HAB54\R&R\04CV153-SHIELDS.AH:1/3

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

JIM DWIGHT SHIELDS, §

§

Petitioner, §

§

v. § 2:04-CV-0153

§

NATHANIEL QUARTERMAN, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION TO DENY PETITION FOR

A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

Petitioner JIM DWIGHT SHIELDS, through counsel, has filed a Petition for a Writ of

Habeas Corpus by a Person in State Custody challenging his November 7, 2001 conviction for

indecency with a child. Petitioner SHIELDS alleges he was denied the effective assistance of

counsel as to his plea decision. 

One of the most important duties of an attorney representing a criminal defendant is

advising the defendant about whether he should plead guilty. An attorney fulfills this

obligation by informing the defendant about the relevant circumstances and the likely

consequences of a plea.

United States v. Herrera, 412 F.3d 577, 580 (5th Cir. 2005)(internal footnotes omitted). In this case,

the state court determined petitioner SHIELDS was not provided with effective representation by

his trial counsel. Notwithstanding this finding of a denial of the effective assistance of counsel,

petitioner was not granted relief because he did not show he had been prejudiced by the denial.

After review of the pleadings on file as well as the arguments presented by counsel in open court,

 

 

FILED

SEPTEMBER 13, 2007

 

 

 

 

 

 KAREN S. MITCHELL

CLERK, U.S. DISTRICT COURT 
1

SHIELDS was charged with intentionally and knowingly engaging in sexual contact with his daughter, who was younger

than 17, by touching her breast with the intent to arouse and gratify his sexual desire. (State Habeas R. at 94.) TEX. PENAL CODE

ANN. §§ 21.01(2), 21.11(a)(1) (Vernon 2003).

2

The actual offer was for petitioner to plead guilty in three separate cases in exchange for a deferred adjudication sentence

of ten years probation on all three cases. 

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it is the determination of the undersigned that petitioner has not shown himself to have been

prejudiced, nor has he shown the state court denial of relief to be unreasonable. Therefore,

petitioner is not entitled to federal habeas corpus relief.

I.

PROCEDURAL HISTORY

Respondent NATHANIEL QUARTERMAN has lawful and valid custody of SHIELDS

pursuant to a judgment and sentence out of the 251st District Court of Potter County, Texas, in

Cause No. 41,865-C, for the felony offense of indecency with a child.1

 Prior to trial, the State

offered petitioner SHIELDS a plea bargain for 10 years’ deferred-adjudication probation in

exchange for a guilty plea.2

 SHIELDS rejected the plea offer. (Supp. Tr. on Habeas Corpus at

42.43, 176-77.) After pleading not guilty and going to trial, a jury found him guilty and assessed

his punishment at 15 years confinement. (State Habeas R. at 1180.) The Seventh District Court of

Appeals affirmed the trial court’s judgment. SHIELDS did not file a petition for discretionary

review with the Texas Court of Criminal Appeals. Shields v. State, No. 7-01-468-CR, 2002 WL

31306534 (Tex. App.—Amarillo Oct. 15, 2002, no pet.) (not designated for publication). 

SHIELDS filed a state application for habeas corpus relief, arguing his not-guilty plea was

involuntary because of trial counsel’s ineffectiveness. (State Habeas R. at 9.) The trial court held

an evidentiary hearing and entered findings of fact and conclusions of law. Even though the trial

court found trial counsel’s performance deficient, petitioner was not granted relief. The trial court
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found petitioner had not been prejudiced as a result of the ineffective assistance of trial counsel.

Specifically, the state habeas court found:

In the case at bar, the first prong of the Strickland test has been met because trial

counsel’s performance was deficient, in that counsel made such serious errors that

he was not functioning effectively as counsel. Specifically, trial counsel: (a) refused

to read and review documents, pleadings, depositions, notes and other papers

relevant to [SHIELDS’] case that were made available to him by [SHIELDS’]

parents; (b) failed to independently investigate the circumstances surrounding

[SHIELDS’ daughter’s] prior allegations of sexual abuse involving [SHIELDS]; (c)

failed to independently investigate the circumstances surrounding the extraneous

offenses involving third-party minors which might be deemed relevant and material

to [SHIELDS’] case; (d) failed to inform [SHIELDS] that trial counsel had refused

to read and review documents, pleadings, depositions, notes and other papers

relevant to [SHIELDS’] case that were made available to him by [SHIELDS’]

parents; (e) failed to provide [SHIELDS] with trial counsel’s independent

professional judgment regarding the merits of the State’s case, the benefits and

disadvantages of either proceeding to trial or accepting the plea bargain offered by

the prosecution prior to trial; (f) failed to file a timely request for notice of the State’s

intent to introduce in the case in chief evidence of extraneous offenses pursuant to

Section 3 of Article 38.37 of the Texas Code of Criminal Procedure.

. . . . In the case at bar, the second prong of the Strickland test has not been

met because the deficient performance by [SHIELDS’] trial counsel, set forth

hereinabove, did not prejudice the defense to such a degree that [SHIELDS] was

deprived of a fair trial. Specifically, [SHIELDS] has failed [to] show there is a

reasonable probability that, but for counsel’s errors, [SHIELDS] would not have

entered his plea of “not guilty” and would have insisted on entering a plea of

“guilty”. To the contrary, the evidence establishes that [SHIELDS], with full

personal knowledge of the true facts, at all times prior to, during and after trial

persisted in his claim of not only “not guilty”, but actual innocence. It is not,

therefore, reasonable to believe that [SHIELDS] would have changed his plea if trial

counsel had [not been deficient in the manner listed above].

(State Habeas R. at 89-90.) The Texas Court of Criminal Appeals denied SHIELDS’ application

without written order on the findings of the trial court. Ex parte Shields, No. 57,334-01 (Tex. Crim.

App. Mar. 3, 2004) (not designated for publication).
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II.

PETITIONER'S ALLEGATION

SHIELDS’ sole ground for relief in this case is that, as a result of trial counsel’s deficient

performance, his not-guilty plea was not knowingly or intelligently made, rendering his plea

involuntary.

III.

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

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. Williams, 529 U.S. at 407-08; 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
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by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal

Appeals denies relief in a state habeas corpus application without written order, it is an adjudication

on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.

Crim. App. 1997).

IV.

 INVOLUNTARY PLEA AND COUNSEL’S INEFFECTIVENESS

The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel.

U.S. CONST. amend. VI. A claim of ineffective assistance of counsel is measured under a twopronged standard by which a petitioner must show (1) that counsel’s performance was deficient in

that the errors made were so serious that counsel was not functioning as the counsel guaranteed by

the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that,

but for counsel’s deficient performance, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). At oral argument

the parties agreed there is no United States Supreme Court authority addressing a claim such as the

one presented here, i.e., a case where a defendant pled not guilty, and asserts a claim of ineffective

assistance relating to the plea decision. While Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88

L.Ed.2d 203 (1985) does address ineffective assistance of counsel claims arising during the plea

process, that case concerned a claim that a plea of guilty was involuntary as a result of ineffective

assistance of counsel, rather than a plea of not guilty.

The issues now before this Court are:

1) What constitutes prejudice in a case where the claim of ineffective assistance of

counsel relates to the decision to plead not guilty?

2) Has petitioner shown he was prejudiced by the ineffectiveness of his trial counsel?
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3) If petitioner has shown this Court he was prejudiced, can he show the state court

decision denying relief was unreasonable, and overcome the AEDPA bar to federal

relief?

Petitioner’s contention is that he was prejudiced as a result of the ineffective assistance of

counsel during his state criminal proceedings because his plea of not guilty was not knowingly

entered. Specifically, petitioner argues he was prejudiced by counsel’s ineffectiveness because he

was not able to make an intelligent and informed decision whether to plead guilty or not guilty.

Petitioner contends no further showing is necessary.

Respondent argues petitioner must show that “but for” the ineffective assistance of counsel

there is a reasonable probability the result of the proceeding would have been different. Respondent

contends petitioner must show that “but for” counsel’s ineffectiveness, there is reasonable

probability he would have entered a plea of guilty and accepted the plea bargain instead of pleading

not guilty and going to trial. 

Respondent further contends, that in any event, the application of the “but for” test by the

state habeas court and the determination on state habeas review, that petitioner was not prejudiced

because he had not shown there was a reasonable probability he would have abandoned his claim

of innocence and entered a plea of guilty, has not been shown to have been an unreasonable

determination barring federal relief under the AEDPA.

As set forth above, there is no Supreme Court authority addressing the particular type claims

petitioner presents in this case. Further, there appears to be very little other federal authority

addressing this particular type claim. There are, however, a number of federal courts who have

addressed similar claims.

In United States v. Day, 969 F.2d 39 (3rd Circ. 1992), the court addressed a claim of
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ineffective assistance of counsel regarding a defendant’s decision not to accept a plea offer.

Although the court remanded the case to the district court for further factual development, the

appeals court held the defendant’s motion to vacate raised a ground of relief based upon the

ineffective assistance of counsel due to counsel’s failure to advise the defendant of the impact of

prior convictions on his potential sentence, depriving him of the effective assistance of counsel in

deciding whether to accept a plea offer. The Day court cited Strickland v. Washington, supra,

holding that in order for a defendant to gain relief he must not only show ineffective assistance, but

must also show a reasonable probability that “but for” the ineffective assistance the result would

have been different. The court noted defendant Day claimed if he had been told of his true sentence

exposure, he would have accepted the government’s plea bargain offer for a five year sentence rather

than going to trial where he received an approximately twenty-two (22) year sentence. Even though

the case was remanded for factual development regarding the specific advice petitioner received

from his counsel, Day, at page 45, does appear to support the argument that in a case involving

ineffective assistance of counsel in this type situation, the one issue which must be resolved is

whether the defendant alleged sufficient prejudice, that is, whether Day showed he would have

accepted the alleged plea offer and whether the district court would have approved it (emphasis

supplied). The Day court also held it was not reaching the issue of whether a defendant’s selfserving, post-conviction testimony that he would accept the plea offer would be sufficient, by itself,

to establish a reasonable probability that he would have accepted the plea agreement. The court

noted that a defendant did not have to prove with absolute certainty he would have pleaded guilty,

but would only have to show a “reasonable probability” such would have occurred. 

In United States v. Faubion, 19 F.3d 226 (5th Cir. 1994), the court held, with respect to an
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allegation of ineffective assistance of counsel due to counsel advising the defendant to go to trial

rather than pleading guilty, that no relief would be warranted since the defendant had failed to show

harm. Specifically, the court noted the defendant had failed to show she would have received a

guideline adjustment for acceptance of responsibility and, consequently, the defendant could not

show that, but for counsel’s errors, the result of the proceeding would have been different.

In United States v. Herrera, 412 F.3d 557 (5th Cir. 2005), the court held, for a defendant to

obtain relief in a case involving a claim of ineffective assistance of counsel due to an allegation

counsel was ineffective because he incorrectly advised him to reject the government’s plea offer,

he must not only establish ineffective assistance of counsel, but must also prove he was prejudiced

by his attorney’s substandard performance. The Herrera court held that to prove prejudice the

defendant must show a reasonable probability the result of the proceeding would have been

different.

Prejudice

Addressing first the question of whether petitioner SHIELDS has shown the ineffective

assistance of counsel prejudiced him to the extent he is entitled to relief, the Court notes that,

generally speaking, any criminal defendant not provided with effective assistance of counsel is

prejudiced at least to the degree that they did not receive the representation guaranteed them by the

Sixth Amendment to the United States Constitution. That type prejudice, however, is simply the

prejudice inherently suffered by both the defendant and the judicial system when the system does

not operate as it should. The justice system in the United States is based upon the theory our

adversarial system will achieve justice when both parties to a lawsuit, whether criminal or civil, are

effectively represented. That being said, when a party is not effectively represented by counsel,
HAB54\R&R\04CV153-SHIELDS.AH:1/3 Page 9 of 12

courts have been reluctant to find prejudice per se. Unless ineffective assistance of counsel occurs

in one of those few situations where prejudice is presumed, such as a complete denial of counsel,

or failure of counsel to appeal when instructed to do so by his client, specific prejudice must be

shown. The facts of this case do not appear to be one of those situations where prejudice is

established per se and, therefore, is presumed. Petitioner has not provided any authority, much less

Supreme Court authority, holding ineffective assistance of counsel was determined to be per se

prejudicial in a case where a defendant’s not guilty plea was not intelligently or knowingly entered.

Consequently, it is the opinion and finding of the undersigned that a habeas petitioner seeking relief

as a result of the ineffective assistance of counsel in failing to properly advise his client as to the

benefits of accepting a plea bargain offer must show more than the fact that counsel was ineffective.

Such a petitioner, to establish prejudice, must show there is a reasonable probability the result of the

proceeding would have been different, that is, petitioner must show there is a reasonable probability

he would have abandoned his not guilty plea and entered a plea of guilty to the charges. In this case,

petitioner SHIELDS has failed to show such a reasonable probability. Petitioner, during the state

habeas proceedings, testified he would have liked to have been fully informed by counsel before

making a decision and would have wanted to make an informed decision. Petitioner gave no

indication he would have admitted guilt and accepted the plea bargain much less showing a

“reasonable probability” he would have entered a plea of guilty in order to receive the ten-year

deferred adjudication probation.

Further, even if the analysis outlined above is wrong and even if petitioner SHIELDS is

correct in his contention that the ineffective assistance of counsel deprived him of the right to make

an informed decision whether to plead guilty or not guilty and such deprivation constitutes a
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prejudice without a further showing of a reasonable probability that he would have in fact pleaded

guilty and accepted the plea bargain being required, SHIELDS’ claim was reviewed and rejected

during state habeas collateral review proceedings. Thus, federal habeas court relief cannot be

granted unless the state court’s rejection of the claim involved an unreasonable application of clearly

established federal law or involved an unreasonable determination of the facts in light of the

evidence presented in state court. 28 U.S.C. § 2254(d).

As previously noted, the state habeas court held a hearing on SHIELDS’ claim and

concluded that because SHIELDS consistently maintained his innocence of the offense, he was not

prejudiced by counsel’s deficient performance in failing to adequately advise him regarding the

benefits of accepting the plea-bargain offer. (Supp. Tr. on Habeas Corpus at 63-64; State Habeas

R. at 89-90.) The Court of Criminal Appeals adopted these findings in denying SHIELDS’

application. This rejection of SHIELDS’ claim deserves the deference afforded state courts, which

SHIELDS has not rebutted with clear and convincing evidence. 28 U.S.C. § 2254(d)(2), (e)(1);

Jackson v. Johnson, 150 F.3d 520, 523-24 (5th Cir. 1998), cert. denied, 526 U.S. 1041 (1999); Green

v. Johnson, 46 F. Supp. 2d 614, 616 (N.D. Tex. 1999). 

In finding the state habeas court determination was not unreasonable, the undersigned has

also considered some of the lower federal court holdings warning that relief on a claim that a notguilty plea was involuntary is an attempt to take a chance on a not-guilty plea and a trial, but gain

security on sentencing if convicted:

[Petitioner’s] claim is a quintessential example of attempting to have his cake

and eat it too. A principal reason for entering into a plea bargain is to avoid the

uncertain outcome of a trial.....Having already put the State to its burden of proof by

pursuing an acquittal, [Petitioner] now seeks the best of all worlds: the benefit of the

proffered plea bargain (a limit to his sentence exposure) without the burden of such

a bargain (the certainty of being convicted)..... Human nature being what it is, if
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habeas relief were freely granted in such circumstances, no rational defendant would

ever accept a plea bargain before trial. Instead, he would try to obtain an acquittal

at trial and, if unsuccessful, retroactively seek—through habeas relief—the benefit

of any plea bargain previously offered by the prosecution. Because of the “heads I

win, tails you lose” quality of such a habeas claim, courts have been chary of

granting relief in these circumstances.

Green, 46 F. Supp. 2d at 622-23 (citations and footnote omitted); cf. Bradshaw v. Stumpf, 545 U.S.

175, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005). As found by the state habeas courts, the fact that

SHIELDS consistently maintained his innocence and produced no evidence to support a finding that

there was a reasonable probability the result of the proceeding would have been different, i.e., that

he would have accepted the plea offer and pled guilty, is fatal to SHIELDS’ claim. (State Habeas

R. at 89.) Consequently, it cannot be said that the state habeas courts unreasonably applied clearly

established federal law in holding that SHIELDS was not prejudiced by counsel’s deficient

performance. See United States v. Day, 969 F.2d 39, 46 n.9 (3d

 Cir. 1992) (holding courts should

be wary of claims that not-guilty plea was involuntary because counsel failed to fully discuss pros

and cons of offered plea bargain). 

V.

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 by a Person in State Custody filed by

Petitioner JIM DWIGHT SHIELDS be DENIED.

VI.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Report and 
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Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 13th day of September 2007.

 ______________________________________

 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 “entered” date directly above the

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(B), or transmission by

electronic means, Fed. R. Civ. P. 5(b)(2)(D). Therefore, objections are due on or before September

24, 2007.

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).