IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10232
DALE LINCOLN DUKE,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
May 21, 2002
Before POLITZ, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:
State prisoner Dale Lincoln Duke appeals the denial of his petition for writ of
habeas corpus under 28 U.S.C. § 2254, in which he challenges his conviction pursuant
to a plea of nolo contendere for aggravated sexual assault of a child younger than
fourteen years of age. He complains that because he was not informed that successful
completion of a sex offender program would require him to admit his guilt, his nolo
plea was not voluntarily, knowingly, and intelligently made. Finding the requirement
collateral to Duke’s plea, we must affirm.
BACKGROUND
Duke was indicted for aggravated sexual assault of a child. He entered a plea
of nolo contendere to that charge under an agreement that the victim would testify as
to the details of the assault. He acknowledged to the court his understanding that his
plea would have the same effect from a criminal standpoint as a guilty plea. The trial
court found that the evidence substantiated Duke’s guilt and ordered him sentenced to
ten-years probation with adjudication deferred and a fine of $750. The terms of
probation required that he successfully complete a sexual offender treatment program.
Five years later, the State, alleging that Duke failed to successfully complete the
sexual offender treatment program, moved to proceed with an adjudication of guilt.
Duke had been discharged from the treatment program because he refused to admit
guilt for the sexual assault. The trial court found Duke guilty of aggravated sexual
assault, revoked his probation, and sentenced him to twenty years in prison. Duke did
not appeal the conviction. Instead, he filed an application for writ of habeas corpus in
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state court, which was denied. He followed that denial with the instant action.
ANALYSIS
Under § 2254, federal courts will not grant an application for a writ of habeas
corpus with respect to claims adjudicated on the merits in state court unless the
proceedings resulted in a decision that was either: (1) contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States; or (2) based on an unreasonable determination of
the facts in light of the evidence presented at the state court proceeding.1 To be
unreasonable under § 2254 a state court’s application of clearly established federal law
must be objectively unreasonable, not merely incorrect or erroneous.2 Otherwise, the
state court’s factual determinations are entitled to a presumption of correctness, and the
petitioner bears the burden of rebutting that presumption by clear and convincing
evidence.3
Duke complains that his nolo contendere plea was not freely, voluntarily, and
intelligently made because he was not informed that successful completion of a
treatment program depended upon his admitting the sexual assault. He concedes that
1
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 411-12 (2000).
2
Id. at 409, 412.
3
28 U.S.C. § 2254(e)(1).
3
he agreed to attend counseling as part of his probation, but insists that there is a “big
difference” between the knowledge that he must attend counseling and the knowledge
that he must admit guilt as part of that counseling. Under Texas law, a plea of nolo
contendere has the same effect as a guilty plea4 and, therefore, must be knowingly,
voluntarily, and intelligently made.5 This requires that the defendant be informed of the
consequences of his plea, however, “[t]he defendant need only understand the direct
consequences of the plea; he need not be made aware of every consequence that,
absent a plea of guilty, would not otherwise occur.”6 Duke maintains that the
requirement that he admit his guilt as part of counseling was a direct consequence of
the plea. We are not persuaded.
In Hobbs v. Blackburn we explained that the direct consequences of a
defendant’s plea are the immediate and automatic consequences of that plea such as the
maximum sentence length or fine.7 The direct consequences of Duke’s plea were that
4
Matthew v. Johnson, 201 F.3d 353, 360 n. 9 (5th Cir. 2000), cert. denied, 531
U.S. 830 (2000) (citing TEX. CODE CRIM. P. art. 27.02(5)).
5
Brady v. United States, 397 U.S. 742, 755 (1970); Hobbs v. Blackburn, 752
F.2d 1079, 1081 (5th Cir. 1985).
6
United States v. Hernandez, 234 F.3d 252, 255 (5th Cir. 2000).
7
See, e.g., Hobbs, 752 F.2d at 1082 (holding that the requirement that
defendant be informed are satisfied if the defendant was informed of the maximum term
of imprisonment); Hernandez, 234 F.3d at 256 (explaining that “consequences no
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he would be fined and required to attend treatment, and if he failed to successfully
complete his treatment he would have to serve his deferred sentence. On the other
hand, as recognized by the Seventh Circuit Court of Appeals in Warren v. Richland
County Circuit Court,8 the condition that a defendant admit his guilt as part of a
required rehabilitation program is a collateral consequence.9 Accordingly, the
consequence of which Duke complains is merely incidental to what he clearly knew,
understood and accepted as the consequences of his plea. The revocation was not
immediate in either time or impact because it was contingent upon intervening
circumstances, and it was not automatic because the ability to abide by the probation
conditions was within Duke’s control.10 In addition, even if today we were to declare
the requirement that Duke admit his guilt during his rehabilitation a direct consequence
of his plea, he has failed to demonstrate that this was clearly established federal law at
the time of his plea or the state court decision was based on an unreasonable
matter how unpalatable which are not related to the length or nature of the federal
sentence cannot be considered direct consequences”).
8
223 F.3d 454 (7th Cir. 2000), cert. denied, 531 U.S. 1168 (2001).
9
Id. at 458 (holding that the possibility that a defendant’s probation might be
revoked due to his refusal to admit guilt during counseling was not a direct
consequence of his sentence).
10
See, e.g., id. at 457 (citing State ex rel. Warren v. Schwartz, 579 N.W.2d 698,
708-09 (Wisc. 1998)).
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determination of the facts.
The judgment of the district court is AFFIRMED.
6