Daniel v. Cockrell

• Citation: 283 F.3d 697
• Decision Date: 25 February 2002
• Docket Number: No. 00-20624.,00-20624.
• Parties: Ronald Nelson DANIEL, Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

283 F.3d 697

Ronald Nelson DANIEL, Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 00-20624.

United States Court of Appeals, Fifth Circuit.

February 25, 2002.

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George McCall Secrest, Jr. (argued), Ken J. McLean, Houston, TX, for Petitioner-Appellant.

Robert Brooks Moore, Asst. Atty. Gen. (argued), Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, JOLLY and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Ronald Nelson Daniel appeals the district court's denial of habeas corpus relief as to his Texas conviction for the aggravated sexual assault of a child. Daniel contends that: (1) his guilty plea was not voluntary because his lawyer assured him he would be sentenced by a different judge; and (2) such assurance constituted ineffective assistance of counsel. We affirm the district court's denial of relief.

Facts and Proceedings Below

Ronald Daniel molested his niece for two years beginning when she was six years old. Daniel forced her to wear a blindfold while he: (1) fondled her; (2) digitally penetrated her vagina; (3) rubbed his crotch against hers; and (4) forced her to straddle him. Daniel never had vaginal intercourse with her.

On March 4, 1994, Daniel was indicted for the aggravated sexual assault of a child. His case was assigned to the 338th District Court of Harris County, in which Judge Mary Bacon presided. Daniel had a desire to plead guilty because it would spare his niece the anguish of testifying to his acts of molestation. Daniel's counsel, James Leitner, informed him of Judge Bacon's reputation for imposing very harsh sentences for sexual offenders, especially where the victim was a child. Leitner advised Daniel against pleading guilty to Judge Bacon without an agreed sentence recommendation from the State, and recommended to Daniel that he plead guilty to a jury.¹ The case was set for trial on August 1, 1994. On that day, visiting Judge William Hatten was presiding instead of Judge Bacon. The prosecutor, Jay Hileman, told Leitner that the case could be reset to a date on which Judge Bacon would preside or that Judge Hatten could handle the case. Leitner consulted with Judge Brian Rains, who had served as chief prosecutor in Judge Hatten's court. After hearing the facts of Daniel's case, Judge Rains expressed the view that Judge Hatten would be "very fair" in sentencing Daniel. As a result, Leitner advised Daniel to plead guilty to Judge Hatten. When Daniel questioned whether Judge Hatten would sentence him, Leitner assured him that he would. It is undisputed that the time-honored custom of the Harris County criminal courthouse is that if a defendant pleads guilty to a visiting judge he will also be sentenced by that visiting judge. On August 1, 1994, Daniel pleaded guilty before Judge Hatten to the aggravated sexual assault of a child in violation of TEX. PENAL CODE ANN. § 22.021(a)(1)(B).

Daniel's sentencing hearing was held on September 16 and 19, 1994. Judge Bacon presided. Because Leitner did not want to anger Judge Bacon (and thereby harm his client) by questioning her authority, he did not object to Judge Bacon's participation.² Leitner presented evidence of Daniel's progress in receiving treatment for his pedophilia. Leitner called Daniel as a witness and the following relevant exchanges took place:

"Q You understand when you entered your plea that the Court had a range of punishment anywhere from deferred adjudication to life in the penitentiary?

A Yes.

....

Q You understand that no matter what happens to you in this case it's not the Judge's fault. It's not anybody's involved fault. It's simply you.

A Yes, I do."

Judge Bacon sentenced Daniel to the maximum penalty provided for by Texas law — life in prison and a $10,000 fine. Judge Bacon offered Daniel an opportunity to speak after sentencing, but Daniel declined.

On October 19, 1994, Daniel moved for a new trial on the grounds that: (1) Leitner's assurance that Judge Hatten would be the sentencing judge rendered his guilty plea involuntary under the United States and Texas Constitutions; (2) Leitner's failure to object to sentencing by Judge Bacon constituted ineffective assistance of counsel under the Texas Constitution; (3) Leitner's assurance constituted ineffective assistance of counsel under the Texas Constitution; and (4) Daniel's life sentence constituted cruel or unusual punishment and was foreign to due course of law under the Texas Constitution. On November 30, 1994, Judge Bacon denied the motion.

Daniel continued to advance these four issues on direct appeal. On March 13, 1997, the conviction was affirmed on direct appeal by the Court of Appeals for the Fourteenth District of Texas. Daniel v. State of Texas, 1997 WL 109988 (Tex.App.-Hous. (14 Dist.)). On August 13, 1997, the Texas Court of Criminal Appeals denied Daniel's petition for discretionary review. Daniel did not seek review in the United States Supreme Court.

On August 6, 1998, Daniel filed a petition for post-conviction relief in state court, arguing only that his plea was involuntary under Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). On October 28, 1998, the trial court, Judge William Hatten presiding, recommended denial of the petition on the merits, adopting the State's proposed findings of fact and order. On March 31, 1999, the Texas Court of Criminal Appeals denied relief on the basis of the trial court's findings. Daniel did not seek review in the United States Supreme Court.

On June 30, 1999, Daniel filed the instant federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 19, 2000, the district court granted the State's motion for summary judgment and dismissed the petition. The district court granted a certificate of appealability as to three issues, namely whether: (1) Daniel's guilty plea was involuntary because of Leitner's assurance that Judge Hatten would impose sentence; (2) Leitner's assurance constituted ineffective assistance of counsel; and (3) the district court correctly concluded that the Teague doctrine precluded relief.³ Daniel also argued in the district court that counsel was ineffective for failing to object to Judge Bacon's participation at sentencing, but the district court did not grant a certificate of appealability on that issue, and it is therefore not before us. On July 13, 2000, Daniel filed notice of appeal to this Court.

I. Standard of Review

Daniel presented his federal Brady claim to the State on direct appeal and in his state habeas petition. The State rejected this claim without relying on a procedural bar. There appears no basis on which the State could have disposed of this claim on procedural grounds. Daniel's Brady claim was, therefore, adjudicated on the merits in state court and is entitled to review under the deferential standard of 28 U.S.C. § 2254(d).⁴

In contrast, Daniel's ineffective assistance of counsel claims relied exclusively on state law and alleged violation only of the Texas Constitution. All three times Daniel argued his ineffective assistance of counsel claims before the state courts he specifically stated that the applicable standard was not that set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). At that time, Texas did not require a showing of prejudice to establish ineffective assistance of counsel in the noncapital sentencing context. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App.1999) (overruling Ex Parte Cruz, 739 S.W.2d 53 (Tex.Crim.App. 1987), which had held Strickland inapplicable). Because Daniel did not argue that his rights under the Sixth Amendment had been violated, specifically disclaimed reliance on the federal ineffective assistance of counsel standard and proceeded solely under a materially different theory of establishing ineffective assistance of counsel, Daniel's federal ineffective assistance of counsel claim was not adjudicated on the merits in state court. Likewise, because the "substantial equivalent" of the Strickland claim Daniel now advances was not "fairly presented" in any state court, Daniel has clearly not exhausted this claim. See Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir.1998). The State has not argued Daniel's failure to exhaust this claim as a ground for dismissal of his petition. Nevertheless, 28 U.S.C. § 2254(b)(1)(A)⁵ prevents this Court from granting Daniel's petition unless the State, through counsel, has expressly waived the exhaustion requirement. The State has not expressly waived the exhaustion requirement. 28 U.S.C. § 2254(b)(2)⁶ empowers this Court to deny Daniel's application notwithstanding his failure to exhaust his federal claims in state court.

The deferential standard of section 2254(d) applies to Daniel's Brady claim but not to his ineffective assistance of counsel claim. Review of the latter is governed by the principles of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Fisher v. Texas, 169 F.3d 295, 304 (5th Cir.1999) ("Teague still applies to a petitioner's claim that has not been adjudicated on the merits by a state court and that is not procedurally barred."). If, applying the AEDPA (28 U.S.C. § 2254(d)) to Daniel's Brady claim and Teague to his ineffective assistance of counsel claim, we are not able to deny all relief, then we would ordinarily be required to dismiss Daniel's entire petition for failure to comply with the exhaustion requirement.⁷

II. Voluntariness of Daniel's Plea

Daniel argues that his guilty plea was involuntary because it was induced by Leitner's unfulfilled promise that Judge Hatten would be the sentencing judge. In his affidavit, Daniel states: "Had I known when I waived my rights and entered a plea to Judge Hatten he was not going to...