IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ELIGAH DARNELL, JR., §

Petitioner, §

§

v. § Civil Action No. 4:05-CV-0802-Y

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND NOTICE AND ORDER

This cause of action was referred to the United States Magistrate Judge pursuant to the

provisions of 28 U.S.C. § 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 are as follows:

I. FINDINGS AND CONCLUSIONS

A. NATURE OF THE CASE

This is a petition for writ of habeas corpus by a state prisoner pursuant to 28 U.S.C. § 2254.

B. PARTIES

Petitioner Eligah Darnell, Jr., TDCJ # 1326857, was a state prisoner in custody of the Texas

Department of Criminal Justice, Correctional Institutions Division, at the time this petition was filed.

Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice,

Correctional Institutions Division (TDCJ).

C. PROCEDURAL HISTORY

On March 29, 1989, following a probation revocation proceeding, Darnell was sentenced to

 

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“3tate Habeas R.” refers to the court record of Darnell’s state habeas Application No.

40,661-03.

2

“5State Habeas R.” refers to the court record of Darnell’s state habeas Application No.

40,661-05.

3

“1State Habeas R.” refers to the court record of Darnell’s state habeas Application No.

40,661-01.

4

“18State Habeas R.” refers to the court record of Darnell’s state habeas Application No.

40,661-18.

2

nine years’ confinement for his conviction for burglary of a habitation in Criminal District Court

Two of Tarrant County, Texas, Case No. 0340533D. (3State Habeas R. at 58.)1 On the same date,

the trial court adjudicated Darnell’s guilt for unlawful possession of a prohibited weapon in Case

No. 0333956W and sentenced him to nine years’ confinement. (5State Habeas R. at 45.)2 Also, on

the same date, pursuant to a plea bargain agreement, Darnell pled guilty to indecency with a child

by contact in Case No. 0364461W and was sentenced to nine years’ confinement. (1State Habeas

R. at 18.)3 Via telephonic communication with TDCJ, Darnell discharged his sentences for these

offenses in 2004. Following his release, because of his 1989 conviction for indecency with a child,

Darnell was required to register as a sex offender for life under former article 62.12(a) of the Texas

Code of Criminal Procedure. (18State Habeas R. at 30.)4

Thereafter, on May 28, 2004, Darnell was charged by indictment with failing to comply with

the sex offender registration requirements. (Id.) The indictment also included a repeat offender

notice alleging Darnell had been previously convicted of the felony offense of burglary of a

habitation in Case No. 0340533D. (Id.) On September 6, 2005, pursuant to a plea agreement,

Darnell pled guilty to the offense in the Criminal District Court Number Two of Tarrant County,

Texas, Case No. 0923995D, and was sentenced to two years’ confinement. (Id. at 31-37.) Darnell

 

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did not directly appeal his conviction, and, instead, raised one or more of the claims presented herein

in a state habeas application, which was denied without written order by the Texas Court of Criminal

Appeals on November 30, 2005. Ex parte Darnell, Application No. 40,661-18. Darnell filed this

petition on December 13, 2005. Via telephonic communication with TDCJ, Darnell apparently

discharged his two-year sentence on March 2, 2006, and is no longer in custody of TDCJ.

D. ISSUES

Darnell raises the following claims:

(1) He was denied effective assistance of counsel;

(2) He is actually and factually innocent of the offense;

(3) His conviction was obtained in violation of various constitutional rights; and

(4) His sentence is illegal. (Petition at 7-8; Pet’r Motion to Amend; Pet’r Supp.

Pleading.)

E. RULE 5 STATEMENT

Dretke asserts that Darnell has failed to exhaust his state remedies on his ineffectiveassistance claims under his first ground because he did not raise the claims in his state habeas

application, and, thus, the claims are procedurally barred from federal habeas review. Applicants

seeking habeas corpus relief under § 2254 are required to exhaust all claims in state court before

requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th

Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim

has been fairly presented to the highest court of the state. O’Sullivan v. Boerckel, 526 U.S. 838,

842-48 (1999); Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). This

requires that the state court be given a fair opportunity to pass on the claim, which in turn requires

that the applicant present his claims before the state courts in a procedurally proper manner

 

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Darnell did claim in his state application that he received ineffective assistance of trial

counsel in the prior state criminal case resulting in his 1989 conviction for burglary of a habitation.

(State Habeas R. at 24-25.)

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according to the rules of the state courts. Depuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).

Darnell did not raise the ineffective-assistance claims now presented in his state habeas

application.5 Thus, to the extent Darnell seeks federal habeas relief on claims that were never made

in the Texas courts, the claims are unexhausted. See Finley v. Johnson, 243 F.3d 215, 219 (5th Cir.

2001). Darnell cannot, however, return to the Texas courts to cure this deficiency. The Texas

abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the

applicant urges grounds that could have been, but were not, raised in his first relevant habeas

petition. Ex parte Barber, 879 S.W.2d 889, 891 n.1 (Tex. Crim. App. 1994). This doctrine is an

adequate state procedural bar for purposes of federal habeas review. Cotton v. Cockrell, 343 F.3d

746, 755 (5th Cir. 2003), cert. denied, 124 S. Ct. 1417 (2004); Emery v. Johnson, 139 F.3d 191, 195

(5th Cir. 1997); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997). 

Federal habeas corpus relief is unavailable in the face of a state procedural default unless the

petitioner can show either (1) cause for the default and actual prejudice, or (2) that the federal

court’s failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is

actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v.

Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20. Darnell has not given a valid

justification to excuse his default. Nor has he demonstrated that failure to consider the claims will

result in a miscarriage of justice, i.e., that he is innocent of the crime for which he was charged and

convicted. Accordingly, Darnell’s ineffective-assistance claims under his first ground, not raised

in his state habeas application, are procedurally barred from federal habeas review.

 

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F. DISCUSSION 

1. Legal Standard for Granting Habeas Corpus Relief

Under 28 U.S.C. § 2254(d), a 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 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 Supreme Court of the United States 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).

A state court decision will be an unreasonable application of clearly established federal law if it

correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams,

529 U.S. at 407-08.

The statute further requires that federal courts give great deference to a state court’s factual

findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue

made by a state court shall be presumed to be correct. This presumption of correctness applies to

both explicit findings of fact and those findings of fact implicit in the state court’s mixed law and

fact conclusions. Valdez v. Cockrell, 274, F.3d 941, 948 n.11 (5th Cir. 2001). Typically, 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. Neal v. Puckett, 286

 

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The standards of Townsend v. Sain have been incorporated into 28 U.S.C. § 2254(d). Harris

v. Oliver, 645 F.2d 327, 330 n.2 (5th Cir. 1981). 

7

Former article 62.12(a)(1) provided:

(a) The duty to register for a person ends when the person dies if the person

has a reportable conviction or adjudication . . . for:

(1) a sexually violent offense . . . .

Act of May 8, 2001, 77th Leg., R.S., ch. 211, § 12, 2001 Tex. Gen. Laws 377, 379 (currently TEX.

CODE CRIM. PROC. ANN. art. 62.101(a)(1) (Vernon Supp. 2005)).

6

F.3d 230, 235 (5th Cir. 2002); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). Under

these circumstances, a federal court may assume that the state court applied correct standards of

federal law to the facts, unless there is evidence that an incorrect standard was applied, and imply

fact findings consistent with the state court’s disposition. Townsend v. Sain, 372 U.S. 293, 314

(1963)6; Catalan v. Dretke, 315 F.3d 491, 493 n.3 (5th Cir. 2002); Valdez, 274 F.3d at 948 n.11;

Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997). The petitioner bears the burden of rebutting

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

2. Actual and Factual Innocence

Darnell claims he is actually and factually innocent of the offense of failing to register as a

sex offender under former article 62.12(a) of the Texas Code of Criminal Procedure.7 (Petition at

7.) According to Darnell, he is factually innocent because legally he does not have a lifetime

registration requirement and actually innocent because there was insufficient proof to establish his

guilt. 

The Texas sex offender registration statute was originally enacted in 1991. See Act of June

15, 1991, 72nd Leg., R.S., ch. 572, 2029 Tex. Gen. Laws 2029-32, eff. Sept. 1, 1991 (codified at TEX.

 

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REV.CIV. STAT.ANN. art. 6252-13c.1). The Texas Sex Offender Registration Program, as it is now

known, is currently codified at Chapter 62 of the Texas Code of Criminal Procedure. See Act of

___, 2005, 79th Leg., ch. 1008, § 1.01, eff. Sept. 1, 2005 (amending and re-codifying the Sex

Offender Registration Program within Chapter 62). Prior to 1997, the sex offender registration

requirement applied only to those persons convicted of a sex offense after 1991. See Rodriguez v.

State, ,93 S.W.3d 60, 66 (Tex. Crim. App. 2002). In 1997, however, the Texas legislature expanded

the class of persons required to register to apply to those individuals who had a reportable conviction

or adjudication occurring on or after September 1, 1970. See Act of June 1, 1997, 75th Leg., R.S.,

ch. 668 §§ 1, 11, 1997 Tex. Gen. Laws 2260-61, 2264 (formerly TEX.CODE CRIM. PROC. ANN. art.

62.11; currently TEX.CODE CRIM. PROC. art. 62.002 (Vernon Supp.2005)). The 1997 amendments

also imposed lifetime reporting requirements for certain offenses, including a sexually violent

offense. See Act of June 1, 1997, 75th Leg., R.S., ch. 668 §§ 1, 11, 1997 Tex. Gen. Laws 2253, 2264

(formerly TEX.CODE CRIM.PROC.ANN. art. 62.12(a)(1); currently at TEX.CODE CRIM.PROC.ANN.

art. 62.101(a)(1) (Vernon Supp. 2005)). Indecency with a child is defined as a “sexually violent

offense.” See former TEX. CODE CRIM. PROC. ANN. art. 62.01(6)(A) (definitions) (currently TEX.

CODE CRIM. PROC. ANN. art 62.001(5)(A) (Vernon Supp. 2005)).

As a result of the amendments, the Texas Sex Offender Registration Program applies

retroactively to Darnell on the basis of his 1989 conviction for indecency with a child, and he is

required to register for life under state law. See former TEX. CODE CRIM. PROC. ANN. art. 62.02

(currently TEX.CODE CRIM.PROC.ANN. art. 62.051(a) (Vernon Supp. 2005)). Furthermore, Darnell

voluntarily waived his right to a jury trial, pled guilty to the offense, and judicially confessed to

committing the offense as charged in the indictment, including the allegation that he had been

 

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previously convicted of indecency with a child in 1989. (18State Habeas R. at 30-35.) See

Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court carry a strong

presumption of verity.”); TEX.CODE CRIM. PROC. ANN. art. 1.15 (Vernon 2005). Under Texas law,

a judicial confession standing alone is sufficient evidence of guilt in a felony case in which a

defendant waives a jury and pleads guilty to the trial court. Dinnery v. Texas, 592 S.W.2d 343, 353

(Tex. Crim. App. [Panel Op.] 1980) (op. on reh’g). Thus, under state law, Darnell was required to

register, and the evidence was sufficient to establish that Darnell failed to do so in violation of state

law.

3. Constitutional Violations

Darnell claims retroactive application of the requirement that he register as a sex offender

for life under former article 62.12(a)(1) violates various federal constitutional rights. (Petition at

8; Pet’r “Injunction” at 1.) On this basis, he seeks habeas relief and/or injunctive relief preventing

the state from enforcing the requirement with respect to him. Retroactive application of the statute,

however, has not been found to pose a constitutional violation based on clearly established federal

law. See Rieck v. Cockrell, 321 F.3d 487, 488 (5th Cir. 2003) (upholding statutory requirement that

a parolee participate in sex offender counseling program enacted after conviction); Creekmore v.

Att’y Gen. of Tex., 341 F. Supp. 2d 648, 662-63 (E.D. Tex. 2004) (holding Texas sex offender statute

is nonpunitive and therefore its application to convicted sex offender did not violate prohibition

against ex post facto laws); Uresti v. Collier, No. H-04-3094, slip copy, 2005 WL 1515386, at *13

(S.D. Texas June 23, 2005) (not designated for publication). 

Although the Supreme Court has not addressed the issue, it has held that Alaska’s sex

offender registration statute is nonpunitive and, thus, its retroactive application does not violate the

 

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Ex Post Facto Clause. See Smith v. Doe, 538 U.S. 84, 105-06 (2003). Applying similar reasoning,

the Texas Court of Criminal Appeals has held that the effect of the amendments requiring

registration for life is not so punitive as to transform the statute into a criminal sanction in violation

of ex post facto laws. See Rodriguez v. Texas, 93 S.W.3d 60, 79 (Tex. Crim. App. 2002). If

registration requirements are nonpunitive, compliance with the requirements cannot constitute

double jeopardy or cruel and unusual punishment. See Rodriguez, 93 S.W.3d at 69-79; see also Ex

parte Robinson, 116 S.W.3d 794, 798 (Tex. Crim. App. 2003); Uresti, No. H-04-3094, 2005 WL

1515386, at *12; Garcia v. Dretke, No. H-05-1379, slip op., 2005 WL 3234370, at *6-9 (S.D. Tex.

Nov. 29, 2005) (not designated for publication). Darnell’s claims that application of the

amendments presents equal protection and due process violations are equally without merit. He fails

to allege or demonstrate that he is a member of a suspect class or that he is being treated differently

than other defendants convicted of indecency with a child after September 1, 1970, for purposes of

equal protection. Nor does he demonstrate a liberty interest that would entitle him to procedural or

substantive due process protection. See Conn. Dep’t of Public Safety v. Doe, 538 U.S. 1, 7-8 (2003);

Doe v. Tandeske, 361 F.3d 594, 596-97 (9th Cir.), cert. denied, 543 U.S. 817 (2004); Fullmer v.

Mich. Dep’t of State Police, 360 F.3d 579, 581-82 (6th Cir. 2004).

4. Illegal Sentence

Darnell claims his sentence is illegal because, in 1989, indecency with a child was not a 3g

conviction under article 42.12, § 3g of the Texas Code of Criminal Procedure that would authorize

enhancements of his punishment for a state jail felony to that of a third and second degree felony

under §§ 12.35(c) and 12.42(a) (3) of the Texas Penal Code. (Petition at 8.) TEX. CODE CRIM.

PROC. ANN. art. 42.12, § 3g (Vernon Supp. 2005); TEX. PENAL CODE §§ 12.42(a)(3), 12.25(c)

 

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(Vernon Supp. 2005).

Claims based solely on state law are not cognizable in a § 2254 proceeding. A state prisoner

seeking federal review pursuant to § 2254 must assert a violation of a federal constitutional right.

Lawrence v. Lensing, 42 F.3d 255, 258 (5th Cir.1994). Federal habeas corpus relief will not issue

to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also

presented. Pemberton v. Collins, 991 F.2d 1218, 1223 (5th Cir. 1993). Whether an offense has been

properly enhanced is generally a matter of state law. See Rubio v. Estelle, 689 F.2d 533, 536 (5th

Cir. 1982); Donald v. Jones, 445 F.2d 601, 606 (5th Cir. 1971); Ware v. Dretke, No. 3:02-CV-2151-

N, 2005 WL 701035, at *2 (N.D. Tex. Mar. 23, 2005), adopted, 2005 WL 1025964 (N.D. Tex. Apr.

28, 2005) (not designated for publication). Here, the propriety of the enhancements appear to be

governed by §§ 12.35(c)(2)(A) and 12.42(a)(3) of the Texas Penal Code. Darnell, relying solely on

state law, fails to demonstrate how the enhancements implicate a federal constitutional violation.

He generally asserts that the enhancements deny him due process and equal protection, however,

he fails to articulate and develop a federal constitutional claim. (Pet’r Motion to Amend at 3-7.)

Thus, the claim is not cognizable on federal habeas corpus review.

Darnell also claims that, in violation of Brady v. Washington, 373 U.S. 83 (1963), the state

withheld material, exculpatory information from the grand jury by withholding the fact that he was

not convicted of a 3g offense in 1989. He argues that had the state disclosed the true facts, the

indictment would not have issued and he would not have been sentenced under the provisions of §§

12.35(c) and 12.21(a)(3). (Pet’r Supplemental Pleading at 2-4.) No support is found for the

argument that Brady and its progeny extend to proceedings before the grand jury nor has Darnell

presented any factual or evidentiary basis for his claim. Nevertheless, Darnell’s guilty plea waived

 

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any such Brady claim. See Tollet v. Henderson, 411 U.S. 258, 267 (1973) (stating guilty plea waives

all nonjurisdictional defects occurring before entry of plea); United States v. Ruiz, 536 U.S. 622,

628-30 (2002); United States v. Lampazianie, 251 F.3d 519, 526 (5th Cir. 2001); United States v.

Diaz, 733 F.2d 371, 376 (5th Cir. 1984).

II. RECOMMENDATION

It is therefore recommended that Darnell’s petition and motion for injunctive relief be

denied.

III. NOTICE OF RIGHT TO OBJECT TO PROPOSED

FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions, and recommendation within ten (10) days after the party has been

served with a copy of this document. The court is extending the deadline within which to file

specific written objections to the United States Magistrate Judge’s proposed findings, conclusions,

and recommendation until May 22, 2006. The United States District Judge need only make a de

novo determination of those portions of the United States Magistrate Judge’s proposed findings,

conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. §

636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual

finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice,

from attacking on appeal any such proposed factual finding or legal conclusion accepted by the

United States District Judge. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th

 

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Cir. 1996) (en banc op. on reh’g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).

 

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IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 22, 2006, to

serve and file written objections to the United States Magistrate Judge’s proposed findings,

conclusions, and recommendation. It is further ORDERED that if objections are filed and the

opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing

date of the objections. 

It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby

is returned to the docket of the United States District Judge. 

SIGNED May 1, 2006.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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