IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20624
RONALD NELSON DANIEL,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
February 25, 2002
Before GARWOOD, JOLLY, and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Petitioner-appellant Ronald Nelson Daniel appeals the district
court’s denial of habeas corpus relief as to his Texas conviction for
the aggravated sexual assault of a child. Daniel contends that: (1) his
guilty plea was not voluntary because his lawyer assured him he would
be sentenced by a different judge; and (2) such assurance constituted
ineffective assistance of counsel. We affirm the district court’s
denial of relief.
Facts and Proceedings Below
Ronald Daniel molested his niece for two years beginning when she
was six years old. Daniel forced her to wear a blindfold while he: (1)
fondled her; (2) digitally penetrated her vagina; (3) rubbed his crotch
against hers; and (4) forced her to straddle him. Daniel never had
vaginal intercourse with her.
On March 4, 1994, Daniel was indicted for the aggravated sexual
assault of a child. His case was assigned to the 338th District Court
of Harris County, in which Judge Mary Bacon presided. Daniel had a
desire to plead guilty because it would spare his niece the anguish of
testifying to his acts of molestation. Daniel’s counsel, James Leitner,
informed him of Judge Bacon’s reputation for imposing very harsh
sentences for sexual offenders, especially where the victim was a child.
Leitner advised Daniel against pleading guilty to Judge Bacon without
an agreed sentence recommendation from the State, and recommended to
Daniel that he plead guilty to a jury.1 The case was set for trial on
August 1, 1994. On that day, visiting Judge William Hatten was
presiding instead of Judge Bacon. The prosecutor, Jay Hileman, told
Leitner that the case could be reset to a date on which Judge Bacon
would preside or that Judge Hatten could handle the case. Leitner
consulted with Judge Brian Rains, who had served as chief prosecutor in
1
In Texas, if the punishment for an offense is not absolutely fixed
by law, the defendant may plead guilty and have the jury assess
punishment. See TEX. CRIM. PROC. CODE ANN. § 26.14.
2
Judge Hatten’s court. After hearing the facts of Daniel’s case, Judge
Rains expressed the view that Judge Hatten would be “very fair” in
sentencing Daniel. As a result, Leitner advised Daniel to plead guilty
to Judge Hatten. When Daniel questioned whether Judge Hatten would
sentence him, Leitner assured him that he would. It is undisputed that
the time-honored custom of the Harris County criminal courthouse is that
if a defendant pleads guilty to a visiting judge he will also be
sentenced by that visiting judge. On August 1, 1994, Daniel pleaded
guilty before Judge Hatten to the aggravated sexual assault of a child
in violation of TEX. PENAL CODE ANN. § 22.021(a)(1)(B).
Daniel’s sentencing hearing was held on September 16 and 19, 1994.
Judge Bacon presided. Because Leitner did not want to anger Judge Bacon
(and thereby harm his client) by questioning her authority, he did not
object to Judge Bacon’s participation.2 Leitner presented evidence of
Daniel’s progress in receiving treatment for his pedophilia. Leitner
called Daniel as a witness and the following relevant exchanges took
place:
“Q You understand when you entered your plea that the
Court had a range of punishment anywhere from deferred
adjudication to life in the penitentiary?
A Yes.
....
2
Judge Hatten would have had jurisdiction to sentence Daniel. See
Johnson v. Bussey, 95 S.W.2d 990, 992 (Tex. Civ. App. 1936) (observing
that the return of the regular judge does not oust the special judge of
jurisdiction to “make orderly disposition of the matters which have been
undertaken by him.”). However, it was not improper for Judge Bacon to
sentence Daniel. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim.
App. 1984).
3
Q You understand that no matter what happens to you in
this case it’s not the Judge’s fault. It’s not
anybody’s involved fault. It’s simply you.
A Yes, I do.”
Judge Bacon sentenced Daniel to the maximum penalty provided for by
Texas law—life in prison and a $10,000 fine. Judge Bacon offered Daniel
an opportunity to speak after sentencing, but Daniel declined.
On October 19, 1994, Daniel moved for a new trial on the grounds
that: (1) Leitner’s assurance that Judge Hatten would be the sentencing
judge rendered his guilty plea involuntary under the United States and
Texas Constitutions; (2) Leitner’s failure to object to sentencing by
Judge Bacon constituted ineffective assistance of counsel under the
Texas Constitution; (3) Leitner’s assurance constituted ineffective
assistance of counsel under the Texas Constitution; and (4) Daniel’s
life sentence constituted cruel or unusual punishment and was foreign
to due course of law under the Texas Constitution. On November 30,
1994, Judge Bacon denied the motion.
Daniel continued to advance these four issues on direct appeal.
On March 13, 1997, the conviction was affirmed on direct appeal by the
Court of Appeals for the Fourteenth District of Texas. Daniel v. State
of Texas, 1997 WL 109988 (Tex. App.-Hous. (14 Dist.)). On August 13,
1997, the Texas Court of Criminal Appeals denied Daniel’s petition for
discretionary review. Daniel did not seek review in the United States
Supreme Court.
On August 6, 1998, Daniel filed a petition for post-conviction
relief in state court, arguing only that his plea was involuntary under
4
Brady v. United States, 90 S.Ct. 1463 (1970). On October 28, 1998, the
trial court, Judge William Hatten presiding, recommended denial of the
petition on the merits, adopting the State’s proposed findings of fact
and order. On March 31, 1999, the Texas Court of Criminal Appeals
denied relief on the basis of the trial court’s findings. Daniel did
not seek review in the United States Supreme Court.
On June 30, 1999, Daniel filed the instant federal petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 19, 2000,
the district court granted the State’s motion for summary judgment and
dismissed the petition. The district court granted a certificate of
appealability as to three issues, namely whether: (1) Daniel’s guilty
plea was involuntary because of Leitner’s assurance that Judge Hatten
would impose sentence; (2) Leitner’s assurance constituted ineffective
assistance of counsel; and (3) the district court correctly concluded
that the Teague doctrine precluded relief.3 Daniel also argued in the
district court that counsel was ineffective for failing to object to
Judge Bacon’s participation at sentencing, but the district court did
not grant a certificate of appealability on that issue, and it is
therefore not before us. On July 13, 2000, Daniel filed notice of
appeal to this Court.
I. Standard of Review
3
The district court only engaged in a Teague v. Lane, 109 S.Ct.
1060 (1989), analysis for Daniel’s Brady claim and concluded that
Teague’s non-retroactivity rule prevented it from granting the petition.
The district court did not apply Teague to Daniel’s ineffective
assistance claim.
5
Daniel presented his federal Brady claim to the State on direct
appeal and in his state habeas petition. The State rejected this claim
without relying on a procedural bar. There appears no basis on which
the State could have disposed of this claim on procedural grounds.
Daniel’s Brady claim was, therefore, adjudicated on the merits in state
court and is entitled to review under the deferential standard of 28
U.S.C. § 2254(d).4
In contrast, Daniel’s ineffective assistance of counsel claims
relied exclusively on state law and alleged violation only of the Texas
Constitution. All three times Daniel argued his ineffective assistance
of counsel claims before the state courts he specifically stated that
the applicable standard was not that set forth in Strickland v.
Washington, 104 S.Ct. 2052 (1984). At that time, Texas did not require
a showing of prejudice to establish ineffective assistance of counsel
in the noncapital sentencing context. See Hernandez v. State, 988
S.W.2d 770, 72 (Tex. Crim. App. 1999) (overruling Ex Parte Cruz, 739
4
See Green v. Johnson, 116 F.3d 1115, 1120-21 (5th Cir. 1997).
28 U.S.C. § 2254(d) provides:
“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim—
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
6
S.W.2d 53 (Tex. Crim. App. 1987), which had held Strickland
inapplicable). Because Daniel did not argue that his rights under the
Sixth Amendment had been violated, specifically disclaimed reliance on
the federal ineffective assistance of counsel standard and proceeded
solely under a materially different theory of establishing ineffective
assistance of counsel, Daniel’s federal ineffective assistance of
counsel claim was not adjudicated on the merits in state court.
Likewise, because the “substantial equivalent” of the Strickland claim
Daniel now advances was not “fairly presented” in any state court,
Daniel has clearly not exhausted this claim. See Whitehead v. Johnson,
157 F.3d 384, 87 (5th Cir. 1998). The State has not argued Daniel’s
failure to exhaust this claim as a ground for dismissal of his petition.
Nevertheless, 28 U.S.C. § 2254(b)(1)(A)5 prevents this Court from
granting Daniel’s petition unless the State, through counsel, has
expressly waived the exhaustion requirement. The State has not
expressly waived the exhaustion requirement. 28 U.S.C. § 2254(b)(2)6
empowers this Court to deny Daniel’s application notwithstanding his
failure to exhaust his federal claims in state court.
5
28 U.S.C. § 2254(b)(1) provides, in relevant part:
“An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted unless it appears that—
(A) the applicant has exhausted the remedies available in the
courts of the State;”.
6
28 U.S.C. § 2254(b)(2) provides: “An application for a writ of
habeas corpus may be denied on the merits, notwithstanding the failure
of the applicant to exhaust the remedies available in the courts of the
State.”
7
The deferential standard of section 2254(d) applies to Daniel’s
Brady claim but not to his ineffective assistance of counsel claim.
Review of the latter is governed by the principles of Teague v. Lane,
109 S.Ct. 1060 (1989). See Fisher v. Texas, 169 F.3d 295, 304 (5th Cir.
1999) (“Teague still applies to a petitioner’s claim that has not been
adjudicated on the merits by a state court and that is not procedurally
barred.”). If, applying the AEDPA (28 U.S.C. § 2254(d)) to Daniel’s
Brady claim and Teague to his ineffective assistance of counsel claim,
we are not able to deny all relief, then we would ordinarily be required
to dismiss Daniel’s entire petition for failure to comply with the
exhaustion requirement.7
II. Voluntariness of Daniel’s Plea
Daniel argues that his guilty plea was involuntary because it was
induced by Leitner’s unfulfilled promise that Judge Hatten would be the
sentencing judge. In his affidavit, Daniel states: “Had I known when
I waived my rights and entered a plea to Judge Hatten he was not going
to assess punishment and that Judge Bacon was going to get involved in
7
See Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996) (“The
exhaustion doctrine, generally codified in section 2254(b) & (c),
requires that normally a state prisoner’s entire federal habeas petition
must be dismissed unless the prisoner’s state remedies have been
exhausted as to all claims raised in the federal petition.” (emphasis
in original)).
Of course, this court has discretion to hold that the State’s
silence has effected a waiver of the exhaustion requirement where
failure to so hold would result in “unnecessary delay in granting relief
that is plainly warranted.” Granberry v. Greer, 107 S.Ct. 1671, 1676
(1987).
8
my case at sentencing, I would have pled guilty to a jury.” Daniel does
not claim the existence of a plea agreement concerning the identity of
the sentencing judge. Nor does he claim that he had the right to be
sentenced by the judge of his choice or argue any other ground for
involuntariness. The record reflects that in all other respects Daniel
completely understood the consequences of his guilty plea.
Because a guilty plea involves the waiver of constitutional rights
it must be voluntary, knowing and intelligent. Brady v. United States,
90 S.Ct. 1463, 1468-69 (1970). In Brady the Supreme Court stated:
“The standard as to the voluntariness of guilty pleas must
be essentially that defined by Judge Tuttle of the Court of
Appeals for the Fifth Circuit:
‘[A] plea of guilty entered by one fully aware of
the direct consequences, including the actual
value of any commitments made to him by the court,
prosecutor, or his own counsel, must stand unless
induced by threats (or promises to discontinue
improper harassment), misrepresentation (including
unfulfilled or unfulfillable promises), or perhaps
by promises that are by their nature improper as
having no proper relationship to the prosecutor’s
business (e.g. bribes).’” Id. at 1472 (inside
quotation marks omitted).8
See also United States v. Amaya, 111 F.3d 386, 389 (5th Cir. 1997)
(quoting a portion of the above Brady passage); McKenzie v. Wainwright,
632 F.2d 649, 651 (5th Cir. 1980) (citing and paraphrasing the above
Brady passage; affirming denial of claim the plea was involuntary).
8
Citing Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir.
1957) (en banc) (quoting panel dissenting opinion), rev’d on confession
of error on other grounds, 78 S.Ct. 563 (1958). Brady and Shelton each
uphold denial of claim that the plea was involuntary.
9
Where a defendant can show that the court, the prosecutor or
defense counsel induced his guilty plea by clearly and unequivocally
guaranteeing a lesser sentence or some other specific leniency, the
guilty plea is not voluntary unless the defendant receives that which
he was promised. See Amaya, 111 F.3d at 388-89 (holding that the
district court’s legally unfulfillable promise to impose sentence as
though the government had moved for a downward departure rendered the
defendant’s guilty plea involuntary); Davis v. Butler, 825 F.2d 892,
894-95 (5th Cir. 1987) (remanding for evidentiary hearing to determine
if defense counsel guaranteed that if the defendant pleaded guilty he
would be pardoned in three years). The defendant must generally
establish that an actual promise or guarantee was made by showing: (1)
the exact terms of the alleged guarantee; (2) exactly when, where and
by whom the guarantee was made; and (3) the identity of any eyewitnesses
to the guarantee. DeVille v. Whitley, 21 F.3d 654, 58 (5th Cir. 1994).
Here, it is undisputed that Leitner told Daniel that if he pleaded
guilty to Judge Hatten, he would be sentenced by Judge Hatten.
A guilty plea is not rendered involuntary by the defendant’s mere
subjective understanding that he would receive a lesser sentence. In
other words, if the defendant’s expectation of a lesser sentence did not
result from a promise or guarantee by the court, the prosecutor or
defense counsel, the guilty plea stands. See Spinelli v. Collins, 992
F.2d 559, 561-62 (5th Cir. 1993) (defendant’s mistaken belief that he
would be eligible for parole after five years did not render his guilty
10
plea involuntary because his misunderstanding did not result from
promise by court, prosecutor or defense counsel).
Likewise, a guilty plea is not rendered involuntary because the
defendant’s misunderstanding was based on defense counsel’s inaccurate
prediction that a lesser sentence would be imposed. See Harmason v.
Smith, 888 F.2d 1527, 1532 (5th Cir. 1989) (defense counsel’s statement
that the defendant would probably receive less than a fifteen year
sentence did not render the guilty plea involuntary because a
“prediction, prognosis, or statement of probabilities . . . does not
constitute an ‘actual promise’.”); United States v. Stumpf, 827 F.2d
1027, 1030 (5th Cir. 1987) (“a defendant’s reliance on his attorney’s
erroneous prediction of leniency is not sufficient to render a guilty
plea involuntary.”); Self v. Blackburn, 751 F.2d 789, 793 (5th Cir.
1985) (defense counsel’s statement that parole would be probable after
10 ½ years did not render the guilty plea involuntary because it was a
mere prediction, not a guarantee); Johnson v. Massey, 516 F.2d 1001,
1002 (5th Cir. 1975) (“Petitioner’s allegation of a breached bargain is
premised on the alleged statement to him by his own attorney that the
sentencing judge generally gave sentences of about 20 years in second
degree murder cases and that petitioner, as a first offender, might
expect such a sentence. However, a good faith but erroneous prediction
of a sentence by a defendant’s counsel does not render the guilty plea
involuntary.”).
The district court found that, although Leitner did assure Daniel
11
that if he pleaded guilty to Judge Hatten he would be sentenced by Judge
Hatten, Daniel’s case was like those in which counsel predicts that a
proposed course of action will probably result in a lesser sentence.
We agree with the district court that the substance of Leitner’s
statement requires its treatment as a “prediction, prognosis, or
statement of probabilities”, not a clear and unequivocal guarantee of
a lesser sentence. Harmason, 888 F.2d at 1532.
First, we think that the only reasonable lay person’s
understanding of Leitner’s assurance that Judge Hatten would impose
sentence is as a prediction, not an unqualified guarantee. Indeed,
there are many obvious circumstances that any reasonable lay person
would recognize as ones resulting in Judge Hatten not presiding at
sentencing.9 Daniel knew there would be a delay of several weeks
between entry of his guilty plea and sentencing. In that time, Judge
Hatten could have died, become ill or disabled (temporarily or longer
term) or retired and moved to Palm Beach County, Florida, or the like.10
Second, even if we construe Leitner’s statement as guaranteeing
that Judge Hatten would be the sentencing judge, its substantively
predictive, probabilistic character precludes relief. Leitner did not
9
It is not known why Judge Hatten did not preside at Daniel’s
sentencing hearing.
10
We do know he did not die, retire or suffer an illness or a
disability which lasted from before sentencing until October 1998 (when
he ruled on Daniel’s state habeas petition).
There in no evidence that Leitner told Daniel that if for any
reason Judge Hatten did not sentence Daniel then nevertheless some judge
other than Judge Bacon would be the sentencing judge.
12
guarantee any of the substantive benefits that this Court has indicated
could form the basis for a Brady involuntariness claim, such as: (1) a
downward departure at sentencing;11 (2) a lesser sentence;12 or (3)
parole, commutation or pardon after a certain period of incarceration.13
Leitner “promised” nothing more than what he predicted would be a better
roll of the sentencing dice. There was no guarantee that Judge Hatten
would have sentenced Daniel less harshly than Judge Bacon. Any value
of Leitner’s promise was wholly dependent on the probability that Judge
Hatten would impose a less severe sentence than Judge Bacon would. The
statement “you will probably be sentenced by Judge Hatten, and he will
probably sentence you less harshly than would Judge Bacon” is not in
this respect materially different from “you will definitely be sentenced
by Judge Hatten, and Judge Hatten will probably sentence you less
harshly than would Judge Bacon.” In neither case has a light or lighter
(or particular) sentence been promised.
Leitner’s assurance that Judge Hatten would be the sentencing judge
simply lacked the requisite certainty as to actual sentencing benefit
to render Daniel’s plea involuntary under Brady. Daniel concedes, as
he must, that he has no right to be sentenced by the judge of his choice
11
See United States v. Amaya, 111 F.3d 386, 387 (5th Cir. 1997).
12
See Harmason, 888 F.2d at 1530; DeVille v. Whitley, 21 F.3d 654,
58 (5th Cir. 1994); McKenzie v. Wainwright, 632 F.2d 649, 650 (5th Cir.
1980).
13
See Davis v. Butler, 825 F.2d 892, 94 (5th Cir. 1987); Smith v.
Blackburn, 785 F.2d 545, 546-47 (5th Cir. 1986).
13
and that Judge Bacon had jurisdiction to sentence him. Leitner’s
assurance merely gave rise to the hope of leniency. We are not aware
of any case vacating a guilty plea because the defendant was promised
sentencing by a judge his lawyer predicted would be lenient. At the
sentencing hearing before Judge Bacon, Daniel testified that he was
aware that he could be sentenced to life in prison. Daniel’s guilty
plea was knowing and voluntary.
This Court has interpreted the AEDPA, 28 U.S.C. § 2254(d), as only
allowing the Supreme Court to announce new rules for purposes of federal
habeas. Williams v. Cain, 229 F.3d 468, 474 (5th Cir. 2000). The
State’s rejection of Daniel’s involuntariness claim was not contrary to
or an unreasonable application of that federal law which has been
clearly established by the Supreme Court. We affirm the district
court’s grant of summary judgment for the State as to Daniel’s
involuntariness claim.
III. Ineffective Assistance of Counsel
Daniel claims that Leitner’s assurance that Judge Hatten would
impose sentence constituted ineffective assistance of counsel which
rendered his plea involuntary. Daniel’s ineffective assistance claim
is basically a repeat of his voluntariness claim, except that now the
emphasis is on Leitner’s statement as bad advice, not as a broken
promise.
As previously noted, the merits of this federal ineffective
assistance of counsel claim were not ruled on by (because specifically
14
withheld from) the state courts, so the claim is not governed by section
2254(d).14 Review of this claim is hence governed by the principles set
forth in Teague v. Lane, 109 S.Ct. 1060 (1989). Teague held that a
federal court may not create or apply new constitutional rules on habeas
review. Fisher v. Texas, 169 F.3d 295, 305 (5th Cir. 1999). The Teague
analysis involves three determinations: (1) when the applicant’s
conviction became final; (2) whether a state court considering the
applicant’s federal claim when his conviction became final would have
felt compelled by existing precedent to apply the rule the applicant now
seeks; and (3) if the applicant seeks to apply a new rule, whether that
rule falls within one of the narrow exceptions to the non-retroactivity
principle. Id.
As Daniel did not file a petition for certiorari with the United
States Supreme Court, his conviction became final on November 11, 1997,
ninety days after the Texas Court of Criminal Appeals denied his
petition for discretionary review. We now survey the legal landscape
as it then existed to determine if a state court would have felt
compelled by then existing federal law to provide the relief Daniel
seeks.
In Strickland v. Washington, 104 S.Ct. 2052, 2064-68 (1984), the
Supreme Court held that a defendant claiming ineffective assistance of
14
The claim is thus unexhausted. But, as we have earlier observed,
the State has neither raised nor expressly waived exhaustion, and hence
we may deny relief on this claim. See notes 5, 6, and 7 and
accompanying text supra. We also note that the State does not urge that
this claim has been procedurally defaulted.
15
counsel must show that: 1) trial counsel’s performance was deficient;
and 2) the deficient performance prejudiced the defendant. Daniel’s
ineffective assistance of counsel claim fails to surmount either
Strickland hurdle.
According to the affidavit of Judge Rains, it was the custom and
practice in Harris county that the judge who accepted the defendant’s
plea would also impose sentence. Daniel does not dispute that this was
in fact the case. In advising Daniel to plead guilty to Judge Hatten,
it would certainly have been better for Leitner to explain this
longstanding practice and that it was very likely (but not certain) that
Judge Hatten would impose sentence; however, Leitner’s failure to so
explain did not transform Leitner’s otherwise good advice into deficient
performance. In other words, in light of the undisputedly accurate
information Leitner possessed after his discussion with Judge Rains and
due to the inherent predictive, probabilistic nature of his assurance
that Judge Hatten would impose sentence, Leitner’s advice was not so far
off the mark as to fall “outside the wide range of professionally
competent assistance.” Strickland, 104 S.Ct. at 2066.
Daniel never formally addresses the prejudice element of
Strickland, but we glean from his briefs that he finds prejudice in the
waiver of his Texas statutory right to be sentenced by a jury, which
Daniel attributes to Leitner’s bad advice. The record indicates that
Daniel was determined to plead guilty and he concedes that he has no
federal constitutional or federal statutory right to be sentenced by a
16
jury.
Strickland generally defined prejudice as “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 2068. However,
Strickland expressly left open the question of the proper standard for
claims of ineffective assistance at noncapital sentencing proceedings.
Id. at 2064.15 This Court has held that in the noncapital sentencing
context, prejudice requires a showing of a reasonable probability that,
absent counsel’s unprofessional errors, the noncapital sentence would
have been “significantly less harsh.” Spriggs v. Collins, 993 F.2d 85,
88 (5th Cir. 1993) (emphasis in original). See also United States v.
Stewart, 207 F.3d 750, 751 (5th Cir. 2000) (same); Durrive v. United
States, 4 F.3d 548, 551 (7th Cir. 1993) (quoting with approval this
portion of Spriggs); Martin v. United States, 109 F.3d 1177, 1178 (7th
Cir. 1996) (must show “counsel’s deficient performance led to a
15
Strickland states in this respect:
“We need not consider the role of counsel in an ordinary
sentencing, which may involve informal proceedings and
standardless discretion in the sentencer, and hence may
require a different approach to the definition of
constitutionally effective assistance. A capital sentencing
proceeding like the one involved in this case, however, is
sufficiently like a trial in its adversarial format and in
the existence of standards for decision . . . (citations
omitted) that counsel’s role in the proceeding is comparable
to counsel’s role at trial–to ensure that the adversarial
testing process works to produce a just result under the
standards governing decision.” Id.
17
‘significant’ increase in the sentence”).16 In Glover v. United States,
121 S.Ct. 696 (2001), the Supreme Court arguably cast doubt on the
Spriggs “significantly less harsh” rule and may have impliedly rejected
it in total.17 In any event, Glover was decided more than three years
after Daniel’s conviction became final and accordingly cannot be
16
In Spriggs we noted that “one foreseeable exception to this
requirement” (of showing that but for counsel’s error the sentence
likely would have been significantly less harsh) “would be when a
deficiency by counsel resulted in a specific, demonstrable enhancement
in sentencing – such as an automatic increase for a ‘career’ offender
or an enhancement for use of a handgun during a felony – which would not
have occurred but for counsel’s error”. Id. at 89 n.4. That potential
exception was held inapplicable in Spriggs, and is likewise plainly
inapplicable here. In United States v. Phillips, 210 F.3d 345 (5th Cir.
2000), we, for the first time, applied this Spriggs exception. In
Phillips counsel’s deficient performance resulted in an improper
obstruction of justice guideline enhancement which raised the
defendant’s guideline range from 121 to 151 months to 151 to 188 months
and defendant was sentenced to 188 months. Id. at 351. Nothing
remotely comparable is present here.
17
However, Glover can also be fairly read as applying the Spriggs
exception described in note 16, supra. In Glover the Court assumed
arguendo that counsel’s deficient performance in respect to whether the
offenses of conviction should be grouped for purposes of the guidelines
led to an improper guideline range increase of from 63 to 78 months to
78 to 97 months, and the defendant’s sentence was 84 months. Id., 121
S.Ct. at 699. The Court noted that “the amount by which a defendant’s
sentence is increased by a particular decision . . . under a determinate
system of constrained discretion such as the Sentencing Guidelines . .
. cannot serve as a bar to a showing of prejudice”, and went on to
compare Spriggs, which it characterized as involving “the Texas
discretionary sentencing scheme” with Phillips (see note 16, supra)
which it stated involved “the Sentencing Guidelines.” Glover at 701
(emphasis added). The Glover opinion then continues by stating “Here
we consider the sentencing calculation itself, a calculation resulting
from a ruling which, if it had been error, would have been correctable
on appeal”. Id. Here we deal with the Texas discretionary sentencing
scheme, not with a system of “constrained discretion” and we do not deal
with a claimed ruling which affects “the sentencing calculation.”
18
considered as a basis for relief unless one of the two Teague exceptions
applies. We hold that neither exception is applicable. Consequently,
Spriggs states the applicable test.
Daniel’s claim that counsel’s deficient performance resulted in a
non-preferred sentencing proceeding is not precisely the same as
claiming ineffective assistance during a particular sentencing
proceeding. However, advice concerning the choice of sentencing
proceeding certainly constitutes assistance in the noncapital sentencing
context and is, therefore, governed by the principles set forth in
Spriggs. Daniel does not even attempt to make the Spriggs-required
showing that the jury would have sentenced him significantly less
harshly than Judge Bacon.
The Supreme Court has elaborated on Strickland’s prejudice
requirement in two other potentially relevant situations. First, in
Hill, the Supreme Court applied Strickland to claims of ineffective
assistance arising out of the plea process. Hill v. Lockhart, 106 S.Ct.
366, 370 (1985). Hill’s counsel erroneously informed him that he would
be eligible for parole after serving one-third of his sentence. In
fact, Hill would not be so eligible until serving half of his sentence.
Id. at 368. To establish prejudice in this context, “the defendant 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.” Id. at 370. In Hill’s situation, which is typical,
the defendant has only two choices: plead guilty and be sentenced by a
19
judge or stand trial. Hill simply recognized that unless the defendant
could show that absent defense counsel’s bad advice he would have stood
trial, there was no possibility of prejudice because the defendant would
have nothing else to do except exactly what he did–plead guilty.
Significantly, Daniel had a choice not open to Hill: sentencing by
a jury. Hill should not be read as a definitive statement from the
Supreme Court that defendants in Daniel’s situation can only establish
prejudice by claiming they would have stood trial. Hill does not itself
necessarily foreclose Daniel’s prejudice argument. However, Hill’s
silence concerning Daniel’s unique situation is inadequate to render a
finding of prejudice dictated by existing precedent, especially in light
of our decision in Spriggs.
Second, in Roe v. Flores-Ortega, 120 S.Ct. 1029, 1038 (2000), the
Supreme Court considered the meaning of prejudice in the context of a
claim that defense counsel failed to consult with the defendant
regarding the first appeal as of right. Consistent with Hill, Flores-
Ortega held that prejudice requires showing a reasonable probability
that, absent defense counsel’s failure to consult, an appeal would have
been taken. Id. at 1039. Flores-Ortega was decided over two years
after Daniel’s conviction became final and therefore cannot be
considered as a basis for relief unless one of the two Teague exceptions
is satisfied. We hold that neither is. In any event, we agree with the
district court that the rule of Flores-Ortega does not help Daniel
because he did not forfeit an entire judicial proceeding–he simply chose
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one sentencing proceeding over another.
A state court would not have been compelled by precedent existing
when Daniel’s conviction became final to find that Leitner’s performance
was constitutionally deficient or that the alleged deficiency in
Leitner’s performance resulted in prejudice. Thus, Teague’s non-
retroactivity rule precludes relief unless the new rules Daniel seeks
fall into one of the exceptions to the rule. The two exceptions are for
new rules that: (1) place certain kinds of “primary, private individual
conduct beyond the power of the criminal law-making authority to
proscribe”; or (2) are implicit in the concept of ordered liberty.
Fisher, 169 F.3d at 306. The first exception is clearly not implicated
here.
As to deficient performance, Leitner’s statement that Judge Hatten
would be the sentencing judge was clearly reasonably based on the
longstanding custom of the Harris County courts. His failure to foresee
that in this one instance it would not (for some unknown reason) be
followed, or to be more precise in his explanation, does not call into
question protections implicit in the concept of ordered liberty.
Likewise, Daniel cannot show prejudice under any plausible
standard. In his affidavit, Daniel states that if he had known Judge
Bacon would sentence him instead of Judge Hatten, he would have pleaded
guilty to the jury. Leitner’s alleged deficient performance concerned
his purported assurance that Judge Hatten would impose sentence, not his
failure to predict that time-honored custom would be abandoned. In
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other words, but for the deficient component of counsel’s advice, Daniel
would have been told that, based on custom in the Harris County criminal
courthouse, Judge Hatten would probably impose sentence. Daniel would
not have been told that Judge Bacon would impose sentence. Had Leitner
completely explained the time-honored custom of Harris County and
advised Daniel to plead guilty to Judge Hatten, it seems very likely
that Daniel would have accepted that advice. He did not state otherwise
in his affidavit, briefs or at oral argument, and there is nothing in
the record that suggests Daniel may have rejected such advice. A rule
that allowed a finding of prejudice where there is absolutely no
evidence that, absent counsel’s deficient performance, the defendant
would have proceeded any differently would be directly contra to
Strickland, Hill and Flores-Ortega and is unquestionably not implicit
in the concept of ordered liberty.
Daniel has failed to establish deficient performance or prejudice.
The district court’s grant of summary judgment for the State as to
Daniel’s ineffective assistance claim is affirmed.
Conclusion
For the foregoing reasons, the district court’s dismissal of
Daniel’s habeas petition is
AFFIRMED.
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