Boone v. Stephens-Director TDCJ-CID
Memorandum Opinion and Order... The court ORDERS the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, denied. The court further ORDERS that a certificate of appealability be, and is hereby, denied, as petitioner has not made a substantial showing of the denial of a constitutional right. (Ordered by Judge John McBryde on 4/21/2017) (wxc)
U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT C
FOR THE NORTHERN DISTRICT OF
FORT WORTH DIVISION
CLERK, U.S. DlSTK._c_:·l COURT
RODNEY NATHANIEL BOONE,
LORIE DAVIS, Director, 1
Texas Department of Criminal
This is a petition for a writ of habeas corpus pursuant to
2254 filed by petitioner, Rodney Nathaniel Boone, 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.
Factual and Procedural History
In 2012 petitioner was indicted in Tarrant County, Texas,
for possession of a controlled substance, heroin, of four grams
Lorie Davis has replaced William Stephens as director of the
Correctional Institutions Division of the Texas Department of Criminal
Justice. Therefore, pursuant to Federal Rule of Civil Procedure 25(d), Davis
is automatically substituted as the party of record.
or more but less than two-hundred grams with the intent to
(SH15 - WR-54,131-05, 81, ECF No. 16-20.) The indictment
also included a habitual-offender notice, alleging two prior
(Id.) On June 19, 2013, after a jury found
petitioner guilty on a separate drug-related offense in Case No.
1289758D, petitioner entered a guilty plea pursuant to a plea
agreement in the instant case, the state waived the habitualoffender notice, and petitioner was sentenced to fifteen years'
confinement, the sentence to run concurrently with his 30-year
sentence in Case No. 1289758D.
(Id. at 75-78, 83; SH15-WR-54,131-
05, Supp. R., 2-4, ECF No. 16-19.) Petitioner appealed his
conviction and/or sentence, but the Second District Court of
Appeals dismissed the appeal on the basis that petitioner had no
right of appeal in a plea-bargained case.
(Mem. Op. 2, ECF No.
16-5.) Petitioner also filed three state habeas-corpus
applications challenging his conviction and/or sentence. The
first two were denied by the Texas Court of Criminal Appeals
without written order on the findings of the trial court and the
third was dismissed as successive. This federal habeas petition
Petitioner raises a plethora of claims for relief in his
various pleadings before the court. His claims are addressed as
thoroughly as practical and appear to fall within the following
Fourth Amendment violation;
Trial court error;
Ineffective assistance of trial counsel;
Prosecutorial misconduct; and
Denial of a full and fair evidentiary hearing.
(Orig. Pet. 1-3, ECF No. l; Form Pet. 6-7, ECF No. 6; Pet'r's
Mem. 1-11, ECF No. 7; Pet'r's Supp. Pet. 1-6, ECF No. 19; Pet'r's
Reply 1-9, ECF No. 26.) To the extent petitioner's claims involve
matters or events related to his jury trial proceedings and
resultant conviction and sentence in Case No. 1289758D, the
claims are neither relevant to nor considered in the context of
his guilty plea in the instant case. Petitioner challenged his
conviction and sentence in Case No. 1289758D in this court in
Case No. 4:14-CV-945-A, to no avail.
Rule 5 Statement
Respondent does not believe that the petition is barred by
limitations or subject to the successive-petition bar.
Answer 4, ECF No. 21.) 28 U.S.C.
(d) & 2254(b) (1).
She does however reserve the right to raise the defense of
exhaustion, and she asserts that the court should not consider
petitioner's evidence in the form of the "Sworn Statement of
Seizing Officer" under Cullen v. Pinholster, 563 U.S. 170 (2011),
because the evidence was not properly presented in the state
(Id. at 6-10.)
Legal Standard for Granting Habeas Corpus Relief
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 Supreme Court
precedent or that is based on an unreasonable determination of
the facts in light of the record before the state court.
Harrington v. Richter, 562 U.S. 86, 100-01 (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,
U.S. at 102.
Additionally, the statute requires that federal courts give
great deference to a state court's factual findings. Hill v.
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. The petitioner has the
burden of rebutting the presumption of correctness by clear and
convincing evidence. 28 U.S.C.
2254(e) (1); Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003); Williams v. Taylor, 529 U.S.
362, 399 (2000). Typically, when the Texas Court of Criminal
Appeals denies relief in a state habeas corpus application
without written opinion, as in this case, it is an adjudication
on the merits, which is entitled to the presumption. Singleton v.
Johnson, 178 F.3d 381, 384
(5th Cir. 1999); Ex parte Torres,
S.W.2d 469, 472 (Tex. Crim. App. 1997). Under these
circumstances, a federal court may assume the state court applied
correct standards of federal law to the facts, unless there is
evidence that an incorrect standard was applied. Townsend v.
Sain, 372 U.S. 293, 314
491, 493 n.3
Catalan v. Cockrell, 315 F.3d
(5th Cir. 2002); Valdez v. Cockrell, 274 F.3d 941,
948 n.11 (5th Cir. 2001).
Voluntariness of Petitioner's Guilty Plea
Under the sixth claim, enumerated above, petitioner contends
The standards of Townsend v. Sain have been incorporated into 28 U.S.C.
2254(d). Harris v. Oliver, 645 F.2d 327, 330 n.2 (5th Cir. 1981).
that his guilty plea was involuntary. By entering a knowing,
intelligent and voluntary guilty plea, a defendant waives all
nonjurisdictional defects in the proceedings preceding the plea.
711 F.2d at 682; Bradbury v. Wainwright,
658 F.2d 1083,
1087 (5th Cir. 1981). A guilty plea is knowing, intelligent, and
voluntary 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, intelligent, and voluntary, it will be
upheld on federal habeas review. James v. Cain, 56 F.3d 662, 666
(5th Cir. 1995). Although a defendant's attestation of
voluntariness at the time of the plea is not an absolute bar to
later contrary contentions, it places a heavy burden upon him.
United States v. Diaz, 733 F.2d 371, 373-74 (5th Cir. 1979).
Petitioner asserts that his guilty plea was involuntary due
to his trial counsel's assertion that petitioner would be found
guilty as a result of his co-defendant James Young's statement
and petitioner's criminal history; counsel's erroneous advice
that petitioner could appeal his 15-year sentence; and counsel's
instruction to sign "waivers [petitioner] didn't know he was
(Pet'r's Mem. 1-4, 7, ECF No. 7.) Petitioner also
asserts that his plea was involuntary because it was induced by a
combination of fear and coercive prosecutorial tactics and the
trial court's threat to stack his sentences if he proceeded to
at 5-6, 9.)
Petitioner was represented at trial by Brian Walker. During
the state habeas proceedings, counsel responded to petitioner's
claims, including his claims of ineffective assistance of
counsel, by affidavit as follows,
in relevant part:
I am Brian Walker, an attorney who was appointed to
previously represent Rodney Boone. I have received his
Writ claims that I was ineffective in my representation
of him last year in his criminal matters that were
handled in Criminal District Court 2 of Tarrant County.
I was appointed to represent Mr. Boone on two criminal
cases. In both cases, Mr. Boone was charged with living
in "drug houses" where he "sold drugs." I represented
Mr. Boone in a jury trial on one charge of Possession
with Intent to Deliver in June of 2013. Prior to trial,
there were discussions on the record pertaining to a
possible open plea to both charges. During those
discussions, the trial judge did nothing wrong in my
estimation. Although Mr. Boone claims .
. that the
"judge himself set terms demanding an immediate
submission or he threatened to stack the time upon a
conviction if a prosuit (sic) for trial was made,"
Judge Salvant only advised Mr. Boone of his rights on
both of his criminal cases and what possible outcomes
could be had depending on what avenues Mr. Boone chose
Once the first sentence was announced, Mr. Boone was
offered a deal on the second case to get it wrapped up.
He was calm, collected, and was made fully aware of his
options. He was advised of his appellate rights on the
jury verdict, and the fact that he would not be able to
pursue an appeal if he took a plea bargain on the
second charge. He chose to appeal the jury verdict,
have me represent him on appeal for that charge, and to
waive appeal and accept the 15 year plea bargain on the
second charge. All of this was handled in great detail
on the record, and he made these decisions freely and
voluntarily without any sort of coercion or duress.
Overall my performance in both cases, and on appeal,
was beyond effective. I was not ineffective in any way
but was very thorough, diligent, and zealous in my
representation of Mr. Boone.
(SH15 55, ECF No. 16-20.)
Based on counsel's affidavit, his own recollection of the
plea proceedings, and the documentary record, the state habeas
judge entered the following relevant factual findings on the
issue of voluntariness:
Mr. Walker advised the applicant regarding his
potential legal options, including proceeding to
trial, entering an open guilty plea or reaching a
plea agreement with the State.
Mr. Walker advised the applicant regarding the
consequences of accepting the State's plea bargain
The applicant voluntarily chose to accept the
State's fifteen-year plea bargain.
Mr. Walker did not coerce the applicant into
accepting the State's plea bargain offer.
Mr. Walker fully advised the applicant regarding
the applicable case law and his legal options.
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
The trial court's written plea admonishments
tracked the statutory requirements for accepting a
plea that is freely and voluntarily entered.
The applicant signed that he had read and
understood the written plea admonishments given to
him by the Court.
The applicant signed that he was aware of the
consequences of his guilty plea.
The applicant signed that he was satisfied with
the representation of his attorney, and that his
attorney had provided fully effective and
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
Mr. Walker reviewed the plea paperwork with the
applicant, including the court admonishments and
waiver of rights, before he entered his guilty
The applicant signed and entered a judicial
confession admitting all the allegations alleged
in the indictment.
The applicant's guilty plea was freely, knowingly
and voluntarily entered.
(Id. at 60-62 (citations to the record omitted).) The state
habeas judge also entered factual findings that prior to
accepting petitioner's plea, the court fully admonished
petitioner as required by state law regarding the waiver of his
rights and the consequences of his plea; that petitioner signed
that he understood the written plea admonishments and that he was
aware of the consequences of his plea; that petitioner presented
no evidence showing that he did not receive the requisite
statutory admonishments or contradicting his plea attestation
that he knowingly and voluntarily entered his guilty plea. 3 (Id.
at 68-69.) Based on his findings,
the state habeas judge
concluded that petitioner entered his guilty plea, without being
coerced to do so, knowingly, voluntarily and intelligently based
on proper and adequate advice of counsel. In turn, the Texas
Court of Criminal Appeals denied habeas relief based on the
habeas court's findings.
Having reviewed the record in its entirety, the state
court's adjudication of the issue is neither contrary to or an
The court notes that in the state habeas proceedings in WR-54,131-06,
the trial court also entered relevant findings on the issue of voluntariness,
including a finding that counsel "specifically advised the applicant that he
would be able to appeal his conviction if he accepted the State's plea bargain
offer." (SH6, WR-54,131-06, 50, ECF No. 16-22.) This finding is clearly
erroneous. Trial counsel testified that he informed petitioner that he would
waive his right to appeal if he agreed to the plea bargain, the trial court
credited counsel's testimony, and petitioner acknowledged, by signing the
written plea admonishments, that he gave up and waived any and all rights of
appeal in the case. (SH5, WR-54,131-05, 77, ECF No. 16-20; Resp't's Answer 17,
ECF No. 21.)
unreasonable application of relevant Supreme Court precedent and
is reasonable given the evidence before the court. There is no
credible evidence that counsel improperly advised petitioner
regarding his rights, waivers, and the consequences of his plea.
Nor is there evidence that petitioner was coerced by counsel, the
prosecution, or the trial court by the threat of stacked
sentences or other tactics. The threat of stacked sentences was
real and any such advice, threat, and/or admonishment given
petitioner was accurate. Petitioner fails to present clear and
convincing evidence rebutting the state court's findings, and
nothing in the record suggests that trial counsel erroneously
advised petitioner or that trial counsel, the state, its agents,
or the judge used coercion or threats to induce petitioner's
plea. Thus, applying the appropriate deference, and having
reviewed the state court records, petitioner has not demonstrated
that the state courts' determination of the issue is contrary to
or an unreasonable application of relevant Supreme Court
precedent or unreasonable in light of the evidence before the
state courts. Petitioner's representations during the plea
proceedings "carry a strong presumption of verity," and the
official records, signed by petitioner, his counsel and the state
trial judge are entitled to a presumption of regularity and are
accorded great evidentiary value.
Webster v. Estelle, 505 F.2d 926,
Blackledge, 431 U.S. at 74;
929-30 (5th Cir. 1974).
Petitioner's claims, after the fact, unsupported by legal
authority or evidence, are insufficient to rebut the presumption
that he received effective assistance of counsel and the
presumption of regularity of the state court records. Webster v.
Estelle, 505 F.2d 926, 929-30
(5th Cir. 1974)
court records "are entitled to a presumption of regularity");
Babb v. Johnson,
61 F. Supp. 2d 604, 607 (S.D.Tex. 1999)
Deferring to the state courts' determination that
petitioner's plea was valid, claims one, two, three, four,
and eight, to the extent not addressed above, involving matters
preceding his guilty plea are waived. See United States v. Broce,
488 U.S. 563, 569-70 (1989)
(by entering a voluntary guilty plea,
a criminal defendant concedes his guilt and waives his right to
demand any constitutionally sufficient evidence to sustain his
conviction); United States v. Boykin, 395 U.S. 238, 243
(by entering a guilty plea, a defendant waives constitutional
rights that inhere in a criminal trial, including the right to
trial by jury, the protection against self-incrimination, and the
right to confront one's accusers"); United States v. Wise, 179
F.3d 184, 186 (5th Cir. 1999)
(Fourth Amendment violation waived
by valid guilty plea); Norman v. Mccotter, 765 F.2d 504, 511 (5th
(same); Murray v. Collins,
387015, at *3
(5th Cir. 1992)
981 F.2d 1255, 1992 WL
(claim that prosecutor and peace
officers engaged in misconduct waived by valid guilty plea) ;
Kelley v. Alabama, 636 F.2d 1082, 1083 (5th Cir. 1981)
who pleads guilty waives the right to challenge the sufficiency
and reliability of the evidence, because the guilty plea itself
stands as evidence against the petitioner); Smith v. Estelle, 711
F.2d 677, 682
(5th Cir. 1983)
claims not related to voluntariness of the plea and sufficiencyof-the-evidence challenges waived by valid guilty plea).
Under the fifth claim, petitioner contends that he is
actually innocent based on newly discovered evidence. "Actual
innocence" is not an independent ground for habeas corpus relief.
Herrera v. Collins, 506 U.S. 390, 400 (1993); Foster v.
Quarterman, 466 F.3d 359, 367 (5th Cir. 2006); Dowthitt v.
Johnson, 230 F.3d 733, 741-42 (5th Cir. 2000). The Supreme Court
reaffirmed in McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013),
that it has not resolved whether a prisoner may be entitled to
habeas corpus relief based on a freestanding claim of actual
innocence. Until that time, such a claim it not cognizable on
federal habeas review.
State Habeas Proceedings
Finally, under the ninth claim, petitioner asserts that in
all of his state habeas proceedings he was denied a full and fair
hearing because his state habeas applications were either denied
or dismissed without written order or oral argument.
(Pet. 7, ECF
No. 6.) Alleged deficiencies in state habeas proceedings are not
a basis for federal habeas relief. Trevino v. Johnson, 168 F.3d
173, 180 (5th Cir. 1999); Nichols v. Scott,
(5th Cir. 1995).
69 F.3d 1255, 1275
Further, a paper hearing is sufficient to
afford a petitioner a full and fair hearing, especially where, as
here, the trial judge and the state habeas judge are one and the
same. Murphy v. Johnson, 205 F.3d 809, 816 (5th Cir. 2000).
For the reasons discussed,
The court ORDERS the petition of petitioner for a writ of
habeas corpus pursuant to 28 U.S.C.
2254 be, and is hereby,
denied. The court further ORDERS that a certificate of
appealability be, and is hereby, denied, as petitioner has not
made a substantial showing of the denial of a constitutional
201 7 .
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