Splawn v. Davis

Filing 16

MEMORANDUM OPINION AND ORDER granting 12 MOTION for Summary Judgment with Brief in Support. This lawsuit is DISMISSED WITH PREJUDICE. Any and all pending motions are DENIED AS MOOT. A certificate of appealability is DENIED. (Signed by Judge Keith P Ellison) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PLATO AUGUST SPLAWN, JR.,

Petitioner,

October 04, 2017
David J. Bradley, Clerk

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§

§
§

§

v.
LORIE DAVIS,

Respondent.

CIVIL ACTION NO. H-17-1041

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§

MEMORANDUM OPINION AND ORDER
Petitioner, a state inmate proceeding pro se, filed this section 2254 habeas petition
challenging his conviction and life sentence for attempted capital murder of multiple persons.
Respondent filed a motion for summary judgment on July 5, 2017 (Docket Entry No. 12),
serving petitioner a copy at his address of record that same date. Despite expiration of a
reasonable period of 90 days, petitioner has failed to file a response to the motion for
summary judgment, and the motion is deemed uncontested.
Having reviewed the motion, the record, the pleadings, and the applicable law, the
Court GRANTS the motion for summary judgment and DISMISSES this case for the
reasons that follow.

I. BACKGROUND AND CLAIMS
Petitioner pleaded guilty to attempted capital murder of multiple persons in Walker
County, Texas, and was sentenced to life incarceration on January 30, 2014. The conviction

was affirmed on appeal, Splawn v. State, No. 10-14-00054-CR, 2015 WL 4710251 (Tex.
App.-Waco July 30, 2015, no pet.), and petitioner did not seek discretionary review.
Petitioner's application for state habeas relief was denied by the Texas Court of Criminal
Appeals on January 25,2017. Ex parte Splawn, No. WR-85,237-01 (Tex. Crim. App. 2017).
Petitioner raises the following grounds for federal habeas relief:
1.

He was denied due process when the trial court failed to establish that
his guilty plea was voluntary;

2.

The trial court violated his rights under Article I, §§ 10, 13, and 19 of
the Texas Constitution;

3.

He received ineffective assistance of trial counsel; and

4.

He received ineffective assistance of appellate counsel.

Respondent argues that these claims are without merit and should be dismissed.

II. FACTUAL BACKGROUND
A detailed recitation of the facts underlying petitioner's criminal offense is
unnecessary for disposition of this proceeding. The intermediate state court of appeals
succinctly stated the relevant facts as follows:
[Petitioner] was indicted for the offense of attempted capital murder of
multiple persons. The offense stems from an incident where [petitioner] shot
his estranged wife, Sandra, and killed his longtime friend and employee,
Edwin Garcia, after [petitioner] learned that Sandra and Edwin were having
an affair.

Splawn, 2015 WL 4 71 0251,

* 1.

Petitioner pleaded guilty to the offense as charged in the

indictment, and a jury assessed punishment at life imprisonment.
2

III. THE APPLICABLE LEGAL STANDARDS
A.

Habeas Review

This petition is governed by the applicable provisions of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). 28 U .S.C. § 2254. Under the AEDPA,
federal habeas relief cannot be granted on legal issues adjudicated on the merits in state court
unless the state adjudication was contrary to clearly established federal law as determined by
the Supreme Court, or involved an unreasonable application of clearly established federal law
as determined by the Supreme Court. Harrington v. Richter, 562 U.S. 86, 98-99 (2011);

Williams v. Taylor, 529 U.S. 362,404-05 (2000); 28 U.S.C. §§ 2254(d)(l), (2). A state court
decision is contrary to federal precedent if it applies a rule that contradicts the governing law
set forth by the Supreme Court, or if it confronts a set of facts that are materially
indistinguishable from such a decision and arrives at a result different from the Supreme
Court's precedent. Early v. Packer, 537 U.S. 3, 7-8 (2002).
A state court unreasonably applies Supreme Court precedent if it unreasonably applies
the correct legal rule to the facts of a particular case, or 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.

Williams, 529 U.S. at 409. In deciding whether a state court's application was unreasonable,
this Court considers whether the application was objectively unreasonable. !d. at 411. "It
bears repeating that even a strong case for relief does not mean the state court's contrary

3

conclusion was unreasonable." Richter, 562 U.S. at 102. As stated by the Supreme Court
in Richter,
If this standard is difficult to meet, that is because it was meant to be. As
amended by AEDP A, § 2254( d) stops short of imposing a complete bar on
federal court relitigation of claims already rejected in state proceedings. It
preserves authority to issue the writ in cases where there is no possibility
fairmindedjurists could disagree that the state court's decision conflicts with
this Court's precedents. It goes no farther. 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.

!d., at 102-03 (emphasis added; internal citations omitted).
The AEDPA affords deference to a state court's resolution of factual issues. Under
28 U.S.C. § 2254(d)(2), a decision adjudicated on the merits in a state court and based on a
factual determination will not be overturned on factual grounds unless it is objectively
unreasonable in light of the evidence presented in the state court proceeding. Miller-El v.

Cockrell, 537 U.S. 322, 343 (2003). A federal habeas court must presume the underlying
factual determination of the state court to be correct, unless the petitioner rebuts the
presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(l); see

also Miller-El, 537 U.S. at 330-31.
B.

Summary Judgment

In deciding a motion for summary judgment, the district court must determine whether
the pleadings, discovery materials, and the summary judgment evidence show that there is
no genuine issue as to any material fact and that the moving party is entitled to judgment as
4

a matter of law. FED. R. C!V. P. 56( c). Once the movant presents a properly supported
motion for summary judgment, the burden shifts to the nonmovant to show with significant
probative evidence the existence of a genuine issue of material fact. Hamilton v. Segue

Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000).
While summary judgment rules apply with equal force in a section 2254 proceeding,
the rules only apply to the extent that they do not conflict with the federal rules governing
habeas proceedings. Therefore, section 2254( e)( 1), which mandates that a state court's
findings are to be presumed correct, overrides the summary judgment rule that all disputed
facts must be construed in the light most favorable to the nonmovant. Accordingly, unless
a petitioner can rebut the presumption of correctness of a state court's factual findings by
clear and convincing evidence, the state court's findings must be accepted as correct by the
federal habeas court. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), overruled on

other grounds by Tennard v. Dretke, 542 U.S. 274 (2004).
IV. INVOLUNTARY GUILTY PLEA
Petitioner contends that the trial court failed to establish that his guilty plea was
voluntary. Specifically, petitioner argues that his plea was involuntary because (a) it was
coerced, and (b) he was mentally incompetent and "on psych medications."
The validity of a guilty plea is a question of law and will be upheld on habeas review
if entered into knowingly, voluntarily, and intelligently. Montoya v. Johnson, 226 F .3d 399,
404 (5th Cir. 2000). When determining whether a plea is voluntary, the court considers all
5

relevant circumstances, including whether the defendant: ( 1) had notice of the charges
against him; (2) understood the constitutional protections he was waiving; and (3) had access
to competent counsel. !d. Declarations ofvoluntariness made under oath in open court carry
a strong presumption of truth, forming a "formidable barrier in any subsequent collateral
proceedings." Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
Where there are no improper threats, misrepresentations, unfulfilled promises, or
promises of an improper nature, the critical issue in determining whether a plea is voluntary
is "whether the defendant understood the nature and substance of the charges against him,
and not necessarily whether he understood their technical legal effect." James v. Cain, 56
F.3d 662, 666 (5th Cir. 1995).

Further, a guilty plea is "knowing" if the defendant

understood the consequences of his plea, and so long as he understood the length of time he
might possibly receive, he was fully aware of the consequences of his plea. Spinelli v.

Collins, 992 F.2d 559, 561 (5th Cir. 1993 ); see also Ables v. Scott, 73 F .3d 591, 592 n.2 (5th
Cir. 1996) ("The consequences of a guilty plea, with respect to sentencing, mean only that
the defendant must know the maximum prison term and fine for the offense charged.").
In rejecting petitioner's claim that his plea was unknowing and involuntary, the state
trial court on collateral review made the following relevant findings of fact:
1.

On February 21, 2012, applicant was indicted in this cause for the first
degree felony offense of attempted capital murder. Applicant was also
indicted in Cause number 25,788 with the first degree felony offense of
murder.

6

2.

On January 21, 2014, a jury panel was called. Prior to selection and out
of the presence of the panel the court was advised that applicant wished
to accept the plea bargain made by the State of Texas. The plea
agreement was for applicant to enter a plea of guilty to the indictment
charging applicant with attempted capital murder without a punishment
recommendation and for the jury to assess punishment. In exchange,
the State would dismiss the murder indictment but the circumstances
surrounding the murder alleged in cause number 25,788 would be
considered by the jury in punishment. Applicant acknowledged to the
court that that was his understanding.

3.

A jury and alternate were selected and applicant entered his plea of
guilty to the first degree felony of attempted capital murder. The
punishment hearing was held and afterwards the jury returned a
sentence of life in the Texas Department of Criminal
Justice-Institutional Division. [Applicant] filed a notice of appeal, trial
counsel was allowed to withdraw and an attorney was appointed for
applicant to prosecute the appeal. The Tenth Court of Appeals affirmed
the conviction.

4.

[Trial counsel] was appointed to represent applicant and at the request
of [applicant's] counsel, [co-counsel] was appointed as co-counsel.
Each of the appointed attorneys had extensive experience in trying
criminal cases. Each had served as an elected District Attorney and had
extensive experience as criminal defense attorneys. [Trial counsel] was
certified in criminal law.

5.

Upon entering his plea of guilty, the court admonished applicant and
inquired whether applicant understood what he was doing and whether
he was competent. Applicant replied that he understood what he was
doing and that he was competent.

6.

Counsel for applicant was asked whether he believed that applicant was
competent to enter his plea and counsel replied in the affirmative.

7.

Two psychologists, Dr. [S] and Dr. [B] were appointed at the request
of applicant's attorney to assess applicant's competency and any other
mental health issues that might be pertinent.

7

8.

Each attorney was of the opinion that it was "obvious" to each of them
that applicant was competent, that he had a clear understanding of the
charge against him, the process, the roles of his attorney, the judge, the
jury and was able to rationally discuss the events related to the incident.

9.

Neither Dr. [S] nor Dr. [B] felt that there was any evidence to conclude
that applicant was incompetent to stand trial or that he was insane at the
time of the offense.

10.

Neither attorney was aware of any evidence that would have justified
a competency hearing.

11.

The plea offer was 50 years or an open plea to attempted capital murder
and dismissal of the murder charge.

12.

Because of applicant's health issues, applicant believed he would die
in prison and wanted to either be set free or placed on probation.

13.

There were two eyewitnesses to the incident, [applicant's] wife (who
he shot) and the wife of the deceased (who [he also] shot).
Additionally, applicant made a videotaped statement admitting to
shooting both his wife and the deceased.

14.

Counsel advised applicant that the chances of any acquittal were slim;
that if convicted of murder he would not be eligible for probation but
a jury could consider probation if [he were] convicted of attempted
capital murder. Applicant was further advised that the granting of
probation was unlikely. Applicant was also advised of the possibility
of deferred adjudication from the judge which they further advised was
unlikely.

15.

Applicant chose an open plea to attempted capital murder.

16.

Counsel was of the opinion that applicant made that choice because it
was his best chance at probation even though unlikely.

* * * *

8

19.

Applicant was appropriately advised of the options available to [him]
and the consequences that might follow.

20.

Applicant entered his plea of guilty knowingly and voluntarily.

21.

Applicant was competent to enter his plea.

22.

Applicant received the effective assistance of counsel.

Ex parte Splawn, pp. 35-39.

The state trial court also made the following relevant

conclusions of law:

3.

A plea must be entered knowingly and voluntarily.

4.

A defendant must be competent to enter his plea.

5.

A finding that the defendant was duly admonished creates a prima facie
showing that a guilty plea was entered knowingly and voluntarily.

6.

After a prima facie showing, applicant had the burden to demonstrate
that he did not fully understand the consequences of his pleas such that
he suffered harm.

7.

Applicant's plea was entered knowingly and voluntarily.

Ex parte Splawn, p. 39. The Texas Court of Criminal Appeals expressly relied on these
findings of fact and conclusions of law in denying habeas relief. !d., at cover.
Petitioner's bare allegations that he was mentally ill and under the influence of
psychiatric medications at the time of the plea are unsupported in the record. The state court
record clearly shows that petitioner was examined by mental health experts prior to the plea
hearing, and that the experts found petitioner competent to stand trial. Although there was
testimony at the punishment hearing that petitioner had been prescribed anti-depressants

9

and/or anti-anxiety medications prior to, or around the time of, the criminal offense, the
expert witnesses did not testifY that the medications rendered him unable to make decisions
or that they incapacitated his judgment in any manner.
Nor is petitioner's allegation of being promised probation supported in the record.
The state trial court found that counsel advised petitioner that his chance of receiving
probation was "unlikely." The state trial court further found that petitioner chose an open
plea to attempted capital murder as it was his "best chance at probation even though
unlikely." Consequently, the state trial court rejected petitioner's claim that counsel had
promised him probation if he pleaded guilty.
The state court determined that petitioner's guilty plea was entered knowingly and
voluntarily. Petitioner fails to show that the state court's determination was contrary to, or
involved an unreasonable application of, federal law or was an unreasonable determination
of the facts based on the evidence in the record. Respondent is entitled to summary judgment
dismissal of this claim.

V. STATE CONSTITUTIONAL VIOLATIONS
Petitioner argues that, in addition to unlawfully accepting his guilty plea, the trial
court violated Article I,§§ 10, 13, and 19 of the Texas Constitution. These federal habeas
claims are grounded in violation of state law and fail to state a cognizable federal habeas
claim.

A person seeking federal habeas relief must assert the violation of a federal

constitutional right. Lowery v. Collins, 988 F.2d 1364, 1367 (5th Cir. 1993). Federal habeas
10

relief will not issue to correct errors of state constitutional, statutory, or procedural law,
unless a federal issue is also present. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); West

v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996). Because petitioner's claim in this habeas
ground asserts violations of state constitutional protections, no federal ground for relief is
presented, and habeas relief is unwarranted.
To the extent petitioner claims that the state trial court failed to hold a live evidentiary
hearing or comply with certain state habeas provisions, infirmities in state habeas
proceedings do not constitute grounds for relief in federal court. See Beazley v. Johnson, 242
F.3d 248, 271 (5th Cir. 2001).

VI. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the right to the effective assistance of counsel. U.S. CON ST. amend. VI. A federal
habeas corpus petitioner's claim that he was denied effective assistance of counsel is
measured by the standards set out in Strickland v. Washington, 466 U.S. 668 (1984). To
assert a successful ineffectiveness claim, a petitioner must establish both constitutionally
deficient performance by counsel and actual prejudice as a result of counsel's deficient
performance. Jd. at 687. The failure to demonstrate either deficient performance or actual
prejudice is fatal to an ineffective assistance claim. Green v. Johnson, 160 F .3d 1029, 1035
(5th Cir. 1998).

11

A counsel's performance is deficient if it falls below an objective standard of
reasonableness. Strickland, 466 U.S. at 688. In determining whether counsel's performance
was deficient, judicial scrutiny must be highly deferential, with a strong presumption in favor
of finding that trial counsel rendered adequate assistance and that the challenged conduct was
the product of a reasoned trial strategy. West v. Johnson, 92 F.3d 13 85, 1400 (5th Cir. 1996).
To overcome this presumption, a petitioner must identify the acts or omissions of counsel
that are alleged not to have been the result of reasonable professional judgment. Wilkerson

v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992). However, a mere error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment. Strickland, 466 U.S. at 691.
Actual prejudice from a deficiency is shown ifthere is a reasonable probability that,
but for counsel's unprofessional error, the result of the proceeding would have been different.

!d. at 694. To determine prejudice, the question focuses on whether counsel's deficient
performance renders the result of the trial unreliable or the proceeding fundamentally unfair.

Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). In that regard, unreliability or unfairness
does not result if the ineffectiveness does not deprive the petitioner of any substantive or
procedural right to which he is entitled. !d.
Petitioner argues that trial counsel were ineffective in the following particulars.

12

A.

Coerced Plea

Petitioner contends that trial counsel was ineffective in coercing him into pleading
guilty by promising he would receive probation. In responding to this claim on state
collateral review, trial counsel presented the following testimony by affidavit:
[Petitioner] was not coerced in any way to plead guilty to any offense. The
plea bargain offer was for 50 years. The State also offered to let him plead
open to attempted capital murder in exchange for the dismissal of the murder
charge.
A major consideration in the decision by [petitioner] was his health. Due to
his many health problems he did not expect to survive even a short prison
sentence. He wanted to either win the case and remain free or to get probation.
There were two witnesses to the murder, his wife and the wife of the deceased.
Further, [petitioner] gave a videotaped statement admitting the shooting of the
deceased and his wife who survived. I told [him] that the chances of an
acquittal were slim. I told [him] that if he was convicted of murder he would
not be eligible for probation but that the jury could consider probation if he
was convicted of attempted capital murder.
I told [petitioner] that the trial judge could consider deferred adjudication ifhe
pled guilty to the Court but that I thought it was unlikely for the trial judge to
do so. I told [petitioner] that if he accepted the State's offer to plead open to
the attempted capital murder charge, it was unlikely that the jury would
recommend probation and that it would probably be difficult to pick a jury that
could even consider probation. It appeared to me that [petitioner] chose to
plead guilty to the attempted capital murder charge because it gave him the
best chance to get probation but that he knew that was a very unlikely result.

Ex parte Splawn, pp. 7-8.
In rejecting petitioner's claim, the state trial court made the following relevant
findings of fact:

13

4.

[Trial counsel] was appointed to represent applicant and at the request
of [applicant's] counsel, [co-counsel] was appointed as co-counsel.
Each of the appointed attorneys had extensive experience in trying
criminal cases. Each had served as an elected District Attorney and had
extensive experience as criminal defense attorneys. [Trial counsel] was
certified in criminal law.

5.

Upon entering his plea of guilty, the court admonished applicant and
inquired whether applicant understood what he was doing and whether
he was competent. Applicant replied that he understood what he was
doing and that he was competent.

*

*

*

*

11.

The plea offer was 50 years or an open plea to attempted capital murder
and dismissal of the murder charge.

12.

Because of applicant's health issues, applicant believed he would die
in prison and wanted to either be set free or placed on probation.

13.

There were two eyewitnesses to the incident, [applicant's]'s wife (who
he shot) and the wife of the deceased (who [he also] shot).
Additionally, applicant made a videotaped statement admitting to
shooting both his wife and the deceased.

14.

Counsel advised applicant that the chances of any acquittal were slim;
that if convicted of murder he would not be eligible for probation but
a jury could consider probation if convicted of attempted capital
murder. Applicant was further advised that the granting of probation
was unlikely. Applicant was also advised of the possibility of deferred
adjudication from the judge which they further advised was unlikely.

15.

Applicant chose an open plea to attempted capital murder.

16.

Counsel was of the opinion that applicant made that choice because it
was his best chance at probation even though unlikely.

*

*

*

14

*

20.

Applicant entered his plea of guilty knowingly and voluntarily.

21.

Applicant was competent to enter his plea.

22.

Applicant received the effective assistance of counsel.

Ex parte Splawn, pp. 36-39.

The state trial court also made the following relevant

conclusions of law:
7.

Applicant's plea was entered knowingly and voluntarily.

8.

Trial counsel's performance did not fall below the prevailing
professional norms.

!d., p. 39.
The state court record further shows that, during the plea hearing, petitioner himself
stated in open court and on the record that he was entering his plea freely and voluntarily and
that no one was forcing him to plead guilty. R. R. 2, 168. It is well established that
"[s]olemn declarations in open court carry a strong presumption of verity. The subsequent
presentation of conclusory allegations unsupported by specifics is subject to summary
dismissal[.]" Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Petitioner here presents nothing more than his bald disagreement with the state court's
findings, conclusions, and decisions. This is insufficient to meet his burden of proof under
AEDP A or to preclude the granting of summary judgment against him. In particular,
petitioner provides no competent evidentiary support for his conclusory assertion that trial
counsel "promised" he would receive probation ifhe pleaded guilty.

15

The state court rejected petitioner's claims of ineffective assistance and found that
trial counsel was not ineffective. Petitioner fails to show that the state court's determination
was contrary to, or involved an unreasonable application of, Strickland or was an
unreasonable determination of the facts based on the evidence in the record. Respondent is
entitled to summary judgment dismissal of this claim.
B.

Involuntary Plea

Petitioner claims that counsel should not have allowed him to plead guilty because
counsel knew that he was mentally ill and taking "psych medications that was said to impair
his judgment." (Docket Entry No. 1-1, p. 10.)
In responding to this claim on state collateral review, trial counsel testified by
affidavit as follows:
I engaged the services of two psychologists, Dr. [S] and Dr. [B], to evaluate
the mental health of Plato Splawn. It was obvious to me that he was
competent-he always indicated a clear understanding of the charges against
him, the process, the roles of his lawyer, the judge, and the jury. He discussed
rationally the events related to the shooting. But there did appear to be some
mental health issues. He expressed great concern of issues related to his
divorce situation and to the current activities of his wife. He was very upset
that his wife had become pregnant from a new relationship while the charges
were pending.
Neither [Dr. B nor Dr. S] felt that there was evidence to conclude that
[petitioner] was incompetent to stand trial or that he was insane at the time of
the offense.

!d., p. 8.

16

In rejecting petitioner's claim, the state trial court made the following relevant
findings of fact:
7.

Two psychologists, Dr. [S] and Dr. [B] were appointed at the request
of applicant's attorney to assess applicant's competency and any other
mental health issues that might be pertinent.

8.

Each attorney was of the opinion that it was "obvious" to each of them
that applicant was competent, that he had a clear understanding of the
charge against him, the process, the roles of his attorney, the judge, the
jury and was able to rationally discuss the events related to the incident.

9.

Neither Dr. [S] nor Dr. [B] felt that there was any evidence to conclude
that applicant was incompetent to stand trial or that he was insane at the
time of the offense.

* * * *
20.

Applicant entered his plea of guilty knowingly and voluntarily.

21.

Applicant was competent to enter his plea.

22.

Applicant received the effective assistance of counsel.

Ex parte Splawn, p. 37-39. The state trial court also made the following relevant conclusions
of law:
7.

Applicant's plea was entered knowingly and voluntarily.

8.

Trial counsel's performance did not fall below the prevailing
professional norms.

!d., p. 39. The Texas Court of Criminal Appeals expressly relied on these findings of fact
and conclusions of law in denying habeas relief. !d., at cover.

17

Petitioner's bare assertions that he was mentally ill and under the influence of
psychiatric medications at the time of the plea are unsupported in the record. The state court
record clearly shows that petitioner was examined by mental health experts prior to the plea
hearing, and that the experts found petitioner competent to stand trial. Although there was
testimony at the punishment hearing that petitioner had been prescribed anti-depressants
and/or anti-anxiety medications prior to, or around the time of, the criminal offense, the
expert witnesses did not testify that the medications rendered him unable to make decisions
or that they incapacitated his judgment in any manner.
The state court rejected petitioner's claims of ineffective assistance and found that
trial counsel was not ineffective. Petitioner fails to show that the state court's determination
was contrary to, or involved an unreasonable application of, Strickland or was an
unreasonable determination of the facts based on the evidence in the record. Respondent is
entitled to summary judgment dismissal of this claim.
C.

Right to Appeal

Petitioner next states that counsel failed to inform him that a guilty plea would waive
his right to appeal the sentence and conviction.
In responding to this claim, trial counsel submitted an at1idavit to the state trial court,
wherein he testified that, "Prior to the entry of the plea, I advised [petitioner] orally and in
writing of his limited right of appeal due to his guilty plea." Ex parte Splawn, p. 3. In
support, trial counsel attached a copy of the Trial Court's Certification ofDefendant's Right
18

of Appeal, as executed by petitioner, showing that petitioner was advised that he had no right
to appeal the guilty plea, but that he retained the right to appeal the sentence. !d., p. 15. In
a second affidavit, trial counsel testified that, "Upon further reflection, it is my recollection
that prior to the entry of his plea of guilty, I advised [petitioner] orally of his limited right of
appeal. It is my recollection that the written certification of appeal was signed by him after
sentencing." !d., p. 24.
In rejecting petitioner's claim, the state trial court made the following relevant
findings of fact:
18.

Prior to entering his open plea of guilty counsel for applicant orally
advised applicant of his limited right of appeal.

19.

Applicant was appropriately advised of the options available to [him]
and the consequences that might follow.

20.

Applicant entered his plea of guilty knowingly and voluntarily.

21.

Applicant was competent to enter his plea.

22.

Applicant received the effective assistance of counsel.

!d., pp. 38-39. The state trial court also made the following relevant conclusions of law:
7.

Applicant's plea was entered knowingly and voluntarily.

8.

Trial counsel's performance did not fall below the prevailing
professional norms.

!d., p. 39. The Texas Court of Criminal Appeals expressly relied on these findings of fact
and conclusions of law in denying habeas relief. !d., at cover.

19

Petitioner's disagreement with counsel's affidavit testimony and the trial court's
findings and conclusions is insufficient to preclude the granting of summary judgment or to
warrant habeas relief. Petitioner presents no competent evidence in support of his claim.
The state court rejected petitioner's claims of ineffective assistance and found that
trial counsel was not ineffective. Petitioner fails to show that the state court's determination
was contrary to, or involved an unreasonable application of, Strickland or was an
unreasonable determination of the facts based on the evidence in the record. Respondent is
entitled to summary judgment dismissal of this claim.
D.

Indictment

Petitioner asserts that counsel was ineffective in failing to challenge the indictment.
According to petitioner, the indictment was "duplioious" because it charged petitioner with
murder and violated the plea agreement. 1
By pleading guilty, petitioner waived all ineffective assistance claims except for
claims that counsel's performance led to an involuntary and unknowing guilty plea. See

United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000). The instant claim raised by
petitioner concerns counsel's actions before entry of the plea, and does not set forth conduct
that led to an involuntary and unknowing plea. Consequently, petitioner's claim was waived
by his guilty plea.

1

The Court believes petitioner intended to argue that the indictment was "duplicative" or
"duplicitous."

20

The state court rejected petitioner's claims of ineffective assistance and found that
trial counsel was not ineffective. Petitioner fails to show that the state court's determination
was contrary to, or involved an unreasonable application of, Strickland or was an
unreasonable determination of the facts based on the evidence in the record. Respondent is
entitled to summary judgment dismissal of this claim.
E.

Breach of Plea Agreement

Petitioner further contends that, because the indictment charged him with murder, the
State violated the plea agreement by including the murder charge in petitioner's jury charge
at punishment. Petitioner complains that counsel was ineffective in failing to raise this
violation at the punishment hearing.
The state trial court made the following relevant findings of fact on collateral review:
1.

On February 21, 2012, applicant was indicted in this cause for the first
degree felony offense of attempted capital murder. Applicant was also
indicted in Cause number 25,788 with the first degree felony offense of
murder.

2.

On January 21, 2014, a jury panel was called. Prior to selection and out
of the presence of the panel the court was advised that applicant wished
to accept the plea bargain made by the State of Texas. The plea
agreement was for applicant to enter a plea of guilty to the indictment
charging applicant with attempted capital murder without a punishment
recommendation and for the jury to assess punishment. In exchange,
the State would dismiss the murder indictment but the circumstances
surrounding the murder alleged in cause number 25,788 would be
considered by the jury in punishment. Applicant acknowledged to the
court that that was his understanding.

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3.

A jury and alternate were selected and applicant entered his plea of
guilty to the first degree felony of attempted capital murder. The
punishment hearing was held and afterwards the jury returned a
sentence of life in the Texas Department of Criminal
Justice-Institutional Division. [Applicant] filed a notice of appeal, trial
counsel was allowed to withdraw and an attorney was appointed for
applicant to prosecute the appeal. The Tenth Court of Appeals affirmed
the conviction.

* * * *
22.

Applicant received the effective assistance of counsel.

Ex parte Splawn, pp. 35-36, 39 (emphasis added). The state trial court further concluded
that, "Trial counsel's performance did not fall below the prevailing professional norms." !d.,
p. 39. The Texas Court of Criminal Appeals relied on the trial court's findings of fact and
conclusions of law in denying habeas relief. !d., at cover.
Petitioner pleaded guilty to the allegations set forth in his indictment, as follows:
[O]n or about the 6th day of December, 2011, and anterior to the presentment
of this indictment, in the County and State aforesaid PLATO AUGUST
SPLAWN, JR. did then and there, with specific intent to commit the offense
of capital murder of Sandra Splawn, do an act, to-wit: cause the death of
Edwin Garcia and then shoot Sandra Splawn with a firearm, which amounted
to more than mere preparation that tended but failed to effect the commission
ofthe offense intended[.]
(Docket Entry No. 11-3, p. 5, original capitalizations.)
The subsequent jury charge at punishment read, in relevant part, as follows:
After finding the defendant, PLATO AUGUST SPLAWN, JR., guilty of the
offense of ATTEMPTED CAPITAL MURDER you must determine the
sentence to be imposed on the defendant.

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The Defendant has entered a plea of guilty. He has persisted in entering his
plea of guilty, notwithstanding that the court, as required by law, has
admonished him of the consequences. It plainly appearing to the court that the
defendant is mentally competent, and that he makes this plea freely and
voluntarily, his plea is received by the court. You are instructed to find the
defendant guilty as charged in the indictment and assess his punishment as
herein instructed.
(Docket Entry No. 11-3, pp. 46, original capitalizations.)
During deliberations, the jury sent out the following question to the trial court:
Are we deciding sentence based on the murder of Edwin and the attempted
murder of Sandra. Or based on the attempted murder of Sandra[.]

Id., p. 57.
The trial court responded with the following answer to the jurors:
You have been instructed to find the defendant guilty as charged in the
indictment - attempted capital murder to-wit: causing the death of Edwin
Garcia and then shooting Sandra Splawn with a firearm, which amounted to
more than mere preparation that tended but failed to effect the commission of
the offense intended - capital murder.

Id., p. 58.
The jury returned the following verdict:
We, the jury, having found the defendant, PLATO AUGUST SPLAWN, JR.,
guilty of the offense of ATTEMPTED CAPITAL MURDER, assess his
punishment at[] confinement by the Texas Department of Criminal Justice for
a term of Life [] and no fine.

Id., p. 55 (original capitalizations).
No breach of the plea agreement is shown. Petitioner pleaded guilty to the indictment,
and the jury charge, as well as the trial court's answer to the jury's written question, tracked

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the indictment. The jury was not charged with finding petitioner guilty of an independent
criminal charge for first degree felony murder ofEdwin Garcia. Petitioner fails to show that,
had counsel raised the objection set forth by petitioner, the objection would have been
granted. Moreover, petitioner fails to show that, but for counsel's failure to object, there is
a reasonable probability that the result of the punishment trial would have been different.
Petitioner establishes neither deficient performance nor actual prejudice under Strickland.
The state court rejected petitioner's claims of ineffective assistance and found that
trial counsel was not ineffective. Petitioner fails to show that the state court's determination
was contrary to, or involved an unreasonable application of, Strickland or was an
unreasonable determination of the facts based on the evidence in the record. Respondent is
entitled to summary judgment dismissal ofthis claim.
F.

Competency Hearing

Petitioner argues that counsel was ineffective in failing to request a competency
hearing. He claims that he was mentally ill and under psychiatric medications at the time of
the plea hearing, resulting in his inability to enter a knowing and voluntary plea of guilty.
Petitioner contends that, had counsel requested a competency hearing, it would have been
granted and he would have been found incompetent.
In responding to this claim on state collateral review, trial counsel submitted an
affidavit wherein he testified, in relevant part, as follows:

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I engaged the services of two psychologists, Dr. [S] and Dr. [B], to evaluate
the mental health of Plato Splawn. It was obvious to me that he was
competent-he always indicated a clear understanding of the charges against
him, the process, the roles of his lawyer, the judge, and the jury. He discussed
rationally the events related to the shooting. But there did appear to be some
mental health issues. He expressed great concern of issues related to his
divorce situation and to the current activities of his wife. He was very upset
that his wife had become pregnant from a new relationship while the charges
were pending.
Neither [Dr. B nor Dr. S] felt that there was evidence to conclude that
[petitioner] was incompetent to stand trial or that he was insane at the time of·
the offense.
In conclusion, I was not aware of any evidence that would have justified a
competency hearing.

!d., p. 8.
In rejecting petitioner's claim, the state trial court made the following relevant
findings of fact:
7.

Two psychologists, Dr. [S] and Dr. [B] were appointed at the request
of applicant's attorney to assess applicant's competency and any other
mental health issues that might be pertinent.

8.

Each attorney was of the opinion that it was "obvious" to each of them
that applicant was competent, that he had a clear understanding of the
charge against him, the process, the roles of his attorney, the judge, the
jury and was able to rationally discuss the events related to the incident.

9.

Neither Dr. [S] nor Dr. [B] felt that there was any evidence to conclude
that applicant was incompetent to stand trial or that he was insane at the
time of the offense.

10.

Neither attorney was aware of any evidence that would have justified
a competency hearing.

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* * * *
20.

Applicant entered his plea of guilty knowingly and voluntarily.

21.

Applicant was competent to enter his plea.

22.

Applicant received the effective assistance of counsel.

Ex parte Splawn, p. 37-39. The state trial court also made the following relevant conclusions
of law:
7.

Applicant's plea was entered knowingly and voluntarily.

8.

Trial counsel's performance did not fall below the prevailing
professional norms.

!d., p. 39. The Texas Court of Criminal Appeals expressly relied on these findings of fact
and conclusions of law in denying habeas relief. !d., at cover.
Neither petitioner nor the record reveals any probative evidence in support of
petitioner's contention that he was mentally ill, under the influence of psychiatric drugs,
incompetent at the time of the hearing, or that he would have been found incompetent at a
competency hearing.

His conclusory assertions of incompetency are unsupported and

insufficient to meet his burden of proof under AEDP A or to preclude the granting of
summary judgment against him.
The state court rejected petitioner's claims of ineffective assistance and found that
trial counsel was not ineffective. Petitioner fails to show that the state court's determination
was contrary to, or involved an unreasonable application of, Strickland or was an
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unreasonable determination of the facts based on the evidence in the record. Respondent is
entitled to summary judgment dismissal of this claim.

VII. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Persons convicted of a crime are entitled to effective assistance of counsel on direct
appeal. Evitts v. Lucey, 469 U.S. 387 (1985). This Court reviews counsel's appellate
performance under the Strickland standards. See Goodwin v. Johnson, 132 F.3d 162, 170
(5th Cir. 1998). Petitioner must allege and present facts showing that his appellate counsel's
representation was deficient and that the deficient performance caused him prejudice. That
is, petitioner must show that, but for appellate counsel's deficient performance, the outcome
of the appeal would have been different. See Strickland, 466 U.S. at 687-88, 692; Jones v.

Jones, 163 F.3d 285,300 (5th Cir. 1998). Effective assistance of appellate counsel does not
mean that counsel will raise every available non-frivolous ground for appeal. Evitts, 469
U.S. at 394. Nor will counsel be deficient for failing to press a frivolous point. Rather, it
means, as it does at trial, that counsel performs in a reasonably effective manner. Evitts, 469
U.S. at 394. A reasonable attorney has an obligation to research relevant facts and law and
make informed decisions as to whether avenues will, or will not, prove fruitful. Strickland,
466 U.S. at 690-91.
Petitioner claims that appellate counsel was ineffective in failing to raise on appeal
the issues raised in this federal habeas petition. Because the Court has denied relief on all
of petitioner's federal habeas claims, petitioner cannot show that appellate counsel was
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ineffective in raising the claims.

Nor does petitioner establish that, but for appellate

counsel's failure to raise the issues, there is a reasonable probability that petitioner would
have prevailed on appeal. Petitioner fails to meet his burden of proof under Strickland, and
habeas relief is unwarranted on this ground.

VIII. CONCLUSION
Respondent's motion for summary judgment (Docket Entry No. 12) is GRANTED
and this lawsuit is DISMISSED WITH PREJUDICE. Any and all pending motions are

DENIED AS MOOT. A certificate of appealability is DENIED.
Signed at Houston, Texas, on this the

~rfay of October, 2017.

KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE

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