United States Court of Appeals,
Fifth Circuit.
Summary Calendar
Nos. 94-40295, 94-50337.
Richard James RANDLE, Petitioner-Appellant,
v.
Wayne SCOTT, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.
Richard James RANDLE, Petitioner-Appellant,
v.
Wayne SCOTT, Respondent-Appellee.
Feb. 1, 1995.
Appeal from the United States District Court for the Eastern
District of Texas.
Appeal from the United States District Court for the Western
District of Texas.
Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:
This is a consolidated appeal from denials of federal habeas
relief in similar proceedings instituted in the Western District
and the Eastern District of Texas. Both appeals involve virtually
identical ineffective assistance of counsel arguments arising from
Richard James Randle's plea of "true" to an enhancement conviction
and his concealment from his counsel and the district courts that
he had previously obtained the reversal of the conviction used to
enhance his sentence in both cases. In each case, we AFFIRM the
decision of the district court denying relief.
1
FACTS
In 1982 Richard James Randle, proceeding pro se, filed an
application for a state writ of habeas corpus on the grounds that
one count of his three-count robbery conviction was improperly
enhanced by a 1975 forgery conviction which was void because it was
based on a fundamentally defective indictment. The Texas Court of
Criminal Appeals agreed and set aside the first count of the
robbery conviction.1
Notwithstanding his successful challenge to a count in his
1981 conviction because of the 1975 forgery conviction, Randle
plead guilty in 1993 to separate indictments in Anderson County,
Texas and in Leon County, Texas. In each instance Randle plead
true to enhancement paragraphs in such indictments based on the
1975 forgery conviction and his 1981 robbery conviction.
THE ANDERSON COUNTY CONVICTION AND PROCEEDINGS IN THE DISTRICT
COURT FOR THE EASTERN DISTRICT OF TEXAS
(No. 94-40295)
In March 1993, Randle pleaded guilty in Anderson County,
Texas, to robbery and "true" to enhancement paragraphs therein for
the 1975 forgery conviction and the 1981 robbery conviction; on
March 26th, he was sentenced to 35 years' imprisonment and is
currently in the custody of the Texas Department of Criminal
Justice. No direct appeal was filed.
1
The magistrate judge's report in No. 94-40295 notes that
"[o]n remand Petitioner pled [sic] guilty and was sentenced,
without the enhancement paragraph, to thirty-five years
confinement in the Texas Department of Corrections for count
one."
2
On March 30th, four days after he was sentenced, Randle filed
a state writ for habeas relief, arguing that the enhancement for
the 1975 forgery conviction was improper because the underlying
conviction was void. The pleading was prepared on March 27th, the
day after sentencing. His application was denied without a written
order by the Texas Court of Criminal Appeals on June 9, 1993.
On June 16th Randle filed a petition for federal habeas relief
asserting that (1) the state court's enhancement based on the 1975
forgery conviction was improper because the conviction was void and
(2) he did not receive effective assistance of counsel because
counsel failed to investigate the validity of the enhancement
convictions and failed to advise him as to the correct sentencing
range because the improper enhancement was used to calculate the
sentence.
In an affidavit attached to the state's motion to dismiss and
answer, Randle's trial counsel stated that (1) prior to the entry
of the guilty plea, but not at any time thereafter, Randle asked
him to investigate whether one of the enhancement convictions had
been reversed; (2) Randle did not advise him that he "personally
filed the state writ which had resulted in the reversal" of the
conviction nor did he make him aware of the opinion of the court;
(3) shortly after making the request, Randle advised him that he
wanted to accept the plea offer; (4) he specifically asked Randle
whether he should pursue the investigation, and Randle said that he
should not; (5) on the morning before sentencing, he met with
Randle and explained the ramifications of the plea, including the
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waiver of any complaints he might have respecting the proceedings;
(6) the judge read the enhancement provisions to Randle in open
court, explained their effect, and asked Randle specifically how he
wished to plead, and Randle "stated "True' to each one without
reservation in open court and on the record." Attached to the
affidavit are several letters written by Randle to the state court
judge asking him, inter alia, to allow Randle to enter into the
plea bargain "as soon as can be arranged."
The magistrate judge recommended denial of the petition
without an evidentiary hearing, determining that Randle waived his
right to challenge the enhancement conviction when he pleaded
"true" and that he did not receive ineffective assistance of
counsel. In so concluding, the magistrate judge specifically found
that "Randle made the conscious and deceitful decision to hide from
trial counsel the fact that he had personally reversed the
enhancement conviction [ ], in a pro se state writ, and then he
intentionally entered a plea of true to the same conviction." The
magistrate judge also determined that Randle was aware of the
forgery conviction that formed the basis of his habeas corpus
efforts for several years; that he signed the application for
state habeas relief one day after his plea, conviction, and
sentencing; and that Randle's assertion that he told counsel that
he had received a reversal but could not remember which one was not
credible.
The district court overruled Randle's objections to the
magistrate judge's findings, adopted the magistrate judge's report
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and recommendation, and entered an order denying Randle's petition.
Randle noticed his appeal timely, and the district court granted a
certificate of probable cause.
THE LEON COUNTY CONVICTION AND PROCEEDINGS IN THE DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
(No. 94-50337)
In February 1993, Randle pleaded guilty to delivery of a
controlled substance; although the indictment contained two
enhancement paragraphs for the 1975 forgery conviction and the 1981
robbery conviction, the judgment reflects that the enhancements
were waived by the state. Randle was sentenced to 25 years'
imprisonment and is currently in the custody of the Texas
Department of Criminal Justice.
On March 30, 1993, Randle filed a state writ for habeas
relief, arguing that he did not receive effective assistance of
counsel. His application was denied without a written order by the
Texas Court of Criminal Appeals on June 9, 1993.
On June 18, 1993, Randle filed a petition for federal habeas
relief asserting that his guilty plea was involuntary and unknowing
because he did not receive effective assistance of counsel. He
alleges that his lawyer failed to investigate the validity of the
enhancement convictions and failed to advise him as to the correct
sentencing range because the improper enhancement was used to
calculate the sentence. Randle moved the court for an evidentiary
hearing.
In an affidavit attached to the respondent's motion for
summary judgment, Randle's trial counsel stated that (1) prior to
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the entry of the guilty plea, but not at any time thereafter,
Randle asked him to investigate whether one of the enhancement
conviction had been reversed; (2) Randle did not advise that he
"personally filed the state writ which had resulted in the
reversal" of the conviction nor did he make him aware of the
opinion of the court; (3) shortly after making the request to
investigate the validity of the enhancement conviction, Randle
advised him that he wanted to accept the plea offer; and (4) he
specifically asked Randle whether he should pursue the
investigation and Randle said that he should not. Attached to the
affidavit are several letters written by Randle to the state court
judge asking him, inter alia, to allow Randle to enter into the
plea bargain "as soon as can be arranged."
The magistrate judge recommended denial of the petition
without an evidentiary hearing, determining, that Randle did not
receive ineffective assistance of counsel when counsel's
performance was considered in light of all of the circumstances
surrounding the plea bargain because Randle suggested on only one
occasion that one of his enhancement convictions may have been
reversed and should be investigated and then diverted counsel's
attention away from investigation by pressing for a plea bargain.
In so concluding, the magistrate judge specifically noted that
"[t]he judgment in the Anderson County case reflects that the terms
of the plea bargain included the provision that Petitioner's 35
year sentence would run concurrently with the sentence in the
[instant case]." The magistrate judge also determined that, based
6
upon the information available to him at the time, counsel's advice
that Randle was facing a minimum sentence of 25 years was accurate
and not outside the range of reasonable professional assistance in
the circumstances (that "he failed to inform either his
court-appointed attorney or the respective courts that one of the
prior felony convictions" was held to be void over ten years
earlier), and that Randle presented "no facts to support his
patently self-serving assertion" that he would not have pleaded
guilty and insisted upon going to trial.
The district court overruled Randle's objections to the
magistrate judge's findings, adopted the magistrate judge's report
and recommendation, and entered an order denying Randle's petition.
Randle noticed his appeal timely, and the district court granted a
certificate of probable cause.
THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
In each appeal, Randle contends that his lawyer's failure to
investigate the validity of the enhancement convictions and his
erroneous advice respecting the range of punishment constituted
ineffective assistance of counsel. This Court reviews
ineffective-assistance claims to determine whether counsel's
performance was both deficient and prejudicial to the defendant.
U.S. v. Gipson, 985 F.2d 212, 215 (5th Cir.1993) (citing Strickland
v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d
674 (1984)). Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366,
369-70, 88 L.Ed.2d 203 (1985), applied the two-prong Strickland
test to cases involving guilty pleas; a petitioner must show not
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only deficient performance, but also that he would not have pleaded
guilty but for the error. Id.
Randle alleges that he would not have pleaded guilty had
counsel not been ineffective. "[E]ffective assistance of counsel
on the entry of a guilty plea requires that counsel ascertain
whether the pleas are entered voluntarily and knowingly." U.S. v.
Diaz, 733 F.2d 371, 376 (5th Cir.1984). "[A] particular decision
not to investigate must be directly assessed for reasonableness in
all the circumstances, applying a heavy measure of deference to
counsel's judgments." Cook v. Lynaugh, 821 F.2d 1072, 1078 (5th
Cir.1987). The scope of the attorney's duty to investigate may be
limited by a defendant's lack of cooperation. Bell v. Watkins, 692
F.2d 999, 1009 (5th Cir.1982), cert. denied, 464 U.S. 843, 104
S.Ct. 142, 78 L.Ed.2d 134 (1983).
The record with respect to the Anderson County conviction
supports the district court's determination that Randle did not
demonstrate that his lawyer was ineffective because Randle
deliberately failed to disclose his reversal of his 1975 forgery
conviction and he also instructed his counsel to stop pursuing the
matter in order that he might enter a guilty plea "as soon as
[could] be arranged." Randle's previous litigation grounded on the
same argument and his state habeas petition filed four days after
he was sentenced show that he was fully aware, not only that the
enhancement conviction was void, but also the exact ramifications
thereof. Accordingly, Randle's misrepresentation to his lawyer and
to the district court show that his counsel's performance was not
8
deficient and outside the wide range of reasonable professional
assistance. See U.S. v. Cronic, 466 U.S. 648, 656 n. 19, 104 S.Ct.
2039, 2046 n. 19, 80 L.Ed.2d 657 (1984).
Randle has similarly failed to establish that, but for his
counsel's failure to discover the void conviction, his sentence
would have been significantly less harsh. Randle asserts that had
he known that the possible sentencing range would have been five to
99 years or life, rather than 25 to 99 years or life, he would not
have agreed to a sentence of 35 years and would have insisted on
going to trial. The record demonstrates that Randle received a
sentence that was in the correct range of five to 99 years; that,
as part of the plea agreement, a different pending case was
dismissed; and in a third case, Randle received a 25-year sentence
ordered to run concurrently with the instant imprisonment term.
Moreover, since Randle was not led to believe that his guilty plea
would reduce his maximum sentence, and even if he plead guilty in
expectation of possible consequences graver than those he actually
faced, such does not constitute prejudice from the alleged
professional error. See Armstead v. Scott, 37 F.3d 202, 210-11
(5th Cir.). Accordingly, this district court did not err in
dismissing Randle's ineffective-assistance claims.
Similarly, the District Court for the Western District of
Texas did not err in rejecting Randle's claim of ineffective
assistance of counsel as the record supports that determination.
Although Randle conclusionally asserts for the first time on appeal
that he did disclose his reversal of the 1975 forgery conviction to
9
his lawyer, that assertion is contradicted by counsel's affidavit,
and is further belied by Randle's failure so to contend prior to
the district court's determination that Randle did not disclose the
invalid conviction to his lawyer or the district court.
Accordingly, the district court did not err when it determined, in
light of all of the circumstances, that counsel's performance was
neither deficient nor outside the wide range of reasonable
professional assistance. See U.S. v. Cronic, 466 U.S. 648, 656 n.
19, 104 S.Ct. 2039, 2046 n. 19, 80 L.Ed.2d 657 (1984).
Randle also failed to establish that, but for his counsel's
failure to discover the void conviction, his sentence would have
been significantly less harsh. Randle asserts without explanation
that had he known that the possible sentencing range would have
been 15 to 99 years or life, rather than 25 to 99 years or life, he
would not have agreed to a sentence of 25 years and would have
insisted on going to trial. The record demonstrates that Randle
received a sentence that was in the correct range of 15 to 99
years; and that as part of the plea agreement, in a pending case
in Anderson County, Randle received a 35-year sentence ordered to
run concurrently with the instant imprisonment term. Heretofore,
we find no prejudice is shown from the alleged professional error
of counsel.
OTHER ARGUMENTS
We have considered Randle's other arguments and contentions in
these two appeals, and find them to be without merit for the
reasons set forth below.
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I. An objection to the use of a "prior invalid conviction
for enhancement purposes" is waived when a plea of guilty is
entered to the enhancement charged. Scott v. Maggio, 695 F.2d 916,
922 (5th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77
L.Ed.2d 1393 (1983); see also Long v. McCotter, 792 F.2d 1338,
1340 (5th Cir.1986). Accordingly, the district court did not err
in determining that Randle's plea of true to the enhancement
conviction in Anderson County barred his later challenge of the
conviction of the grounds that the enhancement conviction was void
and should not have been used to enhance his punishment.
II. Because we find the record in each case clearly adequate
to fairly dispose of Randle's allegations of ineffective assistance
in each case, evidentiary hearings were unnecessary. U.S. v.
Smith, 915 F.2d 959, 964 (5th Cir.1990); Rules Governing § 2254
Cases in the U.S. District Courts, Rule 8(a).
III. Finally, we reject Randle's claim made in Case No. 94-
50337 that a summary judgment motion is inappropriate in a habeas
corpus proceeding. We recognize summary judgment proceedings as an
appropriate mode used by the district courts of this Circuit in
habeas corpus proceedings. Rule 11 of the Rules Governing § 2254
Cases in the United States provides that "[t]he Federal Rules of
Civil Procedure, to the extent that they are not inconsistent with
these rules, may be applied, when appropriate, to petitions filed
under these rules." Randle fails to point out any rule or
procedure in the § 2254 rules which is inconsistent with the
summary judgment procedure allowed by the Federal Rules of Civil
11
Procedure.2
The judgments of the district courts are in each case
AFFIRMED.
2
We note that the motion for summary judgment motion filed
by respondent contained responses to the allegations as required
by Rule 5 of the Rules Governing § 2254 Cases.
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