Skidmore v. Quarterman

Filing 14

FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: Petitioner's application for writ of habeas corpus should be denied. Magistrate Judge Jeff Kaplan no longer assigned to case. (Ordered by Magistrate Judge Jeff Kaplan on 7/10/2009) (mfw)

IN THE UNITED STATESDISTRICTCOURT NORTHERNDISTRICTOF TEXAS D A L L A S DIVISION STEVENCLAYTON SKIDMORE
Petitioner,

VS. NATHANIEL QUARTERMAN, Director TexasDepartment CriminalJustice, of Correctional Institutions Division
Respondent.

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NO.3-08-CV-1ss4-B

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F I N D I N G S AND RECOMMENDATION OF THE U N I T E D STATESMAGISTRATE JUDGE for has a PetitionerStevenClaytonSkidmore, Texasprisoner, filed an application writ of should herein, application the stated pursuant 28 U.S.C 5 2254. Forthereasons . to habeas corpus b e denied.
I. A Johnson County grandjury chargedpetitioner in a multi-count indictment with robbery, assaultof a public servant, unlawful restraint,evading arrestwith a vehicle, two countsof aggravated petitioneragreed attempts disposeof the case, to a n d criminal mischief. After severalunsuccessful to plead guilty to robbery, evading arrest with a vehicle, and one count of aggravatedassaultof a him to 10 years p u b l i c servant.r The trial court acceptedpetitioner'sguilty plea and sentenced probation for robbery, l0 yearsdefened adjudication community supervisionfor evadingarrestwith for assaultof a public servant. No appeal was a vehicle, and sevenyears conf,rnement aggravated taken. Instead, petitioner challenged all three convictions on state collateral review. The Texas
I As part of the plea agreement,the state agreedto dismiss the other counts of the indictment.

assault a of Court of Criminal Appealsdeniedrelief as to petitioner's convictionfor aggravated arrest for publicservant, dismissed and thoseclaimsinvolvinghis convictions robberyandevading then WR-70,3 22-01(Tex. Crim. App.Aug.20,2008).Petitioner with a vehicle. Exparte Skidmore, filed this actionin federaldistrict court.
II. of In four grounds for relief, petitioner contendsthat: (l) he received ineffective assistance for c o u n s e l ; (2) his sentence evading arrestwith a vehicle is illegal; (3) he was not chargedor arraigned in a timely manner; and (3) the indictment violated the Double JeopardyClause. A. cases governedby the Antiterrorism and Effective is The standardofreview in federalhabeas D e a t h p e n a l t y A c t o f 1996("AEDPA"). SeePub.L. 104-132,1l0Stat.I2l4(1996). Where,ashere, a state court has already rejected the claims raised by petitioner, a federal court may grant habeas relief only if the statecourt adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determinedby the SupremeCourt of the United States;or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presentedin the State court proceeding. see 2 8 U.S.C. g 225a@); also Williamsv. Taylor,529U.S. 362,411'13, 120 S.Ct. 1495,1522-24, 146L.Ed.2d 389 (2000). A statecourt decision is contrary to clearly establishedfederal law if "it r e l i e s on legal rules that directly conflict with prior holdingsof the SupremeCourt or if it reaches a different conclusion than the Supreme Court on materially indistinguishable facts." Busby v. D r e t k e , 3 5 9 F . 3 d 7 0 8 , 7 1 3 ( 5 t h C i r .cert.denied,l24S.Ct.2Sl2(2004),citingWilliams,120S.Ct. ),

at l5l9-20. A decision constitutesan "unreasonable application" of clearly establishedfederal law if "the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably appliesthat principle to the factsof the prisoner's case." Williams,l20 S.Ct.at 1523; s e ealso Gardner v. Johnson,247 F.3d 551, 560 (5th Cir. 2001). Factualdeterminations madeby statecourts are presumedto be correct and are unreasonable only where the petitioner "rebut[s] the p r e s u m p t i o nof correctness clear and convincingevidence." 28 U.S.C. $ 2254(e)(1). by B. Petitioner challengesthe validity of his guilty plea to the charge of evading arrest with a vehicle on the ground that his attorneyadvisedhim to acceptan illegal sentence.It is axiomatic that a guilty plea is valid only if entered voluntarily, knowingly, and intelligently, "with sufflrcient Bradshawv. Stumpf,545 U.S. and of a w a r e n e s s the relevantcircumstances likely consequences." U.S. 1 7 5 , 183, 125S.Ct.2398,2405,l62L.Ed.2d 143(2005),quotingBrady v. UnitedStates,397 7 4 2 , 7 4 8 , 9 0 S.Ct. 1463, 1469,25 L.Ed.2d 747 (1970). A plea is intelligentlymade when the defendanthas "real notice of the true nature of the chargeagainsthim." Bousley v. United States, quoting Smithv.O'Grady,372 5 2 3 U.S. 614,618,118S.Ct.1604,1609,140L.Ed.2d828 (1998), u . s . 329, 334, 6l S.Ct. 572, 574,85 L.Ed. 859 (1941). A plea is "voluntary"if it doesnot result or from force, threats,improperpromises,misrepresentations, coercion. SeeUnited Statesv. Amaya, 1 1 1 F.3d 386, 389 (5th Cir. 1997). The Fifth Circuit has identified three core concernsin a guilty p l e a proceeding: (l ) the absence coercion;(2) a full understanding the charges;and (3) a of of of realistic appreciationof the consequences the plea. See United Statesv. Gracia, 983 F.2d 625, containedin Tex. are by 6 2 7 - 2 8(5th Cir. 1993). Thesecoreconcerns addressed the admonishments C o d e Crim. Proc. Ann. art. 26.13. SeeDavis v. Quarterman,No.3-08-CV-2145-L,2009WL

1058059 *2 (N.D. Tex. Apr. 17, 200D.2 at Petitioner was charged with multiple felonies arising out of a series of events that began when Michelle Delano, a passengerin petitioner's truck, refused to loan him $500 to pay off his girlfriend's drug debt. After Delano refusedto loan petitioner the money, he drove to a Wal-Mart parking lot in Burleson, Texas,where he stole apurse from Cynthia Perkins. Petitioner grabbedthe purse from Perkins ashe drove by, draggingher alongsidethe truck. As petitioner left the Wal-Mart parking lot, Delano tried to escapeby jumping out of the truck. Petitioner restrainedDelano in the truck against her will. When the Burleson Police Department arrived at the scene, petitioner

attempted to escapeby ramming his truck head-on into a patrol car. Ultimately, petitioner was capturedand transportedby ambulanceto a local hospital for treatment of injuries sustainedduring h i s escapeattempt. See Ex parte Skidmore, WR-70,322-01,Tr. at 58. Eight weeks later, on December 14, 2006, petitioner was formally charged with the robbery of Cynthia Perkins, the assaultof two unlawful restraint of Michelle Delano, evading arrestwith a vehicle, the aggravated d i f f e r e n t police officers, and criminal mischief. Id.,Tr. at 5-6. Prior to trial, petitioner agreedto plead guilty to robbery, evading arrestwith a vehicle, and of one count ofaggravated assaultofa public servantin exchangefor sentences I 0 yearsprobation, 10 years deferredadjudication community supervision,and sevenyearsconfinement, respectively. . was signedby petitioner, his attorney,and the prosecutor Id. ,Tt. at7 -10. A written plea agreement The agreementdisclosedthat the range of punishment for robbery was not less than two yearsnor more than 20 years confinement anda fine not to exceed$ 10,000,that the range of punishment for
2 The Fifth Circuit hasheld that the admonishments under Fed. R. Crim. P. I I provide "prophylactic protection of f o r the constitutionalrights involved in the entry of guilty pleas." Gracia,983 F.2d at 627. The requirements Rule CompareFro.R.Cruu.P. ll andTsx.CoosCnna. I I andTex. R. Crim. Proc.Ann. art.26.13aresubstantiallysimilar. under PRoc. ANN. art.26.13. It therefore follows that the same"prophylactic protection" attachesto the admonishments at*5n.4 (N.D. Tex. Aug.12,2002), SeeJammev.Cockrell,No.3-01-CV-1370-L,2002WL1878403 article26.13. C O A denied,02-ll0l8 (5th Cir. Mar. 12,2003).

evading alrest with a vehicle was not less than two yearsnor more than 10 years confinement and a fine not to exceed $10,000, and that the range of punishmentfor aggravated assaultof public servant was not less than five years nor more than99 years or life imprisonment and a fine not to e x c e e d$10,000. Id.,Tr. at7. As part of the plea agreement, petitionerwaived the full panoply of his constitutional rights, including his right to a jury trial, his right to confront and cross-examine w i t n e s s e s ,his right to a speedytrial, and his privilege againstself-incrimination. Id., Tr. at 9. Petitioner also signeda written acknowledgmentstatingthat he understoodthe admonishments and w a s aware of the consequences his plea. Id., Tr. at 8. These declarationscarry a strong of p r e s u m p t i o nof verity in a subsequent proceeding.SeeSmith v. Quarterman,No. 4-08-CVhabeas v. 0 0 1 2 - Y , 2009 WL 497257at *4 (N.D. Tex. Feb.26,2009),citing Blackledge Allison,43l U.S. 6 3 , 74,97 S.Ct. 1621, 1629,52 L.Ed.2d 136 (1977) (noting that presumptionof verity appliesto written admonishmentssigned by defendantprior to entry of guilty plea). In an attemptto overcomethis presumption,petitioner criticizes his attorneyfor advising him to acceptdeferredadjudication community supervisionfor evadingarrestwith a vehicle--a sentence that petitioner believes is not authorized by law. According to petitioner, he is not eligible for probation or community supervisionbecause trial court found that a deadly weapon was usedin the t h e commissionof the offense.3However, petitionerremainedeligible for deferredadjudication c o m m u n i t y supervisionunder Tex. Code. Crim. Proc. Ann. art. 42.12, $ 5(a), which states,in pertinent part: E x c e p t as provided by Subsection(d) of this section,when in the j u d g e ' sopinion the best interestof societyand the defendant will be

' Under Texas law, a judge may not order probation or community supervision "when it is shown that a deadly weapon . . . was used or exhibited during the commission of a felony offense or during immediate flight therefrom, and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon w o u l d be usedor exhibited." TBx. Coos CRIM.PRoc.ANN. art. 42.12,5 3e@)Q) (Vernon 2006).

seryed,thejudge may, after receivinga plea of guilty or plea of nolo contendere, hearingthe evidence,and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, ffid place the defendant on community supervision. T B x . Conp Cruu. Pnoc. AttN. art. 42.12,$ 5(a) (Vernon 2009);seealso Montemayorv. Valdez, No. 3 - 0 6 - C V - 0 0 1 2 - K , 2006 WL 740743 at *2-2 (N.D. Tex. Mar. 14,2006), rec. adopted,2006 WL 1 3 4 8 7 3 4(N.D. Tex. May 17,2006) (recognizingthat a defendantchargedwith section39 offense i s still eligible for deferred adjudicationprobation or community supervisionunder Texas law). Nothing in the record suggests that petitioner was misled by defensecounsel in this regard. Nor is his sentencefor evading arrestillegal. Consequently,thesegrounds for relief should be ovemrled. C. A voluntary guilty plea waives all non-jurisdictional defectsin a criminal proceeding. See (1973);UnitedStates T o l l e t t v .Henderson,4lI U.S.258,265,93S.Ct.1602,1607,36L.Ed.2d235 v . Glinsey,209 F.3d 386,392 (5th Cir.), cert. denied,l2l S.Ct. 282 (2000). By pleadingguilty, petitioner waived his right to challengethe delayin bringing him before a magistratefor arraignment, as well as any instancesof ineffective assistance counsel that occurred prior to the entry of his of g u i l t y plea or that do not implicate the validity of the plea. See,e.g. Glinsey,209 F.3d a|392 (voluntary guilty plea waives claims of ineffective assistanceof counsel "except insofar as the ineffectivenessis alleged to have renderedthe guilty plea involuntary"); United Statesv. Bell,966 F . 2 d 914,915 (5th Cir. 1992)(sameas to speedytrial claim). Thoseclaims shouldbe summarily dismissed.

D. jeopardy petitioner's guiltypleais hisdouble T h eonlyclaimthatsurvives claim.See Neville (5thCir. 1989), v . Butler,867 F.2d886,888 citing Mennav. NewYork,423 U.S.6l, 62,965.Ct.

24I,242,46L.Ed.2d 195(1975)(guilty pleadoesnot preclude petitioner a from asserting double a jeopardy claim). As best the court can decipherpetitioner's argument,he appearsto contendthat it was improper for the stateto chargehim in one indictment with multiple offensesinvolving different c o m p l a i n a n t s . (SeePet. Mem. Br. at 8-10). The Double JeopardyClauseprohibits successive prosecutionsor multiple punishmentsfor the samecriminal offense. SeeUnited Statesv. Dixon,509 U . S . 688, 695-96,113S.Ct. 2849,2855, 125 L.Ed.2d 556 (1993). Here, petitionerwas neither prosecutednor punishedmore than once for the sameact. Rather,he was prosecutedand punished separately for the robbery of Cynthia Perkins, evading arrest following the robbery, and the aggravatedassaultof a Burleson police officer. All three offensesrequire proof of additional facts U.S. 299,304, 52 S.Ct. 180, 182, w h i c h the othersdo not. SeeBlockburgerv. UnitedStates,284 76 L.Ed. 306 (1932). Robbery and aggravatedassaultof a public servant require proof that the Coop At'tn. $$ defendantcause,threaten,or place anotherin fear of bodily injury, seeTnx. PENRT evadingarrestrequiresproof that the defendant 29.02(a)(2) &22.02(a)(2) (Vernon 2003),whereas intentionally flee from a personhe knows to be apeaceofficer attemptinglawfully to arrestor detain him, see td $ 3S.04(a). While the offensesof robbery and aggravatedassaultof a public servant have common elements,petitioner committed eachoffenseagainsta different victim. That the state counts of the sameindictment doesnot render chargedpetitioner with all three offensesin separate t h e indictment constitutionallydefective. SeeSaucedav. Quarterman,No. C-08-224,2008 WL 5 1 3 7 2 8 7at *8 (S.D. Tex. Dec. 8, 2008) (multiple offenseschargedin a single indictment do not v i o l a t e federalor Texas law).4

a To the extentpetitionerchallenges indictmenton othergrounds, thoseclaimsarewaived by his voluntary the g u i l t y pfea. SeeLudlow v. Quartermar, No. H-06- 1419, 2007 WL 2177336 at * I 0 (S.D. Tex. Jul. 26, 2007), citing u n i t e d statesv, Cotton,535u.s. 625,631, 122 S.Ct. 1781,1785,l52L.Ed.2d 860 (2002).

RECOMMENDATION Petitioner's application for writ of habeascorpus should be denied. A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party may file written objectionsto the recommendationwithin l0 daysafter b e i n g servedwith a copy. See28 U.S.C. $ 636(bxl); Fso. R. Ctv. P.72(b). The failure to file written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistratejudge that are acceptedor adoptedby the district court, except upon g r o u n d sof plain error. SeeDouglassv. UnitedServices AutomobileAss'n,79 F.3d l4l5,I4l7 C i r . 1996). D A T E D : Julv 10.2009. (sth

.]UDGE MAGISTRATE S]'ATES