NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0034n.06
Filed: October 20, 2004
No. 03-5568
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KEITH DOUGLAS WOOTEN, )
)
Petitioner-Appellant, )
)
v. ) On Appeal from the United States
) District Court for the Middle
FRED RANEY, WARDEN, ) District of Tennessee
)
Respondent-Appellee. )
Before: BOGGS, Chief Judge; GUY, Circuit Judge; and STEEH, District Judge.*
PER CURIAM. Petitioner-Appellant Keith Douglas Wooten, a state prisoner in
Tennessee, appeals the district court’s denial of his petition for a writ of habeas corpus. Wooten
claims his state conviction for robbery with a deadly weapon should be overturned because his plea
of nolo contendere was involuntary, and because he was denied the effective assistance of counsel.
For the following reasons, we affirm.
I
In 1988, Keith Wooten was charged with committing two armed robberies. The first took
place in Wilson County, Tennessee, on May 17, 1988. The second robbery took place the next day
in Carroll County, Tennessee. Wooten was convicted of the Carroll County robbery and sentenced
*
The Honorable George Caram Steeh, United States District Judge for the Eastern District
of Michigan, sitting by designation.
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Wooten v. Raney
to 40 years in prison. Six days prior to his scheduled trial for the Wilson County robbery, Wooten
agreed to a plea bargain in order to avoid serving any additional prison time for the Wilson County
robbery. He pleaded nolo contendere to two counts of robbery with a deadly weapon, and received
two 35-year sentences to run concurrently with each other, and also with the existing 40-year Carroll
County sentence.
On July 5, 1990, the Tennessee Court of Criminal Appeals reversed Wooten’s Carroll
County conviction (and 40-year sentence), finding that the admission of eyewitness testimony
relating to the Wilson County robbery was a prejudicial error. Wooten later pleaded guilty to a
lesser offense and was given a ten-year sentence. For obvious reasons, this turn of events made
the 35-year sentences agreed to in the Wilson County case considerably less attractive to
Wooten, and he began challenging the constitutionality of the nolo contendere plea that resulted
in those sentences.
In the habeas petition that is the subject of this appeal, Wooten sought relief on two
grounds. First, he claimed his plea was involuntary because the state trial court made erroneous
statements during the plea colloquy with regard to the possible combinations of offenses of
which Wooten could be convicted at trial, and the possible sentences he could face if convicted
on all counts. Wooten claimed he was told by both his trial counsel and the trial court that he
faced the prospect of conviction on all six charges brought against him, and therefore the
possibility of up to four consecutive life sentences. In fact, he claimed, because some of the
offenses with which he was charged were lesser included offenses of other charges, he could not
have been convicted on all the charges, and would have faced a maximum of only two life
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sentences. Wooten claimed he would not have pleaded nolo contendere had he known his plea
would save him (according to his own estimates) only 25-85 years of imprisonment, rather than
the 120-165 years he allegedly was led to believe.
Second, Wooten claimed he was denied the effective assistance of counsel. He claimed
that his trial counsel failed to file motions in limine to suppress certain evidence, failed to inform
him about plea offers and negotiations and the sentencing exposure he faced at trial, and
erroneously told him that he would be given credit for 298 days of time served under the terms
of the plea agreement. Wooten also claimed that the state courts failed to apply the correct legal
standards to determine whether he received ineffective assistance of counsel.
The district court denied Wooten’s petition. The court considered the merits of only one
of Wooten’s claims: the claim that his trial counsel erred by failing to file certain pre-trial
motions. The court applied the standard of review mandated by the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”), which states that an application for a writ of habeas
corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted
with respect to any claim that was adjudicated on the merits in state court unless the adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States; or (2) resulted
in a decision that was based upon an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). The district court
declined to hold that the Tennessee Court of Criminal Appeals had unreasonably applied federal
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law in holding that trial counsel’s tactics with regard to the motions at issue did not constitute
ineffective assistance of counsel.1
The court found Wooten’s other claims to be barred by AEDPA. It found that three
claims -- that Wooten’s plea was involuntary due to trial court error, that the state courts
employed an erroneous standard of review, and that Wooten’s trial counsel failed to inform him
of plea negotiations and offers -- were new claims raised for the first time only in Wooten’s
second amended petition in federal court, and were therefore barred by AEDPA’s one-year
statute of limitations.2 Finally, the court found that the claim of attorney error about credit
Wooten would or would not receive for time served was procedurally barred under AEDPA
because Wooten failed to exhaust all available remedies available to him under state law.
II
We review the district court’s denial of a petition for writ of habeas corpus de novo and
the court’s findings of fact for clear error. Skaggs v. Parker, 235 F.3d 261, 266 (6th Cir. 2000).
We need not address the district court’s finding that Wooten’s involuntariness claim was
time-barred by AEDPA statute of limitations, because we agree with the state trial court, before
which Wooten first made this claim, that it is without merit. Factual findings of a state court that
1
The Court of Criminal Appeals found that Wooten’s attorney was prepared to file the
motions in question had the case gone to trial, and had acted reasonably in light of the trial court’s
practice of considering motions in limine only at the beginning of trial. See Wooten v. State, 1993
WL 273896, *2 (Tenn. Crim. App. July 22, 1993).
2
The court did not explicitly consider Wooten’s claim that his trial counsel failed to
inform him accurately about the range of possible sentences he faced at trial, apparently deeming
this claim time-barred along with the claim that his counsel failed to inform him of plea offers and
negotiations.
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a plea was voluntary are accorded a presumption of correctness, and the state will generally
satisfy its burden of showing that the plea was voluntary simply by producing a transcript of the
state court proceedings, as it has done in this case. See Garcia v. Johnson, 991 F.2d 324, 327
(6th Cir. 1993). Wooten waived his right to a jury trial, declared that he understood the
consequences of his plea and had not been coerced into pleading, stated that he was satisfied
with his counsel’s advice, and agreed that his lawyer made no representations to him about the
consequences of his plea with regard to his pending appeal in the Carroll County case.
Although a plea may be deemed involuntary if a defendant did not understand what he
was giving up and receiving in entering his guilty plea, see, e.g., United States v. Lang, 46 Fed.
Appx. 816, 818 (6th Cir. 2002) (unpublished opinion), it is clear from the record before us that
Wooten did understand exactly what he was getting by pleading nolo contendere: the chance to
serve his sentence for the Wilson County robbery concurrently with his existing Carroll County
sentence, and thereby avoid the addition of any consecutive time to his existing 40 years. See,
e.g., JA 178 (“[Counsel] was telling me they could run them each consecutive. Each
consecutive. Well, when he’s saying that, I’m sitting here like, life sentence, life sentence. I
ain’t going to live that long, you know.”). We therefore agree with the state trial court that
Wooten’s plea was made voluntarily.
Furthermore, even if we assume, arguendo, that Wooten had an erroneous understanding
of his maximum sentence at trial, we have no reason to believe that the trial court’s instructions
played any significant role in such a misunderstanding. Wooten agreed to plead nolo contendere
before the plea colloquy. The trial court’s statements about the potential term of imprisonment
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Wooten v. Raney
he could have received if he had not agreed to the plea bargain did not induce him to agree to
that plea bargain in the first place or cause him to change his mind about an agreement already
reached. Wooten’s claim that his plea was involuntary is without merit.
III
A defendant asserting an ineffective assistance of counsel claim generally must show not
only that defense counsel’s performance was deficient but also that this deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to prevail
on his ineffective assistance claims, therefore, Wooten had to prove (1) that his counsel’s
performance was objectively deficient; and (2) there is a reasonable probability that, but for his
counsel’s erroneous advice, he would not have accepted the plea bargain he was offered. See
Moss v. United States, 323 F.3d 445, 474 (6th Cir. 2003).
As explained above, the record before us makes clear that Wooten’s primary motivation
in agreeing to plead nolo contendere was to avoid the addition of any jail time to his existing 40-
year sentence. Assuming, arguendo, that Wooten’s trial counsel was ineffective in each of the
ways Wooten claims, it is clear that neither the failure to file pre-trial motions, the failure to
inform Wooten of certain plea offers and negotiations, nor a false promise of credit for time
served, would have diminished to any meaningful degree the attractiveness of the deal Wooten
was offered and accepted. And while in some cases the failure to inform a defendant correctly of
his sentencing exposure at trial may constitute ineffective assistance of counsel, see, e.g.,
Magana v. Hofbauer, 263 F.3d 542, 550 (6th Cir. 2001) (holding that the defense counsel’s
erroneous advice concerning sentence exposure “fell below an objective standard of
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reasonableness under prevailing professional norms”), in this case the prospect of even the two
consecutive life sentences Wooten claims he would have faced at trial was sufficiently
unattractive to Wooten to make the offer of concurrent sentences impossible to reject. It is only
events that occurred after Wooten pleaded nolo contendere that dimmed the luster of the plea
agreement.
We therefore find that Wooten failed to establish that he was prejudiced by any of his
trial counsel’s alleged deficiencies, as required by Strickland. Because Wooten’s ineffective
assistance claims are without merit, we need not address the district court’s findings that those
claims were barred by AEDPA.
IV
For the reasons discussed above, we AFFIRM the district court’s denial of Keith Douglas
Wooten’s petition for habeas corpus.
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