Houston v. Lack, 85-1086.

• Decision Date: 06 January 1986
• Docket Number: No. 85-1086.,85-1086.
• Citation: 625 F. Supp. 786
• Parties: Prentiss L. HOUSTON, Petitioner, v. Larry LACK, Warden, Respondent.
• Court: U.S. District Court — Western District of Tennessee

625 F. Supp. 786

Prentiss L. HOUSTON, Petitioner, v. Larry LACK, Warden, Respondent.

No. 85-1086.

United States District Court, W.D. Tennessee, E.D.

January 6, 1986.

Prentiss L. Houston, pro se.

Gordon W. Smith, Asst. Atty. Gen., Nashville, Tenn., for respondent.

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

TODD, District Judge.

This petition for writ of habeas corpus was filed on May 15, 1985, by petitioner Prentiss L. Houston, who alleges that his Tennessee state court conviction is unconstitutional because it is based upon an involuntary guilty plea. Petitioner alleged that the plea was not voluntarily entered because (1) the state court judge failed to fully and adequately inform him of the nature of the charge against him and the consequences of a guilty plea and (2) his court appointed counsel did not render effective assistance, thereby depriving him of his due process rights. For the reasons set forth below, both of these contentions are found to be without merit and the petition is dismissed.

I. PROCEDURAL BACKGROUND AND FACTS.

After filing his answer to the petition, respondent was directed by this Court to file a copy of the transcript of petitioner's state court proceedings. The transcript indicates that petitioner brought a state habeas corpus petition following his conviction, alleging the same grounds as now presented. A full evidentiary hearing was conducted by the state court on that petition. Petitioner was represented at that hearing by different counsel than in his trial court proceedings and both petitioner and his court-appointed counsel from the trial court proceedings testified. Based upon the findings of fact at the hearing and the applicable law, petitioner's state habeas corpus petition was denied.

Although this Court is not bound by the state court's findings of fact, such findings are entitled to a presumption of correctness. Martin v. Foltz, 773 F.2d 711, 716 (6th Cir.1985).¹ Petitioner has not alleged that those findings are incorrect and, in fact, presents only questions of law to this Court in his petition. Furthermore, this Court finds that another evidentiary hearing would not shed any additional light on petitioner's claims and is not required by 28 U.S.C. § 2254(d). Accordingly, a ruling on this petition will be made on the basis of the pleadings of the parties and the state court transcript. See Rule 8(a), Rules Governing § 2254 Proceedings, 28 U.S.C. foll. § 2254.

According to his own statement of the facts, petitioner and a co-defendant were indicted for first degree murder by the Obion County, Tennessee Grand Jury on October 11, 1982. Prior to the indictment, Messrs. Thomas L. Rogers and James M. Glasgow, Jr. were appointed to represent the two defendants. Initially, the attorneys planned to jointly represent both defendants, with Mr. Rogers conducting the bulk of the factual investigation and Mr. Glasgow researching the legal issues presented. Following the indictments, however, the trial court appointed Mr. Glasgow to represent petitioner and Mr. Rogers to represent his co-defendant. Although each defendant had separate counsel at that time, the record indicates that the two attorneys continued to work together, sharing both factual and legal information regarding the defense of their clients. Pre-trial motions for discovery and for psychiatric evaluation were made on behalf of petitioner by Mr. Glasgow. Mr. Rogers made motions for a change of venue, in limine, to exclude evidence, for discovery, for a non-jury trial, and to set aside the indictment against his client.

Sometime following petitioner's indictment and before the entry of his guilty plea, the state prosecutor communicated a plea bargain offer to the attorneys, in which the state would agree to allow the two defendants to plead guilty to second degree murder, as Range II offenders under Tennessee law, with 50 year sentences. Petitioner alleged that at no time during discussions of that offer did Mr. Glasgow inform him of the consequences of entering the guilty plea, specifically that he would be pleading guilty to a Class X felony and would be subject to the requirements for Class X felons.² Furthermore, petitioner alleged that on November 15, 1982, the date he entered his guilty plea, the trial court judge also failed to fully and adequately inform him of the nature of the plea and its attendant consequences. According to petitioner, it was not until he was incarcerated at the Tennessee State Penitentiary that he learned that, as a Class X felon, he was ineligible for work release, trusteeship status, furloughs, educational or recreational release, credit for good behavior, or any other program that would operate to reduce his sentence or place him in supervised or unsupervised release programs in the community.

The gravamen of petitioner's claim that his plea was not voluntarily entered is that he would not have entered the plea if he had known of the attendant consequences of being convicted of a Class X felony under Tennessee law. In his petition, he charged his court-appointed attorney and the trial judge with fault for failing to fully apprise him of those consequences. In its opinion denying petitioner state habeas corpus relief, the state court summarily dismissed this claim, stating that "A defendant does not have a constitutional right to have the effect of a sentence under the Class X felony statute explained to him." Houston v. State, No. 4556, slip op. at 8 (Cir.Ct. Obion Co. Tenn., Sept. 27, 1983) (citing State v. Wallace, 604 S.W.2d 890 (Tenn.Crim.App.1980); State v. Hayes, No. 909 (Tenn.Crim.App. Sept. 1, 1983, Knoxville); State v. Minor, No. 123 (Tenn.Crim. App. Dec. 17, 1981, Jackson). In this petition, the only attempt by petitioner to distinguish the cases relied upon by the state court is his allegation that, in his case, neither the trial judge nor his appointed counsel understood the consequences of a Class X conviction.

II. GROUNDS FOR HABEAS CORPUS RELIEF

A. Ineffective Assistance of Counsel

As noted above, petitioner alleged that his conviction is unconstitutional because his guilty plea was not voluntary and because his court-appointed attorney rendered ineffective assistance. For the purposes of discussion, the claim of ineffective assistance of counsel will be addressed first.

Recently, the Supreme Court was presented with a case similar to that now before this Court. In Hill v. Lockhart, ___ U.S. ___, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the voluntariness of a guilty plea was at issue in the context of a claim of ineffective assistance of counsel. The alleged ineffectiveness of the petitioner's counsel in that case arose out of an attorney's erroneous advice to the petitioner, William Lloyd Hill, regarding the time he would have to serve under a plea bargain before being eligible for parole. According to Hill, his attorney had informed him that if he pleaded guilty he would have to serve one-third of his prison sentence before being considered for parole. However, because Hill had a prior conviction in another state, he was considered a second offender under Arkansas law and was thus required to serve one-half of his sentence before becoming eligible for parole. Because he had entered his guilty plea upon the mistaken belief that he would be eligible for parole after serving one-third of his sentence, Hill alleged that his plea was not voluntarily entered.

The trial court's denial of Hill's petition for habeas corpus relief was affirmed by a divided panel of the Eighth Circuit Court of Appeals. 731 F.2d 568 (1984). In an en banc rehearing, an equally divided court affirmed that decision. 764 F.2d 1279 (1984). Hill's petition for a writ of certiorari was then granted by the Supreme Court. ___ U.S. ___, 105 S.Ct. 1745, 84 L.Ed.2d 811 (1985).

The Supreme Court began its analysis of Hill's challenge to the voluntariness of his guilty plea by noting that the "long standing test for determining the validity of a guilty plea is `whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" 106 S.Ct. at 369 (citing North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970); Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969); Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962)). Although the issue was not raised by Hill, the Court stated that neither the Constitution nor Rule 11 of the Federal Rules of Criminal Procedure required that the state give a defendant information about parole eligibility in order for a guilty plea to be voluntary. 106 S.Ct. at 369.

With regard to the voluntariness of a guilty plea and a claim of ineffective counsel, the Court stated that the two-part standard for claims of ineffective assistance of counsel adopted in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), was also applicable to challenges to guilty pleas. 106 S.Ct. at 370. That test requires that the petitioner show (1) that his attorney's "representation fell below an objective standard of reasonableness" and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 369, quoting Strickland, 466 U.S. at 687-88, 694, 104 S.Ct. at 2065, 2068 (1984). The basis for the second part of that test, as noted by the Hill court, is that the mere existence of error on the part of a defendant's attorney does not justify setting aside a criminal judgment unless the judgment was due to the error. Id., 106 S.Ct. at 370, quoting Strickland, 466 U.S. at 691, 104 S.Ct. at 2067.

Applying the Strickland test to the case before it, the Hill court found that the petitioner had failed to satisfy the second part of the test. That part requires that the criminal defendant show that his attorney's erroneous...