IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ALAN LYNN MCDONALD, #1039962, §

Petitioner, §

§

v. § 3:04-CV-2720-B

§

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 filed

on March 23, 2005, this cause has been referred to the United States Magistrate Judge. The

findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his

signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a petition for a writ of habeas corpus brought by a state inmate

pursuant to 28 U.S.C. § 2254.

Parties: Alan Lynn McDonald (“McDonald” or “Petitioner”) is presently incarcerated at

the Allred Unit of the Texas Department of Criminal Justice - Correctional Institutions Division

(“TDCJ-CID”) in Iowa Park, Texas. Respondent is the Director of TDCJ-CID. 

Statement of the Case: After having plead not guilty to the offense of murder as charged

in the indictment in Cause No. F-00-46077-T, the empaneling of a jury, and the presentation of

the prosecution’s first witness in the guilt-innocence phase of his trial, McDonald withdrew his

not guilty plea, entered an open plea of guilty, and elected to have the judge impose sentence. 

 

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Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).

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The court sentenced him to a term of sixty years imprisonment and made a finding that the

offense involved family violence.

Petitioner appealed his conviction to the Fifth Court of Appeals. After his appellate

counsel filed an Anders1

 brief and was granted leave to withdraw, McDonald filed his pro se

brief. The Fifth Court of Appeals at Dallas affirmed his conviction in an unpublished opinion

delivered on August 9, 2002. McDonald v. State, No. 05-01-0851-CR, 2002 WL 1822440

(Tex. App. - Dallas Aug. 9, 2002). His petition for discretionary review was refused on

January 29, 2003.

On April 16, 2004, McDonald filed an application for habeas relief pursuant to Tex. 

Code Crim. Proc. art. 11.07. Ex Parte McDonald, Appl. No. 60,605-01 at 2. On December

15, 2004, the Texas Court of Criminal Appeals denied his application without written order

based on the findings of the trial court without a hearing. Id. at cover.

Petitioner filed his § 2254 petition on December 27, 2004. On June 3, 3005, Respondent

filed an answer addressing McDonald’s claims on the merits, together with a copy of his state

court proceedings.

Findings and Conclusions: Petitioner contends that he was denied effective assistance of

counsel, that his entry of a guilty plea was involuntary, and that the trial court should have sua

sponte withdrawn his plea of guilty. Review of McDonald’s claims is governed by the

provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) which in pertinent

part provides that a federal court cannot grant relief under § 2254 unless the adjudication of the

state prisoner’s claim in the state court system “resulted in a decision that involved an

 

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unreasonable application of clearly established Federal law, as determined by the Supreme Court

of the United States; or resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceedings.” § 2254(d)(1) & (2). 

Further, findings of fact made by a State court are presumed to be correct absent clear and

convincing evidence rebutting the presumption. § 2254(e)(1).

In his first ground for relief, Petitioner contends that his attorney was ineffective because

he continually assured McDonald that the State’s facts warranted, at most, criminally negligent

homicide, thus causing him to reject plea bargains of 25 and 45 years. He further contends that

his attorney failed to investigate his case properly because he did not receive the final report

from the accident reconstruction expert until the first day of trial. Finally, he contends that his

attorney was ineffective for convincing him to plead guilty because he had no chance to win at

trial. An attorney=s conduct is governed by the standards set out in Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052 (1984). There is a strong presumption that an attorney=s conduct

falls within the broad range of reasonable professional assistance required under the Sixth

Amendment. Id. at 690, 104 S.Ct at 2065. To overcome this presumption a habeas petitioner

must establish that the attorney=s conduct was constitutionally deficient (cause) and that but for

such unprofessional errors the result probably would have been different (prejudice). Failure to

prove either prong of the two part test forecloses relief. Id at 694, 104 S.Ct. at 2068. 

In support of his arguments, Petitioner presents his own affidavit to the same effect and

the affidavit of Ms. Linda Ibarra. Ms. Ibarra, Petitioner’s sister, states in pertinent part that her

conversations with her brother indicated that he relied totally on the advice of his attorney, that

his attorney told her that it was not possible to speak with Petitioner on the day he plead guilty,

 

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Whether another reconstruction expert might have rendered a more favorable opinion

with respect to the circumstances under which the decedent was killed is a matter of sheer

speculation.

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that, on the day Petitioner plead guilty, his attorney informed her that he had received

unfavorable information from the State and the accident reconstruction specialist that

necessitated an immediate guilty plea on the part of the Petitioner and that, had she known

before he plead guilty that McDonald’s accident reconstruction expert had an unfavorable report,

she would have sought a second opinion. (Pet. for a Writ of Habeas Corpus by a Person in State

Custody Exh. 2).2

“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.”

Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983). The only one of his contentions that

McDonald has provided any evidence for is that his attorney did not allow him to communicate

with his sister on the day that he plead guilty before making his plea. However, assuming that

events on the second day of trial occurred exactly as stated by Petitioner and Ms. Ibarra, he has

failed to allege how this prejudiced him, much less rebutted the presumption of correctness

which attached to the state court’s opinion. 

In rejecting this claim the state habeas court recounted the strength of the evidence

against McDonald, observing that under the circumstances, had he persisted in his plea of guilty,

a life sentence was all but assured. See Appl. No. 60,605-01 at 46. McDonald is unable to

show that he is entitled to habeas relief on this ground.

In his second ground for relief, Petitioner asserts that his guilty plea was involuntary. He

 

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Relief on his allegation that his attorney failed to advise him that he could not plead

guilty while persisting in his claim that the homicide was an accident is foreclosed in light of the

court’s admonitions at the sentencing proceedings on May 2, 2001. (See Reporter’s Record v.6

at 29-31).

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contends that his attorney failed to advise him that he would be unable at the sentencing phase to

testify that the victim’s death was an accident, rather than murder.3

 The standard for the

voluntariness of a guilty plea is “whether the plea represents a voluntary and intelligent choice

among the alternative courses of action open to the defendant.” Parke v. Raley, 506 U.S. 20, 29,

113 S.Ct. 517, 523 (1992), quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164

(1970). “A plea will be upheld if it is shown by the record, or the evidence adduced at an

evidentiary hearing, that a defendant understood the charge and its consequences when he pled

guilty.” DeVille v. Whitley, 21 F.3d 654, 657 (5th Cir. 1994), citing Hobbs v. Blackburn, 752

F.2d 1079, 1081 (5th Cir.), cert. denied, 474 U.S. 838, 106 S.Ct. 117 (1985), and distinguishing

Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253 (1976). Here the record shows that it was

reasonable for the state court to find that Petitioner understood the charge to which he plead. 

Petitioner signed a judicial confession in which he admitted that he “intentionally and knowingly

caused the death of [the victim] ... exactly as alleged in the indictment.” (Clerk’s Record at 24). 

He stated at the time of his plea that his attorney had explained the legal significance of his

judicial confession and that he understood and wished to plead guilty. (Reporter’s Record v.5 at

7). Later, in response to a direct question from the prosecutor, McDonald admitted that he had

plead guilty to intentionally or knowingly causing the death of the victim. (Id. v. 6 at 36). His

claim that his guilty plea was involuntary was fully explored and addressed by the Fifth Court of

Appeals in the context of his direct appeal. No. 05-01-0851-CR, opinion at 1-2, see Appl. No. 

 

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60,605-01 at 42-43. In addressing this ground in the art. 11.07 application the trial court relied

on the prior appellate opinion in finding the claim to be without merit. Id. at 49.

Finally, Petitioner complains that the trial court should have sua sponte revoked his

guilty plea when he testified that he did not, in fact, intend to kill the victim. (See Reporter’s

Record v.6 at 30-31). Under North Carolina v. Alford, 400 U.S. 25, 38 n.10, 91 S.Ct. 160, 167

n.10, “when a defendant pleads guilty while proclaiming his innocence, the court commits

constitutional error by accepting the plea without ascertaining that there is a factual basis for it,

[b]ut, ‘absent statements inconsistent with guilt, state courts are not constitutionally required to

establish a factual basis for the plea of guilt.’” Orman v. Cain, 228 F.3d 616, 621 (5th Cir. 

2000), citing Banks v. McGougan, 717 F.2d 186, 188 (5th Cir.1983). Petitioner at no time

asserted that he was innocent of the crime or in any other way made statements which were

inconsistent with his guilt. (See, e.g., Reporter’s Record v.6 at 30-31, in which he states that he

did not intend to hurt the victim, but later states that he hit her with the truck). Moreover, the

testimony of the State’s first witness and other evidence before the court amply provided

sufficient basis establishing a factual basis for the guilty plea. Therefore Petitioner had not

shown that he is entitled to habeas relief on this ground. 

RECOMMENDATION:

Petitioner has failed to show that he is entitled to relief pursuant to 28 U.S.C. §2254. 

Specifically, he has failed to establish that the decision of the Texas Court of Criminal Appeals

constituted a decision which met the prerequisites of §2254(d)(1) or (2). It is therefore

recommended that the petition be denied and dismissed. 

A copy of this recommendation shall be transmitted to counsel for Petitioner and to

 

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counsel for Respondent. 

Signed this 20th day of July, 2005

____________________________________

Wm. F. Sanderson, Jr.

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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