Matthews v. Butler, 87-3277

• Decision Date: 15 December 1987
• Docket Number: No. 87-3277,87-3277
• Citation: 833 F.2d 1165
• Parties: Lawrence R. MATTHEWS, Jr., Petitioner-Appellant, v. Robert H. BUTLER, Sr., Warden, Louisiana State Penitentiary, Respondent-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1165

833 F.2d 1165

Lawrence R. MATTHEWS, Jr., Petitioner-Appellant, v. Robert H. BUTLER, Sr., Warden, Louisiana State Penitentiary,

Respondent-Appellee.

No. 87-3277

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Dec. 15, 1987.

Lawrence Matthews, Jr., pro se.

Joseph H. McCusker, III, Asst. Dist. Atty., New Orleans, La., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, GARWOOD and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Lawrence Matthews, Jr. (Matthews) appeals the district court's denial of his pro se petition for federal habeas relief under 28 U.S.C. Sec. 2254. We affirm.

Facts and Proceedings Below

On October 22, 1969, Matthews, who was represented by court-appointed counsel, pleaded guilty to a charge of simple burglary in a Louisiana state court. The court sentenced him to three years imprisonment. After serving one year of the sentence, Matthews was paroled. While on parole, he was arrested for and convicted of armed robbery. Following the armed robbery conviction, he was found guilty as a multiple offender under La.R.S. 15:529.1 and was given an enhanced sentence of fifty years. The predicate offense for the multiple bill was the simple burglary to which he pleaded guilty in 1969. The armed robbery conviction and sentence were affirmed by the Louisiana Supreme Court in March 1974. State v. Matthews, 292 So.2d 226 (La.1974).

Following the affirmance of the armed robbery conviction in 1974, Matthews filed a writ of habeas corpus in the state court that had accepted his guilty plea in 1969. Matthews requested habeas relief on two grounds: (1) that he was not advised of his constitutional rights before pleading guilty to the charge of simple burglary, and (2) that the attorney who represented him in the simple burglary case was incompetent and ineffective. On May 17, 1974, the state court held an evidentiary hearing in which Matthews testified that he had been tricked into pleading guilty because his attorney had informed him that the witnesses against him were numerous, that the odds were against him, and that he would be sentenced to ninety years in the Louisiana State Penitentiary if he did not plead guilty. Matthews further testified that he had spoken to his attorney for only five seconds prior to pleading, that he was not aware of his rights when he entered the plea, and that if he had been advised of his rights he would not have pleaded guilty. ¹ Matthews was represented by counsel throughout the hearing.

The defense attorney who represented Matthews in 1969 also testified at the hearing. Although the attorney could not remember Matthews, he testified that it was his normal procedure to advise clients of their rights under the law and to inform them of possible sentences that could be imposed if the client were convicted. The attorney also testified that before advising a client to plead guilty, he would ask the client about the facts of the case and he would inform the client that he had the right to trial by jury, that he would have no right to appeal if he pleaded guilty, and that by pleading guilty the client was incriminating himself. Finally, the attorney testified that his records from 1969 indicated: (1) that Matthews had informed him that he (Matthews) was intoxicated when the burglary occurred, and (2) that the defense attorney and the prosecutor had made a plea agreement whereby Matthews would receive three years imprisonment if he pleaded guilty to simple burglary.

Matthews' attorney at the state post-conviction hearing closed by arguing that the court did not advise Matthews of his rights in 1969 and that accordingly the plea should be set aside. From the evidence adduced, the court concluded that Matthews was sufficiently advised of his constitutional rights, that the court-appointed attorney was not ineffective or incompetent, and that Matthews knew what he was doing when he entered the plea. The state court thus denied the writ.

Thereafter, in 1975, Matthews filed his first application for federal habeas corpus relief under 28 U.S.C. Sec. 2254. In this application, Matthews argued that his armed robbery conviction was constitutionally infirm because: (1) he was brought into the courtroom during the trial of a confederate for identification by the victim without the advice or presence of counsel; (2) he was interrogated by police without the presence of counsel; (3) the firearm admitted into evidence at this trial was obtained through inculpatory statements made to the police without the required Miranda warnings; (4) he was denied the right of confrontation during trial; and (5) the evidence admitted at his co-defendant's murder trial was inadmissible at his (Matthews') robbery trial. The petition was initially referred to a federal magistrate, who recommended that the petition be dismissed as meritless. The district court adopted the magistrate's report and denied the requested relief. The district court denied Matthews' subsequent motion for reconsideration and we declined to issue a certificate of probable cause for purposes of appeal.

In February 1981, Matthews filed a second application for federal habeas relief. In this petition, Matthews alleged that he was improperly sentenced as a multiple offender after the armed robbery conviction because he was on parole for his 1969 simple burglary offense when he committed the armed robbery. Matthews contended that it was not the legislature's intent to use La.R.S. 15:529.1 to enhance the sentence of a parole violator. The petition was referred to a federal magistrate who recommended that it be dismissed. The district court adopted the magistrate's report and ordered that the application be denied. On appeal, we affirmed the district court's denial of relief.

In the same month, Matthews filed yet another application for federal habeas relief (the second 1981 petition). In this petition, Matthews alleged that: (1) his 1969 guilty plea was invalid because it was predicated on incompetent advice of counsel, who "failed to afford his client with an understanding of the law in relation to the facts"; (2) he was sentenced as a multiple offender for no other reason than electing to assert his right to a jury trial; and (3) he was unconstitutionally deprived of his right to have a hearing on a pro se motion for a change of venue. In support of the first contention, Matthews claimed that had defense counsel investigated the facts leading up to the 1969 simple burglary charge, he would have advised Matthews not to plead guilty because he would have been aware: (1) that Matthews was highly intoxicated at the time of the alleged offense; (2) that there was an open party at the residence that Matthews was accused of burglarizing; and (3) that Matthews had paid a twenty-five cent admittance fee to enter the house. According to Matthews, a "meaningful investigation and thorough consultation would have allowed counsel an opportunity to become familiar with the above facts, and by applying the law he would have competently advised petitioner how to plead."

The magistrate found that Matthews' second allegation was without merit because Matthews never offered proof to support it. Likewise, the magistrate found that the third allegation was without merit because there was no indication in the record that Matthews had filed a pro se motion for a change of venue. The magistrate also rejected the first allegation, in which Matthews alleged that his 1969 guilty plea was invalid because it was based on incompetent advice. In rejecting this allegation, the magistrate adopted the findings set forth in the state court's ruling in the May 17, 1974, evidentiary hearing. Specifically, the magistrate adopted the state court's finding that at the time Matthews entered the guilty plea, he was advised of his constitutional rights, he knew what he was doing, and his counsel was neither ineffective nor incompetent. The district court adopted the magistrate's report and dismissed the petition. We affirmed on appeal. ²

Then, in February 1987, Matthews filed his fourth petition for federal habeas relief under 28 U.S.C. Sec. 2254. This time he claimed that his 1969 guilty plea was involuntary because: (1) he was not informed of the minimum or maximum penalty that he could receive if he went to trial instead of pleading guilty, ³ and (2) he was not made aware of the essential elements of simple burglary. In particular, Matthews claimed his plea was involuntary because he was not made aware that by pleading guilty he was admitting: (1) that his entry was unauthorized (he claims he paid an admission fee), and (2) that he had the specific intent to commit theft (he claims he was intoxicated, thus he lacked specific criminal intent). ⁴ Matthews thus concludes that had he "been made aware of the law in relation to the facts constituting the offense, he would not have tendered a guilty plea to simple burglary."

Matthews' petition was referred to a federal magistrate who notified Matthews that the court was considering dismissal under Rule 9(b) of the Rules Governing Section 2254 Cases, which permits dismissal of a habeas petition if the court finds an abuse of writ. ⁵ In accordance with standard procedures in such cases, the magistrate furnished Matthews with the officially adopted model Rule 9 form on which to explain why his petition should not be dismissed under Rule 9(b), and Matthews was given ten days in which to respond. ⁶ The state also filed a pleading asserting that under "Rule 9(b)" Matthews' petition "is an abuse of the writ of habeas corpus and the petition should be dismissed."

Matthews responded by stating that his current petition should not be dismissed under Rule 9(b) because the current petition presented "new and novel" claims that were not set forth in the second 1981 petition. According to Matthews, the current...