Bond v. Dretke

                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                        F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                          September 20, 2004
                        _____________________
                                                                   Charles R. Fulbruge III
                                No. 03-41356                               Clerk
                              Summary Calendar
                           _____________________

THOMAS DOUGLAS BOND,

                                                     Petitioner - Appellant,

                                     versus

DOUG DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                                      Respondent - Appellee.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.

PER CURIAM:

       Thomas Douglas Bond, Texas prisoner # 874938, appeals the

district    court’s    denial   of    his     28   U.S.C.   §   2254    petition

challenging his guilty-plea conviction for burglary.               We AFFIRM.

                                       I

       Bond pleaded guilty in Texas state court to burglary and was

sentenced to 25 years of imprisonment. The trial court had granted

Bond   permission     to   appeal    two   issues:     whether    the     State’s

identification procedure was valid and whether the court had

administered the proper plea admonishments.            Bond’s conviction was
affirmed on appeal.      The Texas Court of Criminal Appeals rejected

Bond’s petition for discretionary review.

      Bond next filed a state habeas corpus petition, asserting,

among other grounds, that his guilty plea had been involuntary

because his counsel rendered ineffective assistance by purposefully

misrepresenting       that    he    could       obtain     a    reversal    of    Bond’s

conviction on appeal.         The Texas Court of Criminal Appeals denied

Bond’s petition without a written order.

      Bond then filed this federal habeas petition, raising all of

the   same   claims    that    he    had        asserted       in   his   state   habeas

application.    Bond alleged that his counsel promised that he would

“beat this case” and that, at rearraignment, counsel advised him to

answer the trial court’s questions regarding any promises in the

negative because, otherwise, the trial court would not accept his

guilty plea. Bond submitted affidavits of his mother, brother, and

his mother’s friend, stating that they were present when counsel

promised that he could successfully appeal the conviction and

obtain a new trial based on the issues reserved for appeal.                          He

argues that he would not have pleaded guilty if counsel had not

made these promises.

      Bond’s counsel did not submit an affidavit to the district

court, but he wrote a letter to Bond, stating that he did not

guarantee that the appeals court would reverse the conviction.

      The district court concluded that Bond’s counsel did not

promise him a specific substantive benefit such as a downward

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departure at sentencing, a lesser sentence, or parole, commutation

or pardon after a certain period of incarceration.             Accordingly,

the district court determined that Bond had not shown that his

guilty plea was involuntary due to his counsel’s promise that the

conviction would be reversed on appeal and that he would get a new

trial.

     The district court denied relief, but granted a certificate of

appealability on the limited issue of whether the statements

allegedly made by Bond’s counsel rendered Bond’s guilty plea

involuntary.   The court noted that Fifth Circuit precedent had not

addressed whether a showing of inducement by counsel to plead

guilty extended beyond the guarantee of a lesser sentence or some

specific leniency to include, as here, a promise of victory on

appeal.   The district court and this court denied Bond a COA on the

remaining issues.

                                  II

     As we have noted, Bond argues that his guilty plea was

involuntary because counsel guaranteed that he could successfully

appeal the conviction and obtain a new trial, based on the issues

reserved for   appeal.    To   prove   prejudice    for   an    ineffective

assistance of counsel claim in the context of a guilty plea, the

habeas 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 (1985).   To obtain federal habeas relief on the basis

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of alleged promises, a petitioner must prove that he was promised

an “actual sentencing benefit” by showing (1) the exact terms of

the alleged promise, (2) exactly when, where, and by whom the

promise was made, and (3) the precise identity of an eyewitness to

the promise.       Daniel v. Cockrell, 283 F.3d 697, 703 (5th Cir.

2002); see also United States v. Cervantes, 132 F.3d 1106, 1110

(5th Cir. 1998).

     Bond    did   not   establish   that   his   counsel    promised   him a

specific substantive sentencing benefit, such as “(1) a downward

departure at sentencing; (2) a lesser sentence; or (3) parole,

commutation or pardon after a certain period of incarceration.”

See Daniel, 283 F.3d at 704 (footnotes omitted).            Bond did not show

that his guilty plea was induced by his counsel “clearly and

unequivocally guaranteeing a lesser sentence or some other specific

leniency.”    See id. at 703.        Therefore, Bond has not established

that the state court’s denial of relief on this claim was “contrary

to, or involved an unreasonable application of, clearly established

Federal law.”      28 U.S.C. § 2254(d)(1); see also Hill v. Johnson,

210 F.3d 481, 485 (5th Cir. 2000).

                                      III

     For the foregoing reasons, the judgment of the district court

is

                                                                   AFFIRMED.




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