Simmons v. Stephens-Director TDCJ-CID

Filing 18

MEMORANDUM OPINION and ORDER: The court ORDERS that the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, denied and that a certificate of appealability be, and is hereby denied. (Ordered by Judge John McBryde on 2/9/2017) (tln)

u.s.,~

,

NORTHER';

IN THE UNITED STATES DISTRICT
URT
FOR THE NORTHERN DISTRICT OF T XAS
FORT WORTH DIVISION
PHILLIP JEROME SIMMONS,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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No. 4:15-CV-260-A

MEMORANDUM OPINION
and
ORDER

This is a petition for writ of habeas corpus

pursua~t

to 28

U.S.C. § 2254 filed by petitioner, Phillip Jerome Simmons, a
state prisoner confined in the Correctional institutions Division
of the Texas Department of Criminal Justice (TDCJ) , against Lorie
Davis, Director of TDCJ, respondent. After having considered the
pleadings, state court records, and relief sought by petitioner,
the court has concluded that the petition should be denied.
I. BACKGROUND
The state court records reflect that in March 2009
petitioner was indicted in Tarrant County, Texas, Case No.
1319934D, for theft of property, gasohol and fuel oil, over
$200,000, a first-degree felony.

(Clerk's R. 2, ECF No. 10-9.) On

August 1, 2011, after the trial court denied defense counsel's

motion for a

continu~nce,

petitioner entered an open plea of

guilty to the offense, and a presentence investigation report
(PSI) was ordered. Thereafter, on December 1, 2011, the trial
court assessed his punishment at twenty years' imprisonment.
(Clerk's R. 113, 151, ECF No. 10-9.) Petitioner appealed his
conviction, but the Second Court of Appeals of Texas affirmed the
trial court's judgment, and the Texas Court of Criminal Appeals
refused his petition for discretionary review.

(Docket Sheet 1-2,

ECF No. 10-2.) Petitioner also sought postconviction state habeas
relief by filing a state habeas application, raising one or more
of the claims raised in this federal petition, which was denied
by the Texas Court of Criminal Appeals without written order on
the findings of the trial court.
II.

(Action Taken, ECF No. 10-26.)
ISSUES

Petitioner raises six grounds for relief:
(1) He was denied effective assistance of counsel based
on counsel's failure to convey to him an 8-year plea
bargain offer by the state and to conduct a reasonable
pretrial investigation;
(2) and (6) The state and investigative agencies to
which the state had access failed to disclose favorable
evidence under Brady;
{3) The Texas rules of evidence were applied in a way
that denied him the right to present a complete
defense;

2

(4) His sentence was excessive on the basis of prior
dropped charges for which he did not have counsel; and
(5) His guilty plea was the product of ineffective
assistance of counsel.
(Pet. 6-7 & Insert, ECF No. 1.)
III.

RULE 5 STATEMENT

Respondent does not believe that the petition is time-barred
or subject to the successive-petition bar but does assert that
petitioner failed to properly exhaust one or more of his claims
and that the claims are, thus, procedurally barred from federal
habeas review.

(Resp't's Answer 3-7, ECF No. 5-10.) However, as

the grounds are stated by the court above, the claims
sufficiently correspond with those raised by petitioner in his
state habeas application and supporting memorandum.
IV. DISCUSSION
A

§

2254 habeas petition is governed by the heightened

standard of review provided for by the Anti-Terrorism and
Effective Death Penalty Act (AEDPA). 28 U.S.C.

§

2254. Under the

Act, a writ of habeas corpus should be granted only if a state
court arrives at a decision that is contrary to or an
unreasonable application of clearly established federal law as
determined by the United States Supreme Court or that is based on
an unreasonable determination of the facts in light of the record

3

before the state court. Harrington v. Richter, 562 U.S. 86, 10001 (2011); 28 U.S.C.

§

2254(d) (1)-(2). This standard is difficult

to meet and "stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state
proceedings." Harrington, 562 U.S. at 102.
Additionally, the statute requires that federal courts give
great deference to a state court's factual findings. Hill v.
Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section 2254(e) (1)
provides that a determination of a factual issue made by a state
court shall be presumed to be correct. It is the petitioner's
burden to rebut the presumption of correctness through clear and
convincing evidence.

§

2254(e) (1). Further, when the Texas Court

of Criminal Appeals denies relief in a state habeas corpus
application without written opinion it is typically an
adjudication on the merits, which is also entitled to a
presumption of correctness. Singleton v. Johnson, 178 F.3d 381,
384

(5th Cir. 1999); Ex parte Torres,

943 S.W.2d 469, 472 (Tex.

Crim. App. 1997) . Under these circumstances, a federal court
assumes that the state court applied the proper clearly
established federal law to the facts of the case and then
determines whether its decision was contrary to or objectively
unreasonable application of that law. See Virgil v. Dretke, 446
F.3d 598, 604

(5th Cir. 2006); 28 U.S.C.A.

4

§

2254 (d) (1).

(1) and (5) Ineffective Assistance of Counsel
and Petitioner's Guilty Plea
A criminal defendant has a constitutional right to the
effective assistance of counsel at trial. U.S. CoNsT. amend. VI,
XIV; Evitts v. Lucey, 469
Washington, 466

u.s.

u.s.

668, 688

387, 396 (1985); Strickland v.
(1984). To prevail on an

ineffective assistance claim in the context of a guilty plea, a
defendant must demonstrate that his plea was rendered unknowing
or involuntary by showing that (1) counsel's representation fell
below an objective standard of reasonableness, and (2) there is a
reasonable probability that, but for counsel's deficient
performance, he would not have pleaded guilty and would have
insisted on going to trial. Hill v. Lockhart, 474

u.s.

52, 56-59

(1985); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983); see
also Strickland, 466 U.S. at 687. In assessing the reasonableness
of counsel's representation,

"counsel should be 'strongly

presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment.'" Cullen v. Pinholster, 563 U.S. 170, 189 (2011)
(quoting Strickland, 466 U.S. at 690).
Further, by entering a knowing, intelligent and voluntary
guilty plea, a defendant waives all nonjurisdictional defects in

5

the proceedings preceding the plea, including all claims of
ineffective assistance of counsel that do not attack the
voluntariness of the guilty plea. Smith,
Bradbury v. Wainwright,

711 F.2d at 682;

658 F.2d 1083, 1087 (5th Cir. 1981). A

guilty plea is knowing, voluntary and intelligent if done with
sufficient awareness of the relevant circumstances and likely
consequences surrounding the plea. Brady v. United States, 397
U.S. 742, 748

(1970). If a challenged guilty plea is knowing,

voluntary and intelligent, it will be upheld on federal habeas
review. James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995).
Under his first ground, petitioner claims that his trial
counsel were ineffective by failing to convey to him an 8-year
plea bargain offer by the state and by failing to conduct a
reasonable pretrial investigation. Under his fifth ground,
petitioner claims that his guilty plea was the product of
ineffective assistance of counsel.

(Pet. 6 & Insert, ECF No. 1.)

Petitioner's initial retained counsel, Roderick White responded
to petitioner's first allegation in an affidavit filed in the
state habeas proceeding as follows:
In April 2009 I was retained by Mr. Simmons to
represent him in his then pending theft over $200,000
case. As part of my representation of Mr. Simmons, I
thoroughly reviewed his case file (containing police
reports and witness statements) which was obtained from

6

the District Attorney's office, allowed Mr. Simmons to
review his entire case file, extensively discussed the
allegations (and all possible defensive strategies)
with Mr. Simmons, answered all of this [sic] questions,
researched all legally relevant issues, effectively
explained to him his right to a jury trial, clearly
explained to him the possible punishment range, and
effectively explained to him the pros and cons of going
to trial. In addition to personally visiting with Mr.
Simmons about his case on each of his court settings
while I was representing him, because he was not incustody during much (if any) of the time I was
representing Mr. Simmons, he and I were able to
communicate frequently regarding his case in-person
and/or via telephone.
Mr. Simmons now alleges ineffective assistance of
counsel on my part because he dishonestly claims that I
failed to convey a plea bargain offer made by the
State. Mr. Simmons is not being truthful. He is not
mistaken. I leave no room for misunderstanding and/or
mistake when conveying plea bargain offers and I left
no room for misunderstanding and/or mistake in my
discussions with Mr. Simmons. He is simply being
dishonest. On or about August 29, 2009 (shortly after
our Motions Docket setting) the State made Mr. Simmons
an offer of eight (8) years in TDC or ten (10) years in
TDC probated for ten (10) years. I, personally and
promptly, discussed these offers with Mr. Simmons via
telephone and because the evidence against him was so
overwhelmingly compelling, I repeatedly and strenuously
advised him to accept one of the State's options. Mr.
Simmons and I fully and repeatedly discussed these
options several times via telephone prior to his Status
Conference court setting on October 16, 2009 where it
was my understanding that Mr. Simmons was prepared to
accept the probation offer. For some reason that I
cannot currently recall, I could not be in court that
morning so I sent my associate, Roberta Walker, to
simply complete the previously discussed and presumably
agreed upon plea. At that point in Mrs. Walker's
employment with my firm I would generally only send her
to court alone on serious felony cases where I had

7

already worked out the resolution of the case or where
there was no realistic chance of resolution at that
particular court setting, otherwise I would generally
take steps to have the matter reset for the following
week. I considered this to be the former. When Mr.
Simmons refused to take the probation offer the Court,s
Status Conference form was completed detailing a 15
year TDC offer or the probation option, 10 years in TDC
probated for 10 years with restitution. For the next
several months I went back and forth with Mr. Simmons
concerning his plea options, strongly recommending that
he plead guilty and accept some TDC time because there
was no chance that he could ever pay the restitution,
and representing to him that I thought that we could
still get "single digits". He eventually retained
alternative counsel. While I do recall mailing my file
to the new counsel, I do not specifically recall
discussing the case with the new lawyer.
In conclusion, not only were any and all plea
bargain offers made by the State during the time I was
representing Mr. Simmons appropriately and effectively
conveyed, Mr. Simmons was both repeatedly and
strenuously advised to accept.
(State Habeas R., 62-64, ECF No. 10-28 (emphasis in original).)
The state habeas judge, who also presided over the trial
court proceedings, impliedly found counsel,s affidavit credible
and expressly found that counsel promptly conveyed and "fully
communicated" the state,s plea offers to petitioner and that
petitioner refused the plea offers, including the 8-year offer.

(Id. at 85-86.) Therefore, applying the Strickland standard, the
court concluded that counsel engaged in reasonable professional
conduct in representing petitioner.

8

(Id. at 86-87.) The habeas

court's findings were later adopted by the Texas Court of
Criminal Appeals.
As a general rule, counsel has a duty to convey formal plea
offers that may be favorable to the accused. Missouri v. Frye,
566 U.S. -, 132

s.

Ct. 1399, 1408 (2012). This court is bound by

the state court's findings unless petitioner provides clear and
convincing evidence in rebuttal, which he has failed to do.
Petitioner's mere assertion that counsel did not convey the plea
bargain offer to him, without more, is insufficient to rebut the
state court's factual and credibility determinations. Smallwood
v. Johnson,

73 F.3d 1343, 1351 (5th Cir. 1996)

(quoting Ross v.

Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983)). Nor does
counsel's alleged lack of experience or the fact that counsel's
associate made several appearances in court on petitioner's
behalf present clear and convincing proof that counsel did not
inform petitioner of the plea offer. Thus, deferring to the state
court's findings,

the state courts' adjudication of the claim

comports with Frye and Strickland.
Petitioner claims that his second retained counsel, Jon
Thomas, was ineffective by failing to conduct an adequate
pretrial investigation, including reviewing the state's file,
reviewing the PSI report for inaccuracies, interviewing potential

9

witnesses, and investigating information regarding the
disposition of similar criminal investigations against petitioner
in Dallas and Harris Counties. He also claims his guilty plea was
the product of counsel's unpreparedness.

(Pet. 6 & Pet'r's Mem.

3-7, ECF No. 1.) Despite counsel's failure to file an affidavit
addressing petitioner's allegations or to appear at five showcause hearings, the state habeas judge, based on his observation
of counsel's and petitioner's demeanor in court, his own
recollection of the proceedings, and the documentary evidence,
entered the following express findings regarding these claims:
6.

The Tarrant County Criminal District Attorney's
Office maintains an open file policy through the
Tarrant County Electronic Case Filing System
(ECFS) .

7.

Mr. Thomas had access to the State's files in the
applicant's case through ECFS and other
disclosures.

8.

The State made the required Brady disclosures of
potentially exculpatory and impeachment evidence.

9.

The State and the applicant were unable to reach a
plea bargain agreement.

10.

The applicant entered an open guilty plea to the
trial court.

11.

Prior to accepting the applicant's guilty plea,
the trial court fully admonished him regarding the
waiver of his rights and the consequences of that
plea.

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12.

The trial court's written plea admonishments
tracked the statutory requirements for accepting a
plea that is freely and voluntarily entered.

13.

The applicant signed that he had read and
understood the written plea admonishments given to
him by the Court.

14.

The applicant signed that he was aware of the
consequences of his guilty plea.

15.

The applicant signed that he was satisfied with
the representation of his attorney, and that his
attorney had provided fully effective and
competent representation.

16.

The applicant waived all rights given to him under
law, including his right to the appearance,
confrontation and cross-examination of witnesses,
and consented to oral and written stipulations of
evidence.

17.

Mr. Thomas reviewed the plea paperwork with the
applicant, including the court admonishments and
waiver of rights, before he entered his guilty
plea.

18.

The applicant signed and entered a judicial
confession admitting all the allegations alleged
in the indictment.

19.

The applicant's guilty plea was freely, knowingly
and voluntarily entered.

30.

The applicant has not shown that Mr. Thomas failed
to provide him inadequate representation as
guaranteed by the Sixth Amendment despite Mr.
Thomas' failure to file an affidavit addressing
his representation.

31.

The following evidence undercuts any likelihood
11

that the outcome of this case would have been
different with another counsel or if Mr. Thomas
had represented the applicant in another manner:
a.

The applicant was employed as an independent
contractor by the O'Rourke Petroleum Company
to deliver petroleum products to its
customers.

b.

Between April 28, 2007, and May 7, 2007, the
applicant made numerous pulls of fuel from
O'Rourke's terminals in the Dallas/Fort W.orth
area and sold the fuel for his own profit.

c.

The presentence investigation report
estimated the total loss to O'Rourke
Petroleum at $539,046.73 of which $258,357.34
occurred in Tarrant County.

32.

The applicant presents no evidence suggesting that
he would have rationally proceeded to trial or
that the outcome of his prosecution would have
been different with counsel other than Mr. Thomas.

34.

The applicant was not denied effective assistance
of counsel.

(State Habeas R. 89-92, ECF No. 10-28 (citations omitted).)
Based on its findings,

the court concluded that petitioner

was fully advised regarding the consequences of entering a guilty
plea, that his guilty plea was knowingly and voluntarily entered,
and, applying the Strickland standard, that he received effective
assistance of counsel.

(Id. at 94-95.)

The official state court records "are entitled to a

12

presumption of regularity and are accorded great evidentiary
weight" on federal habeas review. Hobbs v. Blackburn, 752 F.2d
1079, 1081-82 (5th Cir. 1985)

(citations omitted). Likewise,

"[s]olemn declarations in open court carry a strong presumption
of verity." Blackledge v. Allison, 431

u.s.

63, 73-74

(1977); see

also United States v. Cothran, 302 F.3d 279, 283-284 (5th Cir.
2002)

("Reviewing courts give great weight to the defendant's

statements at the plea colloquy."). The record of the plea
proceedings in this case does not support petitioner's assertion
that counsel failed to conduct an adequate investigation or that
his plea was rendered involuntary as a result of counsel's
unpreparedness.
It is petitioner's burden to prove counsel failed to conduct
an adequate investigation. Absent clear and convincing evidence,
counsel is presumed to have conducted an adequate investigation.
Strickland, 466 U.S. at 689. Further, during the plea hearing,
petitioner responded in the affirmative that counsel discussed
the written plea admonishments with him; that he understood and
signed the admonishments; that it was his desire to waive his
rights; that he understood the range of punishment; that he was
pleading guilty because he was guilty and for no other reason;
and that his plea was freely and voluntarily given.

13

(Reporter's

R., vol. 3, 4-7, ECF No. 10-6.) Petitioner also signed the
written plea admonishments indicating that he was totally
satisfied with counsel's representation and that counsel provided
him fully effective and competent representation.

(State Habeas

R. 112, ECF No. 10-28.) Petitioner's conclusory assertions are
insufficient to rebut the presumption that he received effective
assistance of counsel and the presumption of regularity of the
state court records. See Webster v. Estelle, 505 F.2d 926, 929-30
(5th Cir. 1974)

(holding state court records "are entitled to a

presumption of regularity").
Thus, to the extent petitioner claims counsel was
ineffective by failing to conduct an adequate investigation into
matters preceding his voluntary guilty plea, the claim is waived.
To the extent petitioner claims counsel was ineffective by
failing to conduct an adequate investigation into matters in
mitigation of punishment, the claim also fails. To establish
counsel's failure to investigate, a petitioner must do more than
merely allege a failure to investigate; he must state with
specificity what the investigation would have revealed, what
evidence would have resulted from that investigation, and how the
evidence would have altered the outcome of the case. United
States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989). Instead of

14

doing so, petitioner merely asserts that had counsel
investigated my case and taking [sic] advantage of the
open file policy and investigated the State's files,
and contacted the witness and read the PSI report which
had numerous errors, the outcome of my case would have
been different.
(Pet'r's Mem. 4, ECF No. 1.) He also asserts that counsel should
have followed up on Brady material provided by the state
regarding other allegations against him in an effort to determine
what significance, if any, the information had to the instant
offense.

(Id. at 5.) Lastly, he asserts that the PSI contained a

list of twelve misdemeanor and five felony charges, the majority
of which he was never involved in.

(Id. at 6.)

The first argument is too vague to merit habeas relief. Nor
does petitioner explain how information in similar criminal
investigations against him in Dallas and Harris Counties would
have altered the outcome of his punishment hearing. As to the
third assertion, counsel stated on the record that he had
reviewed the PSI, and he requested several "corrections" to the
report.

(Reporter's R., vol. 4, 5-7.) Petitioner fails to state

with any specificity or provide evidence that counsel was aware
of but failed to bring to the trial court's attention other
factual inaccuracies in the report. Consequently, petitioner has
failed to demonstrate that counsel's representation was deficient

15

or that the outcome of his punishment hearing would have been
different had counsel conducted a more thorough investigation.
Conclusory allegations of ineffective assistance of counsel do
not raise a constitutional issue in a federal habeas proceeding.
Ross, 694 F.2d at 1012.
(2) and (6) Brady Violations
Under his second and sixth claims, petitioner claims the
state and investigative agencies to which the state had access
violated his rights under Brady by failing to disclose favorable
evidence. Under Brady, the state has a duty to disclose to the
defense in a timely manner evidence that is both favorable to the
accused and material to either guilt or punishment in a timely
manner. Banks v. Dretke, 540 U.S. 668, 691 (2004); Brady v.
Maryland, 373 U.S. 83, 87 (1963).
The record reflects that the state filed five Brady notices
to the defense.

(Clerk's R. 40, 49, 51, 101 & 106, ECF No. 10-9.)

In its memorandum opinion, the state appellate court addressed
the state's Brady disclosures in the context of petitioner's
issue regarding the denial of his motion for continuance as
follows:
In one issue, Appellant contends that the trial
court erred by denying his motion for continuance.
Because we hold that Appellant abandoned his complaint

16

by signing a written waiver of his pretrial motions and
appeal in conjunction with his guilty plea, we overrule
his issue and affirm the trial court's judgment.
Ten days before trial, the State disclosed Brady
evidence, which was a statement by a handwriting
analyst hired by the complainant's retained counsel.
The handwriting expert had concluded that he was unable
to determine whether Appellant had signed the relevant
bills of lading. Four days before trial, the State
disclosed further Brady evidence, the criminal history
of two witnesses. The following day, the State filed
another notice of Brady evidence: the facts that (1)
Detective Waller of the Dallas Police Department had
stated that he did not pursue charges against Appellant
because the handwriting expert was unable to offer an
opinion regarding the signature on the bills of lading
and (2) a 2004 theft of fuel case against Appellant in
Houston had been classified as "unfounded" because the
fuel pull had occurred in Pasadena, not Houston.
On the day of trial, the State filed a fourth
supplemental notice of Brady evidence. In it, the State
disclosed the following:
•

Rafiq Merchant denied knowing Appellant but later
identified him in a photo lineup as the person
from whom he had purchased fuel;

•

Mary Simmons had told Landmark Chevrolet that she
and Appellant were purchasing a Corvette with cash
because they were owners and operators of a truck;

•

Ali Shajhan had testified before the grand jury
that he did not know Appellant, but the phone
number of the person from whom he had bought the
gasoline was Appellant's;

•

Rafiq Manjee had attempted to extort money from
State's witness Rafiq Merchant;

•

Although there were no current deals with Rafiq
Merchant or with Suman Nepal, the State had

17

attempted to make a deal with Rafiq Merchant, but
he had been unable to make restitutioni
•

Mary Simmons was on the signature card with
Appellant at Woodforest National Bank, and cash
had been deposited into the account after the
theftsi

•

Detective Waller of the Dallas Police Department
told Tarrant County that he was going to send the
bills of lading to the USSS for analysis, but he
did not follow up and instead had stopped his
investigation due to his time restrictions and
caseloadi and, finally,

•

Rafiq Merchant had brokered several deals with
other Middle Eastern males, two of whom were
Ashraf Moten and Sadiq LNU, and the State was not
able to contact them.

Finally, also on the day of trial, the State gave
another notice of Brady evidence in which the State
reported that Appellant had made a purchase from Porter
Truck Sales but that Appellant's Social Security number
recorded in the transaction differed from his actual
Social Security number by one number.
Appellant filed a motion for continuance,
requesting additional time to investigate the numerous
last-minute Brady disclosures. The trial court denied
Appellant's motion. In the hearing on the motion for
continuance, the State explained its failure to provide
the information in a timely manner by stating that it
had been willing to recommend deferred adjudication if
Appellant made restitution. He was able to pay only a
small portion of the restitution due, and during the
period of time that he was attempting to make the
payments, the State was not preparing for trial. It was
only after it became clear that Appellant would be
unable to make the restitution that a trial date was
set and trial preparation began in earnest.
Nevertheless, the State bears the obligation of

18

disclosing material exculpatory or mitigating Brady
evidence whether trial preparation has begun or whether
a defendant is considering a plea offer. The existence
of such evidence can greatly influence both the offer
the State makes and the defendant S decision to accept
or reject the offer. The fact that a plea offer is on
the table does not justify the State 1 s failure to
disclose material exculpatory or mitigating evidence.
1

In this case 1 however/ Appellant entered his
guilty plea and waived all pretrial motions in writing.
At the plea hearing/ neither Appellant nor his counsel
suggested that the trial courtts denial of his motion
for continuance influenced his decision to plead
guilty. Nowhere in the record did Appellant except from
his waiver of pretrial motions the motion for
continuance. Although the trial court certified his
right to appeal 1 by waiving all pretrial motions/
Appellant abandoned his complaint regarding the late
disclosure of Brady material 1 his request for
continuance/ and the trial court 1 S adverse ruling on
that request.
Additionally/ Appellant/ in writing/ stated/ "I
give up and waive any and all rights of appeal in this
case." Although case law is clear that a boilerplate
waiver of the right to appeal without a plea bargain
agreement does not preclude a defendant 1 S appealing
trial error because error that has not yet occurred
cannot be intelligently and knowingly waived/ the
circumstances of Appellant 1 s waiver are
distinguishable. Here/ Appellant filed no motions
(other than a motion to continue the sentencing
hearing) after entering his guilty plea. Appellant
abandoned his pretrial motions and waived his right to
appeal. Clearly at the time he entered his waivers/ he
was aware of the trial court 1 s ruling on his motion for
continuance. It is difficult to understand how
abandonment of a pretrial motion and waiver of appeal
regarding known rulings on pretrial motions could
automatically be held to be made other than knowingly
and intelligently.

19

Under the facts of this case and the record before
this court, we hold that Appellant abandoned his
complaint regarding the trial court's denial of his
motion for continuance by later waiving his pretrial
motions and his right to appeal. We therefore overrule
Appellant's sole issue and affirm the trial court's
judgment.
(Mem. Op. 5, ECF No. 10-3 (footnotes omitted).)
Additionally, the state habeas court entered the following
express findings regarding these claims:
1.

The Tarrant County Criminal District Attorney's
Office maintains an open file policy through the
Tarrant County Electronic Case Filing System
(EDFS) .

2.

Mr. White and Mr. Thomas had access to the State's
files during their representation of the
applicant.

3.

The applicant does not set forth any specific
undisclosed favorable evidence.

4.

The applicant has not met his burden to prove that
the State failed to disclose favorable evidence.

(State Habeas R. 42, ECF No. 10-28.)
Based on its findings, which were later adopted by the Texas
Court of Criminal Appeals, the court concluded that petitioner
had not presented any facts showing the state failed to disclose
favorable evidence and that petitioner's sworn allegations alone
were not sufficient to support a Brady violation.
R. 96-97, ECF No. 10-28.)

20

(State Habeas

Absent clear and convincing evidence in rebuttal, this court
must defer to the state court's findings. Petitioner fails to
state what evidence the state should have provided or should have
provided earlier or that he would not have pleaded guilty if the
evidence had been disclosed sooner. Bald assertions in a pro se
habeas petition carry no probative evidentiary value. Ross, 694
F.2d at 1011-12 and n.2. In any event, petitioner's Brady claims
were waived by his voluntary guilty plea. Orman v. Cain, 228 F.3d
616, 617 (5th Cir. 2000).
(3) Right to Defend
Under his third ground, petitioner claims the trial court
applied the Texas rules of evidence "in a way which denied [him]
the right to present a complete defence [sic]," in violation of
his right to due process. The state habeas court found that
petitioner had not met his burden as to this claim because he
presented "no specific supporting facts demonstrating that the
trial court applied the rules of evidence in a manner which
impaired his defense."

(State Habeas R. 99-100, ECF No. 10-28.)

In apparent support of this claim, petitioner argues (all
spelling, punctuation, and/or grammatical errors are in the
original) :
Mr. White have also violated petitioner right to

21

counsel by failing to convey a plea bargain after,
hoping the court will believe he told the petitioner by
VIA telephone. Rule 901 evidence; The cases are in
agreement that a mere assertion of his identity by a
person talking on the telephone is not sufficient
evidence of the authenticity of the conversation and
that additional evidence of his identity is required.
(Pet'r's Mem. 8, ECF No. 1.)
The state court's application of state evidentiary rules
does not raise a claim cognizable on federal habeas review. A
federal court has no jurisdiction to determine whether the state
reasonably applies its rules of evidence. Estelle v. McGuire, 502
U.S. 62, 67 (1991). Moreover, although petitioner cites to Rule
901 (entitled "Requirement of Authentication or
Identification."), his claim more accurately raises a credibility
issue regarding counsel's testimony in his affidavit that he
conveyed the plea offer to petitioner by telephone. This court is
required to accept, as conclusive, both the factual findings and
the credibility choices of the state courts, absent clear and
convincing evidence in rebuttal. Carter v. Collins, 918 F.2d
1198, 1202 (5th Cir. 1990). The state habeas court implicitly
made a credibility choice in favor of counsel's assertion, and
because petitioner has failed to rebut the presumption or
correctness with clear and convincing evidence of its
impropriety, this court cannot second-guess the choice and must

22

accept it as conclusive. Self v. Collins, 973 F.2d 1198, 1214
(5th Cir. 1992).
(4) Uncounseled Prior Convictions
Finally, under his fourth ground, petitioner claims that his
sentence was excessive on the basis of "prior dropped charges for
which [he] did not have counsel."

(Pet. 7, ECF No. 1.) The state

habeas court determined that, as a matter of state law,
petitioner's 20-year sentence was within the statutory punishment
range for a first-degree felony offense and, hence, was not
excessive.

(State Habeas R. 101-02, ECF No. 10-28.)

Federal courts accord broad discretion to a state trial
court's sentencing decision that falls within statutory limits.
Haynes v. Butler, 825 F.2d 921, 923-24
Cain, 199 F.3d 437 (5th Cir. 1999)

(5th Cir. 1987); Turner v.

(unpublished)

(sentence was

within state's statutory limits and within trial court's
discretion, therefore petitioner failed to state cognizable
habeas claim for excessive sentence) . If a sentence is within the
statutory limits, a federal habeas court will not upset the terms
of the sentence unless it is grossly disproportionate to the
gravity of the offense. Harmelin v. Michigan, 501 U.S. 957
(1991); Solem v. Helm, 463

u.s.

277 (1983). That is not the case

here.

23

To the extent petitioner claims evidence of his prior
uncounseled convictions were improperly admitted during his
punishment hearing for consideration by the trial court, his
claim also fails. He states that the PSI contained a list of
twelve misdemeanor and five felony charges in his criminal
history, however he does not specify in which cases he has prior
uncounseled convictions or provide court documents in those cases
showing that he did not waive his right to an attorney. In short,
he produces no evidence to support his assertion. Petitioner's
bald assertion lacks probative evidentiary value. See Ross v.
Estelle, 694 F.2d at 1011-12.

For the reasons discussed herein,
The court ORDERS that the petition of petitioner for a writ
of habeas corpus pursuant to 28 U.S.C.

§

2254 be, and is hereby,

denied and that a certificate of appealability be, and is hereby
denied.
SIGNED February

---:l~---'

2017.

24