Ashe v. Styles

• Decision Date: 04 October 1995
• Docket Number: No. 95-6257,95-6257
• Citation: 67 F.3d 46
• Parties: Lloyd C. ASHE, Petitioner-Appellant, v. Phillip STYLES, Superintendent; Attorney General of North Carolina, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 46

67 F.3d 46

Lloyd C. ASHE, Petitioner-Appellant, v. Phillip STYLES, Superintendent; Attorney General of North

Carolina, Respondents-Appellees.

No. 95-6257.

United States Court of Appeals, Fourth Circuit.

Argued July 10, 1995.

Decided Oct. 4, 1995.

ARGUED: James Lee Blomeley, Jr., Collins, Blomeley & Woody, Murphy, NC, for Appellant. Clarence Joe DelForge, III, Assistant Attorney General, North Carolina Department of Justice, Raleigh, NC, for Appellees. ON BRIEF: Michael F. Easley, Attorney General of North Carolina, North Carolina Department of Justice, Raleigh, NC, for Appellees.

Before ERVIN, Chief Judge, MURNAGHAN, Circuit Judge, and PHILLIPS, Senior Circuit Judge.

Affirmed by published opinion. Chief Judge ERVIN wrote the opinion, in which Judge MURNAGHAN and Senior Judge PHILLIPS joined.

OPINION

ERVIN, Chief Judge:

Petitioner-appellant Lloyd Ashe, a North Carolina inmate who pled guilty to second-degree murder, seeks a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. Ashe argues that his due process rights were violated because he did not receive the benefit of his plea bargain with the State of North Carolina. Last year, we concluded that Ashe's claim was procedurally defaulted. See Ashe v. Styles, 39 F.3d 80 (4th Cir.1994). At that time, we remanded the case to the district court for consideration of whether Ashe could demonstrate the cause and prejudice necessary to overcome the bar imposed by his default. For the reasons explained below, after examining more thoroughly the substance of Ashe's claim, we conclude that it lacks merit and affirm the district court's denial of the writ on that basis.

I.

The facts underlying this case are set forth fully in our previous opinion. See Ashe, 39 F.3d at 82-85. Here, we repeat the information most pertinent to our holding below. On March 14, 1983, after negotiating with the district attorney, Ashe pled guilty to second-degree murder for the August 20, 1974 killing of Clinton Odom. The "Transcript of Plea" form that he signed stated that, in return for his guilty plea: "The term of imprisonment shall be no more than 50 years, and the defendant shall be sentenced as if the offense took place after the passage of the Fair Sentencing Act."

By its terms, that Act applies to felonies committed between July 1, 1981, and October 1, 1994. See N.C. GEN. STAT. Sec. 15A-1340.1(a) (1988) (repealed 1993); N.C. GEN. STAT. Sec. 15A-1340.10 (Supp.1994). As we described in our initial opinion,

Prior to the enactment of the Fair Sentencing Act, North Carolina sentencing was "indeterminate," meaning that judges imposed sentences that included a maximum and minimum time of imprisonment, creating a floor and ceiling. The general approach taken under the Fair Sentencing Act, however, was to establish presumptive sentences for various classes of crimes and to allow for upward or downward departures based on written findings by the sentencing court of aggravating or mitigating circumstances. Thus, while punishment for second degree murder prior to the Fair Sentencing Act ranged from two years to life imprisonment, the Fair Sentencing Act imposed a presumptive sentence of fifteen years imprisonment with a maximum term of life or fifty years.

Ashe, 39 F.3d at 82.

Perhaps most importantly, Ashe's chances for parole under the two systems differed radically. Under the previous scheme, an inmate was eligible for parole only after serving the lesser of the minimum sentence imposed or one-fifth of the maximum possible sentence. On the other hand, because his crime was committed before the Fair Sentencing Act's effective date, Ashe would have been eligible for parole immediately had he been given no minimum sentence pursuant the Act's directive. See N.C. GEN. STAT. Sec. 15A-1351(b) (1988) (superseded); id. Sec. 15A-1371(a) (1988) (superseded). Under the sentence he received, then, Ashe was eligible for parole only after twenty years (defined by statute as one-fifth of a life sentence), rather than immediately. Id.

During the hearing on the plea agreement, the sentencing judge summarized the terms of the agreement as follows:

I don't know what--the prearrangement in this case is very similar to the previous one; that the imprisonment shall be no more than fifty years, and sentenced as if the presumptive sentencing law--or the fair sentencing law was in effect. But Mr. Lindsay is not the guarantor of what the sentence will be within the framework of that negotiation. You understand that?

A: Yes sir.

Later, during the same hearing, the judge made the following comments:

The prosecutor and your lawyer have informed the Court that these are the terms and conditions of your plea. When I say these, these that follow. The term of imprisonment shall be no more than fifty years. You shall be sentenced as if the offense took place after the passage of the fair sentencing act.

But that's as to maximum sentence. Your sentence will still have to be set by me. And I'll take into account parole opportunities one had under the law as it was in 1974, whenever this crime occurred; and also any other cooperation he gives.

Ashe, 39 F.3d at 82 (citations omitted). When the judge asked Ashe whether this "was his full plea arrangement" and whether he "personally accept[ed] this arrangement," Ashe responded "Yes sir." Id. The judge then sentenced Ashe to imprisonment for an indeterminate term of not less than 30 nor more than 40 years.

At the same hearing, the judge also sentenced two other persons implicated in Odom's murder. Like Ashe, defendant Carl Hickey received an indeterminate sentence, in his case not less than 25 nor more than 35 years. In contrast, Ted Killian, who had entered a plea arrangement "almost identical" to that of Ashe, id. at 83, and who had "confessed and changed his life significantly since the time of the 1974 murder, received a flat sentence of 20 years." Id. at 82. "[T]he judge noted as he sentenced [Killian] that he was 'taking into consideration I was to try to sentence you as if this were a fair sentencing case, taking into consideration aggravating and mitigating factors and presumptive sentence of fifteen years.' " Id. (quoting Joint Appendix at 104). Neither Ashe nor his lawyer objected to the discrepancy between his sentence and that of Killian, nor did Ashe indicate that the judge had departed in any way from his plea agreement with the State.

Ashe did not appeal his conviction, but he ultimately filed four motions for appropriate relief in North Carolina Superior Court. The first, filed pro se, was never adjudicated, while the second and third, also pro se, were considered and denied. The first two petitions did not address any potential discrepancy between Ashe's plea agreement and his sentence. The third motion "addressed no issue other than that the terms of his plea bargain were not carried out and thus that his plea was not voluntary." Id. at 83.

After his third state court motion was denied on the merits, Ashe filed his first habeas petition in federal district court on April 13, 1992. A magistrate judge dismissed the petition on grounds of nonexhaustion, characterizing for the first time Ashe's claim as one arising under the Due Process Clause. Ashe then filed his fourth and final motion for appropriate relief in North Carolina Superior Court on July 9, 1992. Again, he challenged the validity of his sentence and the State's failure to comply with the plea agreement in which it had entered. The same Superior Court judge who had sentenced Ashe originally appointed counsel and conducted an evidentiary hearing. At the hearing, the judge stated:

I know that [Ashe] believes that he was given a harsher sentence than the man that committed the crime. I justified that at the time as best I could for his benefit. I attempted and I truly wished that the District Attorney had not chosen to enter into an agreement--plea arrangement as is reflected here in this record.

I tried to treat it as some expression of the kind of sentence that was perfectly obvious that he couldn't be sentenced under the Fair Sentencing Act. I knew it was not in effect at the time and he reasonably got a minimum and a maximum term simply because that was what was required.

If I had given him a flat term at that time, he would have been immediately eligible for parole. No one would do that. You're not eligible for parole under the Fair Sentencing Act.

What I did was give him less than what he bargained for. The term of imprisonment shall be no more than 50 years; and it goes on to constitute the defendant's sentence as if the crime took place after the Fair Sentencing Act.

He did not receive a sentence greater than he could have received under the Fair Sentencing Act.

My conclusion, after reading and thinking about this a great deal, is that I am going to deny his motion for appropriate relief and let it wind its way back wherever it goes.

On July 30, 1993, the court entered an order denying Ashe's motion, finding that it lacked merit. Specifically, the order stated:

BASED UPON THE FOREGOING FINDINGS OF FACT, the Court concludes that the sentence imposed was authorized at the time imposed, that it did not exceed the maximum authorized by law nor the maximum agreed upon in the plea agreement, was legally imposed and otherwise valid as a matter of law, and further that the Motion for Appropriate Relief should be DENIED.

Additionally, the court found that "the defendant's motion is barred pursuant to N.C.G.S. 15A-1419 as a motion that has been previously determined or as a motion in which the defendant had an opportunity to raise the same issues which are raised in the present Motion for Appropriate Relief." The North Carolina Court of Appeals denied Ashe's petition for certiorari on November 4, 1993.

Ashe then filed the present Sec. 2254 petition in federal district court. Based on the recommendation of the same magistrate judge that had handled the case initially, the...