Dunn v. Davis-Director TDCJ-CID

Filing 26

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. The court further ORDERS that a certificate of appealability be, and is hereby, denied. (Ordered by Senior Judge John McBryde on 3/15/2019) (tln)

\J.S. IJISTRICT COURT
NORTllERN DISTRlCTOPTllXAS

FILED
IN THE UNITED STATES DISTRICT
FOR THE NORTHERN DISTRICT OF
FORT WORTH DIVISION
JOHN ANDREW DUNN,
Petitioner,

v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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OURT
EXAS

M/\11 1 5 2019

CLERK, \J.S. DISTRICT COURT

lly·--...,.,.-,---bcpuly
No.

4:18-CV-186-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, John Andrew Dunn, 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. FACTUAL AND PROCEDURAL HISTORY
On December 8,

2016, in Parker County, Texas, Case No. CR16-

0782, pursuant to a plea bargain agreement, petitioner pleaded
guilty to unlawful possession of a firearm by a felon and true to
the felony-enhancement paragraph in the indictment, and the trial

court sentenced him to 18 years' imprisonment. 1 (SHR-01 2 16-22.)
Petitioner did not appeal the judgment of conviction but did
challenge the conviction in a state postconviction writ of habeas
corpus, which was denied by the Texas Court of Criminal Appeals
without written order. This federal petition followed.
II. ISSUES
In petitioner's original form petition, he claims that he
was denied effective assistance of trial counsel by being
unlawfully charged as a felon in possession of a firearm under

§

46.06 of the Texas Penal Code because it did not apply to him.
(Pet. 6.)

In a supplemental form petition, he claims that he was

denied effective assistance of trial counsel because counsel
"coerced/induced" his guilty plea and failed to challenge the
"CI' s" credibility.

(Supp. Pet. 6.)
III. RULE 5 STATEMENT

Respondent does not allege that the petition is barred by
successiveness, the federal statute of limitations, or a failure
to exhaust state court remedies.

(Resp't's Answer 3-4.)

IV. STANDARD OF REVIEW
A

§

2254 habeas petition is governed by the heightened

1on the same date in the same court, petitioner also pleaded guilty
pursuant to plea bargain agreements to delivery of a controlled substance (1-4
grams) and possession of a controlled substance (4-200 grams) with the intent
to deliver in Case Nos. CR16-0325 and CR16-0746 and was sentenced to 18 years'
confinement in each case.
211

SHR-Ol" (state habeas record) refers to the documentary record of
petitioner's state habeas proceeding in WR-86,956-01.

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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
before the state court. 28 U.S.C.

§

2254(d)(l)-(2); Harrington v.

Richter, 562 U.S. 86, 100-01 (2011).
The statute also 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. The presumption of correctness
applies to both express and implied factual findings.
Dretke, 356 F.3d 616,
274 F.3d 941,

948 n.11

Young v.

629 (5th Cir. 2004); Valdez v. Cockrell,
(5th Cir. 2001). Absent express findings

of fact and conclusions of law, a federal court may imply fact
findings consistent with the state court's disposition and
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" in making its decision.
Williams, 568 U.S. 289, 298

Johnson v.

(2013); Richter, 562 U.S. at 99;

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Townsend v. Sain, 372 U.S. 293, 314 (1963); Schaetzle v.
Cockrell, 343 F.3d 440, 444

(5th Cir. 2004); Pondexter v. Dretke,

346 F.3d 142, 148 (5th Cir. 2003); Catalan v. Cockrell, 315 F.3d
491,

493 n.3

(5th Cir. 2002). 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)
Additionally, when the Texas Court of Criminal Appeals, the
state's highest criminal court, denies relief on a state
habeas-corpus application without written order, typically it is
an adjudication on the merits, which is likewise entitled to this
presumption. Richter, 562 U.S. at 100; Ex parte Torres, 943
S.W.2d 469, 472

(Tex. Crim. App. 1997). In such a situation, a

federal court "should 'look through' the unexplained decision to
the last related state-court decision providingn particular
reasons, both legal and factual,

"presume that the unexplained

decision adopted the same reasoning,n and give appropriate
deference to that decision. Wilson v. Sellers, 138

s.

Ct. 1188,

1191-92 (2018).
V. DISCUSSION

Petitioner claims that his trial counsel was ineffective by
allowing him to plead guilty to and be convicted for an act that
did not constitute a crime; by coercing/inducing him to accept
the plea bargain; and by failing to challenge the confidential

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informant's credibility.
A criminal defendant has a constitutional right to the
effective assistance of counsel at trial. U.S. CONST. amend. VI,
XIV; Strickland v. Washington,

466 U.S. 668, 688

(1984). To

establish ineffective assistance of counsel, a petitioner must
show (1) that counsel's performance fell below an objective
standard of reasonableness, and (2) that but for counsel's
deficient performance the result of the proceeding would have
been different. Strickland,

466 U.S. at 688. To prove prejudice

in the context of a guilty plea, a petitioner must show that
"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." Hill v. Lockhart, 474 U.S. 52, 59 (1985). In
applying this test, a court must indulge a strong presumption
that counsel's conduct fell within the wide range of reasonable
professional assistance.

Id.

at 668,

688-89. Judicial scrutiny of

counsel's performance must be highly deferential and every effort
must be made to eliminate the distorting effects of hindsight.
Id.

at 689.
Further, ineffective-assistance-of-counsel claims are

considered mixed questions of law and fact and, therefore, are
analyzed under the "unreasonable application" standard of

§

2254 (d) (1). See Gregory v. Thaler, 601 F. 3d 347, 351 (5th Cir.
2010) . Where, as here, the state courts have adjudicated the

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ineffective-assistance claims on the merits, this court must
review petitioner's claims under the "doubly deferential"
standards of both Strickland and§ 2254(d). Cullen v.

Pinholster,

563 U.S. 170, 190 (2011). In such cases, the "pivotal question"
for this court is not "whether defense counsel's performance fell
below Strickland's standard"; it is "whether the state court's
application of the Strickland standard was unreasonable."
Richter, 562 U.S. at 101, 105.
Under his first claim, petitioner asserts that his trial
counsel was ineffective by failing to object to the charge and
allowing him to be convicted of an offense for which he was
"exempt." (Pet' r's Mem. 3.) Petitioner raised this claim in his
state habeas application, but the state habeas court found that
there were "no controverted, previously unresolved facts material
to the legality" of petitioner's confinement and that the claim
was without merit and the Texas Court of Criminal Appeals denied
relief without written order.

(SHR-01 52.)

Section 46.04 of the Texas Penal Code provides that
(a) A person who has been convicted of a felony
commits an offense if he possesses a firearm:
(1) after conviction and before the fifth
anniversary of the person's release from confinement
following conviction of the felony or the person's
release from supervision under community supervision,
parole, or mandatory supervision, whichever is later;
or
(2) after the period described by Subdivision
(1), at any location other than the premises at which
the person lives.
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TEX. PENAL CODE ANN.

§

46. 04 (a) (1)- (2)

(West 2011).

Petitioner contends that he does not fall within the purview
of the statute because the present offense was committed more
than five years had elapsed since his release from all
confinement for the felony offense alleged in the indictment.
However, petitioner was charged with intentionally and knowingly
possessing "a firearm after the fifth anniversary of [his]
release from confinement following conviction of the felony at a
location other than the premises at which [he] lived,n under
subsection (2).

(SHR-01 2.) Thus, deferring to the state courts'

implied finding that petitioner was not charged under subsection
(1), and assuming the state courts applied the Strickland
standard, the state courts' rejection of petitioner's
ineffective-assistance claim was not objectively unreasonable.
Counsel is not required to make frivolous objections. Green v.
Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998).
Under his remaining two claims, raised for the first time in
his supplemental federal petition, petitioner asserts that trial
counsel was ineffective by coercing and inducing his plea and by
failing to challenge the confidential informant's credibility.
(Supp. Pet.

6.) A state petitioner's claim raised for the first

time in his federal habeas petition is unexhausted and
procedurally barred from federal habeas review, unless the
petitioner can show that (1) he either did not have counsel in

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his state habeas proceeding or his state habeas counsel failed to
raise the claim and (2) the claim is "substantial," meaning that
it has "some merit." 28 U.S.C.
566 U.S. 1, 14
34 8, 358

§

2254(b) (l); Martinez v. Ryan,

(2012). See also Magouirk v. Phillips, 144 F.3d

(5th Cir. 1998)

(providing a federal court may raise

procedural default sua sponte). Clearly, petitioner did not have
counsel during his state-habeas proceedings; thus, the court must
determine whether his claims have some merit.
Petitioner claims that counsel was ineffective by
coercing/inducing him to plead guilty by telling him that if he
went to trial he faced 25 years to life.

(Supp. Pet.

6.) This

claim is conclusory and belied by the documentary record of the
plea proceedings. Petitioner executed the written plea
admonishments in which he acknowledged that upon conviction he
would be "punished for a second-degree felony," with a punishment
range of 2 to 20 years imprisonment. He also acknowledged that he
was aware of the consequences of his plea and that his plea was
made "freely, knowingly and voluntarily" made.

(SHR-01 16, 18.)

See Blackledge, 431 U.S. at 74; Kelley v. Alabama, 636 F.2d 1082,
1084

(5th Cir. 1981). Petitioner's claim of coercion after the

fact, in and of itself, is insufficient to rebut the presumption
that his plea was voluntarily made and the presumption of
regularity of the state court records. See Webster v. Estelle,
505 F.2d 926,

929-30 (5th Cir. 1974)

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(holding state court records

"are entitled to a presumption of regularity"). This claim has no
merit and is procedurally barred from the court's review.
Lastly, petitioner claims that his trial counsel was
ineffective by failing to challenge the confidential informant's
credibility.

(Supp. Pe. 6.)

It is well settled that a guilty

plea, if made knowingly and voluntarily, waives all
nonjurisdictional defects in the proceeding preceding the plea,
including ineffective-assistance-of-counsel claims that do not
affect the voluntary nature of the plea. See United States v.
Glinsey, 209 F.3d 386, 392 (5th Cir. 2000); Smith v. Estelle, 711
F.2d 677, 682

(5th Cir. 1983). Having concluded that petitioner's

plea was voluntary and knowing, this claim is waived.
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. The court further ORDERS that a certificate of
appealability be, and is hereby, denied.
SIGNED March

/

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2019.

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