UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-3773
RONNIE JAMES,
Petitioner-Appellant,
VERSUS
BURL CAIN, Acting Warden,
Louisiana State Penitentiary,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(June 20, 1995)
Before LAY,1 DUHÉ, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Petitioner Ronnie James brought this habeas corpus proceeding
in the Eastern District of Louisiana claiming that his guilty plea
to a second degree murder charge was involuntary due to his
attorney misinforming him of the sentencing results of his plea
bargain. For the reasons set forth below, we find that the
district court erred in dismissing this suit without prejudice.
1
Circuit Judge of the Eighth Circuit, sitting by designation.
Therefore, we reverse and remand to the district court for a
determination of whether James has shown that he will be prejudiced
by a dismissal of this petition as abuse of the writ.
I. Facts and Procedural History
Ronnie James, the petitioner in this matter, is currently a
prisoner in a Louisiana state penitentiary. In March, 1976, James
was convicted of second degree murder after he entered a guilty
plea pursuant to a plea bargain. Upon James' conviction, the state
court judge sentenced James to life imprisonment without benefit of
probation, parole or suspension of sentence for forty years.2
A dispute as to whether James was properly advised as to the
terms and effect of the original plea bargain form the basis of
this habeas corpus suit. The parties agree that, at the time of
James' offense, a prisoner sentenced to life could not be eligible
for parole until the governor of Louisiana commuted the prisoner's
life sentence to a fixed term of years. Commutation was a matter
of discretion with the governor.3 The source of James' habeas
corpus complaint is his alleged lack of understanding as to the
two-step parole process——consisting of commutation of the sentence
2
At the time of James' offense, this was the only punishment
available for a second degree murder conviction. The second degree
murder statute in effect when James committed the crime for which
he was convicted, 1975 La. Acts 380 (repealed 1976), provides in
relevant part,: "Whoever commits the crime of second degree murder
shall be imprisoned at hard labor for life and shall not be
eligible for parole, probation, or suspension of sentence for a
period of forty years."
3
The parties agree that at the time of James' sentence it was
not uncommon for the Louisiana governor to commute such a life
sentence.
2
followed by a parole hearing. James claims that at the time of his
sentencing he was unaware of the commutation requirement and
understood only that he would become eligible for parole in forty
years. He claims that neither the trial judge nor his defense
counsel informed him of the commutation requirement. Because James
says that he would not have accepted the plea agreement had he been
aware of the initial commutation requirement, he claims that he was
prejudiced by entering into an uninformed and, hence, involuntary
plea agreement.4
This is the second federal habeas corpus suit brought by
James. In 1985, James sought habeas corpus relief on the ground
that he was unaware of the elements of the crime for which he was
convicted. Habeas corpus relief was denied in that suit. Because
this is the second federal habeas corpus action brought by James,
the district court referred this case to a United States magistrate
judge to determine whether his second petition should be dismissed
as successive. James' explanation for not asserting this ground
for habeas corpus relief in his first petition was that he did not
become aware of the commutation requirement until after the
original habeas corpus proceeding, when he saw a prison memorandum
setting forth the requirement.
The magistrate judge in the present proceeding determined that
4
The state record reflects that the trial judge told James
that no probation, parole, or suspension of sentence would be
available for a period of forty years. The precise wording of the
sentence itself states the same. The commutation procedure is not
mentioned in the state trial record. The habeas record contains an
affidavit of James' trial counsel stating that he does not recall
what he told James in 1976 regarding commutation procedure.
3
James had shown cause for not raising the commutation issue earlier
but that he had failed to show prejudice. Therefore, the
magistrate judge recommended that James' petition be dismissed with
prejudice. The district court adopted the magistrate judge's
report but then dismissed the petition without prejudice. The
district court reasoned that, until James had served forty years in
prison, no determination could be made as to whether he was
prejudiced by his misunderstanding as to the parole procedure
during the 1976 plea bargain. Therefore, James could not show he
suffered prejudice due to the commutation ground until he had
served out the portion of his sentence before which either parole
or commutation even became available.
James appeals the dismissal of his habeas corpus petition,
claiming that a final determination can be reached now in the suit
since he is appealing the voluntariness of his plea agreement and
not the capacity of the State to fulfill its promises in that
agreement.
II. Discussion
A district court's decision to dismiss a second or subsequent
federal habeas corpus petition for abuse of the writ lies within
its sound discretion. McGary v. Scott, 27 F.3d 181, 183 (5th Cir.
1994). This Court will reverse such a dismissal only if it finds
an abuse of that discretion. Sanders v. United States, 373 U.S. 1,
18-19 (1963); McGary, 27 F.3d at 183; Hudson v. Whitley, 979 F.2d
1058, 1062 (5th Cir. 1992). A district court abuses its discretion
when it bases its decision on an erroneous legal conclusion or on
4
a clearly erroneous finding of fact. McGary, 27 F.3d at 183.
In deciding whether to dismiss a case for abuse of the writ,
this Court must apply the same standard used to determine whether
to excuse state procedural defaults in a habeas corpus proceeding.
McCleskey v. Zant, 111 S. Ct. 1454, 1468 (1991); Jones v. Whitley,
938 F.2d 536, 540 (5th Cir.), cert. denied, 501 U.S. 1267 (1991).
Thus, a petitioner's serial habeas corpus petition must be
dismissed as an abuse of the writ unless the petitioner
demonstrates that there was "cause" not to have raised the points
in a previous federal habeas corpus petition and "prejudice" if the
court fails to consider the new point. Jones, 938 F.2d at 540.
The cause standard requires that the petitioner show that some
objective factor external to the defense impeded the petitioner's
efforts to raise the claim in the first proceeding. See id. The
independent prejudice standard requires the petitioner to show that
he was actually prejudiced by the error of which he complains.
Russell v. Collins, 944 F.2d 202, 205 (5th Cir.), cert. denied, 501
U.S. 1278 (1991). Prejudice is irrelevant if the petitioner does
not show cause; however, once the petitioner does show cause,
prejudice must be considered. See Hudson v. Whitley, 979 F.2d
1058, 1064 (5th Cir. 1992); Saahir v. Collins, 956 F.2d 115, 118
(5th Cir. 1992).
This Court agrees with both the magistrate judge and the
district court that James has shown sufficient cause for not
raising the commutation ground in his initial federal habeas corpus
suit. Such cause is grounded in the fact that James was apparently
5
unaware of the commutation requirement until he saw a prison
memorandum about his status after the denial of his first federal
habeas corpus petition.5 Therefore, the question for this Court
becomes whether or not James has demonstrated sufficient prejudice
to establish that he has not engaged in an abuse of the writ.
The petitioner's burden of proving actual prejudice requires
showing "'not merely that the errors at. . .trial created a
possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.'" Murray v. Carrier, 477 U.S. 478, 494
(1986) (quoting United States v. Frady, 456 U.S. 152, 170 (1982))
(emphases in original). Stated another way, "[s]uch a showing of
pervasive actual prejudice can hardly be thought to constitute
anything other than a showing that the prisoner was denied
'fundamental fairness' at trial." Murray 477 U.S. at 494; see also
Sawyer v. Whitley, 945 F.2d 812, 816 (5th Cir.), aff'd, 112 S. Ct.
2514 (1992) ("[p]rejudice requires a showing of actual prejudice
amounting to a denial of fundamental fairness").
A federal court will uphold a guilty plea challenged in a
habeas corpus proceeding if the plea was knowing, voluntary and
intelligent. Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir.),
cert. denied, 474 U.S. 838 (1985). A guilty plea is invalid if the
defendant does not understand the nature of the constitutional
protection that he is waiving or if he has such an incomplete
5
It is worthy of note that the State does not challenge the
determinations of both the magistrate judge and the district court
that James did meet the cause requirement.
6
understanding of the charges against him that his plea cannot stand
as an admission of guilt. Henderson v. Morgan, 426 U.S. 637, 645
n.13 (1976). The critical issue in determining whether a plea was
voluntary and intelligent is "whether the defendant understood the
nature and substance of the charges against him, and not
necessarily whether he understood their technical legal effect."
Taylor v. Whitley, 933 F.2d 325, 329 (5th Cir. 1991), cert. denied,
503 U.S. 988 (1992). If the record shows the defendant "understood
the charge and its consequences," this Court will uphold a guilty
plea as voluntary even if the trial judge failed to explain the
offense. Davis v. Butler, 825 F.2d 892, 893 (5th Cir. 1987).
James claims that he suffered prejudice by entering an
involuntary plea agreement for three reasons. First, he claims
that he suffered prejudice because of a change in Louisiana law
which has made commutation of sentences much more difficult to
attain. Second, James alleges he was prejudiced by entering a plea
agreement involuntarily due to the fact he was not fully apprised
of the commutation prerequisite to parole. Finally, James claims
he was prejudiced by receiving ineffective counsel because his
trial attorney did not fully apprise him of the parole procedure
and the commutation requirement. Each of these grounds of
prejudice will be analyzed separately.
Change in Louisiana Law.
A change in parole eligibility procedure during the course of
a petitioner's prison term does not give rise to a claim of
prejudice. See McNeil v. Blackburn, 802 F.2d 830, 832 (5th Cir.
7
1986) ("[A] petitioner who pleads guilty in reliance on the parole
laws in effect at the time of his plea is not entitled to habeas
relief because of a change in. . .those laws. . . ."). A plea
agreement contains no implied warranty that parole laws will not
change. Id. Therefore, the change in Louisiana commutation
procedures which made parole more difficult to attain does not give
James a habeas corpus claim for prejudice.
James' Misunderstanding of Parole Procedure.
The United States Constitution does not require the State to
furnish a defendant with information about parole eligibility in
order for the defendant's plea of guilty to be voluntary. Czere v.
Butler, 833 F.2d 59, 63 (5th Cir. 1987). Accordingly, as long as
the defendant understands the length of time he might possibly
receive, he is fully aware of his plea's consequences. Spinelli v.
Collins, 992 F.2d 559, 561 (5th Cir. 1993). A defendant's mere
expectation about the commutation and parole process is simply no
ground for habeas corpus relief. Dunn v. Maggio, 712 F.2d 998,
999-1001 (5th Cir. 1983), cert. denied, 465 U.S. 1031 (1984).
The trial procedure itself had nothing to do with any
misunderstanding James may have had as to parole procedure and the
commutation requirement. It is clear that neither the trial court
nor the prosecutor ever affirmatively mislead James as to the
Louisiana parole procedure. To the contrary, the trial court
provided James with completely accurate information and verified
that James fully understood the sentencing ramifications of his
guilty plea. Accordingly, James did not enter into his plea
8
involuntarily based on misinformation for which the trial court
itself was responsible.
Ineffectiveness of Trial Counsel.
The Sixth Amendment guarantee of effective assistance of
counsel entitles a criminal defendant to a reasonably effective
assistance of counsel given the totality of the circumstances. See
Washington v. Strickland, 693 F.2d 1243, 1250 (5th Cir. 1982). A
petitioner who seeks to overturn his conviction on grounds of
ineffective assistance of counsel must prove his entitlement to
relief by a preponderance of the evidence. Hayes v. Maggio, 699
F.2d 198, 201 (5th Cir. 1983). To demonstrate ineffectiveness of
counsel in the plea bargaining arena, James must establish that his
trial counsel's performance: (1) fell below an objective standard
of reasonable competence and (2) that he was prejudiced by his
counsel's deficient performance. Lockhart v. Fretwell, 113 S. Ct.
838 (1993); Czere v. Butler, 833 F.2d 59, 63 (5th Cir. 1987). To
succeed in showing prejudice, the habeas corpus petitioner must
show that it was in fact reasonably probable that but for the
misadvice of his trial counsel he would not have pleaded guilty and
would have insisted on going to trial. See Czere, 833 F.2d at 63.
The only evidence in the record as to what James' trial
counsel did or did not explain to him about the parole procedure is
James' own testimony and an affidavit of his trial attorney. James
testified that his trial attorney, Ralph Barnett, told him he would
"make parole on 40 years" if he pleaded guilty. James also
testified that upon talking to his trial attorney, he thought that
9
he would be out of prison after forty years. Barnett, on the other
hand, states that he does not remember anything that he did or did
not tell James about parole procedure and the plea agreement. The
only relevant evidence that comes from Barnett's affidavit is that
it was his practice at the time to fully apprise his client of the
effects of a plea agreement.
This Court has never decided whether erroneous advice by
counsel regarding parole eligibility amounts to ineffective
assistance of counsel. See Czere, 833 F. 2d at 63 n.6. However,
this Court and others have recognized that affirmatively erroneous
advice of counsel as to parole procedure is much more objectively
unreasonable than would be a failure to inform of parole
consequences.6 See id.; see also Strader v. Garrison, 611 F.2d 61
(4th Cir. 1979) (finding misinformation of parole consequences does
constitute ineffective assistance of counsel); Cepulonis v. Ponte,
699 F.2d 573, 577 (1st Cir. 1983) (commenting that counsel's
misinformation regarding parole eligibility may be more vulnerable
to constitutional challenge than mere lack of information).
The magistrate judge dismissed James' petition with prejudice
on the ground that James did not succeed in showing that he had
6
In fact this Court has stated in dicta that a failure of an
attorney to inform his or her client as to parole consequences
probably does not render counsel's assistance so objectively
unreasonable as to rise to the level of ineffective. See Czere,
833 F.2d at 63 n.6 ("Even if the Sixth Amendment does not impose on
counsel an affirmative obligation to inform clients of the parole
consequences of their pleas, and we doubt that it does (at least
absent some special facts), other courts have recognized a
distinction between failure to inform and giving misinformation. .
. .").
10
been prejudiced by being left unaware of the commutation
requirement which preceded his parole eligibility. After agreeing
with the magistrate judge's finding of cause, the district court
dismissed the writ without prejudice, stating that the question of
prejudice to James could not be answered until the initial forty
years of his term had passed. Because James was only seventeen
years into his term of life without the benefit of probation,
parole or suspension of sentence for forty years, the district
court reasoned, James could not succeed in showing prejudice.
The district court erred in dismissing the case without
prejudice because of its determination that it could not now make
an informed prejudice determination in the present case. James'
claim of prejudice is ripe for determination because he is
complaining of a present injury, not an injury that will occur in
twenty years. James' complaint is that his attorney did not inform
him of the fact that he would not automatically become parole
eligible after forty years, but that, instead, he must have his
life sentence commuted to a term of years before becoming parole
eligible. His claim is that his counsel was ineffective and this
caused him to plead guilty. James is alleging that, but for the
ineffective assistance of counsel, he would not have pleaded guilty
and he would not be in prison now. Therefore, James' complaint is
not about illegal custody in twenty years; James' complaint is
about illegal custody now. Because James is complaining about an
injury he is currently suffering, and not about an injury in the
remote future, it is not premature to consider the prejudice issue.
11
Under the record as it presently stands, this Court has no
choice but to hold that the district court should reconsider this
habeas corpus petition to evaluate whether James has met the
prejudice requirement in order to avoid dismissal of his petition
as abuse of the writ. On remand, the district court should
determine if James has shown that he was prejudiced by ineffective
assistance of counsel.7 Specifically, the district court should
7
James claims that, if his counsel had told him about
Louisiana's two-step parole procedure, he would not have pleaded
guilty and, instead, would have gone to trial for first degree
murder, a crime that carried a mandatory death penalty. Of course,
in determining whether James' counsel was ineffective, the district
court will consider the issue as it appeared in 1976, not as it
appears now with the benefit of hindsight. Strickland v.
Washington, 466 U.S. 668, 689 (1984); Laverna v. Lynaugh, 845 F.2d
493, 498 (5th Cir. 1988). However, as the following chronology
indicates, the critical events in this case occurred during
tumultuous times as to the ability of the states to enforce the
death penalty for first degree murder:
In 1972, the United States Supreme Court held the death
penalty, as applied, to be unconstitutional in Furman v. Georgia,
408 U.S. 238 (1972). In response to this action, Louisiana amended
its first degree (capital) murder statute. 1973 La. Acts 109 (1973
Law). The 1973 Law provided for a mandatory death penalty for
those convicted of first degree murder. In September, 1975, the
Louisiana Supreme Court upheld the constitutionality of the 1973
Law. State v. Roberts, 319 So.2d 317 (La. 1975), rev'd sub nom.
Roberts v. Louisiana, 428 U.S. 325 (1976). In October, 1975,
Petitioner James committed the murder which is at issue in this
petition, and he was indicted for first degree murder. On January
22, 1976, the United States Supreme Court granted writs of
certiorari in five separate cases concerning the constitutionality
of revised capital murder statutes. Gregg v. Georgia, Jurek v.
Texas, Woodson v. North Carolina, Proffitt v. Florida and Roberts
v. Louisiana, all found at 423 U.S. 1082 (1976). On March 31,
1976, on the day he was scheduled to be tried for first degree
murder, James pleaded guilty to second degree murder and received
the mandatory sentence of life in prison without benefit of parole,
probation or suspension of sentence for forty years. As of the
date of James' guilty plea, Louisiana law provided that an inmate
serving a life sentence was not eligible for parole until that
sentence had been commuted to a fixed three years. LA. REV. STAT.
12
evaluate whether the attorney affirmatively misinformed or failed
to inform James about the parole process and, if so, whether such
misinformation or failure rendered the attorney's actions
objectively unreasonable. If the district court does find that
James' attorney provided him with objectively unreasonable counsel,
then the district court must inquire as to whether James was
prejudiced by this ineffective assistance of counsel.
III. Conclusion
The cause and prejudice inquiries for an abuse of the writ
dismissal in this involuntary plea action are ripe for resolution
since petitioner James is claiming he entered into an involuntary
plea bargain because of ineffectiveness of counsel. Therefore, the
judgment of the district court is reversed and the case is remanded
for a determination of whether James has demonstrated that he would
be prejudiced by having his petition dismissed for abuse of the
writ. If the district court determines that James has not abused
the writ, it will then reach the merits of his ineffective
assistance of counsel claim.
REVERSED AND REMANDED.
ANN. § 15:574.4(B) (West 1967). Finally, on July 2, 1976, the
United States Supreme Court handed down decisions in the five
capital murder cases. Gregg v. Georgia, 428 U.S. 153 (1976); Jurek
v. Texas, 428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242
(1976); Woodson v. North Carolina, 428 U.S. 280 (1976); and Roberts
v. Louisiana, 428 U.S. 325 (1976). In Roberts, the Court found the
1973 Law to be unconstitutional.
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