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DeBenedetto v. Davis

United States District Court, W.D. Texas, San Antonio Division

September 17, 2019

LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         Before 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.


         In 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).

         Petitioner appealed to the Fourth Court of Appeals of Texas which affirmed the convictions in an unpublished opinion dated May 25, 2016.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, 17-36, 17-39).

         The 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 10).[1] 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[2] were violated; (7) his rights under Brady[3] 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).

         Standard of Review

         Petitioner's 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)).

         A 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).


         I. Claims Regarding Petitioner's Plea-Bargained Cases.

         Petitioner's 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.

         It is 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).

         The 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).

         Petitioner's 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 dismissal.").

         Furthermore, 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.[4] 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).

         Here, 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).

         II. Claims Regarding Petitioner's Trial.

         Petitioner 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.

         A. Petitioner's Right to Counsel

         1. The Relevant Facts

         The 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.[5]

(ECF No. 17-5).

         2. Right to Counsel at Magistration (Amended Claim 1)

         In his 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 Respondent's assertion.

         Following 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?
[State]: 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.

         Moreover, while the trial court ultimately granted Weaver's motion to withdraw as counsel, it was done so only after Petitioner was rearraigned:

[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 ...

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