Davis v. Davis-Director TDCJ-CID
Filing
19
Memorandum Opinion and Order...petition for writ of habeas corpus pursuant to 28 USC 2254 is denied; COA denied. (Ordered by Judge John McBryde on 7/3/2018) (wrb)
IN THE UNITED STATES DISTRICT C URT
FOR THE NORTHERN DISTRICT OF TE AS
FORT WORTH DIVISION
CHARLES 0. DAVIS,
BY~~~~~~~~
Deputy
§
§
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
CLERK, U.S. DISTRICT COURT
§
§
Petitioner,
JUL - 3 ?018
§
§
§
§
§
§
§
§
No. 4:17-CV-122-A
MEMORANDUM OPINION
and
ORDER
This is a petition for a writ of habeas corpus pursuant to
28 U.S.C.
§
2254 filed by petitioner, Charles 0. Davis, 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
On March 15, 2016, in the 355th Judicial District Court,
Hood County, Texas, Case No. CR13077, pursuant to a plea
agreement, petitioner pleaded guilty to one count of delivery of
a controlled substance, dihydrocodeinone, of less than 28 grams
and true to repeat and habitual allegations in the indictment and
was sentenced to 12 years confinement in TDCJ.
(State Habeas R.
1
84-90, doc. 10-4.) Petitioner did not appeal the trial court's
judgment, but he did file a state habeas-corpus application
challenging the 2016 conviction, which was denied by the Texas
Court of Criminal Appeals without written order.
(Action Taken,
doc. 10-3.)
II.
ISSUES
In this federal habeas petition, petitioner raises two
grounds for relief, alleging ineffective assistance of trial
counsel and entrapment. 2 (Pet. 6, doc. 1.)
III.
RULE 5 STATEMENT
Respondent does not move for dismissal of the petition for
failure to exhaust or assert that the petition is barred by the
successive-petition bar or the federal statute of limitations.
(Resp't's Answer 3-4, doc. 11.)
IV. STANDARD OF REVIEW
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
1
"State Habeas R." refers to the record of the state habeas proceeding
in No. WR-86,156-02.
2
In petitioner's reply brief, he raises new claims and legal arguments.
(Pet' r's Reply, doc. 16.) Under the orders of the court and the rules
governing habeas actions, a petitioner cannot raise new claims in reply to the
respondent's answer. Therefore, the claims are not addressed.
2
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
before the state court. Harrington v. Richter, 562 U.S. 86, 10001 (2011); 28
u.s.c.
§
2254 (d) (1)-(2).
Additionally, the statute requires that federal courts give
great deference to a state court's factual findings.
Johnson, 210 F.3d 481, 485
Hill v.
(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 presumption of
correctness applies to both express and implied factual findings.
Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004); Valdez v.
Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001). Thus, absent
express findings,
a federal court may imply fact findings
consistent with the state court's disposition.
372 U.S. 293, 314
Townsend v. Sain,
(1963); Pondexter v. Dretke, 346 F.3d 142, 148
(5th Cir. 2003); Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5th
Cir. 2002). It is the petitioner's burden to rebut the
presumption of correctness through clear and convincing evidence.
28 U.S.C. § 2254 (e) (1).
Finally, when the Texas Court of Criminal Appeals denies a
federal claim in a state habeas-corpus application without
written opinion, a federal court may presume "that the state
3
court adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary"
and applied the correct "clearly established federal law" in
making its decision.
Johnson v Williams, 568 U.S. 289, 298
(2013); Richter, 562 U.S. at 99; Schaetzle v. Cockrell, 343 F.3d
440, 444
(5th Cir. 2004).
V. DISCUSSION
Petitioner asserts that he received ineffective assistance
of trial counsel because counsel coerced him into pleading
guilty.
(Pet. 6, doc. 1.) Specifically, he asserts that (all
spelling, grammatical, and/or punctuation errors are in the
original)he paid an attorney Thirty Five Hundred Dollars to
represent him in this cause. At the initial interview
attorney did tell [petitioner], his case is clearly an
entrapment case and he could guarantee that I wouldn't
do any time if I paid him the Thirty Five Hundred
Dollar fee. After I paid him in full he simply refused
to even do the minimum standards required by law. He
told me that the entrapment was no longer an issue due
to my priors, and that there was no grounds to argue
them on, he also told me that my only option was to
take 12 years T.D.C or that I would get a life sentence
if I didn't. I told him that I did not sell drugs as a
profession, that the alledged drugs were my personal
prescription bottle with me and another 30 pills were
confiscated by police and placed in my personal
property after I made bond they returned the other
Thirty Pills back to me because I had a prescription
for them. I told him how the undercover police officer
had called my cell phone and claimed to be someone that
I knew and he wanted to know if I could possibly sell
him some of my prescription pain medicine because he
was in serious pain. He kept calling me until I agreed
and he wanted me to drive from Ft. Worth to Grandbury,
Texas approximately 32 miles away I told him "NO"
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initially, then he persuaed me by offering me an extra
Thirty Dollars if I agreed, that automatically would
put me in his juridiction, prive to this episode I had
never been to Grandbury in my life. My attorney gave me
incorrect legal advice. I now found out that this was
clearly entrapment. The Undercover police officer had
my phone number and I automatically assumed he was a
friend I didnt recall when we met he told me that he
was an old friend on another level and that he had my
phone number but never had called in the past. Since he
had my personal cell phone number and knew my name and
the fact that I get Prescription Pain Medicine I
beleived him. My Attorney then told me unless you can
come up with another Thirty Five Hundred Dollars I
can't win this case and I can't pursue an entrapment
defense. I told him that I cant afford any more money
on my income, I'm on Disability and my family had to
pay most of your fee. He then told me 'quote" Well if
they want to keep you out of prison they will have to
come up with another Thirty Five Hundred Dollars.
(Pet'r's Mem. 4, doc. 2.)
A criminal defendant has a constitutional right to the
effective assistance of counsel at trial. U.S. CONST. amend. VI,
XIV; Evitts v.
Washington,
Lucey, 469 U.S.
466 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
also Strickland,
(5th Cir. 1983); see
466 U.S. at 687. In assessing the reasonableness
5
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). However, by entering a
knowing, intelligent, and voluntary guilty plea, a defendant
waives all nonjurisdictional defenses and defects in the
proceedings preceding the plea, including an ineffectiveassistance-of-counsel claim unless the ineffective-assistance
claim affects the voluntary nature of the plea. Smith,
at 682; Bradbury v. Wainwright,
658 F.2d 1083, 1087
711 F.2d
(5th Cir.
1981) .
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). 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). When
reviewing a record, a court must give a signed, unambiguous plea
agreement great evidentiary weight. United States v. Abreo, 30
F.3d 29, 32 (5th Cir. 1994). 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
6
(5th Cir. 1979). A
defendant's solemn declarations in open court are presumed true,
and a defendant generally may not recant sworn testimony made at
a plea proceeding. United States v. Fuller, 769 F.2d 1095, 1099
(5th Cir. 1985).
No evidentiary hearing was held and no express findings of
fact or conclusions of law were made by the state courts
regarding petitioner's ineffective-assistance claim. The state
habeas judge, who also presided over the plea proceedings, merely
recommended denial of petitioner's state application after
finding that there were "no controverted, previously unresolved
issues of fact material to the legality of the Petitioner's
conviction." (State Habeas R.
61, doc. 10-4.) The recommendation
was followed by the Texas Court of Criminal Appeals, which denied
relief without written order.
In the absence of express findings of fact or a written
opinion, this court assumes the state courts applied the
Strickland standard and made factual findings consistent with the
state courts' rejection of the claim. Thus, it may be assumed
that the state courts determined that petitioner's guilty plea
was knowing, voluntary, and intelligent. This conclusion is
further reinforced by petitioner's execution of the plea
documents acknowledging that he was aware of the consequences of
his plea and that his plea was freely and voluntarily entered.
(State Habeas R. 86, doc. 10-4.)
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Deferring to the state courts' implied finding, petitioner's
claim that counsel coerced him into pleading guilty is
groundless. Petitioner's conclusory assertions, after the fact,
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").
Petitioner's remaining claim that he was entrapped by law
enforcement is waived as a result of his knowing, voluntary, and
intelligent guilty plea. See United States v. Sarmiento, 786 F.2d
665,
668
(5th Cir. 1986).
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 July _____.:j~~' 2018.
~
ISTRICT JUDGE
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