IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LARRY DELMARECK SMITH, §

PETITIONER, §

§

V. § NO. 3:03-CV-1975-L

§

DOUGLAS DRETKE, DIRECTOR, § 

TEXAS DEPARTMENT OF CRIMINAL §

JUSTICE, CORRECTIONAL §

INSTITUTIONS DIVISION, §

RESPONDENT. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case

has been referred to the United States Magistrate Judge. The findings, conclusions, and

recommendation of the Magistrate Judge follow:

Parties

Petitioner Larry Delmareck Smith is an inmate in the custody of the Texas Department of

Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke,

Director of TDCJ-CID.

Procedural History

Smith was indicted for possession with intent to deliver 4 grams or more but less than 200

grams of cocaine. (C.R. at 2.) On May 30, 2002, Smith pleaded guilty, without a punishment

recommendation from the State, to the offense. (Id. at 9, 12.) The trial court found him guilty of

possession with intent to deliver and sentenced him to 15 years’ confinement. (Id. at 12.) The Fifth

District Court of Appeals affirmed the trial court’s judgment, and the Texas Court of Criminal

Appeals refused Smith’s pro se petition for discretionary review on June 11, 2003. Smith v. State,

 

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No. 5-02-1016-CR, 2003 WL 1651720 (Tex. App.—Dallas Mar. 31, 2003, pet. ref’d). Smith did

not file a state application for writ of habeas corpus challenging his conviction. (Federal Pet. at 3;

Resp’t Answer at Ex. B.) Smith filed his federal petition for writ of habeas corpus in the United

States District Court for the Northern District of Texas, Dallas Division, on August 26, 2003. See

RULES GOVERNING SECTION 2254 CASES 3(d) (mandating timeliness determined by date petition

placed in institution’s internal mailing system); Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998)

(per curiam) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered

to prison authorities for mailing). 

Issue

Smith argues that his guilty plea was involuntary because the evidence introduced during the

plea proceeding was legally and factually insufficient to show that he possessed the cocaine.

Exhaustion of State Court Remedies

Dretke believes Smith has sufficiently exhausted available state remedies on all issues

presented and, thus, does not move for dismissal on this ground.

Standard of Review

Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under

a state court judgment shall not be granted with respect to any claim that was adjudicated on the

merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly established federal

law 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. 28 U.S.C. § 2254(d). A decision is contrary to clearly

established federal law if the state court arrives at a conclusion opposite to that reached by the

 

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United States 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. Williams v. Taylor, 529 U.S.

362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532

U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established

precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the

facts of the case. Holland v. Jackson, 124 S. Ct. 2736, 2738-39 (2004); see also Neal v. Puckett, 286

F.3d 230, 236, 244-46 (5th Cir. 2002) (en banc per curiam), cert. denied, 537 U.S. 1104 (2003). 

Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall

be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness

by clear and convincing evidence. Hill, 210 F.3d at 485. 

Involuntary Guilty Plea

Smith argues that his guilty plea was involuntary because the evidence to support his guilty

plea was insufficient. Because Smith pleaded guilty, he may only challenge the voluntary character

of his guilty plea. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Smith v. Estelle, 711 F.2d 677, 682

(5th Cir. 1983), cert. denied, 466 U.S. 906 (1984). If a challenged guilty plea is knowing, voluntary,

and intelligent, 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). He must show such a strong degree of misunderstanding, duress, or

misrepresentation by others that his plea would become a constitutionally inadequate basis for

imprisonment. Id. (citing Blackledge v. Allison, 431 U.S. 63, 75 (1977)). Before a trial court may

accept a guilty plea, the court must ensure that the defendant “has a full understanding of what the

 

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plea connotes and of its consequence,” but not that he understood the “technical legal effect” of the

charges. Boykin v. Alabama, 395 U.S. 238, 244 (1969); James, 56 F.3d at 666. A plea is

involuntary, and thus insufficient to support a conviction, if the defendant “has such an incomplete

understanding of the charge that his plea cannot stand as an intelligent admission of guilt.”

Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976). If the defendant understands the maximum

prison term and fine for the offense, the subsequent guilty plea is knowingly entered. Ables v. Scott,

73 F.3d 591, 592 n.2 (5th Cir.) (per curiam), cert. denied, 517 U.S. 1198 (1996). Absent supporting

evidence in the record, a court cannot consider a habeas petitioner’s mere assertions on a critical

issue in his pro se petition to be of probative evidentiary value. Armstead v. Scott, 37 F.3d 202, 210

(5th Cir. 1994), cert. denied, 514 U.S. 1071 (1995); Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir.

1983) (per curiam).

The record reflects that Smith (1) was pleading guilty freely and voluntarily, (2) was aware

of the applicable punishment range, (3) had not been promised anything in return for his guilty plea

and had not been coerced, (4) was mentally competent, (5) understood the plea admonishments, and

(6) was aware of the consequences of his plea. (C.R. at 10; R.R. at 5-8.) Smith has offered nothing

more than his self-serving allegations that his plea was involuntary, which is insufficient to rebut

the presumption of regularity of the state court records. Babb v. Johnson, 61 F. Supp. 2d 604, 606

(S.D. Tex. 1999); see also Armstead, 37 F.3d at 210. Smith’s attacks on his guilty plea do not

undermine the sufficiency of the information he was provided before he pleaded guilty. Ables, 73

F.3d at 592 n.2. Further, the state appellate court made factual findings and concluded that the plea

was voluntary and supported by sufficient evidence. Smith, 2003 WL 1651720, at * 1. Smith has

not overcome the presumption of correctness, which applies to these factual findings, with clear and

 

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Any claim that the evidence is factually insufficient is likewise waived and additionally not

cognizable in a federal habeas corpus action. Fox v. Johnson, No. 4:00-CV-291-Y, 2001 WL

432247, at *2 (N.D. Tex. Apr. 20, 2001), adopted, 2001 WL 540215 (N.D. Tex. May 17, 2001). 

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convincing evidence. 28 U.S.C. § 2254(e)(1). Because Smith’s guilty plea was voluntary, he has

waived any claim regarding the legal sufficiency of the evidence to support his conviction.1

 Kelley

v. Alabama, 636 F.2d 1082, 1083-84 (5th Cir. Unit B Feb. 1981) (per curiam); see also Florida v.

Nixon, 125 S. Ct. 551, 561 (2004) (stating guilty plea waives constitutional trial rights).

Summary

Smith is lawfully restrained because he has failed to prove that he has been denied a

constitutionally protected interest. Accordingly, the state courts’ determination that Smith was not

entitled to 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.

Recommendation

This Court recommends that the petition for writ of habeas corpus pursuant to 28 U.S.C. §

2254 be DENIED.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTION FOR SERVICE 

AND NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and

recommendation on the parties. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to

object to these findings, conclusions, and recommendation must serve and file written objection

within ten days after being served with a copy. A party filing objections must specifically

identify those findings, conclusions, or recommendation to which objections are being made. 

The District Court need not consider frivolous, conclusory, or general objections. A party’s

failure to file such written objections to these proposed findings, conclusions, and

recommendation shall bar that party from a de novo determination by the District Court. See

Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, any failure to file written objections to

the proposed findings, conclusion, and recommendation within ten days after being served with a

copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of

the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. 

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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