SAYA v. LIVINGSTON

PHILIP MARTINEZ, District Judge

Before the Court is Petitioner William Saya, Jr.'s ("Saya") pro se "Petition for a Writ of Habeas Corpus By a Person in State Custody" [Docket No. 1], filed pursuant to 28 U.S.C. § 2254 on December 27, 2004. After a de novo review, the Court concludes that Saya's objections to the Magistrate Judge's Report and Recommendation ("Report") [Docket No. 12] are without merit and should be overruled. The Court will accordingly adopt the Magistrate Judge's Report in its entirety and dismiss Saya's Petition with prejudice.

I. BACKGROUND A. Saya's Underlying Offense

As the Magistrate Judge recounts in his Report, on September 29, 1998, Saya was indicted in the 210th District Court of El Paso County, Texas, cause no. 980D08492-210, on one count of sexually assaulting a child. Attorney Matthew DeKoatz ("DeKoatz") represented Saya. Accompanied by Dekoatz, Saya appeared before the trial judge on October 29, 1998 and pleaded guilty to the charge. The trial judge deferred Saya's adjudication of guilt, placing Saya on four years' community supervision. Saya did not appeal.

B. The Trial Court's Revocation of Saya's Community Supervision

On October 11, 2002, the State of Texas (`the State") moved to revoke Saya's community supervision and adjudicate guilt on the original offense. The State alleged that Saya had violated the conditions of his supervision by committing a Class C assault ( i.e., offensive sexual touching) against William Newren ("Newren"), a young man suffering from an unspecified mental deficiency. Newren testified against Saya at the revocation proceeding. Saya's attorney, William Ellis ("Ellis"), did not cross-examine Newren and called no witnesses on Saya's behalf. After the parties rested their respective cases, the trial judge revoked Saya's supervision and adjudged him guilty of the original offense, namely, second degree felony sexual assault of a child. The trial court sentenced Saya to 15 years' confinement in the Texas Department of Criminal Justice, Correctional Institutions Division.

C. Saya's Claims for Federal Habeas Corpus Relief

As noted, Saya filed his Petition on December 27, 2004. Therein, he raised five claims for relief. First, Saya argued that DeKoatz rendered ineffective assistance at the original plea hearing because DeKoatz allegedly did not inform Saya of his appellate rights ("Ground One"). Second, Saya asserted that his guilty plea to the original offense was involuntary due to DeKoatz's ineffectiveness ("Ground Two"). Third, Saya averred that Ellis rendered ineffective assistance at Saya's revocation hearing, because Ellis did not inform Saya that he could challenge the voluntariness of the original guilty plea through a habeas corpus action filed in the trial court and litigated simultaneously with the revocation proceeding ("Ground Three"). Fourth, Saya alleged that Ellis rendered ineffective assistance because Ellis did not advise Saya of Saya's appellate rights and did not preserve certain issues for appeal ("Ground Four"). Fifth, Saya contended that the judge who revoked Saya's community supervision and adjudicated Saya's guilt did so without sufficient evidence to support a finding that Saya violated the terms of his supervision ("Ground Five"). II. SAYA'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT RECOMMENDATION A. The Report Recommendation

On May 8, 2006, the United States Magistrate Judge to whom the Court referred this matter issued his Report. In the Report, the Magistrate Judge recommended that the Court dismiss Grounds One and Two of Saya's Petition as untimely under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The Magistrate Judge evaluated the merits of Saya's three remaining claims for relief ( i.e., Grounds Three, Four, and Five) and concluded that Saya had not carried his burden pursuant to 28 U.S.C. § 2254(d). B. Saya's Objections

After requesting and receiving an enlargement of time until July 24, 2006 in which to file objections to the Report, Saya timely filed his "First Opposition to Findings, Conclusions and Recommendation Entered April 27th 2006 [ sic]" ("Objections") [Docket No. 18] to the Report on July 12, 2006. In his Objections, Saya expressly concedes that Grounds One and Two of his Petition are untimely under the AEDPA and does not challenge the Magistrate Judge's proposed resolution of Ground Five. Saya does object, however, to the Magistrate Judge's recommendation concerning Grounds Three and Four of his Petition. Specifically, Saya argues that:

In regards [ sic] to issues (3) and (4), there are multiple errors inregards [ sic] to ineffectiveness. . . . Mr. Ellis was the same attorney who represented Petitioner in two (2) separate cases and whom [ sic] used the same witness in the revocation hearing and his present conviction of three (3) years. Petitioner is serving a 15 years and three (3) years staked [ sic]. This same witness was never cross-examined by Mr. Ellis (this was the main witness). This court did find that Mr. Ellis [ sic] did not question the main witness and that Mr. Ellis [ sic] did not call any witness in the revocational [ sic] hearing: enter alia: [ sic] the court found that eventhough [ sic] there was [ sic] errors they were not of magnitude [ sic] to grant habeas relief. Petitioner disagrees.

For ease of reference, the Court will refer to the latter argument as "Objection One."

The Court also understands Saya to object because, according to Saya, Respondent did not discuss the standard of review the Magistrate Judge should apply in determining whether to grant Saya an evidentiary hearing. Saya also complains that Respondent did not provide him with copies of the record that it provided to the Court. The Court will collectively refer to the latter two arguments as "Objection Two."

III. DISCUSSION

The Court first considers Objection One. After review, it appears that Saya is not, in fact, objecting to the Magistrate Judge's proposed resolution of Grounds Three and Four. Rather, the Court finds that Saya is attempting to raise a new attack on Ellis's performance for the first time in his Objections. By failing to raise the claim in his Petition, however, Saya has waived the claim. The Court will accordingly overrule Objection One.

Turning to Objection Two, the Court concludes that Saya is not entitled to a de novo review of this objection because he failed to raise his arguments before the Magistrate Judge. More importantly, Saya has not shown that the Magistrate Judge was unaware of the governing legal standard ( i.e., 28 U.S.C. § 2254(e)) for evidentiary hearings in federal habeas proceedings or that the Magistrate Judge misapplied that standard when he implicitly determined that Saya was not entitled to such a hearing. The Court will therefore overrule Objection Two.

III. CONCLUSION ORDERS

In sum, the Court has independently reviewed the pleadings and the record; the Magistrate Judge's proposed findings, conclusions, and recommendation; and Saya's written objections to those proposed findings, conclusions, and recommendation. After a de novo review, the Court concludes that Saya's objections should be overruled and that the Magistrate Judge's Report and Recommendation should be adopted in its entirety. The Court accordingly enters the following orders:

1. The Court hereby ADOPTS and APPROVES the United States Magistrate Judge's Report and Recommendation, issued on April 27, 2006.

2. Petitioner William Saya, Jr.'s pro se "Petition for a Writ of Habeas Corpus By a Person in State Custody," filed pursuant to 28 U.S.C. § 2254 on December 27, 2004, is DENIED and the above-captioned cause is DISMISSED WITH PREJUDICE.

3. All pending motions in this case, if any, are DENIED AS MOOT.