance of counsel claims. The state courts’ decision is not contrary to nor does it involve an
unreasonable application of federal law in light of the record as a whole, and it is entitled to
deference and the presumption of correctness.
Furthermore, the court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a judgment denying post-conviction collateral relief may not
proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2254. The standard
for a certificate of appealability requires the petitioner to make a substantial showing of the
denial of a federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000);
Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir. 2004). To make a substantial showing, the
petitioner need not establish that he would prevail on the merits. Rather, he must demonstrate
that the issues are subject to debate among jurists of reason, that a court could not resolve the
issues in a different manner, or that the questions presented are worthy of encouragement to
proceed further. See Slack, 529 U.S. at 483-84. Any doubt regarding whether to grant a
certificate of appealability should be resolved in favor of the petitioner, and the severity of the
penalty may be considered in making this determination. See Miller v. Johnson, 200 F.3d 274,
280-81 (5th Cir.), cert. denied, 531 U.S. 849 (2000).
In this case, petitioner has not shown that any of the issues would be subject to debate
among jurists of reason. The questions presented are not worthy of encouragement to proceed
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further. Therefore, the petitioner has failed to make a sufficient showing to merit the issuance of
certificate of appealability.
ORDER

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Accordingly, the objections of petitioner are OVERRULED. The findings of fact and
conclusions of law of the Magistrate Judge are correct, and the report of the Magistrate Judge is
ADOPTED. A final judgment will be entered in this case in accordance with the Magistrate
Judge’s recommendations. A certificate of appealability will not be issued.

SIGNED this 9th day of January, 2012.

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DAVID FOLSOM
UNITED STATES DISTRICT JUDGE

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