Cousin v. Blackburn, 78-3632

• Decision Date: 21 June 1979
• Docket Number: No. 78-3632,78-3632
• Parties: Edward COUSIN, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Pent., Respondent-Appellee. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 511

597 F.2d 511

Edward COUSIN, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Pent., Respondent-Appellee.

No. 78-3632

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

June 21, 1979.

Edward Cousin, Angola, La., pro se.

William J. Guste, Jr., Atty. Gen., Baton Rouge, La., Maurine A. Carroll, Asst. Dist. Atty., Harry F. Connick, Dist. Atty., New Orleans, La., for respondent-appellee.

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

Before COLEMAN, FAY and RUBIN, Circuit Judges.

PER CURIAM:

Appellant Cousin is serving a thirty year sentence for armed robbery. He alleges that the counsel appointed to represent him at his pretrial hearing was ineffective because he engaged in plea discussions with the state trial judge without Cousin's knowledge or consent. He also contends that his thirty year sentence resulted from the judge's vindictiveness because Cousin rejected the plea bargain offered him and because the judge thought he was lying when he testified at the hearing on his motion for a new trial. We find neither claim meritorious, and affirm the denial of the petition for habeas corpus.

Cousin alleges that the attorney who represented him prior to trial made a collusive agreement with the judge to coerce a guilty plea. The transcript of the pretrial hearing does not provide any suggestion that a prior agreement between judge and counsel had been made. Indeed, the judge's questions about the defendant's record and personal data indicate that he was not previously acquainted with the facts of the case. Even had counsel conducted plea negotiations without the knowledge of Cousin, the defendant would not have been prejudiced thereby because no bargains were struck and Cousin could have asked for further negotiations or simply rejected any proposed arrangement. See Buckelew v. United States, 5 Cir. 1978, 575 F.2d 515, 521. The only prejudice Cousin claims to have suffered as a result of counsel's conduct is the judge's allegedly vindictive sentencing. Our conclusion that no vindictiveness was demonstrated disposes of Cousin's first claim as well.

If, as Cousin alleges, the judge sentenced him to thirty years instead of the ten offered him for pleading guilty to the lesser charge of attempted armed robbery merely because he exercised his right to a jury trial, he would be entitled to relief. See, e. g., Baker v. United States, 5 Cir. 1969, 412 F.2d 1069, 1073, Cert. denied, 1970, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509. But the mere fact that Cousin received a longer sentence upon conviction than was mentioned at the hearing does not conclusively show vindictiveness. The offer of 10 years was made for a plea of guilty to attempted armed robbery. The offense of which Cousin was convicted, armed robbery, is far more serious. Moreover, the state may encourage guilty pleas by offering substantial benefits to a defendant, Corbitt v. New Jersey, 1978, --- U.S. ----, 99 S.Ct. 492, 58 L.Ed.2d 466, and may threaten an accused with more severe punishment should a negotiated plea be refused. See Bordenkircher v. Hayes, 1978, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604. The sentence imposed was well within the statutory limits for armed robbery. Having refused the plea bargain, Cousin cannot now expect to...