Childress v. Johnson

• Decision Date: 10 January 1997
• Docket Number: No. 95-20865,95-20865
• Citation: 103 F.3d 1221
• Parties: Joe David CHILDRESS, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1221

103 F.3d 1221

Joe David CHILDRESS, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 95-20865.

United States Court of Appeals Fifth Circuit.

Jan. 10, 1997.

Jani J. Maselli, Inmate Legal Services, Huntsville, TX, for Petitioner-Appellant.

Jodi L. Brown, Office of the Attorney General for the State of Texas, Austin, TX, for Respondent-Appellee.

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

Before HIGGINBOTHAM, DUHE and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Joe David Childress appeals the district court's denial of his petition for a writ of habeas corpus. Childress is serving a term of twenty-five years in Texas state prison for leaving the scene of an accident. He challenges the severity of his sentence, arguing that his prison term was unconstitutionally enhanced based on two burglary convictions secured in the late 1940s in violation of his Sixth Amendment right to counsel. These convictions preceded by many years the Supreme Court's recognition that defendants in state felony cases have the federal constitutional right to the assistance of counsel at all critical stages of the prosecution.

Childress does not contend that he was entirely without an attorney during his 1946 and 1948 plea hearings, nor that counsel's performance was ineffective within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He claims instead that he received no meaningful assistance at all from his court-appointed lawyer, and thus was constructively denied his Sixth Amendment right to counsel. See United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Consequently, Childress maintains that the use of these prior convictions to enhance his current sentence was unconstitutional.

BACKGROUND

Childress was arrested in February 1986 after the pick-up truck he was driving struck and killed a pedestrian, Guiditta Mafrica Serrano. Childress was convicted of failure to stop and render aid and was sentenced to twenty-five years' imprisonment. ¹

At the time of the accident and of sentencing, failure to stop and render aid was an offense under article 6701d of the Texas Revised Civil Statutes, which provided for a maximum prison term of five years. ² However, under Section 12.41(1) of the Texas Penal Code, the offense was classified as a third-degree felony and was therefore subject to sentence enhancement based on prior felony convictions. See TEX.PENAL CODE ANN. §§ 12.41(1), 12.42 (Vernon 1974 & Supp.1994). See also Platter v. State, 600 S.W.2d 803, 805 (Tex.Crim.App.1980) (explaining that under Texas Penal Code § 12.41(1), failure to remain at the scene of a motor vehicle accident is deemed a third-degree felony and thus is subject to sentence enhancement under § 12.42). Under Section 12.42(d), a defendant's third felony conviction is punishable by a minimum prison term of twenty-five years.

The indictment in this case alleged that Childress had been convicted of two previous felony burglary offenses in Harris County, Texas, in 1946 and 1948. Childress pleaded "not true" to these allegations and moved to quash the enhancement paragraphs. He did not dispute that he had been At his sentencing hearing on January 3, 1992, Childress testified that he had agreed to plead guilty in 1946 and again in 1948 as the result of uncounseled plea negotiations with the prosecutor in each case. Childress, who was an indigent defendant, conceded that a court-appointed lawyer was assigned to him at the 1946 and 1948 plea hearings. However, Childress also testified--and the state court accepted as true--that counsel's sole duty was to execute a waiver of appellant's right to jury trial. Counsel never investigated the facts, never discussed the applicable law with Childress, and never advised him of the rights he would surrender by pleading guilty. Childress claims that as a consequence of his lack of legal representation, he was unaware of his rights to remain silent and to confront his accusers. Indeed, he stated that at the time, he had no idea why a lawyer was appointed to stand with him in court during the jury waiver and plea proceedings.

convicted, on pleas of guilty, of the two alleged prior offenses. Rather, he claimed that these convictions violated his right to the assistance of defense counsel, and that consequently their use for enhancement purposes was unconstitutional. ³

Childress's description of his plea hearings was corroborated in general terms by a witness, attorney John Cutler, who began practicing criminal defense law in Harris County in 1947. Cutler explained that before a non-capital felony defendant was permitted to plead guilty, state law required the appointment of counsel for the purpose of waiving the defendant's right to jury trial. See Act of April 9, 1931, 42nd Leg., ch. 43, § 1, 1931 Tex.Gen.Laws 65 (current version at TEX.CRIM.PROC.CODE ANN. art. 1.13 (Vernon 1977 & Supp.1996)). Beyond that, Cutler testified, assigned counsel would stand by in case his services were required by the court.

According to Cutler's uncontroverted testimony, counsel typically was assigned "a minute or two" before the plea was taken. ⁴ The lawyer assigned to the defendant thus had little, if any, opportunity to perform the investigative, counseling, and advocacy functions typically required and expected of defense counsel. Nonetheless, counsel usually had time to confer with the defendant in The trial court credited Childress's and Cutler's testimony. The court was convinced that the lawyer "standing in" for Childress at the 1946 and 1948 plea hearings provided "little or no[ ]" assistance. The court found that the sole function of assigned counsel in these cases was to help Childress waive his right to jury trial. ⁵ The trial court, proceeding on the assumption that Childress sought to establish an ineffective assistance claim, found that Childress had received "very very minimal" assistance of counsel at the plea hearings. Nevertheless, the court found that Childress had not been denied the effective assistance of counsel within the meaning of Strickland. Although the trial judge expressed misgivings about his decision, he denied Childress's motion to quash, found the enhancement paragraphs "true," and imposed the minimum enhanced sentence of twenty-five years.

order to confirm that the defendant was prepared to plead guilty.

After exhausting his state remedies, Childress filed a petition for writ of habeas corpus in the district court. Childress raised three grounds for habeas relief. First, he asserted that he was not informed of the constitutional rights he would waive by pleading guilty, including his right to confront his accusers and his privilege against self-incrimination. Second, he claimed that his rights were violated when the prosecutor met with him to negotiate plea terms before defense counsel was assigned. Third, he claimed that "[c]ounsel was not appointed to fully represent or defend the accused at all critical stages of the proceedings."

The district court rejected all three claims. First, relying on the documentary record of the 1946 and 1948 cases, the court found that the trial court in each case admonished Childress of the consequences of a guilty plea. Second, the district court stated that under Trahan v. Estelle, 544 F.2d 1305 (5th Cir.1977), Childress had no right to counsel during plea negotiations. Finally, the district court found that Childress was represented by counsel at the plea hearings and failed to show that counsel was ineffective within the meaning of Strickland. The court did not address appellant's contention that his right to counsel was constructively denied.

A judge of this court granted a certificate of probable cause to appeal, vesting this court with jurisdiction. We focus primarily on Childress's third claim.

In considering a claim for federal habeas relief, we review the district court's factual findings for clear error and its legal conclusions de novo. Trest v. Whitley, 94 F.3d 1005, 1007 (5th Cir.1996). The ultimate question in this appeal--whether appellant's right to counsel was constructively denied--is a mixed question of law and fact, subject to de novo review. Cf. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070 (explaining that ineffectiveness of counsel is a mixed question of a law and fact).

DISCUSSION

On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996. Pub.L. No. 104-132, 110 Stat. 1214 (1996) (codified at 28 U.S.C. §§ 2241-2266). Title I of the Act significantly amended Chapter 153 of Title 28 of the United States Code, which authorizes the federal courts to grant the writ of habeas corpus. See generally Felker v. Turpin, --- U.S. ----, ----, 116 S.Ct. 2333, 2335, 135 L.Ed.2d 827 (1996). In particular, the Act altered the legal standard for granting habeas relief to state prisoners based upon violations of their federal constitutional rights. See 28 U.S.C. § 2254(d). We have held that this section took effect immediately and is fully applicable to appeals, such as this one, that were pending when the statute became law. Mata v. Johnson, 99 F.3d 1261 (5th Cir.1996); see also Drinkard v. Johnson, 97 F.3d 751 (5th Cir.1996).

The new Section 2254(d) provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in

State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts...