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Case 6:15-cv-00008-RC-JDL Document 26 Filed 08/23/16 Page 1 of 5 PageID #: 171
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF TEXAS
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`TYLER DIVISION
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`
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`
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`CHRISTOPHER WADE ATTEBERRY
`

`
`v.
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`§ CIVIL ACTION NO. 6:15cv8
`
`DIRECTOR, TDCJ-CID
`

`
`MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
`OF THE UNITED STATES MAGISTRATE JUDGE
`AND ENTERING FINAL JUDGMENT
`
`The Petitioner Christopher Atteberry, proceeding pro se, filed this application for the writ
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`of habeas corpus under 28 U.S.C. §2254 complaining of the legality of his conviction. This Court
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`ordered that the matter be referred to the United States Magistrate Judge pursuant to 28 U.S.C.
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`§636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of
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`Duties to United States Magistrate Judges.
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`I. Background
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`Atteberry pleaded guilty to and was convicted of theft of property on July 31, 2013, receiving
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`a sentence of seven years in prison. The indictment charged that he and a co-defendant, Ragan,
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`unlawfully appropriated by acquiring or otherwise exercising control over three transformers with
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`a value of more than $20,000.00 but less than $100,000.00.
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`Ragan went to trial and received a 10-year sentence. He appealed his conviction and
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`sentence and the appellate court held that the trial court incorrectly valued the property because it
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`computed the value of the economic loss rather than that of the transformers themselves, which
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`were worth about $10,000.00. The judgment of conviction was modified to show a conviction for
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`theft in the amount of more than $1,500.00 but less than $20,000.00 and Ragan’s case was remanded
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`for a new punishment hearing.
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`1
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`

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`Case 6:15-cv-00008-RC-JDL Document 26 Filed 08/23/16 Page 2 of 5 PageID #: 172
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`In his federal habeas petition, Atteberry contended that he should be allowed to appeal his
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`conviction and have it modified based on the appellate court’s decision in his co-defendant’s case,
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`his indictment and conviction were based on an incorrect valuation of the property, rendering the
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`evidence legally insufficient to support the conviction, and he received ineffective assistance of
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`counsel in that his attorney failed to discover the defects in the charging instrument, failed to apply
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`substantive law to these defects to reduce the punishment, and failed to file a motion for discovery
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`in a timely manner.
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`II. The Answer and the Reply
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`The Respondent argued that Atteberry’s ineffective assistance of counsel claim was never
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`presented to the state courts and thus is unexhausted and procedurally defaulted. The Respondent
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`further contended that Atteberry’s guilty plea waived his claim that the evidence was insufficient
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`to support his conviction and that Atteberry’s challenge to the indictment is foreclosed by the fact
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`that the Texas Court of Criminal Appeals implicitly held the indictment sufficient in denying his
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`state habeas application.
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`Atteberry maintained in response that the trial court abused its discretion because there was
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`no evidence that the value exceeded the minimum amount necessary to support a conviction. He
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`also claimed that at Ragan’s trial, the arresting officer testified that nothing had been stolen. He
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`stated that his guilty plea was unknowing and involuntary because he received ineffective assistance
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`of counsel, his trial counsel prepared his state habeas petition and thus did not include
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`ineffectiveness as a ground for relief, and that the State failed to prove he committed the crime of
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`theft and failed to prove the value of the stolen property beyond a reasonable doubt. Atteberry also
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`asserted that the trial court failed to include the lesser included offense of attempted theft in the
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`charge.
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`III. The Report of the Magistrate Judge
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`The Magistrate Judge concluded that the entry of the guilty plea foreclosed Atteberry’s claim
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`that the evidence was insufficient to support his conviction because the entry of the guilty plea
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`
`
`2
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`

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`Case 6:15-cv-00008-RC-JDL Document 26 Filed 08/23/16 Page 3 of 5 PageID #: 173
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`amounted to an admission that he committed the offense with which he was charged. The
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`Magistrate Judge also determined that the denial of Atteberry’s state habeas application by the Texas
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`Court of Criminal Appeals amounted to an implicit finding that the indictment was sufficient under
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`state law and that Atteberry did not exhaust his state remedies with regard to his ineffective
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`assistance of counsel claim. Thus, the Magistrate Judge recommended that Atteberry’s habeas
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`corpus petition be denied with prejudice, except that the ineffective assistance of counsel claim be
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`denied without prejudice for failure to exhaust.
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`IV. The Parties’ Objections
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`A. Atteberry’s Objections
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`
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`
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`Atteberry contends that if his petition is dismissed, it should be dismissed without prejudice.
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`He asserts that he should be allowed to file a direct appeal in state court and that the district court
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`should have “fixed the problem long ago.” Atteberry further states that while a voluntary guilty plea
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`normally cannot be attacked, he should be allowed to do so because the court did not have the
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`correct information concerning the value of the property.
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`Atteberry alleges that he did not present his claim of ineffective assistance of counsel in state
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`court because his trial counsel prepared his state habeas application and would not assert ineffective
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`assistance against himself. He believes the State committed fraud in prosecuting him and again asks
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`that his case be dismissed without prejudice or sent back to state court.
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`B. The Respondent’s Objections
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`The Respondent contends that the Magistrate Judge should have recommended that the claim
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`of ineffective assistance of counsel be dismissed with prejudice as procedurally barred, rather than
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`without prejudice for failure to exhaust.
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`V. Discussion
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`Atteberry does not offer any legal basis for a dismissal of his petition without prejudice. As
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`the Magistrate Judge correctly determined, the fact that later judicial decisions indicate that a guilty
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`plea rested on a faulty premise or that the legal and factual evaluations of the defendant’s counsel
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`3
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`

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`Case 6:15-cv-00008-RC-JDL Document 26 Filed 08/23/16 Page 4 of 5 PageID #: 174
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`were incorrect do not render a guilty plea vulnerable to later habeas corpus review. Taylor v.
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`Whitley, 933 F.2d 325, 327 (5th Cir. 1991). Atteberry waived his right to appeal when he entered
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`the guilty plea and the record shows that he understood the charges against him and the
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`consequences of his plea and that his guilty plea was knowing and voluntary. See also DeVille v.
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`Whitley, 21 F.3d 654, 657 (5th Cir. 1994) (if a defendant understands the charges against him,
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`understands the consequences of a guilty plea, and voluntarily chooses to plead guilty without
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`coercion, the guilty plea will be upheld on federal review).
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`The Magistrate Judge cited Payton v. U.S., 436 F.2d 575, 576 (10th Cir. 1970), in which the
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`movant pleaded guilty to aiding and abetting a riot in a federal prison. Some of his co-defendants
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`were convicted at trial and later had the aiding and abetting charge reversed on appeal. Like
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`Atteberry, the movant argued that his guilty plea should be set aside based on the reversals of his
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`co-defendants’ convictions, but the Tenth Circuit rejected this argument, holding that the fact the
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`prosecution’s evidence failed in the co-defendants’ cases did not entitle the movant to collaterally
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`attack his sentence after his plea of guilty. Atteberry is in the same position, and he offers no valid
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`basis upon which to reject the Report of the Magistrate Judge. Atteberry’s objections are without
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`merit.
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`Atteberry asserts that he did not raise ineffective assistance of counsel in his state habeas
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`proceeding because his trial counsel also served as his habeas counsel and could not be expected to
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`raise an issue alleging his own ineffectiveness. This is in essence a claim that he had good cause
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`for not raising the issue in his state habeas application because he received ineffective assistance of
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`counsel in the state habeas proceeding. The Respondent does not address this issue. The Magistrate
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`Judge correctly determined that Atteberry’s claim of ineffective assistance of counsel should be
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`dismissed without prejudice for failure to exhaust state remedies. The Respondent’s objections are
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`without merit.
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`
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`4
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`

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`Case 6:15-cv-00008-RC-JDL Document 26 Filed 08/23/16 Page 5 of 5 PageID #: 175
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`VI. Conclusion
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`The Court has conducted a careful de novo review of those portions of the Magistrate
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`Judge’s proposed findings and recommendations to which the parties objected. See 28 U.S.C.
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`§636(b)(1) (district judge shall “make a de novo determination of those portions of the report or
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`specified proposed findings or recommendations to which objection is made.”) Upon such de novo
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`review, the Court has determined that the Report of the Magistrate Judge is correct and the parties’
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`objections are without merit. It is accordingly
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`ORDERED that the parties’ objections are overruled and the Report of the Magistrate Judge
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`(docket no. 21) is ADOPTED as the opinion of the District Court. It is further
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`ORDERED that the above-styled application for the writ of habeas corpus is DISMISSED
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`WITH PREJUDICE as to all matters except for the claim of ineffective assistance of counsel,
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`which is DISMISSED WITHOUT PREJUDICE for failure to exhaust state remedies. It is further
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`ORDERED that any and all motions which may be pending in this action are hereby
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`DENIED.
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`
`
`5

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