JOHN McBRYDE, District Judge.
This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Rodney Nathaniel Boone, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of TDCJ, respondent. After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be denied.
In 2012 petitioner was indicted in Tarrant County, Texas, for possession of a controlled substance, heroin, of four grams or more but less than two-hundred grams with the intent to deliver. (SH15 — WR-54, 131-05, 81, ECF No. 16-20.) The indictment also included a habitual-offender notice, alleging two prior felony convictions. (Id.) On June 19, 2013, after a jury found petitioner guilty on a separate drug-related offense in Case No. 1289758D, petitioner entered a guilty plea pursuant to a plea agreement in the instant case, the state waived the habitual-offender notice, and petitioner was sentenced to fifteen years' confinement, the sentence to run concurrently with his 30-year sentence in Case No. 1289758D. (Id. at 75-78, 83; SH15-WR-54,131-05, Supp. R., 2-4, ECF No. 16-19.) Petitioner appealed his conviction and/or sentence, but the Second District Court of Appeals dismissed the appeal on the basis that petitioner had no right of appeal in a plea-bargained case. (Mem. Op. 2, ECF No. 16-5.) Petitioner also filed three state habeas-corpus applications challenging his conviction and/or sentence. The first two were denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court and the third was dismissed as successive. This federal habeas petition followed.
Petitioner raises a plethora of claims for relief in his various pleadings before the court. His claims are addressed as thoroughly as practical and appear to fall within the following general categories:
(Orig. Pet. 1-3, ECF No. 1; Form Pet. 6-7, ECF No. 6; Pet'r's Mem. 1-11, ECF No. 7; Pet'r's Supp. Pet. 1-6, ECF No. 19; Pet'r's Reply 1-9, ECF No. 26.) To the extent petitioner's claims involve matters or events related to his jury trial proceedings and resultant conviction and sentence in Case No. 1289758D, the claims are neither relevant to nor considered in the context of his guilty plea in the instant case. Petitioner challenged his conviction and sentence in Case No. 1289758D in this court in Case No. 4:14-CV-945-A, to no avail.
Respondent does not believe that the petition is barred by limitations or subject to the successive-petition bar. (Resp't's Answer 4, ECF No. 21.) 28 U.S.C. §§ 2244(b), (d) & 2254(b)(1). She does however reserve the right to raise the defense of exhaustion, and she asserts that the court should not consider petitioner's evidence in the form of the "Sworn Statement of Seizing Officer" under Cullen v. Pinholster, 563 U.S. 170 (2011), because the evidence was not properly presented in the state courts. (Id. at 6-10.)
A § 2254 habeas petition is governed by the heightened standard of review provided for by the Anti-Terrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254. Under the Act, a writ of habeas corpus should be granted only if a state court arrives at a decision that is contrary to or an unreasonable application of clearly established Supreme Court precedent or that is based on an unreasonable determination of the facts in light of the record before the state court. Harrington v. Richter, 562 U.S. 86, 100-01 (2011); 28 U.S.C. § 2254 (d) (1)-(2). This standard is difficult to meet and "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings." Harrington, 562 U.S. at 102.
Additionally, the statute requires that federal courts give great deference to a state court's factual findings. Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); Williams v. Taylor, 529 U.S. 362, 399 (2000). Typically, when the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written opinion, as in this case, it is an adjudication on the merits, which is entitled to the presumption. Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). Under these circumstances, a federal court may assume the state court applied correct standards of federal law to the facts, unless there is evidence that an incorrect standard was applied. Townsend v. Sain, 372 U.S. 293, 314 (1963)
Under the sixth claim, enumerated above, petitioner contends that his guilty plea was involuntary. By entering a knowing, intelligent and voluntary guilty plea, a defendant waives all nonjurisdictional defects in the proceedings preceding the plea. Smith, 711 F.2d at 682; Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir. 1981). A guilty plea is knowing, intelligent, and voluntary if done with sufficient awareness of the relevant circumstances and likely consequences surrounding the plea. Brady v. United States, 397 U.S. 742, 748 (1970). If a challenged guilty plea is knowing, intelligent, and voluntary, it will be upheld on federal habeas review. James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995). Although a defendant's attestation of voluntariness at the time of the plea is not an absolute bar to later contrary contentions, it places a heavy burden upon him. United States v. Diaz, 733 F.2d 371, 373-74 (5th Cir. 1979).
Petitioner asserts that his guilty plea was involuntary due to his trial counsel's assertion that petitioner would be found guilty as a result of his co-defendant. James Young's statement and petitioner's criminal history; counsel's erroneous advice that petitioner could appeal his 15-year sentence; and counsel's instruction to sign "waivers [petitioner] didn't know he was signing." (Pet'r's Mem. 1-4, 7, ECF No. 7.) Petitioner also asserts that his plea was involuntary because it was induced by a combination of fear and coercive prosecutorial tactics and the trial court's threat to stack his sentences if he proceeded to trial. (Id. at 5-6, 9.)
Petitioner was represented at trial by Brian Walker. During the state habeas proceedings, counsel responded to petitioner's claims, including his claims of ineffective assistance of counsel, by affidavit as follows, in relevant part:
(SH15 55, ECF No. 16-20.)
Based on counsel's affidavit, his own recollection of the plea proceedings, and the documentary record, the state habeas judge entered the following relevant factual findings on the issue of voluntariness:
(Id. at 60-62 (citations to the record omitted).) The state habeas judge also entered factual findings that prior to accepting petitioner's plea, the court fully admonished petitioner as required by state law regarding the waiver of his rights and the consequences of his plea; that petitioner signed that he understood the written plea admonishments and that he was aware of the consequences of his plea; that petitioner presented no evidence showing that he did not receive the requisite statutory admonishments or contradicting his plea attestation that he knowingly and voluntarily entered his guilty plea.
Having reviewed the record in its entirety, the state court's adjudication of the issue is neither contrary to or an unreasonable application of relevant Supreme Court precedent and is reasonable given the evidence before the court. There is no credible evidence that counsel improperly advised petitioner regarding his rights, waivers, and the consequences of his plea. Nor is there evidence that petitioner was coerced by counsel, the prosecution, or the trial court by the threat of stacked sentences or other tactics. The threat of stacked sentences was real and any such advice, threat, and/or admonishment given petitioner was accurate. Petitioner fails to present clear and convincing evidence rebutting the state court's findings, and nothing in the record suggests that trial counsel erroneously advised petitioner or that trial counsel, the state, its agents, or the judge used coercion or threats to induce petitioner's plea. Thus, applying the appropriate deference, and having reviewed the state court records, petitioner has not demonstrated that the state courts' determination of the issue is contrary to or an unreasonable application of relevant Supreme Court precedent or unreasonable in light of the evidence before the state courts. Petitioner's representations during the plea proceedings "carry a strong presumption of verity," and the official records, signed by petitioner, his counsel and the state trial judge are entitled to a presumption of regularity and are accorded great evidentiary value. Blackledge, 431 U.S. at 74; Webster v. Estelle, 505 F.2d 926, 929-30 (5th Cir. 1974). Petitioner's claims, after the fact, unsupported by legal authority or evidence, are insufficient to rebut the presumption that he received effective assistance of counsel and the presumption of regularity of the state court records. Webster v. Estelle, 505 F.2d 926, 929-30 (5th Cir. 1974) (holding state court records "are entitled to a presumption of regularity"); Babb v. Johnson, 61 F.Supp.2d 604, 607 (S.D.Tex. 1999) (same).
Deferring to the state courts' determination that petitioner's plea was valid, claims one, two, three, four, seven, and eight, to the extent not addressed above, involving matters preceding his guilty plea are waived. See United States v. Broce, 488 U.S. 563, 569-70 (1989) (by entering a voluntary guilty plea, a criminal defendant concedes his guilt and waives his right to demand any constitutionally sufficient evidence to sustain his conviction); United States v. Boykin, 395 U.S. 238, 243 (1969) (by entering a guilty plea, a defendant waives constitutional rights that inhere in a criminal trial, including the right to trial by jury, the protection against self-incrimination, and the right to confront one's accusers"); United States v. Wise, 179 F.3d 184, 186 (5th Cir. 1999) (Fourth Amendment violation waived by valid guilty plea); Norman v. McCotter, 765 F.2d 504, 511 (5th Cir. 1985) (same); Murray v. Collins, 981 F.2d 1255, 1992 WL 387015, at *3 (5th Cir. 1992) (claim that prosecutor and peace officers engaged in misconduct waived by valid guilty plea); Kelley v. Alabama, 636 F.2d 1082, 1083 (5th Cir. 1981) (a person who pleads guilty waives the right to challenge the sufficiency and reliability of the evidence, because the guilty plea itself stands as evidence against the petitioner); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983) (ineffective-assistance-of-counsel claims not related to voluntariness of the plea and sufficiency-of-the-evidence challenges waived by valid guilty plea).
Under the fifth claim, petitioner contends that he is actually innocent based on newly discovered evidence. "Actual innocence" is not an independent ground for habeas corpus relief. Herrera v. Collins, 506 U.S. 390, 400 (1993); Foster v. Quarterman, 466 F.3d 359, 367 (5th Cir. 2006); Dowthitt v. Johnson, 230 F.3d 733, 741-42 (5th Cir. 2000). The Supreme Court reaffirmed in McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013), that it has not resolved whether a prisoner may be entitled to habeas corpus relief based on a freestanding claim of actual innocence. Until that time, such a claim it not cognizable on federal habeas review.
Finally, under the ninth claim, petitioner asserts that in all of his state habeas proceedings he^ was denied a full and fair hearing because his state habeas applications were either denied or dismissed without written order or oral argument. (Pet. 7, ECF No. 6.) Alleged deficiencies in state habeas proceedings are not a basis for federal habeas relief. Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) . Further, a paper hearing is sufficient to afford a petitioner a full and fair hearing, especially where, as here, the trial judge and the state habeas judge are one and the same. Murphy v. Johnson, 205 F.3d 809, 816 (5th Cir. 2000).
For the reasons discussed,
The court ORDERS the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, denied. The court further ORDERS that a certificate of appealability be, and is hereby, denied, as petitioner has not made a substantial showing of the denial of a constitutional right.
