United States Court of Appeals,
Fifth Circuit.
No. 92-4829.
Patrick O. DeVILLE and Jimmy A. Vidrine, Plaintiffs-Appellants,
v.
John P. WHITLEY, Warden, Louisiana State Penitentiary,
Defendants-Appellees.
May 27, 1994.
Appeals from the United States District Court for the Western
District of Louisiana.
Before WOOD, Jr.,1 SMITH and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
Appellants, Patrick DeVille and Jimmy Vidrine, appeal the
dismissal of their habeas petition. Appellants contend that their
pleas of guilt to second degree murder are invalid because (1) they
lacked the mental capacity to plead; (2) they were not informed of
the elements of second degree murder; (3) their attorneys coerced
them into pleading; and (4) they were denied the effective
assistance of counsel. After a careful review of these
contentions, we affirm the district court's dismissal.
BACKGROUND
On September 8, 1980, Homer Gautreaux was robbed and bound,
forced to swallow pills and a cleansing agent, and later died of
asphyxiation. Two days later, DeVille and Vidrine were arrested
for the first degree murder and armed robbery of Gautreaux.
1
Circuit Judge of the Seventh Circuit, sitting by
designation.
1
At arraignment, Appellants pleaded "not guilty and not guilty
by reason of insanity." The state trial court appointed a sanity
commission composed of two physicians to examine Appellants, and
Appellants appeared before the court for sanity hearings. The
court found Appellants sane, able to understand the charges against
them and capable of assisting counsel in their defenses. However,
because a discrepancy existed between the two physicians' reports,
the court ordered a second sanity commission to examine both
Appellants. After second examinations and hearings, the court
again ruled that Appellants were competent to stand trial and
assist counsel.
On May 26, 1981, the first day scheduled for trial, the state
offered Appellants a plea bargain. Appellants pled guilty to
second degree murder, and the state dismissed the first degree
murder and armed robbery charges. The court accepted the plea
agreement, and Appellants were sentenced to life imprisonment at
hard labor without the benefit of probation, parole or suspension
of sentence.
With state collateral remedies exhausted, Appellants filed
this petition for federal habeas relief. A federal magistrate
judge reviewed the pleadings, briefs, and state habeas court
records and concluded that an evidentiary hearing was not
necessary. The magistrate judge recommended denial of the petition
finding that Appellants' guilty pleas were knowing and voluntary
and that Appellants were not prejudiced by counsel's performance.
The district court adopted the magistrate judge's recommendations
2
and dismissed the habeas petition. We granted Appellants'
certificate of probable cause and this appeal followed.
DISCUSSION
I. Standard of Review
When reviewing the habeas proceedings of petitioners in state
custody, we must accord a presumption of correctness to state court
findings of facts. 28 U.S.C. § 2254(d); Sumner v. Mata, 455 U.S.
591, 591-92, 102 S.Ct. 1303, 1304, 71 L.Ed.2d 480 (1982). We
review the district court's finding for clear error, but decide any
issues of law de novo. Barnard v. Collins, 958 F.2d 634, 636 (5th
Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 990, 122 L.Ed.2d
142 (1993).
II. Mental Competency
Appellants claim that they were not mentally competent to
plead guilty and that the trial court erred by not inquiring into
their mental capacity before they entered their pleas. The
conviction of a mentally incompetent defendant violates the Due
Process Clause. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836,
838, 15 L.Ed.2d 815 (1966). When a court has reason to believe
that a defendant may be incompetent, it must conduct a competency
hearing. Godinez v. Moran, --- U.S. ----, ---- n. 13, 113 S.Ct.
2680, 2688 n. 13, 125 L.Ed.2d 321 (1993). The competency standard
in guilty plea cases is identical to the competency standard to
stand trial. Id. at ----, 113 S.Ct. at 2686. The trial court must
determine whether the defendant has sufficient present ability to
consult with his counsel and whether he has a rational and factual
3
understanding of the proceedings against him. Dusky v. United
States, 362 U.S. 402, 402, 80 S.Ct. 788, 788, 4 L.Ed.2d 824 (1960).
Appellants have failed to meet their heavy burden of proving
actual mental incompetency at the time of their pleas. See
Flugence v. Butler, 848 F.2d 77, 79 (5th Cir.1988). A factual
finding of competency by the state court is presumed to be correct.
Id. Four physicians examined each Appellant and opined that
Appellants were competent to stand trial. The state court held
extensive sanity hearings. Appellants have provided no new
evidence of incompetency that would entitle them to a federal
evidentiary hearing. See Townsend v. Sain, 372 U.S. 293, 313, 83
S.Ct. 745, 757, 9 L.Ed.2d 770 (1963), overruled on other grounds by
Keeney v. Tamayo-Reyes, --- U.S. ----, 112 S.Ct. 1715, 118 L.Ed.2d
318 (1992). After a careful review of the record, we cannot say
that the state court's assessment of competency was erroneous.
Nor do we find that the trial court should have inquired into
Appellants' competency during the plea colloquy. Godinez requires
the trial court to make an inquiry only when there is doubt about
competency. --- U.S. at ---- n. 13, 113 S.Ct. at 2688 n. 13. The
court held a competency hearing for DeVille four months before his
plea and for Vidrine two months before his plea. After these
hearings, the trial court received no objective information that
would reasonably put it on notice that Appellants may not have been
competent.
III. Knowing and Voluntary Plea
After the court has determined that the defendant is
4
competent to stand trial or enter his plea, the court must satisfy
itself that the plea is knowing and voluntary. Parke v. Raley, ---
U.S. ----, ----, 113 S.Ct. 517, 523, 121 L.Ed.2d 391 (1992). "If
a defendant understands the charges against him, understands the
consequences of a guilty plea, and voluntarily chooses to plead
guilty, without being coerced to do so, the guilty plea and any
concomitant agreement will be upheld on federal review." Frank v.
Blackburn, 646 F.2d 873, 882 (5th Cir.1980), modified on other
grounds, 646 F.2d 902 (5th Cir.), cert. denied, 454 U.S. 840, 102
S.Ct. 148, 70 L.Ed.2d 123 (1981).
A. Elements
Appellants first claim that their pleas were not knowing and
voluntary because they were not informed of the specific intent
element of second degree murder. Appellants rely heavily on
Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108
(1976).
In Henderson, the Supreme Court held that a guilty plea to
second degree murder was involuntary where it was established as a
fact that the defendant had not been informed and was not aware
that under New York law intent to kill was an essential element of
the offense to which he pled. Id. at 646-47, 96 S.Ct. at 2258.
The Court stressed that the defendant's plea could not be voluntary
when no one had explained to the defendant that his plea was an
admission to having the specific intent to kill. Id. at 646, 96
S.Ct. at 2258.
The Henderson Court did not purport, however, to lay down an
5
absolute requirement that the technical elements of an offense be
recited to a defendant. A plea will be upheld if it is shown by
the record, or the evidence adduced at an evidentiary hearing, that
a defendant understood the charge and its consequences when he pled
guilty. Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir.), cert.
denied, 474 U.S. 838, 106 S.Ct. 117, 88 L.Ed.2d 95 (1985).
In this case, the record shows that Appellants understood the
charge to which they pled. In contrast to the statute in
Henderson, specific intent is not an essential element of second
degree murder in Louisiana. Louisiana Revised Statute § 14:30.1
provides that second degree murder may be a specific intent or a
felony murder crime:
Second degree murder is the killing of a human being:
(1) [specific intent provision]; or
(2) When the offender is engaged in the perpetration or
attempted perpetration of aggravated rape, aggravated arson,
aggravated burglary, aggravated kidnapping, aggravated escape,
armed robbery, or simple robbery, even though he has no intent
to kill or to inflict great bodily harm.
La.Rev.Stat.Ann. § 14:30.1 (West 1986). The state trial court did
not read the statute or explain in technical terms each element of
second degree murder,2 but it fully apprised the defendants of the
acts necessary to comprise the crime of felony murder under the
2
Federal Criminal Procedure Rule 11 requires that a federal
judge address a defendant in open court, informing the defendant
of the nature of the charges. A state court need not comply with
the formal procedures set forth in Rule 11 as long as the plea
comports with the requirements of due process. See Frank, 646
F.2d at 882.
6
second degree murder statute.3 The following colloquy took place
between the court and DeVille:
Q [The Court]. Mr. Gautreaux died on or about September 7,
1980. Now, in order for me to accept a guilty plea on a
second degree murder, I'm going to have to question you about
the incidents of Mr. Gautreaux's death. I've read some of the
statements, Mr. DeVille, and I understand that you and a
companion went to Mr. Gautreaux's house on the night of his
death. Is that correct?
A [The Defendant]. Yes, sir.
Q. And that you and this companion went there with the
intention of breaking in and stealing. Is that correct?
A. Yes, sir.
Q. One of you entered through a window and the other was let
in through a door. Is that correct?
A. Yes, sir.
Q. And one of you had a gun. Is that right?
A. Yes, sir.
Q. And Mr. Gautreaux was awakened in his bed and he was tied
up. Is that correct?
A. Yes, sir.
Q. And Mr. Gautreaux, while tied up, was forced to eat pills
and drink Pine Oil which resulted in his death. Is that
correct?
A. Yes, sir.
Q. And that $50.00 was found in the apartment and was stolen.
Is that correct?
3
In this respect, the district court erred in finding that
the state trial judge failed to inform Appellants of all the
elements of second degree murder. The district court nonetheless
found that Appellants had knowledge of the elements of second
degree murder. Although we do not follow the district court's
reasoning, we may affirm on any proper ground. Bickford v.
International Speedway Corp., 654 F.2d 1028, 1031 (5th Cir.1981).
7
A. Yes, sir.4
The court gave Appellants notice that the questions it was asking
were necessary for an acceptance of a plea to second degree murder.
The questions fully encompassed the elements of felony murder.
Unlike Henderson, no hidden element was admitted to by Appellants.
The only element Appellants suggest they would dispute is specific
intent to kill, which is not an essential element to the crime of
second degree murder in Louisiana.
The record demonstrates that Appellants had sufficient notice
of the charge to which they pled. Appellants knowingly admitted to
each element of felony murder under the Louisiana second degree
murder statute. Thus, Appellants have failed to meet their burden
of proving that they lacked adequate notice of the charge of second
degree murder. See Bonvillain v. Blackburn, 780 F.2d 1248, 1251
(5th Cir.) (habeas petitioner has burden of proving that he is
entitled to relief), cert. denied, 476 U.S. 1143, 106 S.Ct. 2253,
90 L.Ed.2d 699 (1986).
B. Coercion
Appellants next claim that their attorneys coerced their
guilty pleas. Appellants first argue that their counsel
misrepresented the meaning of life imprisonment by suggesting to
Appellants that they would not serve a full term. A mere
understanding by Appellants, however, that they would receive a
lesser sentence in exchange for a guilty plea will not abrogate
4
A similar colloquy took place between Vidrine and the
court.
8
that plea should a heavier sentence actually be imposed. Harmason
v. Smith, 888 F.2d 1527, 1529 (5th Cir.1989). To prevail on their
claim, Appellants must prove that an actual promise was made by
showing (1) the exact terms of the alleged promise; (2) exactly
when, where, and by whom such a promise was made; and (3) the
precise identity of any eyewitness to the promise. Smith v.
McCotter, 786 F.2d 697, 701 (5th Cir.1986).
The state habeas court held an evidentiary hearing on this
exact issue. After hearing all the testimony, the court rejected
Appellants' claim:
It is ludicrous and incredible that a man, an attorney like
Mr. Launey [Vidrine's attorney] or Mr. Mitchell [DeVille's
attorney] would tell these people that they would be out in
five or ten years, when it's fundamental that a person
convicted of second degree murder will receive a life sentence
without the benefit of parole, probation or suspension. Now,
that doesn't mean that there might have been some type of talk
that years later they could apply for some commutation of
sentence or some leniency. That's always possible. But the
distinct possibility of getting parole is absolutely
unbelievable. To believe what these people would be saying,
would be to brand Mr. Launey and Mr. Mitchell, competent
lawyers, to be absolutely dishonest, incompetent and not fit
to be lawyers serving the public.
The state court chose to disbelieve the testimony of Appellants and
their witnesses and believe the testifying attorneys that no
promise regarding sentencing was made. We have "no license to
redetermine credibility of witnesses whose demeanor has been
observed by the state trial court, but not by [us]." Marshall v.
Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 850, 74 L.Ed.2d 646
(1983). Appellants have failed to overcome the presumption of
correctness attendant to state court findings and prove that an
actual promise was made.
9
Appellants also argue that their pleas were coerced, and thus
involuntary, because their attorneys threatened to withdraw from
the case if they did not plead guilty. At the plea colloquy, the
court asked Appellants whether they were being forced, pressured or
induced in any way to enter their pleas. Both Appellants responded
negatively. Although their attestations to voluntariness are not
an absolute bar to raising this claim, Appellants face a heavy
burden in proving that they are entitled to relief because such
testimony in open court carries a strong presumption of verity.
See Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52
L.Ed.2d 136 (1977).
Both attorneys testified at the state habeas evidentiary
hearing that they did not threaten to withdraw from representation
if their clients did not plea guilty. Again, the state habeas
court chose to believe this testimony, finding that Appellants'
attorneys vigorously defended their clients and that they were
prepared to go to trial on the day that Appellants pled guilty. We
will not second-guess the state court's credibility determinations.
We conclude that Appellants have failed to meet their burden of
showing that their pleas were involuntary.
IV. Ineffective Assistance of Counsel
Finally, Appellants argue ineffective assistance of counsel.
Three of their claims overlap with their assertions that their
pleas were not knowing and voluntary. Appellants argue that their
attorneys misrepresented the meaning of life imprisonment, failed
to explain the elements of second degree murder and threatened to
10
withdraw from the case if Appellants did not plead guilty.
Appellants also argue that their attorneys failed to explain the
significance of a motion to suppress.5
The standard for determining the effectiveness of counsel
during a guilty plea proceeding is the two-prong test set forth by
the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hill v. Lockhart, 474 U.S. 52,
57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985). A defendant must
show that counsel's representation fell below an objective standard
of reasonableness, and that there is " "a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.' " Id. (quoting Strickland,
466 U.S. at 694, 104 S.Ct. at 2068). To meet the prejudice prong,
the defendants must affirmatively prove, and not merely allege,
prejudice. Bonvillain, 780 F.2d at 1253. Thus, "[e]ven where
counsel has rendered totally ineffective assistance to a defendant
entering a guilty plea, the conviction should be upheld if the plea
was voluntary. In such a case there is "no actual and substantial
disadvantage' to the defense." United States v. Diaz, 733 F.2d
371, 376 (5th Cir.1984) (quoting Diaz v. Martin, 718 F.2d 1372,
1379 (5th Cir.1983)).
Appellants have failed to satisfy their burden of proving that
5
Appellants had moved to suppress statements that they had
made while in custody. The Louisiana Supreme Court stayed their
trial until the court held an evidentiary hearing on the
suppression motion. State v. Vidrine, 401 So.2d 967 (La.1981).
When Appellants pled guilty, they waived the right to this
suppression hearing.
11
they were prejudiced by their first three claims of deficient
performance. Our previous discussion concluding that Appellants'
pleas were voluntary defeats these claims of ineffective assistance
of counsel.
As for the claim regarding the motion to suppress, Appellants
have not shown that their counsel's performance was deficient.
Defense counsel for both Appellants testified at the state habeas
evidentiary hearing that they explained the significance of the
motion to suppress to Appellants. Appellants lack of understanding
of the significance of the motion to suppress does not make
counsel's attempt to explain it deficient.
Even assuming that Appellants' counsel were in some respect
deficient in their explanation of the motion to suppress, the state
trial court asked both petitioners whether they understood that
they were entitled to a suppression hearing and whether they were
willing to waive that hearing. Both Appellants responded that they
understood and were willing to waive the right to the hearing. The
court's admonishment cured any deficiency in counsel's performance
and made the error harmless. See Bonvillain, 780 F.2d at 1253.
CONCLUSION
For the foregoing reasons the denial of Appellants' writ of
habeas is
AFFIRMED.
12