UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

WILLIAM JENKINS, III,

Petitioner,

VS.

DOUGLAS DRETKE, Director, Texas

Department of Criminal Justice,

Correctional Institutions Division,

Respondent.

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) CIVIL ACTION NO.

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) 3:03-CV-0933-G

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MEMORANDUM OPINION AND ORDER

Before the court is a petition for habeas corpus relief brought by a state inmate,

William Jenkins, III (“Jenkins”), pursuant to 28 U.S.C. § 2254. For the reasons set

forth below, Jenkins’ petition is denied. 

I. BACKGROUND

Jenkins was charged with the first-degree felony offense of aggravated robbery. 

Ex parte Jenkins, Application No. 53,537-02, at 21-22. Upon his plea of not guilty,

Jenkins was tried by a jury and ultimately convicted. Id. at 24-27. Following his

 

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* Since Jenkins did not appeal his conviction, no transcript of the trial was

prepared.

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conviction, Jenkins entered into a plea bargain agreement with the state concerning

his punishment. Id. at 17. In accordance with the plea agreement, the trial court

sentenced Jenkins to twenty-five years. Id. As part of the plea agreement, Jenkins

waived his right to jury determination of his sentence, as well as his right to appeal.*

Id. at 14. 

Jenkins filed a state application for writ of habeas corpus challenging this

conviction. See id. at 2-5. The state trial court held a hearing on the application on

October 25, 2002 and issued specific findings of fact and conclusions of law on

November 22, 2002. See id. at 17-20. The Texas Court of Criminal Appeals denied

Jenkins’ Application for 11.07 Writ of Habeas Corpus (“11.07 Application”) without

written order on the findings of the trial court after a hearing. See id. (cover sheet). 

On May 5, 2003, Jenkins filed the instant petition for writ of habeas corpus in

this court. See generally Petition for Writ of Habeas Corpus By A Person in State

Custody (“Petition”). Jenkins asserts the following claims in his federal habeas

petition: (1) his guilty plea was involuntary; (2) the jury was unconstitutionally

selected; (3) trial counsel was ineffective because he misrepresented the terms of the

plea agreement; (4) he was denied a right to appeal; and (5) his conviction was

obtained by the use of a coerced confession. Id. at 3. 

II. ANALYSIS

 

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A. Exhaustion of State Court Remedies

In his answer to the petition, respondent Doug Dretke, Director, Texas

Department of Criminal Justice, Correctional Institutions Division (“Dretke”) admits

that Jenkins has satisfactorily exhausted all available state court remedies as required

by 28 U.S.C. § 2254(b) and (c). Respondent [Dretke’s] Answer with Brief in

Support (“Answer”) at 3. Accordingly, Dretke does not seek dismissal of the

application for writ of habeas corpus on that basis. 

B. Standard of Review

Jenkins’ petition was filed May 5, 2003, subsequent to the April 24, 1996

effective date of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEPDA”). Therefore, the standards of review set forth in AEPDA apply to this

case. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Williams v. Cain, 125 F.3d 269,

274 (5th Cir. 1997), cert. denied, 525 U.S. 859 (1998). Consequently, the petitioner

may not obtain relief in this court with respect to any claim adjudicated on the merits

in the state court proceedings unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States; 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 proceeding. 

28 U.S.C. § 2254(d). 

 

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A state court decision may be “contrary to” Supreme Court precedent in two

ways. First, the state court may arrive at a conclusion opposite to that reached by the

Supreme Court on a question of law. Williams v. Taylor, 529 U.S. 362, 405 (2000). 

Second, the state court may confront “facts that are materially indistinguishable from

a relevant Supreme Court precedent” and arrive at an opposite conclusion. Id. (citing

Green v. French, 143 F.3d 865, 869-70 (4th Cir. 1998), cert. denied, 525 U.S. 1090

(1999)). To determine whether a state court decision involves an “unreasonable

application” of federal law, a federal habeas court’s “inquiry should ask whether the

state court’s application of clearly established federal law was objectively

unreasonable.” Id. at 409. “[A] federal habeas court may not issue the writ simply

because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly. 

Rather, that application must also be unreasonable.” Id. at 411. Further, all factual

determinations made by a state court shall be presumed to be correct and such

presumption can only be rebutted by clear and convincing evidence presented by the

petitioner. 28 U.S.C. § 2254(e)(1). 

 

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C. Jenkins’ Grounds for Relief

1. Voluntariness of the Plea

A federal court will uphold a guilty plea challenged in a habeas court

proceeding if the plea was knowing, voluntary, and intelligent. Hobbs v. Blackburn,

752 F.2d 1079, 1081 (5th Cir.), cert. denied, 474 U.S. 838 (1985). A guilty plea is

invalid if the defendant does not understand the nature of the constitutional

protection that he is waiving or if he has such an incomplete understanding of the

charges against him that his plea cannot stand as an admission of guilt. Henderson v.

Morgan, 426 U.S. 637, 645 n.13 (1976). The critical issue in determining whether a

plea was voluntary and intelligent is “whether the defendant understood the nature

and substance of the charges against him, and not necessarily whether he understood

their technical legal effect.” Taylor v. Whitley, 933 F.2d 325, 329 (5th Cir. 1991)

(citing Henderson, 426 U.S. at 644), cert. denied, 503 U.S. 988 (1992). 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, 426 U.S. at 645 n.13. 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)

(quoting United States v. Rivera, 898 F.2d 442, 447 (5th Cir. 1990)), cert. denied, 517

U.S. 1198 (1996). Absent supporting evidence in the record, a court cannot consider

 

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a habeas petitioner’s mere assertions on a critical issue in his pro se petition to be of

probative evidentiary value. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983)

(per curiam). 

In this case, Jenkins pleaded guilty during the punishment phase and received

the minimum possible sentence in exchange for his waiver of his right to appeal. Ex

parte Jenkins, Application No. 53,537-02, at 17. Jenkins raised this claim on his state

habeas review and the trial court held a hearing where both Jenkins and his trial

counsel testified. Jenkins’ counsel testified before the trial court that he had fully

informed Jenkins of the state’s offer and that the offer would require him to waive his

right to appeal. The trial court concluded that Jenkins’ claim was without merit

because it chose to believe the testimony of Jenkins’ counsel. See Ex parte Jenkins,

Application No. 53,537-02, at 18. Such credibility choices, like findings of fact, are

entitled to a presumption of correctness on federal habeas review. Specifically, the

Fifth Circuit has stated:

[w]hen . . . a trial court fails to render express findings on

credibility but makes a ruling that depends upon an

implicit determination that credits one witness’s testimony

as being truthful, or implicitly discredits another’s, such

determinations are entitled to the same presumption of

correctness that they would have been accorded had they

been made explicitly.

Self v. Collins, 973 F.2d 1198, 1214 (5th Cir. 1992) (quoting Lavernia v. Lynaugh, 845

F.2d 493, 500 (5th Cir. 1988)), cert. denied, 507 U.S. 996 (1993). Deference to a

 

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state court’s findings is particularly important “where a federal court makes its

determination based on the identical record that was considered by the state appellate

court.” Sumner v. Mata, 449 U.S. 539, 547 (1981). As a result, “§ 2254(d) gives

federal habeas courts no license to redetermine credibility of witnesses whose

demeanor has been observed by the state trial court, but not by them.” Marshall v.

Lonberger, 459 U.S. 422, 434 (1983); see also Louis v. Blackburn, 630 F.2d 1105, 1110

(5th Cir. 1980) (“In order to adequately determine the credibility of a witness . . .,

the fact finder must observe the witness.”). 

Given that Jenkins’ counsel’s testimony was credited, first by the trial court

and then by the Texas Court of Criminal Appeals, the record is clear that Jenkins

voluntarily chose to plead guilty and understood the consequences of his plea. 

Jenkins has not overcome, with clear and convincing evidence, the presumption of

correctness which applies to these factual findings. 28 U.S.C. § 2254(e)(1). 

2. Jury Selection

Jenkins next claims that the jury was unconstitutionally selected. Petition at 7. 

To support his allegation, Jenkins states that the jurors were not impartial. See id. 

Rule 2(c) of the Rules Governing Section 2254 Proceedings sets forth the formal

procedure for filing a habeas petition before a district court. Rule 2(c) requires a

habeas petition to “specify all the grounds for relief which are available to the

petitioner and of which he has or by the exercise of reasonable diligence should have

 

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knowledge” and to “set forth in summary form the facts supporting each of the

grounds thus specified.” 28 U.S.C. § 2254, Rules Governing Section 2254

Proceedings, Rule 2(c). The state contends that Jenkins’ habeas petition is deficient

for failure to comply with Rule 2(c). Answer at 8. It is well established that mere

conclusory claims are insufficient to raise cognizable grounds for relief. See, e.g., Ross,

694 F.2d at 1011 (“Absent evidence in the record, a court cannot consider a habeas

petitioner’s bald assertions on a critical issue in his pro se petition (in state and federal

court), unsupported and unsupportable by anything else contained in the record, to

be of probative evidentiary value.”); see also Koch v. Puckett, 907 F.2d 524, 530 (5th

Cir. 1990). Jenkins’ state and federal petitions clearly lack reference to any specific

facts, or to the record, supporting these assertions. See Petitioner’s Memorandum of

Facts (“Jenkins’ Memorandum of Facts”) at 2-3. Jenkins’ claim that his jury was

unconstitutionally selected is wholly conclusory; therefore, Jenkins has failed to

present a cognizable ground for relief. 

3. Ineffective Assistance of Counsel

A criminal defendant has a constitutional right to the effective assistance of

counsel. See U.S. CONST. amends. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95

(1985); Strickland v. Washington, 466 U.S. 668, 688 (1984). An ineffective assistance

claim is governed by the standards set forth in Strickland. 466 U.S. at 668. To

establish ineffective assistance of counsel, a petitioner must show: (1) that counsel’s

 

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performance fell below an objective standard of reasonableness, and (2) that but for

counsel’s deficient performance, the result of the proceeding would have been

different. Id. at 687-88. 

When applying this standard, a court must indulge a strong presumption that

counsel’s conduct fell within the wide range of reasonable professional assistance or

sound trial strategy. Id. at 688-89. Judicial 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. “A conscious and informed decision on trial tactics and

strategy cannot be the basis for constitutionally ineffective assistance of counsel

unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” 

Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997) (quoting Garland v. Maggio,

717 F.2d 199, 206 (5th Cir. 1983)). 

In this case, Jenkins claims that his trial counsel was ineffective because he

failed to notify him of (or misrepresented) the terms of the plea agreement. Jenkins’

Memorandum of Facts at 3-5; Petition at 7. Jenkins’ ineffective assistance claims

have been reviewed on the merits under the Strickland standard and have been denied

by the state courts. As a result, federal habeas relief may be granted only if the state

court’s decision was contrary to or involved an unreasonable application of Strickland,

or if the state courts’ decision is based on an unreasonable determination of the facts

in light of the evidence presented. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Haynes

 

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v. Cain, 298 F.3d 375, 379-82 (5th Cir.), cert. denied, 537 U.S. 1072 (2002). Under

this standard, the state courts’ application of Strickland must be shown to be not only

erroneous, but also objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 5

(2003). 

As stated, Jenkins raised his ineffective assistance claims in his state habeas

application. The state trial court entered findings of fact rejecting Jenkins’ allegations

and concluding that he had failed to prove deficient performance on the part of

counsel or that the result of his trial would have been different but for counsel’s

alleged deficiencies. Ex parte Jenkins, Application No. 53,537-02, at 18-19. Jenkins’

counsel testified that he discussed with Jenkins the terms of the plea agreement and

that one term of the agreement required Jenkins to waive his right to appeal. Ex parte

Jenkins, Application No. 53,537-02, Writ Hearing (“Writ Hearing Transcript”), at 29-

30, 36. Based on this testimony, the state trial court made a credibility

determination to believe the testimony of Jenkins’ counsel. 

After reviewing Jenkins’ claims and giving appropriate deference to the state

courts’ adjudication of these claims, the court cannot say that the state court’s

application of the Strickland attorney-performance standard was erroneous or

objectively unreasonable. See Bell, 535 U.S. at 698-99. The state trial court found

the testimony of Jenkins’ counsel’s credible, and this credibility determination is

entitled to a presumption of correctness. See Carter v. Johnson, 131 F.3d 452, 464

 

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(5th Cir. 1997), cert. denied, 523 U.S. 1099 (1998); Carter v. Collins, 918 F.2d 1198,

1202 (5th Cir. 1990). Thus, on the basis of the state court’s findings, Jenkins cannot

satisfy his burden of showing, under Strickland, that his counsel was ineffective.

4. Denial of Right to Appeal

Jenkins claims that he was denied his right to appeal. Petition at 8. 

Specifically, Jenkins states that his defense attorney erroneously advised him to sign a

waiver of his appellate rights. Id. However, under the terms of the plea agreement,

Jenkins expressly waived his right to appeal. See Exhibit A, Defendant’s Waiver of

Right of Appeal (“Jenkins’ Waiver of Appeal”), attached to Answer. In the written plea

admonishments, Jenkins acknowledged his understanding that by accepting the plea

agreement, he gave up his right to appeal issues which were raised by written motion

and ruled on prior to the plea. See id. 

Where, as here, there is no evidence of unfairness in securing the plea

agreement, an express waiver of these rights is valid and enforceable. See Blanco v.

State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000). Accordingly, Jenkins cannot

establish prejudice arising from his counsel’s failure to inform him of the right if he

had none. See White v. Johnson, 180 F.3d 648, 653 (5th Cir. 1999). 

5. Coerced Confession

Jenkins also claims that his confession was coerced. Petition Ground 5. A

confession is involuntary and violates due process if there is coercion by government

 

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agents. Colorado v. Connelly, 479 U.S. 157, 164 (1986). A habeas petitioner has the

burden of proving facts that would lead the court to conclude that the confession was

not voluntary. Uresti v. Lynaugh, 821 F.2d 1099, 1103 (5th Cir. 1987). The

voluntariness of a confession is a mixed question of law and fact, and state court

factual findings upon which a finding of voluntariness is based are entitled to a

presumption of correctness. 28 U.S.C. § 2254(e); Soffar v. Cockrell, 300 F.3d 588,

592 (5th Cir. 2002) (en banc). 

As discussed above, Rule 2(c) requires a petitioner to plead specific facts in

support of his claims. 28 U.S.C. § 2254, Rules Governing Section 2254 Proceedings,

Rule 2(c). Conclusory allegations do not state a claim for federal habeas corpus relief

and are subject to summary dismissal. Ross, 694 F.2d at 1011; Koch, 907 F.2d at 530. 

In this case, Jenkins has not directed the court to specific facts to show that a

confession was taken and used against him at trial. See Petition at 9; Jenkins’

Memorandum of Facts at 7. Therefore, Jenkins has not met his burden and his claim

for relief on this ground must be denied.

III. CONCLUSION

For the reasons discussed above, Jenkins’ petition for a writ of habeas corpus is

DENIED. 

 

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SO ORDERED.

April 20, 2005.

 

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