Ford v. Stephens

Filing 20

ORDERED that the Report and Recommendation of the United States Magistrate Judge # 16 is ACCEPTED; FURTHER ORDERED that Petitioner David Joseph Ford's Petition for Writ of Habeas Corpus # 1 is DENIED; FiNALLY ORDERED that a certificate of appealability is DENIED. Signed by Judge Sam Sparks. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

2015

FEB -3 PM

12:

18

DAVID JOSEPH FORD,

Petitioner,
Case No. A-14-CA-207-SS

-vs-

WILLIAM STEPHENS,
Respondent.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and

specifically Petitioner David Joseph Ford's Petition for Writ of Habeas Corpus [#1], the Report and

Recommendation (R&R) of the United States Magistrate Judge [#16], and Petitioner Ford's

Objections [#19]. Having reviewed the documents, the relevant law, and the file as a whole, the
Court now enters the following opinion and orders ACCEPTING the R&R and DENYING Ford's

petition for writ of habeas corpus.
All matters in this case were referred to United States Magistrate Judge Andrew W. Austin
for report and recommendation 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 Magistrate Judges. Ford is entitled to de novo review

of the portions of the Magistrate Judge's report to which he filed specific objections. 28 U.S.C.
§

636(b)(1). All other review is for plain error. Douglass v.

United Servs. Auto. Ass

'ii,

79 F.3d

1415, 1428-29 (5th Cir. 1996) (en banc). Nevertheless, this Court has reviewed the entire file de

novo, and agrees with the Magistrate Judge's recommendation.

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Background
A.

Ford's Criminal History
According to Respondent, the Director has lawful and valid custody of Ford pursuant to a

judgment and sentence of the 21st Judicial District Court of Washington County, Texas, in cause
number 16701. Ford, after waiving his right to indictment, was charged by information and affidavit

with the offense of aggravated robbery committed on or about August 6, 2013. The information
alleged:
I, Derek Estep, Assistant District Attorney

of Washington County, Texas, County,

on the written affidavit of Brian Taylor, a competent and credible person herewith
filed in the 21st Judicial District Court ofWashington County, Texas, do present unto
said Court that before the making and filing of this information, the County of
Washington and the State of Texas, that, on or about August 6, 2013, DAVID
FORD, the defendant, did then and there, while in the course of committing theft of
property, and with intent to obtain or maintain control of said property, intentionally
or knowingly threaten or place Daniela Zamora in fear of imminent bodily injury or
death, and the defendant did then and there use or exhibit a deadly weapon, to wit:
a knife.
Exparte Ford, Appi. No. 80,780-0 1 at 2.

Ford entered a plea of guilty on October 8, 2013, and, pursuant to a plea bargain, the trial
court found Ford guilty and assessed his sentence at 20 years in prison. Ford did not appeal his
conviction. He did, however, challenge his conviction in a state application for habeas corpus relief
Specifically, Ford challenged his trial attorney's failure to ensure his new conviction would run

concurrent to his 25-year sentence from a prior conviction. On January 29, 2014, the Texas Court

of Criminal Appeals denied the application without written order. Id. at cover.

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B.

Ford's Grounds for Relief
Ford raises the following grounds for relief in his original application for habeas corpus

relief:

Ineffective assistance of counsel, where his attorney coerced and allowed him to sign
a plea bargain for robbery with no finding of a deadly weapon, but he incorrectly
received a judgment for aggravated robbery;
2.

His due process of law was violated when counsel did not assure his plea bargain was
entered in accordance with the original plea bargain agreement; and

3.

The affirmative finding of a deadly weapon was not specifically charged, and thus
it should not have been included in the judgment.

Ford raises the following grounds for relief in his amended application for habeas corpus
relief:
4.

5.

TDCJ-CID is not honoring his plea bargain by making his sentences reflect as
consecutive sentences, as shown by his new TDCJ number, and he would not have
entered into the agreement if the prosecutor or his attorney had not permitted his
involuntary plea; and

6.

C.

The only reason he accepted the plea bargain agreement of2O years was his beliefthe
sentence was to run concurrent with his previous 25-year sentence and that both cases
would run together;

The State pursued aggravated robbery when it was supposed to be a simple robbery
or a theft of a person, as he never caused bodily injury, exhibited a deadly weapon,
or even placed the victim in fear of imminent bodily injury or death, and the
judgment, without an affirmative finding of a deadly weapon, should only have been
a second degree theft.

Exhaustion of State Court Remedies
Respondent contends Ford's claims are partially unexhausted and procedurally barred.

Respondent explains that in his state application for habeas corpus relief, Ford directed his challenge

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to his attorney's failure to ensure his new case would run concurrent to his 25-year sentence for

which he was on parole. Ford did not raise any other claim in his state application.

Analysis
A.

Unexhausted Claims
Ford has not exhausted his first claims regarding prosecutorial misconduct, sufficiency ofthe

aggravated assault allegation, and his entitlement to lesser charges. Ford's unexhausted claims are

procedurally barred. A subsequent state application for habeas corpus on his unexhausted issues
would be futile as it would be dismissed pursuant to TEX. CODE CRIM. PROC. ANN. art. 11.07,

§

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as an abuse of the writ. When a state court decision rests on a state law ground that is independent

of a federal question and adequate to support the judgment, federal courts lackjurisdiction to review
the merits of the case. Coleman

v.

Thompson, 501 U.S. 722, 729 (1991). In order for a claim of

procedural default to preclude federal review of a habeas petitioner's claim, the last state court

issuing a reasoned decision must have clearly and unequivocally relied upon the procedural default
as an independent and adequate ground for denying relief. Harris v. Reed, 489 U. 5. 255, 262 (1989).

Additionally, even though a claim has not been reviewed by the state courts, this Court may find that

claim to be procedurallybarred. Coleman, 501 U.S. at 73 5-37. The general rule a state court must

explicitly apply a procedural bar to preclude federal review does not apply to those cases where a

petitioner has failed to exhaust his state court remedies and the state court to which he would be
required to present his unexhausted claims would now find those claims to be procedurally barred.
Id. at 735 n. 1. A petitioner, however, can still obtain federal habeas review on a claim denied by the

state court on the grounds of procedural default if he can show cause and actual prejudice for his

of
procedural default or that a failure to address the federal claim would result in a miscarriage
justice. Moore

v.

Roberts, 83 F.3d 699, 702 (5th Cir. 1996) (citing Coleman, 501 U.S. at 750).

Ford has failed to show cause and actual prejudice for his procedural default and has made

of
no showing a failure to address the merits of his claims would result in a miscarriage justice.
Therefore, he is barred from raising his unexhausted claims. Accordingly, the Court turns its
attention to Ford's exhausted claims.
B.

The Antiterrorism and Effective Death Penalty Act of 1996
The Supreme Court has summarized 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, 562 U.S. 86, 131 S. Ct. 770, 783-85 (2011). The Court noted the starting point for any

federal court in reviewing a state conviction is 28 U.S.C.

§

2254, which states in part:

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 claim(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
28 U.S.C.

§

2254(d). The Court noted "{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
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all of the Courts of Appeals' decisions on this question, the Court concluded 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 it had previously
concluded "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." Id.

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 (2000)). The "contrary to" requirement "refers to

the holdings, as opposed to the dicta, of.
relevant state-court decision." Dowthitt

. .

v.

[the Supreme Court's] decisions as of the time of the

Johnson, 230 F.3d 733, 740 (5th Cir. 2000) (quotation

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 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 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 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.

C.

Guilty Plea
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(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 he has waived, and have advice from competent counsel. Washington, 480
F. 3d at 315. 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,
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397 U.S. 742, 750 (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 (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
209 F.3d 386, 392 (5th Cir. 2000); Smith

v.

v.

Glinsey,

Estelle, 711 F.2d 677, 682 (5th Cir. 1983). As the

Supreme Court has explained:
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 inMcMann [v. Richardson, 397 U.S. 759, 770-71
(1970)].
Tollett v. Henderson, 411 U.S. 258, 267 (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 (1980) (quoting McMann,
397 U.S. at 770-71). "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 (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 trial counsel's defective assistance

rendered a plea involuntary, the petitioner must show 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 (1985).
As the Magistrate Explains in the R&R, Ford has not alleged any specific facts showing he

was not adequately informed of the nature of the charge against him prior to his guilty plea. Ford
knew he was charged with the felony offense of aggravated robbery and was pleading to the charged
offense without reduction. He was admonished with regard to the range of punishment for his
second degree felony, signed the waiver of rights and agreements in connection with the plea of
guilty, understood he was pleading guilty to a "3g" offense so that he would not become eligible for

parole until he served one-half of his sentence, admitted he was guilty of each and every allegation
contained in the indictment, and signed the agreed punishment recommendation providing for his
sentence to run concurrently with any parole revocation on his Harris County case. See Resp. [#13 2] Ex. B. Thereafter, the trial court certified the voluntariness

of Ford's plea, his guilt, and his

waivers, and accepted the plea bargain in writing and in open court.

Ford now claims he thought his 20-year sentence was going to be "dismissed" into his 25year sentence (of which he had already served several years). There is no evidence, however,

counsel misled Ford into the belief a "concurrent" sentence meant his 20-year sentence would be

"dismissed" into his 25-year sentence or the 25-year sentence would "eat up" the 20-year sentence.
A petitioner's subjective belief alone is not sufficient to invalidate a guilty plea. Matthews

v.

United

States, 569 F.2d 941, 943 (5th Cir. 1978). Instead, a petitioner must show the plea agreement had

been objectively misrepresented to him. Montoya v. Johnson, 226 F.3d 399, 406 (5th Cir. 2000).
Ford has failed to meet this standard, and as a result, he has failed to show counsel's performance

was deficient.
In addition, Ford does not contend that, had he understood his 20-year sentence would run
concurrently with his 25-year sentence, he would not have pleaded guilty and would have insisted

on going to trial. Instead, Ford wants to be returned to state court to negotiate a better plea bargain.
As explained above, to establish a claim trial counsel's defective assistance rendered a plea

involuntary, the petitioner must show 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." Lockhart, 474 U.S. at 59. Ford has shown
neither that counsel's performance was deficient nor that he was prejudiced thereby. Ford's solemn
declarations made at the time he entered his guilty plea undermine his claims of an involuntary plea,
and his unsupported allegations are insufficient to entitle him to relief
In his Objections [#19], Ford repeats and re-urges arguments previously made, and they are

OVERRULED.

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

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determination of facts in light of the evidence. Accordingly, the Court is of the opinion 28 U.S.C.
2254, as amended by the AEDPA, bars habeas corpus relief.

§

Conclusion
The Court fully agrees with the Magistrate Judge, and Ford's Petition for Writ of Habeas
Corpus [#1] must be DENIED.

An appeal may not be taken to the court of appeals from a final order in a proceeding under
§

2254 "unless a circuit justice or judge issues a certificate of appealability."

§

2253(c)(1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Proceedings,

28 U.S.C.

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 movant 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 (2000).

In cases where a district court rejects a movant'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.

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In this case, reasonable jurists could not debate the dismissal of Ford's

§

2254 petition on

substantive or procedural grounds, nor find the issues presented are adequate to deserve
encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.s.
at 484)). Thus, a certificate

of appealability shall not issue.

Accordingly,
IT IS ORDERED that Petitioner David Joseph Ford's Objections [#19] are

OVERRULED;
IT IS FURTHER ORDERED that the Report and Recommendation of the United

States Magistrate Judge [#16] is ACCEPTED;
IT IS FURTHER ORDERED that Petitioner David Joseph Ford's Petition for Writ

of Habeas Corpus [#1] is DENIED;
IT IS FiNALLY ORDERED that a certificate of appealability is DENIED.

SIGNED this thea_dayofaary2015.

SAM SPARKS
UNITED STATES DISTRICT JUDGE

207 2254 ordjtw.frm

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