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Drumm v. Davis

United States District Court, N.D. Texas, Dallas Division

February 13, 2019

Logan M. Drumm, #2032303, Petitioner,
v.
Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Div., Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          RENEE HARRIS TOLIVER MAGISTRATE JUDGE.

         Pursuant to 28 U.S.C. § 636(b) and Special Order 3, the petition for writ of habeas corpus under 28 U.S.C. § 2254 was referred to the United States magistrate judge for a recommended disposition. Upon review of the relevant pleadings and applicable law, the habeas corpus petition should be DENIED.

         I. Background

         Petitioner Logan M. Drumm pleaded guilty to possession of a firearm by a felon, aggravated assault with a deadly weapon, and manslaughter, and was sentenced to 30 years' imprisonment. Doc. 24-1 at 112; Doc. 24-26 at 114, Doc. 24-38 at 120. Drumm did not file a direct appeal. See Doc. 8 at 3. On August 23, 2017, the Texas Court of Criminal Appeals (TCCA) denied state habeas relief on the findings of the trial court, without a hearing or written order. Ex Parte Drumm, No. WR-86, 840-01, Doc. 24-3; No. 86, 840-02, Doc. 24-15; No. 86, 840-03, Doc. 24-27.

         Drumm filed the Section 2254 petition in this case on November 15, 2017, alleging that his trial counsel provided ineffective assistance. Doc. 8. The Government filed a response, arguing that the petition is untimely and, alternatively, fails on the merits. Doc. 23. Drumm filed a reply. Doc. 25

         II. Federal Habeas Corpus Proceedings

         The role of federal courts in reviewing habeas corpus petitions by prisoners in state custody is exceedingly narrow. When reviewing state proceedings, a federal court does not sit as a super state appellate court. Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir. 1986). A person seeking federal habeas corpus review must assert a violation of a federal constitutional right. Lowery v. Collins, 988 F.2d 1364, 1367 (5th Cir. 1993). Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also present. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); West v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996).

         Federal habeas corpus relief for state prisoners has been further limited by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The provisions of Section 2254(d) provide that an application for a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (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. Williams v. Taylor, 529 U.S. 362, 402-03 (2000); see Childress v. Johnson, 103 F.3d 1221, 1224-25 (5th Cir. 1997). As a condition for obtaining habeas corpus relief from a federal court, a state prisoner must show that the state court's ruling on the claim was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement. Harrington v. Richter, 562 U.S. 86, 102-03 (2011). A petitioner must show there was no reasonable basis for the state court to deny relief. Id. at 98.

         A federal district court must be deferential to state court findings supported by the record. See Pondexter v. Dretke, 346 F.3d 142, 149-152 (5th Cir. 2003). The AEDPA has modified a federal habeas court's role in reviewing state prisoner applications to prevent federal habeas “retrials” and to ensure that state court convictions are given effect to the extent possible under law. Bell v. Cone, 535 U.S. 685, 693 (2002). A state application that is denied without written order by the Texas Court of Criminal Appeals is an adjudication on the merits. Singleton v. Johnson, 178 F.3d 381, 384 (5thCir. 1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) (a “denial” signifies an adjudication on the merits while a “dismissal” means the claim was declined on grounds other than the merits).

         A state court's factual findings “shall be presumed to be correct” unless petitioner carries “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). This presumption of correctness also applies to unarticulated findings that are necessary to the state court's conclusions of mixed law and fact. Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th Cir. 2001).

         III. EFFECT OF GUILTY PLEA

         Drumm pleaded guilty pursuant to a plea agreement. A guilty plea generally waives constitutional deprivations occurring prior to the plea, Haring v. Prosise, 462 U.S. 306, 319-20 (1983). Moreover, a knowing and voluntary guilty plea waives all nonjurisdictional defects that occurred prior to the plea. Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v. Bell, 966 F.2d 914, 915 (5th Cir.1992). This waiver includes all claims of ineffective assistance of counsel, except those relating to the defendant's entry of a guilty plea. Smith v. Estelle, 711 F.2d 677, 682 (5th Cir.1983).

         Although transcripts of Drumm's plea hearing are not available, the Court notes the TCCA's finding that Drumm “has not been denied any rights guaranteed him by the Constitution of the United States . . . and that he “is lawfully restrained and confined by [the state of Texas.].” Doc. 24-41 at 11, Doc. 24-42 at 11, Doc. 24-43 at 11. Thus, “‘the precise question . . . is whether the [state] court's ultimate conclusion . . . is objectively unreasonable.'” Pondexter, 346 F.3d at 148-49 (quoting Neal v. Puckett, 286 F.3d 230, 246); Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001) (“The statute compels federal courts to review for reasonableness the state court's ultimate decision, not every jot of its reasoning.”).

         A plea is intelligently made when the defendant has “real notice of the true nature of the charge against him.” Bousley v. United States, 523 U.S. 614, 618 (1998) (internal quotation marks omitted). And 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). Drumm does not argue that his plea was unknowing or involuntary, and the record does not support such a conclusion. See Doc. 8 at 9-11.

         A review of the record reveals that Drumm signed a “Judicial Confession[]” and other guilty plea papers that included the “Court's Admonishments to Defendant” and “Defendant's Statements and Waivers, ” Doc. 24-1 at 106-10, Doc. 24-26 at 109-13, Doc. 24-38 at 115-119. In these documents, Drumm acknowledged his rights, was informed of the applicable range of punishment, and affirmed:

[defense counsel] explained to me and I have read and I understand, all the foregoing admonitions 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. I request that the Court accept all my waivers, statements, agreements, and my plea.

Doc. 24-1 at 109, Doc. 24-26 at 112, Doc. 24-38 at 118. “Official documents-such as a written plea agreement-are ‘entitled to a presumption of regularity and are accorded great evidentiary weight.'” United States v. McDaniel, 907 F.3d 366, 371 (5th Cir. 2018) (quoting Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985). Consequently, the Court finds that Drumm's guilty pleas were knowing and voluntary and, thus, waives all of his pre-plea ineffective assistance of counsel claims except those that relate to the entry of his guilty pleas. Tollett, 411 U.S. at 267; Smith, 711 F.2d at 682.

         IV. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

         Drumm alleges his counsel provided ineffective assistance by: (1) failing to have his mental health assessed or investigated prior to pleading guilty; (2) failing to advise him on defense strategies; (3) failing to interview Rebecca Chapman regarding as possible strategy of self-defense; (4) failing to investigate whether the complainants were armed and had previously threatened Drumm; and (5) failing to request a presentence investigation, Doc. 8 at 9-11. Because Drumm's knowing and voluntary guilty plea waived all nonjurisdictional deprivations that occurred prior to the plea, Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v. Diaz, 733 F.2d 371, 376 (5th Cir. 1984), three of the five claims are waived: Drumm's IAC claims regarding failure provide defense strategies, failure to interview witness Rebecca Chapman, and failure to investigate the complainants, all claim nonjurisdictional defects. Thus remain only two grounds that are arguably related to the voluntariness of Drumm's guilty plea: counsel's alleged failure to have Drumm's mental health assessed or investigated prior to his guilty plea, and counsel's alleged failure to request a presentence investigation.

         A. Applicable Law

         To establish ineffective assistance of trial counsel, a petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S. 668, 687. To establish deficient performance, a petitioner must show that his attorney's actions “fell below an objective standard of reasonableness.” Id. at 688. In evaluating an attorney's performance, there is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, ” or that “under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689.

         Under Strickland's prejudice prong, a petitioner additionally must demonstrate that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. Petitioner must “affirmatively prove, not just allege, prejudice. Id. at 693. If he fails to prove the prejudice component, the court need not address the question of counsel's performance. Id. at 691. Additionally, “[t]he likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112. In the context of a guilty plea, a petitioner must show ...


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