United States District Court, N.D. Texas, Dallas Division
Logan M. Drumm, #2032303, Petitioner,
Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Div., Respondent.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER MAGISTRATE JUDGE.
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.
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.
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
Federal Habeas Corpus Proceedings
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
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.
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
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).
EFFECT OF GUILTY PLEA
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).
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.”).
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.
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.
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
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.
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.
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 ...