Conway v. Stephens

Filing 12

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Joe W. Conway. It is recommended that Petitioner's application for writ of habeas corpus be denied. Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JOE W. CONWAY
V.
WILLIAM STEPHENS, Director,
Texas Dept. of Criminal JusticeCorrectional Institutions Division

§
§
§
§
§
§
§

A-14-CA-653-SS

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

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 1); Respondent’s Answer (Document 9); and Petitioner’s response thereto
(Document 11). Petitioner, proceeding pro se, has been granted leave to proceed in forma pauperis.
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
A.

Petitioner’s Criminal History
According to Respondent, the Director has lawful and valid custody of Petitioner pursuant

to a judgment and sentence of the 421st Judicial District Court of Caldwell County, Texas, in cause
number 13-169. Petitioner was charged by indictment with possession of a controlled substance,

namely methamphetamine, in the amount of four grams or more but less than 200 grams. Petitioner
pled guilty as charged on December 16, 2013, and was sentenced to three years’ imprisonment
pursuant to a plea bargain agreement. Petitioner did not appeal his conviction.
He did, however, challenge his conviction in a state application for habeas corpus relief. On
June 4, 2014, the Texas Court of Criminal Appeals denied the application without written order. Ex
parte Conway, No. 81,410-01 at cover.
B.

Petitioner’s Grounds for Relief
Petitioner raises the following grounds for relief:
1.

His trial counsel failed to investigate the fact of the case;

2.

His trial counsel failed to file a continuance;

3.

His trial counsel failed to develop and present a defense by:
a.

failing to raise Fourth Amendment violations in a suppression hearing,
examining trial, or trial by jury;

b.

failing to show the District Attorney had a conflict of interest because he was
involved in the petitioner’s arrest;

c.

failing to show the incident reports were unreliable; and

d.

failing to argue a lack of subject matter jurisdiction over the misdemeanor;

4.
5.

C.

His trial counsel failed to file a motion to suppress; and
His plea was involuntary because his trial counsel coerced him into accepting the
plea bargain.

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

Respondent explains Petitioner failed to present his first two claims to the state habeas court.

2

DISCUSSION AND ANALYSIS
A.

Unexhausted Claims
Petitioner has not exhausted his first two claims that trial counsel was ineffective for failing

to investigate the facts of the case and for failing to file a motion for continuance. Petitioner’s
unexhausted claims are procedurally barred. A subsequent state application for habeas corpus on
Petitioner’s unexhausted issues would be futile as it would be dismissed pursuant to TEX. CODE
CRIM. PROC. ANN. art. 11.07, § 4 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 lack jurisdiction 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.S. 255, 262 (1989). Additionally, even though a claim has not been reviewed by the
state courts, this Court may find that claim to be procedurally barred. Coleman, 501 U.S. at 735.
The general rule that 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 n.1. However, a petitioner 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 procedural default or that a failure to address the federal
claim would result in a miscarriage of justice. Moore v. Roberts, 83 F.3d 699, 702 (5th Cir. 1996),
citing Coleman, 501 U.S. at 750, cert. denied, 519 U.S. 1093 (1997).
3

Petitioner has failed to show cause and actual prejudice for his procedural default and has
made no showing that a failure to address the merits of his claims would result in a miscarriage of
justice. Therefore, Petitioner is barred from raising his unexhausted claims. Alternatively, as
discussed below, Petitioner waived his first two claims of ineffective assistance of counsel with his
voluntary guilty plea.
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 that 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 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

4

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.”
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 . . . [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.

5

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.
C.

Guilty Plea
Petitioner asserts his guilty plea was involuntary because his trial counsel coerced him into

accepting the plea bargain. 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 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
6

. . . 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 (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 v. Glinsey,
209 F.3d 386, 392 (5th Cir. 2000); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983).
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
(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”).

7

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
v. Richardson, 397 U.S. 759, 770-71 (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 (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 (1985).
Petitioner 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. Petitioner knew he was charged with the
felony offense of possession of a controlled substance, a second degree felony, and was pleading to
the charged offense. 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, and
admitted he was guilty of each and every allegation contained in the indictment. Ex parte Conway,
No. 81,410-01 at 28-37. Thereafter, the trial court certified the voluntariness of Petitioner’s plea,
his guilt, and his waivers, and accepted the plea bargain in writing. Id. at 36.
As mentioned above, 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
8

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). Petitioner has shown neither that counsel’s performance was deficient nor that he was
prejudiced thereby. Petitioner’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. 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.
RECOMMENDATION
It is 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 (2000). In cases where a district court rejected a petitioner’s
constitutional claims on the merits, “the petitioner must demonstrate that reasonable jurists would
9

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 (2003)
(citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the Court shall not
issue a certificate of appealability.
OBJECTIONS
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

10

district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153 (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
receipt requested.
SIGNED this 30th day of October, 2014.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

11