United States Court of Appeals,
Fifth Circuit.
No. 92-4199.
Logan J. THERIOT, Plaintiff-Appellant,
v.
John P. WHITLEY, Warden Louisiana State Penitentiary, Defendant-
Appellee.
April 7, 1994.
Appeal from the United States District Court for the Western
District of Louisiana.
Before HIGGINBOTHAM and DUHÉ, Circuit Judges and STAGG1, District
Judge.
PER CURIAM:
Logan Theriot appeals the district court's denial of his
request for habeas corpus relief. Finding no error, we affirm.
FACTS.
On July 22, 1987, Theriot pleaded guilty to the second degree
murder of his wife, Salvenne Theriot, in the 15th Judicial District
Court in Acadia Parish. He was immediately sentenced to a term of
life imprisonment at hard labor, without possibility of parole,
probation, or suspension of sentence.
Theriot then appealed successively to the Louisiana Third
Circuit Court of Appeals and to the Louisiana Supreme Court,
requesting post-conviction relief. Each court denied his request
without holding an evidentiary hearing. Appellant petitioned the
United States District Court for the Western District of Louisiana,
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District Judge of the Western District of Louisiana,
sitting by designation.
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requesting a writ of habeas corpus. The district court declined to
issue a certificate of probable cause. Theriot then appealed to
this court, and a certificate of probable cause was issued on
February 9, 1993.
In his appeal, Theriot raises three arguments: 1) he received
ineffective assistance of counsel; 2) his guilty plea was not
knowing and voluntary; and 3) if his first two arguments are
rejected, he is at least entitled to an evidentary hearing on his
claims.
APPELLANT'S ARGUMENTS.
A. Whether Theriot received ineffective assistance of counsel.
Theriot argues that his Sixth Amendment right to effective
assistance of counsel was violated when his attorney failed to
investigate his mental competency. Appellant was arrested on April
30, 1987 and held in jail without bond. Sometime between May 1 and
May 7, 1987, Theriot attempted to commit suicide in the parish jail
by electrocution.2
He was taken to the Crowley Alcohol & Drug Abuse Clinic on May
7, 1989, where he was examined and evaluated by J. Darrel
Vondenstein, a social worker at the clinic.
Mr. Vondenstein's notes revealed that Mr. Theriot was abusing
alcohol and possibly pain pills. The notes indicated that Theriot
was suicidal, was experiencing hallucinations and memory blockage,
was in pain, was confused, and was consumed with self-pity.
Vondenstein examined Theriot on several different occasions, the
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See record at page 59.
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last of which was on July 23, 1989, one day after Theriot pleaded
guilty to second degree murder. Vondenstein's observations on that
day were that appellant had little desire to live, was depressed
and suicidal, and was abusing alcohol and pain pills. Vondenstein
noted that there had been no progress in Theriot's treatment, and
that Theriot was very resistant to treatment.
Theriot argues that in light of his mental state, his attorney
should have investigated his competency to plead guilty. The only
evidence in the record of Theriot's mental condition is the notes
made by Vondenstein. The record is glaringly devoid of any
evidence placed before the court or Theriot's appointed counsel as
to petitioner's mental capacity.
The test for determining whether a defendant received
ineffective assistance of counsel was enunciated by the United
States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail, a petitioner must
establish that 1) his attorney's representation fell below an
objective standard of reasonableness; and 2) there is a reasonable
probability that, but for counsel's deficient performance, the
outcome of the proceedings would have been different. Strickland,
466 U.S. at 687-688, 104 S.Ct. at 2065, 2068. This same test
applies when a defendant alleges ineffective assistance of counsel
in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52,
58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). In a guilty plea
situation, to satisfy the second prong of the Strickland test, the
defendant must show that "there is a reasonable probability that,
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but for counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial." Hill, 474 U.S. at 59, 106
S.Ct. at 370.
It is a violation of his rights to due process to accept the
guilty plea and conviction of a person who is mentally incompetent.
A defendant can not waive this right. Bouchillon v. Collins, 907
F.2d 589, 592 (5th Cir.1990). As noted in Bouchillon, a claim of
incompetence is difficult to analyze under the "outcome" test in
Strickland, because whether the defendant was guilty or innocent is
irrelevant if he was convicted while incompetent. Theriot can
succeed in establishing that he was prejudiced by his attorney's
failure to investigate only if he can demonstrate by a reasonable
probability that he was incompetent to plead guilty. Bouchillon,
907 F.2d at 595.
In a federal habeas corpus proceeding attacking a state court
conviction, the petitioner must prove that he "was incompetent in
fact at the time of the plea." Bouchillon, 907 F.2d at 592. The
test of incompetency is whether the defendant has "sufficient
present ability to consult with his lawyer with a reasonable degree
of rational understanding—and whether he has a rational as well as
factual understanding of the proceedings against him." Bouchillon,
907 F.2d at 592, quoting Dusky v. United States, 362 U.S. 402, 402,
80 S.Ct. 788, 788, 4 L.Ed.2d 824 (1960).
In Bouchillon, the court found that counsel's lack of
investigation into the defendant's competence did fall below
reasonable professional standards, thus violating the mandate of
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Strickland. However, in Bouchillon, the defendant had been treated
in mental institutions in the past, and his attorney was cognizant
of that fact. Additionally, a psychologist testified that
Bouchillon was indeed incompetent to enter a plea of guilty. There
is no evidence of such facts in appellant's case. Despite the lack
of direct evidence that Theriot's counsel was aware of his suicide
attempt, Theriot argues that a reasonable attorney should have
known to investigate the competency issue. However, the absence of
any authority for Theriot's position precludes such a conclusion.
In this case, Theriot has failed to establish that his
counsel rendered ineffective assistance. He can not prove that,
but for the errors of his counsel, there is a reasonable
probability that the outcome of his situation would have been
different. In other words, even if Theriot's counsel had
investigated his competence to stand trial, Theriot must show that
there was a reasonable probability that he was in fact incompetent.
This court is aware that petitioner is caught in a frustrating
position. To establish that he received ineffective assistance
from his trial counsel, Theriot must introduce evidence to support
his assertions. However, the record is conspicuously silent,
neither supporting nor refuting petitioner's claim. To deny relief
seems harsh, because the reason for denial is lack of proof.
However, the judicial system has a great interest in maintaining
the finality of guilty pleas:
Every inroad on the concept of finality undermines confidence
in the integrity of our procedures; and, by increasing the
volume of judicial work, inevitably delays and impairs the
orderly administration of justice. The impact is greatest
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when new grounds for setting aside guilty pleas are approved
because the vast majority of criminal convictions result from
such pleas. Moreover, the concern that unfair procedures may
have resulted in the conviction of an innocent defendant is
only rarely raised by a petition to set aside a guilty plea.
Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d
203 (1985), quoting United States v. Timmreck, 441 U.S. 780, 784,
99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979).
B. Whether Theriot's guilty plea was knowing and voluntary.
Theriot contends that his plea was not knowing and voluntary
because the trial court failed to inform him of each element of the
crime with which he was charged. The plea colloquy between the
district judge and Theriot indicates that Theriot was not informed
of the elements of second degree murder at the time he pleaded
guilty to the crime.
A guilty plea is not voluntary unless the defendant has "real
notice of the true nature of the charge against him." Henderson v.
Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257, 49 L.Ed.2d 108
(1976), quoting Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572,
574, 85 L.Ed. 859 (1941). If the trial record shows that the
defendant understood the elements of the charge against him, then
the court's failure to inform him of those elements does not render
the guilty plea infirm. Bonvillain v. Blackburn, 780 F.2d 1248,
1250 (5th Cir.), cert. denied, 476 U.S. 1143, 106 S.Ct. 2253, 90
L.Ed.2d 699 (1986). The Bonvillain court held that the guilty plea
form is "prima facie evidence that petitioner was informed of the
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elements of ..." the crime.3 Bonvillain, 780 F.2d at 1250.
Theriot argues, however, that there is sufficient evidence in
the record to show that the guilty plea form signed by him is of
itself insufficient to surmount the constitutional requirement that
the plea be knowing and voluntary. However, appellant fails to
direct the court to such evidence. The guilty plea form indicates
that Theriot was aware of the elements of the crime to which he was
pleading. Under Bonvillain, the form is prima facie proof of the
validity of the plea. Appellant has failed to rebut that evidence,
and his claim is without merit.
C. Whether Theriot is entitled to an evidentiary hearing on his
claims.
Appellant argues that, if his substantive claims are rejected
by this court, he is at least entitled to an evidentiary hearing on
his arguments. To be entitled to a hearing on the issue of
competency, a habeas petitioner must show that "there were matters
known to the trial court that raised at that time a "real,
substantial, and legitimate doubt as to the mental capacity of the
petitioner to meaningfully participate and cooperate with counsel.'
" Pedrero v. Wainwright, 590 F.2d 1383, 1388 (5th Cir.), cert.
denied, 444 U.S. 943, 100 S.Ct. 299, 62 L.Ed.2d 310 (1979), quoting
Bruce v. Estelle, 483 F.2d 1031, 1043 (5th Cir.1973). "Evidence
must be presented which is sufficient to raise a "bona fide doubt'
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The guilty plea form signed by Theriot contains the
following language, "I, Logan J. Theriot, on my plea of guilty to
the charge of second degree murder L.R.S. 14:30.1, have been
informed and understand the charge to which I am pleading
guilty...."
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as to the defendant's competency to stand trial." Grissom v.
Wainwright, 494 F.2d 30, 32 (5th Cir.1974), quoting Jordan v.
Wainwright, 457 F.2d 338, 339 (5th Cir.1972).
As discussed earlier, there is no evidence that the district
court was aware of Theriot's suicide attempt. Nor is there
evidence that Theriot behaved in a manner which should have alerted
the trial judge to a potential competency problem. With respect to
Theriot's subsequent rejected requests for a hearing, the record
contains no evidence which creates a doubt as to Theriot's
competency to plead guilty. Therefore, he is not entitled to a
hearing on this issue.
Theriot's argument that he should receive a hearing on his
claim of ineffective assistance of counsel is also without merit.
A defendant is entitled to an evidentiary hearing if he alleges
facts that, if proved, would entitle him to relief, and the record
reveals a genuine factual dispute as to the alleged facts. Johnson
v. Estelle, 704 F.2d 232 (5th Cir.1983); Townsend v. Sain, 372
U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). To obtain
a hearing on his Sixth Amendment claim, Theriot must make some
showing that he was denied effective assistance of counsel. The
lack of evidence with respect to whether Theriot was in fact
incompetent precludes a finding that he was prejudiced by his
counsel's actions. Therefore Theriot can not allege facts
entitling him to relief.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
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