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Lawler v. Director, TDCJ-CID

United States District Court, E.D. Texas, Tyler Division

August 2, 2017

SHAUN MARK LAWLER, #1812149
v.
DIRECTOR, TDCJ-CID

          ORDER OF DISMISSAL

          RON CLARK, UNITED STATES DISTRICT JUDGE.

         Petitioner Shaun Mark Lawler, an inmate confined in the Texas prison system, filed the above-styled and numbered petition for a writ of habeas corpus challenging his Smith County conviction for aggravated assault with a deadly weapon, in violation of the state laws of Texas. Mr. Lawler entered an open plea of guilty, was found guilty, and was sentenced to fifty-five years in prison.

         The federal petition was referred to United States Magistrate Judge John D. Love, who issued a Report and Recommendation on June 14 2017, concluding that the petition for a writ of habeas corpus should be dismissed with prejudice. (Dkt. #14). Petitioner filed objections to the Report and Recommendation. (Dkt. #21).

         Where objections to a magistrate judge's report are filed, the district court reviews the recommendation de novo pursuant to Federal Rule of Civil Procedure 72. See also 28 U.S.C § 636(b) (1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made.”). During a de novo review a court examines the entire record and makes an independent assessment of the law. The court should not conduct a de novo review when the objections are frivolous, conclusive, or too general. 1 See Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir.1987).

         In his objection, Mr. Lawler repeats his argument that his guilty plea was not voluntary because he was not informed that he could present a constitutional challenge to the statutory punishment for aggravated assault. Mr. Lawler again urges this Court to find that his trial counsel was constitutionally ineffective because counsel failed to advise him that he could challenge the facial constitutionality of the statutory punishment scheme for aggravated assault-family violence. Mr. Lawler contends that the First Degree Felony offense of aggravated assault-family violence, with which he was charged, carries a stiffer punishment than a homicide charge that is subsequently mitigated during the punishment phase by evidence of sudden passion. Compare Tex. Penal Code Ann. § 22.02 (b) (1)(Vernon 2011) to Tex. Penal Code Ann. § 19, 02 (d) (Vernon 2011). Mr. Lawler asserts that trial counsel had a duty to explain to him that the first degree punishment range applicable to this case was greater than that which would have applied if he had killed his victim. His claim is based upon the argument that it is unconstitutional for the mitigated punishment range in a homicide case to be less than for an aggravated assault that involves the use of a deadly weapon in causing a serious bodily injury against a family member as described by the Penal Code.

         In support of his allegation in his state writ, Mr. Lawler, through counsel Randy Schaffer, submitted an affidavit from his trial attorney, Jeff Haas, stating that:

Aggravated assault ordinarily is a second degree felony. However, it is a first degree felony if the actor uses a deadly weapon and causes serious bodily injury to a person with whom he is in a household or dating relationship. Thus, the maximum punishment for causing serious bodily injury to a girlfriend with a deadly weapon (life) is substantially greater than the maximum punishment for killing her under the immediate influence of sudden passion arising from an adequate cause (20 years). I did not discuss with Lawler that he could file a motion contending that the statutory punishment scheme for aggravated assault-family violence is facially unconstitutional because it subjects persons to greater punishment for causing serious bodily injury to a spouse or girlfriend with a deadly weapon than for killing her in the heat of passion.

SHCR-01 (“Writ Received”), at 52-53 (Affidavit of Jeff Haas).

         This claim, that it is unconstitutional for the mitigated punishment range in a homicide case to be less than for an aggravated assault that involves the use of a deadly weapon in causing a serious bodily injury against a family member as described by the Penal Code, is not supported by Texas jurisprudence. Mr. Lawler fails to cite or discuss Texas law or the specific Texas statutes that he has attacked in his federal petition and objections. These cases do not stand for his proposition that the sentencing ranges for Penal Code § 22.02 (b) (1) and Penal Code § 19.02 (d) are unconstitutional because the Texas Legislature decided that the sentence for a homicide conviction may be mitigated by proof of a defendant's sudden passion.

         The Court of Criminal Appeals held that a defendant may not raise for the first time on appeal a facial challenge to the constitutionality of a statute. See Karenev v. State, 261 S.W.3d 428, 434 (Tex. Crim. App. 2009)(a facial challenge to the constitutionality of statute falls within the category of rights that can be forfeited). In so holding, the Court explained that statutes are presumed to be constitutional until it is determined otherwise and “[t]he State and the trial court should not be required to anticipate that a statute may later be held to be unconstitutional.” Id. When the constitutionality of a statute is at issue, we presume the statute is valid and that the legislature did not act unreasonably or arbitrarily in enacting the statute. Weyandt v. State, 35 S.W.3d 144, 155 (Tex. App.-Houston [14th Dist.] 2000, no pet.). The burden rests on the moving party to establish its unconstitutionality. Id. Courts will uphold the statute if a reasonable construction of it can be determined which will render it constitutional and carry out the legislative intent. Weyandt, 35 S.W.3d at 155.

         Further, case law has long provided that punishment which falls within the limits prescribed by a valid statute is not excessive, cruel, or unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W, 2d 949, 952 (Tex. Crim. App. 1973). Texas courts consistently deny claims questioning the constitutional validity of statutorily sanctioned punishment. See, e.g., Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Rodriguez v. State, 614 S.W, 2d 448, 450 (Tex. Crim. App. 1981); Hypke v. State, 720 S.W, 2d 158, 160 (Tex. App. - Houston [14th Dist] 1986, pet. ref'd).

         Hypke reaffirms the reasoning in Rummel v. Estelle, 445 U.S. 263, 272 (1980) that Texas courts must defer to the Legislature in determining appropriate sentencing for various crimes. Hypke, 720 S.W.2d at 160. In Rummel, the U.S. Supreme Court noted that it is extremely rare for petitioners to have a cruel and unusual punishment argument sustained in any context outside that of capital punishment because of the great deference allowed state legislatures in determining sentencing. Rummel, 445 U.S. at 272.

         The Supreme Court again explicitly reaffirmed this perspective in Solem v. Helm, 463 U.S. 277 (1983), where it stated that:

In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a ...

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