UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-20199
Summary Calendar
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TOMMY RAY FRANKLIN,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
Houston Division
(H-93-CV-2474)
_________________________________________________________________
September 17, 1997
Before JONES, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:1
Tommy Ray Franklin, Texas Prisoner #434198, appeals the
district court’s denial of his request for habeas relief under 28
U.S.C. § 2254. We affirm.
Franklin was convicted on two counts of aggravated
robbery. Because of his two prior convictions, the jury could
1
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should not be published and is not precedent except under the limited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.
impose a prison term of twenty-five years to life for each
conviction. See TEX. PENAL CODE § 12.42(d). The jury assessed
punishment as a life sentence for each offense. In affirming his
conviction, the Texas Court of Criminal appeals described the
facts as follows:
On August 30, 1986, at approximately 1:30
a.m., the appellant approached Milton Brown,
the complainant in the first cause, as Brown
was using a telephone outside a closed
convenience store. He pulled the knife,
threw Brown to the ground, robbed him, and
stole his car. Brown later identified the
appellant from a photo array and lineup.
At approximately 5:30 a.m. the same morning,
the appellant arrived at a service station
where Kevin Martin was working alone. After
buying some gas, the appellant asked Martin
to help him take a fuse from his car. When
Martin bent to look in the car, the appellant
attacked him with a knife and cut Martin’s
lip. He then robbed Martin, while holding
the knife to Martin’s throat. Martin
attempted to escape. The appellant caught
him and forced him to open the cash register.
The appellant took money from the cash
register, and stabbed Martin in the neck and
leg before fleeing in the stolen car.
Despite his wounds, Martin managed to get a
gun from inside the station and shoot twice,
hitting the car at least once. Martin
subsequently identified the appellant from a
photo array.
Franklin v. State, 742 S.W.2d 66, 67 (Tex. App.--Houston[14th
Dist.] 1987, pet. ref’d). The Court of Criminal Appeals denied
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discretionary review. Franklin subsequently filed two
unsuccessful state habeas petitions.
Franklin’s application for federal habeas relief raised
thirteen claims, and the district court granted summary judgment
for Johnson on each claim. On his application for a Certificate
of Probable Cause to appeal, which this court treated as an
application for Certificate of Appealability, see 28 U.S.C. §
2253(c)(1) as amended by the Anti-Terrorism and Effective Death
Penalty Act (AEDPA), we granted leave to appeal on the issues of
whether Franklin was denied effective assistance of counsel due
to counsel’s purported failure to investigate an invalid prior
conviction used for enhancement purposes and his counsel’s
purported advice to plead true to the invalid prior conviction
for enhancement purposes. Franklin filed his petition prior to
the effective date of the AEDPA; thus, under Lindh v. Murphy, ___
U.S. ____, ___ S.Ct. ___, 1997 WL 338568 (June 23, 1997), the new
provisions do not apply to his petition. However, the standards
for issuance of a Certificate of Probable Cause and Certificate
of Appealability are the same. See Drinkard v. Johnson, 97 F.3d
751, 756 (5th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct.
1114 (1997). Thus, we will treat his appeal as if we granted his
request for a Certificate of Probable Cause to appeal.
3
For purposes of enhancement, the indictment of Franklin
in this case alleged cause number 250168, a 1976 conviction for
theft, and cause number 312939, a 1980 conviction for theft. At
the sentencing phase, Franklin pled true to the enhancement
convictions. However, the conviction in cause number 250168 had
been reversed by the Court of Criminal Appeals in 1977. Thus,
Franklin urges that his counsel was ineffective for inadequately
investigating the prior convictions and advising Franklin to
plead true to an invalid conviction. We disagree.
Although the conviction in cause number 250168 was
reversed, Franklin was subsequently reindicted for the same crime
in cause number 269160, to which he pled guilty in 1978. This
conviction was introduced, along with three other convictions
not alleged in the indictment, at the sentencing phase of the
trial. After Franklin’s penitentiary papers, which included
these prior convictions as well as those alleged in the
indictment, were introduced by the state, the following exchange
occurred outside the presence of the jury.
Mr. Scheve: First of all, judge, yesterday I
had an opportunity to look at the pen packet
and looked at it for about an hour when the
jury was out, and I didn’t see any objection
to it. Mr. Franklin first was in the
holdover cell and I wasn’t talking to him at
the time. He claims at this point, as a
surprise to me, that a couple of these
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convictions are not true. Not the ones that
were stated, by the way, in the enhancement
portion, but so the only thing I can do is--
well, let me ask the court. I hate at this
last minute to have to call your I.D. persons
but that is the only way I can solve that
problem that I can see.
Mr. Coffee: That’s right.
(Brief Recess)
Mr. Scheve: Mr. Franklin, since we had the
jury present a while ago, we have looked at
this pen packet, have we not?
The Defendant: Yes, we have.
Mr. Scheve: And I may have confused you with
one number there. And you felt that that pen
packet was not correct; is that correct?
The Defendant: That is correct.
Mr. Scheve: Now we have had a chance to look
at it more closely together, and you agree it
is correct; is that true?
The Defendant: That is true.
Mr. Scheve: And, so, when Mr. Coffee offers
it into evidence in a few moments, you, along
with me, will not have an objection to it
being admitted, is that correct?
Later in the sentencing portion of the trial, Franklin pled true
to the enhancement allegations:
The Court: OK, when we finish the evidence,
then we will be ready to have these charges
read and have the argument on punishment?
Mr. Scheve: Yes, sir.
The Court: Mr. Franklin, when the district
attorney and the defense attorney announce
their stipulation to the court, I will ask
you in the presence of the jury is that your
agreed stipulation. What will your answer
be?
Mr. Scheve: Let me explain the word
stipulation, judge.
The Court: Oh. OK, I just wanted you to be
on guard and tell you I am going to call on
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you for an answer. I didn’t want to catch
you off guard.
The Defendant: I understand.
(The jury enters the courtroom)
The Court: Court is in session. Be seated,
please. Court calls for announcements for
hearing in the penalty phase in cause 457529
and cause 457530, State of Texas v. Tommy Ray
Franklin also known as Bruce Hughes.
Mr. Coffee: State is ready.
Mr. Scheve: The defense is ready.
The Court: Mr. Franklin, will you stand,
please? State will read its enhancement
paragraphs.
Mr. Coffee: In cause number 457529, before
the commission of the offense alleged above,
hereafter styled the primary offense, on
September 28, 1976 in cause number 250168 in
the 178th District Court of Harris County,
Texas, the defendant was convicted of felony
of theft. Before the commission of the
primary offense, and after the conviction in
cause number 250168 was final, the defendant
committed the felony of theft and was
convicted on September 29, 1980, in cause
number 312939 in the 209th District Court of
Harris Count, Texas. Against the peace and
dignity of the State. Enhancement paragraphs
are signed by the foreman of the Grand Jury.
In cause number--
The Court: Just a minute, please. Mr.
Franklin, what is your plea to enhancement
paragraph number one in 45729?
The Defendant: True.
The Court: Your plea to enhancement
paragraph two?
The Defendant: True.
The Court: Your pleas of true are accepted.
(emphasis added). Franklin pled true to the same enhancement
paragraphs in cause number 457530.
6
Franklin claims in his affidavit that he informed his
counsel that his conviction in cause number 250168 had been
reversed, and that his counsel responded: “[i]f you have proof of
that you need to get it to me otherwise I cannot tell that to the
court. I have checked the indictments and there are no defects
that I can tell.” Franklin’s counsel submitted an affidavit in
the state court proceedings in response:
I properly investigated Applicant’s prior
criminal convictions and the pen-packets and
did not find objectionable error. I further
state that at no time did I advise Applicant
to plead true to any prior conviction or
enhancement of which he now complains.
Under Strickland v. Washington, 466 U.S. 668, 689-94
(1984), Franklin must show that his counsel’s performance fell
below an objective standard of reasonableness and that deficient
performance prejudiced his defense. In denying his state habeas
petition without a hearing, the trial court credited the
affidavit of Franklin’s counsel and determined that “said facts
together with the contents of official court records demonstrate
that the totality of the representation afforded [Franklin] was
sufficient to protect his right to reasonably effective
assistance of counsel.”
Franklin stated in open court that the prior convictions
alleged in the indictment were legitimate. Such declarations
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carry a strong presumption of truth. Blackledge v. Allison, 431
U.S. 63, 74 (1977). However, Franklin claims that he informed
his counsel at the time of his trial that the conviction in cause
number 250168 had been reversed, but his trial counsel
nonetheless advised him to plead true. The state court credited
the statement of Franklin’s counsel that he properly investigated
the enhancement paragraphs, yet was unaware of any problems with
the prior convictions. We defer to that finding. See Lincecum v.
Collins, 958 F.2d 1271, 1279-80 (5th Cir.), cert. denied, 506
U.S. 957, 113 S.Ct. 417 (1992).2 This is especially true when
the affidavit of trial counsel is supported by the statements of
both Franklin and his counsel in open court during the trial.
Accordingly, we cannot say that counsel rendered constitutionally
deficient assistance.
2
This court has stated that where a state proceeding is
conducted by affidavit (at least before the advent of AEDPA’s §
2254(e)(1)), we must consider the state record and determine
whether findings based on such a proceeding are entitled to the
presumption of correctness. May v. Collins, 955 F.2d 299, 312 (5th
Cir.), cert. denied 504 U.S. 901 (1992). Here, the procedure was
adequate. Trial counsel’s affidavit corroborates the trial
transcript, whereas Franklin’s affidavit conflicts with both. The
state habeas court had no disadvantage in considering this
particular question by virtue of the fact that he was not the same
judge who presided at trial. Accordingly, the state court’s
findings, adequately supported in the record, must be deferred to.
8
Furthermore, Franklin has not satisfied the prejudice
prong of the Strickland test. Franklin cites McGee v. Estelle,
732 F.2d 447, 450-51 (5th Cir. 1984), where we held that a
conviction under a prior Texas habitual offender statute based
upon an invalid conviction could not be harmless error. However,
McGee is not particularly helpful to Franklin, because McGee had
been convicted under a statute which called for a mandatory life
sentence if the two enhancement convictions were proven. McGee,
732 F.2d at 449. In contrast, the statute under which Franklin
was convicted does not call for a mandatory life sentence if the
defendant has two prior convictions. TEX. PENAL CODE §§§ 29.03(b),
12.32(a), 12.42(c). Instead, the additional enhancement
conviction only raises the minimum sentence to which he would be
subjected: the range is fifteen years to life with one
enhancement conviction versus twenty-five years to life with two
enhancement convictions. See id. The jury gave Franklin life
sentences on both aggravated robbery counts, and, given the
egregious nature of Franklin’s crimes and his numerous other
valid convictions, including the crimes of rape, robbery by
firearm and aggravated perjury, introduced at the penalty phase
of the trial, he can not show that but for counsel’s error, the
jury probably would not have sentenced him to a life sentence on
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each count. See Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir.
1993) (must be “a reasonable probability that but for trial
counsel’s errors the defendant’s non-capital sentence would have
been significantly less harsh”).
Accordingly, we AFFIRM the district court’s decision to
deny issuance of the writ.
AFFIRMED.
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