1

 On June 1, 2006, Nathaniel Quarterman became Director of TDCJ-ID. The Court therefore substitutes him for the

original respondent Doug Dretke.

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

WERNER MICHAEL FISK, )

Petitioner, )

vs. ) No. 3:04-CV-2643-H (BH)

 ) ECF

NATHANIEL QUARTERMAN,1 Director, ) Referred to U.S. Magistrate Judge

Texas Department of Criminal )

Justice, Institutional 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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

A. Nature of the Case

Petitioner, an inmate currently incarcerated in the Texas Department of Criminal Justice -

Correctional Institutions Division (TDCJ-CID), filed the instant petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 to challenge his conviction for aggravated robbery in Cause No. F02-

01870-P. Respondent is Nathaniel Quarterman, Director of TDCJ-CID. 

 

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2

 “S.H. Tr.” denotes the primary state habeas records submitted with respect to petitioner’s conviction. Respondent also

provided supplemental state habeas records that the Court will identify as “S.H. Tr. Supp.” 

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B. Procedural and Factual History

On April 3, 2002, the State indicted petitioner for aggravated robbery with a deadly weapon.

S.H. Tr.2

 at 124 (indictment). On March 26, 2003, petitioner entered an open plea of guilty to the

charge and true to enhancement paragraphs listed in the indictment. Id. at 26 (judgment). The

court sentenced him to twenty-five years imprisonment. Id. 

Although petitioner did not appeal his conviction, (see Pet. Writ of Habeas Corpus (Pet.) at

2), he did file a state application for writ of habeas corpus and a purported amended state application

for writ of habeas corpus with the trial court on March 25, 2004, see S.H. Tr. at 2-10 (original state

writ), 33 (showing purported amended application). The original application raised four grounds

for relief: (1) involuntary plea because defense counsel told petitioner that he would receive

probation; (2) ineffective assistance of counsel in advising petitioner to plead guilty on erroneous

advice that he could and would receive probation; (3) denial of right to appeal; and (4) “medical

reports were not filed or submitted in writing within reasonable time to allow defense to review and

discuss.” See id. at 7-8 (original state application), 18-19 (mem. in support of state writ). The

purported amended state application contains the same four grounds for relief, but also attaches

additional pages related to grounds 1, 2, and 4, and adds a fifth ground of ineffective assistance of

counsel that is crossed out. See id. at 38 (showing identical first and second grounds); 39-42

(additional pages related to ground one); 62-68 (additional pages related to ground two); 78

(showing identical third and fourth grounds with new fifth ground crossed out); 79-81 (additional

pages related to ground four). 

 

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 The trial court does not explain how Claim E should be attributed to a deficiency of counsel.

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On September 8, 2004, the state trial court issued findings of fact and recommendation

regarding petitioner’s state habeas application. See S.H. Tr. Supp. at 2-7. The court characterized

petitioner’s claims as asserting that his attorney rendered ineffective assistance by (a) advising him

to plead guilty and informing him that the judge would grant him probation without adequately

advising him of the consequences of pleading guilty to the indictment with an enhancement; (b)

failing to communicate with him until the day he pled guilty when he advised him that he would

receive probation; (c) changing strategy several times; (d) communicating with his mother rather

than with petitioner; and (e) “[r]esults of the medical evaluations were not available to allow

[petitioner] to review them prior to the plea.”3

 Id. at 2-3. Despite that initial characterization, the

trial court also recognized that petitioner claimed he involuntarily pled guilty and waived his right

to appeal. See id. at 4. The court recommended that the state application be denied because it was

“totally without merit.” See id. at 6. 

In rejecting the involuntary plea claim, the court cited to Texas case law for the proposition

that the court had discretion to place him on deferred adjudication probation if the court deemed

such sentence appropriate. Id. at 4. The court also noted that, “[t]o the extent that [the] attorney

was wrong in predicting that the judge would give him probation . . . the prediction did not rise to

the level of a promise or guarantee,” and that “[e]rroneous predictions concerning the consequences

of a plea do not constitute ineffective assistance of counsel.” Id. 

On the issue of involuntary waiver of appeal, the court noted that petitioner provided no

facts or basis for the claim that he involuntarily waived his right to appeal, and that the record

 

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suggested part of his decision to waive his appellate rights was made in exchange for the prosecutor’s

decision to waive the State’s right to a jury trial. Id. 

With respect to claim related to unavailable results of medical evaluations, the court found

that an oral report of the petitioner’s competency to stand trial was timely provided to it prior to the

petitioner’s plea and sentencing, and that “the record is devoid of any suggestion that the reports

were not considered.” Id. at 5. The court also found that failure to timely file a written report did

not harm the petitioner because the petitioner did not point to additional facts in the written report

that would be considered material. Id. 

With respect to petitioner’s ineffective assistance claims, the court considered an affidavit

provided by petitioner’s attorney, Kevin Kurtz, and found it “credible and worthy of belief.” Id.

Kurtz averred that petitioner’s ability to assist him with the case “was limited initially because he had

not seen a psychologist or get [sic]on psychotropic medication”, but after treatment by Dr. William

Flynn, petitioner “responded to such a point that [the attorney] felt we could go forward with his

case.” Id. at 8. Kurtz further averred that he explained the pros and cons of an open plea, that

petitioner understood such explanation, and “knew that there was no guarantee that the Judge

would send him to T.D.C.J. rehab and then continue him on probation.” Id. at 8-9. Kurtz also

averred that that Dr. Flynn had advised him that petitioner was competent and understood what

was happening. Id. at 8. The court specifically adopted the factual statements in the affidavit as

findings of the Court. Id. at 5. The court found no ineffective assistance of counsel. Id. 

On November 17, 2004, the Court of Criminal Appeals denied petitioner’s state application

for writ of habeas corpus without written order on findings of the trial court without a hearing. Ex

parte Fisk, No. 59,049-01, slip op. at 1 (Tex. Crim. App. Nov. 17, 2004). 

 

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Petitioner, through retained counsel, filed the instant federal writ of habeas corpus and a

supporting memorandum on December 14, 2004. (Pet. at 1; Mem. Supp. at 1.) Respondent filed

an answer on February 18, 2005. (See Answer at 1.)

C. Substantive Issues

Petitioner raises four claims in the instant federal petition: (1) involuntary guilty plea induced

by erroneous information that petitioner should receive deferred adjudication probation and drug

treatment; (2) ineffective assistance of trial counsel stemming from the advice to plead guilty and

statement that he should receive probation and treatment; (3) denial of the right to appeal caused

by his attorney telling him he would receive deferred adjudication probation; and (4) medical reports

not filed in a timely manner. (Pet. at 7-8; Mem. Supp. at 5-12.)

D. Exhaustion

Petitioner raised each of these claims in his state writ. See S.H. Tr. at 7-8. Respondent concedes that petitioner has sufficiently exhausted his state remedies with respect to these claims,

except to the extent that a “constitutional complaint” may “be gleaned from” Claim 4. (Answer at

2.) With respect to Claim 4, respondent argues that petitioner has not alleged a constitutional

violation and therefore has not raised a cognizable claim for federal habeas review. (Id. at 7.) The

respondent further argues that if petitioner were to later raise a constitutional basis for his complaint,

it would be unexhausted because he did not assert a constitutional basis for the claim in his state

habeas petition. (Id.) 

A petitioner must fully exhaust state remedies before seeking federal habeas relief, unless

“there is an absence of available State corrective process; or . . . circumstances exist that render such

process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). To exhaust in

 

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accordance with § 2254, a petitioner must fairly present the factual and legal basis of any claim to

the highest available state court for review prior to raising it in federal court. See Deters v. Collins,

985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985); Carter

v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). In Texas, a prisoner must present his claim to the

Court of Criminal Appeals in a petition for discretionary review or an application for writ of habeas

corpus. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson, 762 F.2d at 432. 

In this case, petitioner’s pleadings on the issue of mental competency are materially the same

in both his state and federal petitions for habeas corpus. Compare S.H. Tr. at 8 with (Pet. at 8). The

Court of Criminal Appeals denied petitioner’s state writ and thus adjudicated the claims raised

therein on the merits. See Ex parte Fisk, No. 59,049-01, slip op. at 1 (Tex. Crim. App. Nov. 17,

2004). Petitioner has thus exhausted his state remedies with respect to Claim 4. 

II. APPLICABLE LAW

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions

for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997).

Because petitioner filed the instant petition after its effective date, the Act applies to his petition.

Title I of AEDPA substantially changed the way federal courts handle habeas corpus actions.

Under 28 U.S.C. § 2254(d), as amended by AEDPA, a state prisoner may not obtain relief 

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

 

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(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.

“In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term

of art that refers to whether a court’s disposition of the case was substantive, as opposed to procedural.” Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). In this case, the denial of petitioner’s

state writ constitutes an adjudication on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89

(Tex. Crim. App. 1997) (holding that a denial, rather than a dismissal, signifies an adjudication on

the merits). The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply. 

Section 2254(d)(1) concerns pure questions of law and mixed questions of law and fact.

Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A decision is contrary to clearly established federal law, within the meaning of § 2254(d)(1), “if the state court arrives at a conclusion opposite to

that reached by [the Supreme Court] on a question of law or if the state court decides a case

differently than [the] Court has on a set of materially indistinguishable facts.” Williams v. Taylor,

529 U.S. 362, 412-13 (2000). 

With respect to the “unreasonable application” standard, Williams instructs that a writ must

issue “if the state court identifies the correct governing legal principle from [the] Court’s decisions

but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413; accord Penry

v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies

Supreme Court precedent if it “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to

a new context where it should apply.” 529 U.S. at 407. “[A] federal habeas court making the ‘un-

 

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reasonable application’ inquiry should ask whether the state court’s application of clearly established

federal law was objectively unreasonable.” Id. at 409; accord Penry, 532 U.S. at 793.

 Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir.

2000). Under § 2254(d)(2), federal courts “give deference to the state court’s findings unless they

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

state court proceeding.’” Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The resolution

of factual issues by the state court is presumptively correct and will not be disturbed unless the state

prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 

With these AEDPA standards in mind, the Court proceeds to address petitioner’s various

claims. 

III. VOLUNTARINESS OF PLEA

Petitioner argues that his plea was involuntary because he believed he had an agreed sentence for deferred adjudication probation and drug treatment, also called substance abuse felony

punishment (“SAFP”). (Mem. Supp. at 6.) The trial court sentenced petitioner to twenty-five years

imprisonment instead of deferred adjudication probation. 

A. Legal Principles Related to Guilty Plea

A plea of guilty waives a number of constitutional rights. Boykin v. Alabama, 395 U.S. 238,

242-43 (1969); Joseph v. Butler, 838 F.2d 786, 789 (5th Cir. 1988). Thus, the Fourteenth Amendment Due Process Clause imposes certain requirements to ensure the validity of a guilty plea. Fischer

v. Wainwright, 584 F.2d 691, 692 (5th Cir. 1978) (citing Brady v. United States, 397 U.S. 742 (1970);

Boykin, 395 U.S. 238; Johnson v. Zerbst, 304 U.S. 458 (1938)). “Boykin requires that defendants have

a hearing prior to entry of the plea, at which there needs to be an affirmative showing that the

 

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4

 Fed. R. Crim. P. 11(c) “codifies” the Boykin admonishments. See Fed. R. Crim. P. 11(c) advisory committee’s note on

1974 amendments.

-9-

decision to plead guilty was voluntarily and intelligently made.” Matthew v. Johnson, 201 F.3d 353,

368 n.22 (5th Cir. 2000). In addition, “the voluntary and intelligent nature of the plea [must] be

apparent on the face of the record.” See Holloway v. Lynaugh, 838 F.2d 792, 793 (5th Cir. 1988).

Boykin also sets out “the contemporary standards for plea bargain admonishments.”4

 See United

States v. Barlow, 17 F.3d 85, 89 (5th Cir. 1994). 

A plea “is constitutionally valid only to the extent it is ‘voluntary’ and ‘intelligent.’” Bousley

v. United States, 523 U.S. 614, 618 (1998) (quoting Brady, 397 U.S. at 748). “The voluntariness of

a plea is determined by ‘considering all of the relevant circumstances surrounding it.’” Fischer v.

Wainwright, 584 F.2d 691, 693 (5th Cir. 1978) (quoting Brady, 397 U.S. at 749). Pleas are involuntary when induced by threats, improper promises, deception, or misrepresentation. See United

States v. Amaya, 111 F.3d 386, 389 (5th Cir. 1997). A plea qualifies as intelligent when the criminal

defendant enters it after receiving “‘real notice of the true nature of the charge against him, the first

and most universally recognized requirement of due process.’” Bousley, 523 U.S. at 618 (quoting

Smith v. O’Grady, 312 U.S. 329, 334 (1941)). “Before the 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.’” Taylor v. Whitley, 933 F.2d 325, 329 (5th Cir. 1991) (quoting Boykin, 395 U.S. at

244). “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.” James v. Cain, 56 F.3d 662, 666 (5th Cir.

1995) (citing Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976)). In determining whether a plea

 

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5

 The core concerns recognized by the Fifth Circuit Court of Appeals are addressed by the admonishments contained

in Article 26.13 of the Texas Code of Criminal Procedure. The Fifth Circuit has held that the admonishments under

Rule 11 of the Federal Rules of Criminal Procedure provide “prophylactic protection for the constitutional rights involved

in the entry of a guilty plea.” United States v. Gracia, 983 F.2d 625, 627 (5th Cir. 1993). The requirements of Rule 11

and Article 26.13 are substantially similar. Compare Fed. R. Crim. P. 11 with TEX. CODE CRIM. PROC. ANN. art. 26.13.

It therefore follows that the same “prophylactic protections” attach to the admonishments under Article 26.13 as under

Rule 11.

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is voluntary and intelligent, “the critical issue 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, 933 F.2d at 329.

A prisoner may not generally “collaterally attack a voluntary and intelligent” plea. Id. “A

federal court will uphold a guilty plea challenged in a habeas corpus proceeding if the plea was

knowing, voluntary and intelligent.” James, 56 F.3d at 666. A guilty plea “entered by one fully aware

of the direct consequences . . . must stand unless induced by threats (or promises to discontinue

improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps

by promises that are by their nature improper as having no proper relationship to the prosecutor’s

business (e.g. bribes).” See Brady, 397 U.S. at 755. “If a defendant understands the charges against

him, understands the consequences of a guilty plea, and voluntarily chooses to plead guilty, without

being coerced to do so, the guilty plea . . . will be upheld on federal review.” Frank v. Blackburn, 646

F.2d 873, 882 (5th Cir. 1980) (en banc), modified on other grounds, 646 F.2d 902 (5th Cir. 1981) (per

curiam). “When considering challenges to guilty plea proceedings, [the courts] have focused on

three core concerns: absence of coercion, the defendant’s understanding of the charges, and a

realistic understanding of the consequences of a guilty plea.”5

 United States v. Gracia, 983 F.2d 625,

627-28 (5th Cir. 1993). The consequences of a guilty plea means only that the defendant knows

 

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“the maximum prison term and fine for the offense charged.” Ables v. Scott, 73 F.3d 591, 592 n.2

(5th Cir. 1996) (internal quotations omitted).

Under these principles of law, the Court thus considers whether petitioner’s plea was

voluntarily and intelligently made.

B. Voluntariness of Guilty Plea

In this case, petitioner appeared before the trial judge and pled guilty to aggravated robbery

with a deadly weapon on March 26, 2003. S.H. Tr. at 26. He also pled true to the enhancement

paragraphs in the indictment. Id. 

Petitioner’s state writ raised the issue of the voluntariness of his plea, and petitioner argued

that petitioner subjectively believed that there was a specific agreement for a deferred adjudication

sentence. Id. at 7. He also argued that his guilty plea was involuntary because his trial counsel

advised him that he could receive deferred adjudication, which the petitioner argued was impossible

due to his previous record. See id. at 18, 38, 40-41. In rejecting this claim, the trial court specifically

addressed the impossibility argument and cited Texas state cases for the proposition that the courts

have the discretion and authority to defer adjudication when such sentence is deemed appropriate.

S.H. Tr. Supp. at 4. Petitioner now argues that the trial court failed to address the “crux” of his

involuntary plea argument, i.e., “that he believed there was an agreement that he would receive

deferred adjudication and SAFP.” (Mem. Supp. at 6.) 

By recommending that petitioner’s state application be denied in its entirety, the trial court

at least implicitly found that petitioner voluntarily pled guilty and understood that there was no

agreement for a deferred adjudication sentence. See S.H. Tr. Supp. at 4-6. The court specifically

acknowledged petitioner’s argument that his plea was involuntary while noting that the court had

 

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the discretion to sentence him to deferred adjudication if such sentence was deemed appropriate.

Id. at 4. As already mentioned, the court accepted an affidavit of counsel and found the attorney

credible. The attorney specifically averred that petitioner “knew that there was no guarantee” of

probation. Id. at 9. By accepting the factual statements in counsel’s affidavit, the trial court

implicitly rejected petitioner’s argument that he subjectively believed there was a specific agreement

for deferred adjudication probation. This Court presumes the credibility and other findings of fact

of the trial court to be correct, unless petitioner presents clear and convincing evidence to the

contrary. See 28 U.S.C. § 2254(e)(1); Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001)

(holding that “[t]he presumption of correctness not only applies to explicit findings of fact, but it also

applies to those unarticulated findings which are necessary to the state court’s conclusions of mixed

law and fact”). 

The record supports the court’s implicit finding that petitioner knowingly and voluntarily

entered a plea of guilty. On March 26, 2003, petitioner entered into a plea agreement. S.H. Tr. at

21-22. The plea agreement included a section entitled “Court’s Admonitions to Defendant”, which

informed petitioner that he was charged with the offense of enhanced aggravated robbery – a felony

offense that carried a sentence of twenty-five to ninety-nine years imprisonment and an optional fine

not to exceed $10,000. Id. at 22. In a section of the plea agreement titled “Defendant’s Statements

and Waivers”, petitioner admitted and judicially confessed to the crime of aggravated robbery as it

was alleged in the charging instrument, and further admitted that his plea and judicial confession

were “freely and voluntarily made, and not influenced by any consideration of fear, persuasion, or

delusive hope of pardon or parole.” Id. at 21. The waiver section also indicated that the petitioner

understood that he had a right to appeal, and that he “expressly, voluntarily, knowingly and intel-

 

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ligently” gave up and waived his right to any appeal. Id. Additionally, the plea agreement stated

that petitioner pled true to the second and third enhancement paragraphs contained in the indictment, and judicially confessed that he was the same person who was previously convicted of the

offenses alleged there. Id. 

The petitioner signed the section of the plea agreement titled “Signatures and Acknowledgements,” which stated that he had read and understood the foregoing admonitions and warnings

concerning his rights and plea, that they had been explained to him by his attorney, and that his

statements and waivers were knowingly, freely, and voluntarily made with full understanding of the

consequences. Id. at 21. 

Before the court accepted his plea, the court questioned petitioner under oath regarding the

consequences of his plea:

 The Court: Now, the effect of a finding of true to those allegations in the second and

third paragraphs of the indictment is that it increases the range of punishment to a minimum of 25 years to 99 years or life confinement in the Institutional Division of the Texas Department of Criminal Justice. Do you

understand that that is the range of punishment upon a finding of true to

those allegations?

Defendant: Yes, I do.

The Court: Now, Mr. Fisk, it appears from the documents filed with the court that you

intend to enter a plea of guilty to the indictment, the offense of aggravated

robbery, alleging the offense of aggravated robbery, and that you intend to

enter a plea of true to the allegations in the second and third paragraphs of

the indictment, alleging the prior felony convictions, and go what we call

open to the court on the issue of punishment. In other words, you do not have

a plea bargain agreement. You understand that if you plead guilty to this

indictment and plead true to these enhancement paragraphs in the indictment, that it will be up to me to decide your punishment somewhere within

the range provided by law. Do you understand that?

Defendant: Yes, ma’am, I do.

 

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The Court: Now, do you understand, and it’s written on here, that you’ll be asking for

what is called a deferred probation and be asking to be placed in the SAFPF

[sic] Special Needs Unit as a condition of that probation. You understand

that the court may or may not do that?

Defendant: Yes, ma’am.

The Court: Has anyone promised you I would do that?

Defendant: No. 

The Court: You understand that. . . I could find you guilty on your plea, if entered, to this

offense of aggravated robbery, and I could find you guilty on your plea, find

the two enhancement paragraphs to be true and assess your punishment

anywhere from 25 years to 99 years or life in the penitentiary? 

Defendant: Yes ma’am.

The Court: Has anyone promised you a particular sentence in the penitentiary?

Defendant: No.

The Court: You – again, you understand that would be entirely up to me, if that’s what

I determined was appropriate, – 

Defendant: Yes, ma’am.

The Court: – within the range of punishment provided by law, which I’ve explained to

you. . . .

S.H. Tr. at 57-58 (pages 12 and 13 of Vol. 1 of Rep.’s R.) (emphasis added). 

Petitioner’s signed plea agreement and statements in open court indicate that he understood

the consequences of his guilty plea, and that it was within the trial court’s discretion to determine

his sentence. Petitioner has not overcome the presumption of verity accorded solemn declarations

made in open court. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (holding that “[s]olemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory

allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the

 

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face of the record are wholly incredible”). Nor has the petitioner overcome the presumption accorded to official court documents. See Hobbs v. Blackburn, 752 F.2d 1079, 1081-1082 (5th Cir. 1985)

(official documents, including signed plea agreement, “are entitled to a presumption of regularity and

are accorded great evidentiary weight”). Although the petitioner argues that he subjectively believed he had a deal for deferred adjudication, such argument is unsupported by the record and

contradicts his statements in open court that he understood that there was no plea bargain and that

the judge had the discretion to sentence him within the range of punishment provided by the law.

See S.H. Tr. at 57-58. Such suggestion also contradicts his signed waivers and judicial confession

that he made his waivers “voluntarily, knowingly, and intelligently.” Id. at 21-22. Petitioner has presented no clear and convincing evidence to rebut the state court’s implicit finding that his plea was

entered knowingly and voluntarily. See 28 U.S.C. § 2254(e)(1). Unless petitioner’s specific claims

of ineffective assistance of counsel impacted his decision to plead guilty, this Court should find that

petitioner voluntarily pled guilty to charge against him. 

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner specifically alleges that his trial attorney rendered ineffective assistance by advising

him that he had met with the judge and prosecutor assigned to his case who had agreed to give him

deferred adjudication and SAFP. Petitioner claims that this erroneous advice induced him to plead

guilty and waive his trial rights. (Mem. Supp. at 7). 

Guilty pleas are “open to attack on the ground that counsel did not provide the defendant

with ‘reasonably competent advice.’” Cuyler v. Sullivan, 446 U.S. 335, 344 (1980) (quoting McMann

v. Richardson, 397 U.S. 759, 770-771 (1970)). “Counsel is needed so that the accused may know

precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so

 

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that he is treated fairly by the prosecution.” Argersinger v. Hamlin, 407 U.S. 25, 34 (1972). Once

a criminal defendant enters a knowing, intelligent, and voluntary guilty plea, however, all non-jurisdictional defects in the proceedings below are waived except for claims of ineffective assistance of

counsel relating to the voluntariness of the plea. United States v. Glinsey, 209 F.3d 386, 392 (5th Cir.

2000); Nelson v. Hargett, 989 F.2d 847, 850 (5th Cir. 1993); Smith v. Estelle, 711 F.2d 677, 682 (5th

Cir. 1983). 

When a criminal defendant has solemnly admitted in open court that he is in fact

guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to

the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not

within the standards set forth in McMann.

Tollett v. Henderson, 411 U.S. 258, 267 (1973). 

In this instance the alleged deficiencies of counsel raised by petitioner are specifically related

to the voluntariness of his plea, and thus survive any waiver under Glinsey. To successfully state a

claim of ineffective assistance of counsel under existing precedent of the United States Supreme

Court, petitioner must demonstrate (1) that counsel’s performance was deficient and (2) that the

deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

The Strickland test applies when a petitioner alleges he was denied effective assistance of counsel in

the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). “[I]n a guilty plea scenario,

a petitioner must prove not only that his attorney actually erred, but also that he would not have

pled guilty but for the error.” See Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994). 

A failure to establish either prong of the Strickland test requires a finding that counsel’s performance was constitutionally effective. See 466 U.S. at 696. The Court may address the prongs in

 

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any order. Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000). To determine whether counsel’s performance is constitutionally deficient, courts “indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable assistance.” Strickland, 466 U.S. at 689. Further, “[t]he

reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s

own statements or actions.” Id. at 691. 

When a prisoner challenges his plea based on ineffective assistance of counsel, the “prejudice” requirement “focuses on whether counsel’s constitutionally ineffective performance affected

the outcome of the plea process.” Hill, 474 U.S. at 58. To satisfy this requirement in the plea context, the prisoner “must show that there is a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.” Id. Reviewing courts must

consider the totality of the evidence before the finder of fact in assessing whether the result would

likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96.

In this case, the trial court secured an affidavit from trial counsel before considering the state

writ. See S.H. Tr. Supp. at 5, 8-9. The affidavit directly contradicts petitioner’s contention that his

attorney advised him to plead guilty based upon an agreement for deferred adjudication probation.

Counsel averred that, although petitioner had given a written statement confirming that he had

committed the crime, he continued to discuss proceeding to trial because the District Attorney

“indicated that was the way she was inclined.” Id. at 8. Counsel further averred that, on the day of

the trial,

[w]e met in chambers and the D.A. agreed to waive states [sic] right to a jury and

would not object to going open to the court on punishment. The Judge advised on

the record she would consider the entire range of punishment including a drug treatment program that incorporates a mental illness aspect of long term treatment. 

 

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Id. With respect to the advice he gave petitioner concerning the plea agreement, counsel averred

that he explained the pros and cons of an open plea and that petitioner understood the explanation

and further understood “that there was no guarantee the Judge would send him to T.D.C.J. rehab

and then continue him on probation.” Id. at 8-9. 

The court found that any prediction made by trial counsel as to what sentence petitioner

might receive was not a promise or guarantee, and therefore did not amount to ineffective assistance

of counsel. Id. at 4. As already discussed, furthermore, the state court found counsel “credible and

worthy of belief.” Id. at 5. Such credibility finding is presumed correct unless petitioner rebuts it

with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). 

Petitioner argues that there is rebuttal evidence suggesting that counsel informed him of a

specific agreement for deferred adjudication and drug treatment because the plea agreement he signed is “confusing and contradictory.” (Mem. Supp. at 11.) Although the plea agreement has both

types of plea checked, i.e., “open plea” and “plea bargain”, the agreement contains no other suggestion that there was any plea bargain for a set sentence. See S.H. Tr. at 21-22. The agreement

specifically states that the plea was open as to deferred adjudication and SAFP. Id. at 22. Conversely, the area used to outline a specifically agreed upon sentence was left blank. See id. Viewing

the entirety of the plea agreement supports the trial court’s finding that counsel properly informed

petitioner of his open plea and that counsel’s statements were credible and worthy of belief. As

previously set out, moreover, the trial court specifically informed petitioner that his plea was open

and what that meant. Petitioner has shown no clear and convincing evidence that overcomes the

presumption of correctness. See 28 U.S.C. § 2254(e)(1). This Court thus defers to the trial court’s

 

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credibility finding, and based upon the attorney’s affidavit, finds no deficiency of counsel which

rendered petitioner’s plea involuntary. 

In light of this finding and the findings in the prior section, the Court finds that petitioner

voluntarily and intelligently pled guilty to the charge against him. 

V. WAIVER OF RIGHT TO APPEAL

Petitioner argues that he would not have waived his right to appeal had he not believed that

he was entering an agreement for deferred adjudication and drug treatment. (Mem. Supp. at 12.)

Petitioner further argues that “all of the arguments and authorities in the previous points apply

equally here.” Id. 

 The right to an appeal is a statutory right, not a constitutional right. Abney v. United States,

431 U.S. 651, 656 (1977). A defendant may waive his statutory right to an appeal as part of a valid

plea agreement if the waiver is knowing and voluntary. United States v. Robinson, 187 F.3d 516, 517

(5th Cir.1999); United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992). 

In the instant case, the Court has found that petitioner voluntarily and knowingly pled guilty.

As part of that voluntary plea, petitioner waived his right to appeal. This claim entitles petitioner

to no federal habeas relief. The plea colloquy establishes that petitioner knew that he was not

guaranteed or promised deferred adjudication and drug treatment. 

VI. MENTAL COMPETENCY EVALUATION

Petitioner argues that the mental competency evaluation taken the day of his guilty plea was

not filed in time to allow petitioner and his trial counsel to review and refute the competency findings. (Mem. Supp. at 12.) Respondent argues that petitioner has failed to state a basis for federal

habeas relief because he does not state a constitutional basis for this claim. (Answer at 7.) 

 

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Petitioner indeed does not connect this claim to any violation of the Constitution or laws of

the United States. The claim is thus not cognizable under 28 U.S.C. § 2254. Federal habeas relief

cannot be had “absent the allegation by a [petitioner] that he or she has been deprived of some right

secured to him or her by the United States Constitution or the laws of the United States.” Orellana

v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995). The courts entertain federal petitions under § 2254 “only

on the ground” that the petitioner “is in custody in violation of the Constitution or laws or treaties

of the United States.” See 28 U.S.C. § 2254(a). Without an alleged violation of federal law or the

United States Constitution, this claim entitles petitioner to no federal habeas relief. 

When a party is represented by counsel, the Court does not liberally construe the pleadings.

In this case, however, although petitioner does not clearly state a constitutional violation, his claim

is reasonably construed as an alleged violation of the Fourteenth Amendment right to due process

in that he was not provided with a copy of his competency report so that he could refute the findings

contained therein. Were the Court to construe the claim in that manner, despite the failure to

affirmatively present it in that context, the claim would still entitle petitioner to no federal habeas

relief. 

Under the AEDPA, federal courts cannot grant relief unless the state court proceedings (1)

resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

established Supreme Court precedent 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. See 28

U.S.C. § 2254(d). Petitioner has pointed to no established Supreme Court precedent that requires

the state court to provide him with a copy of his mental competency examination before ruling on

the issue of competency. He has not shown that the denial of his state habeas application is contrary

 

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6

 To the extent petitioner seeks to raise a claim of ineffective assistance of counsel related to the untimely submission

of Dr. Pittman’s written report, the Court finds no prejudice to petitioner from any deficiency of counsel. In the absence

of prejudice, a claim of ineffective assistance of counsel entitles petitioner to no federal habeas relief. 

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to or an unreasonable application of clearly established Supreme Court precedent. He has also not

shown that the denial resulted in a decision based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding. In fact, the record reveals that the

State examiner, Dr. Pittman, filed both oral and written reports with the trial court that declared

petitioner competent to stand trial. See S.H. Tr. at 105-106 (written report), S.H. Tr. Supp. at 5

(findings of trial court recognizing oral report). Therefore, under the AEDPA standards, petitioner

is entitled to no habeas relief on the claim that he was not provided with a copy of the report

declaring him mentally competent prior to pleading guilty.6

VII. EVIDENTIARY HEARING

Upon review of the pleadings filed herein and the proceedings held in state court as reflected

in the state-court records, an evidentiary hearing appears unnecessary.

VIII. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the

Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. §

2254.

SIGNED this 19th day of May, 2007.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 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 copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

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

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. 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 Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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