Jackson v. Hirsch
Filing
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MEMORANDUM AND OPINION granting 9 MOTION for Summary Judgment with Brief in Support. Petition for a writ of habeas corpus is denied. A certificate of appealability will not issue. (Signed by Judge Lee H Rosenthal) Parties notified.(sclement, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
STEVEN ANTHONY JACKSON,
Petitioner,
VS.
WARREN HIRSCH, et ai.,
Respondents.
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CIVIL ACTION NO. H-13-2887
MEMORANDUM AND OPINION
Texas state prisoner Steven Anthony Jackson has moved for habeas relief under 28 U.S.C.
§2254, challenging his felony conviction for possessing a weapon. The respondent, William
Stephens, Director of the Texas Department of Criminal Justice -
Correctional Institutions
Division, has moved for summary judgment dismissing Jackson's claims on the ground that they
lack merit as a matter oflaw. (Docket Entry No.9). Stephens has submitted a copy of the state court
record relating to his conviction, sentence, and subsequent challenges. Based on the pleadings, the
motion for summary judgment, the record, and the applicable law, this court concludes that there is
no basis to grant Jackson the relief he seeks. Stephens's motion for summary judgment is granted
and final judgment dismissing this case with prejudice is separately entered. The reasons are set out
below.
I.
Background
A.
Procedural Background
Jackson was indicted in the 230th Judicial District Court of Harris County, Texas, in Cause
Number 1311026. The indictment charged Jackson with unlawfully possessing a firearm. The
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indictment also included two enhancement paragraphs, one alleging a prior conviction for delivery
of a controlled substance, and one alleging a prior conviction for aggravated assault with a deadly
weapon.
Jackson pleaded guilty and entered a plea agreement under which the State dismissed two
other charges pending against him, with no recommendation on punishment. At his rearraignment
hearing, the court delivered admonishments and warnings, which Jackson stated, under oath, that
he understood. Jackson and defense counsel signed written waivers and stipulations and entered his
guilty plea, (SHCR at 80, 72-77).1 The court accepted the guilty plea as voluntarily and knowingly
entered. Jackson pleaded true to the enhancement paragraphs. After a presentence investigation
("PSI"), on April 10, 2012, the trial court sentenced Jackson to a 30-year prison term. (SHCR at 80,
82.)
In July 2012, Jackson filed an application for a writ of habeas corpus in the Texas state court
challenging his conviction. The Texas Court of Criminal Appeals denied Jackson's application
without a hearing or written order, on the findings of the trial court, on July 31, 2013. Jackson filed
this federal habeas petition on September 25,2013, the date it was placed in the prison mail. See
Rule 3(d) of the Rules Governing Habeas Corpus Actions.
B.
Jackson's Claims
Jackson asserts the following claims for relief:
1.
he was denied effective assistance of counsel because his trial
counsel "fail [ed] to advi[ s]e him during plea bargain process that he
was not eligible for court ordered probation" and should not have
"SHCR" refers to the Clerk's Record of pleadings and documents filed with the court during
Jackson's state habeas corpus proceedings.
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been offered probation papers to sign in the belie[f] probation would
be granted"; and
2.
he was denied effective assistance because trial counsel
labored under a conflict of interest in advising Jackson to plead
guilty.
Both claims are examined against the applicable legal standards.
II.
The Legal Standards
A.
Section 2254
Sections 2254(d)(1) and (2) of the Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA) set out the standards of review for questions offact, questions oflaw, and mixed questions
of fact and law that result in an "adjudication on the merits," a court disposition on substantive,
rather than procedural grounds. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). The AEDPA
provides as follows, in pertinent part:
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the c1aim(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.
(e)
(1) In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a
State court, a determination of a factual issue made by a State court
shall be presumed to be correct. The applicant shall have the burden
of rebutting the presumption of correctness by clear and convincing
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evidence.
Under § 2254(d)(l), a state-court's decision on questions oflaw and mixed questions oflaw
and fact is entitled to deference unless it "was contrary to, or involved an unreasonable application
of clearly established Federal law, as determined by the Supreme Court of the United States." Hill
v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). A state-court decision is "contrary to" Supreme Court
precedent if: (1) the state court's conclusion is "opposite to that reached by [the Supreme Court] on
a question of law;" or (2) the "state court confronts facts that are materially indistinguishable from
a relevant Supreme Court precedent" and arrives at an opposite result. Williams v. Taylor, 120 S.
Ct. 1495 (2000). A state court unreasonably applies Supreme Court precedent if: (1) it unreasonably
applies the correct legal rule to the facts of a particular case; or (2) it "unreasonably extends a legal
principle from [Supreme Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply." Id. at 1495.
The question is whether a state court's application ofthe law was objectively unreasonable. Id. at
1495; Penry v. Johnson, 215 F.3d 504, 508 (5th Cir. 2000). A state court's factual finding is
"presumed to be correct ... and [receives] deference ... unless it 'was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.'" Hill,
210 F.3d at 485 (quoting 28 U.S.C. § 2254(d)(2)).
While, "[ a]s a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to
summary judgment, applies with equal force in the context of habeas corpus cases," Clark v.
Johnson, 202 F.3d 760, 764 (5th Cir.), cert. denied, 531 U.S. 831 (2000), the rule applies only to
the extent that it does not conflict with the habeas rules. Section 2254(e)(l)'s mandate that a state
court's factual findings are "presumed to be correct" overrides the ordinary rule that, in a summary
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judgment proceeding, all disputed facts must be construed in the light most favorable to the
nonmoving party. Unless the habeas petitioner can "rebut[] the presumption of correctness by clear
and convincing evidence," the state court's findings of fact must be accepted as correct. Smith v.
Cockrell, 311 F.3d 661, 668 (5th Cir. 2002).
Jackson is a pro se petitioner. A pro se habeas petition is construed liberally and is not held
to the same stringent and rigorous standards as pleadings filed by lawyers. See Martin v. Maxey, 98
F.3d 844, 847 n.4 (5th Cir. 1996); Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th Cir. 1988); Woodall
v. Foti, 648 F.2d 268, 271 (5th Cir. Unit A June 1981). This court broadly interprets Jackson's state
and federal habeas petitions. Bledsue v. Johnson, 188 F.3d 250, 255 (5th Cir. 1999).
B.
Ineffective Assistance of Counsel
When a defendant seeks relief under § 2254 by claiming that his guilty plea was not
knowingly and voluntarily entered because he did not receive effective assistance of counsel, the
issue is whether counsel's performance interfered with the defendant's ability to understand the
nature of the charges against him and the consequences of his plea. Once a guilty plea has been
entered, nonjurisdictional defects in the proceedings are waived, including all claims of ineffective
assistance of counsel except insofar as the alleged ineffectiveness relates to the voluntariness of the
guilty plea. Smith v. Estelle, 711 F.2d 677,682 (5th Cir.), cert. denied sub nom. Smith v. McKaskle,
466 U.S. 906 (1984).
A federal court upholds a guilty plea challenged in a habeas corpus proceeding if the plea was
knowing, voluntary and intelligent. Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir.), cert.
denied, 474 U.S. 838 (1985). A guilty plea is invalid if the defendant does not understand the nature
of the constitutional protection that he is waiving or if he has such an incomplete understanding of
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the charges against him that his plea cannot stand as an admission of guilt. Henderson v. Morgan,
426 U.S. 637, 645 n.13 (1976). The critical issue in determining whether a plea was voluntary and
intelligent is "whether the defendant understood the nature and substance of the charges against him,
and not necessarily whether he understood their technical legal effect." Taylor v. Whitley, 933 F.2d
325,329 (5th Cir. 1991), cert. denied, 503 U.S. 988 (1992). If the record shows that the defendant
"understood the charge and its consequences," the court will uphold a guilty plea as voluntary even
if the trial judge failed to explain the offense. Davis v. Butler, 825 F.2d 892, 893 (5th Cir. 1987).
In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court held that the test for ineffective
assistance of counsel set out in Strickland v. Washington, 466 U.S. 668 (1984), applies to guilty
pleas. To establish an ineffective assistance of counsel claim, a habeas petitioner must show that his
counsel's performance was deficient and that actual prejudice resulted. Strickland v. Washington,
466 U.S. 668, 68 (1984).
Counsel's performance is measured by an objective standard of
reasonableness, Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir. 1999), and the scrutiny is "highly
deferential." Strickland, 466 U.S. at 689. "[C]ounsel is strongly presumed to have rendered
adequate assistance and to have made all significant decisions in the exercise of reasonable
professional judgment." Id. at 690. "[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable." Id. at 690-91; see also United
States v. Jones, 287 F.3d 325,331 (5th Cir.) ("Informed strategic decisions of counsel are given a
heavy measure of deference and should not be second guessed."), cert. denied, 537 U.S. 1018
(2002); Lockett v. Anderson, 230 F.3d 695, 714 (5th Cir. 2000) (Strickland requires deference to
counsel's "informed strategic choices"). "So long as counsel made an adequate investigation, any
strategic decisions made as a result of that investigation fall within the wide range of objectively
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reasonable professional assistance." Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002) (internal
quotation marks and citation omitted).
"A conscious and informed decision on trial tactics and strategy cannot be the basis for
constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire
trial with obvious unfairness." Jones, 287 F.3d at 331. To overcome the deference given to
informed strategic decisions, a petitioner must show that his counsel "blundered through trial,
attempted to put on an unsupported defense, abandoned a trial tactic, failed to pursue a reasonable
alternative course, or surrendered his client." Jd.; see also Moore v. Johnson, 194 F.3d 586,615 (5th
Cir. 1999) ("Strickland does not require deference to those decisions of counsel that, viewed in light
of the facts known at the time of the purported decision, do not serve any conceivable strategic
purpose.").
III.
The Record
The record shows that Jackson signed a form entitled "Admonishments" on February 13,
2012. By signing and initialing this form, Jackson indicated that he understood the punishment
range he faced as a habitual offender - "imprisonment in the institutional division of the Texas
Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25
years." (SHCR at 73.) In addition to the "Admonishments" document, Jackson signed a form
entitled "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession." By
this signature, Jackson acknowledged his rights, his waivers ofthose rights, the voluntariness of his
plea, and his confession. (SHCR at 71-72,75-77.) These documents, executed in open court and
under oath, are entitled to a presumption of regularity under 28 U.S.C. § 2254(e) and to great
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evidentiary weight. Jackson has not met his burden of rebutting these presumptions. 28 U.S.C.
§2254(e)(1).
Jackson contends that his plea was involuntary. The state habeas court reviewed the record,
including trial counsel's affidavit, and found as follows:
· .. the affidavit of Humberto R. Trejo [defense counsel] is
credible and the facts asserted therein [are] true.
· .. based on the clerk's records [Jackson] was initially
charged with three felony offenses [aggravated assault, possession of
a controlled substance, and felon in possession of a firearm].
· . . the State alleged two enhancement paragraphs in
[J ackson]' s aggravated assault charge in cause number 1314617.
Therefore, [Jackson] was facing possibly up to a twenty-five year
minimum sentence and a maximum of ninety-nine years or life in
prison.
. . the State alleged two enhancement paragraphs in
[Jackson]'s possession of a controlled substance charge in cause
number 13311025. Therefore, [Jackson]'s range of punishment could
have been no less than two years and no more than twenty years.
The Court finds based on the clerk's record that [Jackson]'s
second degree felony offense of aggravated assault in cause number
1314617 was dismissed because of [Jackson]'s plea in the primary
case.
The Court finds based on the clerk's record that [Jackson]'s
state jail felony offense of possession of a controlled substance was
dismissed because of [Jackson]'s plea in the primary case.
The Court finds based on the credible affidavit of [trial
counsel] that [trial counsel] conducted a reasonable investigation into
[Jackson]'s defense. Specifically, the Court finds that [trial counsel]
hired an investigator on or about December 2011, who attempted to
contact witnesses that [Jackson] provided.
The Court finds based on the credible affidavit of [trial
counsel] that [Jackson] admitted to the police during their
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investigation and to [trial counsel] during a conversation that
[J ackson] had handled the firearm. Therefore, having the firearm
tested for fingerprints would not have been beneficial to [Jackson]'s
defense.
The Court finds based on the credible affidavit of [trial
counsel] that [trial counsel] did not promise [Jackson] that he would
receive a community supervision sentence if he pled guilty.
The Court finds based on the credible affidavit of [trial
counsel] that [trial counsel] did not coerce or threaten [Jackson] that
[J ackson] would receive a sentence of fifty years if he chose to go to
trial.
The Court finds based on the credible affidavit of [trial
counsel] that [trial counsel] discussed [Jackson]'s options with
respect to his case. Specifically, the Court finds that [trial counsel]
informed [Jackson] of his right to a jury trial and how a trial would
proceed and what evidence possibly would be admitted or presented.
The Court finds based on the credible affidavit of [trial
counsel] and the clerk's record that the State's case against [Jackson]
was strong.
The Court finds based on the credible affidavit of [trial
counsel] and the clerk's records that [Jackson] has not proven that but
for counsel's alleged deficient conduct that he would have insisted on
going to trial as opposed to pleading guilty without an agreed
recommendation.
SHCR at 55-58 (Findings of Fact).
The state habeas court further concluded that:
[Jackson] fails to show that counsel's conduct fell below an
objective standard of reasonableness and that, but for trial counsel's
alleged deficient conduct, there is a reasonable probability that the
result of the proceeding would have been different.
The totality of the representation afforded [Jackson] was
sufficient to protect his right to reasonably effective assistance of
counsel in the primary case.
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[Jackson] fails to show that his guilty plea was unlawfully
induced, made invol untaril y, or made without an understanding of the
nature of the charge against him and the consequences of his plea.
(SHCR at 58.)
The Texas Court of Criminal Appeal denied Jackson's state habeas application by adopting
the state habeas court's findings, including the finding that, "based on the credible affidavit of [trial
counsel] and the clerk's record that [Jackson]'s plea was voluntary." (SHCR at 58.) The state
habeas court also concluded that Jackson had " ... fail [ed] to overcome the presumption that his
guilty plea was knowingly and voluntarily made [citation omitted]," and " ... fail[ed] to overcome
the presumption of regularity concerning a guilty plea. [citation omitted]." (SHCR at 4 (Conclusions
of Law Nos. 4, 5)). The record shows that Jackson has failed to overcome the state court's factual
determinations or to demonstrate that the state court's decision was contrary to or involved the
unreasonable application of federal law. 28 U.S.C. §§ 2254(e), (d).
In the second ground asserted in his federal habeas motion, Jackson asserts a "conflict of
interest" and describes his trial counsel's allegedly erroneous advice to waive a jury trial and
statement that Jackson was eligible for a probated sentence. Jackson's assertion that his trial counsel
had a conflict of interest that made his representation ineffective does not present a basis for relief
on this record and under the applicable law. A defendant's claim that his counsel had a conflict of
interest can arise when counsel represents multiple defendants, in which case the defendant must
show that an actual conflict of interest adversely affected his lawyer's performance, and when other
types of conflicts impinge on counsel's loyalty to his client, in which case the defendant must
demonstrate prejudice. See Beets v. Scott, 65 F.3d 1258,1265 (5th Cir. 1995). An "actual conflict"
requires evidence showing that counsel was "compelled to compromise his or her duty of loyalty or
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zealous advocacy." Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000). An "adverse effect"
requires evidence "that some plausible alternative defense strategy or tactic could have been pursued,
but was not because ofthe actual conflict." Id.
Jackson does not allege or present facts showing that his trial counsel represented another
client with competing or divergent interests. Nor does Jackson allege or present facts that could
show an actual conflict of interest that compelled his trial counsel to compromise his duty of loyalty
or zealous advocacy, or that his counsel failed to pursue any specific course of action or trial strategy
that could have been pursued due to a conflict. Jackson has not shown a conflict of interest that
made the representation he received ineffective. He has not shown any basis to reject the state-court
determination that his trial counsel provided constitutionally sufficient representation and that the
challenged aspects of counsel's performance did not affect the outcome.
Jackson fails to
demonstrate that, but for counsel's alleged errors, "he would not have pleaded guilty and would have
insisted on going to trial." The record shows that had Jackson proceeded to trial, he would have
faced three felony offenses, with the possibility of receiving one sentence of two to twenty years in
prison and two sentences of between a 25-year minimum and a maximum of 99 years to life.
Accordingly, this court grants Stephens's motion for summary judgment and denies
Jackson's motion for relief under § 2254.
IV.
Conclusion
Stephens's motion for summary judgment, (Docket Entry No.9), is granted. Jackson's
petition for a writ of habeas corpus is denied. This case is dismissed, with prejudice. Any remaining
pending motions are denied as moot.
To obtain a certificate of appealability, Jackson must make "a substantial showing of the
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denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Miller-El, 123 S. Ct. at 1039; Slack v.
McDaniel, 529 U.S. 473, 483 (2000). To make such a showing, he must demonstrate that
"reasonable jurists could debate w hether (or, for 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, 123 S. Ct. at 1039 (quoting Slack, 529 U.S. at 484). Jackson has not
made the necessary showing. Accordingly, a certificate of appealability will not issue.
SIGNED on July 28, 2014, at Houston, Texas.
Lee H. Rosenthal
United States District Judge
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