Underwood v. Johnson

*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this opinion should not be published and is not precedent except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.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 99-10450
_________________
HENRY CURTIS UNDERWOOD, JR.
Petitioner-Appellee,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellant.
______________________________________________
Appeal from the United States District Court for the
Northern District of Texas
4:98-CV-402-Y
______________________________________________
April 12, 2000
Before REYNALDO G. GARZA, HIGGINBOTHAM, and BENAVIDES, Circuit
Judges.
PER CURIAM:*
In 1993, the petitioner, Henry Curtis Underwood, Jr., pleaded
guilty to burglary of a building in Texas state court. The trial
court deferred adjudication of his guilt and placed Underwood on
probation for a period of ten years. Had Underwood successfully
completed his probationary term, he would have been entitled to

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dismissal of the burglary charge.
Prior to the expiration of Underwood’s probationary term, the
State moved to have the trial court enter an adjudication of
Underwood’s guilt, alleging violations of the conditions of his
probation. Pursuant to a plea agreement, Underwood admitted to
violating the terms of his probation. The plea agreement also
indicated that Underwood would receive a sentence of 8 years and
that the 8-year state sentence would run concurrent to a 63-month
federal sentence. While confined in the Texas prison system,
Underwood discovered that, contrary to the plea agreement, his
state and federal sentences were not running concurrently.
Underwood filed an application for state habeas relief, which
was denied. Subsequently, he filed a petition for writ of habeas
corpus in federal court. After concluding that Underwood’s
petition was not time-barred, the district court found that his
1996 plea was involuntary. The district court therefore granted
relief “unless the state trial court grants petitioner a new
hearing on the state’s motion to proceed to adjudication within
ninety days or an otherwise reasonable period of time.” The
respondent filed a motion to stay judgment pending appeal, which
the district court granted.
Upon a careful review of the record and the briefs, we AFFIRM
the district court’s Order and Final Judgment entered March 31,
1999, granting Underwood’s petition for writ of habeas corpus, for
essentially the reasons set forth by the magistrate judge and

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2 The district court also granted habeas relief based on
ineffective assistance of counsel. Because our affirmance of the
district court’s judgment is based on the involuntary nature of
Underwood’s plea, we express no opinion with respect to the merits
of the ineffective assistance of counsel claim.
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relied upon by the district court.2
Accordingly, the judgment of the district court is AFFIRMED.
AFFIRMED.

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