United States District Court, W.D. Texas, San Antonio Division
KENNETH LEE LENZ, TDCJ No. 02061901, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
Alan Ezra, Senior United States Distict Judge
the Court are Petitioner Kenneth Lenz's Petition for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Docket
Entry “DE” 1) and the Respondent's Answer (DE
11). Although Petitioner requested, and received, an
extension of time to file a reply, no such pleading was
filed. This case is thus ripe for review.
December 2016, Petitioner pleaded guilty to
manufacture/delivery of a controlled substance (enhanced) and
was sentenced to twelve years of imprisonment pursuant to a
plea agreement. He now challenges the constitutionality of
his state court conviction and sentence, arguing (1) his
counsel was ineffective for failing to ensure the State
abided by the terms of the plea offer he agreed to-namely,
that he would plead guilty only to possession of a controlled
substance with no enhancements; (2) the State breached the
plea agreement; and (3) his sentence is therefore illegal.
Having reviewed the record and pleadings submitted by both
parties, the Court concludes Petitioner is not entitled to
relief under the standards prescribed by the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). See
28 U.S.C. § 2254(d).
September 2014, Petitioner was indicted in Guadalupe County,
Texas, on two counts: (1) possession of a chemical precursor
with intent to manufacture a controlled substance
(Methamphetamine), and (2) possession with intent to deliver
a controlled substance (same) in an amount of one gram or
more but less than four grams. (DE 10-4 at 30-31). The
indictment also contained a repeat offender enhancement
showing Petitioner had previously been convicted of the
felony offense of possession of a controlled substance in an
amount greater than four grams but less than two-hundred
grams. Petitioner pleaded guilty and was sentenced to twelve
years' imprisonment pursuant to the terms of the plea
bargain agreement. State v. Lenz, No. 14-1922-CR-B
(274th Dist. Ct., Guadalupe Cnty., Tex. Dec. 16, 2015).
did not appeal his conviction and sentence because he waived
his right to appeal when he pleaded guilty. (DE 10-4 at 128,
131). Instead, he filed a state habeas corpus application on
August 2, 2016, raising the same allegations that are now
being presented to this Court. On September 28, 2016, the
state habeas application was denied without written order by
the Texas Court of Criminal Appeals. Ex parte Lenz,
No. 85, 679-01 (Tex. Crim. App.). (DE 10-1). The instant
federal habeas petition was placed in the prison mail system
on December 10, 2016, and file-marked on December 12, 2016.
Standards of Review
Review of State Court Adjudications
federal petition is governed by the heightened standard of
review provided by the AEDPA. 28 U.S.C.A. § 2254. Under
§ 2254(d), a petitioner may not obtain federal habeas
corpus relief on any claim that was adjudicated on the merits
in state court proceedings, unless the adjudication of that
claim either: (1) resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court
of the United States, or (2) resulted in a decision that was
based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceeding.
Brown v. Payton, 544 U.S. 133, 141 (2005). This
intentionally difficult standard stops just short of imposing
a complete bar on federal court relitigation of claims
already rejected in state proceedings. Harrington v.
Richter, 562 U.S. 86, 102 (2011) (citing Felker v.
Turpin, 518 U.S. 651, 664 (1996)).
federal habeas court's inquiry into unreasonableness
should always be objective rather than subjective, with a
focus on whether the state court's application of clearly
established federal law was “objectively
unreasonable” and not whether it was incorrect or
erroneous. McDaniel v. Brown, 558 U.S. 120 (2010);
Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). Even
a strong case for relief does not mean the state court's
contrary conclusion was unreasonable, regardless of whether
the federal habeas court would have reached a different
conclusion itself. Richter, 562 U.S. at 102.
Instead, a petitioner must show that the decision was
objectively unreasonable, which is a “substantially
higher threshold.” Schriro v. Landrigan, 550
U.S. 465, 473 (2007); Lockyer v. Andrade, 538 U.S.
63, 75-76 (2003). So long as “fairminded jurists could
disagree” on the correctness of the state court's
decision, a state court's determination that a claim
lacks merit precludes federal habeas relief.
Richter, 562 U.S. at 101 (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). In other words, to
obtain federal habeas relief on a claim previously
adjudicated on the merits in state court, Lenz must show that
the state court's ruling “was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103; see
also Bobby v. Dixon, 565 U.S. 23, 24 (2011).
except for the narrow exceptions contained in §
2254(e)(2), a habeas petitioner is precluded from further
factual development in federal court and must rely on the
evidence presented to the state court when challenging a
state court finding. Cullen v. Pinholster, 563 U.S.
170, 181-82 (2011). Reasoning that “[i]t would be
strange to ask federal courts to analyze whether a state
court's adjudication resulted in a decision that
unreasonably applied federal law to facts not before the
state court, ” Pinholster explicitly held that
“[i]f a claim has been adjudicated on the merits by a
state court, a federal habeas petitioner must overcome the
limitation of § 2254(d)(1) on the record that was before
that state court.” Id. Thus, “evidence
introduced in federal court has no bearing on §
2254(d)(1) review” and this Court's review
“is limited to the record in existence at the time [of
the state court decision], i.e., the record before the state
Review of Sixth Amendment Claims
Court reviews Sixth Amendment claims concerning the alleged
ineffective assistance of trial counsel (IATC claims) under
the familiar two-prong test established in Strickland v.
Washington, 466 U.S. 668 (1984). Under
Strickland, a petitioner cannot establish a
violation of his Sixth Amendment right to counsel unless he
demonstrates (1) counsel's performance was deficient and
(2) this deficiency prejudiced his defense. 466 U.S. at
687-88, 690. According to the Supreme Court,
“[s]urmounting Strickland's high bar is
never an easy task.” Padilla v. Kentucky, 559
U.S. 356, 371 (2010).
determining whether counsel performed deficiently, courts
“must be highly deferential” to counsel's
conduct, and a petitioner must show that counsel's
performance fell beyond the bounds of prevailing objective
professional standards. Id. at 687-89. Counsel is
“strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of
reasonable professional judgment.” Burt v.
Titlow, 134 S.Ct. 10, 17 (2013) (quoting
Strickland, 466 U.S. at 690). “A conscious and
informed decision on trial tactics and strategy cannot be the
basis for constitutionally ineffective assistance of counsel
unless it is so ill chosen that it permeates the entire trial
with obvious unfairness.” Cotton v. Cockrell,
343 F.3d 746, 752-53 (5th Cir. 2003). As the Supreme Court
explained, “[j]ust as there is no expectation that
competent counsel will be a flawless strategist or tactician,
an attorney may not be faulted for a reasonable
miscalculation or lack of foresight or for failing to prepare
for what appear to be remote possibilities.”
Richter, 562 U.S. at 110. For this reason, every
effort must be made to eliminate the “distorting
effects of hindsight.” Strickland, 466 U.S. at
689; Yarborough v. Gentry, 540 U.S. 1, 6
(2003) (“The Sixth Amendment guarantees ...