IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MICHAEL CLAYTON WALTERS, )

Petitioner, )

)

v. ) No. 3:04-CV-1485-K 

) ECF

DOUGLAS DRETKE, Director, ) 

Texas Department of Criminal Justice, )

Correctional Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This case was referred to the United States Magistrate Judge pursuant to the provisions of

Title 28, United States Code, Section 636(b), as implemented by an order of the United States

District Court for the Northern District of Texas. The Findings, Conclusions, and

Recommendation of the United States Magistrate Judge follow:

FINDINGS AND CONCLUSIONS

I. NATURE OF THE CASE

Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 

II. PARTIES

Michael Clayton Walters (“Petitioner”) is an inmate in the Texas Department of Criminal

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

Director of the TDCJ-CID.

III. PROCEDURAL BACKGROUND

 

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Petitioner pleaded nolo contendere to committing the offense of deadly conduct on May

8, 2001. State v. Walters, No. F-0118841-TL (Crim. Dist. Ct. No. 5 of Dallas County, Tex., June

28, 2001). The trial court sentenced him to ten years in the custody of TDCJ-CID. Id. 

Petitioner filed a motion for a new trial which the trial court denied. Petitioner appealed, and the

state appellate court affirmed his conviction on July 11, 2002. Walters v. State, No. 08-01-

00419-CR, 2002 WL 1481293 (Tex. App.– El Paso 2002, pet ref’d) (unpublished). Petitioner

filed a petition for discretionary review which the Texas Court of Criminal Appeals refused on

December 11, 2002. Walters v. State, PDR No. 1424-02.

Petitioner filed a state application for a writ of habeas corpus on March 11, 2003. Ex

parte Walters, No. 56,027-01, at 2 (Tex. Crim. App. July 30, 2003). The Texas Court of

Criminal Appeals denied the application without written order. Id. at cover. The pending

petition for federal habeas corpus relief was filed on July 8, 2004. (Fed. Writ Pet. at 9.)

IV. STATEMENT OF FACTS

The following statement of facts is taken from the Court of Appeals opinion.

[Petitioner] had no prior convictions or trouble with the law. On the night

of May 8, 2001, he was drinking heavily, got into some type of verbal exchange

at a sports bar called the Box Car, left and returned with a friend and firearms. 

Upon returning to the Box Car, [Petitioner] and friend sprayed the bar with thirtyfive to forty rounds from their .22 pistol and AK 47. One of the rounds struck the

bar owner in the head, creasing his skull, causing extensive nerve damage in the

owner’s right forehead, top of his head, and right side. The owner had been

sitting at a table in front of a plate glass window when the deadly force was used.

Walters v. State, No. 08-01-00419-CR, slip op. at *2.

 

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V. EXHAUSTION OF STATE COURT REMEDIES

 Respondent states that Petitioner has exhausted his available state court remedies.

VI. PETITIONER’S CLAIMS

Petitioner makes the following claims:

1. His plea of nolo contendere was involuntarily made;

2. He was denied constitutionally effective assistance of counsel; and

3. The trial court deprived him of his constitutional rights to due process, equal

protection, and a fair trial by falsifying and substituting documents into the

official record to cover up the trial court’s failure to inform Petitioner of the

consequences of his plea, rendering his plea involuntary.

VII. STANDARD OF REVIEW

The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the

AEDPA), 28 U.S.C. § 2254 provide:

(d) An application for writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a state court shall not be granted with respect to any

claim that was adjudicated on the merits in 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 a

State court proceeding.

See 28 U.S.C. § 2254(d). Under the “contrary to” clause, a federal habeas court may grant the

writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the

United States Supreme Court on a question of law or if the state court decides a case differently

from the United States Supreme Court on a set of materially indistinguishable facts. Williams v.

 

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Taylor, 529 U.S. 362, 380-84 (2000). Under the “unreasonable application” clause, a federal

court may grant a writ of habeas corpus if the state court identifies the correct governing legal

principle from the United States Supreme Court’s decisions, but unreasonably applies that

principle to the facts of the prisoner’s case. Id.

This amendment applies to all federal habeas corpus petitions which are adjudicated on

the merits in state court after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). 

The petition in this case is subject to review under the AEDPA. Additionally, under 28 U.S.C. §

2254(d), a presumption of correctness must be accorded findings of fact made by a state habeas

court if supported by the record. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994) (citation

omitted). 

VIII. ANALYSIS

1. Involuntary Plea

Petitioner claims that his plea of no contest was involuntary because he believed that he

was entering a plea bargain that would result in probation and that he would, in fact, receive

probation or community service. Petitioner also claims that he was not informed about the

ramifications of the finding of a deadly weapon with respect to parole. Additionally, Petitioner

claims that counsel was ineffective for failing to investigate and to advise him of the

consequences of his plea. Further he claims that the trial court failed to admonish him regarding

the consequences of his plea. (Fed. Writ Pet. at 7.)

A petitioner who pleads guilty or nolo contendere 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). If a challenged guilty plea is knowing, voluntary, and intelligent, it will

 

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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 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. 1996) (per curiam). A

trial court is not required to inform a defendant regarding his parole eligibility. Le Blanc v.

Henderson, 478 F.2d 481, 483 (5th Cir. 1973). Moreover, 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, 37 F.3d at 210 (5th Cir. 1994); Ross v.

Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (per curiam).

Petitioner filed an affidavit in which he claims that he entered into a contract and paid

counsel money for the plea bargain. He also files affidavits of his mother and fiancé. The court

finds no convincing evidence that the state offered a plea bargain in this case. Similarly the

 

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record contains no evidence that counsel induced Petitioner to plead based upon a promise that

Petitioner would receive probation or community supervision. Petitioner’s conclusory claims are

not sufficient for granting the habeas corpus relief that he has requested.

The plea agreement that Petitioner signed on June 28, 2001, indicates the type of plea, to

wit: “Open plea.” Tr. at 05. Further, the “Agreed sentence” paragraph is stricken. The

agreement contains the “Court’s Admonition to Defendant” which provides that the punishment

range for the offense charged that he was facing by an open plea. Petitioner signed a judicial

confession which provides in pertinent part:

On the 8th day of May, 2001, in Dallas County, Texas, I did

unlawfully, then and there knowingly discharge a firearm, a deadly

weapon, at and in the direction of JACK SEBASTIAN, an individual,

And further, then and there knowingly discharge a firearm, a

deadly weapon, at and in the direction of a building, and defendant

was then and there reckless as to whether the building was then

occupied, in that defendant discharged a firearm, a deadly weapon,

into a building to-wit, a bar occupied by said JACK SEBASTIAN .

. . .

I further judicially confess that I committed the offense with

which I stand charged exactly as alleged in the indictment in this

cause.

Tr. at 7. The record clearly demonstrates that Petitioner knew that he was pleading openly,

without an agreement for a specific sentence. SF 3-5. The Court instructed Petitioner in open

court that he was charged by indictment with a third degree felony offense, deadly conduct, and

that the punishment range is two to ten years in the penitentiary, with an optional fine not to

exceed $10,000. SF 3. Petitioner told the trial court that he understood the punishment range for

the offense. Id. The trial court explained to Petitioner that he had signed a judicial confession

and that he was coming before the court on an open plea agreement. Id. The trial court then

 

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repeated that Petitioner was charged by indictment with the third degree felony offense of deadly

conduct and repeated the punishment range. Id. at 4. He then explained again to Petitioner that

he had signed a judicial confession and told him the ramifications of signing a judicial confession. 

Id. He again explained that Petitioner was coming before him on an open plea agreement which

meant that if the trial court assessed punishment within the previously described punishment

range, his right to appeal would be limited. Id. at 5.

Petitioner raised the claim that his plea was involuntary in his motion for new trial, on

appeal, and in his state habeas application. Ex parte Walters, No. 56,027-01, at 66. The state

appellate court held that the trial court appropriately exercised its discretion and implicitly

rejected Petitioner’s evidence on this issue. Walters v. State, 08-01-00419-CR, at 4. On state

habeas review, the trial court found that the appellate court had resolved this issue and concurred

with the court of appeals’ determination that the claim was without merit. Ex parte Walters, No.

56,027-01, at 66-67. This Court must accord a presumption of correctness to the state court

findings of fact and credibility determinations. Armstead, 37 F.3d at 206. Petitioner has failed to

overcome the presumption by clear and convincing evidence. Therefore, Petitioner’s first claim,

that his plea was involuntary should be denied. Additionally, the related claims that Petitioner

raised in connection with his first claim should be denied.

2. Ineffective Assistance of Counsel

To sustain a claim of ineffective assistance of counsel, a petitioner must show that: (1)

counsel’s performance was deficient and (2) the deficient performance prejudiced the defense so

gravely as to deprive the petitioner of a fair trial. Strickland v. Washington, 466 U.S. 668, 687

(1984). In Strickland, the Court stated that “[j]udicial scrutiny of counsel’s performance must be

 

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highly deferential” and that “every effort [must] be made to eliminate the distorting effects of

hindsight.” Id., 466 U.S. at 689. Courts, therefore, must “indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.

Even if counsel is proven deficient, a petitioner must prove prejudice. To prove such

prejudice, the petitioner must show “a reasonable probability that the result of the proceedings

would have been different but for counsel’s unprofessional errors.” Crane v. Johnson, 178 F.3d

309, 312 (5th Cir. 1999) (citing Strickland, 466 U.S. at 694). “[T]he mere possibility of a

different outcome is not sufficient to prevail on the prejudice prong.” Id. “Rather, the defendant

must demonstrate that the prejudice rendered sentencing ‘fundamentally unfair or unreliable.’” Id.

(quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).

In applying the Strickland standard to the facts of this case, Petitioner would have to show

that, but for counsel’s errors, he would not have pleaded nolo contendere and would have insisted

on proceeding to trial. Petitioner’s claims are entirely conclusory. He alleges that his trial

counsel failed to investigate or develop his defenses in this case, but he does not point to any

evidence illustrating that further investigation by his trial counsel would have changed the

outcome of this case. Similarly, Petitioner lacks convincing proof that he would have changed his

plea and gone to trial. Trial counsel filed an affidavit stating that he did not tell Walters or his

mother that he would receive a probated sentence if he pleaded guilty. Ex parte Walters, No.

56,027-01, at 40-41. The state habeas court concurred with the state appellate court in finding

that Petitioner did not demonstrate that his counsel’s performance was constitutionally ineffective

under Strickland. In this proceeding, Petitioner failed to show that the state courts unreasonably

 

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applied Strickland or made an unreasonable determination of the facts in light of the evidence. 

Therefore, Petitioner’s claim of ineffective assistance of counsel should be denied.

3. Denial of Constitutional Rights

Finally, Petitioner alleges that the trial court fabricated evidence and altered the judgment

in the case. However, Petitioner presents no evidence to support his allegations. The trial court

found on habeas corpus review that the indictment alleged Petitioner committed the offense with

a deadly weapon, that Petitioner admitted in his judicial confession that he committed the offense

with a firearm, deadly weapon, and that the judgment contains an affirmative finding of a deadly

weapon. Ex parte Walters, No. 56,027-01, at 67-68. The state court held that the finding of a

deadly weapon was based upon the evidence adduced at trial in support of the allegations in the

indictment and was properly entered. Id. It appears from a supplemental record that the trial

court made a de facto finding that a deadly weapon was used based upon the record and entered a

nunc pro tunc order to make the judgment comply with the sentence that was pronounced. Ex

parte Walters, No. 56,027-01, Supplemental at 9. If a trial court makes an error in recording a

judgment, the court can later correct the judgment through a nunc pro tunc order to make the

judgment comply with the sentence that was pronounced. See Ex parte George, 913 S.W. 2d 523,

526 (Tex. Crim. App. 1995).

 A federally issued writ of habeas corpus reaches only convictions obtained in violation of

a provision of the United States Constitution. Smith v. Phillips, 455 U.S. 209, 220 (1982). Before

a federal court may overturn a conviction that results from a state trial, a petitioner must establish,

not merely that the state’s action is undesirable, erroneous, or even universally condemned, but

that it violated some right guaranteed by the fourteenth amendment. Chandler v. Florida, 449

 

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U.S. 560, 570, 582-83 (1981). The relevant inquiry is whether the alleged error so infected the

state court proceedings with unfairness that the resulting conviction was a denial of due process. 

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).

Petitioner is not entitled to federal habeas relief based upon a trial court error unless he

can establish that the error resulted in actual prejudice. The state court’s finding is entitled to a

presumption of correctness, which the Petitioner has not rebutted with clear and convincing

evidence. In fact, he hasn’t provided any evidence at all of fabrication or record tampering. 

Petitioner’s claim of constitutional violations should be denied.

 

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IX. CONCLUSION

The state court’s decision to deny relief on all of Petitioner’s claims did not result 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 a decision that was

based on an unreasonable determination of the facts in light of the evidence presented in the state

court proceedings.

RECOMMENDATION

For the foregoing reasons, the petition should be denied with prejudice for failure to make

a substantial showing of the denial of a federal right. 

Signed, April 21, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

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

recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these findings, conclusions, and recommendation must serve and

file written objections 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, conclusions, 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 Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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