JOHN McBRYDE, District Judge.
This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Michael Quincy White, who was confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ) at the time the petition was filed, against Lorie Davis, director of TDCJ, respondent. Petitioner has been released on parole. After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be denied.
On January 17, 2012, in Tarrant County, Texas, Case No. 1237626D, pursuant to a plea agreement, petitioner pleaded guilty to felony driving while intoxicated and the trial court adjudged him guilty and sentenced him to 10 years' confinement, which the court suspended and placed him on ten years' community supervision. (Clerk's R. 28-35, 37-42, 45-48.) On January 21, 2015, the state moved to revoke his community supervision based on certain violations of the conditions of his release. (Id. at 49-51.) At the revocation hearing on July 2, 2015, petitioner signed written plea admonishments regarding his constitutional rights and his waiver thereof, wherein he acknowledged that he was aware of the consequences of his plea; that he was mentally competent and his plea was knowingly, freely, and voluntarily entered; that no one threatened, coerced, forced, persuaded or promises him anything in exchange for his plea; that he was totally satisfied with the representation given to him by counsel and counsel provided "fully effective and competent representation; that neither the trial court or his counsel made any representation about the disposition of the hearing or the actual time he would serve upon revocation; and that the court could sentence him anywhere from the minimum of the range of punishment up to and including the amount of time in his original sentence. (Id. at 52-53.) His trial counsel signed the written plea admonishments indicating that he was satisfied that petitioner "intelligently, knowingly, and voluntarily waived his rights" and would enter his plea "understanding the consequences thereof." (Id. at 54.) And, the trial court found the plea to be "intelligently, freely, and voluntarily entered[,]" accepted it in open court, and assessed petitioner's sentence at 10 years' confinement in TDCJ. (Id. at 54, 56.)
Petitioner appealed the judgment revoking his community supervision, but the state appellate court affirmed the judgment. (Mem. Op. 2, 6.) Petitioner also sought postconviction state habeas relief by filing two state habeas-corpus applications. The first was dismissed because it was filed before the appellate court issued its mandate and the second was denied by the Texas Court of Criminal Appeals on February 15, 2017, without written order on the findings of the trial court. This federal petition followed. (SHR01 Action Taken; SHR02 Action Taken.
Petitioner raises two grounds for relief, alleging that he was denied a hearing on his state habeas application and that he received ineffective assistance of trial counsel. (Pet. 6.)
Respondent does not allege that the petition is barred by successiveness, the federal statute of limitations, or a failure to exhaust state court remedies. (Resp't's Answer 4.)
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 federal law as determined by the United States Supreme Court or that is based on an unreasonable determination of the facts in light of the record before the state court. 28 U.S.C. § 2254(d)(1)-(2); Harrington v. Richter, 562 U.S. 86, 100-01 (2011).
The statute also 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. A 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). Additionally, when the Texas Court of Criminal Appeals, the state's highest criminal court, denies relief on a state habeas-corpus application without written order, typically it is an adjudication on the merits, which is likewise entitled to this presumption. Richter, 562 U.S. at 100; Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). In such a situation, a federal court "should `look through' the unexplained decision to the last related state-court decision providing" particular reasons, both legal and factual, "presume that the unexplained decision adopted the same reasoning," and give appropriate deference to that decision. Wilson v. Sellers, 138 S.Ct. 1188, 1191-92 (2018).
Under his first ground, Petitioner claims he is entitled to an evidentiary hearing in this court to further develop his ineffective-assistance-of-counsel claims because he was denied relief on his state habeas application "at the appeal level without a written order or hearing." (Pet. 6.)
A habeas petitioner is entitled to an evidentiary hearing in federal court if he shows that (1) there is a factual dispute which, if resolved in his favor, would entitle him to relief and (2) the state has not afforded him a full and fair hearing. Murphy v. Johnson, 205 F.3d 809, 815, 816 (5th Cir. 2000). An evidentiary hearing is required when the federal court lacks sufficient undisputed facts to make an informed decision. See Barrientes v. Johnson, 221 F.3d 741, 770 (5th Cir. 2000).
Having examined the state court records, petitioner fails to demonstrate that he was denied a full and fair hearing in state court simply because the Texas Court of Criminal Appeals ruled on his second state habeas application without conducting a live evidentiary hearing. A full and fair hearing in state court does not necessarily require live testimony. The Fifth Circuit has repeatedly held that a paper hearing is sufficient to afford a habeas petitioner a full and fair hearing on the factual issues underlying his claims, especially where as here, the trial court and the state habeas court are one and the same. See Murphy, 205 F.3d at 816.
In this case, the record adequately supports the state habeas court's findings. Counsel's affidavit, see infra, sets forth in great detail the actions he undertook in his representation of petitioner and counsel's averments were uncontradicted by petitioner, who tends to make broad and general allegations unsupported by anything in the record. The merits of all factual disputes were sufficiently resolved in the state habeas court's paper hearing, the factfinding procedure employed by the state court was adequate to afford a full and fair hearing, and the material facts were adequately developed at the state court hearing. Thus, absent clear and convincing evidence in rebuttal, the court is entitled to give, and does give, the presumption of correctness to state court's factual findings in considering petitioner's ineffective-assistance-of-counsel claims below. Petitioner is not entitled to relief under his first ground.
Under his second ground, petitioner claims that his trial counsel was ineffective during the revocation proceedings. (Pet. 6.) A criminal defendant has a constitutional right to the effective assistance of counsel at trial.
Ineffective-assistance-of-counsel claims are considered mixed questions of law and fact and, therefore, are analyzed under the "unreasonable application" standard of § 2254(d)(1). See Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir. 2010). Where, as here, the state court adjudicated the ineffective-assistance claims on the merits, this court must review petitioner's claims under the "doubly deferential" standards of both Strickland and § 2254(d). Cullen v. Pinholster, 563 U.S. 170, 190 (2011). In such cases, the "pivotal question" for this court is not "whether defense counsel's performance fell below Strickland's standard"; it is "whether the state court's application of the Strickland standard was unreasonable." Richter, 562 U.S. at 101, 105.
Petitioner was represented during the revocation proceedings by John C. Beatty, licensed to practice law in Texas since 1975 and board certified in criminal law. (SHR02 72.) Petitioner raises largely the same complaints about counsel's representation as those raised in his state habeas proceeding. Thus, the court reviews the petitioner's complaints as set forth by the state habeas court:
(SHR02 136-37.)
In response to both petitioner's grievance against counsel with the State Bar of Texas and petitioner's allegations in his state habeas application, counsel averred (all errors in punctuation are in the original):
(SHR02 72-75 (record citations omitted).)
Finding counsel's affidavit credible and supported by the record, the state habeas court entered findings of fact, too numerous to list here, consistent with the affidavit and, applying the Strickland, concluded that petitioner had failed to prove either prong of the Strickland standard. (Id. at 138-43, 144-47, 151.)
As an initial matter, respondent asserts that petitioner's knowing and voluntary pleas of true waived his ineffectiveassistance-of-counsel claims, none of which attack the voluntary nature of the plea. (Resp't's Answer 10-15.) Tt is well settled that a guilty plea, if made knowingly and voluntarily, waives all nonjurisdictional defects in the proceeding preceding the plea, including ineffective-assistance-of-counsel claims that do not affect the voluntary nature of the plea. See United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). Similarly, courts in this and other districts in Texas have found that a plea of true to probation violations, if entered knowingly and voluntarily, likewise results in the waiver of all nonjurisdictional defects in the proceedings, including ineffective-assistance claims that do not implicate the voluntariness of the plea. See J3razill v. Director, TDCJ-CID, No. 1:14cv97, 2016 WL 7744734, at *2-3 (E.D.Tex. Nov. 22, 2016); Henley v. Quarterman, No. 3:06-CV-0237-P, 2007 WL 2890372, at *3 (N.D. Tex. Sep. 28, 2007) (citing cases); Whitten v. Cockrell, No. 3:01-CV-1487-D, 2003 WL 21509163, at *7-8 (N.D.Tex. Apr.11, 2003). See also United States v. Alvarez, 197 Fed. App'x 341, 2006 WL 2547768, at * (5th Cir. Sep. 5, 2006) (providing "admissions of violations of the conditions of probation waived [petitioner's] due process protections").
To the extent petitioner's claims, including his claim raised for the first time in this federal petition that counsel coerced his pleas of true, relate to the voluntariness of his pleas, the plea documents provided petitioner with written admonitions regarding his rights and show that he expressly waived such rights by pleading true to the revocation allegations. (SHR02 52-54.) The record reflects that petitioner had a clear understanding of the proceedings against him, the nature of the alleged probation violations, and the consequences of entering his pleas of true. Petitioner has not overcome the presumption of regularity and "great weight" accorded state court records. See Bonvillian v. Blackburn, 780 F.2d 1248, 1252 (5th Cir.1986) (holding that state court records are accorded "great weight"); Webster v. Estelle, 505 F.2d 926, 929-30 (5th Cir. 1974) (holding that state court records are entitled to a "presumption of regularity"). His assertions of coercion and ignorance as to the consequences of his pleas, after the fact, are unsupported by the record and contrary to his confirmation in the written plea admonishments. Deferring to the state court records and the state habeas court's factual findings that counsel reviewed the plea admonishments with petitioner; that counsel properly advised petitioner of the possible outcomes and the range of punishment he faced upon revocation; and that counsel's advice was the result of reasonable trial strategy, the court finds no evidence that petitioner's pleas were coerced or that counsel performed deficiently with respect to petitioner pleading true. Consequently, petitioner's ineffective-assistance claims involving counsel's acts or omissions preceding the plea are waived.
To the extent petitioner's ineffective-assistance claims involve counsel's acts or omissions following the plea, the claims are groundless. Relying on the presumptive correctness of the state courts' factual findings, and having independently reviewed petitioner's claims in conjunction with the state court records, the state courts' adjudication of the claims is not contrary to or an unreasonable application of Strickland. Petitioner's claims are largely conclusory, with no legal and/or evidentiary basis, refuted by the record, or involve strategic and tactical decisions made by counsel, all of which generally do not entitle a state petitioner to federal habeas relief. See, e.g., Strickland, 460 U.S. at 689 (holding strategic decisions by counsel are virtually unchallengeable and generally do not provide a basis for postconviction relief on the grounds of ineffective assistance of counsel); Green v. Johnson, 160 F.3d 1029, 1037, 1042 (5th Cir. 1998) (providing "[m]ere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue"), Consequently, petitioner is not entitled to relief under his second ground.
For the reasons discussed herein,
The court ORDERS that 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.
