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Dolph v. Director Tdcj-Cid

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

November 3, 2017

MARK ANTHONY DOLPH
v.
DIRECTOR, TDCJ-CID

          MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          RODNEY GILSTRAP UNITED STATES DISTRICT JUDGE.

         Mark Anthony Dolph, proceeding pro se, filed the above-styled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a conviction for unlawful possession of a firearm by a felon.

         The Court referred this matter to the Honorable Caroline M. Craven, United States Magistrate Judge, for consideration pursuant to 28 U.S.C. § 636 and applicable orders of this court. The Magistrate Judge has submitted a Report and Recommendation of United States Magistrate Judge recommending the petition be denied.

         The Court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record and pleadings. Petitioner filed objections to the Report and Recommendation. The Court must therefore conduct a de novo review of the objections in light of the record and the applicable law.

         Petitioner asserted the following grounds for review: (1) there was insufficient evidence he knowingly, intelligently and voluntarily waived his right to counsel; (2) the trial court erred in concluding his Miranda rights were not violated; (3) his indictment was defective; (4) his indictment contained an improper enhancement paragraph; (5) he received ineffective assistance of counsel at trial because counsel: (a) failed to object to the jury charge and (b) failed to investigate an improper enhancement paragraph in the indictment; and (6) he received ineffective assistance of counsel on appeal because appellate counsel failed to argue there was insufficient evidence to support the verdict. Petitioner only objects to the Magistrate Judge's conclusion regarding his first, second, fourth, fifth and sixth grounds for review.

         Ground for Review 1

         Petitioner contends there was insufficient evidence that he knowingly, intelligently and voluntarily waived his right to counsel. He asserts the trial court failed to admonish him regarding the nature of the charge against him, the statutory offense included within it, the range of allowable punishment, the possible defenses to the charge and any mitigating circumstances.

         Petitioner raised this ground for review on direct appeal. The intermediate appellate court stated that Derric McFarland, a public defender, was appointed to represent petitioner. However, on the day of jury selection, petitioner informed the court he wished to represent himself. In allowing Dolph to represent himself, the trial court determined petitioner's level of education and his mental competency and warned him that he would be required to comply with the applicable rules of evidence and procedure. In rejecting this ground for review, the intermediate appellate court stated:

We find that the record contains proper admonishments concerning pro se representation and all necessary inquiries to enable the trial court to assess Dolph's knowing exercise of the right to defend himself. Dolph's persistence in asserting his right of self-representation despite the court's admonishments was all that was required in order for the court to determine that the assertion was made purposefully.
Dolph's only complaint, then, is that there is “insufficient evidence that Appellant knowingly, intelligently, and voluntarily waived his right to counsel.” He asserts that “the admonishments that were crucial to Appellant's case were those related to the range of punishment, possible defenses to the statutory offense, and any mitigating circumstances.”
Dolph complains that “the admonishments that were crucial to [his] case were those related to the range of punishment, possible defenses to the statutory offense, and any mitigating circumstances.” To assess whether a waiver [of the right to counsel] is effective, courts consider the totality of the circumstances. This means that courts must examine “the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.”
At a pretrial hearing, the trial court instructed Dolph that he was “charged by indictment . . . with the unlawful possession of a firearm by a felon, with two prior felony convictions.” At the time, Dolph, represented by counsel, expressly waived the reading of the entire indictment. The State explained the range of punishment Dolph would face at trial:
For the record, Your Honor, the State made an offer to drop Mr. Dolph's enhancement paragraphs. He is double enhanced as an habitual offender, making his punishment range a minimum of 25 years to 99 or life. The State offered to drop those two enhancement paragraphs and plead Mr. Dolph to eight years. That offer expired last Friday. The State now makes an offer to plead him to 10 years today. Otherwise, his minimum will be 25 at trial.
McFarland asked Dolph if he understood the statement and the court asked if he understood the offer. Dolph responded affirmatively. Thus, the record shows that Dolph was aware of the charges against him as well as the range of punishment. Although Dolph complains that the trial court failed to admonish him about possible defenses to the charges and circumstances in mitigation thereof, there is no argument or evidence that any viable defense or mitigating circumstance existed or that the trial court had any information regarding possible defenses or mitigating circumstances.
Waiver of counsel is valid only if the defendant has a broad understanding of the entire matter. Dolph had full knowledge of the proceeding and waived counsel after extensive warnings ...

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