Anderson v. Director, TDCJ-CID

Filing 59

ORDER ADOPTING 52 Report and Recommendations. The petition for writ of habeas corpus is denied and the case is DISMISSED with prejudice and a certificate of appealability is DENIED. Any remaining motions not previously ruled on, including Petitioner's 41 Motion for Default Judgment, 39 Motion for Judgment on the Pleadings, and 37 Motion for Summary Judgment, are DENIED. Signed by Judge Leonard Davis on 3/21/2012. (leh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

TERRY WELDON ANDERSON, #654139

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 6:10cv420

ORDER ADOPTING REPORT AND RECOMMENDATION
The above-entitled and numbered petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254 was heretofore referred to United States Magistrate Judge John D. Love. The Report and
Recommendation (“R&R”) of the Magistrate Judge, which contains proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration. The R&R
issued on February 21, 2012, and objections were originally due by March 12, 2012. Petitioner filed
a motion for an extension of time, which was granted in part and the Petitioner given until March 19,
2012, in which to file his objections. In the Order granting in part the extension of time, the
Magistrate Judge included the following admonishment:
[Petitioner] is admonished that any objections he may file shall be limited to addressing the
actual, single issue on which the R&R recommends dismissal, i.e., those points in paragraph
IV.B. on the issue of his knowing and voluntary guilty plea, and not on his other claims in
general.
See docket entry #54. That admonishment was given because the R&R addressed only those grounds
for relief that applied to whether Petitioner’s guilty plea in the Texas state court was knowing and
voluntary. Further, Petitioner has filed hundreds of pages of repetitive documents that already address
his other issues. On March 16, 2012, Petitioner did file his objections. Despite the explicit

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admonishment quoted above, much of Petitioner’s objections address Grounds One, Two, Three, Four,
Six and those portions of Grounds Five and Seven that do not apply to the “knowing and voluntary”
analysis with regard to his guilty plea.
Having made a de novo review of the objections raised by Petitioner to the issues analyzed in
the R&R, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are
correct and Petitioner’s objections are without merit.
As the Magistrate Judge observed, Petitioner entered a plea of guilty in the state trial
proceedings. If a defendant understands the charges against him, understands the consequences of a
guilty plea, and voluntarily chooses to plead guilty, without being coerced to do so, the guilty plea and
any concomitant agreement will be upheld on federal review. Deville v. Whitley, 21 F.3d 654, 656
(5th Cir. 1994). A voluntary guilty plea waives all non-jurisdictional defects in the proceedings below
except claims of ineffective assistance of counsel relating to the voluntariness of the plea. United
States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir.
1983).
In this case, Petitioner contends that a jurisdictional defect existed in the trial court, namely,
that the indictment had been “illegally amended,” and that his conviction and sentence were illegal
because they arise out of the same crime that had already been dismissed from that indictment.
Petition at PageID #8 (Grounds One and Two). He re-urges these arguments in his objections. See
Objections at 5-6 (PageID # 617-18). For example, he objects that “The District Attorney did not file
motion for leave to amend, nor did he send [the indictment] back to the grand jury to have it legally
amended.” Objections at 5 (PagID #617). However, as the Magistrate Judge observed and quoted at
length in the R&R, Petitioner waived his right to proceeding under an indictment in favor of

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proceeding under an information. Petitioner specifically executed a Waiver of Indictment, in which
he, “accused of the non-capital felony offense of MURDER, and represented by his attorney and
having been advised of the charge against him and his right not to be tried in this case except on the
indictment of a Grand Jury, hereby in Open Court and in writing voluntarily and knowingly waives
his right to be prosecuted by a Grand Jury indictment and announces his election and consent to be
charged by information.” See R&R at 11; see also R&R at 14, 16 (noting waiver of indictment).
Clearly, Petitioner waived the indictment of which he now complains. Moreover, Petitioner’s right
to an indictment by a grand jury only existed prior to his entry of his guilty plea and, even if there had
been no waiver of indictment, the use of a bill of information is a nonjurisdictional defect that cannot
be raised on habeas proceedings. See United States v. Daughenbaugh, 549 F.3d 1010, 1012 (5th Cir.
2008). Furthermore, in a federal court, “habeas corpus can be invoked with respect to indictments
only where they are ‘so fatally defective’ that under no circumstances could a valid conviction result
from facts provable under the indictment.” See Johnson v. Estelle, 704 F.2d 232, 236 (5th Cir.), reh’g
denied, 711 F.2d 1054 (5th Cir. 1983), and cert. denied, 465 U.S. 1009, 104 S. Ct. 1006, 79 L. Ed.
2d 237 (1984) (citing Johnson v. Beto, 383 F.2d 197, 198 (5th Cir.), cert. denied, 393 U.S. 868, 89
S. Ct. 153, 21 L. Ed. 2d 136, and reh’g denied, 393 U.S. 992, 89 S. Ct. 455, 21 L. Ed. 2d 458 (1968)).
Petitioner has made no such showing here. Therefore, his claims of a “jurisdictional defect” are
without merit.
The only remaining issues are those that directly address the knowing and voluntary nature of
Petitioner’s plea agreement, his claims that his trial counsel did not provide him with “reasonably
competent advice” as to his plea of guilty. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708, 64
L. Ed. 2d 333 (1980). These include that counsel used “fear, threats and erroneous advice” and also

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used “false and altered records” to obtain his guilty plea; that the trial court “switched” his trial
counsel, providing him with an “incompetent attorney”; that the trial judge and prosecutor and,
separately, his trial counsel withheld various forms of “exculpatory evidence”; that the trial judge and
prosecutor would not allow his witnesses to testify and required him to admit guilt prior to sentencing;
Petitioner claims to have “newly discovered evidence” in the form of a psychiatric report; that trial
counsel omitted “facts of law” about certain defenses that Petitioner claims are “automatic
justifications” for his criminal charge; and that trial counsel advised him that a jury would find him
guilty of the charges against him if he proceeded to trial. The Magistrate Judge addressed each of
these claims, finding them either groundless on their merits, conclusory and without support, or
irrelevant. See R&R at 13-18. He also recommended that Petitioner’s outstanding “judgment on the
pleadings” (docket entry #39); “default judgment” (docket entry #41); and for “summary judgment”
(docket entry #37), be denied for the same reasons stated in the R&R.
Petitioner has presented two new “unsworn affidavits” attached to his objections (see PageID
#638-43 and 644-46), which purport to substantiate what both he and his brother1 were told by their
respective trial counsels and the Assistant United States Attorney that was involved in the case for a

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The Magistrate Judge observed in the R&R that both Petitioner and his brother, Tony
Wayne Anderson, who is proceeding in his own habeas case, Tony Wayne Anderson v. Director,
TDCJ-CID, No. 6:10cv430, have made identical claims of what their respective (and separate)
attorneys told them, down to every detail of their ineffective assistance of counsel grounds. This
Court further observes that Petitioner is imprisoned in the Stiles Unit and his brother, who has
handled much of the legal argument for both cases, is imprisoned in the Beto One Unit. Both sets
of objections in these two cases were filed days apart, Tony Wayne Anderson’s being the first.
Petitioner’s instant objections are an exact duplicate, down to handwritten interlineations on various
pages, of his brother’s, with the exception that individual page and line references to the respective
R&R have been changed to match. Although Petitioner’s objections purportedly carry his signature,
they were mailed not from the Stiles Unit but from the Beto One Unit with his brother’s return
address. Although suspicious, the Court will nonetheless accept the purported origin and bona fides
of Petitioner’s objections for the purposes herein.
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time. The first such “affidavit” is that of his brother, Tony Wayne Anderson, and is a copy of the
hand-written document filed with his brother’s objections in his own case. The second “affidavit” is
a typed copy of the same affidavit, with only minor variations in typing, with Petitioner’s name and
case number in the caption. Its content is virtually identical to that of his brother’s hand-written
document; the only substantive difference, other than the caption, is that it is unexecuted and,
therefore, without value. Even if given some credence, the unsigned document simply claims that
Petitioner has “personal knowledge” of the conversations between his brother and his separate
counsel, just as his brother’s affidavit did in reverse. It also restates several of Petitioner’s legal
arguments instead of simply making statements of fact personally known to him. Notwithstanding,
the purported “affidavit” adds nothing to Petitioner’s argument.
His remaining objections fundamentally repeat the arguments raised in his original petition and
supporting memoranda, responses and other documents. He does add a number of statements that are
not strictly legal argument, along the lines of, for example, “Also let me say had the court appointed
attorney told me that the D.A. doesnt need a complaint attatched to the information when a person
waives right to INDICTMENT petitioner would not have plead guilty . . . .” See Objections at 7
(PageID #619) (as in original). Even accepting such statements that properly belong in a declaration
or affidavit, the fact is that Petitioner did plead guilty to an information and made no objection or
protest as to its form. Claims of this nature now, nearly nineteen years later, are ineffective. He also
has attached a letter he purportedly jointly wrote with his brother to the trial judge, Judge Kent, in his
case on October 5, 1993, complaining that the district attorney and his then-appointed counsel were
being untruthful with him. See Objections at 7 (pageID #619) & attachment (PageID #636-37). He
states that he sent this letter nine days before he pleaded guilty and argues that it shows his plea was

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involuntary. Objections at 7. However, he has presented this letter several times to the state courts
on direct appeal and on state habeas application and to this Court on federal habeas petition. The fact
is that he entered into his guilty plea nine days after this communication, before the same judge and
without objection.
Petitioner has raised nothing new in his objections showing that he did not knowingly and
voluntarily enter into his guilty plea. Therefore, Petitioner’s objections are without merit and are
overruled. The Court is of the opinion that the findings and conclusions of the Magistrate Judge are
correct, and adopts same as the findings and conclusions of the Court.
As the Magistrate Judge found, Petitioner has not shown that the state court proceedings of
which he complains resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court of the United
States, or resulted in a decision that was based on an unreasonable determination of the facts in light
of the evidence presented. See Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir.), cert. denied 537 U.S.
953, 123 S. Ct. 420, 154 L. Ed. 2d 300 (2002); 28 U.S.C. § 2254(d). It is accordingly
ORDERED that Petitioner’s Objections (docket entry #58) are hereby OVERRULED. It is
further
ORDERED that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is
DENIED and the case is DISMISSED WITH PREJUDICE. It is further
ORDERED that a certificate of appealability is DENIED. It is finally

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ORDERED that any remaining motions by either party not previously ruled on, including
specifically but not limited to Petitioner’s motions for “Judgment on the Pleadings” (docket entry
#39); “Default Judgment” (docket entry #41); and for “Summary Judgment” (docket entry #37), are
hereby DENIED.
So ORDERED and SIGNED this 21st day of March, 2012.

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LEONARD DAVIS
UNITED STATES DISTRICT JUDGE

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