Grabowski v. Jackson County Public Defenders Office

• Decision Date: 06 March 1995
• Docket Number: Nos. 92-7728,94-60089,s. 92-7728
• Citation: 47 F.3d 1386
• Parties: Rod GRABOWSKI, Plaintiff-Appellant, v. JACKSON COUNTY PUBLIC DEFENDERS OFFICE, et al., Defendants-Appellees. Roderick J. GRABOWSKI, Petitioner-Appellant, v. Edward HARGETT, Superintendent, Mississippi State Penitentiary, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1386

47 F.3d 1386

Rod GRABOWSKI, Plaintiff-Appellant, v. JACKSON COUNTY PUBLIC DEFENDERS OFFICE, et al.,

Defendants-Appellees.

Roderick J. GRABOWSKI, Petitioner-Appellant, v. Edward HARGETT, Superintendent, Mississippi State

Penitentiary, et al., Respondents-Appellees.

Nos. 92-7728, 94-60089.

United States Court of Appeals Fifth Circuit.

March 6, 1995.

Order Granting Rehearing En Banc

March 14, 1995.

Rod Grabowski, pro se.

Peggy G. Mullins, Thomas L. Stennis, Pascagoula, MS, for appellees in No. 92-7728.

Jo Anne McFarland McLeod, Asst. Atty. Gen., Mike Moore, Atty. Gen., Jackson, MS, for appellees in No. 94-60089.

Appeals from the United States District Court for the Southern District of Mississippi.

Before POLITZ, Chief Judge, SMITH, Circuit Judge and BERRIGAN, District Judge. ^*

GINGER BERRIGAN, District Judge:

Roderick J. Grabowski has appealed the denial of his 28 U.S.C. Sec. 2254 petition for writ of habeas corpus, challenging the legality of his conviction, and the denial of his 42 U.S.C. Sec. 1983 prisoner complaint, challenging various aspects of his confinement as a pretrial detainee. For the reasons set forth below, we AFFIRM the dismissal of the habeas corpus petition. With respect to the prisoner complaint, we REMAND to the trial court for further consideration of the allegation regarding Grabowski's placement in a cellblock of predominantly black inmates and we AFFIRM the dismissal of the remainder of the petition.

I. The Habeas Corpus Petition, 28 U.S.C. Sec. 2254

Facts and Proceedings

On December 15, 1988, Roderick Grabowski was arrested in Harrison County, Mississippi and charged with armed robbery and burglary/larceny of a dwelling. He was later indicted on both charges and initially pled not guilty. He moved to suppress various items seized from his car but the motion was denied. On the day of trial, the armed robbery charge was reduced to robbery and Grabowski pled guilty to robbery and burglary. Pursuant to the plea bargain, the prosecution recommended a sentence of fifteen years for the robbery and ten years, concurrently, for burglary. This was the sentence imposed.

Grabowski filed a pro se application for post-conviction relief. After exhausting state remedies, he filed a Petition for Writ of Habeas Corpus in the United States District Court under 28 U.S.C. Sec. 2254. He made the following allegations:

1. His guilty plea was induced by coercion.

2. He did not receive the effective assistance of counsel.

3. His arrest and the search of his car were illegal.

4. His convictions violated double jeopardy.

On January 31, 1994, the District Court denied his petition.

The Guilty Plea

Grabowski challenges the legality of his guilty plea, claiming it was coerced. He alleges that the prosecution threatened to seek an habitual offender bill against him which could result in a mandatory 30 year sentence if he didn't agree to the proposed plea bargain. Grabowski argues that his prior criminal record was in fact insufficient to justify such a sentence, and therefore he was coerced into pleading guilty by erroneously based threats. ¹

On the trial date, Grabowski's public defender moved to withdraw from the case and for a continuance because of a possible conflict of interest. ² At that point, the prosecutor stated:

The State is ready for trial and its witnesses are here, its evidence here on Mr. Grabowski and Mrs. Christianson. The State is ready to move forward. I would advise the Court in all sincerity that since the indictment in February of 1989 of Mr. Grabowski the State has learned that he has at least five prior felony convictions. If there is a continuance today this is not a threat by any means to Mr. Grabowski or this Court. The State is going to bring in the Grand Jury, nolle pros his cases and reindict Mr. Grabowski as perhaps a life habitual offender. I just want all the cards on the table.

The trial court denied the motion to withdraw. Grabowski then pled guilty pursuant to the plea bargain.

The District Court correctly found Grabowski's guilty plea to be free and voluntary and not the result of coercion. To be valid, a guilty plea must be knowingly, intelligently and voluntarily entered. The defendant must be shown to understand the nature of the charges and the consequences of the plea. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Hobbs v. Blackburn, 752 F.2d 1079 (5th Cir.1985); Diaz v. Martin, 718 F.2d 1372 (5th Cir.1983).

The guilty plea proceeding in this case was detailed and painstaking. Grabowski acknowledged his understanding of the charges, the consequences of the plea and his constitutional rights. The plea agreement was discussed, including the recommendation of the prosecution for concurrent fifteen and ten year sentences. Grabowski himself provided the factual basis for the charge by explaining what he had done. The record indicates the plea was knowingly and voluntarily entered. ³

Of course, a guilty plea is invalid if it is produced "by actual or threatened physical harm or by mental coercion overbearing the will of the defendant." Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 1470, 25 L.Ed.2d 747 (1970). Not all pressures to plead, however, are considered illegal inducements. Threatening harsher penalties, including indictment as an habitual offender, is a legitimate negotiating tactic in the give and take of plea bargaining. Brady v. United States, supra; Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). As long as the prosecution has probable cause to believe the defendant is guilty of the allegation being made, the decision of whether or not to so prosecute is within its discretion. Bordenkircher v. Hayes, supra. The District Court correctly found that Grabowski's prior criminal record, which included by his own admission, felony convictions in three different states, justified a probable cause conclusion that he could be charged as a habitual offender under Mississippi law. Finally, Grabowski was specifically asked if his plea was induced by promises or coerced by threats and he answered no.

The guilty plea was validly entered.

Ineffective Assistance of Counsel

Grabowski alleges his appointed counsel was ineffective. In order to succeed on an ineffectiveness claim, a petitioner must establish (1) that counsel's performance was deficient in that it fell below an objective standard of reasonable professional services, and (2) that this deficient performance prejudiced the defense such that there is a reasonable probability that the outcome of the trial has been undermined and the result would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The District Court correctly noted that Grabowski received substantial benefits with his plea bargain. One charge was reduced ⁴ and he received concurrent sentences. He also avoided entirely being prosecuted as an habitual offender, despite having a number of prior convictions.

The crux of Grabowski's complaint is that (a) his counsel misinformed him that he was subject to an habitual offender life sentence if he refused the plea bargain; and (b) his counsel had a conflict of interest since Grabowski had sued the Public Defender's Office, which employed the attorney. As already noted, the District Court correctly found that the prosecutor's threat to seek a possible indictment against Grabowski as a habitual offender was not factually erroneous nor was it improper coercion. Consequently, trial counsel was not delinquent in warning Grabowski of that possibility. With regard to the law suit, Grabowski's attorney did attempt to withdraw as counsel because of the law suit, which motion was denied. ⁵ At the Boykin hearing, the trial court carefully questioned Grabowski regarding the suit and its impact on the plea. Grabowski stated clearly that he considered his counsel to be a good lawyer, that the law suit had to do with other staff, not the attorney, and that he was satisfied with the representation. Likewise, the record indicates no relationship, much less an adverse one, between Grabowski's complaints in his lawsuit and the competency of his attorney at the guilty plea proceedings.

Trial counsel was not ineffective.

Arrest Without A Warrant

Grabowski complains that he was arrested without probable cause and his car was illegally searched in violation of the Fourth Amendment. Items allegedly stolen in a burglary were found in the trunk.

The District Court correctly concluded that these claims were waived by Grabowski's plea of guilty. A knowing and voluntary plea of guilty waives all preceding nonjurisdictional defects, including Fourth Amendment claims. United States v. Diaz, 733 F.2d 371, 376 n. 2 (5th Cir.1984); Williams v. Wainwright, 604 F.2d 404, 406-07 (5th Cir.1979); Ortega-Velasquez v. United States, 465 F.2d 419 (5th Cir.1972).

Grabowski was also specifically advised at the guilty plea hearing that his plea would require him to surrender any allegations of illegal arrest, search or seizure:

Q. There could be other constitutional rights such as illegal arrest and illegal search and seizure and a lot of others; even though, I have not specifically mentioned these other constitutional rights or gone over them (in) detail with you, if I accept your plea of guilty this morning, you, in fact, waive or give up all of your constitutional rights insofar as they apply to these two indictments and these two crimes; do you understand that?

A. Yes, Your Honor.

(Record, Vol. 1, p. 217)

Grabowski alleges that his attorney told him he could raise this issue, post-conviction, despite the guilty plea. That claim is negated by Grabowski's own words at the guilty plea hearing. Additionally, his trial attorney, in an affidavit, states emphatically that "(a)t no time" did he tell Grabowski that he could successfully attack his conviction through post-conviction relief once he accepted the...