Felan v. Davis

□ Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT September 26, □□□□

FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

VICTORIA DIVISION

§

JESSE FELAN, §

(TDCJ-CID #02156697) §

§

Petitioner, §

§

VS. § CIVIL ACTION NO. V-18-0060

§

LORIE DAVIS, §

§

Respondent. §

MEMORANDUM AND OPINION

Petitioner, Jesse Felan, seeks habeas corpus relief under 28 U.S.C.§ 2254, challenging a

conviction in the 377th Judicial District Court of Victoria County, Texas. Respondent filed a motion

for summary judgment and copies of the state court record. Felan has not filed a response, but he

seeks leave to amend his petition. The threshold issue is whether Felan has presented meritorious

grounds for federal habeas corpus relief. Based on the pleadings, the motions and briefs, the record,

and the applicable law, the Court grants respondent’s motion, denies Felan’s petition, and enters final

judgment dismissing the case by separate order. The reasons for these rulings are set out below.

I. Background

Felan pleaded guilty to the felony offense of evading arrest or detention. (Cause Number 17-

06-30066-D). Felan also pleaded true to the enhancement paragraphs relating to prior convictions

for burglary of a building in Cause Number 95-3-16,099-A and possession of a controlled substance

in Cause Number 01-7-18,964-A. On August 23, 2017, the court sentenced Felan to five years

imprisonment. Felan waived his right to appeal. Felan filed an application for state habeas corpus

relief on March 29, 2018, which the Texas Court of Criminal Appeals denied without written order

on May 16, 2018.

On July 27, 2018, this Court received Felan’s federal petition. Felan contends that his

conviction is void for the following reasons:

(1) Counsel, Ashley Pall, rendered ineffective assistance during his plea proceedings when

counsel coerced Felan into pleading guilty and failed to inform him of the consequences of his plea;

(2) The trial court committed error in applying the law to the facts of his case;

(3) There was insufficient evidence to support a finding of guilt; and

(4) The Texas Court of Criminal Appeals (“CCA”) “did not answer the mix questions of law.”

IH. The Applicable Legal Standards

This Court reviews Felan’s petition for writ of habeas corpus under the federal habeas

statutes, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28

ULS.C. § 2254; Woods v. Cockrell, 307 F.3d 353, 356 (Sth Cir. 2002); Nobles v. Johnson, 127 F.3d

409, 413 (Sth Cir. 1997), citing Lindh vy. Murphy, 521 U.S. 320 (1997).

Sections 2254(d)(1) and (2) of AEDPA set out the standards of review for questions of fact,

questions of law, and mixed questions of fact and law that result in an adjudication on the merits.

An adjudication on the merits “is a term of art that refers to whether a court’s disposition of the case

is substantive, as opposed to procedural.” Miller v. Johnson, 200 F.3d 274, 281 (Sth Cir. 2000). A

state-court determination of questions of law and mixed questions of law and fact is reviewed under

28 U.S.C. § 2254(d)(1) and receives deference unless it “was contrary to, or involved an

unreasonable application of clearly established Federal law, as determined by the Supreme Court of

RAOIKMEN20 18018-0060 40 Lapa

the United States.” Hill vy. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). A state-court decision is

“contrary to” Supreme Court precedent if: (1) the state court’s conclusion is “opposite to that reached

by [the Supreme Court] on a question of law” or (2) the “state court confronts facts that are

materially indistinguishable from a relevant Supreme Court precedent” and arrives at an opposite

result. Williams v. Taylor, 120 S. Ct. 1495 (2000). A state court unreasonably applies Supreme

Court precedent if it unreasonably applies the correct legal rule to the facts of a particular case, or

it “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where

it should not apply or unreasonably refuses to extend that principle to a new context where it should

apply.” Jd. at 1495. Questions of fact found by the state court are “presumed to be correct... and

[receive] deference . . . unless it ‘was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.’” Hill, 210 F.3d at 485 (quoting 28 U.S.C.

§ 2254(d)(2)).

A state court’s factual findings are entitled to deference on federal habeas corpus review and

are presumed correct under section 2254(e)(1) unless the petitioner rebuts those findings with “clear

and convincing evidence.” Garcia v. Quarterman, 454 F.3d 441, 444 (Sth Cir. 2006) (citing Hughes

v. Dretke, 412 F.3d 582, 589 (Sth Cir. 2005) and 28 U.S.C. § 2254(e)(1)). This deference extends

not only to express findings of fact, but to the implicit findings of the state court as well. Garcia, 454

F.3d at 444-45 (citing Summers v. Dretke, 431 F.3d 861, 876 (Sth Cir. 2005); Young v. Dretke, 356

F.3d 616, 629 (Sth Cir. 2004)).

While, “[a]s a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to

summary judgment, applies with equal force in the context of habeas corpus cases,” Clark v.

Johnson, 202 F.3d 760, 764 (Sth Cir.), cert. denied, 531 U.S. 831 (2000), the rule applies only to the

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extent that it does not conflict with the habeas rules. Section 2254(e)(1) — which mandates that

findings of fact made by a state court are “presumed to be correct” — overrides the ordinary rule that,

in a summary judgment proceeding, all disputed facts must be construed in the light most favorable

to the nonmoving party. Unless the petitioner can “rebut[ | the presumption of correctness by clear

and convincing evidence” as to the state court’s findings of fact, those findings must be accepted as

correct. Smith v. Cockrell, 311 F.3d 661, 668 (Sth Cir. 2002).

Felan is proceeding pro se. A pro se habeas petition is construed liberally and not held to the

same stringent and rigorous standards as pleadings filed by lawyers. See Martin v. Maxey, 98 F.3d

844, 847 n.4 (Sth Cir. 1996); Guidroz v. Lynaugh, 852 F.2d 832, 834 (Sth Cir. 1988); Woodall v.

Foti, 648 F.2d 268, 271 (Sth Cir. Unit A June 1981). This Court broadly interprets Felan’s state and

federal habeas petitions. Bledsue v. Johnson, 188 F.3d 250, 255 (Sth Cir. 1999),

The Claim as to the Voluntariness of the Guilty Plea

(Ground 1)

Felan claims that his guilty plea is involuntary because counsel coerced him into pleading

guilty and failed to adequately inform him of the consequences of his plea. Felan argues that his

“plea was involuntary because of coercion, comfusion, and unconstitutionally ineffective and

pressure from the trial court.” (D.E. 1, p. 6). Felan states that he “would not have pled guilty to the

felony charge of evading arrest detention with previous convictions, but would have insisted on

going forward with his jury trial.” (/d.).

A federal court will uphold a guilty plea challenged in a habeas corpus proceeding if the plea

was knowing, voluntary and intelligent. Hobbs v. Blackburn, 752 F.2d 1079, 1081 (Sth Cir.), cert.

denied, 474 U.S. 838 (1985). A guilty plea is invalid if the defendant does not understand the nature

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of the constitutional protection that he is waiving or if he has such an incomplete understanding of

the charges against him that his plea cannot stand as an admission of guilt. Henderson v. Morgan,

426 U.S. 637, 645 n.13 (1976). The critical issue in determining whether a plea was voluntary and

intelligent is “whether the defendant understood the nature and substance of the charges against him,

and not necessarily whether he understood their technical legal effect.” Taylor v, Whitley, 933 F.2d

325, 329 (Sth Cir. 1991), cert. denied, 503 U.S. 988 (1992). If the record shows that the defendant

“understood the charge and its consequences,” this Court will uphold a guilty plea as voluntary even

if the trial judge failed to explain the offense. Davis v. Butler, 825 F.2d 892, 893 (Sth Cir. 1987).

A plea of guilty waives a number of constitutional rights. United States v. Ruiz, 536 U.S. 622,

628 (2002); Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). Consequently, “the Constitution

insists, among other things, that the defendant enter a guilty plea that is ‘voluntary’ and that the

defendant must make related waivers ‘knowing[ly], intelligent[ly], [and] with sufficient awareness

of the relevant circumstances and likely consequences.” Ruiz, 536 U.S. at 629 (quoting Brady v.

United States, 397 U.S. 742, 748 (1970)); accord Bousley v. United States, 523 U.S. 614, 618 (1998)

plea “is constitutionally valid only to the extent it is ‘voluntary’ and ‘intelligent’”’) (quoting Brady,

397 US. at 748). A plea induced by threats, improper promises, deception, or misrepresentation is

not voluntary. See United States v. Amaya, 111 F.3d 386, 389 (Sth Cir. 1997). A plea qualifies as

intelligent when the criminal defendant enters it after receiving “real notice of the true nature of the

charge against him, the first and most universally recognized requirement of due process.” Bousley,

523 U.S. at 618 (quoting Smith v. O’Grady, 312 U.S. 329, 334 (1941)).

In determining whether a plea is intelligent, “the critical issue is whether the defendant

understood the nature and substance of the charges against him, and not necessarily whether he

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understood their technical legal effect.” Taylor v. Whitley, 933 F.2d 325, 329 (Sth Cir. 1991). “The

voluntariness of a plea is determined by ‘considering all of the relevant circumstances surrounding

Fischer v. Wainwright, 584 F.2d 691, 693 (5th Cir. 1978) (quoting Brady, 397 U.S. at 749).

Courts considering challenges to guilty pleas “have focused on three core concerns: absence of

coercion, the defendant’s understanding of the charges, and a realistic understanding of the

consequences of a guilty plea.” U.S. v. Gracia, 983 F.2d 625, 627-28 (Sth Cir. 1993). A realistic

understanding of the consequences of a guilty plea means that the defendant knows “the immediate

and automatic consequences of that plea such as the maximum sentence length or fine.” Duke v.

Cockrell, 292 F.3d 414, 416 (Sth Cir. 2002). “Ifa defendant understands the charges against him,

understands the consequences of a guilty plea, and voluntarily chooses to plead guilty, without being

coerced to do so, the guilty plea... will be upheld on federal review.” Frank v. Blackburn, 646 F.2d

873, 882 (Sth Cir. 1980) (en banc), modified on other grounds, 646 F.2d 902 (Sth Cir. 1981).

Inmates who challenge their guilty pleas on collateral review must overcome a “strong

presumption of verity” accorded “solemn declarations” made in open court. See Blackledge v.

Allison, 431 U.S. 63, 73-74 (1977). They must also overcome the presumption of regularity and

“sreat weight” accorded court records. See United States v. Abreo, 30 F.3d 29, 32 (Sth Cir. 1994)

(holding that a signed, unambiguous plea agreement “is accorded great evidentiary weight” when

determining whether a plea is entered voluntarily and knowingly); Bonvillian v. Blackburn, 780 F.2d

1248, 1252 (Sth Cir. 1986) (holding that court records are “accorded great weight”); Webster v.

Estelle, 505 F.2d 926, 929-30 (Sth Cir. 1974) (holding that court records “are entitled to a

presumption of regularity”).

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On August 23, 2017, Felan appeared in open court and entered a plea of guilty. The court

admonished Felan as to the nature of the offense charged -- evading arrest or detention on April 30,

2017 -- and the punishment range. A review of the “Plea Memorandum,” shows that Felan

consented to an oral stipulation of the evidence and testimony. After stating that he understood the

proceedings in the case, Felan confessed under oath that the allegations contained in the indictment

were true and correct. (D.E. 11-2, pp. 80-81). Felan stated that the trial court had made the required

admonishments and that he “understands the admonishments and is aware of the consequences of

[his] plea.” /d. at 80. He stated that he was “entering [his] plea freely and voluntarily without any

threats or coercion” and that there had not been any promise made to induce him to plead which was

not revealed to the court. /d. He waived his right to trial by jury on both guilt and punishment in

writing in open court. /d at 81. Finally, he stated that he was “totally satisfied with the

representation given by [his] attorney in this case, and [he] was provided fully effective and

competent representation.” /d. at 80. Felan acknowledged through his signature, the following

statement in the Plea Memorandum: “I have read this PLEA MEMORANDUM, including Exhibit

A [the admonishments] and any attachments, understand all the information in it, am waiving the

rights as stated in it, and swear that all the allegations of fact contained in it are true and correct.”

Id. at 83.

The trial court judge admonished Felan in writing in open court that he was pleading guilty

to “Evading Arrest/Detention w/ Previous Conviction,” a second-degree felony punishable by

“imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years

or less than 2 years, and in addition, a fine may be assessed not to exceed $10,000.” /d. at 84. The

judge also admonished Felan:

ORAOIKMHLO tN 18-0060 401 wpe

The recommendation of the prosecuting attorney as to punishment is

not binding on the court. The Court will inquire as to the existence of

a plea bargain agreement between the State and the defendant and, if

an agreement exists, the Court will inform the defendant whether the

Court will follow or reject the agreement in open court and before any

finding on the plea. Should the Court reject any such agreement, then

the defendant will be permitted to withdraw the defendant’s plea of

guilty or nolo contendere.

Id. at 85.

In the “State’s Punishment Recommendation,” a checked box indicates that the “Punishment

be assessed at: 5 years in the Institutional Division of the Texas Department of Criminal Justice.”

Id. at 79. Felan, his counsel, and the prosecuting attorney signed the agreement, agreeing that “the

punishment recommendation outlined above may be considered by the Court when assessing

punishment in this cause.” /d.

The trial judge stated: “The Court then admonished Defendant as required by law. It appeared

to the Court that Defendant was mentally competent to stand trial, made the plea freely and

voluntarily, and was aware of the consequences of this plea.” /d. at 88. Felan entered his guilty plea

voluntarily, and he understood the maximum prison term and fine for the offense charged. Felan

entered his guilty plea after receiving these admonishments. /d. “Solemn declarations in open court

carry a strong presumption of verity,” forming a “formidable barrier in any subsequent collateral

proceedings.” United States v. Cervantes, 132 F.3d 1106, 1110 (Sth Cir. 1998)(quoting Blackledge

v. Allison, 431 U.S. 63, 73-74 (1977)). Felan’s signature indicates that he understood the nature of

the charge against him and the consequence of his plea. These documents are entitled to a

presumption of regularity under 28 U.S.C. § 2254(e), and this Court accords evidentiary weight to

these instruments. Carter v. Collins, 918 F.2d 1198, 1202 n.4 (Sth Cir. 1990).

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On April 3, 2018, the state habeas court denied relief. (D.E. 11-2, p. 4). The Texas Court

of Criminal Appeals also denied relief on Felan’s claim for post-conviction relief. A state

application that is denied without written order by the Texas Court of Criminal Appeals, as in the

present case, is an adjudication on the merits. Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir.

1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) (holding a “denial” signifies

an adjudication on the merits while a “dismissal” means the claim was declined on grounds other

than the merits). On habeas review, the federal courts are bound by the credibility choices made by

the state court. Hogue v. Johnson, 131 F.3d 466, 505 (5th Cir. 1997). Asa federal court in a habeas

proceeding, this Court is required to grant a presumption of correctness to a state court’s explicit and

implicit findings of fact if supported by the record. Loyd v. Smith, 899 F.2d 1416, 1425 (Sth Cir.

1990). The state court record fairly supports the explicit finding that Felan’s statement was

voluntary. The record shows that Felan voluntarily entered a guilty plea after consulting with

counsel.

The state court’s decision to deny relief was not contrary to clearly established federal law

as determined by the Supreme Court of the United States. Felan’s claim for habeas relief based on

the involuntariness of his guilty plea lacks merit, and relief cannot be granted. 28 U.S.C.

§ 2254(d)(1).

IV. The Claim of Ineffective Assistance of Counsel

Felan claims that he did not knowingly and voluntarily enter his guilty plea because he did

not receive effective assistance of counsel.

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

OARAOKMERO IN: 0060 dO op

defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970); see Boykin v. Alabama, 395 U.S. 238,

242 (1969); Machibroda v. United States, 368 U.S. 487, 493 (1962).

In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court held that the two-part test set

forth in Strickland v. Washington, 466 U.S. 668 (1984), applies to cases involving guilty pleas. To

prevail ona claim of ineffective assistance of counsel, a petitioner must show that: (1) his counsel’s

actions fell below an objective standard of reasonableness; and (2) the ineffective assistance of

counsel prejudiced him. /d.; Moawad v. Anderson, 143 F.3d 942, 946 (5th Cir. 1998). A court may

resolve a claim by finding either that counsel rendered reasonably effective assistance or that there

was a lack of prejudice. There is no need to reach both components of the inquiry if the defendant

makes an insufficient showing on one. Strickland, 466 U.S. at 697.

In assessing the reasonableness of counsel’s performance, the Court must indulge a strong

presumption that the performance falls within the “wide range of reasonable professional assistance”

and that “the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at

689; Gray v. Lynn, 6 F.3d 265, 268 (Sth Cir. 1993). If counsel’s action is based on well-informed

strategic decisions, it is “well within the range of practical choices not to be second-guessed.”

Rector v. Johnson, 120 F.3d 551, 564 (1997)(quoting Wilkerson v. Collins, 950 F.2d 1054, 1065 (Sth

Cir. 1992), cert. denied, 509 U.S. 921 (1993)).

In the context of a guilty plea, prejudice is present if there is reasonable probability that

absent counsel’s errors, the defendant would not have entered a guilty plea and would have insisted

on a trial. United States v. Payne, 99 F.3d 1273, 1282 (Sth Cir. 1996); Mangum v. Hargett, 67 F.3d

80 (Sth Cir. 1995), cert. denied, 516 U.S. 1133 (1996). A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694.

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Because Felan pleaded guilty to the offense, the relevant inquiry is whether counsel’s

performance interfered with Felan’s ability to understand the nature of the charges against him and

the consequences of his plea. Once a guilty plea has been entered, nonjurisdictional defects in the

proceedings against the defendant are waived, including all claims of ineffective assistance of

counsel except insofar as the alleged ineffectiveness relates to the voluntariness of the guilty plea.

Smith y. Estelle, 711 F.2d 677, 682 (Sth Cir.), cert. denied sub nom. Smith v. McKaskle, 466 U.S.

906 (1984).

Felan claims that his counsel never told him about the consequences of his guilty plea.

Respondent’s summary judgment evidence shows that Felan stated, in court, in writing, that he

understood the trial court’s admonishments; fully understood the consequences of his guilty plea;

and freely and voluntarily pleaded guilty. Felan also stated, in court, in writing, that he had

discussed the contents of the court’s written admonishments with his attorney and understood them,

and he was satisfied with the representation trial counsel had provided. These documents are entitled

to a presumption of regularity under 28 U.S.C. § 2254(e), and this Court accords evidentiary weight

to these instruments. Carter v. Collins, 918 F.2d 1198, 1202 n.4 (Sth Cir. 1990).

Felan has not satisfied the prejudice prong of Strickland based on the deficiencies he alleges

in counsel’s performance. Felan has failed to show that there was a reasonable probability that but

for his alleged unprofessional errors, Felan would not have entered a guilty plea. Felan received a

five-year prison term when he pleaded guilty. Felan has not shown that he would have insisted on

a trial, which exposed him to a prison sentence ranging from two to twenty years. In the event of

a trial, a jury would have learned about Felan’s lengthy criminal history, including convictions for

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burglary of a building in 1997, possession ofa controlled substance in 2001, and aggravated robbery

in 2003.

On habeas review, the state trial court found that Felan had voluntarily entered his guilty plea.

The Texas Court of Criminal Appeals denied habeas relief. The state court’s decision to deny relief

was not contrary to clearly established federal law as determined by the Supreme Court of the United

States. 28 U.S.C. § 2254(d)(1). Felan’s claim for habeas relief based on the ineffective assistance

of counsel lacks merit.

V. The Claims Waived by the Guilty Plea

(Grounds 2 & 3)

In ground two, Felan contends, “Applicant was harm [sic] by a trial court has no discretion

to determine what the law is or in applying the law to the facts and consequently the trial court’s

failure to analyze or apply the law correctly is an abuse of discretion.” In his state habeas

application, Felan breaks the claim down into two distinct arguments: (1) there was insufficient

evidence to support a finding of guilt and (2) the trial court erred in denying his request for a jury

instruction on the lesser included offense of “fleeing or attempting to elude a peace officer.” (D.E.

11-2, pp. 26-32). By entering a guilty plea, Felan waived his jury instruction claim, and any claim

based on the trial court’s error in applying the law to the facts of his case.

It is well established that a knowing and voluntary guilty plea is conclusive as to a

defendant’s guilt and waives all nonjurisdictional defects in the proceedings preceding the plea,

including constitutional ones, that do not implicate the voluntariness of the guilty plea. Tollett v.

Henderson, 411 U.S. 258, 267 (1973). Because Felan’s guilty plea was voluntarily and knowingly

O\RAO\KMEN20 1 18.0060.401 pd 12

made, Felan’s constitutional claims are waived. See Parke v. Raley, 506 U.S. 20, 29 (1992); United

States v. Broce, 395 U.S. 563, 569-70 (1989); United States v. Boykin, 395 U.S. 238, 243 (1969).

In ground 3, Felan contends that the evidence was insufficient to support his conviction. This

claim was waived by Felan’s voluntary guilty plea. See Kelley v. Alabama, 636 F.2d 1082, 1083 (Sth

Cir. 1981) (a petitioner who pleads guilty waives the right to challenge the sufficiency and reliability

of the evidence, because the guilty plea itself stands as evidence against the petitioner). “No federal

constitutional issue is raised by the failure of the Texas state court to require. evidence of guilt

corroborating a voluntary plea.” Smith v. McCotter, 786 F.2d 697, 702 (Sth Cir. 1986). Moreover,

under Texas state law, a judicial confession is sufficient evidence of guilt in a case in which a

defendant enters a guilty plea. See Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009).

Felan signed a judicial confession in which he admitted to committing the offense. (D.E. 15-3, p.

36). The evidence was therefore sufficient to support the conviction. Felan has not shown that the

state court’s rejection of this claim was unreasonable.

VI. The State Habeas Court Error Claim

(Ground 4)

In his fourth ground, Felan alleges that the Texas Court of Criminal Appeals “did not answer

the mix [sic] questions of law.” (D.E. 1, p. 7). The record shows that Felan did not appeal his

conviction, and did not file a petition for discretionary review with the Texas Court of Criminal

Appeals. Felan did, however, file an application for state post-conviction relief that was

subsequently denied by the Texas Court of Criminal Appeals. Felan’s claim is predicated on an error

in state habeas proceedings.

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The infirmities in state habeas proceedings on habeas review that Felan alleges do not

constitute grounds for habeas relief in federal court. Trevino v. Johnson, 168 F.3d 173, 180 (Sth Cir.

1999); Hallmark vy. Johnson, 118 F.3d 1073, 1080 (Sth Cir.), cert. denied, 118 S. Ct. 576 (1997); see

Nichols v. Scott, 69 F.3d 1255, 1275 (Sth Cir. 1995)(“An attack on a state habeas proceeding does

not entitle the petitioner to habeas relief in respect to his conviction, as it is an attack on a proceeding

collateral to the detention and not the detention itself.”); Morris v. Cain, 186 F.3d 581, 585 n.6 (Sth

Cir. 1999). Felan has not asserted an error in the state habeas proceeding affecting the deference due

the state court’s findings in the habeas proceedings. Felan has not shown a basis for granting habeas

relief.

VII. Felan’s Motion for Leave to Amend

After respondent filed a motion for summary judgment, Felan requested leave to amend his

petition. The motion will be denied for reasons stated briefly below.

Motions to amend a habeas corpus petition are governed by Rule 15(a) of the Federal Rules

of Civil Procedure. 28 U.S.C. § 2242 (an application for writ of habeas corpus “may be amended or

supplemented as provided in the rules of procedure applicable to civil actions.”). Under Federal

Rule of Civil Procedure 15(a), a party may amend his pleadings once as a matter of course at any

time before a responsive pleading is served. In the present case, respondent filed a motion for

summary judgment, responding to the petition. (DE. 10). Accordingly, leave of court is required.

Fed. R. Civ. P. 15(a)(2).

Under Federal Rule of Civil Procedure 15(a)(2), applicable here, a party may amend his

pleading only with leave of court. The rule provides that the “court should freely give leave when

justice so requires.” Fed. R. Civ. P. 15. Where the proposed amendment would be futile, however,

OARAOIKMENDO 16-0060 dL we 14

denial of the motion for leave to amend is appropriate. See Foman v. Davis, 371 U.S. 178, 182

(1962); Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 873 (Sth Cir. 2000). The denial of an

opportunity to amend is within the discretion of the District Court. Jd. In this case, the Court does

not find justice requires that Felan be allowed to amend his pleading. Here, Felan fails to provide

the Court with any proposed amendments or describe the untimely information he wishes to add to

his petition for habeas corpus. Regardless, an amendment or supplement is not necessary to reach

a decision on the merits of his claims.

The Court’s review under 28 U.S.C. § 2254 is limited to the record in the state court that

adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (“It would be

contrary to [§ 2254’s] purpose to allow a petitioner to overcome an adverse state-court decision with

new evidence introduced in a federal habeas court and reviewed by that court in the first instance

effectively de novo.”). The Court finds that any additional information that Felan seeks to include

in his petition is untimely and not necessary to evaluate the merits of his claims. The Court will

review all of Felan’s arguments and the relevant legal authority, regardless of whether he provides

additional amendments to his petition. Moreover, Felan has failed to describe with specificity any

additional evidence that would be helpful to the Court in deciding the merits of the habeas petition.

Therefore, Felan’s Motion for Leave to Amend is denied. (D.E. 12).

VIII. Conclusion

Respondent’s Motion for Summary Judgment is GRANTED. (D.E. 10). Felan’s petition for

a writ of habeas corpus is DENIED. This case is DISMISSED. Felan’s motion to amend is

DENIED. (D.E. 12). Any remaining pending motions are DENIED as moot.

OARAOKMH2OLB 18-0060 0 wpa 15

The Supreme Court has stated that the showing necessary for a Certificate of Appealability

is a substantial showing of the denial of a constitutional right. Hernandez v. Johnson, 213 F.3d 243,

248 (Sth Cir. 2000) (citing Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)). Under that standard,

an applicant makes a substantial showing when he demonstrates that his application involves issues

that are debatable among jurists of reason, that another court could resolve the issues differently, or

that the issues are suitable enough to deserve encouragement to proceed further. See Clark v.

Johnson, 202 F.3d 760, 763 (Sth Cir. 2000). Where a district court has rejected a prisoner’s

constitutional claims on the merits, the applicant must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong. Slack, 529 U.S. 484.

This Court denies Felan’s petition after careful consideration of the merits of his

constitutional claims. This Court denies a COA because Felan has not made the necessary showing

for issuance. Accordingly, a certificate of appealability is DENIED.

SIGNED at Victoria, Texas, on Sep len. ber IE 2019.

UNITED STATES DISTRICT JUDGE

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