HAB54\R&R\ALANIZ-190.MIXED-MERITS:2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

CHRISTOPHER HAROLD ALANIZ, §

a/k/a Harold Christopher Alaniz, §

§

Petitioner, §

§

v. § 2:05-CV-0190

§

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 has filed with this Court a Petition for a Writ of Habeas Corpus by a Person in

State Custody challenging his July 14, 2003 conviction for the offense of aggravated assault out

of the 47th Judicial District Court of Randall County, Texas, and the resultant 8-year sentence. 

For the reasons set forth below, it is the opinion of the undersigned United States Magistrate

Judge that petitioner’s federal application for habeas corpus relief should be DENIED.

I.

PROCEDURAL HISTORY

On January 19, 2000, in Cause No. 12,867-A, petitioner was indicted in the 47th Judicial

District Court of Randall County, Texas, for the offense of delivery of a controlled substance,

to-wit: cocaine. On October 10, 2001, petitioner, pursuant to a plea agreement, pled guilty to

 

 

FILED

AUGUST 22, 2008

 

 

 

 

 

 KAREN S. MITCHELL

CLERK, U.S. DISTRICT COURT 
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the charged offense. Adjudication of guilt was deferred and petitioner was placed on two (2)

years community supervision. 

On November 6, 2002, in Cause No. 14,760-A, petitioner was indicted in the 47th

Judicial District Court of Randall County, Texas, for the offense of aggravated assault. 

Specifically, the indictment alleged petitioner:

[O]n or about the 30th day of October, A.D. 2002 . . . did then and there

intentionally and knowingly cause bodily injury to Sabbatha Kish Hanifin, by

striking her in the head and the body with his hands and feet, and did then and

there intentionally and knowingly use and exhibit a deadly weapon, to wit: his

hands and feet, that in the manner of its use and intended use was capable of

causing death and serious bodily injury to Sabbatha Kish Hanifin, during the

commission of said assault.

On July 14, 2003, in a joint revocation and plea hearing, petitioner, pursuant to a plea

agreement, pled guilty to the charged offense and true to the alleged probation violations. The

state trial court accepted petitioner’s guilty and true pleas, found petitioner guilty of the

probation violations and the charged offenses, and assessed petitioner’s punishment for each

offense at confinement in the Texas Department of Criminal Justice, Institutional Division

(TDCJ-ID) for eight (8) years, said sentences to run concurrently. Petitioner signed waivers of

appeals in both cause numbers.

On August 11, 2003, petitioner, acting pro se, directly appealed both convictions to the

Court of Appeals for the Seventh District of Texas. On October 21, 2003, that court dismissed

petitioner’s appeal of his aggravated assault conviction pursuant to his signed waiver of appeal

and the absence of a certification by the trial court affording petitioner a right to appeal. Alaniz

v. Texas, No. 07-03-0381-CR. The appellate court also dismissed petitioner’s appeal of his

delivery of a controlled substance conviction, finding petitioner’s agreement to waive his right
1

See Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998) (a prisoner’s federal habeas corpus petition is deemed filed when

he delivers the petition to prison officials for mailing to the district court).

HAB54\R&R\ALANIZ-190.MIXED-MERITS:2 3

to appeal his conviction was binding upon petitioner as no evidence of record indicated

petitioner’s waiver was involuntary or unknowing, or that the State or trial court had failed to

abide by the plea bargain. Alaniz v. Texas, No. 07-03-0380-CR. Petitioner did not seek review

of the state appellate court decisions by way of a petition for discretionary review.

On August 10, 2004, petitioner sought review of his convictions by filing two (2) state

applications for habeas corpus relief. By his habeas applications, petitioner asserted:

Petitioner’s plea of guilty was involuntary because:

1. petitioner was told he was pleading guilty to a state jail felony;

2. the trial court did not carry out certain admonishments;

3. defense counsel coerced/threatened petitioner to enter the plea:

a. when the terms of the plea were unknown;

b. by telling him that if he did not enter the plea, he would face attempted

murder charges, stacked sentences and the maximum sentence on each

offense.

The State, in its answer to petitioner’s state habeas applications, attached affidavits from

petitioner’s trial counsel refuting petitioner’s allegations. On June 8, 2005, the Texas Court of

Criminal Appeals denied such petitions without written order. In re Alaniz, Nos. 60,701-01 and

60,701-02.

On June 22, 2005, petitioner filed the instant application for federal habeas relief with

this Court, said petition being received and filemarked June 27, 2005.1

 On January 20, 2005,

respondent filed an answer opposing federal habeas corpus relief. On March 30, 2006,
2

Petitioner has submitted voluminous pleadings to this Court making numerous arguments and factual allegations not raised

before the state’s highest appellate court. Petitioner has also inserted numerous claims in various pleadings and motions filed in this

Court, but which claims were not asserted in his habeas petition.

3

The undersigned notes respondent, in his answer, has construed petitioner’s allegations differently than stated herein. The

undersigned has included the grounds raised by petitioner in a “supplemental” petition filed October 19, 2005 (marked by *), even

though petitioner did not request leave to file such a supplement and respondent did not address the supplement in his answer.

HAB54\R&R\ALANIZ-190.MIXED-MERITS:2 4

petitioner filed a response to respondent’s answer.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 involuntary because:

a. it was coerced; and

b. the commitment contained the notation that there was a deadly

weapon finding in violation of the plea agreement.3

2. Petitioner was denied effective assistance of counsel in the underlying

proceeding because counsel:

a. failed to ensure there was no deadly weapon finding made with

regard to petitioner’s conviction as required by the plea agreement;

b. failed to obtain exculpatory and mitigating evidence;

c. failed to advise petitioner that Texas Penal Code § 12.35 requires

one prior conviction to enhance a subsequent offense;

d. failed to investigate medical records of prior treatment that showed

petitioner was looking for help;*

e. failed to file a motion to compel production of the favorable

medical record evidence;*

f. failed to investigate the victim’s family which would have

provided evidence favorable to the defense;*
HAB54\R&R\ALANIZ-190.MIXED-MERITS:2 5

g. wrongfully advised petitioner that he would “take [probation]

good time with him.”*

3. The plea agreement was breached by the inclusion of a deadly weapon

finding on the commitment;

4. The was insufficient evidence to support petitioner’s guilty plea to the

offense of aggravated assault; and

5. Petitioner is actually innocent of the offense of aggravated assault.

III.

EXHAUSTION OF STATE COURT REMEDIES

Section 28 U.S.C. § 2254 states, as relevant to this proceeding:

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted unless it appears

that— 

(A) the applicant has exhausted the remedies available in the

courts of the State; or

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to

protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the remedies available in

the courts of the State.

(3) . . .

(c) An applicant shall not be deemed to have exhausted the remedies available in

the courts of the State, within the meaning of this section, if he has the right under

the law of the State to raise, by any available procedure, the question presented.

28 U.S.C. § 2254. The exhaustion doctrine set forth in section 2254 requires that the state courts

be given the initial opportunity to address and, if necessary, correct alleged deprivations of

federal constitutional rights in state cases. Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct.
HAB54\R&R\ALANIZ-190.MIXED-MERITS:2 6

1056, 1059 (1989). The doctrine serves “to protect the state courts’ role in the enforcement of

federal law and prevent disruption of state judicial proceedings.” Rose v. Lundy, 455 U.S. 509,

518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982). 

Under our federal system, the federal and state courts are equally bound to guard

and protect rights secured by the Constitution. Because it would be unseemly in

our dual system of government for a federal district court to upset a state court

conviction without an opportunity to the state courts to correct a constitutional

violation, federal courts apply the doctrine of comity, which teaches that one

court should defer action on causes properly within its jurisdiction until the courts

of another sovereignty with concurrent powers, and already cognizant of the

litigation, have had an opportunity to pass upon the matter. 

Id. (brackets, internal quotation marks, and citations omitted). To have exhausted his state

remedies, a habeas petitioner must have fairly presented the substance of his federal

constitutional claims to the state courts. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997),

cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). This requires that any

federal constitutional claim presented to the state courts be supported by the same factual

allegations and legal theories upon which the petitioner bases his federal claims. Picard v.

Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). Further, in order to

satisfy the federal exhaustion requirement, petitioner must fairly present to the highest state

court each constitutional claim he wishes to assert in his federal habeas petition. Skelton v.

Whitley, 950 F.2d 1037, 1041 (5th Cir.), cert. denied sub nom. Skelton v. Smith, 506 U.S. 833,

113 S.Ct. 102, 121 L.Ed.2d 61 (1992); Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir.

1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056, 103

S.Ct. 1508, 75 L.Ed.2d 937 (1983). In the state of Texas, the Court of Criminal Appeals in

Austin, Texas is the highest court which has jurisdiction to review a petitioner’s confinement. 

Tex. Code Crim. Proc. Ann. art. 44.45 (Vernon 1999). Claims may be presented to that court
4

The abuse of the writ rule can be an adequate and independent state ground foreclosing federal habeas review. Lowe v.

Scott, 48 F.3d 873, 875 (5th Cir. 1995). Such a procedural rule that acts as a bar, however, must be “firmly established and regularly

followed.” Ford v. Georgia, 498 U.S. 411, 423, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). The Fifth Circuit Court of Appeals has

determined that the Texas abuse of the writ doctrine has been strictly and regularly applied since 1994. Fuller v. Johnson, 158 F.3d

903, 905 (5th Cir. 1998); Emery v. Johnson, 139 F.3d 191, 195, 201 (5th Cir. 1997), cert. denied, 525 U.S. 969, 119 S.Ct. 418, 142

L.Ed.2d 339 (1998). 

HAB54\R&R\ALANIZ-190.MIXED-MERITS:2 7

through an application for a writ of habeas corpus, see Tex. Code Crim. Proc. Ann. art. 11.01 et

seq. (Vernon 1999), or on direct appeal by a petition for discretionary review.

Even construing petitioner’s claims liberally, in both the state and federal habeas

proceedings, the only claim raised in the instant federal habeas application that was raised and

presented in petitioner’s state habeas application is petitioner’s allegation that his plea of guilty

was involuntary because he was coerced. See Ground 1.a. The other claims raised in this

federal habeas application are either new claims never presented to or heard by the state’s

highest court, or are claims premised on a factual basis that is different than that presented in the

state habeas proceeding. Consequently, with the exception of his claim that his plea was

involuntary due to coercion, the state courts were not given an opportunity to properly

investigate, address, and determine the merits of petitioner’s alleged deprivations of federal

constitutional rights in his state court proceeding. Therefore, petitioner has not sufficiently

exhausted his available state court remedies with regard to any of his claims other than l.a.

Further, petitioner would be precluded, by the Texas abuse of the writ doctrine, see Tex.

Code Crim. Proc. Ann. art. 11.07 § 4 , from raising his unexhausted allegations in a future state

habeas application. See Tex. Code Crim. Proc. Art. 11.07 § 4. If a petitioner "fails to exhaust

available state remedies and 'the court to which the petitioner would be required to present his

claims in order to meet the exhaustion requirement would find the claims procedurally barred',"

then the claim is procedurally defaulted.4

 Jones v. Jones, 163 F.3d 285, 296 (5th Cir. 1998)
HAB54\R&R\ALANIZ-190.MIXED-MERITS:2 8

(quoting Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, 523 U.S. 1139, 118

S.Ct. 1845, 140 L.Ed.2d 1094 (1998) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1,

111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). In other words, when federal habeas claims "are

'technically' exhausted because, and only because, [petitioner] allowed his state law remedies to

lapse without presenting his claims to the state courts ... [,] there is no substantial difference

between nonexhaustion and procedural default." Id. (quoting Magouirk v. Phillips, 144 F.3d

348, 358 (5th Cir.1998)). Here, because petitioner failed to exhaust any of his claims other than

his involuntary plea by coercion claim, said claims, with the noted exception, are procedurally

defaulted.

There is, however, a “cause and prejudice” exception to the bar for failure to exhaust. 

“When the ground upon which the petitioner relies for habeas relief was not exhausted in state

court and state procedural rules would bar subsequent presentation of the argument,” this Court

will not consider petitioner’s unexhausted claim absent ‘cause’ and ‘prejudice.’” Beazley v.

Johnson, 2001 WL 118393, *15 (5th Cir. 2001) (quoting Little v. Johnson, 162 F.3d 855, 859 (5th

Cir. 1998), cert. denied, 526 U.S. 1118, 119 S.Ct. 1768, 143 L.Ed.2d 798 (1999)). Federal

habeas relief will not be granted on a procedurally defaulted claim unless the petitioner can

demonstrate both good cause for the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider the claim will result in a

fundamental miscarriage of justice. Id. (citing Moawad v. Anderson, 143 F.3d 942, 947 (5th

Cir.) , cert. denied, 525 U.S. 952, 119 S.Ct. 383, 142 L.Ed.2d 316 (1998) (pre-AEDPA); 

Nobles, 127 F.3d at 423 n. 33 (post-AEDPA); Williams v. Cain, 125 F.3d 269, 276 (5th

Cir.1997), cert. denied, 525 U.S. 859, 119 S.Ct. 144, 142 L.Ed.2d 116 (1998) (post-AEDPA); cf.
HAB54\R&R\ALANIZ-190.MIXED-MERITS:2 9

United States v. Flores, 135 F.3d 1000, 1006 n. 23 (5th Cir.1998), cert. denied, 525 U.S. 1091,

119 S.Ct. 846, 142 L.Ed.2d 700 (1999) (post-AEDPA, section 2255)).

Petitioner has not argued, much less demonstrated, just cause for his failure to raise the

unexhausted claims in his state court proceedings. The undersigned finds no factors constituting

just cause for petitioner’s failure to raise his allegations before the state’s highest court. The

claims, as well as the factual support for his claims, were readily apparent at the time petitioner’s

state habeas applications were filed and petitioner could have included such in his state actions. 

Because petitioner has failed to show sufficient cause for his state procedural default, a

“prejudice” analysis is not necessary. 

Petitioner possibly appears to argue, however, that the failure to consider his

procedurally defaulted claims will result in a fundamental miscarriage of justice because he is

actually innocent of the charge of aggravated assault. Specifically, petitioner appears to argue

the evidence of record did not show he caused bodily injury to the victim, or that he used and

exhibited a deadly weapon, to wit: his hands and feet, that in the manner of its use and intended

use was capable of causing death and serious bodily injury to the victim, during the commission

of the assault. Petitioner appears to argue the waiver of the deadly weapon as a part of the plea

agreement, in addition to the absence of evidence showing he caused bodily injury to the victim

and lack of evidence that his hands and feet were capable of causing death and serious bodily

injury, resulted in no evidence of the commission of an aggravated assault sufficient to support

his plea, thus, he is actually innocent of the offense. The State’s agreement to drop the deadly

weapon allegation in exchange for petitioner’s plea did not, however, result in a lesser charge

against petitioner. Petitioner remained charged with, judicially confessed and pled guilty to,
5

Although the deadly weapon finding was subsequently dropped, petitioner pled as charged in the indictment. 

6

As noted previously, petitioner has presented numerous arguments and factual allegations not raised before the state’s

highest appellate court. The time to raise such issues was during habeas proceedings before the state court, not as mere arguments

raised for the first time in the voluminous pleadings petitioner has submitted to this Court.

HAB54\R&R\ALANIZ-190.MIXED-MERITS:2 10

second degree felony aggravated assault.5 Further, the state court, as evidence to support

petitioner’s plea, reviewed photographs of the victim’s bodily injuries and found the evidence

sufficient to find petitioner guilty of the second degree felony of aggravated assault. Petitioner’s

contention that the absence of medical records presented during the plea hearing was

determinative evidence that no bodily injuries were inflicted is unpersuasive. It was not

necessary to establish bodily injury by way of medical records, especially where, as here,

petitioner entered a judicial confession and a guilty plea admitting everything alleged in the

indictment, including the allegation that petitioner caused bodily injury. See Statement of Facts,

at 9. Petitioner has not demonstrated the State was not able to demonstrate petitioner’s hands

and feet, in the manner of their use during the assault, were capable of causing death and serious

bodily injury to the victim, nor has he demonstrated they were not so capable. Petitioner has not

demonstrated actual innocence of the charged offense of aggravated assault. Consequently, the

failure to consider petitioner’s procedurally defaulted claims will not result in a fundamental

miscarriage of justice.

Petitioner’s claims, with the exception of the involuntary plea due to coercion claim,

have been procedurally defaulted as a result of petitioner’s failure to exhaust at the state court

level. Consequently, they are not cognizable in federal habeas proceedings and should be

dismissed.6
HAB54\R&R\ALANIZ-190.MIXED-MERITS:2 11

IV.

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 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
HAB54\R&R\ALANIZ-190.MIXED-MERITS:2 12

469, 472 (Tex.Crim.App. 1997).

V.

INVOLUNTARY PLEA DUE TO COUNSEL’S COERCION

Petitioner challenges the voluntary and intelligent character of his guilty plea arguing he

was coerced into entering his plea by counsel telling him that if he did not enter the plea, he

would face attempted murder charges, stacked sentences, and the maximum sentence on each

offense. 

Petitioner raised this allegation in his state habeas proceeding. In response, petitioner’s

counsel submitted an affidavit stating: 

My name is Gregory Lee Phifer. I was the attorney for Harold Christopher

Alaniz on July 14, 2003. On that date, he pled guilty in Cause No. 14,760-A to

the offense of Aggravated Assault and received a sentence of 8 years TDCJ-ID. 

On that date, he also pled true in Cause No. 12,867-A to a Motion to Proceed

with Adjudication of Guilt for a Delivery of a Controlled Substance and also

received a sentence of 8 years TDCJ-ID. An agreement was negotiated in both

cases and both sentences were to run concurrent. Both cases were second degree

felonies. A third case of witness tampering was dismissed per our negotiations.

The admonishments were given to Mr. Alaniz by myself and the Court. The

admonishments were for second degree felonies on both cases before the Court

on that day. The case that was dismissed [the witness tampering charge] was a

state jail felony.

Mr Alaniz was not threatened by me to reach any plea agreement. Mr. Alaniz

was not threatened by the Court to reach any plea agreement. He was

admonished by me that a potential for consecutive sentences was possible with

the three felony cases pending against him. He was also admonished by me that

if we went to trial on any of the two indictments or contested the Motion to

Proceed, the state would, in all likelihood, ask for a stiffer sentence(s) to be

imposed. I do not believe there was any discussion of ‘unwarranted charges of

attempted murder’ by myself or the Court.

The Texas Court of Criminal Appeals denied petitioner’s claims without written order which

constitutes an adjudication on the merits. Consequently, this Court cannot grant habeas corpus
HAB54\R&R\ALANIZ-190.MIXED-MERITS:2 13

relief unless the state court’s determination conflicts with clearly established federal law as

determined by the Supreme Court or the state court’s decision was based on an unreasonable

determination of the facts in light of the evidence. Petitioner has not shown the state court’s

decision was based on an unreasonable determination of the facts in light of the evidence before

the state court.

Moreover, at the plea hearing, the state trial court confirmed petitioner was pleading

guilty to the charge of second degree aggravated assault, that he understood the range of

punishment, that he was pleading guilty to the charged offense only because he was guilty and

for no other reason, that no one had offered petitioner anything in exchange for his plea, and that

no one had threatened petitioner in any way. Statement of Facts, at 6-7 (emphasis added). The

state trial also clarified that petitioner was not going to seek permission to appeal, that he had

been fully admonished, had gone over the written admonishments with his counsel and counsel

had answered all of his questions, that he did not have any additional questions to ask of the

court, and that he was satisfied with his counsel’s representation. The state trial court further

confirmed petitioner was pleading true to the allegations he had violated the terms of his

community supervision because the allegations were true, and for no other reason, that no one

had offered petitioner anything in exchange for his plea, and that no one had threatened

petitioner in any way to make that plea. Id. At 11-12. Petitioner’s statements of record rebut

petitioner’s claims of coercion. Reviewing courts give great weight to the defendant’s

statements at the plea colloquy. United States v. Cothran, 302 F.3d 279, 283-84 (5th Cir. 2002)

(citing Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)).

Petitioner has submitted to this Court a June 5, 2007 affidavit of petitioner’s step-father,
HAB54\R&R\ALANIZ-190.MIXED-MERITS:2 14

Gerald Ricklefs, wherein Mr. Ricklefs avers:

I talked to Chris’s attorney on two separate occasions. The first was before the

trial, in which Mr. Pfeifer stated that Christopher was looking at being charged

with Attempted Murder, Aggravated Assault, and Probation Violation Charges. . .

. I feel that these charges had no validity and were used as idol threats so that

Christopher would accept a plea bargain.

Since this affidavit was not presented to the state appellate court during petitioner’s state habeas

corpus proceedings, it is arguably not properly before this Court. Nonetheless, this affidavit,

while indicating Mr. Ricklefs’ understanding of a conversation he had with petitioner’s counsel,

does not implicate petitioner’s counsel with threatening petitioner by telling petitioner he would

be subjected to attempted murder charges if he did not enter a guilty plea to the aggravated

assault charge. More importantly, the affidavit does not contradict petitioner’s sworn averments

before the state trial court that he had not been threatened in any way, resulting in his guilty

plea. Petitioner has specifically failed to show counsel coerced petitioner’s guilty plea with

threats of unwarranted attempted murder charges, or that the voluntariness of petitioner’s plea

was compromised by comments by his counsel. 

Further, petitioner has also failed to show undue coercion by counsel’s statement that his

sentences could be stacked – a true statement – if petitioner did not plea guilty pursuant to the

plea agreement but, instead, went to trial. Petitioner has failed to show any comments by his

counsel were sufficient to render petitioner’s guilty plea involuntary or unknowing. Petitioner’s

claim is without merit.

VI.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United
HAB54\R&R\ALANIZ-190.MIXED-MERITS:2 15

States District Judge that the Petition for a Writ of Habeas Corpus by a Person in State Custody

filed by petitioner a CHRISTOPHER HAROLD ALANIZ, a/k/a Harold Christopher Alaniz be

DENIED.

VII.

INSTRUCTIONS FOR SERVICE

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

Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 22nd day of August 2008.

_____________________________________

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). When service is made by mail or

electronic means, three (3) days are added after the prescribed period. Fed. R. Civ. P. 6(e). 

Therefore, any objections must be filed on or before the fourteenth (14th) day after this

recommendation is filed as indicated by the “entered” date. 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
HAB54\R&R\ALANIZ-190.MIXED-MERITS:2 16

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).