# Felan v. Davis

> District Court, S.D. Texas · September 25, 2019

URL: https://www.frixlaw.com/law-library/cases/10672763

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** September 25, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10672763

## How later opinions describe it (automated extraction)

- holding that a signed, unambiguous plea agreement “is accorded great evidentiary weight” when determining whether a plea is entered voluntarily and knowingly
- holding that court records “are entitled to a presumption of regularity”
- holding a “denial” signifies an adjudication on the merits while a “dismissal” means the claim was declined on grounds other than the merits

## Opinion text

□ 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

©.\RAOKMH201R 18-0060 dL pd

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

OARAOKMEUUTAV I-00 01 pd

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

RAOIKMERANIAWU □□ AT wp

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”).

OARAO\KMEN20 118-0060 401 pd

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).

OARAO\KMHi201 8Wv 18-0060.d0 Lwpd 8

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.

RAOIKMERAOIAWIA- dO Wp 10

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

OARAOKMEDOTRW1R-0060 dL wp 1]

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.

OARAOIKMER2O Av 18.0060 401 wp 13

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

OARAOKKMEROIN TANGO AO pd 16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10672763. Public record. Not legal advice.