Barentine v. US

• Decision Date: 09 January 1990
• Docket Number: No. C-C-89-105-P,(C-CR-85-62).,C-C-89-105-P
• Citation: 728 F. Supp. 1241
• Court: U.S. District Court — Western District of North Carolina
• Parties: Lewis Greg BARENTINE, Petitioner, v. UNITED STATES of America, Respondent.

728 F. Supp. 1241

Lewis Greg BARENTINE, Petitioner, v. UNITED STATES of America, Respondent.

Nos. C-C-89-105-P, (C-CR-85-62).

United States District Court, W.D. North Carolina, Charlotte Division.

January 9, 1990.

Michael S. Scofield, Charlotte, N.C., for petitioner.

Max Cogburn, Asst. U.S. Atty., Asheville, N.C., for respondent.

ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER is before the Court on a Memorandum and Recommendation (hereinafter "M & R") filed by United States Magistrate Paul B. Taylor on December 7, 1989. The M & R is in response to Petitioner's Motion, filed on February 27, 1989, to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner alleged that his attorney, Mr. Kenneth Gordon, failed to inform him of a favorable five year plea offer because of a conflict of interest — namely that Petitioner's attorney was maintaining a sexual relationship with Petitioner's fiancee (Ms. Leslie Ann Dowling) during the representation of Petitioner. An evidentiary hearing was held by the Magistrate on October 3, 1989. Petitioner filed a timely objection on December 15, 1989 to the Magistrate's recommendation denying the Motion to Vacate, Set Aside, or Correct his sentence.

Pursuant to 28 U.S.C. § 636, the Court is required to make a de novo determination of those portions of the M & R to which objection is made. Petitioner's main objection is that the Magistrate was incorrect in making the factual determination that Mr. Gordon did in fact make Petitioner aware of the five-year plea offer and that Petitioner rejected the offer. Moreover, Petitioner objects to the M & R's conclusion that Petitioner was not deprived of his constitutional right of effective assistance of counsel, and that Mr. Gordon's adulterous affair with Ms. Dowling cannot be held responsible for Petitioner losing a favorable plea bargain opportunity. In making its de novo review of the objections, the Court has reviewed the entire record in this matter including the case file, the Petition and the memorandum of law, the M & R, Petitioner's Objections, and the lengthy transcript from the evidentiary hearing of October 3, 1989. In addition, the Court has studied the applicable law.

The Court's review of the facts and law in this matter leads it to conclude that the determination of this case depends on a single factual determination — whether Mr. Gordon informed Petitioner of a five-year plea offer.

The burden of proof on a petitioner in a habeas case is to show by convincing evidence that he suffered a substantial constitutional deprivation at his initial trial. See Jarrett v. Headley, 802 F.2d 34 (2d Cir. 1986); Clayton v. Haynes, 517 F.2d 577 (4th Cir.1975). Where a petitioner contends that he was deprived of effective assistance of counsel, he must meet a two prong test. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). First, the petitioner must show that counsel's performance was deficient. Second, the petitioner must show that the deficient performance prejudiced the defense. Id.; see also Roach v. Martin, 757 F.2d 1463, 1476 (4th Cir.), cert. denied, 474 U.S. 865, 106 S.Ct. 185, 88 L.Ed.2d 154 (1985).

According to Petitioner and the witnesses who testified on his behalf at the hearing, Mr. Gordon intentionally failed to inform Petitioner of a favorable five-year plea offer. Petitioner believes that Mr. Gordon's sexual relationship with Ms. Dowling motivated Mr. Gordon to withhold the plea offer information in hopes that Petitioner would go to trial, be convicted and receive a substantial sentence. In fact, the scenario occurred and Petitioner received a 35-year sentence.

Case law is clear that if Mr. Gordon withheld the plea offer information that Petitioner would have been unconstitutionally deprived of effective assistance of counsel. See M & R at 18. However, after weighing the testimony of Petitioner and his witnesses against the testimony of Mr. Gordon and Assistant United States Attorney Max O. Cogburn, Jr., the Magistrate determined that it was more likely than not that Mr. Gordon had informed Petitioner of the plea offer and that Petitioner had rejected the offer. Therefore, under the first prong of Strickland — deficient performance of counsel — Petitioner failed to show ineffective assistance of counsel.

The Court agrees with the Magistrate's Findings of Fact. Although Petitioner came forward with some evidence, the Court does not find that the testimony of Petitioner and his interested witnesses was convincing evidence. The Court concurs with the Magistrate that Mr. Gordon had over 50 conversations about a plea offer with the Assistant United States Attorney. It is simply not believable that if Mr. Gordon's intent was to subject Petitioner to a lengthy sentence that he would have continued negotiating throughout the pendency of the trial for an acceptable plea. Moreover, the trial transcript indicates Mr. Gordon made an excellent argument during the trial to have plea negotiations reopened when new evidence was discovered — conduct inconsistent with Petitioner's allegation that Mr. Gordon was attempting to bring the case for trial. Finally, Petitioner does not attack the performance of Mr. Gordon during the trial. Accordingly, Mr. Cogburn testified at the October 3, 1989 evidentiary hearing and the trial transcript confirms that Mr. Gordon did an excellent job of representing Petitioner at the trial. Therefore, the Court finds the assertion meritless that Mr. Gordon was attempting to assist the Government in securing Petitioner's conviction and a lengthy sentence.

Additionally, the Court believes Petitioner's own conduct in making these particular allegations at such a late hour casts doubt on the credibility of Petitioner's testimony. When this Court re-opened plea negotiations, Petitioner did not state that he believed his attorney was being less than forthright in the plea bargaining process. Petitioner attributes his failure to make such a statement to his inexperience with the legal system. However, Petitioner also testified that he did not trust Mr. Gordon during this entire time. Therefore, Petitioner also testified that during the trial that he frequently consulted with his co-defendants and "jail house" lawyers. Despite these efforts, Petitioner failed to notify the Court that he was being "set-up" by Mr. Gordon. Moreover, the Court has read the well-reasoned memorandum of law prepared by Petitioner and believes that Petitioner's claim that he was naive is without merit. The Court believes Petitioner would have notified the Court during the trial had he been unsatisfied with Mr. Gordon's representation.

Petitioner also testified that he became aware that Mr. Gordon withheld the plea offer shortly after being sentenced. However, Petitioner failed to raise this issue during his appeal despite being represented by new counsel. Furthermore, Petitioner did not argue that his sentence was illegal based on Mr. Gordon's failure to bring the plea offer to his attention when he filed his Rule 35 Motion.

In short, the Court agrees with the Magistrate that despite the despicable conduct of Mr. Gordon, Petitioner received adequate legal representation. Although Mr. Gordon readily admits to an adulterous affair with Ms. Dowling, the Court believes that Mr. Gordon presented the five-year plea agreement to Petitioner and that it was rejected. Only after being faced with an unsuspected thirty-five year sentence did Petitioner object to Mr. Gordon's conduct.

The Magistrate also recommended that the Court bar Mr. Gordon from future appearances before this Court for his unethical behavior. The Court considers Mr. Gordon's conduct to be inexcusable and a stain on the entire legal profession. No attorney should sacrifice his integrity and the reputation of the bar for such shallow gratification. Therefore, the Court adopts the Magistrate's recommendation and will order Mr. Gordon to never appear before this Court again. Moreover, the Court will forward a copy of this Order and the M & R to the Bar Counsel for the State of Georgia. The Court encourages the Bar Association to conduct an investigation of Mr. Gordon's sexual affair with a client's fiancee.

NOW, THEREFORE, IT IS ORDERED that Petitioner's Motion to Vacate, Set Aside, or Correct his sentence under 28 U.S.C. § 2255 be, and hereby is, DENIED. The M & R is AFFIRMED and ADOPTED in its entirety. This action is hereby DISMISSED with prejudice.

IT IS FURTHER ORDERED that Mr. Kenneth Gordon be BARRED from making any future appearances before this Court.

MEMORANDUM AND RECOMMENDATION

PAUL B. TAYLOR, United States Magistrate.

THIS MATTER is before the undersigned Magistrate on reference from the District Court pursuant to 28 U.S.C. § 636(b)(1)(B) to consider a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 filed by Petitioner, Lewis Greg Barentine. In support of this motion, Petitioner alleges that he was denied effective assistance of counsel when his attorney failed to inform him of a favorable plea agreement offer by the government which would have limited his exposure to a five year term of imprisonment. Petitioner further alleges that his attorney's failure to inform him of the favorable plea offer was the result of a conflict of interest caused by his attorney developing and maintaining, throughout his representation of Petitioner in this case, a sexual relationship with Petitioner's fiancée, Ms. Leslie Ann Dowling.

After a jury trial during the October 15, 1985 term of court, Petitioner was convicted on conspiracy, possession, and distribution charges with regard to more than one thousand pounds of marijuana and more than two million methaqualone tablets. Subsequent to this conviction, Petitioner was sentenced to thirty-five years imprisonment and a two year special parole term. On direct appeal, the Fourth Circuit found no error and affirmed Petitioner's...