United States Court of Appeals,
Fifth Circuit.
No. 94-60426.
Gerald MANGUM, Petitioner-Appellant,
v.
Edward HARGETT, Superintendent, Mississippi State Penitentiary,
Respondent-Appellee.
Oct. 19, 1995.
Appeal from the United States District Court for the Southern
District of Mississippi.
Before JOLLY and BENAVIDES, Circuit Judges, and SHAW,* District
Judge.
BENAVIDES, Circuit Judge.
Gerald Mangum, a Mississippi state prisoner, appeals the
denial of his petition for writ of habeas corpus. 28 U.S.C. §
2254. Mangum argues that the district judge erred in failing to
recuse himself because the judge was a member of the prosecution
staff at the time Mangum pleaded guilty in state court and that
counsel rendered ineffective assistance. We hold that because the
district judge did not actually participate in the prior
proceedings, 28 U.S.C. § 455 does not mandate recusal. In regard
to the ineffective assistance of counsel claim, we find that Mangum
has not carried his burden of showing prejudice. We therefore
affirm.
I. FACTS AND PROCEDURAL HISTORY
On March 5, 1981, Mangum pleaded guilty to murder, rape, and
*
Chief Judge of the Western District of Louisiana, sitting
by designation.
1
burglary of an occupied dwelling in the Circuit Court of Hinds
County, Mississippi, First Judicial District. Pursuant to those
pleas, he was sentenced to life imprisonment for murder, 30 years
(10 years suspended) sentence for the rape and a 15-year (71/2
years suspended) sentence for the burglary, with the sentences
running concurrently. These sentences were to run consecutively,
however, to a 10-year sentence on a previous conviction for
aggravated assault obtained in the Circuit Court of Hinds County,
Mississippi, Second Judicial District.1 On July 19, 1982, Mangum
filed a motion to withdraw his plea of guilty to murder, which the
court denied the next day. In 1988, Mangum filed a motion to
vacate judgment. Finding that the relief sought in the motion to
vacate was previously denied, the state trial court dismissed the
motion with prejudice. On October 4, 1989, without written
opinion, the Supreme Court of Mississippi affirmed the order
denying post-conviction relief. Mangum v. State, 553 So.2d 24
(Miss.1989).
Mangum filed a petition for habeas corpus relief pursuant to
28 U.S.C. § 2254 in district court. Mangum asserted that his
counsel rendered ineffective assistance by failing to investigate
the crime and by coercing him into pleading guilty to murder rather
than attempting to have the charge reduced to manslaughter.
1
Initially, Mangum pleaded guilty to the aggravated assault
in Circuit Court of Hinds County, Mississippi, Second Judicial
District, and was sentenced to 15 years in the Mississippi
Department of Corrections with 10 years suspended and 5 years to
serve. After serving the initial portion of the sentence, Mangum
was released. The suspended sentence was revoked when he was
indicted for the above burglary charge.
2
On October 25, 1993, the magistrate judge entered his report
and recommendation that Mangum's petition for writ of habeas corpus
be denied, concluding that there was no evidence that Mangum would
have refused to plead guilty and proceed to trial because of the
alleged ineffective assistance of counsel. Mangum objected to the
report and recommendation and also submitted a petition to amend
with affidavits attached. The district court adopted the
recommendation and denied Mangum's petition to amend. Mangum now
appeals.
II. RECUSAL OF THE DISTRICT JUDGE
Mangum contends that, pursuant to 28 U.S.C. § 455(b)(3),
Judge Wingate was disqualified from hearing his federal habeas
petition in the court below. Section 455(b)(3) provides that a
judge shall disqualify himself "[w]here he has served in
governmental employment and in such capacity participated as
counsel, adviser or material witness concerning the proceeding or
expressed an opinion concerning the merits of the particular case
in controversy."
The state argues that the claim is untimely because Mangum
raises it for the first time on appeal.2 We have "not yet clearly
defined the scope of our review of § 455 issues raised for the
first time on appeal." McKethan v. Texas Farm Bureau, 996 F.2d
734, 744 n. 31 (5th Cir.1993), cert. denied, --- U.S. ----, 114
S.Ct. 694, 126 L.Ed.2d 661 (1994). This Court, however, has
2
In its brief, the state asserts that Mangum had been on
notice of Judge Wingate's assignment for four years, an assertion
Mangum does not deny in his reply brief.
3
declined to reach the merits of a § 455 recusal claim which was
raised for the first time on appeal, concluding that the plaintiff
had waived the objection by failing to raise it earlier.
Stephenson v. Paine Webber Jackson & Curtis, Inc., 839 F.2d 1095,
1096 n. 3 (5th Cir.), 488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 328
(1988) (citing Delesdernier v. Porterie, 666 F.2d 116, 121-23 (5th
Cir.), cert. denied, 459 U.S. 839, 103 S.Ct. 86, 74 L.Ed.2d 81
(1982)).3 In United States v. York, 888 F.2d 1050, 1055-56 (5th
Cir.1989), we acknowledged the waiver found in Stephenson, supra,
but opined that there was no need to determine "whether the same
should be adopted as an inflexible rule." We also stated that the
Supreme Court had implicitly rejected the view that a motion for
recusal made after trial was per se untimely. Id. (citing
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860-64,
108 S.Ct. 2194, 2203-04, 100 L.Ed.2d 855 (1988)).
Although the above cases sometimes referred generally to §
455, they involved either subsection (a) or (b)(1) of § 455, and
the instant case involves § 455(b)(3). In Mixon v. United States,
620 F.2d 486, 487 (5th Cir.1980), we addressed a § 455(b)(3) claim
that had not been raised in the district court. In that case, the
magistrate who presided over Mixon's 28 U.S.C. § 2255 proceedings
was the same individual who, as an Assistant United States
Attorney, had represented the government in earlier proceedings
involving the same convictions. We found that the magistrate was
3
See also United States v. MMR Corp, 954 F.2d 1040, 1046
(5th Cir.1992) (§ 455 includes a timeliness requirement).
4
disqualified and that such disqualification rendered the § 2255
proceedings a nullity. In the instant case, as set forth below, we
find that recusal was not mandated, and, thus, there was no error,
plain or otherwise.
Mangum asserts that Judge Wingate "was a member of the
prosecution's staff at the time that [he] pled guilty" to the
offense of murder that is the subject of the habeas petition now
before us. Although the state concedes that Judge Wingate was an
assistant district attorney in Hinds County at that time, it
asserts that Judge Wingate did not participate in Mangum's guilty
plea proceedings. The state record supports that assertion, and,
further, Mangum does not specifically allege that Judge Wingate
(then Assistant District Attorney Wingate) was personally involved
in his case. The state, citing several cases from other circuits,4
argues that the judge was not required to recuse himself because he
did not actually participate in the proceedings.
The language of § 455(b)(3) provides that a judge shall
disqualify himself "[w]here he has served in governmental
employment and in such capacity participated as counsel, adviser or
4
United States v. Di Pasquale, 864 F.2d 271, 279 (3d
Cir.1988), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106
L.Ed.2d 566 (1989) (recusal not required absent a specific
showing that the judge was involved in the previous case);
Kendrick v. Carlson, 995 F.2d 1440 (8th Cir.1993) (prosecutor
with no involvement in prior case not required to disqualify
himself as judge); United States v. Gipson, 835 F.2d 1323 (10th
Cir.), cert. denied, 486 U.S. 1044, 108 S.Ct. 2038, 100 L.Ed.2d
623 (1988) (to require recusal, there must be a showing that
judge actually participated as counsel in the prior proceeding).
5
material witness concerning the proceeding." (emphasis added).5
In contrast, as explained by the Tenth Circuit, the predecessor
version of § 455(b)(3) provided that "[A]ny ... judge of the United
States shall disqualify himself in any case in which he ... has
been of counsel." United States v. Gipson, 835 F.2d 1323, 1326
(10th Cir.1988) (brackets, ellipsis, and emphasis in opinion).6
Accordingly, the applicable version of § 455(b)(3) mandates recusal
if the judge has "participated as counsel." Id. "Participation
connotes activity.... One cannot "participate' without doing
something." Id. (emphasis in opinion).
We find the Tenth Circuit's analysis persuasive. We therefore
adopt the interpretation espoused by the Tenth Circuit.
Specifically, § 455(b)(3) does not mandate7 recusal unless the
5
We previously have acknowledged the interpretation of §
455(b)(3) that requires actual participation in the proceedings
by the former government attorney but found it unnecessary to
determine whether that interpretation was correct because, under
any interpretation of that provision, the judge in that case was
not disqualified. United States v. Kelly, 556 F.2d 257, 263 (5th
Cir.1977), cert. denied, 434 U.S. 1017, 98 S.Ct. 737, 54 L.Ed.2d
763 (1978). Cf. Donald v. Jones, 445 F.2d 601, 606-07 (5th
Cir.), cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 543
(1971) (This Court, in the context of a claim of unfair trial,
has looked to the lack of participation by the former government
attorney when the defendant committed the offense while the
attorney was a prosecutor, but the defendant was not indicted
until eight months after the judge took the bench.).
6
Cf. Adams v. United States, 302 F.2d 307 (5th Cir.1962)
(predecessor version of § 455) (fact that judge had been
prosecuting attorney in liquor violation case did not render him
disqualified as a person who had been "of counsel" pursuant to §
455 in perjury prosecution arising out of liquor case where
perjury case was not commenced until he resigned as prosecuting
attorney).
7
Of course, the judge has the discretion to (and sometimes
should) recuse himself even though he did not actually
6
former government attorney has actually participated in some
fashion in the proceedings. Mangum does not allege specific
participation by Judge Wingate in his guilty plea proceedings, but
rather, he asserts that Judge Wingate was a member of the
prosecution staff. Such a claim is not sufficient to mandate
recusal. Accordingly, the district court did not commit error by
failing to recuse himself, much less plain error. Mangum is not
entitled to any relief on this claim.
III. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Mangum asserts that his counsel was ineffective and that the
district court erred in dismissing this claim without holding an
evidentiary hearing. A federal habeas court need not grant an
evidentiary hearing on a claim of ineffective assistance of counsel
"when a petitioner fails to allege facts which, if proved, would
entitle the petitioner to relief, or when the state court record
supports that court's disposition of the claim." Amos v. Scott, 61
F.3d 333, 348 (5th Cir.1995) (footnotes omitted).
To prevail on an ineffective assistance of counsel claim,
Mangum must show that his counsel's performance was deficient and
that the deficiency prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80
L.Ed.2d 674 (1984). In the context of a guilty plea, a defendant
participate during his employment as a former government
attorney. In Bradshaw v. McCotter, 796 F.2d 100, 101 (5th
Cir.1986), a state appellate judge's name appeared on the brief
as a prosecuting attorney; however, the judge had not
participated in the appeal as a prosecutor. Although we rejected
the due process claim, we opined that the judge should have
disqualified himself.
7
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." Hill v. Lockhart, 474 U.S. 52, 59,
106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).
In regard to the performance prong of the Strickland/Hill
test, "if a defendant is represented by counsel and pleads guilty
upon the advice of counsel, the voluntariness of the plea depends
on whether counsel's advice was within the range of competence
demanded of attorneys in criminal cases." Armstead v. Scott, 37
F.3d 202, 206 (5th Cir.1994) (internal quotation marks and citation
omitted), cert. denied, --- U.S. ----, 115 S.Ct. 1709, 131 L.Ed.2d
570 (1995). In regard to the prejudice prong, a petitioner must
prove that but for his counsel's allegedly incorrect advice, he
would have insisted on going to trial. Id. Simply alleging
prejudice will not suffice. Whether the petitioner is able to
persuade us that he was prejudiced depends partly on his chances
for success at trial. If the petitioner claims that counsel erred
by failing to investigate or discover certain exculpatory evidence,
the prejudice determination will depend upon whether the discovery
of such evidence would have influenced counsel to change his advice
regarding the guilty plea. Id. Of course, whether counsel would
have changed his advice depends on his prediction whether the
evidence would change the outcome of the trial. Id. Analogously,
to show prejudice in regard to a claim that the attorney failed to
raise a certain defense, the petitioner must show that the defense
likely would have been successful at trial. Id.
8
Subsequent to Strickland and Lockhart, the Supreme Court has
further clarified the prejudice inquiry. Lockhart v. Fretwell, ---
U.S. ----, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). Pursuant to
Fretwell, we must also determine "whether counsel's deficient
performance caused the outcome to be unreliable or the proceeding
to be fundamentally unfair." The Supreme Court explained that
"[u]nreliability or unfairness does not result if the
ineffectiveness of counsel does not deprive the defendant of any
substantive or procedural right to which the law entitles him."
Fretwell, 113 S.Ct. at 844.
Mangum contends that counsel induced him to plead guilty by
advising him that if he did not so plead, he would be sentenced to
life without parole as an habitual offender. He asserts "that at
the time that he entered his pleas of guilty he could not have been
sentenced as a habitual offender, if he went to trial, and
therefore, because of the mistaken advice from counsel the plea of
guilty was involuntary." Although Mangum now claims that counsel
advised him that he would receive life without parole if he did not
plead guilty, it is worth mentioning that, in the court below and
in his state proceedings, he has claimed that counsel advised him
to plead guilty to escape the death penalty. Also, he previously
has claimed that counsel verbally promised him a 20-year sentence
for the murder.8
8
At the guilty plea hearing, however, the judge informed
Mangum that life was the only permissible sentence for murder, to
which Mangum replied that he understood. Further, the court
inquired whether there were any "side agreements of any type,"
and Mangum answered "no."
9
In any event, Mangum's claim that he could not have been
sentenced as an habitual offender is based on the fact that he had
not been indicted under the habitual offender statute, Miss.Code
Ann. § 99-19-81 (1977).9 Had Mangum not pleaded guilty to murder
under the proposed plea agreement, however, there is nothing to
indicate that the state could not have obtained an amended or
superseding indictment for murder under the habitual offender
statute.
Section 99-19-81 "requires proof that the defendant had been
twice previously convicted of a felony in this state or another."
Lacy v. State, 629 So.2d 591, 594 (Miss.1993). Further, if "one
(1) of such felonies shall have been a crime of violence[, the
defendant] shall be sentenced to life imprisonment, and such
sentence shall not be reduced or suspended nor shall such person be
eligible for parole or probation." Miss.Code § 99-19-83 (1977).
The record reveals that Mangum had a previous conviction for
aggravated assault in cause no. 3593, Circuit Court of Hinds
County, Mississippi on September 9, 1977. The sentencing order for
that conviction provides that he was sentenced to fifteen years
9
Section 99-19-81 provides that:
Every person convicted in this state of a felony who
shall have been convicted twice previously of any
felony or federal crime upon charges separately brought
and arising out of separate incidents at different
times and who shall have been sentenced to separate
terms of one (1) year or more in any state and/or
federal penal institution, whether in this state or
elsewhere, shall be sentenced to the maximum term of
imprisonment prescribed for such felony, and such
sentence shall not be reduced or suspended nor shall
such person be eligible for parole or probation.
10
(ten years suspended) in the Mississippi Department of Corrections
and that sentence was to run concurrently with a different sentence
imposed in Rankin County. The record therefore indicates that
Mangum had two prior convictions, one of which was a crime of
violence (aggravated assault), at the time he pleaded guilty to the
murder charge. Under that scenario, counsel properly advised
Mangum that, if he insisted on going to trial, he could receive
life imprisonment without parole if he was convicted of any of the
three offenses and sentenced as an habitual offender. Miss.Code §§
99-19-81 & 99-19-83. Because the state court record supports that
court's disposition of the claim, Mangum has not shown that he is
entitled to a hearing to determine whether counsel's advice was
erroneous. Amos v. Scott, 61 F.3d at 348.10
Mangum next argues that his counsel did not interview the
witnesses to the shooting and did not prepare any defense, and, as
a result, improperly advised him to plead guilty to murder rather
than to manslaughter. Mangum contends that he did not murder John
Edgar Simmons, but that he killed Simmons in an attempt to save his
sister from being killed by Simmons.11 To support his assertions,
Mangum attached affidavits from his sisters, Ella Delois Brown and
Mary Ann Brown. The affidavits provided that each of the women was
present at the shooting and that Mangum's counsel did not interview
them. The affidavits attest that Mangum approached Simmons to
10
We note that the state transcript filed in the court below
indicates that Mangum's counsel is deceased.
11
In his state pleadings, Mangum admitted that he fired
seven shots at the victim.
11
prevent him from beating Ella Brown to death with a piece of
lumber. Simmons turned to attack Mangum, and Mangum shot him.
At the hearing in which Mangum pleaded guilty to the instant
offense of murder and the other charges of rape and burglary,
Mangum, upon inquiry by the trial court, explained his version of
the facts underlying the murder charge,12 which is almost identical
to the version he now presents in the affidavits and his pleadings
and briefs. The trial court then informed Mangum that he "may or
12
The following colloquy transpired between the trial court
and Mangum at the guilty plea hearing:
Q. Just tell me what happened and let's start with
the—let's start with the charge of murder first.
Just tell me what happened there.
A. Well, I was out—the dude, John Simmons, my
brother-in-law, we was at my mom-at my mom's home
and my brother-in-law, him and John had had some
kind of misunderstanding and he seen—he looked out
the window and he seen John, you know, in the
s[t]reets ... and he went out there, you know, and
him and John got into it because John had whooped
one of my little nieces or nephew one and my
brother-in-law went to talk to him about it and
they got into it. And—and my sister, she was out
there at the time. She was in the car with the
kids and after all John's family come out and all
of them was on my brother-in-law, then my sister,
you know, she was gonna help her husband. And
when she got into it, John Simmons, he had a two
by four and he went—he started beating my sister
with a two by four and my other sister, she come
in—inside the house and tell me that Simmons had
killed my sister. And when I goes outside, I
seen—I see my sister laying in the s[t]reets and
... I had a gun in my hand and I tell him to stop
and he—when I tell him to stop, he—he raises that
two by four back at me like this (demonstrating)
and I was paranoid, you know. I was paranoid at
that time. He showed me that he would hit me by
him beating my sister with the two by four. And I
didn't have no other choice but to shoot him.
12
may not have a case of self-defense, do you understand that? Have
you discussed that with your lawyer?" Mangum responded
affirmatively, stating as follows: "we discussed, you know, we
went over all of the decision." The court then inquired whether
Mangum still desired to plead guilty. Mangum answered that he did.
The court inquired further:
Q. Do you understand that on this charge of premeditated
murder that the State would have to prove that on July
the 18th of 1980 that you did kill John Edgar Simmons and
that it was—that you had no lawful right to kill him and
that it was with malice aforethought, that he was a human
being and that it was not in necessary self-defense. Do
you understand that?
A. Yes, sir.
Q. That the State would have to prove all of that. Do you
understand that?
A. Yes, sir.
It is abundantly clear that defense counsel was aware of
Mangum's version of the events and that Mangum's sisters were
present at the time of the shooting. We are hard pressed to
believe that, under the circumstances presented, i.e., the
favorable, negotiated plea and the potential consequences of
proceeding to trial on these three felony charges, any further
investigation by counsel would have revealed evidence that would
have changed his advice regarding the guilty plea. Assuming
arguendo that counsel did not sufficiently investigate the case and
that such conduct constituted deficient performance,13 Mangum has
13
Cf. Bryant v. Scott, 28 F.3d 1411, 1418 (5th Cir.1994)
(counsel's failure to interview alibi witnesses made known to
counsel prior to trial constituted deficient performance).
13
not shown a reasonable probability that, but for counsel's
allegedly erroneous advice, he would have insisted on going to
trial.
The record indicates that Mangum, who was not unfamiliar with
the Mississippi criminal justice system, understood his situation
and wanted to accept the bargain offered by the state. At the
beginning of the hearing, the state had represented that if
Mangum's pleas on all three counts were accepted by the court, it
would recommend a life sentence for murder, 30-year sentence (10
years suspended) for the rape, and a 15-year sentence (71/2 years
suspended) for the burglary, with the three sentences to be served
concurrently, but consecutive to the sentence previously imposed
for aggravated assault. The clear implication was that if Mangum
did not plead to all three counts, the state would not recommend
this bargain. As previously set forth, had Mangum not pleaded
guilty, he apparently could have been indicted and sentenced as an
habitual offender, which would have subjected him to the possible
sentence of life without parole solely for a rape conviction.
Miss.Code Ann. § 97-3-65. Indeed, under Mississippi law, the trial
court had the discretion to impose each of the sentences
consecutively. Miss.Code Ann. § 99-19-21. We also recognize that
these three offenses (murder, rape, and house burglary) were
separate crimes committed on different dates against separate
individuals and property.14 Moreover, Mangum does not contest his
14
The dwelling that Mangum burglarized was occupied at the
time of the offense.
14
guilt as to the rape or burglary convictions and does not contest
that he killed John Simmons, only that he committed the lesser
included offense of manslaughter rather than murder. If Mangum had
gone to trial and was convicted of the charged offenses, he could
have been sentenced such that "he would surely live out the rest of
his days in prison." Armstead, 37 F.3d at 210.
In light of these circumstances, we conclude that Mangum has
not shown that, but for counsel's alleged deficient performance, he
would have rejected the plea bargain and insisted on going to trial
for the charges of murder, rape, and burglary as an habitual
offender. See Armstead, 37 F.3d at 210 (overwhelming evidence
against petitioner and favorable bargain persuaded this Court that
petitioner would not have rejected plea bargain). We are satisfied
that Mangum has not shown the requisite appreciable prejudice or
that his guilty plea proceedings were "unreliable or fundamentally
unfair." Armstead, 37 F.3d at 207, 210 (citing Fretwell, supra ).
For the above stated reasons, the judgment of the district
court is AFFIRMED.
15