Hendrix v. Stephens
Filing
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REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Jason Ray Hendrix. It is recommended that Petitioner's Application for Writ of Habeas Corpus and Motion to Conduct Discovery be denied. Signed by Judge Andrew W. Austin. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JASON HENDRIX
V.
WILLIAM STEPHENS, Director,
Texas Dept. of Criminal JusticeCorrectional Institutions Division
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A-14-CA-702-LY
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:
THE HONORABLE LEE YEAKEL
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); Petitioner’s first Motion for Summary Judgment, which has been construed
as a Memorandum in Support of his Application (Document 10); Respondent’s Answer
(Document 18); Petitioner’s second Motion for Summary Judgment, which has been construed as
a Memorandum in Support of his Application (Document 20); Petitioner’s response to Respondent’s
Answer (Document 22); Petitioner’s Advisory (Document 27); Petitioner’s third Memorandum in
Support (Document 30); and Petitioner’s Motion to Conduct Discovery (Document 31). Petitioner,
proceeding pro se, has paid the filing fee for his application. For the reasons set forth below, the
undersigned finds that Petitioner’s application for writ of habeas corpus and Motion to Conduct
Discovery should be denied.
STATEMENT OF THE CASE
A.
Petitioner’s Criminal History
According to Petitioner, the Director has custody of him pursuant to a judgment and sentence
of the 427th Judicial District Court of Travis County, Texas. Petitioner pleaded guilty to burglary
on September 24, 2013, and was sentenced to four years in prison. The judgment included a notation
that there were $364.00 in court costs and that those costs were to be withdrawn from Petitioner’s
trust fund account. Petitioner challenged the judgment in a state application for habeas corpus relief.
The state court denied the application without written order on December 18, 2013. Ex parte
Hendrix, Appl. No. 80,241-02 at cover.
B.
Grounds for Relief
Petitioner argues the seizure of $364.00 from his inmate trust fund account violated the
Fourth Amendment, due process, equal protection, and his civil rights.
C.
Exhaustion of State Court Remedies
Respondent contends Petitioner has not exhausted his state court remedies on his claims.
Respondent explains Petitioner merely alleged in his state application, “There were not supposed to
be any court costs associated with my plea of guilty.” Respondent asserts Petitioner did not claim
in state court that the imposition of court costs violated the Fourth Amendment, equal protection,
and his civil rights. He argues Petitioner’s claims are procedurally defaulted.
DISCUSSION AND ANALYSIS
A.
Claims Non-Cognizable
Petitioner’s challenge to the assessment of costs in no way implicates the fact or duration of
his confinement. For this reason, it is not the proper subject of an application for writ of habeas
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corpus in federal or state court. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (explaining a
habeas claim attacks the validity of the fact or length of custody); In re Daniel, 396 S.W.3d 545 (Tex.
Crim. App. 2013) (construing state application for habeas corpus relief as an application for writ of
mandamus because challenge to the assessment of attorney’s fees did not implicate fact or duration
of confinement).
B.
Unexhausted Claims
Alternatively, Petitioner has not exhausted all of his claims, and those claims are procedurally
defaulted. The exhaustion requirement is satisfied when the substance of the federal habeas claim
has been fairly presented to the highest state court. Fisher v. Texas, 169 F.3d 295, 302 (5th Cir.
1999); see also Picard v. Connor, 404 U.S. 270, 275 (1971).
As explained by the Fifth Circuit:
A claim is fairly presented when the petitioner “asserts the claim in terms so
particular as to call to mind a specific right protected by the Constitution or alleges
a pattern of facts that is well within the mainstream of constitutional litigation.”
Kittelson v. Dretke, 426 F.3d 306, 315 (5th Cir. 2005) (per curiam) (internal
quotation marks omitted). “It is not enough that all the facts necessary to support the
federal claim were before the state courts or that a somewhat similar state-law claim
was made.” Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001) (quoting
Anderson v. Harless, 459 U.S. 4, 6 (1982)); see also Duncan v. Henry, 513 U.S. 364,
366 (1995) (per curiam) (holding that petitioner did not fairly present federal due
process claim by bringing a “somewhat similar” but doctrinally distinct “miscarriage
of justice” claim under the California Constitution); Gartrell v. Lynaugh, 833 F.2d
527, 529 (5th Cir. 1987) (holding that petition presenting state-law sufficiency
challenge fairly presented a federal sufficiency challenge because “the federal and
state standards applicable to [petitioner]’s claims are identical, not merely ‘somewhat
similar’”). “Rather, the petitioner must afford the state court a ‘fair opportunity to
apply controlling legal principles to the facts bearing upon his constitutional claim.’”
Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir. 2004) (quoting Anderson, 459 U.S.
at 6).
Johnson v. Cain, 712 F.3d 227, 231 (5th Cir. 2013). In his state application, Petitioner asserts:
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Part of my plea bargain and according to Leslie Boykin, Defense Atty., my plea
bargain of guilty was to be without any court costs. There were not supposed to be
any court costs associated with my plea of guilty. PLEASE NOTE THAT THERE
ARE NO FINGERPRINT ON enclosed Judgement. RELIEF: Please suspend court
costs or remove them A.S.A.P.
Ex parte Hendrix, Appl. No. 80,241-02 at 20. Clearly, Petitioner did not assert the court costs
violated the Fourth Amendment, equal protection or his civil rights. Thus, these claims have not
been fairly presented to the state courts.
Petitioner’s unexhausted claims are now 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
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address the merits of 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).
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 the federal claims would result in a
miscarriage of justice. Therefore, Petitioner is barred from raising his unexhausted claims.
C.
The Antiterrorism and Effective Death Penalty Act of 1996
Moreover, Petitioner’s due process claim lacks merit. The claim is analyzed under the terms
of the Antiterrorism and Effective Death Penalty Act. The Supreme Court has summarized the basic
principles that have grown out of the Court’s many cases interpreting the 1996 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.
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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.”
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).
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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.
To the extent Petitioner argues the imposition of court costs violates due process his claim
fails. Included in the state court records are the plea papers signed by Petitioner indicating he entered
his plea “freely and voluntarily, without any . . . promise or benefit other than that stated in the plea
bargain agreement.” Ex parte Hendrix, Appl. No. 80,241-02 at 8. Nothing in the plea papers
indicate court costs would be waived. In fact, the court costs are legislatively mandated and cannot
be waived. See TEX. GOV’T CODE ANN. § 102.021 (West 2013) (setting out various conviction
costs). “Without the necessity of pronouncement in open court, or inclusion in the written judgment,
Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009), and irrespective of the defendant’s
ability to pay, Williams v. State, 332 S.W.3d 694, 700 (Tex. App.-Amarillo 2011, pet. denied), a
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person convicted of a criminal offense shall pay the statutorily mandated fees found in section
102.021 of the Texas Government Code.” Wolfe v. State, 377 S.W.3d 141, 147 (Tex. App. –
Amarillo, 2012, no pet.).
Petitioner relies on In re Daniel, 396 S.W.3d 545 (Tex. Crim. App. 2013), in support of his
claim. He contends Daniel was ordered to pay court costs and attorney’s fees nine years after his
conviction. He believes the Court of Criminal Appeals found there had been no hearing on Daniel’s
ability to pay court costs and attorney’s fees. Because Daniel was indigent, he asserts the court
relieved Daniel of paying court costs and attorney’s fees.
In Daniel, court costs of $295.25 were assessed in the judgment as court costs at the time of
Daniel’s conviction in 2002. More than nine years later, the Bexar County District Clerk issued a
“Bill of Cost” assessing a cost for appointed counsel in the amount of $7,945.00. Daniel challenged
the unilateral assessment of appointed attorney fees, because he had been declared indigent at the
time of trial and had no material change in his financial status since that time. Daniel requested the
“Bill of Cost” be deleted. The Court of Criminal Appeals conditionally granted mandamus relief
and ordered the Bexar County District Clerk to delete the assessment of costs for attorney fees in the
amount of $7,945.00 while leaving intact costs in the amount of $295.25, that were expressly
imposed by the trial court in the judgment. Attorney fees, unlike court costs, can be waived
depending on the defendant’s financial resources. See TEX. CODE CRIM. PROC. art. 26.05(g) (West
2013). In Petitioner’s case, he was found indigent and was not charged attorney fees. Therefore,
Daniel is irrelevant to Petitioner’s claim.
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, Petitioner’s claim does not warrant
federal habeas relief.
D.
Motion to Conduct Discovery
Petitioner insists the Court order the production of his plea and sentencing transcripts to
prove the trial court judge agreed no costs would be assessed. Petitioner also requests the Court to
order his court-appointed attorney to provide an affidavit to prove court costs were not ordered by
the trial court. As explained above, Petitioner’s claim is not cognizable in a federal application for
habeas corpus relief. In addition, the court costs challenged by Petitioner are mandated by the state
legislature and cannot be waived. As such, there is no need for discovery in this case, and
Petitioner’s Motion to Conduct Discovery should be denied.
RECOMMENDATION
It is recommended that Petitioner’s Application for Writ of Habeas Corpus and Motion to
Conduct Discovery 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
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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
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
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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 (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 5th day of March, 2015.
_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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