Owens v. Wainwright

• Decision Date: 22 February 1983
• Docket Number: No. 82-5692,82-5692
• Parties: Paul Eugene OWENS, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1111

698 F.2d 1111

Paul Eugene OWENS, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender

Rehabilitation, State of Florida, Respondent-Appellee.

No. 82-5692

United States Court of Appeals,

Eleventh Circuit.

Feb. 22, 1983.

Mark P. Bryan, Fed. Public Def., Tampa, Fla., for petitioner-appellant.

Frank Lester Adams, III, Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY, VANCE and ANDERSON, Circuit Judges.

PER CURIAM:

Paul Eugene Owens, serving a life sentence for rape of a female child under the age of eleven years in violation of Fla.Stat.Ann. Sec. 794.01 (West 1973) (repealed 1974), appeals from a federal district court's denial of his petition for a writ of habeas corpus. Owens challenges (1) the voluntariness of his guilty plea, (2) the effectiveness of his counsel, and (3) the constitutionality of the Florida statute. We affirm.

On August 2, 1973 Owens, then age 22, allegedly had sexual intercourse with a five year old girl. Arrested the same day, Owens signed a statement admitting the crime slightly after midnight the following morning. On the advice of trial counsel, Owens pled guilty.

1. Voluntary and Knowing Guilty Plea

Owens claims that he did not enter the guilty plea voluntarily and knowingly as required by the Constitution, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), because he did not know that a conviction carried at least a life sentence with a minimum of twenty-five years before parole eligibility. This is largely a factual matter. According to Owens, his counsel told him that if he pled guilty he would receive only twenty-five years, not life with a minimum of twenty-five years in jail. His attorney, testifying before the magistrate appointed by the district court, gave a different account of his conversations with Owens. The magistrate believed him, not Owens. Emphasizing that Owens' claim of attorney-client miscommunication seemed incredible considering that he did not raise the point for nearly five years, the magistrate found that the attorney correctly told Owens the precise consequences of a guilty plea.

Appellate courts reviewing a cold record give particular deference to credibility determinations of a fact-finder who had the opportunity to see live testimony. E.g., Weathers Towing, Inc. v. M/V Herman Pott, 570 F.2d 1294, 1296 (5th Cir.1978). See Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 537, 93 L.Ed. 672 (1949), adhered to in relevant part on reh'g, 339 U.S. 605, 611, 70 S.Ct. 854, 857, 94 L.Ed. 1097 (1950). The magistrate's finding was not clearly erroneous. Fed.R.Civ.P. 52(a).

With the magistrate's finding intact, there is little to Owens' challenge to his plea. The trial judge questioned Owens at length to make sure he understood that he was waiving certain constitutional rights by pleading guilty and that he was acting voluntarily without the inducement of any threats or false promises. The colloquy satisfied Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1966). The judge warned Owens that he could receive the death sentence. He read the indictment to him to make certain he understood the crime to which he was pleading guilty. Although not constitutionally required, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the judge did not accept the plea until assured by Owens that he acknowledged his own guilt, something he would have had trouble denying considering the overwhelming evidence against him.

While the court itself did not advise Owens of the minimum twenty-five years in prison, the findings of fact establish that Owens was aware of it. This circuit has held that, as a matter of constitutional law, a state trial judge need not inform the defendant of the requisite time of confinement prior to eligibility for parole. LeBlanc v. Henderson, 478 F.2d 481, 483 (5th Cir.1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 101 (1974). See also Armstrong v. Egeler, 563 F.2d 796, 799-800 (6th Cir.1977). Although federal law requires the judge personally to tell the defendant of the mandatory minimum sentence, Fed.R.Crim.P. 11(c)(1), Florida law does not. E.g., Gonzalez v. State, 300 So.2d 691, 692 (Fla.Dist.Ct.App.1974). Cf. Frank v. Blackburn, 646 F.2d 873, 882 (5th Cir.1980) (requirements of Fed.R.Crim.P. 11 on colloquy before court accepts guilty plea are not binding on states and do not necessarily mirror constitutional standards), modified on other grounds, 646 F.2d 902 (5th Cir.), cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 123 (1981).

2. Effective Assistance of Counsel

In claiming that his attorney was ineffective, Owens essentially points to three supposed failures by counsel. The first, that he allegedly did not inform Owens of the mandatory minimum prison term, has been disposed of already. The other two are counsel's apparent failure (1) to investigate a possible insanity defense, and (2) to consider filing a motion to suppress Owens' confession.

The burden is on a habeas petitioner to show by a preponderance of the evidence that he lacked effective assistance of counsel and that he suffered prejudice thereby. Washington v. Strickland, 693 F.2d 1243, 1250, 1258 (5th Cir. Unit B 1982) (en banc); United States v. Killian, 639 F.2d 206, 210 (5th Cir.), cert. denied, 451 U.S. 1021, 101 S.Ct. 3014, 69 L.Ed.2d 394 (1981). In connection with a guilty plea, counsel is obligated to assist the defendant actually and substantially in deciding whether to enter the plea. Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct 2275, 73 L.Ed.2d 1288 (1982); Mason v. Balcom, 531 F.2d 717, 725 (5th Cir.1976). The attorney must be sufficiently familiar with the facts and law so that he can advise the defendant meaningfully on the available options. Bradbury v. Wainwright, 658 F.2d at 1087; Calloway v. Powell, 393 F.2d 886, 888 (5th Cir.1968). To ensure that defendant's choice is an informed one, counsel must investigate potential defenses. Bradbury v. Wainwright, 658 F.2d at 1087; Lee v. Hopper, 499 F.2d 456, 463 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S.Ct. 633, 42 L.Ed.2d 650 (1974).

In this case, there is no showing that defendant was prejudiced by the two alleged faults of counsel. In regard to the suppression of the confession, Owens signed statements indicating that he agreed to be questioned and that the authorities had not promised him anything or otherwise coerced his admission. While Owens claims that the police promised him medical care if he confessed, the magistrate found him to be an unbelievable witness. A motion for suppression had no chance of success. Cf. United States v. Killian, 639 F.2d at 210 (rejecting claim that trial counsel was incompetent largely because the defense his client suggested he should have presented was unlikely to work). Furthermore, even without the statement, substantial evidence linked Owens to the crime. A medical report of the victim revealed evidence of recent sexual intercourse, and the victim during her deposition identified defendant as the guilty party.

Similarly, there is no merit in the charge that counsel failed to pursue an insanity defense. Owens does not purport to suffer from any mental illness. Instead, he claims that on the day of the rape he was under the influence of various unlawful drugs and alcohol. Voluntary intoxication is a defense to rape, a general intent crime, in Florida only if it produces insanity. Askew v. State, 118 So.2d 219, 222 (Fla.1960). Owens suggested no evidence of insanity.

Pervading Owens' specific charges against his attorney are the more general complaints that counsel spent little time preparing for the case and that he abandoned his role as an advocate. The seemingly short period during which the attorney prepared for the case does not demonstrate ineffectiveness. See Jones v. Estelle, 622 F.2d 124, 127 (5th Cir.) (meeting with a client only once before trial does not per se establish ineffectiveness), cert. denied, 449 U.S. 996, 101 S.Ct. 537, 66 L.Ed.2d 295 (1980). Other attorneys and investigators at the Public Defender's office apparently met with Owens on at least four...