Parrott Jr. v. Thaler
MEMORANDUM AND ORDER. The habeas corpus petition is DISMISSED with prejudice on the merits. A certificate of appealability is DENIED. All other pending motions, if any, are DENIED (Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
JIMMIE MARK PARROTT JR.,
May 30, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-13-1052
MEMORANDUM AND ORDER
Petitioner Jimmie Mark Parrott, Jr. was confined by Texas Department of Criminal
Justice–Correctional Institutions Division (“TDCJ”) at the time he filed this habeas corpus
petition. Petitioner seeks relief from a 15-year sentence that he received as the result of his
conviction for a third degree felony, which was enhanced with one prior conviction. After
carefully reviewing the petition, court records, state court opinions, motions, supplemental
briefing by Petitioner and Respondent,1 and the applicable law, the Court concludes as follows.
FACTUAL AND PROCEDURAL BACKGROUND
On October 5, 2009, a Harris County grand jury returned an indictment charging
Petitioner with theft of over $20,000 and less than $100,000, which is a third-degree felony
On May 1, 2016, Lorie Davis succeeded William Stephens as Director of the Texas Department of
Criminal Justice - Correctional Institutions Division. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Davis is substituted in place of Stephens as the respondent in this case.
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offense under Texas Penal Code § 31.03(a).2 The indictment also alleged two prior felony
convictions for sentencing enhancement purposes.3 The first enhancement was a 1997 conviction
for unauthorized use of a motor vehicle (“UUMV”) in Cause No. 731089, and the second was a
1999 conviction for theft in Cause No. 808126.4
Under Texas law, a third degree felony carries a punishment range of 2 to 10 years’
imprisonment and a fine not to exceed $10,000. See TEX. PENAL CODE § 12.34 (West 2009). A
prior felony conviction may be used to enhance the punishment for a third degree felony to a
second degree felony, which carries a sentence range of 2 to 20 years’ imprisonment. See former
TEX. PENAL CODE §§ 12.42(a)(3), 12.33(a) (West 2009). Thus, if an individual is charged with a
third degree felony with one felony enhancement, the punishment range increases from 2 to10
years (third degree felony punishment range) to 2 to 20 years (second degree felony range).
Further, if the State establishes that the defendant has two prior felony convictions, the sentence
may be enhanced to a range of 25 years to life imprisonment. See TEX. PENAL CODE §§ 12.42(d)
A prior state jail felony conviction, however, may not be used to enhance
punishment for a third degree felony. See Campbell v. State, 49 S.W.3d 874, 878 (Tex. Crim.
App. 2001) (en banc).
Petitioner’s case was assigned to the 230th District Court of Harris County, Texas, the
Honorable Belinda Hill, presiding.5 The state trial court appointed Attorney Beverly Melontree
See Docket Entry No. 11-14 [“Clerk’s Record I”] at 17. When citing to the documents on file, this
Memorandum and Order uses the pagination stamped at the top of the page of the pleadings in the
CM/ECF system, unless otherwise specified.
Clerk’s Record I at 2.
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as Petitioner’s defense counsel.6
On January 21, 2010, Petitioner pled guilty to the theft charge set forth in the indictment
based on the State’s offer to recommend a sentence of 15 years’ imprisonment. 7 In making that
recommendation, the State abandoned the first enhancement paragraph in the indictment
regarding Cause No. 731089, striking through it and noting that “the State abandons this
enhancement.”8 It is undisputed that the conviction referenced in the first enhancement
paragraph (UUMV) was a state jail felony.
The State also struck through the second
enhancement, but then noted that “this enhancement is valid.”9 The written admonishments
confirm that Petitioner pled guilty to a third degree felony with one enhancement.10 Petitioner
placed his initials next to the all-caps “THIRD DEGREE FELONY WITH ONE
ENHANCEMENT” admonishment, which stated: “if a third degree felony is enhanced with one
prior felony conviction a term of not more than 20 years or less than 2 years in the [I]nstitutional
Division of the Texas Department of Criminal Justice, and in addition, a fine not to exceed
$10,000.00 may be assessed.”11
On January 22, 2010, the trial court sentenced Petitioner to 15 years’ imprisonment based
on the plea of guilty and the signed admonishments.12 The trial court certified that Petitioner had
Id. at 18.
Docket Entry No. 11-15 [“Clerk’s Record II”] at 21 (Plea of Guilty).
Id. at 20.
Id. at 23.
Clerk’s Record II at 31-32.
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no right to appeal because it was a plea-bargain case.13
On February 10, 2010, Petitioner filed a notice of appeal.14 On April 1, 2010, the state
intermediate appellate court dismissed that appeal based on the trial court’s certification that
Petitioner had no right to appeal his conviction in a plea-bargain case. See Parrott v. State of
Texas, No. 14-10-00160-CR, at *1 (Tex. App.—Houston [14th Dist.] April 1, 2010, no pet.).15
On March 10, 2010, while his direct appeal was pending, Petitioner filed his first
application for a state writ of habeas corpus, arguing that his enhanced sentence was illegal.16 In
particular, Petitioner argued that punishment for his third degree felony conviction was enhanced
improperly with the second enhancement paragraph of the indictment, which referenced his theft
conviction in Cause No. 808126, because that offense was only a state jail felony. As such, this
prior felony was not properly used to enhance his punishment. The state habeas court appointed
Mr. Adam Brown as counsel to represent Petitioner during his first habeas proceeding on May
26, 2010.17 In its Answer in Cause No. 1227343-A, the State agreed that Petitioner’s sentence
was not authorized because the enhancement referenced in the second paragraph of the
indictment was a state jail felony and was not valid for enhancement purposes.18 On October 4,
2010, the state habeas court recommended that the Texas Court of Criminal Appeals (“TCCA”)
grant relief.19 On December 15, 2010, the TCCA dismissed the application without reaching the
See id. at 33 (Trial Court’s Certification).
Id. at 41.
Clerk’s Record I at 6.
See Docket Entry No. 11-39 at 9 (Cause No. 1227343-A).
Id. at 24.
See Docket Entry No. 11-41 at 30.
Docket Entry No. 11-42 at 23.
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merits because Petitioner’s direct appeal was pending at the time the application was filed.20
On December 27, 2010, Petitioner, apparently proceeding pro se,21 filed a second
application for habeas relief in state court in Cause No. 1227343-B, alleging that his sentence
was illegally enhanced.22 He amended his application to add claims for ineffective assistance of
counsel and denial of due process of law.23 On February 22, 2011, the state habeas court ordered
briefing on the following issues: (1) whether petitioner was denied effective assistance of
counsel, and (2) whether the applicant was illegally confined due to an illegal sentence.24
The record reflects that Assistant District Attorney Andrew J. Smith certified that he
served a copy of the “State’s Proposed Findings of Fact, Conclusions of Law and Order” to
Petitioner at his assigned prison unit on March 23, 2011.25 The State attached three exhibits
authenticated as business records from the TDCJ, which detailed three alternate prior felony
convictions that would each support Petitioner’s 15-year enhanced sentence.26 In particular, the
State tendered certified TDCJ records indicating that Petitioner had a 1982 robbery conviction in
Harris County Cause No. 344734; a 1985 theft-by-receiving conviction in Harris County Cause
No. 417926; and a 1998 arson conviction in Montgomery County Cause No.96-05-00693-CR.27
See Docket Entry No. 11-39 at 2 (Action Taken Sheet).
Mr. Adam Brown was appointed as habeas counsel for Petitioner’s second application on January 5,
2012. See Docket Entry No. 11-19 at 5.
Docket Entry No. 11-56 (State Habeas Corpus Record II [“SHCR II”]) at 9-20.
Id. at 34, 49-50.
Docket Entry No. 11-57 (State Habeas Corpus Record III [“SHCR III”]) at 6.
See SHCR III at 54.
Id. at 49-56; Docket Entry No. 11-58 (State Habeas Corpus Record IV [“SHCR IV”]) at 1-25.
See SHCR IV at 1-25.
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On June 6, 2011, the State filed its Answer, denying the factual allegations in the
application, but acknowledging that Petitioner’s “conviction for the state jail felony offense of
theft in Cause No. 808126 cannot be used to enhance [Petitioner’s] punishment for the third
degree felony offense of theft.”28 On June 7, 2011, one day after the State filed its Answer and
allegedly before Petitioner had an opportunity to respond to the State’s evidence of his prior
convictions, the state habeas court adopted the State’s proposed Findings of Fact and
Conclusions of Law.29 In doing so, the state habeas court recommended that relief be denied
because although the state jail felony conviction in Cause No. 808126 could not be used to
enhance Petitioner’s punishment, the State had proffered several other valid felony convictions
which could be used to support Petitioner’s enhanced sentence.30 The state habeas court’s
findings and conclusions were allegedly forwarded to the TCCA before Petitioner’s objections,
filed pro se, were filed on June 15, 2011.31
On September 28, 2011, the TCCA requested briefing on the doctrine of invited error and
on whether enhancement of the challenged sentence was limited to the enhancement paragraphs
in the indictment or whether other convictions could be used to make the sentence proper.32 On
January 9, 2013, the Texas Court of Criminal Appeals (“TCCA”) denied the application in a
written opinion, with three justices dissenting. See Ex parte Parrott, 396 S.W.3d 531, 533 (Tex.
Crim. App. 2013). The TCCA noted that the State did not dispute that a state jail felony was
improperly used to increase Petitioner’s punishment range to 2 to 20 years. See id. The majority
Docket Entry No. 11-55 (State Habeas Corpus Record I [“SHCR I”]) at 17.
SHCR IV at 33-37.
Id. at 36.
See SHCR I at 3-7.
Docket Entry No. 11-17 at 1-3.
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determined that Petitioner had “demonstrated a cognizable error” on state habeas review, but that
he had “failed to establish that he was harmed by that error because his sentence is in accordance
with his criminal history, admonishments, and plea-bargain agreement.”
Id. at 538.
majority reasoned that Petitioner failed to make that showing because the record reflected
multiple, alternative prior convictions that could be used to enhance his sentence. Id. The
majority also held that Petitioner had notice and an opportunity to be heard because state habeas
proceedings allow for “proof [to] be developed through evidence beyond the appellate record,”
id. at 534, and that Petitioner “presented no evidence revealing any legal impediment to the use
of his prior felony convictions for enhancement purposes.” Id. at 536. The TCCA further found
that trial counsel was not ineffective because she could have made the strategic decision not to
object to the enhancement in the indictment in order to prevent the State from proffering the
other prior convictions that could have further increased the potential punishment range. See id.
at 534 n.5.
After the TCCA denied Petitioner’s motion for rehearing on March 27, 2013, Petitioner
filed his federal petition for habeas relief in this Court on April 2, 2013.33 In that petition,
Petitioner sought federal habeas relief on the following claims: (1) he was denied due process
because his sentence was not authorized under State law34; (2) he was denied effective assistance
of counsel because his attorney failed to research and investigate the enhancement paragraphs in
the indictment35; (3) the trial court lacked jurisdiction to adjudicate the alleged offense because
See Docket Entry No. 1 (“Petition”) at 9-10.
Id. at 6.
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the indictment does not allege a violation of the Texas Penal Code36; and (4) he was punished a
second time on state habeas review for the same offense in violation of the double jeopardy
The Respondent filed a motion for summary judgment, which the Court denied without
prejudice to filing a supplemental motion addressing certain issues.38 On December 17, 2015,
the Court appointed counsel for Petitioner and thereafter requested that the parties submit further
briefing on whether the TCCA: (1) unreasonably applied Oyler v. Boles, 368 U.S. 448 (1962),
when it upheld Petitioner’s sentence based on convictions not listed in the indictment; (2)
employed a harm analysis that comports with Brecht v. Abrahamson, 507 U.S. 619 (1993), when
it concluded that Petitioner did not show harm; and (3) unreasonably applied Strickland v.
Washington, 466 U.S. 668 (1984), when it concluded that Petitioner’s defense counsel was not
In his supplemental briefing, Petitioner contends that: (1) his due process rights were
violated when the TCCA upheld his sentence without adequate notice and an opportunity to be
heard, resulting in an unreasonable application of Supreme Court precedent in Oyler v. Boles,
368 U.S. 448, 452 (1962); (2) his right to counsel was violated when he was “resentenced” on
state habeas review in contravention of Mempha v. Rhay, 389 U.S. 128 (1967); (3) harmless
error analysis does not apply because harm is presumed for structural errors; and (4) the Court
need not reach Petitioner’s claim that he was denied effective assistance of counsel in connection
Id. at 7.
See Docket Entry No. 10 at 1-3 (Motion for Leave to Amend to Add a Claim).
See Docket Entry No. 31.
Docket Entry No. 105 (February 17, 2016 Order for Briefing).
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with his plea and original sentencing.40 Respondent has filed a response,41 and this § 2254 case
is now ripe for adjudication.
STANDARD OF REVIEW
The federal writ of habeas corpus affords an important, but limited, examination of a state
inmate’s conviction and sentence. See Harrington v. Richter, 562 U.S. 86, 103 (2011) (noting
that “state courts are the principal forum for asserting constitutional challenges to state
convictions”). The Anti-terrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214 (1996), codified as amended at 28 U.S.C. § 2254(d), “imposes a highly
deferential standard for evaluating state-court rulings and demands that state-court decisions be
given the benefit of the doubt”; it also codifies the traditional principles of finality, comity, and
federalism that underlie the limited scope of federal habeas review. Renico v. Lett, 559 U.S. 766,
773 (2010) (quotations omitted).
AEDPA “bars relitigation of any claim ‘adjudicated on the merits’ in state court, subject
only to the exceptions in [28 U.S.C.] §§ 2254(d)(1) and (d)(2).” Richter, 562 U.S. at 98. “When
a federal claim has been presented to a state court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the merits in the absence of any indication
or state-law procedural principles to the contrary.” Id. at 99.
To the extent that Petitioner exhausted his claims, they were adjudicated on the merits by
state courts. This Court, therefore, can only grant relief if “the state court’s adjudication of the
merits was ‘contrary to, or involved an unreasonable application of, clearly established Federal
See Docket Entry No. 106.
See Docket Entry No. 111.
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law.’” Berghuis v. Thompkins, 560 U.S. 370, 378 (2010) (quoting 28 U.S.C. § 2254(d)(1)). The
focus of this well-developed standard “is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was unreasonable—a substantially
higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Where a claim has been
adjudicated on the merits by the state courts, relief is available under § 2254(d) only in those
situations “where there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with” Supreme Court precedent. Richter, 562 U.S. at 102.
Whether a federal habeas court would have, or could have, reached a conclusion contrary
to that reached by the state court on an issue is not determinative under § 2254(d). Id. (“Even a
strong case for relief does not mean that the state court’s contrary conclusion was
unreasonable.”). Thus, AEDPA serves as a “guard against extreme malfunctions in the state
criminal justice systems,” not as a vehicle for error correction. Id. (citation omitted); see also
Wilson v. Cain, 641 F.3d 96, 100 (5th Cir. 2011). “If this standard is difficult to meet, that is
because it was meant to be.” Richter, 562 U.S. at 102.
“Review under § 2254(d)(1) focuses on what a state court knew and did.” Cullen v.
Pinholster, 563 U.S. 170, 182 (2011). Reasoning that “[i]t would be strange to ask federal courts
to analyze whether a state court’s adjudication resulted in a decision that unreasonably applied
federal law to facts not before the state court,” Pinholster explicitly held that “[i]f a claim has
been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the
limitation of § 2254(d)(1) on the record that was before that state court.” Id. at 185. Thus,
“evidence introduced in federal court has no bearing on § 2254(d)(1) review.” Id.
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Due Process Claim Under Oyler
Petitioner’s primary claim is that the process used to uphold his sentence was
constitutionally deficient under Oyler v. Boles, 368 U.S. 448, 452 (1962), particularly because
Petitioner was not afforded notice and an opportunity to be heard relative to the newly-proffered
prior convictions that were raised on state habeas review.42 Petitioner contends, therefore, that
the state court’s decision to uphold his sentence is contrary to or an unreasonable application of
Oyler, which holds that “a defendant must receive reasonable notice and an opportunity to be
heard relative to the recidivist charge even if due process does not require that notice be given
prior to trial on the substantive offense.” 368 U.S. at 452. Respondent contends that this claim
was not properly raised in state court and is, therefore, unexhausted. Assuming that this claim
was properly raised, Respondent argues in the alternative that it was rejected by the state courts,
meaning that AEDPA deference applies.
A review of the record indicates that Petitioner raised a due process claim in his state
application and brief in support. In particular, his brief submitted to the TCCA raises the issue
that he did not have notice or an opportunity to be heard before the habeas court conclusively
found the alternative convictions to be true and valid for the purposes of enhancement. 43
Petitioner argued as follows in state court:
See Docket Entry No. 106 at 17.
See Docket Entry No. 11-21 (“Applicant’s Brief”) at 8.
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The purpose of the enhancement allegation is to provide the accused with notice
of the prior conviction relied on by the State. Cole v. State, 611 S.W.2d 79, 82
(Tex. Crim. App. [Panel Op.] 1981). Prior convictions used as enhancements
must be pled in some form, although not necessarily in the indictment. Brooks v.
State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997). The accused is entitled to a
description of the judgment of former conviction that will enable him to find the
record and make preparation for a trial on the question of whether he is the
convict named in the judgment. Villescas v. State, 189 S.W.3d 290, 293 (Tex.
Crim. App. 2006) (quoting Hollins v. State, 571 S.W.2d 873, 875 (Tex. Crim.
App. 1978)). The State has the burden of proof to show that any prior conviction
used to enhance a sentence was final under the law and that the defendant was the
person previously convicted of that offense. Flowers v. State, 220 S.W.3d 919,
922 (Tex. Crim. App. 2007). The State’s obligation in this regard is to make a
prima facie showing that the prior conviction used for enhancement is valid. This
may be done by introducing the prior judgment and sentence. The burden then
shifts to the defendant to prove that it is void and unavailable for enhancement.
Johnson v. State, 583 S.W.2d 399, 403 (Tex. Crim. App. [Panel Op.] 1979).44
Petitioner argued further that he was entitled to relief because he was not provided notice and an
opportunity to be heard on the “unpleaded enhancement allegations in post-conviction
challenges.”45 Petitioner contended that allowing the State to proffer new convictions in postconviction habeas review of his sentence would render “the procedures by which such
allegations are tested  essentially optional.”46 These contentions are arguably sufficient to
present a due process claim for review.
Notably, the TCCA considered Petitioner’s due process claim and cited to the United
States Supreme Court’s decision in Oyler for the proposition that a “‘defendant must receive
reasonable notice and an opportunity to be heard relative to the recidivist charge even if due
process does not require that notice be given prior to the trial on the substantive offense.’”
Applicant’s Brief at 8-9.
Id. at 9.
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Parrott, 396 S.W.3d at 537 n.8 (quoting Oyler, 368 U.S. at 452). The TCCA concluded that
Petitioner received adequate notice of the prior convictions that could be used to enhance his
conviction and had the opportunity to contest those allegations in post-conviction collateral
review proceedings, but did not do so. Id. at 538. Based on this record, the Court concludes that
Petitioner exhausted his remedies in state court on this issue and that the TCCA rejected
Petitioner’s claim on the merits. Therefore, this claim is exhausted and is subject to review
under the deferential AEDPA standard. See Richter, 562 U.S. at 98.
At its core, Petitioner’s claim is based on the premise that he has been subjected to an
illegal sentence because the charges in the indictment, together with the invalid enhancement, do
not authorize a 15 year sentence under Texas state law. Texas state courts have carefully
considered Petitioner’s claim and determined that, although Petitioner has shown a “cognizable
error,” he has not shown the requisite harm to establish his right to relief under Texas law. See
Parrott, 396 S.W.3d at 538. The TCCA rejected his illegal sentence claim based on state law,
and issues of state law are not cognizable on federal habeas corpus review. See Estelle v.
McGuire, 502 U.S. 62, 67–68, (1991) (“[I]t is not the province of a federal habeas court to reexamine state court determinations of state law questions.”); Young v. Dretke, 356 F.3d 616, 628
(5th Cir. 2004) (“[I]n our role as a federal habeas court, we cannot review the correctness of the
state habeas court’s interpretation of state law.”). Therefore, this Court may review Petitioner’s
illegal sentence claim only to the extent that he establishes a violation of federal due process in
connection with his sentence.
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Federal Due Process
Petitioner contends that he had a federal due process right to notice and an opportunity to
defend against the newly-proffered recidivist charges in his state habeas proceedings based on
Oyler v. Boles, 368 U.S. 448 (1962). In Oyler, the United States Supreme Court held that “a
defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist
charge even if due process does not require that notice be given prior to trial on the substantive
offense.” Id. Petitioner contends that the TCCA unreasonably applied Oyler when it upheld his
15-year sentence based on enhancement convictions not listed in the indictment without giving
Petitioner adequate notice or opportunity to challenge those prior convictions. In particular,
Petitioner notes that the state habeas court adopted the State’s proposed Findings of Fact and
Conclusions of Law one day after they were filed and before he had a chance to file his
objections. Petitioner claims that the state habeas court did not acknowledge his objections and
did not reconsider its findings in light of his submission.47 Petitioner argues, therefore, that he
“had no opportunity to review or respond to the State’s new evidence before that evidence was
accepted as conclusive by the Texas courts.”48
In Texas, state habeas review allows for the presentation of evidence outside the appellate
record; in fact, the “introduction of new evidence is a key distinguishing feature of habeas
corpus.” Parrott, 396 S.W.3d at 534 (citing Rouse v. State, 300 S.W.3d 754, 762 n. 17 (Tex.
Crim. App. 2009)). The TCCA held that Petitioner “received adequate notice of his convictions
that support the punishment range within which he was sentenced” and had the opportunity,
See Docket Entry No. 106 at 21.
Id. at 22.
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during review by the TCCA, to dispute that those prior convictions support the trial court’s
judgment. Id. at 537-38 & n. 8 (citing Oyler, 368 U.S. at 508). TCCA specifically noted that
Petitioner “could have challenged the validity of those [alternative] convictions and requested an
evidentiary hearing to enable the trial court to resolve any factual dispute, but he has not.” Id. at
538. The TCCA also found that Petitioner “has presented no evidence revealing any legal
impediment to the use of his prior felony convictions for enhancement purposes.” Id. at 536.49
Thus, the TCCA concluded that, “[a]lthough he has demonstrated a cognizable error, [Petitioner]
has failed to establish that he was harmed by that error because his sentence is in accordance
with his criminal history, admonishments, and plea-bargain agreement.” Parrott, 396 S.W.3d at
TCCA’s factual finding that Petitioner had notice and an opportunity to contest evidence
proffered on state habeas review, based on Texas’s habeas corpus procedures allowing for the
introduction of evidence, is entitled to deference. See 28 U.S.C. § 2254(d), (e)(1). Petitioner
does not dispute that Texas procedure allows for the introduction of evidence in state habeas
proceedings and he does not dispute that he did not present evidence to show that all of the
newly proffered convictions were invalid for purposes of enhancement. Therefore, the TCCA’s
conclusion that Petitioner had notice and opportunity to contest the newly-proffered alternative
Petitioner contends that he did contest the prior convictions, but a review of the entire record reveals
that Petitioner acknowledged that at least one of the convictions was valid to support a second degree
punishment within the range he received. See Docket Entry No. 11-33 at 6 (Petitioner acknowledged,
“The State could have substituted either the robbery or the theft by receiving or both. But since both of
these became final on the same date, June 14, 1985, and are not subsequent final felony convictions, [the]
law only allows the increase of the punishment from a 3rd degree to a 2nd degree, no more.”). As
discussed above, one felony conviction used as an enhancement would support the range of punishment
within which Petitioner was admonished and sentenced. Thus, the TCCA’s determination that “the
entirety of the record supports a second degree punishment” is not an unreasonable determination of the
facts based on the evidence presented in the habeas proceeding and the record as a whole. Parrott, 396
S.W.3d at 537.
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convictions was not unreasonable.
Moreover, the Oyler case is distinguishable from the case presented here. Whereas Oyler
concerned whether due process notice requirements were met at trial, Petitioner is challenging
proceedings that were conducted on state habeas review. Due process concerns that arise during
criminal proceedings and direct appellate review of a conviction are fundamentally different
from the civil proceedings on collateral attack of that conviction. See Pennsylvania v. Finley,
481 U.S. 551, 556-57 (1987). As the United States Supreme Court has repeatedly explained,
“postconviction relief is even further removed from the criminal trial than is discretionary direct
review” such that “it is not part of the criminal proceeding itself, and it is in fact considered civil
in nature.” Id. The Supreme Court has explained that habeas applicants, unlike defendants at
trial, are in a “fundamentally different position.” Id. at 559. In the habeas context, “[s]tates have
substantial discretion to develop and implement programs to aid prisoners seeking to secure
postconviction review.” Id. Further, “the Due Process Clause of the Fifth Amendment does not
establish any right to an appeal . . . and certainly does not establish any right to collaterally attack
a final judgment of conviction.”
United States v. MacCollom, 426 U.S. 317, 323 (1976)
(citations omitted) (noting that habeas corpus is not contained in the Due Process Clause but in
the Suspension Clause of the Constitution).
Thus, although Oyler stands for the proposition that, post-conviction and pre-punishment,
a defendant at his criminal trial has the right to notice of the recidivist charge, Petitioner does
not cite, and the Court has not found, Supreme Court precedent addressing the due process
requirements for proffering evidence to demonstrate harm or lack thereof on collateral review.
“[I]t is not ‘an unreasonable application of’ ‘clearly established Federal law’ for a state court to
decline to apply a specific legal rule that has not been squarely established by this Court.”
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Knowles v. Mirzayance, 556 U.S. 111, 121 (2009) (citing cases). Because Oyler does not
address the situation here, an alleged lack of notice during state habeas proceedings, Oyler does
not squarely establish the specific rule Petitioner urges in this case.
Further, although Petitioner characterizes the State’s introduction of new evidence of his
recidivism on collateral review as a “resentencing,” he cites no authority to support the premise
that the procedure used could be construed as reopening his criminal case for a new sentencing
proceeding. Even if Oyler were ambiguous such that it could possibly be construed to have
some application in the habeas context, this Court cannot overrule the state court’s judgment on
that basis. See Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (“A federal court may not overrule a
state court for simply holding a view different from its own, when the precedent from [the
Supreme Court] is, at best, ambiguous.”). Because the TCCA’s decision does not conflict with
the reasoning or the holdings of Supreme Court precedent, the Court concludes that the TCCA’s
decision was not “contrary to . . . clearly established Federal law.” Id. Accordingly, the TCCA
did not unreasonably apply Supreme Court precedent under Oyler regarding its evidentiary
procedures on state habeas review, and its determination of the facts was not unreasonable in
light of the evidence presented in the state court proceeding.
Moreover, to the extent that Petitioner’s claim essentially challenges defects in his state
habeas proceedings, it is well established that defects on state habeas review are not grounds for
federal habeas relief. See Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992), cert.
denied, 507 U.S. 1056 (1993) (citation omitted); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir.
1995) (“An attack on a state habeas proceeding does not entitle the petitioner to habeas relief in
respect to his conviction, as it is an attack on a proceeding collateral to the detention and not the
detention itself.” (internal quotation marks and citations omitted)). In this regard, Petitioner’s
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claim that he did not have notice and an opportunity to challenge the State’s evidence before the
habeas court adopted the State’s proposed Findings of Fact and Conclusions of Law fails under
Fifth Circuit precedent. See Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.), cert. denied, 527
U.S. 1056 (1999).
Similar to the scenario alleged in this case, the petitioner in Trevino
complained that the state habeas court adopted the proposed findings and conclusions tendered
by the State within three hours of filing, before he had any notice or opportunity to respond. Id.
The Fifth Circuit held that petitioner’s “‘claim fails because infirmities in state habeas
proceedings do not constitute grounds for relief in federal court.’” Id. (citing cases). Likewise,
Petitioner’s claim regarding errors on habeas review fails to state a cognizable federal claim for
Finally, even if the Court were to find that defects in the state habeas proceedings
constituted error, Petitioner has not met his burden to show harm under Brecht v. Abrahamson,
507 U.S. 619 (1993), which applies generally in federal habeas corpus proceedings under § 2254.
See Fry v. Pliler, 551 U.S. 112, 121-22 (2007). Under Brecht, a habeas petitioner must show not
only that he suffered a constitutional error at trial, but also that the error “had substantial and
injurious effect or influence in determining the jury’s verdict” causing him actual prejudice. 507
U.S. 619 at 637-38. Petitioner does not attempt to meet this standard; instead, he argues that
harm is presumed because the error was structural.50
His argument is unavailing. Petitioner relies on Tasco v. Butler, 835 F.2d 1120, 1123
(5th Cir. 1988), and French v. Estelle, 692 F.2d 1021, 1022-23 (5th Cir. 1982), in support of his
See Docket Entry No. 106 at 21. A “structural error” is a constitutional error, found “only in rare
cases,” that “‘necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence.’” Washington v. Recuenco, 548 U.S. 212, 218-219 (2006) (quoting
Neder v. United States, 527 U.S. 1, 8 (1999)). Here, Petitioner pled guilty to his crime with one
enhancement, which was later shown on state habeas review to be supported by his actual criminal
history. Petitioner does not show a structural error in his case.
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contention that harm need not be shown.
Both of these cases, which concern sentencing
proceedings that occurred following a criminal trial, are distinguishable because Petitioner’s
claim regarding the newly proffered convictions concerns lack of notice on collateral review.
Further, as Respondent points out, Tasco and French were decided well before Brecht.
Likewise, much of the rationale in French has been overruled by Monge v. California, 524 U.S.
721 (1998) and Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim. App. 1999) (en banc). Because
the defects discussed in Tasco and French occurred at the trial stage of the defendants’ criminal
proceedings, rather than on collateral review, Tasco and French do not support Petitioner’s
contention that harm is presumed in this instance.
The record does not disclose evidence of harm such that relief is required. Although
Petitioner filed objections to the use of alternate convictions, he has made no meritorious
showing that none of the newly proffered convictions could not be used to enhance his sentence
on remand, and there is no double jeopardy bar to re-sentencing him with the newly proffered
priors. See Monge, 524 U.S. at 729-30, 734. Thus, given Petitioner’s acknowledgment that at
least one of the prior convictions could be used to enhance his sentence, he cannot show that the
alleged lack of notice of the alternative priors caused him actual prejudice. Petitioner has not
met his burden to show harm under Brecht.
Based on the totality of the record, the Court concludes that the TCCA’s judgment
denying relief did not unreasonably apply established Supreme Court precedent, nor did it result
in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. Accordingly, Petitioner is not entitled to
habeas relief on this ground.
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Lack of Counsel for “Resentencing”
Petitioner argues that the TCCA unreasonably applied Mempha v. Rhay, 389 U.S. 128
(1967), because he claims he was denied the right to counsel during what he characterizes as a
“resentencing” that occurred on state habeas review.51 Noting that this claim was never raised in
state court, Respondent contends that this claim is unexhausted and procedurally barred.
After a careful review of the entire record and Petitioner’s state habeas application in this
case, the Court concludes that Petitioner did not raise, in state court, his claim regarding lack of
counsel to assist him in defending against the alternative prior felony convictions proffered by
the State on collateral review. As a result, Petitioner did not exhaust state court remedies, which
is a prerequisite to federal review. 28 U.S.C. § 2254(b) (1). Because Petitioner has failed to
exhaust this claim in state court, his claim is procedurally defaulted. See Coleman, 501 U.S. at
735 n.1; Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995) (per curiam). Accordingly, federal
review is barred as the result of Petitioner’s procedural default.
Alternatively, even this claim were properly exhausted and not procedurally barred, it
would fail on the merits because the United States Supreme Court has repeatedly held that “the
right to appointed counsel extends to the first appeal of right, and no further” and has “never held
that prisoners have a constitutional right to counsel when mounting collateral attacks upon their
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (citing and discussing
established Supreme Court precedent); see also In re Sepulvado, 707 F.3d 550, 554 (5th Cir.
2013) (reiterating rule in the Fifth Circuit that “‘the Sixth Amendment does not apply in habeas
proceedings’”) (citations omitted). As discussed above, the alleged error, if any, occurred during
See Docket Entry No. 106 at 20.
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the state habeas proceedings, and “infirmities in state habeas proceedings do not constitute
grounds for federal habeas relief.” Duff-Smith, 973 F.2d at 1182. Accordingly, Petitioner cannot
show his entitlement to habeas relief based on the alleged lack of counsel on collateral review.
Ineffective Assistance of Counsel
Petitioner has alleged that he was denied effective assistance of counsel in connection
with his guilty plea because his defense counsel did not challenge the enhancement paragraphs
that were used to enhance his punishment. Petitioner did not submit supplemental briefing to
support a claim for ineffective assistance of counsel, and he appears to acknowledge that
obtaining relief on this claim is unavailable in light of the deference due state court findings. 52
Rejecting Petitioner’s ineffective assistance of counsel claim, the TCCA reasoned:
[Petitioner]’s criminal history shows that he is a habitual offender potentially
subject to a statutory minimum sentence of 25 years in prison. See Tex. Penal
Code § 12.42(d). Counsel secured him a 15-year sentence, which was 10 years
below the potential minimum range. Had counsel challenged the enhancement
paragraph because it alleged a state-jail felony rather than a higher-grade felony,
this might have prompted the State to use applicant’s other prior felony
convictions, thereby subjecting him to a substantially higher punishment range.
Applicant’s pleas of guilty and true enabled him to receive the lesser punishment
to which he agreed in his plea bargain. Because this pleading error may well have
benefitted him, applicant cannot show that he received ineffective assistance of
Parrott, 396 S.W.3d at 534 n.5.
Reviewing the record as a whole, the Court finds that the TCCA’s conclusion that
counsel was not ineffective was not an unreasonable application of Strickland. To prevail on a
claim of ineffective assistance of counsel, the prisoner must demonstrate that: (1) counsel’s
See Docket Entry No. 106 at 18, 27-29.
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performance was deficient and (2) the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). The Strickland test applies when a prisoner
alleges denial of effective assistance of counsel in the context of a guilty plea. Hill v. Lockhart,
474 U.S. 52, 57–58 (1985). “[I]n a guilty plea scenario, a [prisoner] must prove not only that his
attorney actually erred, but also that he would not have pled guilty but for the error.” See
Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994). A failure to establish either prong of the
Strickland test requires a finding that counsel’s performance was constitutionally effective. See
466 U.S. at 696.
To determine whether counsel’s performance is constitutionally deficient, courts “indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable
assistance.” Strickland, 466 U.S. at 689. Further, “[t]he reasonableness of counsel’s actions may
be determined or substantially influenced by the defendant’s own statements or actions.” Id. at
When a prisoner challenges his plea based on ineffective assistance of counsel, the
“prejudice” requirement “focuses on whether counsel’s constitutionally ineffective performance
affected the outcome of the plea process.” Hill, 474 U.S. at 58. In the context of a plea bargain,
a habeas petitioner may not attack the ineffectiveness of his counsel “except insofar as the
alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea.” Smith v.
Estelle, 711 F.2d 677, 682 (5th Cir. 1983) (citations omitted) (emphasis in original).
The record shows that, on January 21, 2010, Petitioner appeared in open court and
entered a guilty plea to the charge of theft in Cause No. 1227343.53 In connection with that plea,
petitioner executed a written judicial confession to the charges against him.54 The judicial
See Clerk’s Record II at 21.
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confession is accompanied by a series of written admonishments regarding the range of
punishment and the consequences of petitioner’s guilty plea.55 Those written admonishments
clearly stated that the punishment range for the third degree felony with one enhancement was 2
to 20 years’ imprisonment.56
The Petitioner, the state district judge, the prosecutor, and
petitioner’s trial counsel all signed the judicial confession and the written admonishments and
waivers.57 Trial counsel specifically noted that Petitioner’s plea was “knowingly and voluntarily”
made after fully discussing the consequences.58
After admonishing petitioner of the
consequences of the plea, the trial court expressly found that Petitioner “entered it knowingly
and voluntarily after discussing the case with his attorney.”59 Petitioner also acknowledged in
those written plea papers that he was “totally satisfied” with the representation received from
counsel, and that counsel provided “effective and competent representation.”60
Official court records, such as the judicial confession executed by Petitioner, the
prosecutor, defense counsel, and the trial judge “are entitled to a presumption of regularity and
are accorded great evidentiary weight” on habeas corpus review. Hobbs v. Blackburn, 752 F.2d
1079, 1081–82 (5th Cir. 1985) (citations omitted). Likewise, “[s]olemn declarations in open
court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 73–74 (1977).
Representations made by the defendant, his trial counsel, and the prosecutor at a plea hearing, as
well as the findings made by the trial judge accepting the plea, constitute a formidable barrier to
See id. at 22–26.
Id. at 23.
Id. at 21, 26.
Id. at 26.
Id. at 21.
Id. at 26.
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any subsequent collateral attack. Id.
Petitioner contends that counsel was ineffective because she led him to believe that he
was facing 25 years to life imprisonment based on two enhancements and that he felt he “had no
choice” but to accept the plea deal for 15 years, when he was only facing a sentence of 2 to 20
years, at most, based on one enhancement.
Nevertheless, the admonishments, signed and
initialed by Petitioner, refute Petitioner’s contention, fully setting forth that the sentence he was
to receive was based on a third degree felony conviction with one felony enhancement for a
possible maximum sentence range of 2 to 20 years.61
Even if Petitioner felt he “had no choice” but to accept the plea deal rather than face a
much longer sentence if convicted at trial, it is well established that the threat of a longer
sentence if found guilty at trial does not make the plea involuntary. See Brady v. United States,
397 U.S. 742, 749-50 (1970) (holding that the prospect of the death penalty did not render the
plea of guilty involuntary); North Carolina v. Alford, 400 U.S. 25, 31 (1970) (“That he would
not have pleaded except for the opportunity to limit the possible penalty does not necessarily
demonstrate that the plea of guilty was not the product of a free and rational choice, especially
where the defendant was represented by competent counsel whose advice was that the plea
would be to the defendant’s advantage.”).
Petitioner does not establish that his plea was
Clerk’s Record II at 23.
In that regard, a voluntary plea of guilty to the indictment pursuant to a plea bargain waives Petitioner’s
claims that the enhancement in his indictment was not valid for enhancement purposes. See Randle v.
Scott, 43 F.3d 221, 226 (5th Cir. 1995) (“[A]n objection to the use of a ‘prior invalid conviction for
enhancement purposes’ is waived when a plea of guilty is entered to the enhancement charged.” (quoting
Scott v. Maggio, 695 F.2d 916, 922 (5th Cir.), cert. denied, 463 U.S. 1210 (1983)); see also Long v.
McCotter, 792 F.2d 1338, 1340 (5th Cir. 1986)). For this additional reason, Petitioner fails to establish
his entitlement to relief.
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Under Strickland, there is a strong presumption that “trial counsel rendered adequate
assistance and that the challenged conduct was the product of reasoned trial strategy.” Wilkerson
v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992)(citing Strickland), cert. denied, 509 U.S. 921
(1993). The TCCA reasoned that counsel’s actions were based on a strategic decision to benefit
her client and, concomitantly, her performance was not ineffective and did not prejudice
Petitioner. Petitioner does not show that the outcome of the plea process would have been
different, inuring to his benefit, had his defense counsel challenged the enhancements.
Therefore, the state court’s finding that counsel was not ineffective was not an unreasonable
application of Strickland and was not based on an unreasonable determination of the facts in the
record as a whole. Accordingly, this claim does not provide a basis for federal habeas relief.
Petitioner’s remaining claims allege that (1) the indictment was defective; and (2) his
“resentencing” violated double jeopardy. Both claims are without merit for the reasons that do
not warrant extended discussion.
Regarding Petitioner’s claim about alleged defects in the indictment, issues related to
state court indictments are not cognizable in federal habeas corpus proceedings unless the
indictment was so fatally defective that the trial court lacked jurisdiction. See McKay v. Collins,
12 F.3d 66, 68 (5th Cir. 1994); see also Yohey v. Collins, 985 F.2d 222, 229 (5th Cir. 1993);
Morlett v. Lynaugh, 851 F.2d 1521, 1523 (5th Cir. 1988), cert. denied, 489 U.S. 1086 (1989);
Uresti v. Lynaugh, 821 F.2d 1099, 1102 (5th Cir. 1987). If the highest state court has considered
a petitioner’s defective indictment claim and denied relief, federal courts cannot sit in judgment
on that same issue in a federal habeas proceeding. Yohey, 985 F.2d at 228; Alexander v.
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McCotter, 775 F.2d 595, 598-599 (5th Cir. 1985); Liner v. Phelps, 731 F.2d 1201, 1203 (5th Cir.
1984). Because Petitioner raised the same claim related to the indictment with the Texas Court
of Criminal Appeals in an amendment to his state application for writ of habeas corpus,63 and
because the Texas Court of Criminal Appeals implicitly rejected the claims on the merits, his
claim is not cognizable in this § 2254 proceeding. See McKay, 12 F.3d at 68, 70; see also Wood
v. Quarterman, 503 F.3d 408, 412 (5th Cir. 2007).
Likewise, Petitioner’s claim that his punishment violates double jeopardy, either through
enhancements in his indictment or through a possible remand for re-sentencing with other prior
convictions, fails as a matter of law. See Monge, 524 U.S. at 734 (holding that “the Double
Jeopardy Clause does not preclude retrial on a prior conviction allegation in the noncapital
sentencing context”). Accordingly, none of Petitioner’s claims provides any basis for federal
habeas relief, and his petition must therefore be dismissed.
CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing Section 2254 Cases requires a district court to issue or
deny a certificate of appealability when entering a final order that is adverse to the petitioner.
See 28 U.S.C. § 2253. A certificate of appealability will not issue unless the petitioner makes “a
substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which
requires a petitioner to demonstrate “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Tennard v. Dretke, 542 U.S. 274,
282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under the controlling
standard, this requires a petitioner to show “that reasonable jurists could debate whether (or, for
See SHCR II at 50-53.
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that matter, agree that) the petition should have been resolved in a different manner or that the
issues presented were ‘adequate to deserve encouragement to proceed further.’” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). Where denial of relief is based on procedural grounds, the
petitioner must show not only that “jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right,” but also that they “would find it
debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
A district court may deny a certificate of appealability, sua sponte, without requiring
further briefing or argument. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). For
reasons set forth above, this court concludes that jurists of reason would not debate whether any
procedural ruling in this case was correct or whether the petitioner states a valid claim for relief.
Therefore, a certificate of appealability will not issue.
SPECIAL NOTE OF THANKS
The Court expresses sincere appreciation to Mr. Philip G. Gallagher of the Federal Public
Defender’s Office for his dedicated and zealous efforts to preserve the rights of his client.
CONCLUSION AND ORDER
Based on the foregoing, the court ORDERS as follows:
The habeas corpus petition is DISMISSED with prejudice on the merits.
A certificate of appealability is DENIED.
All other pending motions, if any, are DENIED.
The Clerk shall provide a copy of this order to the parties.
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SIGNED at Houston, Texas, this 30th day of May, 2017.
UNITED STATES DISTRICT JUDGE
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