UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-10369
JAMES EDWARD HALE,
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
(4:99-CV-996-A)
June 7, 2002
Before DUHÉ, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This appeal follows the grant of a Certificate of
Appealability (COA) by this Court on the issues of whether
Petitioner-Appellant James Edward Hale's attorney was ineffective
for (1) not challenging the indictment, and (2) not filing a notice
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
of appeal. After a thorough review of the parties' briefings and
the record in this case, we AFFIRM the district court's judgment.
On June 14, 1999, Hale pleaded guilty to four heroin related
offenses in Cause Numbers 0722222D, 0722227A, 0731061A, and
0725544A in the 213th District Court of Tarrant County, Texas.
Hale was sentenced to 10 years of imprisonment for each of the
heroin offenses. Those sentences were to run concurrently with
each other and with his 15-year sentence for a 1992 theft
conviction. On July 28, 1999, two weeks after the expiration of
the time for filing an appeal, Hale filed a pleading in the Tarrant
County District Court entitled “Motion to Enter Notice of Appeal.”
The motion was denied as untimely filed on August 2, 1999.
On August 17, 1999, Hale filed a state application for writ of
habeas corpus in which he challenged his heroin conviction entered
in Cause Number 0731061A. The State of Texas did not file a
response. Hale argued that his attorney was ineffective for: (1)
telling him that he faced a 35-year sentence if he did not plead
guilty; (2) not challenging the indictment because the prior theft
convictions should not have enhanced his current offense; and (3)
not filing a notice of appeal. Hale also made the erroneous claim
that his attorney had not informed him that his 10-year sentences
would not run concurrently with his existing 15-year sentence when
he understood that they would. However, as noted below, the
magistrate judge indicated that it appears Hale was actually
contending that he was not properly informed of the nature of
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concurrent sentences, believing that the word “concurrent” was
equivalent to the word “coterminous.” Nevertheless, in September
1999, the Texas Court of Criminal Appeals denied the application
without a written order.
On November 30, 1999, Hale filed a 28 U.S.C. § 2254 petition
in the Northern District of Texas challenging all four of his
heroin convictions. Hale argued that he was led to believe that
his 10-year sentence would run concurrently with his prior 15-year
sentence. He also argued that his guilty plea was involuntarily
based on erroneous advice from his attorney. Furthermore, Hale
argued that his attorney was ineffective for not investigating his
two prior theft convictions, for not filing any motions challenging
the indictment, and for not filing an appeal. Respondent-Appellee,
Janie Cockrell, Director, Texas Department of Criminal Justice,
Institutional Division (“the Director”), filed a motion to dismiss
the petition, alleging that it contained both exhausted (the heroin
conviction challenged in the state habeas application) and
unexhausted claims (the other three heroin convictions).
A magistrate judge agreed with the Director and recommended
that Hale's petition be dismissed without prejudice for failure to
exhaust his claims pertaining to the three heroin offenses in state
court, which resulted in a mixed petition. The district court,
however, refused to adopt the recommendation, noting that Hale had
cited to the case number of the lead state case. As a result, the
district court concluded that Hale's arguments were applicable to
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all four of his convictions and that the outcome would have been
the same had Hale listed all four case numbers. The district
court, therefore, denied the Director's motion to dismiss and
returned the case to the magistrate judge.
Upon reconsideration of Hale's claims, the magistrate judge
determined that Hale's sentences for the four heroin convictions
were, in fact, ordered to run concurrently with each other and with
the 15-year sentence for his prior theft convictions. The
magistrate judge concluded that “Hale's real complaint is that he
was mislead into believing that the subject four sentences would
expire at the same time as the fifteen-year sentence, and therefore
the sentences were also to have been imposed coterminously.”
According to the magistrate judge, there was no support in the
record for such a claim. The magistrate judge concluded that
Hale's guilty plea was entered voluntarily and knowingly and was
not induced by erroneous information. The magistrate judge also
concluded that Hale's attorney adequately informed him about the
consequences of his plea; that Hale could not raise ineffective
assistance of counsel claims other than those related to the
voluntariness of his plea; and that Hale had waived his right to
appeal as part of his plea and, therefore, his attorney was not
ineffective for not filing a notice of appeal.
On January 17, 2001, the magistrate judge recommended that
Hale's petition be dismissed. The magistrate judge gave the
parties until February 7, 2001, to file objections, which Hale did
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on February 5, 2001. Hale's pleading entitled “Objections to
Magistrate's Findings, Conclusions and Recommendations,” however,
was stricken from the record because he failed to include a
completed certificate of service. On February 8, 2001, the
district court concluded that Hale had not filed objections and
ordered that his § 2254 petition be dismissed. The district court
also concluded that, even if it had considered Hale's objections,
the court would have found that he was not entitled to habeas
relief.
Hale filed a notice of appeal, which the district court
construed as a motion for a COA and denied. Hale then sought a COA
from this Court and raised three ineffective assistance of counsel
arguments: (1) that his attorney was ineffective for not
challenging his indictment, which he argued improperly allowed a
prior state jail felony to enhance his instant state jail felony;
and (2) that his attorney failed to file a notice of appeal. Once
again, Hale also made the same erroneous argument that he did in
the state court regarding his understanding about whether his
sentences were to run concurrently. In July 2001, this Court
denied a COA for Hale's ineffective assistance of counsel claims
relating to the voluntariness of the plea. However, a COA was
granted on the issues regarding whether Hale's attorney was
ineffective for not challenging the indictment and for failing to
file a notice of appeal.
Having considered the parties' briefs and the entire record in
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this case, we affirm the district court's order. First, in
response to the Director's contentions, we find that the district
court correctly concluded that Hale's two ineffective assistance of
counsel arguments apply equally to all four of his heroin
convictions. Hale presented the claims to the state habeas court,
there were documents in the state habeas record indicating that he
pleaded guilty to four heroin charges, and there was no indication
that the outcome of the state habeas proceeding would have been
different. See Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir.
1998) (noting that a petitioner satisfies the exhaustion
requirement by raising in the state’s highest court the
“substantial equivalent” of his federal habeas arguments).
Second, we find that the district court properly concluded
that Hale's claims of ineffective assistance of counsel are
unsupported by the record. The record indicates that, contrary to
Hale's contentions, the indictment was sufficient. Under Texas
law, charges set forth in an indictment are based in part on a
defendant's previous offenses. Hale had previous theft convictions
in 1989 and 1992. Under pre-1994 law, Hale's previous convictions
were felonies, which would result in his heroin charge being
enhanced to a second-degree felony with a 20 year maximum sentence.
Under the current law, Hale's convictions are “state jail felonies”
that would result in an enhancement to only a third-degree felony
with a 10 year maximum sentence. Hale argues that he should
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receive the benefit of the current law. However, we do not believe
that the current law applies to Hale's previous convictions.2
Therefore, we conclude that the indictment was not deficient and
that Hale's counsel was not ineffective for failing to challenge
it. See generally Hill v. Lockhart, 474 U.S. 52 (1985); Blackledge
v. Allison, 431 U.S. 63 (1977).
We also note that the record is absent of any convincing
evidence that Hale timely instructed his attorney to pursue a
direct appeal or assist him with a pro se appeal after the entry of
the guilty pleas. To the contrary, the record indicates that his
attorney was unaware that Hale wanted to appeal until after she
received his letter posted on August 12, 1999, which was beyond the
allowable time for properly filing a notice of appeal. Hale's
counsel, therefore, cannot be said to have been ineffective in this
respect. See Roe v. Flores-Ortega, 528 U.S. 470, 477-78 (2000)
(rejecting a bright line rule that counsel must file a notice of
appeal unless the defendant specifically instructs otherwise).
For the foregoing reasons, we AFFIRM the district court.
2
Our research indicates that the only Texas court to address this
issue did so in an unpublished opinion in which it concluded that
a felony offense committed before the 1994 revisions would remain
the same for enhancement purposes after the revisions became
effective. See Perkins v. State, 2000 WL 61648 (Tex. App.–Dallas
Jan. 26, 2000). We recognize that unpublished opinions carry no
precedential value, however, we note that our opinion in the
present case is consistent with Perkins.
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