Flores v. Davis-Director TDCJ-CID

Filing 19

OPINION AND ORDER denying writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Ordered by Senior Judge Terry R Means on 8/15/2018) (npk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JOSE LUIS SAAVEDRA FLORES,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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Civil Action No. 4:17-CV-556-Y

OPINION AND ORDER
Before the Court is a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 filed by petitioner Jose Luis Saavedra
Flores, a state prisoner, against Lorie Davis, director of the
Texas Department of Criminal Justice, Correctional Institutions
Division, Respondent. After having considered the pleadings and
relief sought by Petitioner, the Court has concluded that the
petition should be denied.
I. FACTUAL AND PROCEDURAL HISTORY
In May 2015 Petitioner was charged in Criminal District Court
Number One, Tarrant County, Texas, Case No. 1406819D CR12297, in a
three-count indictment with one count of continuous sexual abuse of
a child under 14 years of age (count one); one count of aggravated
sexual assault of a child under 14 years of age (count two); and

one count of indecency with a child (count three). (SHR1 188, doc.
14-2.) On February 1, 2016, pursuant to a plea agreement, the state
waived counts one and three; Petitioner waived a jury trial and
entered a guilty plea to count two; and the trial court assessed
his

punishment

at

40

years’

confinement.

(Id.

at

190-95.)

Petitioner did not appeal his conviction. (Pet. 3, doc. 3.) On
December

22,

2016,

Petitioner

filed

a

state

habeas-corpus

application attacking his conviction, which was denied by the Texas
Court of Criminal Appeals without written order on the findings of
the trial court. (Id. at 20 & Action Taken, doc. 14-1.) This
federal habeas petition followed.
II.

ISSUES

Petitioner raises the following grounds for habeas relief:
(1)

He was denied access to the courts;

(2)

His plea was involuntary and unknowing;

(3)

He received
counsel; and

(4)

Counsel’s cumulative errors led to him “pleading
out to avoid a continuous sentence that translated
to Petitioner remaining in prison for the rest of
his life.”

ineffective

assistance

of

trial

(Pet. at 6-7, doc. 3.)

1

“SHR” refers to the record of Petitioner’s state habeas proceeding in WR86,965-01.

2

III.

RULE 5 STATEMENT

Respondent believes that Petitioner has exhausted his statecourt remedies as to the claims raised, save for one of his
ineffective-assistance-of-counsel claims under his third ground,
and that the petition is neither successive nor barred by the
federal statute of limitations. (Resp’t’s Ans. 4, doc. 12.)
IV. DISCUSSION
A § 2254 habeas petition is governed by the heightened
standard of review provided for in 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 established by the Supreme Court
or that is based on an unreasonable determination of the facts in
light of the record before the state court. 28 U.S.C. § 2254(d)(1)(2); Harrington v. Richter, 562 U.S. 86, 100 (2011). This standard
is difficult to meet but “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

3

court shall be presumed to be correct. A 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).
Further, 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 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, as determined by the Supreme
Court of the United States” unless there is evidence that an
incorrect standard was applied, in making its decision. Johnson v.
Williams, 568

U.S. 289, 298 (2013); Harrington, 562 U.S. at 99;1

Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2004).
A. Access to the Courts
Under his first ground, Petitioner claims that he was denied
access to the courts because he was denied the purchase of his
trial transcripts and other relevant documents pertaining to his
case for purposes of preparing a collateral attack on his guilty
plea. (Pet. 6, doc. 3; Pet’t’s Resp. 2, doc. 17.) Prisoners have a
fundamental constitutional right to “adequate, effective, and
meaningful” access to the courts. Bounds v. Smith, 430 U.S. 817,
822 (1977); Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir.),
cert. denied, 522 U.S. 995 (1997). However, the right of access is
4

not

unlimited.

“[I]t

encompasses

only

‘a

reasonably

adequate

opportunity to file nonfrivolous legal claims challenging their
convictions or conditions of confinement.’” Johnson, 110 F.3d at
310-11 (quoting Lewis v. Casey, 518 U.S. 343, 356 (1996)). In order
to establish a claim for denial of access to the courts, a prisoner
must demonstrate that he suffered “actual injury.” Lueck v. Wathen,
262 F. Supp. 2d 690, 694 (N.D.Tex. 2003). This, in turn, requires
proof that the denial of access “hindered his efforts to pursue a
legal claim.” Id. (quoting Lewis, 518 U.S. at 351).
The state courts found that the Tarrant County District
Clerk’s Office allowed Petitioner’s family to purchase documents,
and Petitioner acknowledges that some of the records were, in fact,
made available to him. (SHR 104, ECF No. 14-2; Pet’r’s Mem. 6, doc.
4.) Further, pursuant to Rule 5 of the Rules Governing Section 2254
Cases, Respondent has filed the clerk’s record of the postconviction state habeas proceeding with this Court. Petitioner does
not identify other transcripts or records that exist and that he
was allegedly denied nor does he explain how the absence of those
transcripts or records prevented him from pursuing a nonfrivolous
claim in the state courts or in this Court. This claim does not
entitle Petitioner to federal habeas relief.
B. Involuntary and Unknowing Guilty Plea
Under his second ground, Petitioner claims that his guilty
plea was involuntary and unknowing because it was entered on his
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trial counsel’s advice when counsel was unfamiliar with the facts,
unprepared for trial, and still in the “midst of various important
investigations.” (Pet. 6, doc. 3; Pet’r’s Mem. 7-10, doc. 4.) In
support

of

his

claim,

Petitioner

directed

the

state

courts’

attention to his counsel’s motion for continuance, filed one week
before trial, requesting additional time to complete a thorough
review of the victim’s MHMR records that had just been received. He
also alerted them to his requests for other counseling records of
the victim, to interview witnesses whose locations and addresses
were just discovered, to obtain a transcription of the forensic
interview, and to have the notes of an interview with a licensed
counselor transcribed. (SHR at 145-46, doc. 14-2.) Petitioner also
directed the state courts’ attention to a Brady disclosure received
three

days

before

trial,

which

allegedly

required

further

investigation, and to his own post-trial requests to withdraw his
plea. (Id. at 95, 147, 149-50.) He urges that because trial counsel
advised him to plead guilty or “spend a lot of time in prison,” he
was left with no other choice but to plead guilty. (Pet’r’s Reply
2, doc. 17.) He asserts that “[i]f he would have been admonished
during the first plea offer he would of [sic] accepted that, but
the trial counsel’s admonishment came late. He had to accept such
offer or go to trial without the assistance of his counsel, since
he was not prepared.” (Id.)
A guilty plea is knowing, voluntary and intelligent if done

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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). 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.), cert. denied, 513 U.S. 1064 (1994). Additionally, 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). 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).
Based on the documentary record and her own recollection of
the plea proceedings, the state habeas judge entered the following
factual findings relevant to the voluntary and knowing nature of
Petitioner’s plea:
7.

[Petitioner] was properly admonished.

8.

[Petitioner] acknowledged by his signature that he
understood the written plea admonishments and that
he had no questions.

9.

[Petitioner] acknowledged by his signature that he
was aware of the consequences of his plea.

10.

[Petitioner] acknowledged by his signature that he
7

was
“totally
representation.

satisfied”

with

counsel’s

11.

[Petitioner] does not allege what about the plea
process or the outcome of the conviction he was not
properly advised.

12.

[Petitioner] does
counsel provided.

13.

Counsel spent a considerable amount of time
obtaining, reviewing, and filing information
regarding the victim’s medical, school, and
psychological records.

14.

An
investigator
was
appointed
and
counsel
subpoenaed
several
additional
witnesses
on
[Petitioner]’s behalf.

15.

Counsel had three additional witnesses sworn in to
testify.

16.

On February 23, 2016, [Petitioner] presented
evidence to this Court that counsel advised him
that the plea offer was the better deal because
[Petitioner] would be convicted by a jury.

17.

Counsel properly advised [Petitioner]
guilty after investigating the victim.

18.

There is no evidence to overcome the presumption
that his plea of guilty was regular.

not

allege

what

“misadvice”

to

plead

(SHR 118-19, doc. 14-2 (record citations omitted).)
Based on those findings, which were later adopted by the Texas
Court of Criminal Appeals, and relevant state law, the state habeas
court entered the following legal conclusions:
7.

There is a presumption of regularity with respect
to guilty pleas under Texas Code of Criminal
Procedure art. 1.15.

8.

Before accepting a guilty plea, the court must
admonish the defendant as to the consequences of
his plea, including determining whether the plea is
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freely, voluntarily, and knowingly given.
9.

[Petitioner] was properly admonished.

10.

When a defendant complains that his plea was not
voluntary due to ineffective assistance of counsel,
“the voluntariness of the plea depends on (1)
whether counsel’s advice was within the range of
competence demanded of attorneys in criminal cases
and if not, (2) whether there is a reasonable
probability that, but for counsel’s errors, he
would not have pleaded guilty and would have
insisted on going to trial.”

11.

[Petitioner] has failed to prove that he was not
properly advised regarding the plea process.

12.

Counsel properly investigated
[Petitioner] pled guilty.

13.

[Petitioner] has failed to prove that counsel’s
advice fell below a range of competence demanded of
attorneys in criminal cases.

14.

[Petitioner] has failed to prove that he would not
have pled guilty and would have insisted on going
to trial but for the alleged misconduct.

15.

[Petitioner] has failed to prove that his plea was
involuntary due to ineffective assistance of
counsel.

16.

[Petitioner] has failed to overcome the presumption
that his plea was regular.

17.

[Petitioner]’s plea was freely, voluntarily, and
knowingly made.

the

case

before

(Id. at 121-22 (citations omitted).)
Petitioner fails to present clear and convincing evidence in
rebuttal. 28 U.S.C. § 2254(e)(1). Thus, this Court must apply the
presumption of correctness to the state courts’ findings on the
issue.

Having

done

so,

Petitioner’s

9

claims

that

counsel

was

unprepared

for

trial

and/or

gave

him

erroneous

advice

are

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”). Counsel’s obligation is to inform a
criminal defendant of the advantages and disadvantages of a plea
agreement and the attendant statutory and constitutional rights
that a guilty plea would forgo. Libretti v. United States, 516 U.S.
29, 50–51 (1995). Often a criminal defendant, even if he is
unwilling or unable to admit his guilt, will agree to plead guilty
to an offense, having been so informed by counsel, in order to
avoid a potentially harsher sentence by a judge or jury. Such a
decision on the part of a defendant does not render counsel’s
representation deficient or a plea involuntary. See North Carolina
v. Alford, 400 U.S. 25, 37 (1970); Brady, 397 U.S. at 749–50.
C. Ineffective Assistance of Counsel
Because petitioner’s guilty plea was intelligent, knowing, and
voluntary,

his

claim

under

ground

three

that

counsel

was

ineffective for failing to impeach the victim or to file a motion
to suppress her statements is waived by the plea.2 See United

2

Because the claim that counsel was ineffective by failing to file a motion
to suppress the victim’s statements is waived, it is not necessary for the Court
to address the issue of exhaustion. (Resp’t’s Answer 13-16, doc. 12.)

10

States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000); Smith v.
Estelle,

711

F.2d

677,

682

(5th

Cir.

1983).

Petitioner’s

cumulative-effect claim under ground four is likewise waived by the
plea as he cites to no alleged misconduct by counsel after the plea
was entered.
For the reasons discussed herein, the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED.
Further, a certificate of appealability will not be issued.
Such a certificate may issue “only if the [Petitioner] has made a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). “Under this standard, when a district court
denies habeas relief by rejecting constitutional claims on their
merits, ‘the petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional
claims debatable or wrong.’” McGowen v. Thaler, 675 F.3d 482, 498
(5th Cir. 2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). Petitioner has not made a showing that reasonable jurists
would

question

this

Court’s

resolution

of

his

constitutional

claims. Therefore, a certificate of appealability should not issue.
SIGNED August 15, 2018.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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