Armstead v. Scott

• Decision Date: 03 November 1994
• Docket Number: No. 92-1648,92-1648
• Parties: Willie D. ARMSTEAD, Petitioner-Appellant, v. Wayne SCOTT, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 202

37 F.3d 202

Willie D. ARMSTEAD, Petitioner-Appellant, v. Wayne SCOTT, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 92-1648.

United States Court of Appeals,

Fifth Circuit.

Nov. 3, 1994.

Rehearing Denied Nov. 28, 1994.

Marsha Rutenbar, court-appointed, McKinney, TX, for appellant.

Douglas Danzeiser, Stephani A. Stelmach, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for appellee.

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

Before KING, JOLLY and STEWART, Circuit Judges.

STEWART, Circuit Judge:

This is a habeas corpus action brought by a state court prisoner, Willie D. Armstead, alleging ineffective assistance of counsel in connection with his guilty plea to two counts of aggravated robbery in Texas state court. The district court denied relief, affording a presumption of correctness to the factual findings of the state court. While we find that the district court erred in affording a presumption of correctness because the state court did not actually make a factual finding with regard to one of Armstead's allegations, we nonetheless conclude that Armstead has not demonstrated he was prejudiced by his counsel's alleged error. We therefore affirm the district court's denial of relief.

Background

On January 27, 1988, a Dallas County, Texas, grand jury returned an indictment charging Armstead with the first-degree felony offense of aggravated robbery in Cause No. F88-77534-S. The indictment alleged a prior felony conviction for attempted capital murder on November 30, 1976, also in Dallas County, Texas, in Cause No. F74-9501-H, for enhancement of punishment pursuant to Sec. 12.42(c) of the Texas Penal Code. On January 29, 1988, the Dallas County grand jury returned a second indictment for a first-degree felony offense of aggravated robbery in Cause No. F88-77715-JS. That indictment also was enhanced by the prior conviction for attempted capital murder.

On March 11, 1988, pursuant to a plea agreement, Armstead pled guilty to the two charges. The trial court sentenced him to two concurrent 40-year terms of confinement and a $750 fine. The trial court further made an affirmative finding that Armstead had used or exhibited a deadly weapon, a firearm, during the commission of the offenses. Also on March 11, 1988, Armstead's wife Elaine pled guilty to one of the robberies, pursuant to a plea agreement. She was not sentenced until March 24, 1988. She received a sentence of fifteen years.

Armstead did not appeal his convictions, nor did he ever seek to withdraw his guilty plea or allege that his plea bargain had been breached. He filed an application for state habeas relief challenging the convictions, which the Texas Court of Criminal Appeals denied on October 18, 1989. On June 11, 1990, Armstead filed a federal petition for habeas corpus relief. The district court dismissed the petition with prejudice on July 24, 1992, and this appeal followed.

Armstead argues on appeal that his defense counsel was ineffective in the following respects:

(i) advising Armstead to waive his right to the examining trial on the date it was scheduled;

(ii) failing to investigate and contact witnesses;

(iii) telling Armstead that he did not wish to try the case because he did not want to blemish his record with a loss;

(iv) advising Armstead to perjure himself;

(v) failing to inform Armstead of his right to have a jury sentence him (vi) telling Armstead he would be found guilty of the robbery charges based upon his prior conviction for attempted murder;

(vii) asking Armstead's mother to persuade him to plead guilty; and

(viii) promising him that his wife, Elaine Armstead, would get probation if he pled guilty.

All eight of Armstead's allegations of ineffective assistance of counsel were raised previously by him in his state habeas petition. Armstead's showing in support of his state habeas petition included three affidavits concerning these contentions. The affiants were Armstead's wife, his mother, and another convict who happened to be appearing in court on the same day as Armstead and who allegedly overheard exchanges between Armstead and his counsel relating to the promise that Armstead's wife would get probation if Armstead pled guilty.

In response to Armstead's state habeas petition, the state court requested that Armstead's counsel, Alfredo Campos, Jr., submit an affidavit addressing the allegations of the state habeas petition, and the attorney did so. The Campos affidavit directly addressed seven of the eight allegations made by Armstead, but it did not address the "false promise" issue at all.

Specifically, Mr. Campos provided the following answers to defendant's allegations of ineffective assistance of counsel:

(i) he advised Armstead of his right to an examining trial, and Armstead agreed to waive the examining trial in exchange for the offense report;

(ii) he obtained the offense report, had an investigator available, and had information on the three witnesses for trial, all of which he reviewed with Armstead;

(iii) he did not tell Armstead that he feared "blemishing" his record with a loss;

(iv) he never recommended perjury;

(v) he advised Armstead of his right to jury sentencing;

(vi) Armstead misunderstood his statements regarding the prior conviction; he advised him only that, if the enhancement paragraph were found true, it would raise his minimum penalty for sentencing and that it would "weigh heavily on the punishment phase of the trial";

(vii) he did have a telephone conference with Armstead's mother, wherein he "brought her up to date on the status of the case."

The Court found the statements in counsel's affidavit to be "true, correct and dispositive of the allegations presented by [Armstead] relative to Mr. Campos." Based upon these adopted factual determinations, the state court concluded that counsel was not ineffective and that Armstead entered knowing and voluntary pleas.

When Armstead filed his federal habeas petition forwarding these same allegations, the magistrate judge reviewed Armstead's claims in light of the state court record and Armstead's burden under Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985), to show that (1) his attorney actually erred, and (2) he would not have pled guilty but for the error. The Findings, Conclusions and Recommendation of the United States Magistrate Judge provided as follows:

In [Campos'] affidavit [submitted in the state habeas proceeding, he] specifically denied each of [Armstead's] allegations of error on his part. Moreover, [Campos] also detailed each of the acts which he took on [Armstead's] behalf, including advising him of all the constitutional rights to which he was entitled, his efforts to investigate the case, and his attempts to insure that [Armstead's] guilty plea was knowing and voluntary.... The state court subsequently accepted those statements by [Campos] as true and adopted them as findings of fact in regard to the claim of ineffective assistance of counsel.... Those findings of fact as to the actions of [Campos] must be presumed to be correct, even though they were entered into as a consequence of a hearing by affidavit rather than an in-court evidentiary hearing. (Emphasis added.)

The magistrate judge concluded, and the district court agreed, that Armstead's habeas petition should be dismissed based upon the premise that the state court had implicitly found that none of Armstead's allegations were meritorious. ¹

Standard of Review

Under 28 U.S.C. Sec. 2254(d), a presumption of correctness must be accorded findings of fact made by a state habeas court if supported by the record. Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981); Loyd v. Smith, 899 F.2d 1416, 1425 (5th Cir.1990). Although an ineffective assistance claim is not purely a fact inquiry, but rather a mixed question of law and fact, "state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of Sec. 2254(d)." Loyd v. Smith, supra (citations omitted). However, findings not made in the context of a "full and fair hearing" or otherwise "not fairly supported by the record" as a whole are not entitled to the "presumption of correctness." 28 U.S.C. Sec. 2254(d)(2) & (8). The requirement that there be a hearing on the merits may be satisfied in some cases by affidavits--a so-called "paper hearing"--rather than by an in-court evidentiary hearing.

To prevail on an ineffective assistance of counsel claim, a petitioner must satisfy the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland test requires that a habeas petitioner prove not only that counsel's performance was deficient, but also that the deficient performance actually prejudiced the defense to such an extent that there is a reasonable probability that, but for the attorney's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068.

In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme Court applied the Strickland two-prong test to cases involving guilty pleas. Thus, in a guilty plea scenario, a petitioner must prove not only that his attorney actually erred, but also that he would not have pled guilty but for the error. Ibid.

With regard to the first 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.' " Hill, supra, 474 U.S. at 56, 106 S.Ct. at 369, quoting McMann v. Richardson, 397 U.S. 759, 771...