1

The previous named respondent was Janie Cockrell who was succeeded by Douglas Dretke on August 1, 2003 as

Director of the Texas Department of Criminal Justice, Institutional Division. Under Rule 25(d)(1) of the Federal Rules of Civil

Procedure, Dretke is automatically substituted as a party.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

RONALD EDWARD JACKSON, §

§

Petitioner, §

§

v. § 2:03-CV-0074

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal §

Justice, Institutional Division, §

§

Respondent.1 §

REPORT AND RECOMMENDATION

TO DENY PETITION FOR A WRIT OF HABEAS CORPUS

Petitioner RONALD EDWARD JACKSON has filed with this Court a Petition for a Writ

of Habeas Corpus by a Person in State Custody challenging his conviction out of the 108TH

Judicial District Court of Potter County, Texas, for the felony offense of failure to comply with

the registration requirements for sex offenders. For the reasons hereinafter expressed, the United

States Magistrate Judge is of the opinion petitioner’s application for federal habeas corpus relief

should be DENIED.

I.

PROCEDURAL HISTORY

On November 15, 2001, in Cause No. 44,558-E, styled The State of Texas vs. Ronald

Edward Jackson, petitioner was indicted for violating the sex offenders duty to register statute. 

Ex parte Jackson, No. 54,632-01 at 25. Petitioner, pursuant to a plea agreement, pleaded guilty

 

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2

See Spotville v. Cain, 149 F.3d 374, 375 (5th Cir. 1998) (“a pro se prisoner’s habeas petition is filed, for purposes of

determining the applicability of the AEDPA, when he delivers the papers to prison authorities for mailing.”).

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and judgment was entered on January 9, 2002. Id. at 27. Petitioner was sentenced to 3 (three)

years imprisonment in the Texas Department of Criminal Justice, Institutional Division. Id. 

Petitioner did not directly appeal his conviction or sentence. On November 8, 2002,

petitioner filed a state application for a writ of habeas corpus challenging the instant conviction. 

Ex parte Jackson, No. 54,632-01 at 3. On February 12, 2003, the Texas Court of Criminal

Appeals denied petitioner’s application without written order. Id. at cover. On March 13, 2003,

the instant application for federal habeas relief was filed in this Court.2

II.

PETITIONER'S ALLEGATIONS

Petitioner appears to contend he is being held in violation of the Constitution and laws of

the United States for the following reasons:

1. Petitioner’s plea was coerced by his attorney;

2. Petitioner was denied effective assistance of counsel because counsel had no

knowledge of the sex offender registration statute and its history; and 

3. Petitioner was maliciously prosecuted.

Petitioner has taken offense to respondent’s recitation of petitioner’s claims stating that

respondent has incorrectly listed four claims instead of petitioner’s three allegations and has

erroneously reworded petitioner’s allegations. Petitioner has made it clear to the Court, in his

“Rebuttal to Respondent’s Answer” filed September 1, 2004, that he seeks to raise herein, the

exact three claims raised in his state habeas petition. See Petitioner’s Rebuttal to the

Respondent’s Answer at 3. Such are the claims listed above.

 

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Petitioner’s rebuttal also contains a discussion of petitioner’s attempt to amend his

petition. Petitioner filed a motion to amend his federal habeas application on May 5, 2004. Such

motion was unfiled the same date as deficient since petitioner had not submitted the proposed

amended petition. Petitioner has stated in objections filed with the Court on June 3, 2004, that

he resubmitted a motion to amend on May 12, 2004. A review of the docket in this case does not

show any such motion to amend was ever filed. Petitioner has not been prejudiced since the

claim he appears to want to assert in an amended petition is the same basic claim he presently

makes.

III.

EXHAUSTION OF STATE COURT REMEDIES

Respondent concedes petitioner has sufficiently exhausted his state court remedies with

regard to the issues raised in the instant habeas application, and does not move for dismissal for

failure to exhaust. It is, therefore, the opinion of the undersigned that petitioner’s habeas

application not be dismissed due to any failure to exhaust state court remedies, but instead the

petition should be determined on the merits. 

IV.

STANDARD OF REVIEW

This case was filed subsequent to the April 24, 1996 effective date of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA) and so the standards of review set forth in the

AEDPA apply to this case. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 2063, 138

L.Ed.2d 481 (1997); Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997). Consequently,

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

 

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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). 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 petitioner. 28 U.S.C. § 2254(e).

Petitioner has filed one (1) state habeas application relating to Cause No. 44,558-E. The

Texas Court of Criminal appeals denied Ex parte Jackson, App. No. 54,632-01 on February 12,

2003, without written order. The ruling of the Texas Court of Criminal Appeals on the grounds

presented constitute an adjudication of petitioner’s claims on the merits. Bledsue v. Johnson,

188 F.3d 250, 257 (5th Cir. 1999).

V.

MERITS

Federal habeas corpus will not lie unless an error was so gross or a trial so fundamentally

unfair that the petitioner's constitutional rights were violated. In determining whether an error

was so extreme or a trial so fundamentally unfair, this Court must review the putative error at

issue, looking at the totality of the circumstances surrounding the error for a violation of the

petitioner's constitutional rights. Based upon a review of the state court records the pleadings of

record with this Court, it is the opinion of the Magistrate Judge that petitioner has failed to show

he is being unlawfully detained in violation of the Constitution and laws of the United States.

As a preliminary matter, the undersigned notes that all of petitioner’s claims relate to his

 

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position that he was improperly subjected to the duty to register as a sex offender statute in

violation of the ex post facto clause. As articulated by respondent, the United States Supreme

Court, the Fifth Circuit Court of Appeals, and the Texas Court of Criminal Appeals have all

rejected similar constitutional challenges to the registration requirements for sex offenders. See

Respondent’ Answer at 9, citing Smith v. Doe, 538 U.S. 84, 95, 104-106 (2003) and Rodriguez v.

State, 93 S.W.3d 60, 78-79 (Tex.Crim.App. 2002). Respondent’s analysis of the law is accurate. 

Since petitioner’s claim that he is not subject to sex offender registration is without merit, further

analysis of his claims may very well be unnecessary.

A.

Coerced Plea

Petitioner has alleged that he pleaded guilty to the offense of failure to register as a sex

offender pursuant to advice of counsel when the statute didn’t apply to him. Petitioner contends

his guilty plea was thus coerced. 

Petitioner does not allege he did not understand the charges against him or the direct

consequences of his plea, rather, petitioner appears to argue trial counsel improperly advised him

to plea when the statute didn’t apply to him. With respect to guilty pleas, the "knowing"

requirement that a defendant understand "the consequences" of a guilty plea means only that the

defendant must know the maximum prison term and fine for the offense charged. Rupert v.

Johnson, 79 F.Supp.2d 680, 706 (W.D.Tex. 1999) citing United States v. Dees, 125 F.3d 261,

269 (5th Cir.1997), cert. denied, 522 U.S. 1152, 118 S.Ct. 1174, 140 L.Ed.2d 183 (1998). A

review of the record shows petitioner was admonished in open court of the consequences of his

plea. Ex parte Jackson, App. No. 54,632-01 at 28. Moreover, petitioner’s claim that the sex

offender registration statute does not apply to him is erroneous. In his answer to petitioner’s

 

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state habeas claim the State responded, 

In his instant Application for Writ of Habeas Corpus, Applicant’s three grounds

of error are based upon Applicant’s contention that in September of 2001 he was

no longer subject to the sex offender registration provisions of Arts. 62.04 and

62.10, Texas Code of Criminal Procedure. Applicant contends that after he was

discharged on July 10, 2000 in connection with his 1989 eleven year penitentiary

sentence for the offense of sexual assault, he was no longer required to register as

a sex offender and/or report a change of his address. Therefore, Applicant

contends that his conviction in Cause No. 44,558-E should be set aside.

In answer to the allegation in the instant Application for Writ of Habeas Corpus,

the State would show that Appellant’s contention is without merit. In 1997 Art.

62.11 was amendment (sic) to enlarged (sic) the class of persons required to

register to those convicted of a reportable offense on or after September 1, 1970. 

See Act of June 1, 1997, 75th Leg., R.S., ch. 668 § 11, 1997 Tex. Gen. Laws 2253,

2264. The applicability of the amendment was limited to those defendants who

were either confined in a penal institution, or were under the supervision and

control of a juvenile probation office, a community supervision and corrections

department, or the pardons and paroles division of the Texas Department of

Criminal Justice. Id.

Since Applicant had not discharged his 1989 sexual assault conviction at the time

Art. 62.11 was amended in 1997, Applicant’s duty to register under Art. 62.12 (a)

does not end until his death. Therefore, on September 19, 2001 Applicant was

under a duty to register as a sex offender and his failure to notify the Amarillo

Police Department of his change of address as alleged in the indictment in Cause

No. 44,558-E was a violation of Art. 62.10, Texas Code of Criminal Procedure.

Ex parte Jackson, App. No. 54,632-01 at 21-22. Petitioner’s claim that he was coerced by his

attorney into pleading guilty to violating a statute which was inapplicable to him is without merit

and should be DENIED.

B.

Effectiveness of Counsel

Petitioner’s next claims he received ineffective assistance of counsel because counsel

was not knowledgeable about the sex offender registration statute and its applicability to

petitioner, and coerced petitioner to pleading guilty. This is almost a restatement of the first

allegation.

 

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The proper standard for judging a petitioner's contention that he is entitled to relief on the

ground that his trial counsel rendered ineffective assistance is enunciated in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland

standard, a petitioner must show defense counsel's performance was deficient. This requires

showing that counsel made errors so serious that counsel was not functioning as the "counsel"

guaranteed the defendant by the Sixth Amendment to the United States Constitution. 

A petitioner must also show counsel’s deficient performance prejudiced the defense. To

establish this prong, petitioner must show counsel's errors were so serious as to deprive

petitioner of a fair trial. Specifically, petitioner must show “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different or that the errors were so serious as to deprive the petitioner of a fair trial with a reliable

result.” Id. at 694.

In order to amount to ineffective assistance of counsel, counsel’s performance must have

fallen below an objective standard of reasonableness as determined by the norms of the

profession. Counsel’s performance is reviewed from counsel’s perspective at the time of trial,

not from hindsight. Id. at 689. A reviewing court's scrutiny of trial counsel's performance is

highly deferential, with a strong presumption that counsel's performance falls within the wide

range of reasonable professional assistance. Id.

The burden of proof in a habeas corpus proceeding attacking the effectiveness of trial

counsel is upon the petitioner, who must demonstrate that ineffectiveness by a preponderance of

the evidence. Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir. 1992), cert. denied, 508 U.S. 978,

113 S.Ct. 2977 (1993).

To succeed on an ineffective assistance of counsel claim, petitioner must prove prejudice

 

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The Court may dispose of petitioner’s claim if he is unable to meet one of the two prongs of the Strickland standard.

Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir.) cert. denied sub nom, 513 U.S. 960, 115 S.Ct. 418,130 L.Ed.2d 333 (1994).

HAB54\R&R\JACKSON-RE.DNY:3 8

by a preponderance of the evidence, and show, that but for counsel’s errors, he would have

insisted in going to trial. Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. at 370.3

 In the instant case,

petitioner must show his counsel’s errors rendered his pleas unknowing and involuntary. As

discussed supra, with respect to guilty pleas, the "knowing" requirement that a defendant

understand "the consequences" of a guilty plea means only that the defendant must know the

maximum prison term and fine for the offense charged. Rupert v. Johnson, 79 F.Supp.2d 680,

706 (W.D.Tex. 1999) citing United States v. Dees, 125 F.3d 261, 269 (5th Cir.1997), cert.

denied, 522 U.S. 1152, 118 S.Ct. 1174, 140 L.Ed.2d 183 (1998). As referenced earlier, a review

of the record shows petitioner was admonished in open court of the consequences of his plea. 

The Texas Court of Criminal Appeals subsequently denied habeas relief. Ex parte Jackson, App.

No. 54, 632-01 at cover. Moreover, as discussed supra, petitioner is mistaken about the

applicability of the sex offender registration statute to him. Because the statute applies to

petitioner, it cannot be said counsel was ineffective for recommending petitioner plead guilty and

for not challenging the applicability of the statute. Petitioner in this regard, has failed to show

prejudice.

Since petitioner has not made the showing required by the AEDPA with respect to the

state court decision on this issue, and has not met his burden under Strickland, petitioner is not

entitled to federal habeas corpus relief. Petitioner’s ineffective assistance of counsel claim

should be denied.

C.

Malicious Prosecution

Petitioner next argues the State maliciously prosecuted him because it charged petitioner

 

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with failing to register when it knew petitioner’s duty to register had expired. Again, petitioner’s

claim is based upon his contention that the statute at issue did not apply to him. For the reasons

set forth previously, the undersigned finds petitioner’s claim to be without merit. Petitioner’s

contention that the State maliciously prosecuted him is without merit.

VI.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United

States District Judge that the petition for a writ of habeas corpus filed by petitioner RONALD

EDWARD JACKSON be DENIED.

VII.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and

Recommendation to petitioner and to counsel of record for respondent by the most efficient

means available.

IT IS SO RECOMMENDED. 

ENTERED this 10th day of May 2005.

/s/ Clinton E. Averitte 

CLINTON E. AVERITTE 

UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the file mark on the first

page of this recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the

 

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parties are allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any

objections must be filed on or before the fourteenth (14th) day after this recommendation is

filed. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as

authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern

District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the

Report and Recommendation.” Objecting parties shall file the written objections with the United

States District Clerk and serve a copy of such objections on all other parties. A party’s failure to

timely file written objections to the proposed findings, conclusions, and recommendation

contained in this report shall bar an aggrieved party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and

recommendation set forth by the Magistrate Judge in this report and accepted by the district

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996);

Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

 

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