Buckley v. Butler

• Decision Date: 27 August 1987
• Docket Number: No. 87-3151,87-3151
• Parties: Clarence BUCKLEY, Petitioner-Appellant, v. Robert H. BUTLER, Sr., Warden, Louisiana State Penitentiary, et al., Respondents-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 895

825 F.2d 895

Clarence BUCKLEY, Petitioner-Appellant, v. Robert H. BUTLER, Sr., Warden, Louisiana State Penitentiary et al., Respondents-Appellees.

No. 87-3151

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Aug. 27, 1987.

John T. Mulvehill, Federal Public Defender, Robert F. Barnard, Asst. Federal Public Defender, New Orleans, La., for petitioner-appellant.

Michael E. McMahon, Terry Boudreaux, Asst. Dist. Attys., New Orleans, La., for respondents-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, and GARWOOD and HILL, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Clarence Buckley ("Buckley") appeals the district court's dismissal of his petition for a writ of habeas corpus. Buckley was convicted in a Louisiana state court of armed robbery, and his term of imprisonment was enhanced under that state's multiple offender statute. Appellant claims that the state court did not warn him, before he admitted his prior conviction, of the effect of his admission. We affirm the denial of habeas relief.

I.

In the spring of 1980, appellant was charged in a three-count information with three offenses--two armed robbery charges and one attempted armed robbery charge--each committed in March 1980. One offense was severed and tried before a jury; on June 26, 1980, the jury convicted appellant of that one count of armed robbery. On July 7, 1980, appellant appeared for sentencing and fifteen years' imprisonment was imposed.

Two days later, on July 9, following the Louisiana procedure authorizing charging and proving prior criminal convictions in sentence enhancement proceedings formally separate from the related prosecution of the subsequent offense, LSA-R.S. 15:529.1D, the state filed a "multiple bill" information alleging that Buckley had been convicted of felony simple robbery in the same parish in September 1975. A multiple offender hearing was held that same day, during which appellant admitted the prior conviction both personally and through his attorney, the same counsel who had represented him in the June 26 trial and the July 7 sentencing. This proceeding was in the same court, and before the same judge, with the same prosecutor, as those of June 26 and July 7. Pursuant to the enhancement statute, the court vacated appellant's fifteen-year sentence and imposed a thirty-three-year sentence, the minimum enhanced sentence--one-third of the maximum--allowable under the statute, with credit for time served. That same day, just following the multiple bill proceeding, in the same court, before the same judge, and with the same prosecuting attorney representing the state, appellant, represented by the same counsel, also pleaded guilty to simple robbery and attempted simple robbery as lesser included offenses under the two counts of the information still pending against him, and was sentenced to serve a seven-year term on one count and a three-and-one-half-year term on the remaining count, with these sentences to run concurrently with the thirty-three-year term of imprisonment already imposed.

The transcript of the July 9 proceedings demonstrates that appellant was advised of the rights he waived by pleading guilty and of the effect of his guilty pleas to the lesser simple robbery charges, meeting the requirement of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969), that the record affirmatively show a guilty plea was intelligent and voluntary. The transcript also shows, however, that this occurred only on the subject of the guilty pleas respecting the two other counts and only after, albeit just after, appellant had admitted his prior conviction. The admission in question took place as follows (emphasis added):

"BY THE COURT: Mr. Fanning [the prosecutor], do you want to file your Multiple Bill now?

"BY MR. FANNING: Yes, Your Honor, ... Clarence Buckley case.

"BY THE COURT: Let that be filed. You've received a copy of it Mr. Gaudin [trial attorney for appellant]?

"BY MR. GAUDIN: Yes, Your Honor.

"BY THE COURT: Are you ready to go forward with this now ?

"BY MR. GAUDIN: Yes, sir.

"BY THE COURT: What's your pleasure in this, Mr. Fanning? What would ya'll like to do ?

"BY MR. FANNING: I believe Mr. Gaudin stated that his client will admit that he is the same person.

"BY MR. GAUDIN: Your Honor, I have discussed this matter at length with my client, Mr. Buckley. I have shown him originally the bill of information wherein he was represented by counsel and this bill of information was signed on the 23rd day of April, 1975. This is a copy of his records [sic ] in the clerk's file. The District Attorney [referred to in the 1975 records] has signed this bill and this was dated May 13th, 1974 [sic ]. Now, I've shown this to Mr. Buckley. He remembered this and this is a true and correct bill that you entered a plea of guilty to ?

"BY MR. BUCKLEY: Yes.

"BY MR. GAUDIN: [Describing the contents of the transcript of the earlier proceeding in some detail, noting Buckley had signed a form indicating he waived his constitutional rights and pleaded guilty.]

"Now he has been apprised of this and I read it to him and he agrees that this is a true copy of the transcript and the proceedings that took place in that Courtroom on that particular date. Is that correct, Mr. Buckley?

"BY MR. BUCKLEY: Yes, sir.

"BY THE COURT: Let me see everything.

"BY MR. FANNING: There's also a boykin [sic ] form.

"BY THE COURT: Let's mark all of these for identification.

"BY MR. FANNING: State's Exhibit S-1 would be the bill of information. State's Exhibit S-2 the transcript and State's Exhibit S-3, the plea of guilty form.

"BY THE COURT: All right. Let me look at this gentlemen. Is there anything else that the State wants to--

"BY MR. GAUDIN: There are two other charges.

"BY THE COURT: We're going to come to that, Mr. Gaudin. Let's get through with this and then we'll talk about the other charges.... Let me look at this, gentlemen. Just have a seat for a couple of moments.

"Anything else from the State?

"BY MR. FANNING: Nothing.

"BY THE COURT: Anything else from the Defense?

"BY MR. GAUDIN: No, sir.

"BY THE COURT: Is there anything your client would like to say?

"BY MR. GAUDIN: Nothing at all. We're willing to let the two records stand as is and so presented with the Court and filed with the Court.

"BY THE COURT: This Court does find that the defendant is a Multiple Bill Offender and more particularly a second felony offender in the eyes of the law.

"Therefore, the original sentence imposed by this Court is vacated and set aside. Now, is the defendant ready for sentencing?

"BY MR. GAUDIN: Yes, Your Honor.

"BY THE COURT: It's the sentence of this Court that the defendant be committed to Louisiana State Department of Corrections at hard labor for a term of thirty-three (33) years, with credit for time served from March 14th, 1980 until the present date, and the Court Costs are waived due to the technical indigency of the defendant.... I've given my reasons for the imposition of the original fifteen (15) years and those reasons I feel are sufficient to justify a sentence of fifteen (15) years, and very little more. But this Court has no alternative but to follow the law as it is written and to impose this sentence.

"BY MR. GAUDIN: The defendant at bar, Mr. Buckley, understands the Court's position ....

"BY THE COURT: I have no alternative but to give thirty-three (33) years which is one-third of the maximum term which becomes a minimum on a second conviction.

"Now, this concludes this with the exception, Mr. Buckley, you have a right to appeal in this case. You can take your case to a higher Court now for review to the Supreme Court. If you're desirous of an appeal you have fifteen days from today to let us know if you want an appeal. Do you understand that ?

"BY MR. BUCKLEY: Yes.

"BY THE COURT: Okay. You can do it in writing or however you want to do it, through your attorney, but you have to let us know within fifteen days of today.

"Now, we still have counts 1 and 3 open. Do you want to talk to your client now?

"BY MR. GAUDIN: I've already discussed that matter with him and also with the District Attorney. I would suggest, with the permission of the Court, that we proceed accordingly. Mr. Buckley understands what we're doing.

"BY THE COURT: He wants to plead guilty to these to simple robbery?

"BY MR. GAUDIN: Yes, simple robbery."

Thereafter, the court proceeded to fully advise Buckley concerning and to accept his guilty pleas to the lesser included simple robbery charges under the other two counts of the information.

In 1983, appellant, proceeding pro se, filed his first application for federal habeas attacking his 1980 conviction of armed robbery and the enhancement of his sentence for that offense, the latter claim being based on the assertion the 1975 simple robbery conviction was not a proper basis for enhancement because it was based on a guilty plea that "was not done in accordance with the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969)," and because "[t]he State failed to sustain its burden of proof ... that the defendant (your petitioner herein) had been properly advised of his constitutional rights as set out in Boykin. Specifically, the State did not show that petitioner had been properly advised of," or had knowingly and intelligently waived, his constitutional rights against self-incrimination, to confrontation of witnesses, and to trial by jury. The district court dismissed that petition with prejudice, finding as follows on the claim respecting use of the 1975 conviction for enhancement:

"In his last ground petitioner submits that his adjudication as a multiple offender violated the United States Constitution for the reason that the State failed to prove that he was properly advised of his rights to trial, to confrontation of witness[es], to be free of...