Harmason v. Smith
Citation | 888 F.2d 1527 |
Decision Date | 01 December 1989 |
Docket Number | No. 88-3431,88-3431 |
Parties | Caesar HARMASON, Petitioner-Appellant, v. Larry SMITH, Acting Warden, Louisiana State Penitentiary, Et Al., Respondents-Appellees. Summary Calendar. |
Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Caesar Harmason, Angola, La., pro se.
Janis L. Kile, Asst. Dist. Atty. and William J. Guste, Jr., Atty. Gen., Baton Rouge, La., for respondents-appellees.
Appeal from the United States District Court for the Middle District of Louisiana.
Before POLITZ, GARWOOD and JOLLY, Circuit Judges.
Petitioner-appellant Caesar Harmason (Harmason) appeals the order of the district court denying his application for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. He maintains that his plea of guilty in state court to two armed robberies was involuntary and unknowing because it was predicated on a statement by his attorney that led him to believe his sentence would be no more than fifteen years, when in fact he received an eighteen-year sentence. We affirm.
On March 22, 1983, Harmason pleaded guilty in Louisiana state court to two counts of armed robbery committed in March 1982. On June 15, 1983, the court, following receipt of the presentence investigation report from the probation department, sentenced Harmason to eighteen years' imprisonment on each count, with the terms to run concurrently. Harmason appealed the conviction and sentence to the Louisiana Court of Appeal for the First Circuit, contending that the sentence was excessive and that the plea was unknowing and involuntary because his attorney gave him to understand that the sentence following a guilty plea would be no more than fifteen years' imprisonment. That court affirmed the trial court, finding that it had not abused its discretion in sentencing Harmason and that Harmason had tendered no showing that "a clear and definite promise had been given." State v. Harmason, No. 83 KA 0930 (La.Ct.App. 1st Cir. Apr. 3, 1984). The Louisiana Supreme Court denied his application for writ of certiorari, State v. Harmason, 450 So.2d 965 (La.1984), and later rejected his reapplication for writ of certiorari as well as his application for writs of habeas corpus and mandamus. State ex rel. Harmason v. Blackburn, 512 So.2d 858-59 (La.1987).
After exhausting his state court remedies, Harmason filed an application for writ of habeas corpus in forma pauperis, pursuant to 28 U.S.C. Sec. 2254, in the United States District Court for the Middle District of Louisiana, essentially raising the same grounds for relief as he did in the state courts. On April 27, 1988, the district court, acting upon the recommendation of the magistrate, denied Harmason's application. The court reasoned that because the alleged representation by Harmason's attorney of a fifteen-year sentence following a guilty plea was contingent on the favorable findings of the presentence report, it could not have been breached as a result of the imposition of an eighteen-year sentence, for the report indicated that Harmason's past offenses had been severe. Harmason v. Butler, No. 88-69-A . This appeal followed.
On appeal, Harmason seeks a reversal of the denial of his application for writ of habeas corpus or, in the alternative, an evidentiary hearing to determine whether his attorney made a promise to him that was unkept about the sentence Harmason would receive following a guilty plea. As Harmason notes, for a guilty plea to be constitutionally valid, it must be voluntary and knowing. Smith v. McCotter, 786 F.2d 697, 701 (5th Cir.1986). However, his "mere 'understanding' " that he would receive a lesser sentence in exchange for a guilty plea will not abrogate that plea should a heavier sentence actually be imposed. See Davis v. Butler, 825 F.2d 892, 894 (5th Cir.1987); Smith, 786 F.2d at 701; Self v. Blackburn, 751 F.2d 789, 792-93 (5th Cir.1985); Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir.1981), cert. denied, 456 U.S. 992, 102 S.Ct. 2275, 73 L.Ed.2d 1288 (1982).
In order for a prisoner to receive federal habeas relief on the basis of alleged promises that are inconsistent with representations made in open court when his guilty plea was accepted, he must " 'prove (1) exactly what the terms of the alleged promise were; (2) exactly when, where, and by whom such a promise was made; and (3) the precise identity of an eyewitness to the promise.' " Davis, 825 F.2d at 894 (quoting Smith, 786 F.2d at 701). For Harmason to prevail on his request for an evidentiary hearing, he must present the court with " 'independent indicia of the likely merit of [his] contentions....' " Davis, 825 F.2d at 894 (quoting United States v. Raetzsch, 781 F.2d 1149, 1151 (5th Cir.1986)). Such indicia may include an affidavit from a reliable third party. United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir.1985).
As support for his contention that his plea was involuntary and unknowing, Harmason proffered a copy of the October 14, 1983 affidavit of his attorney, Leo J. Berggreen (Berggreen), which had been filed in the Louisiana Court of Appeal in aid of Harmason's appeal. This affidavit recites that the case had been set for trial on the merits for March 21, 1983, when the jury was selected, and that the following morning, before trial commenced that day, there was an in-chambers, unrecorded conference between the judge, the Honorable Carl J. Guidry, the prosecutor (Mr. Roy), counsel for co-defendant Davis (Mr. Smith), and Berggreen. A third co-defendant, Taylor, had previously pleaded guilty and been sentenced to fifteen years. The affidavit further states that at this conference there took place "a conversation with words of similar import" that the affidavit purports to paraphrase in the following language:
"Mr. Smith: 'We are looking at something less than fifteen?' "Judge Guidry:
In his brief on direct appeal to the Louisiana Court of Appeal, Harmason's counsel asserted that "Harmason agreed to plead guilty based upon counsel's representations that he was going to probably receive less than fifteen years."
Following the conference, a lengthy hearing (some twenty pages of the transcript) was held in open court with reference to the knowing and voluntary nature of the pleas, and the factual basis for them, and the pleas were accepted. Among other things, the record of this hearing reflects the following:
After the guilty pleas were accepted, the trial court ordered a presentence investigation report, and, following its receipt, the sentencing hearing was held on June 15, 1983. At the sentencing, Judge Guidry questioned Harmason about the fact that the "pre-sentence investigation" reflected he had been arrested as a juvenile in October 1978 for two counts of burglary and theft for which he was "placed on supervised probation," that while on probation he was arrested for trespassing and disturbing the peace and thereafter was again arrested for burglary and theft in April of 1979 and in May of 1979 was committed for those offenses until June 1980, after which he was on probation until November 1980. Harmason and his counsel denied none of this, and his counsel remarked When the court imposed sentence, counsel advised that "for the record I would like to enter an oral order of appeal with regard to the sentence" but "[n]ot with regard to the Boykin." 2 Subsequently, as above recited, Harmason, through counsel, unsuccessfully appealed both the severity of his sentence and his guilty plea to the Louisiana Court of Appeal.
We reject Harmason's contentions. His sworn testimony at the guilty plea hearing was that he understood that his sentence "exposure" was up to ninety-nine years, and that there had been, in his own words, "no...
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...where the defendant was properly advised regarding the maximum length of sentence possible under applicable law); Harmason v. Smith, 888 F.2d 1527, 1529 (5th Cir.1989); Davis v. Butler, 825 F.2d 892, 894 (5th Cir.1987); McNeil v. Blackburn, 802 F.2d at 832; and Smith v. McCotter, 786 F.2d 6......
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United States v. Kayode, 12–20513.
...merit of her allegations, typically in the form of one or more affidavits from reliable third parties”); see also Harmason v. Smith, 888 F.2d 1527, 1529 (5th Cir.1989) (likewise requiring “independent indicia of the likely merit of [the petitioner's] contentions” when the petitioner's claim......
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United States v. Kayode, 12–20513.
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Daniel v. Cockrell
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