Dowell v. CM LENSING

• Decision Date: 19 October 1992
• Docket Number: Civ. A. No. 90-1230-A.
• Citation: Dowell v. CM LENSING, 805 F. Supp. 1335 (M.D. La. 1992)
• Parties: Leonard DOWELL v. C.M. LENSING, et al.
• Court: U.S. District Court — Middle District of Louisiana

805 F. Supp. 1335

Leonard DOWELL v. C.M. LENSING, et al.

Civ. A. No. 90-1230-A.

United States District Court, M.D. Louisiana.

October 19, 1992.

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COPYRIGHT MATERIAL OMITTED

Eulis Simien, Jr., Baton Rouge, La., for plaintiff.

Doug Moreau, Dist. Atty., William H. Cooper, III, Asst. Dist. Atty., Baton Rouge, for defendant.

RULING ON APPLICATION FOR WRIT OF HABEAS CORPUS

JOHN V. PARKER, Chief Judge.

This matter is before the court upon petitioner's application for habeas corpus. The report and recommendation of United States Magistrate Christine A. Noland, dated August 21, 1992, recommends that the application be granted in part and denied in part. Dowell moved for expedited consideration of the report, stating that the State would not be filing any objections to the report. Upon preliminary review, the court instructed the parties to file supplemental briefs addressing certain issues relating to the habitual offender adjudication. The court has now conducted a thorough review of the report and carefully considered the petition, the record, the tapes from the evidentiary hearing held below and the law applicable to this action.

On May 19, 1981, Dowell was convicted of simple burglary in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, Louisiana. He was adjudged an habitual offender based upon a 1977 guilty plea to felony theft in the Fifteenth Judicial District Court in Lafayette, Louisiana. Dowell asserts numerous arguments in support of his application for writ of habeas corpus under 28 U.S.C. § 2254 that have been thoroughly addressed by the magistrate judge in her report. However, the court finds that one of those arguments deserves further consideration.

Dowell contends that his 1977 guilty plea was not made knowingly and voluntarily because he was informed that he was entitled to a six-member jury and that at least five jurors would have to agree as to his guilt in order to convict. While that was a correct statement as to the law at the time of his plea, the Supreme Court held two years later that the concurrence of six jurors is constitutionally required to preserve the substance of the jury trial right and to assure the reliability of the verdict. Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979).

Dowell contends that Burch should be applied retroactively and that his plea was invalid because he was not properly informed as to his right to a trial by jury. At the evidentiary hearing held by the magistrate judge, Dowell testified that he had "no chance" if the State only had to convince five jurors but he would not have pled guilty had he known that the verdict had to be a unanimous verdict of six.

In her report, the magistrate judge discusses at length whether Burch should be applied retroactively to invalidate the 1977 plea. Essentially, the magistrate judge concludes that Burch should be applied retroactively based upon Thomas v. Blackburn, 623 F.2d 383 (5th Cir.1980) cert. denied, 450 U.S. 953, 101 S.Ct. 1413, 67 L.Ed.2d 380 (1981). In Thomas, the Fifth Circuit considered retroactive application of the Supreme Court's related decision in Ballew v. Georgia¹, which found the use of a five-person jury to be unconstitutional. The Fifth Circuit concluded that Ballew must be applied retroactively, not only to cases pending on direct appeal, but to convictions obtained by five-person juries that had become final prior to the Supreme Court's decision in Ballew.

Recognizing that Dowell was not actually convicted by five jurors, the magistrate judge additionally relies on a per curiam opinion, Smith v. Blackburn, 632 F.2d 1194 (5th Cir.1980), as authority for finding that Dowell did not validly waive his right to a jury trial when he pled guilty. In Smith, the petitioner elected to be tried by a five-person jury. Relying on Thomas and Ballew, the court reversed and remanded for the issuance of a writ of habeas corpus. However, the court observed that the petitioner did not intentionally waive a known right or privilege:

"In fact, petitioner was forced to choose between what were to become two unconstitutional choices: a five-member jury, held unconstitutional in Ballew, or a six-member jury where the concurrence of five members could support a conviction, also held unconstitutional in Burch v. Louisiana ..." Smith, at page 1195.

In this case, the magistrate judge concludes that Dowell did not intelligently waive his right because he was "forced to choose" between a jury where five members could convict and pleading guilty. If Dowell had been convicted by five jurors, the court might well agree with the magistrate judge. Instead, however, Dowell chose to plead guilty after being informed that he was entitled to a jury trial where five out of six jurors would have to agree in order to convict. The court finds that there is a fundamental difference between being convicted by five jurors as opposed to pleading guilty after being instructed in accordance with the current law that a verdict of five jurors would be sufficient to convict.

As a general rule, when a judgment of conviction is based upon a voluntary and intelligent guilty plea made upon advice of competent counsel, it is not subject to collateral attack. United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). There is no serious question that Dowell's decision to plead guilty in 1977 was voluntarily and intelligently made upon advice of competent counsel. "Absent misrepresentation or other impermissible conduct by state agents, a voluntary plea of guilty made in light of the then existing law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise." Broce, at page 764, quoting Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

In Brady, the petitioner pleaded guilty to kidnapping, a federal offense under then 18 U.S.C. § 1201(a). Nine years after the plea, the Supreme Court ruled in United States v. Jackson² that § 1201(a) was unconstitutional because it permitted imposition of the death sentence only upon a jury's recommendation, thereby making the risk of death the price of a jury trial. The court found that the death penalty provision imposed "an impermissible burden" upon the exercise of the Sixth Amendment right to demand a jury trial.

Brady argued that Jackson required the invalidation of every plea of guilty entered under § 1201(a), at least when the fear of death was shown to have been a factor in the plea. The Supreme Court rejected his argument, finding that the plea was voluntary and intelligent, i.e. with sufficient awareness of the relevant circumstances and likely consequences.

In examining all of the surrounding circumstances, including the strength of the government's case against him, the court considered the possibility that Brady decided to plead guilty rather than elect a jury trial which could have resulted in a death penalty. The court nevertheless found that even if the death penalty provision caused the plea that this did not necessarily prove that the plea was involuntary. There was nothing to indicate that Brady "was so gripped by fear of the death penalty or hope of leniency that he did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty." 397 U.S. at 750, 90 S.Ct. at 1470.

The court further found that the plea was intelligently made despite the fact that the death penalty provision was struck down nine years later. A plea is not vulnerable to attack merely because the defendant later discovers that he misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action. In short, the court found no reason to doubt that Brady's solemn admission of guilt was anything but truthful.

In Morse v. State of Texas, 691 F.2d 770 (5th Cir.1982), the petitioner challenged a mandatory life sentence for a 1974 conviction of aggravated robbery as enhanced by two prior felony convictions. Morse argued that his sentence was unconstitutionally enhanced by using a 1963 guilty-plea conviction which was motivated by his fear that a 1959 guilty-plea conviction would have otherwise been used to enhance the 1963 conviction. The 1959 conviction was obtained without assistance of counsel and was vacated after the 1963 plea under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Consequently, Morse argued that the 1963 plea was motivated by the unconstitutional 1959 conviction and the 1963 plea could not be a valid basis for enhancing his 1974 conviction.

The Fifth Circuit cited Brady as being dispositive of the issue. The court observed that the 1963 plea was made knowingly and voluntarily in light of the then applicable law, while represented and advised by competent counsel. Morse balanced the benefits to be gained by plea negotiations against the inherent dangers in going to trial. The court refused to upset this "balancing calculus" in the absence of exceptional circumstances indicating a substantial likelihood that Morse had been induced to falsely condemn himself. Thus, the court found that the 1963 guilty-plea conviction was valid and was properly used for enhancement purposes in 1974.

The argument made by Dowell is noticeably similar to those made in Brady and Morse. Even if the court accepts his testimony that he would not had pled guilty if he had known that the State had to convince all six jurors of his guilt, this relates to his assessment of the strength of the State's case and is just one factor he considered in the "balancing calculus." There are no exceptional circumstances to indicate that Dowell falsely admitted his guilt. His plea was made knowingly and voluntarily in light of the then applicable law. His plea does not become vulnerable simply because later judicial decisions indicate the plea...