WILLIAM SANDERSON, United States Magistrate Judge
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an order of the Court in implementation thereof the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner ("Dumas") is an inmate at the Beto I Unit of the Texas Department of Criminal Justice, Institutional Division in Tennessee Colony, Texas.
Respondent is the Director of the Institutional Division of the Texas Department of Criminal Justice.
Statement of the Case: On February 5, 1992 Dumas pled guilty to one count of murder as charged in the indictment returned in Cause No. F91-64887-NSM and to one count of aggravated robbery as charged in the indictment returned in Cause No. F91-64888-NSM. On April 1, 1992 the trial court assessed Dumas' punishment at life imprisonment.
Dumas' convictions were affirmed on appeal by the Thirteenth District Court of Appeals of Texas on April 22, 1993. Dumas v. State, 853 S.W.2d 184 (Tex.App.-Corpus Christi 1993, pet. ref'd). Dumas filed a petition for discretionary review with the Texas Court of Criminal Appeals, but the petition was refused on June 16, 1993 as being untimely filed. Dumas also filed two art. 11.07 applications for writ of habeas corpus challenging his convictions. The first application was denied by the Court of Criminal Appeals without written order on the findings of the trial court on March 15, 1995. Ex parte Dumas, No. 27, 993-01, at cover. Dumas' second application was dismissed by the Court of Criminal Appeals as an abuse of the writ on January 29, 1997. Ex parte Dumas, No. 27, 993-02, at cover.
This information was derived from the Insta-Cite service of the Westlaw electronic database.
On April 16, 1997 Dumas filed the present petition. On June 20, 1997 Respondent filed his answer together with Dumas' prior state proceedings.
Findings and Conclusions: Dumas raises the following grounds for relief in his petition:
1. The trial court and court of appeals erred in not making the record speak the truth;
2. His trial counsel was ineffective for telling Dumas that he would receive a 30 year sentence or possibly probation;
3. His appellate counsel was ineffective for failing to inform him that he had the right to file a petition for discretionary review with the Court of Criminal Appeals;
4. The trial court erred in admitting Dumas' coerced confession;
5. His trial counsel was ineffective for failing to object to the admission of the confession;
6. The confession was given involuntarily because Dumas was under the influence of drugs when he gave the confession;
7. His guilty plea was not knowingly and voluntarily entered because he was coerced by counsel;
8. The trial court erred by refusing to allow Dumas to withdraw his jury waiver,
9. His trial counsel was ineffective for failing to object when the trial court denied Dumas' request to withdraw his jury waiver;
10. His appellate counsel was ineffective for falling to raise errors committed by trial counsel;
11. His trial counsel "erred in not using the evidence raised was insufficient to raise issue of involuntariness" (sic);
12. His counsel was ineffective for failing "to request the charge raised by the evidence"; and
13. The trial court erred in finding that Dumas used a deadly weapon.
A review of the record reveals that with the exception of his eighth ground for relief none of Dumas' grounds were presented to the Texas courts prior to his second art. 11.07 application, which the Court of Criminal Appeals dismissed for abuse of the writ. See Ex parte Dumas, No. 27, 993-02, at cover; see also TEX. CODE CRIM PROC. ANN. art. 11.07, § 4 (Vernon Supp. 1997). Therefore, unless Dumas can show both cause and prejudice, this court is likewise procedurally barred from considering his claims raised only in his second art. 11.07 application (grounds 1-7 and 9-13). See Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 2603 (1995); see also Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084, 115 S.Ct. 739 (1995).
In an attempt to allege cause and prejudice to overcome the procedural default, Dumas filed a response to Respondent's answer on July 29, 1997. However, on April 17, 1997 the Magistrate Judge instructed the parties that traverse pleadings were not to be filed unless Respondent had moved under Rule 9(a) for dismissal or the court provided written permission for such pleadings. Neither circumstance was present here. In an abundance of caution, however, the court will consider the response filed by Dumas to determine whether he has alleged sufficient cause and prejudice to overcome the procedural hurdle.
Dumas has presented three separate arguments in his response to Respondent's answer. First he claims that facts underlying his first ground for relief were not known to him until after his first art. 11.07 application was decided. Second, he claims that cases decided after he filed his first art. 11.07 application are the bases for his second and third grounds for relief. Third, Dumas argues that his fourth, fifth and sixth grounds for relief clearly show reversible error and the Court of Criminal Appeals purposefully evaded these issues by dismissing Dumas' second art. 11.07 application for abuse of the writ. These arguments will be discussed in reverse order for the sake of simplicity.
Dumas' allegation that the Court of Criminal Appeals chose to invoke the abuse of the writ doctrine solely to circumvent its responsibility to consider Dumas' grounds which had merit is patently frivolous. Effective September 1, 1995, the Texas Legislature mandated that if a person files an application for writ of habeas corpus subsequent to the time an application attacking the same conviction has been finally disposed of, Texas courts may not consider the merits of the subsequent application except in certain enumerated circumstances. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4. Absent the application of one of the exceptions to the rule, none of which were applicable to Dumas' grounds for relief (with the possible exception of grounds one, two and three, see discussion infra), the Court of Criminal Appeals had no discretion to consider Dumas' grounds which were raised for the first time in his second art. 11.07 application.
Dumas' claim that cases decided after he filed his first art. 11.07 application formed the bases for his second and third grounds for relief, thus exempting those claims from the rigid application of the abuse of the writ doctrine is also without merit. While it is true that § 4 of art. 11.07 allows a subsequent application to be brought where the legal basis of a claim was unavailable on the date the inmate filed his first art. 11.07 application, the legal basis of Dumas' second and third grounds for relief was established prior to the filing of his first art. 11.07 application. In his second ground for relief, Dumas alleges that his counsel rendered ineffective assistance by telling him that he would likely receive a thirty-year sentence or possibly probation. Contrary to Dumas' contention, the legal basis for this claim existed at least as early as 1991 when the Texas Court of Criminal Appeals held that a defendant's election to plead guilty, when based upon the erroneous advice of counsel, is not done knowingly and voluntarily. See Ex parte Battle, 817 S.W.2d 81, 83 (Tex.Crim.App. 1991). Moreover, since the alleged representation was made to Dumas himself prior to his sentence, he is precluded from arguing that the basis for this claim was unknown to him at the time he filed his first art. 11.07 application.
Art. 11.07 states that the legal basis of a claim is unavailable "if the legal basis was not recognized by and could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state." TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(b).
In his third ground for relief Dumas alleges that his appellate counsel was ineffective for failing to inform him that he had the right to file a petition for discretionary review after his convictions were affirmed on direct appeal. Dumas contends that the legal basis for this claim did not arise until 1994. Dumas filed his first art. 11.07 application with the trial court on December 19, 1994. See Ex parte Dumas, No. 27, 993-01, at p. 1. The case relied on by Dumas, Ex parte Jarrett, supra, 891 S.W.2d at 939, was decided by the Court of Criminal Appeals on September 21, 1994. Therefore, even assuming that Jarrett was the first case to establish the legal basis for such a claim as that raised in Dumas' third ground for relief that case pre-dated the filing of Dumas' first art. 11.07 application.
Although Dumas improperly cites Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437 (1974) as the case which established the proposition that counsel can be ineffective for failing to inform the appellant of his right to file a petition for discretionary review, a review of Dumas' second art. 11.07 application reveals that Dumas meant to cite Ex parte Jarrett, 891 S.W.2d 935, 939 (Tex.Crim.App. 1994). See Ex parte Dumas, No. 27, 993-02, at p. 21.
Dumas also argues that the issue involved in his first ground for relief was not available to him until after his first art. 11.07 application was decided. The court will assume arguendo that Dumas has sufficiently established cause and prejudice to overcome the procedural default and will consider this ground on the merits. In his first ground Dumas alleges that the trial court and court of appeals erred by not making the records "speak the truth." Dumas alleges that had the trial record not been altered, the appellate court would have reversed his convictions. See Ex parte Dumas, No. 27, 993-02, at p. 14. However, Dumas has offered no proof that the trial transcript was in any way altered except by stating that "he remembered what was said by every witness at his trial." Id. at p. 46. Such a bald assertion is insufficient to state a claim under § 2254. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983); see, e.g., Smith v. Campbell, 781 F. Supp. 521, 535 (M.D.Tenn. 1991), aff'd, 961 F.2d 1578 (6th Cir.), cert. denied, 506 U.S. 959, 113 S.Ct. 423 (1992); see also, Thompson v. Estelle, 642 F.2d 996, 998 (5th Cir. Unit A 1981) (official records of a court are presumed to be regular). Moreover, the trial court found that "(t]he transcript and statement of facts in Cause Nos. F91-64887-SNM (sic) and F91-64888-NSM accurately reflect the Court proceedings which transpired relative to said Cause Nos." Ex parte Dumas, No. 27, 993-02, at p. 63. This finding is entitled to a presumption of correctness. See 28 U.S.C. § 2254 (e)(1); see also, Thompson v. Estelle, supra, 642 F.2d at 998.
With respect to his eighth ground for relief the record reflects that Dumas raised it in both his direct appeal and in his initial art. 11.07 application. In addressing this ground on appeal, the Thirteenth District Court of Appeals found that the jury waiver was properly executed in accordance with state law, was signed by Dumas and approved by the State and the court. Dumas v. State, supra, 853 S.W.2d at 186. The court further found that Dumas was admonished of his right to a jury trial and he indicated that he voluntarily waived that right. Id.
The record reflects that the following colloquies occurred between Dumas and his counsel and Dumas and the trial court:
MR. FRANCIS (Dumas' counsel): . . . You indicated to me what you want to do in this case is waive a jury and have a trial before Judge Entz; is that correct? You don't want a jury trial. You want the judge to hear your case; is that correct?
THE DEFENDANT: Yes, sir.
. . .
MR. FRANCIS: You want him to hear the guilt/innocent phase. And if you are found guilty, want him to be the one to assess punishment; is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: . . . The only question that I have for you is do you want a jury or do you not want a jury? That decision is — I'm sorry?
THE DEFENDANT: I don't want no jury.
THE COURT: You don't want a jury in any one of these cases?
THE DEFENDANT: No.
. . .
THE COURT: . . . I have before me waivers of jury in each of these matters. I know Mr. Francis' signature very well. I know Mr. Burns' signature, likewise, very well. Though you were present before me and there is wood paneling between where you were presumably writing your name and me, I did not see you write your name to the waiver of jury. Did you put your signature to each of these documents signifying that you wish to give up your state and federal constitutional right to a jury? . . . Did you sign each of these?
THE DEFENDANT: Oh, yes.
THE COURT: You understand by doing so you are giving up your right to a jury trial? You have previously indicated to me that you do not want a jury. Remember when you told me that?
THE DEFENDANT: Yes, sir.
THE COURT: You understand by signing this you are memorializing or making official in writing your request in that regard; do you understand that, sir?
THE DEFENDANT: Yes, sir.
Ex parte Dumas, No. 27, 993-02, at pp. 71, 74, 76-77. The record supports the court of appeals' finding that Dumas knowingly and voluntarily waived his right to a jury and its holding that the trial court was under no obligation to allow Dumas to withdraw his waiver. Therefore, the determination of the Thirteenth District Court of Appeals was not contrary to or an unreasonable interpretation of federal law as established by the Supreme Court nor did it result from an unreasonable interpretation of the facts as presented to the court. See 28 U.S.C. § 2254 (d). Accordingly, this court is precluded from considering this ground for relief in a federal habeas petition. See id. RECOMMENDATION:
When reiterated in his first art. 11.07 application the Court of Criminal Appeals denied relief on the findings of the trial court. See Ex parte Dumas, No. 27, 993-01, at pp. 9-10, ¶ 2.
For the foregoing reasons it is recommended that the § 2254 petition for habeas corpus relief be DENIED.
A copy of this recommendation shall be transmitted to Petitioner and to counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Serv. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc) a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.