Laycock v. State of N.M., 88-1855

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Citation: 880 F.2d 1184
• Docket Number: No. 88-1855,88-1855
• Parties: Peter Ray LAYCOCK, Petitioner-Appellant, v. STATE OF NEW MEXICO, et al. Respondents-Appellees.
• Decision Date: 26 July 1989

Page 1184

880 F.2d 1184 Peter Ray LAYCOCK, Petitioner-Appellant,
v.
STATE OF NEW MEXICO, et al. Respondents-Appellees. No. 88-1855. United States Court of Appeals,
Tenth Circuit. July 26, 1989.

Page 1185

Stephen P. McCue, Asst. Federal Public Defender, Albuquerque, N.M., for petitioner-appellant.

Gail MacQuesten, Asst. Atty. Gen., Santa Fe, N.M., for respondents-appellees.

Page 1186

Before LOGAN, WRIGHT, ^** and MOORE, Circuit Judges.

EUGENE A. WRIGHT, Senior Circuit Judge.

Peter Ray Laycock appeals the district court's denial of his petition for habeas corpus relief. He claims that he entered an involuntary guilty plea, his counsel rendered ineffective assistance, his sentence exceeded the statutory maximum, and he received an inadequate sentencing hearing. We affirm the judgment.

BACKGROUND

In March 1983, the police arrested Laycock for armed robbery of a New Mexico convenience store. He admitted robbing it and shooting at a customer. The appointed public defender negotiated a plea agreement with the prosecutor. Laycock agreed to plead guilty to Count I of the information, armed robbery with a firearm enhancement, and the state agreed to dismiss Count II, assault with intent to commit a violent felony with a firearm enhancement. Laycock and his counsel discussed the possibility of his acceptance into the Delancey Street Drug Rehabilitation Center. The written plea agreement did not include this or any other sentencing provision.

The court sentenced Laycock to nine years for armed robbery, one year for firearm enhancement and two years of parole. He filed a petition for post-conviction relief which the court denied. After the Supreme Court of New Mexico denied his petition for a writ of habeas corpus, he filed a second petition in the Federal District Court of New Mexico. The magistrate there found that he had exhausted his state court remedies as required by 28 U.S.C. Sec. 2254(b). See Osborn v. Shillinger, 861 F.2d 612, 613 (10th Cir.1988).

ANALYSIS

I. Voluntary Plea

Laycock alleges that his plea was involuntary. He claims that his attorney materially misrepresented the plea bargain by promising him a suspended sentence if Delancey Street accepted him into its drug treatment program. ¹ He does not contend that the prosecutor misrepresented the plea.

Whether a plea is voluntary is a question of federal law subject to de novo review. Marshall v. Lonberger, 459 U.S. 422, 431, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983); Oppel v. Meachum, 851 F.2d 34, 37 (2d Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 266, 102 L.Ed.2d 254 (1988). We accept the magistrate's findings of fact unless they are clearly erroneous. Marshall, 459 U.S. at 432, 103 S.Ct. at 849-50.

A plea may not be voluntary when an attorney materially misinforms the defendant of the consequences of the plea or the court's probable disposition. Blackledge v. Allison, 431 U.S. 63,75 n. 8, 97 S.Ct. 1621, 1630 n. 8, 52 L.Ed.2d 136 (1977); Worthen v. Meachum, 842 F.2d 1179, 1182 (10th Cir.1988); Bonvillain v. Blackburn, 780 F.2d 1248, 1250 (5th Cir.), cert. denied, 476 U.S. 1143, 106 S.Ct. 2253, 90 L.Ed.2d 699 (1986). An erroneous sentence estimate does not render a plea involuntary, but an attorney's unfair representation of probable leniency may be found coercive. United States v. Estrada, 849 F.2d 1304, 1306 (10th Cir.1988) (citing Wellnitz v. Page, 420 F.2d 935, 936 (10th Cir.1970)). A petitioner's understanding that he will serve less that his full sentence is neither a promise nor a plea bargain. Bonvillain, 780 F.2d at 1252.

Laycock must prove that his attorney materially misrepresented the consequences of the plea. The facts and circumstances support the district court's conclusion that counsel did not materially misrepresent the plea. Delancey Street was not mentioned in the written plea agreement, which Laycock signed following an explanation by the state judge. The judge asked Laycock specifically if other promises had been made and he replied "no." Solemn

Page 1187

declarations in open court carry a strong presumption of verity." Estrada, 849 F.2d at 1306 (citing Blackledge, 431 U.S. at 74, 97 S.Ct. at 1629). None of the participants mentioned Delancey Street at the plea or sentencing hearing. Laycock did not include it in his petition for post conviction relief. Finally, in his state court habeas petition, Laycock alleged his plea was involuntary because the judge failed to inform him of the mandatory parole term. He now alleges misrepresentation for the first time. Laycock has not established that his attorney misrepresented the plea agreement.

II. Ineffective Assistance of Counsel

Laycock argues that five of his counsel's tactical decisions resulted in ineffective assistance. We review de novo the determination of whether an attorney's performance was so deficient that it violated a...