United States District Court, W.D. Texas, San Antonio Division
MEMORANDUM OPINION AND ORDER
RODRIGUEZ UNITED STATES DISTRICT JUDGE
the Court are pro se Petitioner Richard Bruce
DeBenedetto's six Petitions for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (ECF No. 1),
Petitioner's Amended Memorandum in Support (ECF No. 4),
Respondent's Answer (ECF No. 18), and Petitioner's
Reply (ECF No. 20). Having reviewed the record and pleadings
submitted by both parties, the Court concludes Petitioner is
not entitled to relief under the standards prescribed by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). See 28 U.S.C. § 2254(d). Petitioner is
also denied a certificate of appealability.
February 2014, the State charged Petitioner, a physician, by
indictment with six counts of prescription fraud. (ECF Nos.
16-3 at 70, 16-5 at 59, 16-7 at 49, 16-9 at 55, 16-11 at 58,
and 16-13 at 80). Following Petitioner's waiver of his
right to counsel, the State proceeded to trial on one of the
charges, where Petitioner, representing himself, was found
guilty by a jury of the offense as charged in the indictment.
(ECF Nos. 16-31 through 16-34). Prior to sentencing,
Petitioner entered into a plea agreement with the State
regarding the remaining indictments, pleading no contest to
each of the five remaining charges. (ECF No. 16-35).
Thereafter, a sentencing hearing took place before the trial
court with respect to all six pending cases against
Petitioner, who was represented by counsel at the proceeding.
(ECF No. 16-36). The trial court sentenced Petitioner to six
years of confinement in each case, with the sentences to run
concurrently. State v. DeBenedetto, Nos. A1481-A1486
(216th Dist. Ct, Kerr Cnty., Tex. Feb. 26, 2015) (ECF Nos.
16-3 at 108, 16-5 at 86, 16-7 at 104, 16-9 at 82, 16-11 at
85, and 16-13 at 107).
appealed to the Fourth Court of Appeals of Texas which
affirmed the convictions in an unpublished opinion dated May
25, 2016. DeBenedetto v. State, Nos. 04-15-00165-CR,
04-15-00166-CR, 04-15-00167-CR, 04-15-00168-CR,
04-15-00169-CR, and 04-15-00170-CR (Tex. App.-San Antonio,
May 25, 2016, pet. ref d) (ECF No. 17-5). The Texas Court of
Criminal Appeals (TCCA) then refused Petitioner's
petition for discretionary review (PDR) on November 9, 2016.
DeBenedetto v. State, Nos. PD-0682-16-0687-16 (Tex.
Crim. App.). On April 21, 2018, Petitioner filed six state
habeas corpus applications challenging the constitutionality
of each of his state court convictions, all of which were
denied by the TCCA without written order on June 20, 2018.
Ex parte DeBenedetto, Nos. 88, 525-01 through -06
(Tex. Crim. App.) (ECF Nos. 17-24, 17-27, 17-30, 17-33,
same day his state habeas applications were denied,
Petitioner initiated the instant federal proceedings by
placing six form petitions for federal habeas corpus relief
in the prison mailing system. (ECF No. 1 at
The petitions raise three allegations concerning the five
cases where Petitioner plead no contest: (1) the pleas were
not made willingly, knowingly, or voluntarily; (2) the
indictments for all of the pled cases were defective; and (3)
his plea counsel was ineffective for failing to object to the
lack of magistration prior to his February 2014 arraignment.
Id. at 7-8. In his Amended Memorandum in Support,
Petitioner also raises the following allegations concerning
his jury trial: (1) he was denied counsel at his arraignment;
(2) the trial court failed to obtain a valid waiver of
Petitioner's right to counsel; (3) he was denied his
counsel of choice; (4) the record does not support
Petitioner's conviction for fraud; (5) his punishment
exceeded the statutory range for the offense; (6) his rights
under Miranda were violated; (7) his rights under
Brady were violated; and (8) his appellate
counsel was ineffective for failing to raise viable claims
for relief. (ECF No. 4). In her answer, Respondent avers the
petition is timely and not successive, and that each of the
claims raised by Petitioner has been exhausted in state
court. (ECF No. 18 at 6).
federal habeas petition is governed by the heightened
standard of review provided by the AEDPA. 28 U.S.C.A. §
2254. Under § 2254(d), a petitioner may not obtain
federal habeas corpus relief on any claim that was
adjudicated on the merits in state court proceedings unless
the adjudication of that claim either: (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. Brown v. Payton, 544
U.S. 133, 141 (2005). This intentionally difficult standard
stops just short of imposing a complete bar on federal court
relitigation of claims already rejected in state proceedings.
Harrington v. Richter, 562 U.S. 86, 102 (2011)
(citing Felker v. Turpin, 518 U.S. 651, 664 (1996)).
federal habeas court's inquiry into unreasonableness
should always be objective rather than subjective, with a
focus on whether the state court's application of clearly
established federal law was "objectively
unreasonable" and not whether it was incorrect or
erroneous. McDaniel v. Brown, 558 U.S. 120 (2010);
Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). Even
a strong case for relief does not mean the state court's
contrary conclusion was unreasonable, regardless of whether
the federal habeas court would have reached a different
conclusion itself. Richter, 562 U.S. at 102.
Instead, a petitioner must show that the decision was
objectively unreasonable, which is a "substantially
higher threshold." Schriro v. Landrigan, 550
U.S. 465, 473 (2007); Lockyer v. Andrade, 538 U.S.
63, 75-76 (2003). So long as "fairminded jurists could
disagree" on the correctness of the state court's
decision, a state court's determination that a claim
lacks merit precludes federal habeas relief.
Richter, 562 U.S. at 101 (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). In other words, to
obtain federal habeas relief on a claim previously
adjudicated on the merits in state court, Petitioner must
show that the state court's ruling "was so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement." Id. at 103; see
also Bobby v. Dixon, 565 U.S. 23, 24 (2011).
Claims Regarding Petitioner's Plea-Bargained
first three grounds for relief challenge the five convictions
obtained by his pleas of no contest. Specifically, Petitioner
contends these judgments are invalid because (1) the pleas
were not made willingly, knowingly, or voluntarily; (2) the
indictments were defective because the State incorrectly
included the word "and" when describing the
offense; and (3) his plea counsel was ineffective for failing
to object to the lack of magistration prior to his second
arraignment. (ECF No. 1 at 7-8). Each of these claims were
raised and rejected by the state court during
Petitioner's state habeas proceedings. Because the state
court's rejection of the claims was neither contrary to,
nor an unreasonable application of, Supreme Court precedent,
federal habeas relief is denied as to these allegations.
axiomatic that a guilty plea is valid only if entered
voluntarily, knowingly, and intelligently, "with
sufficient awareness of the relevant circumstances and likely
consequences." Bradshaw v. Stumpf, 545 U.S.
175, 183 (2005); United States v. Hernandez, 234
F.3d 252, 254 (5th Cir. 2000). 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. United States v.
Amaya, 111 F.3d 386, 389 (5th Cir. 1997). The
longstanding test for determining the validity of a guilty
plea is whether the plea represents a voluntary and
intelligent choice among the alternative courses of action
open to the defendant. Hill v. Lockhart, 474 U.S.
52, 56 (1985); United States v. Juarez, 672 F.3d
381, 385 (5th Cir. 2012).
record in this case indicates Petitioner's pleas were a
voluntary and intelligent choice and was not a result of any
misrepresentation. Although he represented himself at his
initial trial, Petitioner was represented by counsel at his
subsequent plea agreement hearing regarding the remainder of
the charges against him. (ECF No. 16-35). At the beginning of
the hearing, Petitioner's counsel, Doyle Weaver,
indicated his belief that Petitioner was competent, and
Petitioner stated he was satisfied with Mr. Weaver's
representation. Id. at 5. The charges, range of
punishment, and plea agreement were read to Petitioner, who
indicated that he had discussed the issues with counsel and
understood the rights he was giving up. Id. at 10,
13-15. Counsel confirmed he had been through these documents
thoroughly with Petitioner and that Petitioner understood the
documents he was signing. Id. at 16. Petitioner then
admitted his pleas were being given freely and voluntarily
and that no one forced or compelled him in any way to plead
guilty. Id. at 19. Following this admission, the
trial court concluded:
Well, what I'm going to do then, you've pled no
contest in all five cases- I may be repeating myself. If I
am, I'm sorry. But the Court has reviewed the files, the
admonitions, waivers and stipulations and accepts those as
voluntarily and knowingly signed. The Court accepts your
pleas of no contest in each of the five cases, A1481, 82, 84,
85 and 86. The Court finds that the pleas of no contest were
knowingly and voluntarily made with full opportunity to
consult with your lawyer. And the Court finds that based upon
the evidence, your testimony, the documents submitted and the
stipulations of evidence and stipulations of your guilt, the
Court finds there's sufficient evidence to support a
finding of guilt beyond a reasonable doubt for each of the
five underlying charges.
However, I'm going to withhold or defer an adjudication
today because of the agreement of counsel, that we will have
final sentencing and consider adjudication and sentencing.
Id. at 21-22. Petitioner reaffirmed that his pleas
were given knowingly, freely, and voluntarily several months
later at his sentencing hearing, prompting the trial court to
reiterate the conclusion that the pleas were "knowing
and voluntary" and made with the "full opportunity
to consult with  counsel." (ECF No. 16-36 at 10-12).
formal declarations in open court carry "a strong
presumption of verity" and constitute a formidable
barrier to any subsequent collateral attack. United
States v. Kayode, 777 F.3d 719, 729 (5th Cir. 2014)
(quoting Blackledge v. Allison, 431 U.S. 63, 74
(1977)). But even without the in-court declarations, the
voluntariness of Petitioner's plea is demonstrated by
Petitioner's signature on the plea-bargain agreements
themselves, entitled "Defendant's Plea of No
Contest, Waivers, Stipulations of Evidence and
Admonishments." (ECF Nos. 17-26, 17-29, 17-35, 17-38,
17-41). Among other things, the agreements state Petitioner
was represented by counsel, understood the nature of the
charges against him, and entered the pleas freely and
voluntarily. Id. Petitioner's signature on the
guilty plea documents is prima facie proof of the
validity of the pleas and is entitled to "great
evidentiary weight." Theriot v. Whitley, 18
F.3d 311, 314 (5th Cir. 1994); United States v.
Abreo, 30 F.3d 29, 32 (5th Cir. 1994) (citing Hobbs
v. Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985)).
Thus, because Petitioner has not provided any evidence or
argument that would overcome these "strong presumptions
of verity," this Court denies Petitioner's
allegation concerning the validity of his guilty pleas.
See Blackledge, 431 U.S. at 74 (finding "[t]he
subsequent presentation of conclusory allegations which are
unsupported by specifics is subject to summary
by entering a knowing, intelligent, and voluntary guilty
plea, a defendant waives all non-jurisdictional defects
preceding the plea. Tollett v. Henderson, 411 U.S.
258, 265 (1973); United States v. Scruggs, 714 F.3d
258, 261-62 (5th Cir. 2013). This rule encompasses errors of
constitutional dimension that do not affect the voluntariness
of the plea, such as Petitioner's claim concerning the
purported defect in his indictments. See, e.g., United States
v. Williams, 577 Fed.Appx. 379, 380 (5th Cir. 2014)
(unpublished); United States v. Templet, 431
Fed.Appx. 270, 271 (5th Cir. 2011) (same). The waiver
likewise includes claims of ineffective assistance of counsel
unless the alleged ineffectiveness relates to the
voluntariness of the guilty plea. Smith v. Estelle,
711 F.2d 677, 682 (5th Cir. 1983) (waiving claims of
ineffective assistance, except for claims related to
voluntariness of plea).
Petitioner appears to argue that his plea-bargain counsel,
Mr. Weaver, was ineffective because he did not challenge the
fact that Petitioner had not been magistrated prior to his
second arraignment in February 2014. According to Petitioner,
this lack of magistration prevented him from being
represented by appointed counsel during the five remaining
cases against him. Despite not having appointed counsel for
his trial, however, Petitioner was represented by counsel
during his plea-bargain proceedings-Mr. Weaver. Petitioner
fails to demonstrate how this alleged ineffectiveness relates
in any way to the voluntariness of his guilty plea.
Accordingly, Petitioner's claim of ineffective
assistance, as well as his challenge to the indictments, are
both waived by his guilty pleas. Federal habeas relief is
therefore denied on the first three claims for relief raised
by Petitioner in his original petition (ECF No. 1).
Claims Regarding Petitioner's Trial.
next raises several claims in his amended memorandum (ECF No.
4) challenging the constitutionality of his tried case. These
claims allege: (1) he was denied counsel at his arraignment;
(2) the trial court failed to obtain a valid waiver of his
right to counsel; (3) he was denied his counsel of choice;
(4) the record does not support his conviction; (5) his
punishment exceeded the statutory range for the offense; (6)
his Miranda rights were violated; (7) his
Brady rights were violated; and (8) his appellate
counsel was ineffective. Again, each of these claims were
raised and rejected by the state court during
Petitioner's direct appeal or state habeas proceedings,
and Petitioner fails to demonstrate the state court's
rejection was contrary to, or an unreasonable application of,
clearly established federal law.
Petitioner's Right to Counsel
The Relevant Facts
relevant facts surrounding Petitioner's right-to-counsel
claims were accurately summarized by the Fourth Court of
Appeals during Petitioner's direct appeal proceeding:
In 2012, [Petitioner] was charged with six counts of
prescription fraud. [Petitioner] requested court-appointed
counsel, and the trial court initially denied his request.
After an evidentiary hearing, the trial court found
[Petitioner] was indigent and appointed him counsel. The
State thereafter moved to revoke [Petitioner]'s indigence
status, alleging that [Petitioner] had obtained employment
with an annual salary of $72, 000. After an evidentiary
hearing on the State's motion, the trial court found
[Petitioner] was no longer indigent and released
[Petitioner]'s appointed counsel from further
representation of [Petitioner]. [Petitioner] then hired his
previously-appointed counsel to continue representing him.
After numerous continuances, trial was set for January 28,
2014. On January 27, 2014, [Petitioner]'s counsel filed a
motion to withdraw, alleging [Petitioner] had terminated his
services. The trial court initially denied the motion but
then granted counsel's motion to reconsider. The State
moved to dismiss the indictments without prejudice and the
trial court granted the State's motions.
The State re-indicted [Petitioner] in February 2014.
Approximately seven months later, [Petitioner] had not
retained counsel. At a September 11, 2014 pre-trial hearing,
the trial court inquired into [Petitioner]'s lack of
counsel. At a September 26, 2014 pre-trial hearing, the trial
court again inquired into why [Petitioner] had yet to retain
counsel. [Petitioner] acknowledged the trial court had
previously found [Petitioner] was not indigent. [Petitioner]
stated he had a little "under $5, 000" and had
conferred with lawyers about his defense, and those lawyers
had not refused representation. When asked why he had not
hired any of those lawyers, [Petitioner] responded, "I
don't know. I just didn't get to that point
yet." [Petitioner] also stated he knew that if he were
indigent, he would have a right to appointed counsel. After-
completing its questioning into the circumstances surrounding
[Petitioner]'s lack of counsel, the trial court
admonished [Petitioner] about the risks and disadvantages of
waiving his right to counsel. [Petitioner] stated he desired
to proceed, even if that meant representing himself.
[Petitioner] also signed and filed a written acknowledgment
of admonishments concerning self-representation.
The State proceeded to trial on one of the indictments and
the jury found [Petitioner] guilty. The trial court assessed
punishment at six years in prison. [Petitioner] thereafter
entered into a plea agreement with the State regarding the
remaining indictments. Pursuant to the plea agreement,
[Petitioner] pled no contest to the remaining charges and the
trial court convicted [Petitioner] based upon his plea of no
contest. [Petitioner] appeals.
(ECF No. 17-5).
Right to Counsel at Magistration (Amended Claim 1)
first amended claim, Petitioner alleges he was denied counsel
at a critical stage of the proceedings against him-namely,
his second arraignment on February 20, 2014, following
Petitioner's reindictment on the instant charges. Because
of his indigence, Petitioner argues, he should have been
appointed counsel prior to his arraignment who would
represent him throughout the criminal proceedings. Respondent
counters that Petitioner was represented by counsel at the
second arraignment by attorney Doyle Weaver, who had
represented Petitioner up until that point but had requested
to withdraw as counsel prior to his client's reindictment
because Petitioner fired him. The record supports
the dismissal of the original indictments against Petitioner
on January 29, 2014 (ECF No. 16-23 at 22), the State
reindicted Petitioner on the instant charges and
Petitioner's retained attorney, Weaver, sought to
withdraw as counsel. On February 20, 2014, a hearing was held
on Weaver's motion to withdraw wherein it was established
that Petitioner terminated his contract with Weaver because
he did not have the thousand dollars necessary to fulfill the
remainder of the contract. (ECF No. 16-24 at 3-15). The trial
court questioned Petitioner about his ability to generate
income and his search for new counsel and indicated a
willingness to set the trial date several months ahead to
allow Petitioner time to raise money. for an attorney.
Id. at 7-24. Petitioner agreed with the trial court
that he was not seeking indigent status and that he would be
able to hire an attorney in the future:
[Court]: Well, we have-the options are we have is to decline
Mr. Weaver's request to withdraw and require him to be
ready for trial on this thing, which I don't believe is
fair to him since you haven't honored your commitment to
him. Another option is to set the trial out far enough where
it gives him time to get the money together to hire an
attorney, but we don't have any assurance, given that
other pending matter, whether or not you're even going to
still be employed.
The other one I'm very hesitant about because of your
circumstances is to claim that you're indigent and
appoint an attorney for you to represent you, but there would
have to be a basis for your claim of indigence, and what
I'm hearing you say to Ms. Wilke is that you're not
claiming indigent. I think your revenue stream is going to be
strong enough to hire an attorney; is that correct?
[Petitioner]: That's correct. I'm hopeful, yeah.
[Court]: I think it probably makes sense, given the number of
these, and I want this to work for you as far as you getting
an attorney, but, Mr.-Dr. Debenedetto, you need to
understand. I think you will acknowledge, this Court has been
really, really patient with your circumstances, and it was
very frustrating last month what happened, but it is what it
is. So I would expect that since you're not claiming
indigence that you will work very diligently to pull this
together so you can get an attorney so we can stay on track
for these settings.
[Petitioner]: I agree with you completely, Your Honor, and I
appreciate the Court. So June?
[Petitioner]: That's fine.
Id. at 19-20, 24. Thus, Petitioner's assertion
that counsel should have been appointed to him due to his
indigent status is contradicted by his own statements to the
contrary at the hearing.
while the trial court ultimately granted Weaver's motion
to withdraw as counsel, it was done so only after Petitioner
[Court]: . . . Okay. Now, Mr.-I haven't signed yet your
withdrawal, Mr. Weaver, because I would like for you to
participate in the arraignment of these cases whereby I'm
stating on the record that I'm not obligating you any
beyond what we have discussed here today for representation
on these new six files, but I would like for you to