Ojena v. Thaler, 3-10-CV-260I-P-BD
| Decision Date | 25 August 2011 |
| Docket Number | NO. 3-10-CV-260I-P-BD,3-10-CV-260I-P-BD |
| Parties | JASON ALLAN OJENA Petitioner, v. RICK THALER, Director Texas Department of Criminal Justice, Correctional Institutions Division Respondent. |
| Court | U.S. District Court — Northern District of Texas |
Petitioner Jason Allan Ojena, a Texas prisoner, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
Petitioner entered an open plea of guilty to four cases of aggravated robbery with a deadly weapon. After hearing evidence on punishment, the trial court sentenced petitioner to four concurrent terms of 23 years confinement. His convictions and sentences were affirmed on direct appeal. Ojena v. State, Nos. 05-08-00972-CR, 05-08-00973-CR, 05-08-00974-CR & 05-08-00975-CR, 2009 WL 866379 (Tex. App.-Dallas, Apr. 1, 2009, no pet.). Petitioner also challenged his convictions in separate applications for state post-conviction relief. The applications were denied without written order on the findings of the trial court. Ex parte Ojena, WR-61,829-06, WR-61,829-07, WR-61,829-08 & WR-61,829-09 (Tex. Crim. App. Sept. 8, 2010). Petitioner then filed this action in federal district court.
In six grounds for relief, petitioner contends that: (1) his guilty plea was involuntary; (2) the prosecutor failed to disclose exculpatory evidence; (3) the indictments were defective; (4) he received ineffective assistance of counsel; (5) the evidence was insufficient to prove that he used or exhibited a deadly weapon in the commission of the robberies; and (6) his guilty plea and resulting convictions were the result of a conspiracy between the prosecutor and defense counsel.
The threshold issue in this case involves the validity of petitioner's guilty plea. It is axiomatic that a guilty plea is valid only if entered voluntarily, knowingly, and intelligently, "with sufficient awareness of the relevant circumstances and likely consequences." Bradshaw v. Stumpf, 545 U.S. 175, 183, 125 S.Ct. 2398, 2405, 162 L.Ed.2d 143 (2005), quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). A plea is intelligently made when the defendant has "real notice of the true nature of the charge against him[.]" Bonsley v. United States, 523 U.S. 614, 618, 118 S.Ct. 1604, 1609,140 L.Ed.2d 828 (1998), quoting Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859 (1941). A plea is "voluntary" if it does not result from force, threats, improper promises, misrepresentations, or coercion. See United States v. Amaya, 111 F.3d 386, 389 (5th Cir. 1997). The Fifth Circuit has identified three core concerns in a guilty plea proceeding: (1) the absence of coercion; (2) a full understanding of the charges; and (3) a realistic appreciation of the consequences of the plea. See United States v. Gratia, 983 F.2d 625, 627-28 (5th Cir. 1993), citing United States v. Dayton, 604 F.2d 931 (5th Cir. 1979), cert, denied, 100 S.Ct. 1080 (1980). These core concerns are addressed by the admonishments contained in Tex.Code Crim. Proc. Ann. art. 26.13. See Davis v. Quarterman, No. 3-08-CV-2145-L, 2009 WL 1058059 at *2 (N.D. Tex. Apr. 17, 2009).1
Prior to trial, petitioner rejected a 40-year plea offer and agreed to plead guilty to four cases of aggravated robbery with no recommendation on punishment. (See St. Writ Hrg. Tr. at 70-72). Written plea agreements were signed by petitioner, his attorney, and the prosecutor. See Ex parte Ojena, WR-61,829-06, WR-61,829-07, WR-61,829-08 & WR-61,829-09, Tr. at 83-84. Each agreement disclosed that the range of punishment for aggravated robbery was not less than five years nor more than 99 years or life imprisonment, and a possible fine not to exceed $10,000. Id., Tr. at 83. As part of the plea deal, petitioner waived the full panoply of his constitutional rights, including his right to a jury trial, his right to confront and cross-examine witnesses, his right to a speedy trial, and his privilege against self-incrimination. Id., Tr. at 84. By signing the plea agreement, petitioner acknowledged that "my attorney has explained to me, and I have read and understand, all the foregoing admonishments and warnings regarding my rights and my plea, and that my statements and waivers are knowingly, freely, and voluntarily made with full understanding of the consequences." Id. Petitioner also signed a judicial confession in each of the four cases admitting that he committed the offense as charged in the indictment. Id., Tr. at 85. At the plea hearing, petitioner confirmed that he reviewed all of the documents he signed with his attorney, that he understood his rights, and that he wanted to plead guilty. (See Plea Hrg. Tr. at 4). These declarations made in open court cany a strong presumption of verity in a subsequent habeas proceeding. See Skidmore v. Quarterman, No. 3-08-CV-1554-B, 2009 WL 2971774 at *2 (N.D.Tex. Sept. 15, 2009) (citing cases) ( that presumption of verity applies to written admonishments signed by defendant prior to entry of guilty plea).
In an attempt to overcome the presumption that his guilty plea was knowing and voluntary, petitioner contends that defense counsel promised that he would receive probation if he pled guilty. That accusation was answered by petitioner's former attorney, Heath Hyde, in sworn testimony before the state habeas court. Hyde acknowledged that he discussed probation with petitioner and his family, but denied ever guaranteeing or indicating that petitioner would definitely receive probation. (See St. Writ Hrg. Tr. at 81). Instead, Hyde explained to petitioner that the only way for him to get any type of drug treatment was to get probation, and the only way to get probation was an open plea to the judge. (See id. at 70-71). According to Hyde:
I have no way ever guaranteed probation. There's no way, you know, I could do that. It would be like guaranteeing a sentence from a jury. There's no way to do that. But the whole time it was insisted that we wanted drug treatment and probation and that was the only way. There was no situation of, you know, let's plead guilty to some type of prison time because the offer never changed. It never wavered, you know, from the 40 years.
(Id. at 71 -72). When asked if he could have told petitioner that he would try to get probation, Hyde said, (Id. at 81). Based on this testimony, the state habeas court found that Hyde told petitioner that he would try to get probation and the only way probation was available was with a guilty plea, but "he did not promise a probation." Ex parte Ojena, WR-61,829-06, WR-61,829-07, WR-61,829-08, WR-615829-09, Tr. at 73. Petitioner has failed to offer any evidence, much less clear and convincing evidence, to rebut that finding. Accordingly, this ground for relief should be overruled.2
In separate grounds for relief, petitioner contends that the prosecutor withheld exculpatory evidence and the indictments were defective. A voluntary guilty plea waives all non-jurisdictional defects in a criminal proceeding. See Tollett v. Henderson, 411 U.S. 258,265,93 S.Ct. 1602,1607, 36 L.Ed.2d 235 (1973); United States v. Jennings, 891 F.2d 93, 95 (5th Cir. 1989). This includes claims involving the failure to disclose exculpatory evidence, see Matthew v. Johnson, 201 F.3d 353, 366-70 (5th Cir.), cert, denied, 121 S.Ct. 291 (2000), and challenges to the sufficiency of the indictment, see Self v. Director, TDCJ-CID, No. 9-09-CV-61, 2009 WL 3161424 at *1 (E.D. Tex. Sept. 30, 2009). These grounds are waived by petitioner's voluntary guilty plea.
Petitioner also contends that the evidence was sufficient to prove only robbery, not aggravated robbery, because he used a toy gun during the commission of all four offenses. This claim fails for at least two reasons. First, "[n]o federal constitutional issue is raised by the failure of the Texas state court to require evidence of guilt corroborating a voluntary plea." Smith v. McCotter, 786 F.2d 697,702 (5th Cir. 1986), quoting Baker v. Estelle, 715 F. 2d 1031, 1036 (5th Cir. 1983), cert, denied, 104 S.Ct. 1609(1984). Second, the elements of robbery and aggravated robbery are the same, except that aggravated robbery requires an additional finding that the defendant used or exhibited a deadly weapon. See Penaloza v. State, __ S.W.3d __, 2011 WL 3570273 at *2 (Tex. App. --Houston [14th Dist.], Aug. 16, 201 l),citing TEX. PENAL CODE § 29.02 & 29.03. Here, petitioner signed judicial confessions admitting, inter alia, that he "use[d] and exhibited] a deadly weapon, to-wit: a FIREARM," in each of the four robberies. See Ex parte Ojena, WR-61,829-06,WR-61,829-07, WR-61,829-08 & WR-61,829-09, Tr. at 85. By accepting petitioner's guilty plea, the state court implicitly found that his judicial confessions were sufficient to establish the elements of the charged offenses. This ground for relief should be overruled.
Petitioner further argues that he received ineffective assistance of counsel. "The only claims that survive a guilty plea are those that implicate the validity of the plea itself." Keels v. Quarterman, No. 3-06-CV-2227-B, 2007 WL 2471578 at *l (N.D. Tex. Aug. 31, 2007) (citing cases). In his federal writ and supporting brief, petitioner criticizes his attorney for failing to conduct an independent investigation, for not filing any pretrial motions, and for failing to object to the indictment. (See Hab. Pet. at 7(a); Pet. Mem. Br. at 13-21). All these claims are based on events that occurred before petitioner pled guilty. None are jurisdictional in nature or impact the validity of his plea. Consequently, these grounds for relief are waived. See, e.g. United States v. Glinsey, 209 F.3d 386, 392 (5th Cir.), cert, denied, 121 S.Ct. 282 (2000) (...
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