Brown v. Stephens
ORDER DISMISSING CASE, Petitioner's Habeas Corpus is DENIED, and this case is DISMISSED WITH PREJUDICE. All other pending Motions are DENIED AS MOOT. The Court also DENIES Petitioner a Certificate of Appealability. Signed by Judge Xavier Rodriguez. (wg)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT of TEXAS
SAN ANTONIO DIVISION
ERIC J. BROWN,
Texas Department of Criminal Justice
Correctional Institutions Division Director, §
Before the Court is Petitioner Eric J. Brown’s 28 U.S.C. § 2254 Habeas Corpus Petition. After
careful consideration the Court dismisses the petition.
In 2009, Brown pleaded nolo contendere in Wilson County to aggravated kidnapping and
aggravated assault with a deadly weapon causing serious bodily injury against a family member, and
was sentenced to concurrent fifty year sentences in State v. Brown, No. 8-11-222-CRW (Tex. 218th
Jud. Dist. Ct., jmt. entered April 22, 2009). Brown’s pro se appeal was dismissed September 16,
2009, because it was a plea-bargain case and the trial judge did not certify the case for appeal as
required by Texas procedure. Brown v. State, No. 4-9-292-CR (Tex. 4th Ct. App.). Brown filed a
State habeas corpus application on January 12, 2015 challenging his convictions, that was denied
March 11, 2015. Ex parte Brown, No. 82,904-1.
Brown’s § 2254 Petition challenges these convictions contending: the trial judge in his case
was the same judge that presided over his divorce case and was biased against him; the indictment
was void; his counsel was ineffective for coercing him to plead nolo contendere, failing to admonish
him of the consequences of his plea, being under the influence of drugs and alcohol, and failing to
provide him reasonably competent advice.
Federal habeas corpus relief is available only where the petitioner demonstrates he is in custody
in violation of his constitutional or other federal rights. 28 U.S.C. §§ 2241, 2254. State law errors
that do not implicate constitutional rights are not a basis for habeas corpus relief. Estelle v.
McGuire, 502 U.S. 62, 67 (1991). Rule 2(d) of the Rules Governing § 2254 Proceedings states the
petition "shall set forth in summary form the facts supporting each of the grounds." Conclusory and
speculative allegations are not sufficient to entitle a petitioner to a hearing or relief in a § 2254 case.
West v. Johnson, 92 F.3d 1385, 1398-99 (5th Cir. 1996), cert. denied, 520 U.S. 1242 (1997); Perillo
v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996).
Section 2254(b)(1)(A) requires the petitioner to exhaust available state court remedies before
seeking federal habeas corpus relief. Section 2254(d) requires this Court to defer to the state court’s
reasonable interpretations of federal law and reasonable determinations of fact in light of the
evidence presented in the state proceedings. Factual determinations of a state court are "presumed
to be correct" and the petitioner has the burden of rebutting this presumption by "clear and
convincing evidence." 28 U.S.C. § 2254(e)(1).
Generally before dismissal this Court would enter a show cause order advising the petitioner
of the deficiency of his Petition and give the petitioner an opportunity to amend. However, Brown’s
Petition is barred by limitations and fails to present a basis for habeas corpus relief for multiple
reasons that no amendment could cure. Thus entering such a show cause order in this case is
unnecessary. The Court will therefore dismiss Brown’s Petition for the below reasons.
-A“[D]istrict courts are permitted . . . to consider, sua sponte, the timeliness of a state prisoner’s
habeas petition.” Day v. McDonough, 547 U.S. 198, 209, 126 S. Ct. 1675, 164 L. Ed. 2d 376 (2006).
Section 2244(d) provides:
(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court.
The limitation period shall run from the latest of(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(2) The time during which a properly filed application for State post-conviction
or other collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation under this
Brown’s conviction became final December 15, 2009 when his time for seeking discretionary
review with the Texas Court of Criminal Appeals expired. See Tex. R. App. P. 68.2 (providing such
a petition must be filed within thirty days following the court of appeals judgment). There was more
then a five year and five month interval between the time Brown’s conviction became final and the
filing of his § 2254 Petition on June 8, 2015. As five years and five months is far longer than the
one year limitations period Brown had to file his petition, Brown’s Petition is untimely. See §
Further, Brown’s State habeas corpus application did not toll limitations because it was filed
long after limitations expired. See 28 U.S.C. § 2244(d)(2). Lack of representation, lack of legal
training, ignorance of the law, and unfamiliarity with the legal process do not justify equitable
tolling. U.S. v. Petty, 530 F.3d 361, 365-66 (5th Cir. 2008). Brown does not allege newly
discovered facts that could not have been previously discovered with the exercise of due diligence
and fails to assert any other basis for excusing his failure to timely file his federal Petition. Brown’s
federal Petition is barred by § 2244(d)(1) because it was filed after the limitations period expired.
-BBrown’s Petition is also dismissed because the record shows Brown’s nolo contendre plea was
knowing and voluntary, and his other claims were waived pursuant to his nolo plea.
In the state trial court’s Written Plea Admonishments, Ex parte Brown, 82,904-1 at 87-89,
signed by Brown, he acknowledged he understood: (1) he was charged with aggravated kidnapping
and aggravated assault with a deadly weapon; (2) he faced a potential sentence of five to 99 years
to life; (3) he wished to plead because he was in fact guilty; (4) he was competent and his plea was
freely given and voluntary; and (5) he had the right to trial by jury and was waiving this right.
Pursuant to the plea agreement Brown signed, id. at 90, he agreed to plead nolo contendere to
aggravated kidnaping and aggravated assault as alleged in the indictment, and the parties agreed to
a recommended sentence of no more than fifty years. In the Written Waiver and Consent to
Stipulations and Stipulations, id. at 93-96, Brown confessed and admitted that he committed
aggravated kidnaping and aggravated assault as alleged in the indictment, i.e. on April 3, 2008 he
abducted Faye Brown without her consent with intent to inflict bodily injury and held her against her
will with the intent to violate or sexually abuse her.
Brown was sentenced to concurrent fifty year sentences in conformance with the plea
agreement. The plea documents executed by Brown are prima facie proof of the matters recited
therein. They show his nolo plea was knowing and voluntary, and his conclusory allegations are not
sufficient to overcome the strong presumption of verity that attaches to his sworn declarations
accompanying his plea. See Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S. Ct. 1621, 52 L. Ed. 2d
136 (1977) (“[R]epresentations of the defendant, his lawyer, and the prosecutor at [a guilty plea]
hearing, as well as the findings made by the trial judge accepting the plea, constitute a formidable
barrier to any subsequent collateral proceedings.”); see also Bonvillain v. Blackburn, 780 F.2d 1248,
1250 (5th Cir.), cert. denied, 476 U.S. 1143 (1986).
The state trial court concluded Brown’s plea was knowing and voluntary. Brown failed to
introduce evidence sufficient to overcome the presumption of correctness of § 2254(e)(1) applicable
to the State court’s determination that his guilty plea was knowing and voluntary in this or any
previous proceeding. See Parke v. Raley, 506 U.S. 20, 35-37, 113 S. Ct. 517, 121 L. Ed. 2d 391
(1992) (§ 2254's presumption of correctness applies to state court's determination guilty plea was
knowing and voluntary). A valid plea waives all pre-conviction non-jurisdictional defects. See
Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973). Therefore,
because the record shows Brown’s plea was knowing and voluntary, Brown’s ineffective counsel
claims and other claims based on matters prior to his plea were waived pursuant to his guilty plea.
Furthermore, Brown’s § 2254 Petition is conclusory. Brown fails to allege facts that would
support his claim the trial judge was biased, the indictment was void, his counsel was deficient, or
that he was prejudiced by counsel’s performance. “[M]ere conclusory allegations do not raise a
constitutional issue in a habeas proceeding.” Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983).
The State court’s denial of Brown’s claims is reasonably supported by the record and is
consistent with federal law as required by § 2254(d), see Ex parte Brown, No. 82,904-1; therefore
this Court is compelled to reach the same conclusion that Brown’s Petition is without legal or factual
merit and must be denied.
-CBecause Brown failed to present a factual basis for his claims in state court, he is not entitled
to a federal habeas corpus hearing. See 28 U.S.C. § 2254(e)(2). Furthermore, a habeas corpus
petitioner is not entitled to relief or a hearing on his claims where: (1) he failed to allege a basis for
relief, (2) he offers “conclusory allegations unsupported by specifics, contentions that in the face of
the record are wholly incredible,” Perillo v. Johnson, 79 F.3d at 444, or (3) the petition is limited to
allegations that can be resolved on the record, Lawrence v. Lensing, 42 F.3d 255, 258-59 (5th Cir.
1994). Brown is not entitled to habeas relief or a hearing on his Petition because his claims are
barred by limitations, were waived pursuant to his plea, and are conclusory or without legal merit.
Rule 4 Governing § 2254 Proceedings states a habeas corpus petition may be summarily
dismissed “[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the
petitioner is not entitled to relief in the district court.” Accordingly, Petitioner Brown’s § 2254
Petition is DENIED and this case is DISMISSED WITH PREJUDICE. All other pending
motions are DENIED as moot. Petitioner failed to make "a substantial showing of the denial of a
federal right" and cannot make a substantial showing this Court’s procedural rulings are incorrect
as required by Fed. R. App. P. 22 for a certificate of appealability, see Slack v. McDaniel, 529 U.S.
473, 483-84 (2000), and therefore this Court DENIES Petitioner a certificate of appealability. See
Rule 11(a) of the Rules Governing § 2254 Proceedings.
UNITED STATES DISTRICT JUDGE
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