Nichols v. Director TDCJ-CID

Filing 31

ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGES 27 REPORT AND RECOMMENDATION. Signed by Judge Michael H. Schneider on 9/13/16. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
SYLVESTER NICHOLS

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 9:13cv109

ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Sylvester Nichols, an inmate confined at the Stiles Unit of the Texas Department of Criminal
Justice, Correctional Institutions Division, proceeding pro se, filed the above-styled petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a conviction for aggravated
assault.
The court referred this matter to the Honorable Keith F. Giblin, United States Magistrate
Judge, for consideration pursuant to 28 U.S.C. § 636 and applicable orders of this Court. The
Magistrate Judge has submitted a Report and Recommendation of United States Magistrate Judge
concerning this matter. The Magistrate Judge recommends the petition be denied with prejudice.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. Petitioner filed objections to the Report
and Recommendation. The court must therefore conduct a de novo review of the objections.
Petitioner asserted four different ways in which his attorney provided ineffective assistance
of counsel. The Magistrate Judge concluded that petitioner’s third and fourth grounds for review
relating to ineffective assistance of counsel were procedurally barred. Petitioner makes no objection
to this conclusion.
In his first and second grounds for review relating to ineffective assistance of counsel,
petitioner complains counsel failed to completely admonish him regarding the laws and facts of his
case and incorrectly told him that the prosecution had offered a 10 year sentence and participation
in a drug and alcohol treatment program if he entered a plea of guilty. The court agrees with the
Magistrate Judge’s conclusion that these ground for review are without merit. Similarly, the court

agrees petitioner’s contentions that there was insufficient evidence to support his conviction and that
his indictment was invalid and void were waived by his knowing and voluntary plea of guilty and
do not provide him with a basis for relief.
Petitioner also asserts his plea of guilty is void because paragraph 5 of the Written Plea
Admonishments-Waivers-Stipulation he signed provided that he was pleading guilty to a lesserincluded offense rather than the offense of aggravated assault. However, a review of the document
reveals this contention is without merit.
Paragraph 1 of the Written Plea Admonishments-Waivers-Stipulations provided that
petitioner had been charged with the offense of aggravated assault and that the prosecution had not
made any motions to reduce the charge. Paragraph 5 provided as follows:
GUILTY PLEA: Understanding and agreeing to all of the above, I freely and voluntarily plead GUILTY and confess my GUILT to having committed each and every
element of the offense alleged in the indictment or information by which I have been
charged in this cause. Where the State is proceeding on a lesser included offense
arising out of said indictment or information, I plead GUILTY and confess my GUILT
to having committed each and every element of the lesser included offense only. I
plead guilty to the enhancements pled in this cause not abandoned by the State.
Considering the document as a whole, it is clear that petitioner was pleading guilty to the
offense of the aggravated assault and that the operative sentence of paragraph 5 was the first
sentence, rather than the second sentence. There is no indication in the record that petitioner was
pleading guilty to a lesser-included offense.
Accordingly, petitioner’s objections 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 as the opinion of the court. A final judgment shall be entered in accordance with the
recommendation of the Magistrate Judge.
In addition, the court is of the opinion that the petitioner is not entitled to a certificate of
appealability. An appeal from a judgment denying federal habeas relief may not proceed unless a
judge issues a certificate of appealability. See U.S.C. § 2253. The standard that must be met in order
to receive 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
is not requited to demonstrate that he would prevail on the merits. Rather, he need only demonstrate
that the issues are subject to debate among jurists of reason, that a court could resolve the issues in
a different manner, or that the questions presented in the petition are worthy of encouragement to
proceed further. See Slack, 529 U.S. at 483-84. If the petition was dismissed on procedural grounds,
the petitioner must show that jurists of reason would find it debatable: (1) whether the petition raises
a valid claim of the denial of a constitutional right, and (2) whether the district court was correct in
its procedural ruling. Slack, 529 U.S. at 484; Elizalde, 362 F.3d at 328. 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. 2000).
In this case, the petitioner has not shown that any of the issues raised by his claims are subject
to debate among jurists of reason. The factual and legal questions raised by petitioner have been
consistently resolved adversely to his position and the questions presented are not worthy of
encouragement to proceed further. As a result, a certificate of appealability shall not issue in this
matter.
SIGNED this 13th day of September, 2016.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE