Case: 21-10924 Document: 182-1 Page: 1 Date Filed: 08/28/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 21-10924
FILED
August 28, 2024
____________
Lyle W. Cayce
Christopher Wooten, Clerk
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:19-CV-157
______________________________
Before Elrod, Willett, and Duncan, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
Christopher Wooten seeks habeas relief from his state conviction and
sentence on the ground that the state court impermissibly used a non-final
conviction to enhance his sentence. The district court denied his petition,
finding that he could not surpass the relitigation bar found in 28 U.S.C. §
2254(d). Because any error by the state court was harmless, we AFFIRM.
I
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Wooten was arrested in February 2016 after he failed several field
sobriety tests during a traffic stop. Wooten’s blood alcohol level was .265,
more than three times the legal limit. He was charged with felony DWI
because he had previous DWI convictions. Texas has an escalating system
for DWI offenses. Pertinent here, a third DWI can be charged as a felony,
Tex. Penal Code § 49.09(b)(2), 12.34, while a first or second DWI can only
be charged as misdemeanors, Tex. Penal Code §§ 49.04, 49.09. For a felony
DWI, prior DWIs are elements of the offense and must be proved to the jury.
Texas also has a habitual-offender sentencing enhancement based on prior
felonies. Tex. Penal Code § 12.42.
This statutory scheme is relevant because Wooten has an extensive
criminal history. He received a probationary sentence in 1983 for a DWI. 1
He has misdemeanor DWI convictions in April and September of 1986 and a
felony DWI conviction in 2012. He also has a felony theft conviction from
1995.
The 1983 DWI and April 1986 DWI were listed as prior offenses as
part of the 2016 felony DWI charge at issue here. The 2012 felony DWI and
1995 felony theft were listed to justify the habitual offender enhancement. As
a result of the felony DWI and habitual offender enhancement, Wooten faced
twenty-five years to life in prison.
Wooten initially agreed to plead guilty in exchange for an eight-year
sentence, but the state trial judge rejected the agreement. Wooten then
agreed to plead guilty in exchange for a thirteen-year sentence and waiver of
one of the felony enhancements. His plea agreement included an appeal
waiver. Without the knowledge of his lawyer, Wooten mailed several
_____________________
1
The nature of the 1983 charge—whether it was a final conviction or not—is the
basis of each of Wooten’s arguments for habeas relief.
2
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motions to the court, which the state trial judge denied. The state trial judge
incorrectly rejected Wooten’s argument that the probationary sentence he
received for the 1983 DWI was not a final conviction and could not be used
as an element of felony DWI. The state trial judge stated that he had
reviewed the underlying conviction and determined that it was not a deferred
adjudication.
Wooten responded that he intended to appeal the denial of his pretrial motions. The prosecutor stated that if Wooten planned to appeal, he
would withdraw the plea offer, explaining that “if we have to do any appellate
work, we might as well go to trial.” In response, Wooten decided to plead
guilty and waive his right to appeal. The plea agreement was finalized at a
hearing during which the trial judge confirmed that Wooten understood that
he was giving up his right to appeal.
Wooten promptly appealed, and the state appellate court dismissed
the appeal because of the appeal waiver in the plea agreement. In April 2017,
Wooten filed a state habeas application, which the state habeas court denied
based on lack of evidence supporting Wooten’s claims. The state habeas
court construed Wooten’s application as making an improper judicial
conduct claim and an ineffective assistance of counsel claim. Thereafter, the
state appellate court affirmed the denial of Wooten’s habeas application
without written order. Wooten filed seven additional state habeas
applications, four of which were dismissed as “subsequent” under Texas’s
abuse-of-the-writ rules and three of which were dismissed on procedural
grounds.
3
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Wooten also filed a separate state habeas petition regarding his 1983
DWI, 2 and the state appellate court dismissed that “conviction” on the
ground that it had never been finally adjudicated. The state appellate court
did not address the 2016 plea agreement, which relied, in part, on the 1983
DWI.
Wooten filed a federal habeas petition, which the district court denied
on the ground that his claims could not overcome § 2254(d)’s re-litigation
bar. The district court denied a certificate of appealability, but this court
granted one. Around the same time, Wooten asked the state appellate court
to reconsider his first state habeas petition because his 1983 conviction had
been dismissed. Though the Howard County District Attorney supported
Wooten’s motion for reconsideration and agreed to reduce Wooten’s
sentence to eight years, the state appellate court denied the application
without written order, citing cases determining that enhancement errors
were harmless because the petitioner had additional convictions that would
have satisfied the requirement. 3 The state appellate court did not specifically
reference any of Wooten’s additional convictions.
We granted a COA for the federal habeas petition, and Wooten
appealed.
II
Because federal habeas review requires analysis of the relevant state
court decision, we must first determine which state court decision to
evaluate. “For each claim governed by AEDPA’s relitigation bar, . . . we
_____________________
2
The habeas petition asked for permission to file an out-of-time direct appeal of
the 1983 DWI conviction.
3
The court cited Ex parte Rodgers, 598 S.W.3d 262 (Tex. Crim. App. 2020), and
Ex parte Parrot,
396 S.W.3d 531 (Tex. Crim. App. 2013).
4
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must train our attention on the last related state-court decision that provides
a relevant rationale to a particular claim.” Lucio v. Lumpkin, 987 F.3d 451,
465 (5th Cir. 2021) (en banc) (internal citation and quotations omitted).
In Wilson v. Sellers, the Supreme Court provided instructions for
determining whether a particular decision provides the relevant rationale.
584 U.S. 122 (2018). When a state court’s denial of habeas is not explained,
“the federal court should ‘look through’ the unexplained decision to the last
related state-court decision that does provide a relevant rationale. It should
then presume that the unexplained decision adopted the same reasoning.”
Id. at 125. However, the state may rebut the presumption by showing that
the unexplained affirmance relied or most likely relied on different grounds.
Id. at 125–26. The unreasonableness of the lower court’s decision and the
fact that compelling grounds for affirmance were briefed or argued before the
appellate court both weigh against the presumption that the appellate court
adopted the lower court’s reasoning.
Id. at 132.
Before applying Wilson to the facts in this case, we must consider the
possible tension between Wilson and Neal v. Puckett, 286 F.3d 230 (5th Cir.
2002) (en banc). In Neal, we said that “a federal habeas court is authorized
by Section 2254(d) to review only a state court’s ‘decision,’ and not the
written opinion explaining that decision.”
Id. at 246. We explained that we
were reaching that conclusion “[i]n the absence of clear guidance from the
Supreme Court.”
Id. That instruction is seemingly at odds with Wilson v.
Sellers, which explains that § 2254(d) “requires the federal habeas court to
‘train its attention on the particular reasons—both legal and factual—why
state courts rejected a state prisoner’s federal claims.’”
584 U.S. at 125
(citation omitted).
We have twice noted the tension between Wilson and Neal without
deciding whether Neal is still good law. See Sheppard v. Davis, 967 F.3d 458,
5
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467 (5th Cir. 2020) (declining to decide whether Wilson overruled Neal
because the case could be decided on other grounds); Thomas v. Vannoy, 898
F.3d 561, 568–69 (5th Cir. 2018) (noting that Neal’s status was unclear after
Wilson while finding both cases inapplicable to the issue at hand). We have
also applied Wilson without reference to any tension with Neal. E.g., Lucio,
987 F.3d at 465. Our analysis in this case turns on whether we look to the
state court’s conclusion or its reasoning, so we cannot avoid addressing the
tension between Neal and Wilson. We hold that Wilson requires us to look to
the state court’s reasoning, meaning we cannot follow Neal’s instruction to
look only to the state court’s conclusion. Neal acknowledged that the
Supreme Court had not clearly addressed whether 2254(d) analysis focused
on the state court’s reasoning or its conclusion, but Wilson specifically
answers that question.
In addition, we note that this decision is entirely consistent with the
reasoning in Neal. That decision raised the concern that a valid state
conviction would be overturned because a state court reached the correct
outcome while relying on faulty reasoning. Neal, 286 F.3d at 246; see also
Sheppard,
967 F.3d at 467 n.5. But Wilson and Neal only address what the
federal court reviews for purposes of the § 2254(d) relitigation bar. They do
not address what the federal court reviews as part of the Brecht harmless error
analysis. See Brown v. Davenport,
596 U.S. 118, 136 (2022) (noting that §
2254(d)’s relitigation bar and Brecht harmless error consult different legal
materials). In a case where the state court reaches the correct result, but
provides inadequate reasons, habeas relief will be inappropriate because the
error in reasoning will be harmless under Brecht. Our determination that
Wilson supplants Neal will not usher in the concerns that Neal identified.
Having clarified our obligation under Wilson, we turn to its application
in this case. Wooten contends that because the state court’s denial of his
6
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motion for reconsideration of his initial habeas petition is unreasoned, we
must “look through” to the state habeas trial court’s decision. We disagree.
The look-through doctrine is based on the presumption that an
unexplained decision adopted the reasoning of the previous decision. Wilson,
584 U.S. at 125. That presumption can be rebutted, and this case includes
both types of evidence that the Wilson Court identified as strong evidence
that the presumption does not apply. First, “the unreasonableness of the
lower court’s decision itself provides some evidence” that the state court did
not adopt that reasoning.
Id. at 132. The state court for Wooten’s first state
habeas petition denied Wooten’s petition for lack of evidence supporting his
claims. But Wooten has strong, indeed ironclad, evidence that his 1983 DWI
“conviction” received a probated sentence and was no conviction at all. The
unreasonableness of the first state habeas court’s determination that there
was a lack of evidence supporting Wooten’s claims is strong evidence that
the state habeas court that denied Wooten’s motion for reconsideration did
not adopt the first state habeas court’s reasoning.
In addition, though the state court that denied Wooten’s motion for
reconsideration of his first habeas petition did not provide reasoning, it cited
multiple cases in which challenges to erroneous sentencing enhancements
were denied based on harmless error in light of other qualifying convictions
under state law. That was presumably in reference to Wooten’s other felony
convictions that could have been used to satisfy the felony DWI charge and
sentencing enhancement. The strength of that reasoning compared with that
of the first state habeas court suffices to rebut the presumption that the denial
of Wooten’s motion for reconsideration adopted the reasoning of the first
state habeas court. We therefore focus our review on the state court decision
that denies Wooten’s motion for reconsideration based on harmless error.
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Identifying the proper state-court decision to analyze occurs on a
claim-by-claim basis. Lucio, 987 F.3d at 465. However, the state court need
not expressly address each claim. Johnson v. Williams,
568 U.S. 289, 301
(2013). Because state courts frequently “fail to address separately [claims]
that the court has not simply overlooked,” there is a rebuttable presumption
that the claim was adjudicated on the merits.
Id. at 300–01. We find that
presumption applies here. The state habeas court did not specifically identify
each of Wooten’s claims, but the harmless error rationale applied equally to
all of them. We therefore determine that the denial of reconsideration is the
relevant state decision for each of Wooten’s claims.
III
Having identified the appropriate state court decision for review, we
turn to the merits of Wooten’s habeas petition. Wooten’s petition raises
three issues: (1) whether “the state trial court violated his right to due
process when it predicated the conviction on misinformation and a
misreading of court records;” (2) whether “his plea was unknowing and
involuntary because trial counsel and the state trial court wrongly advised
him about the nature of his enhancing conviction, which was an element of
the offense under Texas law;” and (3) whether “counsel provided ineffective
assistance by failing to investigate the elements listed in the indictment and
failed to correct the trial court’s obvious error.” To establish a valid basis for
granting his petition, Wooten must show that at least one of these claims
passes both the relitigation bar found in § 2254(d) and the Brecht harmless
error test. Brown, 596 U.S. at 122 (citing Brecht v. Abrahamson,
507 U.S. 619
(1993)).
A
We start with the relitigation bar. To surmount the relitigation bar
found in the Antiterrorism and Effective Death Penalty Act, a § 2254
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petitioner must show that the state court’s denial of relief “was contrary to,
or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States” or “resulted in a
decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d).
“A state court’s decision is contrary to clearly established precedent
if it contradicts the governing law set forth in [the Supreme Court’s] cases or
if the state court confronts facts that are materially indistinguishable from a
decision of the Supreme Court yet reaches a different result.” Ramey v.
Lumpkin, 7 F.4th 271, 278 (5th Cir. 2021) (alteration in original) (citation and
internal quotations omitted). “If fair-minded jurists could disagree about
whether the state court’s decision was correct, deference under AEDPA
precludes federal habeas relief.”
Id.
When reviewing the state court’s factual determinations under
§2254(d), we are “limited to the record that was before the state court that
adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181
(2011). 4 Though Cullen dealt with habeas review of a trial proceeding, we
have applied that requirement to habeas review of a plea deal. See Loden v.
McCarty,
778 F.3d 484, 493 (5th Cir. 2015).
The most recent decision, denial of Wooten’s motion for
reconsideration of his first state habeas petition, suggests that the denial for
each of the claims was based on the harmlessness of the alleged error.
Specifically, because Wooten had other felony convictions that could have
_____________________
4
Lumpkin argues that, under the plain text of AEDPA, the record limitation
applies only to the petitioner, not the respondent. While we see some merit in Lumpkin’s
textual argument, we assume without deciding that Cullen’s holding, which makes no
mention of the distinction Lumpkin urges, applies to the respondent as well.
9
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satisfied the felony DWI and sentencing enhancement requirements, the
state trial court’s error regarding the 1983 conviction was harmless. There is
no indication in the record before us that Wooten’s other felony convictions
were before the state trial court or the state habeas court. A determination
based on evidence outside of the record is arguably “an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 42 U.S.C. 2254(d)(2) (emphasis added). However, we need not
decide whether the state habeas court relied on evidence outside of the record
or whether doing so violates 2254(d)(2) because Wooten fails to show that
such an error, if it occurred, was not harmless under the Brecht test. 5
B
Even assuming Wooten satisfies the relitigation bar, he must also
establish that his claim satisfies the requirements of the Brecht test by
showing that the error “had substantial and injurious effect” in determining
the outcome of his case. Brecht, 507 U.S. at 623. Though Brecht dealt with
errors that might have impacted the jury’s decision, its harmless error test
also applies to guilty pleas. 6 As we will explain, even assuming the state trial
_____________________
5
If Wooten’s other convictions were before the state habeas court, then § 2254(d)
would require denial of Wooten’s petition because the last reasoned state-court decision
would have been neither contrary to federal law nor based on an unreasonable
determination of the facts.
6
“It is only for certain structural errors undermining the fairness of a criminal
proceeding as a whole that even preserved error requires reversal without regard to the
mistake’s effect on the proceeding.” United States v. Dominguez Benitez, 542 U.S. 74, 81
(2004). Examples of structural errors include complete deprivation of the right to counsel
and an impartial judge. Arizona v. Fulminante,
499 U.S. 279, 309–10 (1991) (“Each of these
constitutional deprivations is a similar structural defect affecting the framework within
which the trial proceeds, rather than simply an error in the trial process itself.”). The errors
that Wooten alleges are not structural. Though Lumpkin has not cited a case applying
Brecht to a guilty plea, the fact that the alleged errors are non-structural supports the
application of Brecht.
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court considered evidence outside the record before it and erred by doing so,
any error was harmless because there were alternative grounds for rejecting
each of Wooten’s three bases for granting his petition. 7
In holding that any error was harmless because there were alternative
grounds for rejecting Wooten’s claims, we do not resolve whether alternative
federal grounds are sufficient to establish harmless error when a state court
error violates a state habeas requirement. We need not consider that thorny
question (or whether violations of a state habeas requirement can be
considered as part of a Brecht analysis at all) because Wooten has not
established that any error by the state habeas court violated a state habeas
requirement.
1
We first consider Wooten’s claim that the trial court violated his due
process rights by basing his conviction on a misreading of court records.
By pleading guilty, a defendant loses the ability to make certain types
of collateral attacks on his conviction. See, e.g., Tollett v. Henderson, 411 U.S.
258, 266 (1973). In Class v. United States, the Supreme Court explained that
a guilty plea precludes collateral attacks based on “constitutional violations .
. . that had occurred prior to the entry of the guilty plea,” not violations
_____________________
7
It may seem strange to classify alternative grounds that the state habeas court
could have relied on as a basis for Brecht harmless error, rather than an application of
Harrington v. Richter. 562 U.S. 86, 102 (2011) (explaining that federal courts “must
determine what arguments or theories supported or, . . . could have supported, the state
court’s decision”). In Richter, however, there was no reasoned state court decision to look
to. Wilson,
584 U.S. at 131 (explaining the lack of a reasoned state court decision in Richter).
Richter cannot be applied when there is a reasoned decision to look to. If that were the case,
there would be little point in applying the look-through doctrine to determine the
appropriate state court decision to analyze.
11
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“which implicate[] the very power of the State to prosecute the defendant.”
583 U.S. 174, 179 (2018) (internal citation and quotations omitted). While
claims such as double jeopardy and malicious prosecution implicate the
state’s power to prosecute, challenges to antecedent parts of the case such as
grand jury proceedings do not.
Id. at 179–81.
Wooten’s due process claim does not implicate the power of the state
to prosecute him, and the events underlying the claim occurred prior to entry
of the guilty plea. 8 Wooten’s motion regarding the 1983 conviction
concerned a factual dispute: whether his 1983 conviction was a final
conviction. The question of whether the state can prove facts sufficient to
satisfy the charge is different from whether the state has the power to bring
the charge. The fact that the indictment was erroneously based on an
ineligible conviction means that the state did not have the record to support
its indictment. 9 It does not mean the state lacked the power to bring the
charge.
That distinction is crucial because, by pleading guilty, Wooten
admitted that there was a sufficient record to support the charge. 10 While he
_____________________
8
Though the trial judge denied Wooten’s motion at the same hearing during which
Wooten ultimately pleaded guilty, consideration of the motion was not part of the guilty
plea proceedings. That is best shown by the fact that after the judge ruled on Wooten’s
motions, there was uncertainty about whether Wooten would proceed with the guilty plea.
Only after the state said that it would withdraw the plea offer and proceed to trial if Wooten
insisted on appealing did Wooten make the final decision to plead guilty.
9
That is, of course, confining ourselves to the record before the state court. There
were sufficient convictions to charge Wooten with felony DWI and a habitual offender
enhancement, but they were not included in the indictment and were not before the state
trial court.
10
We do not mean to suggest that a trial court’s reliance on an erroneous “fact” is
shielded from review any time that the defendant admits to the erroneous “fact.” At a
minimum, any admission that was unknowing, involuntary, or affected by ineffective
assistance of counsel would not preclude review. Because many due process claims
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could not have admitted the types of violations that would eliminate the
state’s power to bring the charge, such as double jeopardy or malicious
prosecution, he was able to admit the factual predicates that satisfied the
charge. That he admitted to something false does not change the analysis.
Choosing to plead guilty is a strategic choice that the defendant must make
given the circumstances. See Bradshaw v. Stumpf, 545 U.S. 175, 186 (2005)
(“[A] plea’s validity may not be collaterally attacked merely because the
defendant made what turned out, in retrospect, to be a poor deal.”).
Wooten did not make a poor deal. His choice may have been
influenced by his knowledge that, though the 1983 conviction was not an
eligible offense, he had enough other convictions to qualify for a felony charge
and sentencing enhancement. In other words, he may have pleaded guilty
because, despite the error in the indictment, he was facing the very real
possibility of twenty-five years to life in prison.
Wooten argues that Townsend v. Burke, 334 U.S. 736 (1948),
determines the outcome here. We disagree. In Townsend, the trial judge
based the defendant’s sentence, in part, on a crime for which the charges
were dismissed.
Id. at 740. The Supreme Court held that the trial court
violated the defendant’s due process rights by doing so.
Id. at 740–41.
Townsend is distinguishable because, unlike Wooten, the defendant there did
not admit to the erroneous fact on which the trial court relied.
Id.
Here, Wooten’s due process claim amounts to reliance on an
erroneous fact, but a fact Wooten admitted was true. Because, as we will
explain in the process of addressing Wooten’s remaining claims, there were
_____________________
implicate the government’s power to bring the charge, thus precluding reliance on the
guilty plea under Class, there may be other scenarios in which an admission is not sufficient
to remedy reliance on a factual error.
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no issues with Wooten’s guilty plea that would preclude reliance on it,
Wooten’s due process claim does not warrant granting his habeas petition.
2
We next consider Wooten’s claim that his plea bargain was not
knowing and voluntary. “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 defendant.’” Hill
v. Lockhart, 474 U.S. 52, 56 (1985) (citation omitted). A guilty plea “cannot
be truly voluntary unless the defendant possesses an understanding of the law
in relation to the facts.” McCarthy v. United States,
394 U.S. 459, 466 (1969).
Wooten cannot establish that his guilty plea was unknowing or
involuntary. To ensure a plea is voluntary, a district judge must determine
that the plea “did not result from force, threats, or promises.” Fed. R. Crim.
P. 11(b)(2). Wooten does not contend otherwise. Nor was Wooten’s plea
unknowing. There is no dispute that Wooten knew and understood the
elements of the crime with which he was charged. This is not a case where
Wooten could not have admitted to one of the crime’s elements because he
was unaware of that element. See Henderson v. Morgan, 426 U.S. 637, 645–
46 (1976) (explaining that the defendant’s admission could not satisfy the
crime’s mens rea requirement because the defendant was unaware of that
element of the crime when he pleaded guilty).
Nor is there a dispute that the facts to which Wooten admitted
constitute a crime. See McCarthy, 394 U.S. at 467. Wooten claims that his
plea was unknowing because the facts, as they actually were, do not constitute
a crime. But that does not make the plea unknowing or otherwise invalid.
Under McCarthy, a constitutional violation only occurs when the facts
admitted to do not constitute a crime. Wooten’s claim that his guilty plea was
unknowing and involuntary does not warrant granting his habeas petition.
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3
Finally, we consider Wooten’s ineffective assistance of counsel claim.
To prevail on an ineffective assistance of counsel claim, a habeas petitioner
must show that his counsel’s performance was deficient, and the deficient
performance actually prejudiced the defendant. Strickland v. Washington,
466 U.S. 668, 687 (1984). In the case of a guilty plea, the Strickland test
requires showing that (1) counsel’s advice was outside the range of
competence expected from attorneys; and (2) the defendant would not have
pleaded guilty absent the attorney’s error. Armstead v. Scott,
37 F.3d 202,
206 (5th Cir. 1994) (discussing Hill,
474 U.S. at 56). Regarding the second
requirement, the petitioner “must establish that but for his counsel’s alleged
erroneous advice, he would not have pleaded guilty.”
Id. Mere allegations of
prejudice are insufficient.
Id.
Wooten’s IAC claim fails because, even assuming his counsel’s
performance was deficient, he has not shown that he would not have pleaded
guilty had his counsel properly advised him regarding the 1983 conviction.
Even when Wooten’s 1983 DWI probated sentence is properly excluded,
Wooten still had enough felonies to qualify both for felony DWI and an
enhanced sentence. The affidavit from Rick Hamby, Wooten’s lawyer, is
replete with references to concerns about Wooten’s extensive record,
illustrating that Hamby, and by extension Wooten, were aware of that record.
It is thus unclear how different advice concerning the 1983 probated
sentence would have changed Wooten’s decision. Even with different
advice, Wooten and his lawyer would both have known the state was capable
of satisfying the requirements for a felony DWI and a habitual offender
enhancement. That means that even with different advice, Wooten would
have been facing twenty-five years to life in prison. We need not speculate
about whether Wooten would have accepted a thirteen-year sentence when
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faced with twenty-five years to life because we have an instance of him
making that exact decision. The fact that better advice from counsel may
have led to a different predicate felony being used does not provide any
evidence that he would have made a different decision. Wooten’s ineffective
assistance of counsel claim does not warrant granting his habeas petition.
…
Because Wooten has not presented a valid basis for granting his
petition, we AFFIRM the district court’s denial of his petition.
16
