     Case: 10-50441     Document: 00511506333          Page: 1    Date Filed: 06/13/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 13, 2011
                                     No. 10-50441
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

WILLIAM M. SCHULTZ,

                                                   Petitioner-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Respondent-Appellee


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:09-CV-674


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        William M. Schultz, former Texas prisoner # 1408497 who is currently on
parole, appeals the district court’s denial of his 28 U.S.C. § 2254 petition,
challenging his conviction for assault of a family member (second offense). The
district court granted a certificate of appealability (COA) on the issue whether
Schultz’s constitutional rights were violated when he accepted a sentencing
agreement based upon the State’s agreement not to prosecute him for two


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 10-50441

offenses, one of which was barred by the applicable statute of limitations.
Schultz asserts that, due to the State’s misrepresentations, he did not enter into
this agreement knowingly and voluntarily.
      The district court did not err in denying habeas relief on this claim. The
totality of the circumstances in the record establish that the Schultz was aware
of the consequences of entering the agreement and that he received a benefit by
entering the agreement. See Joseph v. Butler, 838 F.2d 786, 789-91 (5th Cir.
1988); see also Blanco v. Texas, 18 S.W.3d 218, 219-20 (Tex. Crim. App. 2000).
Although the parties mistakenly believed at the time of the sentencing
agreement that Schultz could be prosecuted for 2003 assault of his wife which
was later determined to be time barred, the State did not intentionally mislead
Schultz or breach the agreement not to prosecute Schultz. At the time of the
sentencing agreement, Schultz could have been prosecuted for the injury to a
child offense, which had a five-year statute of limitations, and he could have
been sentenced as an habitual offender due to his prior felony convictions.
Although it is not possible to determine exactly what his sentence as an habitual
offender would have been, under Texas law, an habitual offender with two prior
felony convictions may be sentenced to life imprisonment or a term of 25 to 99
years of imprisonment. See T EX. P ENAL C ODE A NN. § 12.42(d). The purpose of
the sentencing agreement was to reduce Schultz’s sentencing exposure; the
agreement fulfilled that purpose; Schultz received a ten-year sentence in
accordance with the sentencing agreement; and the State did not prosecute him
for the injury to a child offense. See Joseph, 838 F.3d at 789-91; Blanco, 18
S.W.3d at 219-20. Thus, the fact that the assault offense was time barred did
not defeat the primary purpose of the agreement. See Joseph, 838 F.3d at 789-
91; Blanco, 18 S.W.3d at 219-20. Because the state habeas court’s decision was
not contrary to federal law as established by the Supreme Court or objectively
unreasonable, the district court did not err in denying habeas relief on this
claim. See Williams v. Taylor, 529 U.S. 362, 409-11 (2000).

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                                  No. 10-50441

      Schultz also contends that his trial counsel was ineffective in that he failed
to investigate and discover that the assault charge was time barred before
advising him to accept the sentencing agreement. Given that Schultz faced
being prosecuted for injury to a child, being later sentenced as an habitual
offender, and being ordered to serve any sentence for that offense consecutively
to the sentence for instant assault offense, he has not shown that there is a
reasonable probability that, but for counsel’s error, he would have rejected the
sentencing agreement. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also
Joseph, 838 F.2d at 789-91. Because the state habeas court’s decision was not
contrary to federal law as established by the Supreme Court or objectively
unreasonable, the district court did not err in denying habeas relief on this
claim. Williams, 529 U.S. at 409-11.
      AFFIRMED.




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