Burell v. Dir., TDCJ-CID
| Docket Number | Civil Action 6:19cv258 |
| Decision Date | 21 April 2022 |
| Parties | ROBERT DARRELL BURELL JR. v. DIRECTOR, TDCJ-CID |
| Court | U.S. District Court — Eastern District of Texas |
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The Petitioner Robert Burell, a prisoner of the Texas Department of Criminal Justice, Correctional Institutions Division proceeding pro se, filed this petition for the writ of habeas corpus under 28 U.S.C. §2254 complaining of the legality of his conviction. The petition has been referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.
Burell pleaded guilty to and was convicted of two counts of aggravated assault of a correctional officer on October 26, 2015, receiving sentences of 30 years in prison. These sentences were concurrent to each other, but consecutive to the aggravated robbery conviction he was already serving.
Burell did not take a direct appeal, but has filed five state habeas corpus petitions concerning this conviction.[1] He voluntarily dismissed the first of these, and his second and third were dismissed as non-compliant. Burell voluntarily dismissed his fourth state habeas, and filed his fifth state habeas petition on February 28, 2019.[2] This petition was dismissed without written order on May 15, 2019. Burell's federal habeas petition is dated May 31, 2019.
In his federal petition, Burell asserts that under the erroneous advice of counsel, he pleaded guilty to an uncharged offense. He states that he pleaded guilty to aggravated assault in Count II, but this count charged him with attempted aggravated assault, not aggravated assault. Burell further says that on January 22, 2018, a state habeas court found that he had erroneously pleaded to an uncharged offense; he contends that “judicial estoppel” prevents the State or this Court from entering a contrary legal finding. Because he pleaded guilty to an uncharged offense in Count II, Burell says that the 30 year sentence he received was illegal. He argues that “said judgment is invalid and deprives convicting court, the State prosecutors, and the Texas prison system of lawful jurisdiction and lacks authority to detain, imprison Petitioner and his plea proceeding, plea bargain with State is fundamentally lacking in legality to enter into said ‘agreed recommendation' and enforce a judgment and prison sentence void of a valid charge, courts of the State of Texas and the Texas prison system lacking in lawful authority and jurisdiction based on said unconstitutional and illegal procedures that all constitute a fundamental miscarriage of justice.”
Next, Burell states that his pleas to Counts I and II were unlawful because they were based on an “unavailable non-prior conviction.” He explains that he pleaded “true” on the advice of counsel to a prior conviction for aggravated robbery, for which the finality date was given as February 21, 2003; however, this conviction did not become final until his petition for discretionary review was refused on May 5, 2004, and the mandate issued in late 2004. Thus, Burell maintains that he is “innocent of being a habitual offender.”
Third, Burell contends that his guilty pleas were not knowing, intelligent, or voluntary because counsel rendered ineffective assistance. He says that counsel erroneously advised him to accept the plea offer despite the improper enhancement and the uncharged offense, rendering his pleas void.
Burell asks that the Court find “statutory government-created impediments” on all of his grounds to excuse the late filing of his petition. He states that he did not discover a factual predicate of his claims, pointing to a December 2017 report from the State Bar of Texas concerning the State Counsel for Offenders program. He also says that his claims of actual innocence of the uncharged offense and the habitual offender charge are sufficient to defeat the statute of limitations.
Finally, Burell asserts that he was prosecuted under a state indigent defense program which “replete with structural conflicting interests,” as allegedly shown by the State Bar report, including lack of independence and multiple discriminatory disparities favoring special prosecutors, including higher salaries for prosecutors than defense counsel. He says that prison inmates charged with crimes are appointed attorneys from State Counsel for Offenders, but the conflicting interests and disparities are such as to amount to the constructive denial of counsel, which violates equal protection in comparison to wealthy inmates who can afford to retain defense counsel.
Burell states that State Counsel for Offenders does not have independent budget authority but falls under the budget of the Texas Department of Criminal Justice. By contrast, the Special Prosecution Unit is an independent unit governed by a board of directors of each prosecuting attorney from a county in which a prison facility is located. It is listed in the General Appropriations Act and has a specific line item under the Texas Comptroller's Judiciary Section Budget. He contends that the state budget favors the prosecutor unit over State Counsel for Offenders, which is disparate treatment denying equal protection of the law. Burell contends that this disparate treatment has no legitimate governmental or penological purpose but to provide inferior defense attorney services and to “insure wrongful convictions.”
Burell further contends that prison facilities for conducting interviews between inmates and their attorneys are done within listening distance of guards or other inmates, thus compromising attorney-client confidentiality. He says that State Counsel for Offenders' expert assistance, travel expenses, secretarial and paralegal resources, and support staff are all discriminatory and denied him counsel. His own attorney, Nicholas Mensch, told Burell that he, Mensch, was unqualified to handle criminal work, and Mensch resigned from State Counsel for Offenders on November 23, 2015. Mensch told Burell he saw no affirmative defenses to raise, which Burell claims was error because the incident forming the basis of his convictions “stemmed from the inhumane and unconstitutional prison conditions existing at said prison unit.” Thus, he claims that he had affirmative defenses of duress and necessity, but Mensch “was not obligated to raise them as a result of said structural, institutional conflicting interests inherent in said indigent inmate defense scheme, complained of herein.”
The Respondent argues that Burell's petition is barred by the statute of limitations, contending that Burell's claims do not implicate the actual innocence exception to the statute of limitations and his invocation of “exceptional circumstances” lacks the support necessary to give the Court the power to grant him additional time to satisfy the limitations period. With regard to the claim concerning the State Bar report on State Counsel for Offenders, the Respondent says that the salary data of state employees is public record and could have been acquired through a public information request by someone acting with due diligence, but in any event, if December 8, 2017, is accepted as the factual predicate date, the petition would still be barred by limitations.
In his reply, Burell again maintains that equitable tolling should be granted in order to prevent a fundamental miscarriage of justice of one “who may be innocent,” pointing to his guilty plea to an uncharged offense and the enhancement provisions. He contends that he has been pursuing his rights diligently and that he has presented all of his claims to the state courts, thus exhausting his state remedies.
Burell asserts that the finality date of February 21, 2003, given in the enhancement portion of his present indictment for his prior conviction is “materially false” and cannot support enhancement of any sort, rendering his sentences illegal. He says that on January 22, 2018, state habeas judge Mark Calhoun entered specific factual findings that Burell erroneously pleaded to and was found guilty of an uncharged offense as to Count II. This finding was based on an affidavit by Mensch admitting the error. Burell contends that he is thus factually innocent of the uncharged offense in Count II as well as innocent of being a habitual felony offender in Counts I and I.
Burell again points to the report from the State Bar of Texas concerning the State Counsel for Offenders program, saying this report shows that the executive and legislative branches conspired with the Texas Board of Criminal Justice and TDCJ to enact state statutes, rules, and unwritten policies designed to provide inferior legal services to inmates. He characterizes this state action in violation of the Constitution or laws of the United States which prevented him from receiving a fair trial and from meaningful access to court. He likens his case to Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) concerning the existence of structural error in the right to counsel and the integrity of the criminal justice system. Burell states that there was “ongoing hostility” and a breakdown of the attorney-client relationship between himself and defense attorneys Barbara Law and Nicholas Mensch, including their refusal to raise inhumane prison conditions as a legitimate defense, their failure to raise evidence of innocence, and permitting him to plead to an uncharged offense. According to Burell, all these qualify as “attorney abandonment by conflicted...
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