REBECCA RUTHERFORD, Magistrate Judge.
Petitioner Bobby Canady, a Texas prisoner, filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. The District Court referred this resulting cause of action to the United States magistrate judge for pretrial management, pursuant to 28 U.S.C. § 636(b) and Special Order 3-251. For the following reasons, the magistrate judge recommends that petition be denied.
Petitioner pleaded guilty to possession with intent to deliver a controlled substance, enhanced, and was sentenced to twenty years in prison. State of Texas v. Bobby Charles Canady, No. F-15-56073-R (265th Jud. Dist. Ct., Dallas County, Tex., Apr. 5, 2016). Petitioner did not appeal. Petitioner filed a state habeas petition, Ex parte Canady, No. 60,097-09, which the Court of Criminal Appeals denied without written order on the findings of the trial court. Petitioner then filed a § 2254 petition and an amended petition in federal court, in which he raises the following grounds for relief:
The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), 28 U.S.C. § 2254 provide:
See 28 U.S.C. § 2254(d). Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 413 (2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Id.
Petitioner argues his guilty plea was involuntary because, (1) his counsel was not a Mental Health/Mental Retardation ("MH/MR") attorney, and (2) counsel threatened or coerced him into pleading guilty.
Prisoners challenging their guilty pleas on collateral review must overcome a "strong presumption of verity" accorded "solemn declarations" made in open court. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Prisoners must also overcome the presumption of regularity and "great weight" accorded court documents. United States v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994).
The record shows Petitioner knowingly and voluntarily entered his guilty plea. At the plea hearing, the court explained the charges to Petitioner, and Petitioner stated he understood the charges. (ECF No. 18-23 at 4.) Petitioner further stated he understood he had the right to a jury trial and that he was waiving his trial rights and pleading guilty. (Id. at 6-7.) Petitioner asked questions about his plea bargained sentence, and confirmed his sentence would run concurrently to a previous sentence. (Id. at 7-11.) Petitioner agreed that he was pleading guilty voluntarily and that he made the decision to plead guilty. (Id. at 5.) Additionally, Petitioner signed a plea agreement in which he acknowledged his right to a jury trial, agreed that the plea agreement had been explained to him, and admitted he committed the offense as charged. (ECF No. 18-20 at 86-88.) Petitioner also signed a judicial confession in which he admitted committing the offense. (Id. at 89.) Petitioner has failed to establish that his plea was involuntary.
Petitioner claims he received ineffective assistance of counsel. To sustain a claim of ineffective assistance of counsel, Petitioner must show that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense so gravely as to deprive Petitioner of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, a petitioner must "show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. In Strickland, the Court stated that "[j]udicial scrutiny of counsel's performance must be highly deferential" and "every effort [must] be made to eliminate the distorting effects of hindsight." Id. at 689. Courts, therefore, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.
Even if counsel is proven deficient, a petitioner must prove prejudice. To prove such prejudice, Petitioner must show "a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional errors." Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999) (citing Strickland, 466 U.S. at 694). "[T]he mere possibility of a different outcome is not sufficient to prevail on the prejudice prong." Id. "Rather, the defendant must demonstrate that the prejudice rendered sentencing `fundamentally unfair or unreliable.'" Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).
When a petitioner argues his guilty plea was not voluntary due to the ineffective assistance of counsel, he must show that his counsel's advice to plead guilty fell below the range of competence demanded of an attorney in a criminal case. Hill v. Lockhart, 474 U.S. 52, 56 (1985); Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994). Further, he must show prejudice by establishing "but for his counsel's alleged erroneous advice, he would not have pleaded guilty but would have insisted upon going to trial." Armstead, 37 F.3d at 206. This assessment will turn partially on "a prediction of what the outcome of a trial might have been." Id. at 206 (citing Hill, 474 U.S. at 56-58).
Petitioner claims his counsel was ineffective because she threatened or coerced him into pleading guilty. On state habeas review, defense counsel filed an affidavit responding to Plaintiff's claims. Counsel stated:
(ECF No. 18-19 at 8-10.)
Although Petitioner argues his counsel's actions threatened or coerced him into pleading guilty, a defense attorney "should make informed predictions about the consequences of either pleading guilty or going to trial." United States v. Cothran, 302 F.3d 279, 284 (5th Cir. 2002). A defense attorney's warnings about the potential for a lengthy prison sentence does not compromise the voluntariness of a guilty plea. Urseti v. Lynaugh, 821 F.2d 1099, 1102 (5th Cir. 1987) (finding plea voluntary where attorney warned client he would be lucky to get 99 years if he went to trial). Additionally, although the jail phone call is not included in the record, it appears Petitioner admitted committing the offense on the recorded call. If Petitioner proceeded to trial and was found guilty, his minimum sentence was higher than the twenty year plea bargain. Petitioner has failed to show that his counsel threatened or coerced his guilty plea, or that his counsel was ineffective. Petitioner's claim should be denied.
Petitioner claims his counsel was ineffective because she was not an MH/MR attorney. On state habeas review defense counsel submitted an affidavit in response stating:
(ECF No. 18-19 at 8.)
Further, Petitioner has not specified how his counsel was ineffective. To the extent he may be claiming he was incompetent and that his counsel failed to raise his competency, he has submitted no evidence that he was incompetent at the time of the offense, or the plea. This claim should be denied. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (emphasizing that mere conclusory allegations do not raise constitutional issues in habeas proceedings).
Petitioner claims the trial court erred when it denied his motion for a competency exam, motion to suppress, and motion to dismiss his attorney and represent himself.
On federal habeas review of state court convictions, a federal harmless error standard applies. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). To be actionable, a trial court error must have "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Under this standard, a petitioner is not entitled to federal habeas relief based on trial error unless he can establish that the error resulted in actual prejudice. See Brecht, 507 U.S. at 637. "[A] state defendant has no constitutional right to an errorless trial." Bailey v. Procunier, 744 F.2d 1166, 1168 (5th Cir. 1984).
Here, the state court found no evidence that Petitioner requested a competency exam. (ECF No. 18-19 at 5.) Further, Petitioner has submitted no evidence of his alleged incompetency, and defense counsel submitted an affidavit on state habeas review stating:
(ECF No. 18-19 at 8.) Petitioner's claim should be denied.
Petitioner also claims the trial court erred when it denied his motion to suppress the search of his person and his car. On state habeas review, defense counsel submitted an affidavit stating:
(ECF No. 18-19 at 9.) Petitioner pleaded guilty before trial, so the motion to suppress was not argued to the court. (Id. at 10.) Further, when Petitioner pleaded guilty he admitted all essential elements of the offense. Petitioner's trial error claim is without merit.
Finally, Petitioner argues the trial court erred when it denied his motion to dismiss defense counsel and represent himself. On state habeas review, the trial court rejected Petitioner's claim, stating: "While Applicant may have advised the Court of his desire to represent himself, at the next court appearance, he withdrew that request and advised the Court that he wanted [defense counsel] Tabor to continue representing him." (ECF No. 18-19 at 5.) Additionally, defense counsel filed an affidavit on state habeas review stating: "Mr. Canady decided he did not want to represent himself, [and] kept me on his case[.]" (Id. at 9.) Petitioner has failed to establish trial error.
Petitioner claims police illegally searched him and his car, and that the arrest warrant was invalid.
A federal court may not grant habeas relief based on a Fourth Amendment violation where the state has provided an opportunity for full and fair litigation of the issue. Stone v. Powell, 428 U.S. 465, 493-95 (1976). The Fifth Circuit has held that:
Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978); see also Janecka v. Cockrell, 301 F.3d 316, 320 (5th Cir. 2002) (same). A habeas petitioner must plead and prove that the state court proceeding was inadequate to obtain postconviction relief in federal court. Davis v. Blackburn, 803 F.2d 1371, 1372-73 (5th Cir. 1986).
Petitioner has failed to show he did not have a full and fair opportunity to raise his Fourth Amendment claims in state court. Instead of raising these claims, Petitioner chose to plead guilty. Petitioner's claims should be denied.
Petitioner is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' decision to deny relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
For the foregoing reasons, the Court recommends that Petitioner's habeas corpus petition pursuant to 28 U.S.C. § 2254 be denied with prejudice for failure to make a substantial showing of the denial of a federal right.
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
