UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 95-40388 Summary Calendar
RUBEN TIJERINA,
Petitioner-Appellant,
VERSUS
WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court For the Southern District of Texas (C-94-CV-162) November 17, 1995
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
Ruben Tijerina, a Texas state prisoner, proceeding pro se,
filed the instant habeas petition asserting that: (1) his "guilty
pleas" were involuntary because he was not aware of their
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. consequences; (2) the trial court failed to ascertain the knowing
and voluntary nature of the pleas; and (3) the State did not honor
their plea agreements. Although indicted on charges of aggravated
kidnapping and aggravated sexual assault, the State "agreed to
allow the defendant to plead to the lesser included offenses of
sexual assault and kidnapping and drop the enhancement paragraph in
both cases."
Tijerina pleaded nolo to both counts. He received, pursuant
to the plea agreements, two 10-year terms of incarceration.
Tijerina did not appeal his convictions and his applications for
post-conviction relief were denied without written order on the
findings of the trial court without a hearing. He has exhausted
state remedies, as the respondent concedes.
A magistrate judge recommended that Tijerina's petition be
denied on the merits. The district court adopted the magistrate
judge's report and granted summary judgment for the respondent.
The district court granted a CPC and leave to appeal IFP.
OPINION
Tijerina argues that his nolo pleas were involuntary because:
(1) he was not admonished by the trial judge in accordance with
state law; (2) he was unaware of the consequences of his pleas; (3)
the trial judge failed to read the indictments or inform him of the
elements of the crimes; (4) he was induced into accepting the plea
agreements by his counsel; and (5) the prosecutor breached the plea
agreements by failing to dismiss the sexual-assault charge and
failing to bench-warrant Tijerina for DNA testing within six months
2 of his conviction. He raised these arguments in the district
court.
He also contends that the federal habeas court improperly
accorded state factual findings the presumption of correctness
under 28 U.S.C. § 2254 "because no live evidentiary hearing was
held."
Nolo Pleas
Tijerina contends that the trial judge failed to admonish him
properly in accordance with Tex. Crim. Proc. Code Ann. art. 26.13
(West 1989), relative to his nolo pleas. The Constitution does not
require a Texas state court to comply with article 26.13. Hill v.
Estelle, 653 F.2d 202, 205 (5th Cir.), cert. denied, 454 U.S. 1036
(1981).
Tijerina next contends that his pleas were involuntary because
he was unaware of the consequences, was not read the indictments,
nor informed of the elements of the crimes. The record amply
belies his contention.
Because a nolo plea is treated as an admission of guilt, the
law applicable to a guilty plea is also applicable to a nolo plea.
Carter v. Collins, 918 F.2d 1198, 1200 n.1 (5th Cir. 1990). A
habeas petitioner has the burden of demonstrating that his plea is
invalid. Bonvillain v. Blackburn, 780 F.2d 1248, 1251 (5th Cir.),
cert. denied, 476 U.S. 1143 (1986). Before accepting a guilty
plea, the trial court must ascertain that the defendant "has a full
understanding of what the plea connotes and of its consequence."
Boykin v. Alabama, 395 U.S. 238, 244 (1969). A federal habeas
3 court will uphold a guilty plea if it was knowing, voluntary, and
intelligent. Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir.),
cert. denied, 474 U.S. 838 (1985).
The state record amply establishes that Tijerina fully
understood the consequences of his pleas, that he waived the
reading of the indictments against him, and that he was informed of
the elements of the crimes charged. Tijerina signed two forms
entitled "DEFENDANT'S WAIVER OF RIGHTS, DEFENSE COUNSEL'S CONSENT,
STATE'S CONSENT, AND ORDER OF APPROVAL," wherein he waived, inter
alia, a language interpreter, a jury trial, and the confrontation
of witnesses. The waivers were signed by Tijerina, his counsel,
the prosecutor, and the presiding judge. Tijerina also received
written admonitions regarding his pleas which informed him that the
pleas must be voluntary and of his own free will, that he had the
right to plead not guilty, explained the punishment range for his
crime, and explained numerous other rights associated with criminal
prosecutions. Tijerina signed the written admonition forms,
averring that: (1) he was pleading voluntarily, without force,
threats, persuasion, fear or promise; (2) he was entering his pleas
because he did not want to contest charges against him; (3) he
understood the written explanation of his constitutional rights and
chose to waive them; (4) he had a sufficient opportunity to consult
with his lawyer and was satisfied with the representation received;
(5) he was mentally competent; (6) he entered into the plea
agreements with the assistance of his lawyer who had explained the
4 plea agreements to him; (7) he understood the plea agreements and
agreed to them; and (8) he was a citizen of the United States.
Tijerina also signed two forms entitled "JUDICIAL STIPULATION"
which stated that: (1) he was satisfied with his attorney; (2) he
was pleading nolo to the lesser-included offenses of kidnapping and
sexual assault; (3) his pleas were voluntarily and knowingly made;
and (4) he was waiving certain constitutional rights. The minute
entries regarding Tijerina's judgments of conviction indicate that
he waived the reading of the indictments and that the court advised
him of the elements of the offenses prior to accepting his pleas.
The transcript of Tijerina's nolo-plea hearing also
demonstrates that he understood the nature of the constitutional
protections he was waiving, the charges he was facing, and the
consequences of his pleas. See Taylor v. Whitley, 933 F.2d 325,
329 (5th Cir. 1991) (the critical issue in determining if a plea
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UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 95-40388 Summary Calendar
RUBEN TIJERINA,
Petitioner-Appellant,
VERSUS
WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court For the Southern District of Texas (C-94-CV-162) November 17, 1995
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
Ruben Tijerina, a Texas state prisoner, proceeding pro se,
filed the instant habeas petition asserting that: (1) his "guilty
pleas" were involuntary because he was not aware of their
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. consequences; (2) the trial court failed to ascertain the knowing
and voluntary nature of the pleas; and (3) the State did not honor
their plea agreements. Although indicted on charges of aggravated
kidnapping and aggravated sexual assault, the State "agreed to
allow the defendant to plead to the lesser included offenses of
sexual assault and kidnapping and drop the enhancement paragraph in
both cases."
Tijerina pleaded nolo to both counts. He received, pursuant
to the plea agreements, two 10-year terms of incarceration.
Tijerina did not appeal his convictions and his applications for
post-conviction relief were denied without written order on the
findings of the trial court without a hearing. He has exhausted
state remedies, as the respondent concedes.
A magistrate judge recommended that Tijerina's petition be
denied on the merits. The district court adopted the magistrate
judge's report and granted summary judgment for the respondent.
The district court granted a CPC and leave to appeal IFP.
OPINION
Tijerina argues that his nolo pleas were involuntary because:
(1) he was not admonished by the trial judge in accordance with
state law; (2) he was unaware of the consequences of his pleas; (3)
the trial judge failed to read the indictments or inform him of the
elements of the crimes; (4) he was induced into accepting the plea
agreements by his counsel; and (5) the prosecutor breached the plea
agreements by failing to dismiss the sexual-assault charge and
failing to bench-warrant Tijerina for DNA testing within six months
2 of his conviction. He raised these arguments in the district
court.
He also contends that the federal habeas court improperly
accorded state factual findings the presumption of correctness
under 28 U.S.C. § 2254 "because no live evidentiary hearing was
held."
Nolo Pleas
Tijerina contends that the trial judge failed to admonish him
properly in accordance with Tex. Crim. Proc. Code Ann. art. 26.13
(West 1989), relative to his nolo pleas. The Constitution does not
require a Texas state court to comply with article 26.13. Hill v.
Estelle, 653 F.2d 202, 205 (5th Cir.), cert. denied, 454 U.S. 1036
(1981).
Tijerina next contends that his pleas were involuntary because
he was unaware of the consequences, was not read the indictments,
nor informed of the elements of the crimes. The record amply
belies his contention.
Because a nolo plea is treated as an admission of guilt, the
law applicable to a guilty plea is also applicable to a nolo plea.
Carter v. Collins, 918 F.2d 1198, 1200 n.1 (5th Cir. 1990). A
habeas petitioner has the burden of demonstrating that his plea is
invalid. Bonvillain v. Blackburn, 780 F.2d 1248, 1251 (5th Cir.),
cert. denied, 476 U.S. 1143 (1986). Before accepting a guilty
plea, the trial court must ascertain that the defendant "has a full
understanding of what the plea connotes and of its consequence."
Boykin v. Alabama, 395 U.S. 238, 244 (1969). A federal habeas
3 court will uphold a guilty plea if it was knowing, voluntary, and
intelligent. Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir.),
cert. denied, 474 U.S. 838 (1985).
The state record amply establishes that Tijerina fully
understood the consequences of his pleas, that he waived the
reading of the indictments against him, and that he was informed of
the elements of the crimes charged. Tijerina signed two forms
entitled "DEFENDANT'S WAIVER OF RIGHTS, DEFENSE COUNSEL'S CONSENT,
STATE'S CONSENT, AND ORDER OF APPROVAL," wherein he waived, inter
alia, a language interpreter, a jury trial, and the confrontation
of witnesses. The waivers were signed by Tijerina, his counsel,
the prosecutor, and the presiding judge. Tijerina also received
written admonitions regarding his pleas which informed him that the
pleas must be voluntary and of his own free will, that he had the
right to plead not guilty, explained the punishment range for his
crime, and explained numerous other rights associated with criminal
prosecutions. Tijerina signed the written admonition forms,
averring that: (1) he was pleading voluntarily, without force,
threats, persuasion, fear or promise; (2) he was entering his pleas
because he did not want to contest charges against him; (3) he
understood the written explanation of his constitutional rights and
chose to waive them; (4) he had a sufficient opportunity to consult
with his lawyer and was satisfied with the representation received;
(5) he was mentally competent; (6) he entered into the plea
agreements with the assistance of his lawyer who had explained the
4 plea agreements to him; (7) he understood the plea agreements and
agreed to them; and (8) he was a citizen of the United States.
Tijerina also signed two forms entitled "JUDICIAL STIPULATION"
which stated that: (1) he was satisfied with his attorney; (2) he
was pleading nolo to the lesser-included offenses of kidnapping and
sexual assault; (3) his pleas were voluntarily and knowingly made;
and (4) he was waiving certain constitutional rights. The minute
entries regarding Tijerina's judgments of conviction indicate that
he waived the reading of the indictments and that the court advised
him of the elements of the offenses prior to accepting his pleas.
The transcript of Tijerina's nolo-plea hearing also
demonstrates that he understood the nature of the constitutional
protections he was waiving, the charges he was facing, and the
consequences of his pleas. See Taylor v. Whitley, 933 F.2d 325,
329 (5th Cir. 1991) (the critical issue in determining if 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"),
cert. denied, 503 U.S. 988 (1992). Tijerina has not established
that his nolo pleas were either involuntary or invalid in this
regard.
Tijerina also contends that he was "induced by his Court-
Appointed Attorney into accepting the plea bargain agreements."
Tijerina raised this issue in the district court, but offered
nothing in support of the contention. Bald assertions are
insufficient to state constitutional claims. See Ross v. Estelle,
5 694 F.2d 1008, 1011-12 (5th Cir. 1983) (mere conclusory allegations
do not raise a constitutional issue in a habeas proceeding).
Tijerina also contends that his nolo pleas were involuntary
because the prosecutor breached the plea agreements. He contends
that the plea agreements required the dismissal of the sexual-
assault charge against him and required that he be bench-warranted
for DNA testing within six months of his conviction.
The written plea agreements, signed by Tijerina, his lawyer,
and the prosecutor, indicate that the State agreed to prosecute on
the lesser-included offenses of kidnapping and sexual assault,
instead of the initial charges of aggravated kidnapping and
aggravated sexual assault. The plea agreements contain no
indication of an agreement to dismiss the sexual-assault charge or
bench-warrant Tijerina for DNA testing.
Linda Rhodes-Schauer, the prosecutor, averred that Tijerina's
contentions were "totally untrue," that "no such agreement between
the parties" existed, and that "it was [her] practice . . . to
write any and all agreements between the parties on the plea
bargain form and state them into the record." Tijerina has failed
to show that his nolo pleas were anything but knowingly and
voluntarily made.
State-Court Findings
Tijerina contends that the district court should not have
accorded the state-court factual findings a presumption of
correctness under § 2254. The crux of his argument is that a
"paper-hearing" was improper and that a live evidentiary hearing
6 should have been conducted. The argument is factually frivolous;
the district court did not rely on the state-court factual findings
nor accord them a presumption of correctness.
Throughout his brief, Tijerina makes much ado of the fact that
the complaining victim's name in the indictment was Susan Baggins,
but that at trial, the victim was referred to as Susan Blalock.
Although unclear, it appears that his argument is that the
indictments were defective because they contained the wrong name of
the victim.
A defective-indictment argument was not raised in the district
court. This Court need not address issues not considered by the
district court. "[I]ssues raised for the first time on appeal are
not reviewable by this court unless they involve purely legal
questions and failure to consider them would result in manifest
injustice." Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991)
(internal quotations and citation omitted). This claim, which
involves a factual component, is not subject to review on appeal.
Tijerina also complains that he was improperly denied a
transcript of his nolo-pleas hearing and was thus "precluded from
proving to the State Court that the indictments were fundamentally
defective." To the extent Tijerina asserts a due process challenge
to his state habeas proceedings, infirmities in state habeas
proceedings do not constitute grounds for federal relief. See
Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992), cert.
denied, 113 S. Ct. 1958 (1993).
7 In the district court, Tijerina alleged that he was denied
counsel of choice by the trial court. He does not address nor
brief this issue on appeal, and thus, it is deemed abandoned.
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987).
AFFIRMED
opin\95-40388.opn 8