United States District Court, N.D. Texas
MEMORANDUM OPINION AND ORDER
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 filed by petitioner, Wisdom Lee Simms Jr., a
state prisoner confined in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ),
against Lorie Davis, director of TDCJ, respondent. After
having considered the pleadings, state court records, and
relief sought by petitioner, the court has concluded that the
petition should be denied.
April 21, 2015, pursuant to a plea agreement, petitioner
pleaded guilty in the 297th District Court, Tarrant County,
Texas, No. 1384786D, to one count of robbery by threats and
true to having a prior felony conviction and was sentenced to
20 years' imprisonment in TDCJ. (SHR 196-205, doc. 15-11.)
Petitioner did not appeal the trial court's judgment of
conviction but did seek postconviction state habeas relief
by-filing a state habeas-corpus application, which was denied
by the Texas Court of Criminal Appeals without written order
on the findings of the trial court. (SHR 2-18, doc. 15-10
& Action Taken, doc. 10-1; O2SHR, Action Taken, doc.
10-3; O3SHR, Action Taken, doc. 10-10-54.) This federal
trial counsel summarized the facts of the case as follows:
On August 30, 2014, at 0018 hours, [petitioner] entered the
7-11 located at 13351 South Freeway in Fort Worth, Texas.
[Petitioner] complained of muscle cramps and was directed to
the pharmacy area of the store by a female clerk.
[Petitioner] selected several items and approached the
checkout register. [Petitioner] left the store stating he
left his card in his car. [Petitioner] returned to the store
with a black object wrapped in a green towel telling the
clerk that the had a bad day. [Petitioner] told the clerk
several times, "Don't make me hurt you. Hurry, I
have a gun." Fearing for her life, the clerk gave
[petitioner] the contents of the register. [Petitioner]
instructed the clerk to go to the restroom and left the store
in a Silver Dodge Avenger.
Detective K.D. Koralewski with the Fort Worth Police
Department was assigned the case for follow-up investigation.
Detective Koralewski retrieved the store surveillance footage
from the robbery and prepared a bulletin with a still frame
of [petitioner] and his vehicle and distributed to patrol
On September 6, 2014, Fort Worth police located [petitioner]
at the Oasis Motel. [Petitioner] was standing near a Silver
Dodge Avenger. Officers obtained complete identification for
[petitioner] and took photos of [petitioner] and his vehicle
with a digital camera.
On September 8, 2014, Detective Koralewski prepared a
six-person lineup containing [petitioner] and 5 other males
with similar appearance and characteristics. Detective
Koralewski presented the lineup to the female clerk and she
identified [petitioner] as the person who robbed her.
(SHR 37-38, doc. 15-10.)
raises four grounds for relief. In grounds one, two, and
three, petitioner claims he received ineffective assistance
of trial counsel because counsel-
(1) failed to request a competency evaluation;
(2) failed to investigate his long history of mental illness;
(3) had a conflict of interest.
ground four, petitioner claims counsel's cumulative
errors resulted in him being "sentenced unknowing and
involuntary."(Pet. 6-7, doc. 1.)
RULE 5 STATEMENT
believes that petitioner has exhausted his state court
remedies and that the petition is neither successive nor
untimely. (Resp't's Answer 3, doc. 11.)
STANDARD OF REVIEW
§ 2254 habeas petition is governed by the heightened
standard of review provided for by the Anti-Terrorism and
Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254.
Under the Act, a writ of habeas corpus should be granted only
if a state court arrives at a decision that is contrary to or
an unreasonable application of clearly established federal
law as determined by the United States Supreme Court or that
is based on an unreasonable determination of the facts in
light of the record before the state court. Harrington v,
Richter, 562 U.S. 86, 100-01 (2011); 28 U.S.C. §
2254(d)(1}-(2). Additionally, the statute reguires that
federal courts give great deference to a state court's
factual findings. Hill v. Johnson, 210 F.3d 481, 485
(5th Cir. 2000). Section 2254(e) (1) provides that a
determination of a factual issue made by a state court shall
be presumed to be correct. It is the petitioner's burden
to rebut the presumption of correctness through clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). Finally,
when the Texas Court of Criminal Appeals, the state's
highest criminal court, denies relief on a state
habeas-corpus application without written order, typically it
is an adjudication on the merits, which is likewise entitled
to this presumption. Richter, 562 U.S. at 100;
Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim.
App. 1997}. In such a situation, a federal court "should
'look through' the unexplained decision to the last
related state-court decision providing" particular
reasons, both legal and factual, "presume that the
unexplained decision adopted the same reasoning, " and
give appropriate deference to that decision. Wilson v.
Sellers, __U.S. __, 138 S.Ct. 1188, 1191-92 (2018).
criminal defendant has a constitutional right to the
effective assistance of counsel at trial. U.S. Const, amend.
VI, XIV; Evitts v. Lucey, 469 U.S. 387, 396 (1985);
Strickland v. Washington, 466 U.S. 668, 688 (1984).
To prevail on an ineffective assistance claim in the context
of a guilty plea, a defendant must demonstrate that his plea
was rendered unknowing or involuntary by showing that (1)
counsel's representation fell below an objective standard
of reasonableness, and (2) there is a reasonable probability
that, but for counsel's deficient performance, he would
not have pleaded guilty and would have insisted on going to
trial. Hill v. Lockhart, 474 U.S. 52, 56-59 (1985);
Smith v, Estelle, 711 F.2d 677, 682 (5th Cir. 1983);
see also Strickland, 466 U.S. at 687. In assessing
the reasonableness of counsel's representation,
"counsel should be 'strongly presumed to have
rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.'" Cullen v. Pinholster, 563 U.S.
170, 189 (2011) (quoting Strickland, 466 U.S. at
by entering a knowing, intelligent and voluntary guilty plea,
a defendant waives all nonjurisdictional defects in the
proceedings preceding the plea, including all claims of
ineffective assistance of counsel that do not attack the
voluntariness of the guilty plea. Smith, 711 F.2d at
682; Bradbury v. Wainwright, 658 F.2d 1083, 1087
(5th Cir. 1981). A guilty plea is knowing, voluntary and
intelligent if done with sufficient awareness of the relevant
circumstances and likely consequences surrounding the plea.
Brady v. United States, 397 U.S. 742, 748 (1970). If
a challenged guilty plea is knowing, voluntary and
intelligent, it will be upheld on federal habeas review.
James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995).
first two grounds, petitioner asserts that trial counsel,
Lesa Pamplin, was ineffective by failing to request a
competency evaluation of him before trial and to investigate
his long history of mental illness. He contends that on the
day of trial, he was brought to court from a "MHMR
special housing unit" where he was undergoing
"intensive psycho analysis" (IPA); heavily
medicated under the supervision of a doctor who had changed
and increased his psychotropic medication; sleep- deprived,
malnourished, glassy-eyed, disheveled, disoriented, and
confused; and clothed in prison suicide garb.
(Pet'r's Mem. 20, doc. 2.} He argues that these
circumstances should have alerted counsel and raised a bona
fide doubt as to his competence to stand trial.
(Id.; Pet'r's Traverse 9-10, doc. 19.)
Counsel filed an affidavit in the state habeas proceeding
responding to petitioner's allegations, in relevant part,
as follows (all spelling, grammatical, and/or punctuation
errors are in the original):
Defense Counsel was originally appointed to represent
[petitioner] on June 6, 2014, on a drug charge and again on
September 15, 2014, after [petitioner] was charged with two
robberies. On September 16, 2014, Defense Counsel filed 39.14
Motions to obtain discovery on the cases. Defense Counsel
received discovery containing the injured parties'
interviews, video surveillance of the hotel, still images,
the store surveillance, and still photos from the 7-11.
On November 11, 2014, Counsel was present at
[petitioner]'s consultation court setting. Assistant
District Attorney Lisa Callahan was assigned to
[petitioner]'s case. The State's initial offer to
[petitioner] was Forty (40} years in [TDCJ]. [Petitioner]s
criminal history is as follows:
Cause Number 8OCR4O99 - Attempted First Degree Rape - Twenty
Years (20) Jury Trial
Cause Number 80CR4100 - Kidnapping - Thirty-Five Years (35} -
Cause Number 92CRS10656 - Common Law Robbery - Ten Years (10)
Cause Number 92CRS10657 - Common Law Robbery - Ten Years (10}
Cause Number 92CRS10658 - Common Law Robbery - Ten Years (10)
Cause Number 92CRS1807 - Common Law Robbery - Ten Years (10)
Cause Number 04CRS054297 Common Law Robbery -12-15 months -
Cause Number 10CRS000527 - Felony Probation Violation - 8-10