Johnson v. Puckett, 89-4615

• Decision Date: 07 May 1991
• Docket Number: No. 89-4615,89-4615
• Citation: 930 F.2d 445
• Parties: Rufus JOHNSON, Petitioner-Appellant, v. Steve PUCKETT, Superintendent of the Mississippi State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 445

930 F.2d 445

Rufus JOHNSON, Petitioner-Appellant, v. Steve PUCKETT, Superintendent of the Mississippi State Penitentiary, Respondent-Appellee.

No. 89-4615.

United States Court of Appeals Fifth Circuit.

May 7, 1991.

Rufus Johnson, pro se.

Jeffrey M. Rosamond, Asst. Atty. Gen., Mike Moore, Atty. Gen., Jackson, Miss., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before RUBIN, GARWOOD, and HIGGINBOTHAM, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Rufus Johnson (Johnson), a Mississippi prisoner, appeals the district court's dismissal of his habeas corpus petition under 28 U.S.C. Sec. 2254. In his challenged state court conviction and sentence, Johnson had pleaded guilty to burglary of an inhabited dwelling and was sentenced as an habitual criminal based on two prior convictions as alleged in the indictment. On this appeal, Johnson contends that the indictment was defective, that the state court improperly failed to inform him that he was not required to plead guilty to being an habitual criminal, that the district court erred below in denying him an evidentiary hearing on his Sec. 2254 claim that one of his prior convictions was unconstitutionally obtained, and that he was denied effective assistance of counsel in the state proceedings. We find no merit to Johnson's claims and accordingly affirm.

Facts and Proceedings Below

On November 10, 1983, Johnson was indicted on a charge of burglary in June 1983 of an inhabited dwelling. He pleaded guilty to the indictment and was sentenced as an habitual criminal under Miss.Code Ann. Sec. 99-19-81 to a fifteen-year term of imprisonment without parole or probation. ¹ Johnson was represented at trial by court-appointed counsel throughout those proceedings.

Johnson's indictment alleged the principal offense there charged as well as the fact that he was charged under Sec. 99-19-81 by reason of his two prior felony convictions, one a 1980 conviction for a 1980 burglary and the other a 1982 conviction for a 1982 receiving of stolen property, for each of which prior convictions Johnson received a three year sentence. Because there was inadequate room on the front side of the single-page indictment to include all of the pertinent information, the information relating to the prior convictions, and the fact that by reason of them Johnson was thereby charged as an habitual criminal under Sec. 99-19-81, appeared on the back side of the document. The grand jury foreman signed only the front side of the document. Also appearing on the front side, above the foreman's signature and "true bill" recitation, was the following inscription: "(INDICTMENT AGAINST DEFENDANT CONTINUED ON BACK)."

On December 15, 1983, Johnson pleaded guilty to the indictment. The transcript of December 15 proceedings reflects that before Johnson's plea was accepted, the court explained to Johnson, and ascertained that he understood, that he was not only charged with burglary of an inhabited dwelling but was also charged with being an habitual criminal under Sec. 99-19-81 by reason of having two prior felony convictions for each of which he had been sentenced to one year or more, and the entire indictment, including that portion relating to Sec. 99-19-81 which identified the prior convictions (by cause number, court, date and nature of offense, date of conviction and sentence imposed), was read in open court and Johnson was asked by the court whether he understood the charges that had just been read, and he answered that he did. Johnson was also advised that as an habitual criminal he could receive the maximum sentence for burglary of an inhabited dwelling, 15 years, and would be ineligible for parole or probation. Further, the court ascertained that Johnson had consulted with counsel and been advised "of the elements of the charges against him and the proof necessary for conviction both on the basic charge and also on the charges alleging he is an habitual criminal," and that Johnson was satisfied with his counsel, and desired to persist in his guilty plea. Only after these matters (and others respecting the voluntary and knowing nature of his plea) had been gone into was Johnson's plea accepted. Johnson then immediately "waive[d] presentence," and the state introduced evidence of the two prior convictions alleged in the indictment. Johnson's counsel stated he did not have any objections to the evidence of the prior convictions, and on inquiry by the court Johnson personally acknowledged the prior convictions and sentences alleged in the indictment the records of which were put in evidence. The court inquired if Johnson had anything further to say, and Johnson replied in the negative. Johnson was then sentenced to 15 years without probation or parole.

In his instant habeas petition, Johnson challenges his 1983 conviction and sentence on four grounds. He claims (1) that the 1983 indictment was fatally defective; (2) that the state court failed to inform him that he was not required to incriminate himself by pleading guilty to being an habitual criminal; (3) that his status as an habitual criminal was based on an unconstitutionally obtained prior conviction; and (4) that he was denied effective assistance of counsel in his 1983 state proceedings.

Discussion

I. Defective Indictment

We have consistently held "that the sufficiency of a state indictment is not a matter for federal habeas corpus relief unless it can be shown that the indictment is so defective that the convicting court had no jurisdiction." Liner v. Phelps, 731 F.2d 1201, 1203 (5th Cir.1984) (quoting Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir.1980)). "In a federal court, habeas corpus can be invoked with respect to indictments only where they are 'so fatally defective' that under no circumstances could a valid conviction result from facts provable under the indictment." Johnson v. Estelle, 704 F.2d 232, 236 (5th Cir.1983) (quoting Johnson v. Beto, 383 F.2d 197, 198 (5th Cir.1967), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 237 (1984).

The sufficiency of a state indictment, for purposes of federal habeas review, is necessarily framed by state law. In Mississippi,

"[i]n cases involving enhanced punishment for subsequent offenses under state statutes, ... (1) [t]he indictment must include both the principal charge and a charge of previous convictions. The indictment must allege with particularity the nature or description of the offense constituting the previous felonies, the state or federal jurisdiction of previous conviction, and the date of judgment." Rule 6.04, Miss. Uniform Criminal Rules of Circuit Practice.

The sufficiency of a Mississippi indictment is controlled by Rule 2.05 of the Miss. Uniform Criminal Rules of Circuit Court Practice, Thames v. Mississippi, 454 So.2d 486, 487 (Miss.1984), which reads as follows:

"The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him. Formal or technical words are not necessary in an indictment, if the offense can be substantially described without them.

"An indictment shall also include the following:

"(1) The name of the accused;

"(2) The date on which the indictment was filed in each court "(3) A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;

"(4) The county and judicial district in which the indictment is brought;

"(5) The date and if applicable the time, on which the offense was alleged to be committed. Failure to state the correct date shall not render the indictment insufficient;

"(6) The signature of the foreman of the grand jury issuing it; and

"(7) The words 'against the peace and dignity of the state'."

Johnson claims that Rule 6.04(1) was violated because some information regarding his prior convictions was inscribed on the back side of the indictment and therefore was not included in the indictment. Johnson also claims that Rule 2.05(6) was violated because the jury foreman signed only the front side of the indictment and not the back side.

Johnson cites no case law suggesting that an indictment must be wholly contained on one side of the paper on which it is written, or if not, must be signed on both sides of the page. The signed front side of this indictment plainly indicated that the indictment continued on the back of the page. The indictment was not invalid. We agree with the district court's conclusion that Johnson's claims as to the insufficiency of the indictment afford no basis for relief under Sec. 2254.

II. Failure to Inform of Consequences of Guilty Plea

Johnson claims that the state trial court failed to inform him that he was not required to incriminate himself by pleading guilty to being an habitual criminal. Johnson did not raise this claim below, and we accordingly decline to consider it. ²

We have repeatedly held that a contention not raised by a habeas petitioner in the district court cannot be considered for the first time on appeal from that court's denial of habeas relief. Smith v. United States Parole Comm'n, 752 F.2d 1056, 1059 (5th Cir.1985); Bass v. Estelle, 696 F.2d 1154, 1160 (5th Cir.), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983); Baker v. Estelle, 711 F.2d 44, 46 (5th Cir.1983), cert. denied, 464 U.S. 1048, 104 S.Ct. 724, 79 L.Ed.2d 185 (1984). We discern no circumstances of Johnson's appeal sufficient to overcome this procedural bar.

III. Unconstitutionally Obtained Prior Conviction

Johnson claims that the district court erred in refusing to grant him an evidentiary hearing on the alleged unconstitutionality of his prior conviction of receiving stolen property. The district court held that Johnson was not entitled to such a hearing because he had waived...