Carrera v. Thaler
Filing
14
MEMORANDUM OPINION AND ORDER. (Signed by Judge Sim Lake) Parties notified. (aalonzo)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARCUS CARRERA,
TDCJ-CID NO. 1591227,
Petitioner,
CIVIL ACTION NO. H-11-0707
RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
MEMORANDUM OPINION AND ORDER
Marcus Carrera, proceeding pro se, filed a Petition for a Writ
of Habeas Corpus by a Person in State Custody challenging his
state-court aggravated-assault conviction (Docket Entry No. 1).
Pending before the court is Respondent Thaler's Motion for Summary
Judgment with Brief in Support (Docket Entry No. 11).
For the
reasons explained below, the court will grant Thaler's motion for
summary judgment and deny Carrerats petition for a writ of habeas
corpus.
I.
Factual and Procedural Backaround
Carrera is confined in the Texas Department
Justice,
Institutional
Division
(TDCJ-ID),
of Criminal
pursuant
to
his
August 12, 2009, conviction for aggravated assault under cause
number 1194231 in the 262ndDistrict Court of Harris County, Texas.'
The trial court accepted Carrera' s guilty plea and sentenced him to
eighteen yearsf imprisonment.*
The Texas Fourteenth Court of
Appeals dismissed Carrera's appeal on June 3, 2010, because the
case involved a plea bargain and Carrera therefore consequently had
no right to appeal.3
On October 4, 2010, Carrera filed a state
On
habeas corpus a p p l i ~ a t i o n . ~ November 24, 2010, the Texas Court
of Criminal Appeals denied relief without written order on the
findings of the trial court.5
On February 23, 2011, Carrera filed the pending federal habeas
corpus petition, alleging that he is entitled to relief on the
following seven grounds:
(1) the trial judge abused his discretion by effectively
promising Carrera a ten-year sentence and then sentencing
him to eighteen years;
(2) Carrerafs guilty plea was not entered voluntarily,
knowingly, or intelligently because it was based on an
Judgment of Conviction, The State of Texas v. Marcus Carrera, Cause
No. 1194231, included in State Court Records, Docket Entry No. 6-5,
p. 88.
I
3~arrera V. State, No. 14-09-00703-CR, 2010 WL 2195468 (Tex.
App.-Houston [14th Dist.] 2010, no pet.), included in State Court
Records, Docket Entry No. 6-11, pp. 97-98.
4
Application for a Writ of Habeas Corpus, Ex parte Carrera, No. WR74,959-01, included in State Court Records, Docket Entry No. 6-11,
p. 8.
SEx parte Carrera, No. WR-74,959-01,
Records, Docket Entry No. 6-11, p. 2.
included in State Court
"ambiguous, false, and unfulfilled promise, " in violation
of his rights under the Fourteenth Amendment;
(3) Carrera's trial counsel provided ineffective
assistance by failing to preserve a record of
the negotiations leading to the plea of
guilty;
(4) Carrera's
trial counsel provided
ineffective
assistance by failing to obtain a formal or written plea
bargain;
(5) Carrera's
trial counsel provided
ineffective
assistance by failing to object to the eighteen-year
sentence ;
(6) the combination of errors by Carrera's counsel and
the trial court violated his due process rights under the
Fourteenth Amendment; and
(7) Carrera's appellate counsel provided ineffective
assistance by failing to obtain and present affidavits
proving that the judge originally offered a ten-year
sentence.
These are
the
application.'
that
same
raised
in
Carrera' s
state habeas
The respondent moves for summary judgment arguing
petitioner's
petitioner's
claims
Motion
claims
lack
Objecting
merit.8
to
and
Carrera
Requesting
has
filed
Denial
of
Respondentrs Motion for Summary Judgment (Rebuttal) ("Petitionerfs
Rebuttal") (Docket Entry No. 13) .
6~etition
for a Writ of Habeas Corpus by a Person in State Custody
("Carrera's Petition) , Docket Entry No. 1, pp. 6-9.
'~~plication
for a Writ of Habeas Corpus, Ex parte Carrera, No. WR74, 959-01, included in State Court Records, Docket Entry No. 6-11,
pp. 8-19.
8~espondentrs
Motion for Summary Judgment with Brief in Support
("Respondent's Motion"), Docket Entry No. 11, pp. 1-17.
11.
A.
Standard of Review
Summary Judgment
A court may grant summary judgment when the evidence shows
that there is no genuine dispute as to any material fact and that
the movant is entitled to judgment as a matter of law.
Fed. R.
Civ. P. 56(a); Celotex v. Catrett, 477 U.S. 317, 106 S. Ct. 2548,
2552 (1986).
Rule 56 of the Federal Rules of Civil Procedure
"applies with equal force in the context of habeas corpus cases."
Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000) .
In ordinary
civil cases a district court considering a motion for summary
judgment is required to construe the facts in the light most
favorable to the nonmoving party.
Anderson v. Libertv Lobby,
477 U.S. 242, 106 S. Ct. 2505, 2513 (1986). However, when a state
habeas petitioner's factual allegations have been resolved against
him by findings of the state courts, and the prisoner fails to
demonstrate by clear and convincing evidence that the presumption
of correctness established by 28 U.S.C.
§
2254 (e)(1) should not
apply, it is inappropriate for the facts of a case to be resolved
in the petitionerrs favor.
See Marshall v. Lonberqer, 459 U.S.
422, 103 S. Ct. 843, 849 (1983); Sumner v. Mata, 449 U.S. 539, 101
S. Ct. 764, 769 (1981).
B.
AEDPA Standard of Review
Because Carrerars federal habeas petition was filed after the
effective date of the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA"), it is subject to the AEDPA.
521 U.S. 320, 117 S. Ct. 2059, 2061 (1997).
Lindh v. Murphy,
Under the AEDPA, a
court cannot grant a writ of habeas corpus with respect to any
claim that was adjudicated on the merits in state court unless the
state-court decision
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal Law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C.
§
2254 (d). A state-court decision is contrary to clearly
established law if the decision contradicts the governing law set
forth by the Supreme Court or if the state court decides a case
differently than the result dictated by the Court's precedent when
the facts are materially indistinguishable.
Williams v. Taylor,
529 U.S. 362, 120 S. Ct. 1495, 1519 (2000). A state court unreasonably applies federal law if the court "identifies the correct
governing legal principle
. . .
but unreasonably applies that
principle to the facts of the prisoner's case."
Williams at 1523.
"Section 2254(d) reflects the view that habeas corpus is a
'guard against extreme malfunctions in the state criminal justice
systems,' not a substitute for ordinary error correction through
appeal."
Harrinston v. Richter, 131 S. Ct. 770, 786 (2011). To
obtain habeas relief from a federal court, a state prisoner must
show that the state court's ruling was "so lacking in justification
that there was
an error well understood and comprehended
in
existing law beyond any possibility for fairminded disagreement."
I . This is a "highly deferential standard for evaluating stated
court rulings, which demands that state-court decisions be given
the benefit of the doubt."
Cullen v. Pinholster, 131 S. Ct. 1388,
1398 (2011) (quoting Woodford v. Visciotti, 537 U.S. 19, 123 S. Ct.
357, 360 (2002)).
"Section 2254 (d) applies even where there has
Cullen, 131 S. Ct. at 1402.
been a summary denial."
also provides that the state court's
presumed to be correct.
28 U.S.C.
§
The AEDPA
factual findings shall be
2254 (e)(1).
The petitioner
carries the burden of rebutting the presumption of correctness by
clear and convincing evidence.
111.
I.
d
Analvsis
All of the arguments that Carrera raises in his petition for a writ
of habeas corpus arise from a discussion that he alleges took place
prior to his guilty plea, in which the trial judge allegedly
enticed him to plead guilty by promising him a ten-year sentence
and subsequently sentenced him to eighteen years.g The respondent
argues that neither
the judge nor the defense
trial counsel
promised Carrera a specific sentence in exchange for his guilty
plea.l o " [Rleview under
9u
Carrera's
§
2254 (d)(1) is limited to the record that
Petition, Docket Entry No. 1, pp. 6-12.
"~es~ondent's
Motion, Docket Entry No. 11, p . 8.
was before the state court that adjudicated the claim on the
merits."
Cullen, 131 S. Ct. at 1398.
The record shows that on June 5, 2009, Carrera voluntarily
pleaded guilty to the charged offense of aggravated assault with a
deadly weapon.''
Carrera also signed written admonishments stating
that he waived his constitutional rights associated with a trial
and that the only plea bargain made was to cap the sentence at
twenty years.''
Despite the written record, Carrera claims that the
trial judge offered him a ten-year sentence in exchange for his
guilty plea.13
Don Hecker, Carrerafs attorney during the guilty-
plea proceedings, refuted Carrerafs allegation of an inducement in
an affidavit submitted to the state habeas court.14 Hecker averred
that he and the trial judge admonished Carrera that the sentence
could be anywhere between five years and twenty years.15
Hecker
further testified that "[tlhere were no promises made to the
Defendant and the Judge specifically admonished him that there were
no guarantees and that the Judge had no idea until he reads the PSI
"Plea of Guilty, The State of Texas v. Marcus Carrera, No. 1194231,
included in State Court Records, Docket Entry No. 6-5, pp. 77-82.
12
Id.
- at 81-82.
"~emorandumof Law in Support of Carrera' s Petition ("Memorandum of
Law"), Docket Entry No. 1-1, pp. 1-2.
I4~ffidavit
of Don Hecker, Docket Entry No. 6-11, pp. 74-75.
at 74.
report what he was going to do."16 The trial court found that the
facts asserted in Heckerrs affidavit were true.17 The trial courtrs
factual findings are also consistent with the plea papers, which
stated that there was no agreed sentence and showed only a twentyyear cap on the sentence.18
Carrera indicated in his signed
statement that he had not received any promises of leniency
designed to induce a plea.lg
The Texas Court of Criminal Appeals adopted the findings of
the trial court when it denied relief.20
findings
. . .
"State-court factual
are presumed correct; the petitioner has the burden
of rebutting the presumption by 'clear and convincing evidence.'"
Richards v. Ouarterman, 566 F.3d 553, 563 (5th Cir. 2009) (quoting
Rice v. Collins, 546 U.S. 333, 126 S. Ct. 969, 974 (2006))
.
Carrera submits two affidavits in support of his claim that he
was offered a ten-year sentence, one from his mother and one from
his grandmother .21 In essence, Carrera' s mother and grandmother
I 7 ~ xparte Carrera, No. WR-74,959-01, included in State Court
Records, Docket Entry No. 6-11, p. 78.
"plea of Guilty, The State of Texas v. Marcus Carrera, No. 1194231,
included in State Court Records, Docket Entry No. 6-5, p. 81.
0 parte
~
~
Carrera, No. WR-74,959-01, included in State Court
Records, Docket Entry No. 6-11, p. 2.
2
"~ffidavitof Julia Ann Jimenez, Exhibit A to Docket Entry No. 1-2,
p. 1; Affidavit of Beatrice Carrera, Exhibit B to Docket Entry
No. 1-2, p . 2.
aver that the trial judge promised a ten-year sentence, but instead
imposed an eighteen-year sentence."
Regardless of the veracity of
these affidavits, this court cannot consider them because they were
not part of the record that was before the state habeas court.
Cullen,
131
S.
Ct.
at
1398.
Although
Carrera
argues
in
Petitioner's Rebuttal that both affidavits "were presented at the
state level but failed to reach the courts in a timely manner," he
acknowledges that the affidavits were filed after the Court of
Criminal Appeals
denied him relief.23
Under Cullen
the only
relevant inquiry is whether the evidence in question was a part of
the state court record.
It would have been impossible for these
affidavits to be part of the state court record because the Texas
Court of Criminal Appeals denied relief on November 24, 201OIz4
and
the affidavits are dated December 1, 2010.25 ~onsequently,the only
evidence that Carrera can offer in support of his argument that the
trial judge offered him a ten-year sentence is his own recollection
of the events.
Even this argument is undermined by Carrera's
statements in the plea papers:
"I have received no promises of
23~etitioner'sRebuttal, Docket Entry No. 13, p. 14.
"EX parte Carrera, No. WR-74,959-01, included in State Court
Records, Docket Entry No. 6-11, p. 2.
"~ffidavit of Julia Ann Jimenez, Exhibit A to Docket Entry No. 1-2,
1; Affidavit of Beatrice Carrera, Exhibit B to Docket Entry
No. 1-2, p. 1.
p.
leniency or of any other nature, from my own attorney, from the
State of Texasf attorney, or from any other person to induce me to
"
plead guilty."
In light of Carrera's own statements in his guilty plea, the
affidavit submitted by his trial counsel Don Hecker, and the lack
of any record evidence supporting Carrerafs claims, Carrera has
failed to rebut the presumption of correctness owed to the state
habeas court's findings.
The state habeas court found that (1) no
promises were made to Carrera other than to cap punishment at
twenty years in TDCJ-ID; (2) Carrera was specifically admonished at
the time of his plea that the court "had no idea" what his sentence
would be until after the PSI report had been written and reviewed;
and (3) the trial court orally admonished the applicant regarding
the consequences of his plea."
Carrerafs arguments for habeas
relief all depend on the alleged offer of a ten-year sentence,
which he has failed to prove by the "clear and convincing evidence"
standard required by
§
2254 (e)(1).
Thus, Carrera has failed to
show that he received ineffective assistance by his trial or
appellate counsel, that his plea was given involuntarily, that the
trial court abused its discretion, or that his due process rights
were violated.
Accordingly, Carrera has failed to show that the
*%lea of Guilty, The State of Texas v. Marcus Carrera, No. 1194231,
included in State Court Records, Docket Entry No. 6-5, p. 82.
"EX parte Carrera, No. WR-74,959-01,
Records, Docket Entry No. 6-11, p. 79.
included in State Court
state court's ruling was "so lacking in justification that there
was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement."
131 S. Ct. at 786.
Richter,
This court therefore concludes that the state
court's decisions were not incorrect or objectively unreasonable.
IV.
Under 28 U.S.C.
Certificate of Appealability
§
2253, Carrera needs to obtain a certificate
of appealability before he can appeal this Memorandum Opinion and
Order dismissing his petition.
To obtain a certificate of appeal-
ability Carrera must make a substantial showing of the denial fo a
constitutional right.
(5th Cir. 2002).
Williams v. Puckett, 283 F.3d 272, 276
To make such a showing Carrera must demonstrate
that the issues are debatable among jurists of reason; that a court
could resolve the issues in a different manner; or that the
questions are adequate to deserve encouragement to proceed further.
Lucas v. Johnson, 132 F.3d 1069, 1073 (5th Cir. 1998).
For the
reasons stated in this Memorandum Opinion and Order, Carrera has
not made a substantial showing of the denial of a constitutional
right.
Newbv v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996).
The
court will deny the issuance of a Certificate of Appealability.
V.
For
the
following:
reasons
Conclusion and Order
explained
above,
the
court ORDERS
the
1.
Respondent Thaler' s Motion for Summary Judgment
with Brief in Support (Docket Entry No. 11) is
GRANTED.
2.
Carrerats Petition for a Writ of Habeas Corpus by a
Person in State Custody (Docket Entry No. 1) is
DENIED.
SIGNED at Houston, Texas, on this 25th day of July, 2011.
UNITED STATES DISTRICT JUDGE
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