Opinion
CIVIL ACTION NO. 02-0720, SECTION: "I".
June 13, 2003.
ORDER AND REASONS
Petitioner, Gregory Johnson, filed this application for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Upon review of the record and the law, the Court has determined that the record is sufficient, that no evidentiary hearing is required, and that petitioner is not entitled to relief.
Pursuant to 28 U.S.C. § 2254(e)(2), whether to hold an evidentiary hearing is now a statutorily mandated determination. According to Section 2254(e)(2), the district court generally may hold an evidentiary hearing only when the petitioner has shown that either the claim relies on a new, retroactive rule of constitutional law that was previously unavailable ( 28 U.S.C. § 2254(e)(2)(A)(i)) or the claim relies on a factual basis that could not have been previously discovered through the exercise of due diligence ( 28 U.S.C. § 2254(e)(2)(A)(ii)); and the facts underlying the claim show by clear and convincing evidence that, but for the constitutional error, no reasonable jury would have convicted the petitioner ( 28 U.S.C. § 2254(e)(2)(B)).
Petitioner is a state court prisoner incarcerated at the Louisiana State Penitentiary, Angola, Louisiana. On March 16, 2000, petitioner pled guilty to attempted distribution of heroin in violation of La.Rev.Stat.Ann. § 40:(27)966(A) (West 1987). On that same date, petitioner also pled guilty to a multiple bill of information and he was sentenced as a second offender to a term of twenty years imprisonment at hard labor without the benefit of probation or suspension of sentence and with credit for time served.
State Rec., Vol. III of VI, March 16, 2000, transcript, pp. 2-4; State Rec., Vol. II of VI, March 16, 2000, minute entry; State Rec., Vol. III of VI, waiver of constitutional rights/plea of guilty form.
State Rec., Vol. II of VI, multiple bill of information; State Rec., Vol. III of VI, March 16, 2000, transcript, pp. 5-7; State Rec., Vol. II of VI, March 16,2000, minute entry; State Rec., Vol. III of VI, waiver of constitutional rights/plea of guilty as a multiple offender.
State Rec., Vol. III of VI, March 16, 2000, transcript, pp. 7-8; State Rec., Vol. II of VI, March 16, 2000, minute entry. The state district court ordered that petitioner's sentence run concurrently with any other sentence petitioner was serving.
On or about October 26, 2000, petitioner filed with the state district court a post-conviction application which was denied on December 20, 2000. Petitioner then filed with the Louisiana Fourth Circuit Court of Appeal an application for a writ of supervisory review. On March 22, 2001, the intermediate appellate court denied that application and stated, "This court finds no error in the judgment of the district court denying relator's application for post-conviction relief." Petitioner then filed with the Louisiana Supreme Court an application for a writ of certiorari or review which was denied on January 25, 2002, without reasons assigned.
State Rec., Vol. IV of VI.
State Rec., Vol. III of VI.
State v. Johnson, No. 2001-K-0197 (La.App. 4th Cir. Mar. 22, 2001) (unpublished); State Rec., Vol. I of VI.
State Rec., Vol. I of VI.
State ex rel. Johnson v. State, 807 So.2d 245 (La. 2002) (No. 01-KH-1292); State Rec., Vol. I of VI.
While that application was pending before the Louisiana Supreme Court, on or about May 8, 2001, petitioner filed with the state district court another application for post-conviction relief. The record does not indicate whether that application was ever ruled upon by the state district court. However, on September 27, 2001, the Louisiana Fourth Circuit Court of Appeal denied the application and stated, "Relator's claims in his application for post-conviction relief filed in the district court on May 8, 2001 have been reviewed and are found to be without merit." Petitioner then filed with the Louisiana Supreme Court a petition for writs of certiorari and review which was denied on January 25, 2002, without reasons assigned.
State Rec., Vol. III of VI.
State v. Johnson, No. 2001-K-1534 (La.App. 4th Cir. Sept. 27, 2001) (unpublished); State Rec., Vol. I of VI.
State Rec., Vol. I of VI. On or about August 23, 2001, petitioner also filed with the state district court a motion to correct illegal sentence which was denied on September 12,2001. State Rec., Vol. III of VI. Petitioner then filed with the Louisiana Supreme Court a "Supplemental Writ Application" regarding that denial, which was considered by the Louisiana Supreme Court in case number 01-KH-3016. State Rec., Vol. I of VI. The state record filed with this Court does not reflect whether petitioner challenged the state district court's denial in the Louisiana Fourth Circuit Court of Appeal prior to filing the "Supplemental Writ Application" in the Louisiana Supreme Court.
State ex rel. Johnson v. State, 807 So.2d 845 (La. 2002) (No. 01-KH-3016); State Rec., Vol. I of VI.
On March 12, 2002, petitioner filed this application for federal habeas corpus relief. The state conceded that petitioner's federal application was timely filed. However, the state argued that petitioner failed to exhaust his state court remedies. Based on its review of the petition and the state court record, this Court determined that not all of petitioner's claims had been exhausted in state court. Accordingly, judgment was entered dismissing petitioner's mixed petition without prejudice pursuant to 28 U.S.C. § 2254(b)(1)(A).
Rec. Doc. 1.
Rec. Doc. 10, p. 3.
Rec. Doc. 10, p. 2.
Rec. Doc. 12.
Rec. Doc. 13.
Petitioner subsequently filed a motion for reconsideration, asking that he be allowed to withdraw his unexhausted claims and have the exhausted claims decided on the merits. The state was unopposed to that motion. Construing petitioner's motion as one filed pursuant to Fed.R.Civ.P. 60(b), the Court granted the motion.
Rec. Doc. 16.
Rec. Doc. 19.
Rec. Doc. 20.
Withdrawn Claims
For the reasons set forth in the Order and Reasons entered on September 12, 2002, the following claims are not exhausted and, pursuant to petitioner's request, are deemed withdrawn:
1. Petitioner pled guilty pursuant to an enforceable plea bargain agreement that was subsequently broken.
2. Petitioner's counsel was ineffective when he failed to object to the prosecution's failure to present evidence regarding the existence and constitutionality of the predicate conviction used to enhance petitioner's sentence.
3. The application of State v. Shelton, 621 So.2d 769 (La. 1993) violated the Ex Post Facto Clause of the United States Constitution.
See Rec. Doc. 12, pp. 8-9.
See Rec. Doc. 12, pp. 7-8.
See Rec. Doc. 12, p. 9.
Petitioner's remaining claims, as set forth below, are arguably exhausted and, therefore, the merits of the remaining claims will be addressed.
In order to be actually exhausted, the claims must have been presented to the state's highest court in a procedurally proper manner according to state court rules. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). The state and petitioner have not addressed the issue of whether the claims this Court previously found to be arguably exhausted are in fact actually exhausted. Nevertheless, as the United States Fifth Circuit Court of Appeals has noted, 28 U.S.C. § 2254(b)(2) "allows a federal court, in its discretion, to deny habeas relief on the merits, regardless of whether the applicant has exhausted state remedies" and whether exhaustion is waived by the state. Jones v. Jones, 163 F.3d 285, 299 (5 Cir. 1998) (emphasis in original). Accordingly, even if the claims addressed in this opinion are not technically exhausted, the Court is acting within its authority in denying them on the merits.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. Amended subsections 2254(d)(1) and (2) contain revised standards of review for questions of law, questions of fact, and mixed questions of law and fact. Provided that the state court adjudicated the claim on the merits, questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1) and questions of fact are reviewed under § 2254(d)(2). Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039, 121 S.Ct. 2001, 149 L.Ed.2d 1004 (2001).
As to questions of law and mixed questions of law and fact, a federal court must defer to the state court's decision unless it "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The United States Supreme Court has noted:
§ 2254(d)(1)'s "contrary to" and "unreasonable application" clauses have independent meaning. A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams[v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)] that an unreasonable application is different from an incorrect one.Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850,152 L.Ed.2d 914 (2002) (citations omitted). "[U]nder the deferential standard of AEDPA, [federal courts] review only the state court's decision, not its reasoning or written opinion, to determine whether it is contrary to or a misapplication of clearly established federal law." Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir. 2002).
As to questions of fact, factual findings are presumed to be correct and a federal court will give deference to the state court's decision unless it "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)(2); see also 28 U.S.C. § 2254(e)(1); Hill, 210 F.3d at 485.
Multiple Offender Proceedings
Petitioner alleges that the prosecution failed to introduce evidence regarding the constitutionality of the predicate conviction used to enhance his sentence as a multiple offender. As noted in the Order and Reasons entered on September 12, 2002, that claim is arguably exhausted.
Rec. Doc. 12, p. 8.
Before addressing the underlying merit of petitioner's claim, the Court first notes that the state court record does not support petitioner's implicit suggestion that the predicate conviction was unconstitutional. In the multiple bill of information, it was alleged that petitioner "was duly charged in case number 289-920 of the docket of Section 'B', with the crime of violating La.R.S. 14:72, relative to forgery, that afterward, on the 29th day of September, 1982, the said accused pled guilty as charged." While petitioner appears to suggest that he was neither represented by counsel nor informed of his rights in compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), when he pled guilty in case number 289-920, the state court record indicates otherwise. In that case, petitioner pled guilty to three charges of forgery. The minute entry from September 29, 1982, provides in pertinent part:
State Rec., Vol. II of VI, multiple bill of information.
The Defendant, Gregory Johnson, in person, attended by his Counsel, Mr. Vernon P. Thomas, was placed before the bar of the Court this day and with the permission of the Court, withdrew his former plea of "Not Guilty" herein recorded, and in lieu thereof entered a plea of "Guilty as Charged" in each count. Court then addressed the Defendant personally and advised him of his rights under Boykin, which included the following: (1) The defendant's privelege [sic] against compulsory self-incrimination; (2) the defendant's right to a trial by Judge of Jury; And (3) the defendant's right to confront his accusers. The defendant personally waived each of these rights, as noted by the Court Reporter. Court then found that there was a basis in fact for the pleas of guilty, and further found that the Defendant's pleas of guilty were voluntarily and intelligently entered. Court ordered the pleas recorded.
Supplemental State Rec., Vol. I of I, September 29, 1982, minute entry.
Turning to petitioner's claim, the Court notes that it is unclear whether petitioner is now attempting to challenge his enhanced sentence on the basis that the predicate conviction was in fact unconstitutional or rather is only challenging the sufficiency of evidence presented during the multiple offender proceeding. However, petitioner is not entitled to federal habeas corpus relief in either event.
To the extent that petitioner is attempting to challenge his enhanced sentence on the basis that the predicate conviction was unconstitutional, such a claim must fail. In Lackawanna County District Attorney v. Cross, 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001), the United States Supreme Court stated:
[W]e hold that once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.Id. at 403-04, 121 S.Ct. at 1574 (citation omitted). However, the Supreme Court went on to note:
[W]e recognize an exception to the general rule for § 2254 petitions that challenge an enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).Id. at 404, 121 S.Ct. at 1574.
To the extent the that petitioner is attempting to challenge his enhanced sentence of the basis that the predicate conviction was unconstitutional because he pled guilty without a proper advisement of his rights, such a claim is precluded byLackawanna. In addition, to the extent that petitioner is attempting to challenge his enhanced sentence on the basis that the predicate conviction was unconstitutional because he was not appointed counsel, such a claim is refuted by the state record in case number 289-920 which shows that petitioner was represented in that proceeding by an attorney.
If petitioner is claiming that he is entitled to relief because the state failed to introduce proof at the multiple offender proceeding that he was represented by counsel and advised of his rights when he pled guilty in case number 289-920, that claim is also without merit. The fatal flaw in petitioner's argument is that he pled guilty to being a multiple offender. On March 16, 2000, while represented by counsel, petitioner was informed of his rights, including the right to require that the state prove that he was informed of his constitutional rights when he pled guilty to the predicate conviction. However, petitioner waived those rights and entered a plea of guilty to the multiple bill of information. Therefore, petitioner's claim that the state presented insufficient evidence at the multiple offender proceeding is not cognizable on federal habeas review.
State Rec., Vol. III of VI, March 16, 2000, transcript, pp. 5-7. Moreover, petitioner signed a waiver of rights form which included the following acknowledgment: By entering this plea of guilty, I understand that I am giving up the following rights:
1. plead not guilty to this charge.
2. Have a hearing and force the District Attorney to prove;
a. that I am one and the same individual who has the prior felony conviction record;
b. that the time period between the completion of the sentence for the listed felony(s) and the date of the crime for which I have now been convicted is 5 years or less;
c. and, if any prior conviction was the result of a guilty plea, that I was properly advised at the time of my plea of; my right to a trial by jury, my right to cross-examine the state's witnesses, and my right to remain silent at trial and not have my silence held against me or considered as evidence of possible guilt.
State Rec., Vol. III of VI, waiver of constitutional rights/plea of guilty as a multiple offender.
State Rec., Vol. III of VI, March 16, 2000, transcript, pp. 5-7; State Rec., Vol. III of VI, waiver of constitutional rights/plea of guilty as a multiple offender. A valid guilty plea normally waives habeas review of most non-jurisdictional claims. Matthew v. Johnson, 201 F.3d 353, 364 (5th Cir. 2000). Among the claims waived are those challenging the sufficiency of the underlying evidence. Nobles v. Beto, 439 F.2d 1001, 1002 n. 1 (5th Cir. 1971); Jones v. Cockrell, No. 3:01-CV-837-D, 2002 WL 31455604, at *6 (N.D. Tex. Oct. 30, 2002); Jamme v. Cockrell, No. 3:01-CV-1370-L, 2002 WL 1878403, at *6 (N.D. Tex. Aug. 12,2002); Babb v. Johnson, 61 F. Supp.2d 604,606 (S.D. Tex. 1999); see also United States v. Hanyard, 762 F.2d 1226, 1230-31 (5th Cir. 1985).
The Court further notes that the same is true even under state law. Louisiana law provides that a criminal defendant's "guilty plea to the multiple bill bars him from raising a claim that the state did not produce sufficient evidence at the multiple offender hearing." State v. Lavigne, 675 So.2d 771, 778 (La.App. 4th Cir. 1996), writ denied, 685 So.2d 140 (La. 1997); see also State v. Ewens, 735 So.2d 89, 98 (La.App. 5th Cir.), writ denied, 750 So.2d 179 (La. 1999).
Petitioner has failed to demonstrate that the state court's decision denying this claim was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Applying the AEDPA's deferential standard, this Court rejects petitioner's claim.
Involuntary Plea
Petitioner alleges that his rights were violated by the trial court's refusal to enforce petitioner's plea bargain, reduce his sentence, or vacate his guilty plea to the multiple bill of information. The legal basis for petitioner's claim is vague at best. However, as noted in the Order and Reasons entered on September 12, 2002, to the extent that petitioner is arguing that his guilty plea was involuntary because he mistakenly believed that the plea bargain made him eligible to earn "good time" credit, his claim is arguably exhausted.
Under Louisiana law, certain convicted offenders are allowed to earn "good time" which may ultimately result in a diminution of their sentences. See La.Rev.Stat.Ann. §§ 15:571.3 et seq. Offenders released pursuant to those provisions are "released as if released as on parole," La.Rev.Stat.Ann. § 15:571.5(A)(1), and a good time release is deemed to be "the equivalent of parole," State v. McGhee, 752 So.2d 770, 771 (La. 1999).
Rec. Doc. 12, p. 9.
The United States Fifth Circuit Court of Appeals has held:
Because a guilty plea involves the waiver of constitutional rights it must be voluntary, knowing, and intelligent. Brady v. United States, 397 U.S. 742,90 S.Ct. 1463, 1468-69, 25 L.Ed.2d 747 (1970). In Brady, the Supreme Court stated:
"The standard as to voluntariness of guilty pleas must be essentially that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit:
'[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).'" Id. at 1472 (inside quotation marks omitted).
Where a defendant can show that the court, the prosecutor or defense counsel induced his guilty plea by clearly and unequivocally guaranteeing a lesser sentence or some other specific leniency, the guilty plea is not voluntary unless the defendant receives that which he was promised. The defendant must generally establish that an actual promise or guarantee was made by showing: (1) the exact terms of the alleged guarantee; (2) exactly when, where and by whom the guarantee was made; and (3) the identity of any eyewitnesses to the guarantee. . . .
A guilty plea is not rendered involuntary by the defendant's mere subjective understanding that he would receive a lesser sentence. In other words, if the defendant's expectation of a lesser sentence did not result from a promise or guarantee by the court, the prosecutor or defense counsel, the guilty plea stands.
Likewise, a guilty plea is not rendered involuntary because the defendant's misunderstanding was based on defense counsel's inaccurate prediction that a lesser sentence would be imposed.Daniel v. Cockrell, 283 F.3d 697, 702-03 (5th Cir.) (footnote and citations omitted) (emphasis in original), cert. denied, ___ U.S. ___, 123 S.Ct. 286, 154 L.Ed.2d 126 (2002).
Petitioner does not allege that he was promised good time eligibility by either the prosecutor or the trial judge. At the hearing on March 16, 2000, there was only one brief exchange regarding good time eligibility. That exchange, which occurred after petitioner entered his plea and was sentenced, was as follows:
To the extent that petitioner may be arguing that those officials had an affirmative duty to explain good time eligibility to him, that argument is without merit. The United States Supreme Court has noted:
We have never held that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant's plea of guilty to be voluntary, and indeed such a constitutional requirement would be inconsistent with the current rules of procedure governing the entry of guilty pleas in the federal courts.Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985).
BY MS. LLOYD [defense counsel]:
Your Honor, the defendant has one question. Your Honor, back in those days, the Court had — I don't know if it was specific that year or not — but back in those days the Court had the option of denying or granting a person good time. The defendant wants to know if this Court is specifically denying him —
BY THE COURT:
State Rec., Vol. III of VI, March 16, 2000, transcript, p. 8.
Moreover, in denying petitioner's motion to correct illegal sentence, the state district court judge elaborated on this exchange, noting:
[T]he transcript does not clearly reflect the judge's intent to have good time be a consideration. The question posed to the court was if the court was "specifically denying him." (Boykin tr.p. 8, line 9) The judge's response was not that we were granting him good time, but rather that the court was not denying him. In addition, the issue of good time is one for the Department of Corrections, not something which the judge can dictate.
State Rec., Vol. III of VI, September 12, 2001, Judgment.
Although not implicating either the prosecutor or the judge, petitioner makes the wholly unsubstantiated allegation that he pled guilty "based upon misinformation provided by counsel that petitioner would not be deprived of good-time eligibility. . . ." While petitioner's contention that his counsel allegedly provided incorrect information regarding good time eligibility has relevance to the related claim of ineffective assistance of counsel, discussed later in this opinion, that contention is not relevant to whether petitioner's plea was involuntary. Any such representations made by counsel would have at most constituted legal advice and not a negotiated concession promised to petitioner to induce him to plead guilty. Indeed, if petitioner believed that he had been promised or guaranteed good time eligibility as part of the plea bargain, there would have been no need for the question he posed to the court after sentencing.
Rec. Doc. 1, supporting memorandum, p. 6.
The Court notes that the written guilty plea agreement signed by petitioner contains no mention of good time eligibility. Rather, that form contains the following acknowledgment: "I understand that the sentencing range as a multiple offender in this case is 16.6 years to 100 years (using the 1987 law) and that the sentence I will receive is 20 years in the Louisiana Department of Corrections as a second offender." State Rec., Vol. m of VI.
Petitioner has failed to demonstrate that the state court's decision denying this claim was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Applying the AEDPA's deferential standard, this Court rejects petitioner's claim that his guilty plea was involuntary because he mistakenly believed that the plea bargain made him eligible to earn good time credit.
Ineffective Assistance of Counsel
Petitioner contends that his counsel was ineffective because he allowed petitioner to plead guilty to the multiple bill of information based on petitioner's mistaken belief that he would be eligible to earn good time credit during his incarceration. As noted in the Order and Reasons entered on September 12, 2002, that claim is arguably exhausted. Accordingly, the Court will address the merits of that claim.
Rec. Doc. 12, p. 7.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established a two-prong test for evaluating claims of ineffective assistance of counsel. A petitioner seeking relief must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.
To prevail on the deficiency prong, petitioner must demonstrate that counsel's conduct fails to meet the constitutional minimum guaranteed by the Sixth Amendment. See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001), cert. denied, 534 U.S. 1163, 122 S.Ct. 1175, 152 L.Ed.2d 118 (2002). "Counsel's performance is deficient if it falls below an objective standard of reasonableness." Little v. Johnson, 162 F.3d 855, 860 (5th Cir. 1998). Analysis of counsel's performance must take into account the reasonableness of counsel's actions in light of all the circumstances. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. "[I]t is necessary to 'judge . . . counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.'" Lockhart v. Fretwell, 506 U.S. 364, 371,113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). Petitioner must overcome a strong presumption that the conduct of his counsel falls within a wide range of reasonable representation. See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986); Mattheson v. King, 751 F.2d 1432, 1441 (5th Cir. 1985).
In order to satisfy the prejudice prong for an ineffective assistance of counsel claim regarding the entry of a guilty plea, petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); see also James v. Cain, 56 F.3d 662, 667 (5th Cir. 1995).
Petitioner bears the burden of proof when asserting a claim for ineffective assistance of counsel. Petitioner "must demonstrate, by a preponderance of the evidence, that his counsel was ineffective." Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir. 1993); see also Clark v. Johnson, 227 F.3d 273, 284 (5th Cir. 2000). If a court finds that petitioner has made an insufficient showing as to either of the two prongs of inquiry, i.e. deficient performance or actual prejudice, it may dispose of the claim without addressing the other prong.Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.
A claim of ineffective assistance of counsel is a mixed question of law and fact. Moore v. Cockrell, 313 F.3d 880,881 (5th Cir. 2002), cert. denied, ___ U.S. ___, 123 S.Ct. 1768, ___ L.Ed.2d ___ (2003). Therefore, this Court must defer to the state court unless its decision on the claim "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
Petitioner claims that he pled guilty to the multiple bill of information based on his counsel's erroneous advice that petitioner would be eligible to earn good time credit. Petitioner states that he would not have pled guilty had he known that being sentenced as a multiple offender would render him ineligible to earn good time credit.
Even if counsel gave the erroneous advice as alleged, it is not clear whether that fact alone would be sufficient to establish deficient performance under Strickland. When presented with a similar claim in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme Court noted, "We find it unnecessary to determine whether there may be circumstances under which erroneous advice by counsel as to parole eligibility may be deemed constitutionally ineffective assistance of counsel, because in the present case we conclude that prisoner's allegations are insufficient to satisfy theStrickland v. Washington requirement of 'prejudice.'" Id. at 60, 106 S.Ct. at 371; see also Czere v. Butler, 833 F.2d 59, 63 n. 6 (5th Cir. 1987). Nevertheless, even if this Court assumes that counsel gave incorrect advice regarding eligibility to earn good time credit and that such erroneous advice constituted deficient performance, the Court finds that petitioner has not shown that he was prejudiced by that deficient performance.
As noted, petitioner bears the burden of proving prejudice. "In other words, [petitioner has] the burden of proof and persuasion to establish that but for the misadvice he would not have pleaded guilty and would have insisted on going to trial."Id. at 63. Although petitioner alleges that he would not have pled guilty to the multiple bill of information pursuant to the plea bargain had he known that as a multiple offender he would be ineligible to earn good time credit, he has not met his burden of proof in this regard.
Before enhancement, petitioner was sentenced for attempted distribution of heroin to twenty years imprisonment without the benefit of probation or suspension of sentence. After petitioner pled guilty to the multiple bill of information, the state district court vacated the original sentence and then again sentenced petitioner to a term of twenty years imprisonment without the benefit of probation or suspension of sentence, albeit this time as a second offender. In the written plea agreement, petitioner was informed that in the absence of an agreement, he faced a sentence of up to one hundred years imprisonment. Accordingly, in light of the twenty-year sentence initially imposed and the possibility of a significantly longer sentence under the multiple offender statute, petitioner benefitted from the plea agreement.
State Rec., Vol. III of VI, March 16, 2000, transcript, p. 5.
State Rec., Vol. III of VI, March 16, 2000, transcript, p. 7.
State Rec., Vol. III of VI, waiver of constitutional rights/plea of guilty as a multiple offender.
Unless petitioner believed that the state could not have proven that he was a second offender if forced to do so, petitioner would have had nothing to gain, but much to lose, in rejecting the plea bargain. Petitioner has given this Court no reason to believe that the state could not have met its burden of proof. While petitioner correctly notes that the state did not present evidence that he had counsel and that he was advised of his rights when he pled guilty to the predicate offense, it must be noted that petitioner never actually claims that he did not in fact have counsel and that he was not advised of his rights. Moreover, as noted previously, the state court record of case number 289-920 shows that petitioner was represented by counsel and advised of his rights when he pled guilty to the predicate conviction.
Supplemental State Rec., Vol. I of I, September 29, 1982, minute entry.
For all of the foregoing reasons, the Court finds unconvincing petitioner's wholly unsupported allegation that he would have rejected the plea bargain if not for counsel's alleged erroneous statement regarding good time eligibility. Therefore, petitioner has not met his burden of proof to establish he was prejudiced by counsel's error.
Petitioner has failed to demonstrate that the state court's decision denying this claim was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Applying the AEDPA's deferential standard, this Court rejects petitioner's ineffective assistance of counsel claim.
Oral Bill of Information
Petitioner alleges that the trial court lacked jurisdiction to accept petitioner's guilty plea to an oral, rather than written, multiple bill of information. As noted in the Order and Reasons entered on September 12, 2002, that claim is arguably exhausted.
Rec. Doc. 12, p. 9.
This claim warrants little consideration. Despite petitioner's assertion to the contrary, the record clearly establishes that petitioner pled guilty to a written multiple bill of information. The transcript reflects that prior to taking petitioner's plea the trial judge stated, "Mr. Johnson, the state has filed a multiple bill in your case. And in that multiple bill, they allege that you have one prior felony conviction." (Emphasis added.) A copy of the multiple bill of information, which contains petitioner's fingerprints dated March 16, 2000, is included in the state court record. Moreover, also included in the state court record is a written waiver of rights and guilty plea form which was signed by petitioner and contains the following language:
State Rec., Vol. III of IV, March 16, 2000, transcript, p. 5.
State Rec., Vol. II of VI.
I, Gregory Johnson, do hereby plead guilty to the charge outlined in the bill of information, attached to this form, charging me, pursuant to Louisiana Revised Statute 15:529.1, with having the listed prior felony conviction record and being a second felony offender offender [sic] under the provisions of this law. A copy of this bill has been provided to me and reviewed by me and my attorney JoAnn W. Lloyd. (Emphasis added.)
State Rec., Vol. III of VI, waiver of constitutional rights/plea of guilty as a multiple offender.
Accordingly, the state court record clearly refutes petitioner's claim that he pled guilty to an oral multiple bill of information.
For all of the foregoing reasons, this Court finds that petitioner's unexhausted claims have been withdrawn at his request and that no arguably exhausted claim is meritorious. Accordingly, Gregory Johnson's federal petition for habeas corpus relief is DISMISSED WITH PREJUDICE.