Baley v. Thaler
REPORT AND RECOMMENDATION: that Petitioner's 3 Application for Writ of Habeas Corpus be denied. Signed by Judge Andrew W. Austin. (kkc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
KEVIN CHARLES BALEY,
RICK THALER, Director,
Texas Dept. of
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The Honorable Sam Sparks, United States District Judge
The Magistrate Judge submits this Report and Recommendation to the District Court
pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
Before the Court are Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.
§ 2254 (Document 3); Respondent’s Answer (Document 10); and Petitioner’s reply (Document 12).
Petitioner, proceeding pro se, has paid the applicable filing fee. For the reasons set forth below, the
undersigned finds that Petitioner’s application for writ of habeas corpus should be denied.
STATEMENT OF THE CASE
Petitioner’s Criminal History
According to Respondent, the Director has lawful and valid custody of Petitioner pursuant
to a judgment and sentence of the 277th Judicial District Court of Williamson County, in cause
no. 10-598-K277. Petitioner was charged by indictment with three counts of promotion of child
pornography and thirty-seven counts of possession of child pornography. On January 25, 2011,
Petitioner pleaded guilty to two counts of promotion of child pornography and true to an
enhancement paragraph, pursuant to a plea agreement.
Thereafter, the trial court accepted
Petitioner’s plea and sentenced him to two consecutive terms of life imprisonment pursuant to the
plea agreement. The other thirty-eight counts were dismissed. As part of his plea agreement,
Petitioner waived his right to appeal.
Petitioner challenged his convictions in a state application for habeas corpus relief. On
May 2, 2012, the Texas Court of Criminal Appeals denied the application without written order on
the findings of the trial court without a hearing. Ex parte Baley, Appl. No. 63,150-02.
Petitioner’s Grounds for Relief
Petitioner contends trial counsel was ineffective for allowing him to plead guilty and waive
his right to appeal pursuant to a plea agreement that violates the Double Jeopardy Clause.
Exhaustion of State Court Remedies
Respondent does not contest that Petitioner has exhausted his state court remedies regarding
the claims brought in this application. A review of the state court records submitted by Respondent
shows that Petitioner has properly raised these claims in previous state court proceedings.
DISCUSSION AND ANALYSIS
The Antiterrorism and Effective Death Penalty Act of 1996
The Supreme Court recently had the opportunity to summarize the basic principles that have
grown out of the Court’s many cases interpreting the 1996 Antiterrorism and Effective Death Penalty
Act. See Harrington v. Richter, – U.S. –, 131 S. Ct. 770, 783-85 (2011). The Court noted that the
starting point for any federal court in reviewing a state conviction is 28 U.S.C. § 2254, which states
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
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
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). The Court noted that “[b]y its terms § 2254(d) bars relitigation of any claim
‘adjudicated on the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”
Harrington, 131 S. Ct. at 784.
One of the issues Harrington resolved was “whether § 2254(d) applies when a state court’s
order is unaccompanied by an opinion explaining the reasons relief has been denied.” Id. Following
all of the Courts of Appeals’ decisions on this question, Harrington concluded that the deference due
a state court decision under § 2554(d) “does not require that there be an opinion from the state court
explaining the state court’s reasoning.” Id. (citations omitted). The Court noted that it had
previously concluded that “a state court need not cite nor even be aware of our cases under
§ 2254(d).” Id. (citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)). When there is no
explanation with a state court decision, the habeas petitioner’s burden is to show there was “no
reasonable basis for the state court to deny relief.” Id. And even when a state court fails to state
which of the elements in a multi-part claim it found insufficient, deference is still due to that
decision, because “§ 2254(d) applies when a ‘claim,’ not a component of one, has been adjudicated.”
As Harrington noted, § 2254(d) permits the granting of federal habeas relief in only three
circumstances: (1) when the earlier state court’s decision “was contrary to” federal law then clearly
established in the holdings of the Supreme Court; (2) when the earlier decision “involved an
unreasonable application of” such law; or (3) when the decision “was based on an unreasonable
determination of the facts” in light of the record before the state court. Id. at 785 (citing 28 U.S.C.
§ 2254(d); Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523 (2000)). The “contrary to”
requirement “refers to the holdings, as opposed to the dicta, of . . . [the Supreme Court’s] decisions
as of the time of the relevant state-court decision.” Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir.
2000) (quotation and citation omitted).
Under the “contrary to” clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by . . . [the Supreme Court] on
a question of law or if the state court decides a case differently than . . . [the Supreme
Court] has on a set of materially indistinguishable facts.
Id. at 740-41 (quotation and citation omitted). Under the “unreasonable application” clause of
§ 2254(d)(1), a federal court may grant the writ “if the state court identifies the correct governing
legal principle from . . . [the Supreme Court’s] decisions but unreasonably applies that principle to
the facts of the prisoner’s case.” Id. at 741 (quotation and citation omitted). The provisions of
§ 2254(d)(2), which allow the granting of federal habeas relief when the state court made an
“unreasonable determination of the facts,” are limited by the terms of the next section of the statute,
§ 2254(e). That section states that a federal court must presume state court fact determinations to
be correct, though a petitioner can rebut that presumption by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1). But absent such a showing, the federal court must give deference to the state
court’s fact findings. Id.
Petitioner contends counsel rendered ineffective assistance of counsel because he failed to
inform him that the State’s plea offer would result in sentences that Petitioner alleges violate the
Double Jeopardy Clause and, instead, improperly advised Petitioner to plead guilty under the
To be valid, a guilty plea must be voluntary, knowing and intelligent. United States v.
Washington, 480 F.3d 309, 315 (5th Cir. 2007). The test for determining a guilty plea’s validity is
“whether the plea represents a voluntary and intelligent choice among the alternative courses of
action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160 (1970). A
court assessing the validity of a plea must look to “all of the relevant circumstances surrounding it
and consider such factors as whether there is evidence of factual guilt.” Matthew v. Johnson, 201
F.3d 353, 364-65 (5th Cir. 2000). The defendant must also have notice of the charges against him,
understand the constitutional protections that he has waived, and have advice from competent
counsel. Washington, 480 F.3d at 315 (citation omitted). Furthermore, the defendant must be
competent, and the plea must “not be the product of ‘actual or threatened physical harm, or . . .
mental coercion overbearing the will of the defendant’ or of state-induced emotions so intense that
the defendant was rendered unable to weigh rationally his options with the help of counsel.”
Matthew, 201 F.3d at 365 (quoting Brady v. United States, 397 U.S. 742, 750, 90 S. Ct. 1463
(1962)). The trial court must inform the defendant of the consequences of his plea, but “the
defendant need only understand the direct consequences of the plea; he need not be made aware of
every consequence that, absent a plea of guilty, would not otherwise occur.” United States v.
Hernandez, 234 F.3d 252, 255 (5th Cir. 2000) (per curiam).
A guilty plea “and the ensuing conviction encompasses all of the factual and legal elements
necessary to sustain a binding, final judgment of guilt and a lawful sentence.” United States v.
Broce, 488 U.S. 563, 569, 109 S. Ct. 757 (1989). A plea of guilty amounts to more than a mere
confession; it is instead “an admission that [the defendant] committed the crime charged against
him.” Id. at 570. A voluntary guilty plea waives all non-jurisdictional defects in the proceedings
except claims of ineffective assistance of counsel relating to the voluntariness of the plea. United
States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir.
When a criminal defendant has solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea. He may only attack the voluntary and intelligent
character of the guilty plea by showing that the advice he received from counsel was
not within the standards set forth in McMann v. Richardson, 397 U.S. 759, 770-71,
90 S. Ct. 1441 (1970).
Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602 (1973); see also United States v. Cothran,
302 F.3d 279, 285-86 (5th Cir. 2002) (holding “[a] plea of guilty admits all the elements of a formal
criminal charge and waives all non-jurisdictional defects in the proceedings leading to conviction”).
A guilty plea is “open to attack on the ground that counsel did not provide the defendant with
‘reasonably competent advice.’” Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708 (1980)
(quoting McMann v. Richardson, 397 U.S. 759, 770-71, 90 S. Ct. 1441 (1970)). “Counsel is needed
so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of
going to jail or prison, and so that he is treated fairly by the prosecution.” Argersinger v. Hamlin,
407 U.S. 25, 34, 92 S. Ct. 2006 (1972). Counsel’s advice to a defendant to accept a proposed plea
agreement, in light of the facts and circumstances of the case, is normally considered to be a strategic
choice that rests within counsel’s professional judgment. See Black v. Collins, 962 F.2d 394, 401
(5th Cir. 1992). To establish a claim that trial counsel’s defective assistance rendered a plea
involuntary, the petitioner must show that counsel’s representation fell below an objective standard
of reasonableness and a reasonable probability exists that, “but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59,
106 S. Ct. 366 (1985).
There is no evidence in this case that Petitioner did not have a clear understanding of the
proceedings against him, the nature of the offense for which he was charged, or the consequences
of entering his plea. Petitioner was admonished with regard to the range of punishment, signed the
waiver of rights and agreements in connection with plea of guilty, stipulated to the evidence in the
case, and signed the agreed punishment recommendation. Ex parte Baley, Appl. No. 63,150-02 at
70-73. There is simply no evidence that Petitioner’s plea was not voluntary, knowing and intelligent.
The state court in reviewing Petitioner’s state application for habeas corpus relief specifically
On January 25, 2011, Applicant pleaded guilty to two counts of possession
of child pornography with the intent to promote and was sentenced to two life
sentences pursuant to a plea agreement. Under the terms of the plea
agreement, Applicant agreed that his sentences would run consecutively and
the State agreed to dismiss the remaining thirty-eight counts of possession of
child pornography with the intent to promote and possession of child
In the “Waivers, Consent, Judicial Confession and Plea Agreement,” signed
by Applicant, Applicant judicially confessed to the offenses for which he was
convicted and acknowledged that he was pleading true to the enhancement
In the “Waivers, Consent, Judicial Confession and Plea Agreement,”
Applicant agreed that he would serve two consecutive life sentences and that
the State would abandon the remaining thirty-eight charges against him.
In the “Waivers, Consent, Judicial Confession and Plea Agreement,”
Applicant voluntarily waived his right to a jury trial and voluntarily waived
his right to appeal.
In the “Waivers, Consent, Judicial Confession and Plea Agreement,”
Applicant acknowledged that he was aware of the consequences of his plea
and that this attorney had advised him of his rights.
At Applicant’s plea and sentencing hearing, held January 25, 2011, Applicant
stated to the Court that he could read and write the English language, was a
citizen of the United States, and had no history of mental problems.
Applicant’s attorney informed the Court that he had met with Applicant on
more than one occasion and that Applicant was competent to stand trial.
The Court asked Applicant if he understood that he was charged with three
counts of promotion of child pornography and thirty-seven counts of
possession of child pornography. Applicant replied that he understood the
charges against him.
The Court informed Applicant that the State was proceeding on only two
counts of promotion of child pornography and asked how Applicant pleaded
to those charges. Applicant responded that he was pleading guilty to both
counts of promotion of child pornography.
The Court informed Applicant that the State was seeking to enhance his
punishment with a prior felony conviction and asked how Applicant pleaded
to the enhancement. Applicant responded that the was pleading “true” to the
The Court asked Applicant whether he understood that based on his guilty
plea and his plea of “true” to the enhancement, that the punishment range he
faced for each count was that for a first degree felony, which included a
sentence of up to life in prison. Applicant responded that he understood.
The Court asked Applicant whether he was pleading guilty to both counts of
promotion of child pornography and pleading true to the enhancement
allegation on both counts because he was guilty and for no other reason.
Applicant responded that he was.
Applicant acknowledged that no one had promised him early release from his
sentence, had threatened him, or had forced him into pleading guilty and true.
Specifically, Applicant maintained that he was not pleading guilty and true
because he was afraid or because his attorney was forcing him to do so.
Applicant agreed that he was entering his guilty plea and plea of true
The Court asked Applicant whether he had read the “Admonitions to the
Defendant” and “Waivers, Consent, Judicial Confession and Plea
Agreement” he signed. Applicant stated that he did, that he had gone over
the documents with his attorney, and that he understood them all.
The Court asked Applicant whether he gave up his right to a jury trial and
Applicant replied that he did.
When the Court asked Applicant, “You understand we’re set for trial next
week?” Applicant stated, “Yes, sir. I felt that I’ve wasted the Court’s time,
and I needed to get this over and done with.” The Court related, “Your
decision to plead guilty as long as it’s voluntary is fine with the Court, but
your decision to plead not guilty is fine with the Court too, if that’s what you
chose, and that’s what I do; I provide jury trials for people who want jury
trials. So it’s not a waste of my time to have a jury trial.” Applicant replied,
“I plead guilty.”
The Court asked Applicant’s attorney whether he had reviewed the
“Admonitions to the Defendant” and “Waivers, Consent, Judicial Confession
and Plea Agreement” with Applicant and counsel responded he did. Trial
Counsel indicated that Applicant understood the documents and that
Applicant was entering his guilty plea voluntarily.
The Court found Applicant competent to stand trial, that he was not
influenced by fear or persuasion to enter his guilty plea, and accepted
Applicant’s pleas of guilty and true.
Applicant then judicially confessed in open Court to possessing with intent
to promote two images of child pornography on or about April 19, 2010 in
Williamson County, Texas. Specifically, Applicant agreed that he was
chatting online with an undercover police officer, who Applicant believed to
be a thirteen year-old boy, and that he sent the officer e-mails which
contained the images of child pornography alleged in Counts One and Two
of the indictment.
Applicant acknowledged that on June 5, 1995, he was convicted of indecency
with a child in Cause No. 94-829-K368 in the 368th Judicial District Court
of Williamson County, Texas.
Applicant acknowledged that his attorney had done extensive discovery and
had been provided a copy of Applicant’s statement to police in which
Applicant confessed to possessing child pornography. Applicant also agreed
that his attorney hired an expert who conducted a forensic examination of
Applicant stated that he understood that if he went to trial on all of the counts
alleged in the indictment, that the Court could stack all of his sentences.
When asked if he had any complaints about his attorney’s representation,
Applicant stated that he did not. When asked if he felt his attorney had done
a fair job for him, Applicant stated that he did.
Applicant’s attorney then asked Applicant whether he had visited Applicant
at the jail as often as Applicant had liked and whether he had answered all of
Applicant’s questions. Applicant responded that he had.
Applicant’s attorney asked whether there was anything he had not done that
Applicant had requested of him. Applicant replied, “You’ve done everything
Applicant then acknowledged that he understood that his sentences were
being stacked and that his sentence in Count Two would not begin to run
until his sentence in Count One had ceased to operate.
The Court found that the evidence supported Applicant’s pleas, found
Applicant guilty of two counts of promotion of child pornography, found the
enhancement allegation true and sentenced Applicant to two life sentences,
ordered to be run consecutively pursuant to the plea agreement.
The Court stated that it had received a written waiver of appeal and asked
Applicant if he wished to waive his right to appeal. Applicant responded that
Ex parte Baley Appl. No. 63,150-02 at 51-54.
The trial court concluded:
Where a defendant voluntarily waives his right to concurrent sentences and
agrees to consecutive sentences based on more than one offense committed
during the same criminal episode, double jeopardy concerns are not
implicated. Ex parte McJunkins, 954 S.W.2d 39, 41 (Tex. Crim. App. 1997),
citing United States v. Broce, 488 U.S. 563 (1989).
Applicant’s plea in which he agreed to consecutive sentences for two counts
of child pornography in exchange for thirty-eight remaining charges being
dismissed, was knowingly, and voluntarily entered and therefore, does not
implicate double jeopardy. Ex parte McJunkins, 954 S.W.2d 39, 41 (Tex.
Crim. App. 1997), citing United States v. Broce, 488 U.S. 563 (1989).
Id. at 54-55.
Moreover, Petitioner has failed to establish his counsel performed deficiently or that he was
prejudiced thereby under the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052 (1984). Under Texas law, each item of child pornography constitutes an “allowable
unit of prosecution” with respect to charging the crimes of possession or promotion of child
pornography. Vineyard v. State, 958 S.W.2d 834, 838 (Tex. Crim. App. 1998). Petitioner’s offenses
are based on his promotion of two different items of child pornography even though Petitioner
indicates they were transmitted in one e-mail to the undercover officer posing as a minor. Petitioner
fails to provide any legal authority on point that supports his contention that his convictions based
on two different items of child pornography are barred by the Double Jeopardy Clause because they
were sent in one e-mail transmission. As such, counsel was not deficient for failing to provide
inaccurate advice to Petitioner. Petitioner also could not have been prejudiced by that failure.
In reviewing his state application for habeas corpus relief the trial court concluded:
Applicant is not entitled to habeas corpus relief with regards to his ineffective
assistance of counsel claims because he has not shown counsel’s performance
was deficient or that counsel’s advice was outside the range of competence
demanded of attorneys in criminal cases. Ex parte Morrow, 952 S.W.2d 530,
536 (Tex. Crim. App. 1997); Strickland v. Washington, 466 U.S. 668 (1984).
Further, Applicant does not allege, let alone prove, that but for counsel’s
allegedly deficient performance, he would not have plead guilty. Kober v.
State, 988 S.W. 2d 230, 232 (Tex. Crim. App. 1999); Strickland v.
Washington, 466 U.S. 668 (1984).
Furthermore, Applicant received a beneficial plea agreement in that his
punishment exposure was limited to two consecutive life sentences rather
than three consecutive life sentences and thirty-seven consecutive twenty-year
sentences. Counsel’s advice to accept the State’s offer and waive his right to
appeal was well-reasoned advice. See Strickland v. Washington, 466 U.S.
Id. at 55.
Having independently reviewed the entire state court record, this Court finds nothing
unreasonable in the state court’s application of clearly established federal law or in the state court’s
determination of facts in light of the evidence. Accordingly, the Court is of the opinion that 28
U.S.C. § 2254, as amended by the AEDPA, bars habeas corpus relief.
It is therefore recommended that Petitioner’s application for writ of habeas corpus be denied.
CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.
§ 2253(c) (1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, effective
December 1, 2009, the district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.
A certificate of appealability may issue only if a petitioner has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
the requirement associated with a “substantial showing of the denial of a constitutional right” in
Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 (2000). In cases where a district court
rejected a petitioner’s constitutional claims on the merits, “the petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Id. “When a district court denies a habeas petition on procedural grounds without
reaching the petitioner’s underlying constitutional claim, a COA should issue when the petitioner
shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id.
In this case, reasonable jurists could not debate the dismissal or denial of the Petitioner’s
section 2254 petition on substantive or procedural grounds, nor find that the issues presented are
adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct.
1029 (2003) (citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the
Court shall not issue a certificate of appealability.
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the district court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153, 106 S. Ct.
466, 472-74 (1985); Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
SIGNED this 26th day of March, 2013.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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