Smith v. Estelle

• Decision Date: 11 August 1983
• Docket Number: No. 82-1559,82-1559
• Parties: Grady Lee SMITH, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 677

711 F.2d 677

Grady Lee SMITH, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent-Appellee.

No. 82-1559.

United States Court of Appeals, Fifth Circuit.

Aug. 11, 1983.

Mary L. Sinderson, Asst. U.S. Atty., Houston, Tex., for petitioner-appellant.

Douglas M. Becker, Barbara J. Lipscomb, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before BROWN, REAVLEY and RANDALL, Circuit Judges.

REAVLEY, Circuit Judge:

Grady Lee Smith appeals from the district court's judgment denying habeas corpus relief under 28 U.S.C. § 2254. We affirm.

Procedural Background

Appellant Smith pleaded guilty in Texas state court in 1980 to three counts of delivery of controlled substances (heroin and cocaine). Pursuant to a plea bargain negotiated by Smith's retained counsel with the prosecution, the State of Texas waived the sentence enhancement paragraphs of the charging indictment and recommended a sentence of eighteen (18) years. The trial court, after questioning Smith concerning his understanding of the charges against him and the voluntariness of his plea, accepted the plea and thereafter sentenced Smith to three concurrent eighteen year sentences. Because of Tex.Crim.Pro.Code Ann. art. 44.02, which limits the right of appeal in cases where a defendant pleads guilty, Smith did not appeal the conviction.

On February 5, 1981, Smith filed a pro se petition for habeas relief in state court alleging ineffective assistance of counsel and involuntariness of his guilty plea. With this petition he filed a supporting affidavit which was verified by himself and three other persons who were described therein to be witnesses to the factual allegations of the petition. The state habeas judge filed an order instructing that a "hearing by affidavit" would be conducted on the ineffective assistance of counsel claim, and requiring Smith's former attorney, Joe Brent Johnson, to submit an affidavit responding to Smith's allegations. After reviewing the affidavits of both Smith and Johnson, the trial court entered its written findings of fact and a recommendation that the petition be denied. This recommendation was accepted by the Texas Court of Criminal Appeals which denied the writ without written order on April 1, 1981.

On September 30, 1981, Smith initiated a second pro se habeas petition in state court, raising claims of a fundamentally defective indictment, insufficient evidence to support the guilty plea, involuntariness of the plea, and inadequate admonishment on punishment. This petition was ultimately denied without a hearing.

On April 26, 1982, Smith filed a pro se habeas petition in federal district court pursuant to 28 U.S.C. § 2254, alleging a number of grounds for relief--including all those grounds raised in his two previous state petitions. On August 17, 1982, the magistrate recommended that the petition be denied and also found based upon the state court records that no evidentiary hearing was necessary. The magistrate's order allowed the parties twenty-seven (27) days, until September 13, 1982, to serve and file written objections to his findings and conclusions. Smith's objections bear a certificate of service and a notary's acknowledgment dated September 12, 1982; the objections were apparently mailed on September 13, 1982, and were received by the district court clerk two days later, bearing a file-mark of September 15, 1982.

On September 21, 1982, the district court entered an order and separate final judgment adopting the findings, conclusions, and recommendation of the magistrate. This order erroneously stated that no objections from either party had been received by the court. In an order dated September 22, 1982, the district judge acknowledged that its earlier order was in error and that objections to the magistrate's report had indeed been submitted by Smith--but the court considered such objections to be untimely filed since they were received and filed by the court on September 15, 1982. The district court nonetheless considered Smith's written objections as a motion for relief from judgment or order pursuant to Federal Rule of Civil Procedure 60. The court denied relief from judgment, however, finding that Smith had presented no credible explanation or demonstrated any excusable neglect for his failure to file objections earlier.

Smith filed a notice of appeal on October 8, 1982. On that same date he also filed a request to proceed in forma pauperis. The district court certified that probable cause to appeal existed and that Smith was a pauper who was taking the appeal in good faith. This court appointed counsel to represent Smith on appeal.

Scope of Appeal

On appeal Smith raises a sole contention--that the court below erred in failing to hold an evidentiary hearing on his allegations of an involuntary plea and ineffective assistance of counsel. Before we address this argument, we respond to a procedural one raised by the State of Texas. The state contends that Smith has not preserved his right to appeal the underlying merits of his habeas petition, i.e., the denial of a hearing on his claims of ineffective counsel and an involuntary plea, because his pro se notice of appeal refers only to the district court's September 22, 1982, order denying Rule 60 relief from judgment. As a result, the state argues, our scope of review should be limited to determining whether the district court abused its discretion in denying Rule 60 relief and therefore we cannot reach the underlying merits. See Browder v. Director Dep't. of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978).

Although it is true that Smith's notice of appeal does not refer to the district court's denial of habeas relief on the merits, we conclude that Smith has preserved his substantive right of appeal. On the same day he filed his notice of appeal, Smith also filed a pro se "Motion for Leave to Appeal In Forma Pauperis." This document clearly signifies Smith's desire to appeal the merits of the district court's September 21, 1982, denial of habeas relief--specifically mentioning his claims of a coerced guilty plea and counsel's ineffective assistance. This document "clearly evinces an intent to appeal" the merits--it can reasonably be construed as the equivalent of a notice of appeal from the September 21, 1982, final judgment denying habeas relief. See Stevens v. Heard, 674 F.2d 320, 321-23 (5th Cir.1982). Thus, we reach the substance of Smith's claims concerning the voluntariness of his guilty plea and the assistance afforded him by counsel.

According to his brief filed in this appeal, Smith does not now ask this court to grant the writ; instead, he merely requests that we remand for an evidentiary hearing to develop more thoroughly the factual circumstances relating to his claims. We hold that the court below properly denied relief without conducting a hearing.

Voluntariness of Guilty Plea

As to Smith's claim that his guilty plea was involuntarily made, it does not appear that a hearing has ever been held on this issue in either state or federal court. In Smith's first state habeas petition, the trial court conducted a "hearing by affidavit" but this hearing was only with respect to the claim of ineffective assistance of counsel. The trial court's order instructing that the hearing by affidavit be held specifically notes that a "hearing will be granted on the allegation of ineffective assistance of counsel." Furthermore, the court's written findings make no direct reference to the guilty plea claim. Finally, no hearing was ever held on Smith's second state habeas petition, which also alleged an involuntary plea.

We note that Smith has never received a hearing on his guilty plea claim merely to point out that no state findings exist with respect to this allegation that are due a presumption of correctness under 28 U.S.C. § 2254(d) and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Of course, the allegation was raised by Smith in both state habeas petitions, and because the state denied relief each time, it obviously and implicitly rejected the claim. The importance of the state courts' failure ever to hold a hearing, however, is that it distinguishes this case from the situation in Marshall v. Lonberger, --- U.S. ----, ----, 103 S.Ct. 843, 850-51, 74 L.Ed.2d 646 (1983), where the Supreme Court held that in ruling on § 2254 petitions for habeas relief, federal courts must give appropriate deference to implicit findings of a state habeas court on credibility decisions when the state court conducts a hearing on the issue at hand and the federal courts have not. Thus, we reemphasize that no state court findings exist here on the issue of the voluntariness of the guilty plea that are entitled to a presumption of correctness under § 2254(d).

Nonetheless, we conclude that Smith's claim that his guilty plea was involuntarily made is without merit. The record before us contains a transcript of the court proceedings at which Smith gave his pleas of guilty to the drug offenses for which he was indicted. After reading this transcript, we conclude that Smith's argument is a weak one at best, if not frivolous. The state trial judge repeatedly and thoroughly questioned Smith concerning his knowledge and understanding of the charges against him and the effects of a guilty plea, thus satisfying the mandate of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Among other things, the...