Smith v. McCotter

• Decision Date: 07 April 1986
• Docket Number: No. 85-1321,85-1321
• Parties: Jimmy F. SMITH, Petitioner-Appellant, v. O.L. McCOTTER, Director, Texas Department of Corrections, Respondent-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 697

786 F.2d 697

Jimmy F. SMITH, Petitioner-Appellant, v. O.L. McCOTTER, Director, Texas Department of Corrections Respondent-Appellee.

No. 85-1321

Summary Calendar.

United States Court of Appeals Fifth Circuit.

April 7, 1986.

Jimmy F. Smith, pro se.

Jim Mattox, Atty. Gen., William Zapalac, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before POLITZ, GARWOOD and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Jimmy F. Smith appeals pro se the district court's denial of his application for a writ of habeas corpus under 28 U.S.C. Sec. 2254 challenging his November 1980 Texas conviction for aggravated robbery, for which he received a twenty year sentence. Smith had originally pleaded not guilty but changed his plea during jury deliberations. Smith appeals the district court's denial of relief, claiming (1) that his guilty plea was unknowing and involuntary because he was not informed that he was ineligible for probation when his guilty plea form intimated that probation was possible, (2) that his indictment was defective because it failed to allege "control" of stolen property, (3) that he failed to receive a copy of his indictment as required by Texas law, (4) that there was insufficient evidence to support his guilty plea, and (5) that he received ineffective assistance of counsel. Smith also alleges that Texas law should be used in deciding the validity of his habeas petition because he was excused from the exhaustion of state remedies requirement for federal habeas relief due to the delay in the Texas courts in hearing his state habeas claim. We affirm the district court's denial of habeas corpus.

Facts and Proceedings Below

Smith was indicted for the felony of aggravated robbery in which a man was shot. On November 20, 1980, after initially pleading not guilty, Smith changed his plea during jury deliberations. He was subsequently assessed a twenty year sentence to be served in the Texas Department of Corrections. The record indicates that Smith signed a "Defendant's Plea of Guilty, Waiver, Stipulation, and Judicial Confession," in which he confessed to the crime in the indictment and simultaneously acknowledged and waived various rights attendant to a guilty plea.

Smith did not directly appeal his conviction, but he did file two state habeas corpus writs. The first writ was denied by the Texas Court of Criminal Appeals on October 21, 1981, following Smith's request to withdraw it. The second writ was filed in August 1983. This writ was dismissed by the Texas Court of Criminal Appeals on September 25, 1985, because of the pendency of the present federal habeas action.

In March 1984, after the second writ was filed but before it was dismissed, Smith filed an application for writ of habeas corpus in the federal district court. The state moved to dismiss this writ for lack of exhaustion of state remedies, which Smith opposed because of what he felt was an inordinate delay by the state courts in hearing his state habeas claims. Stating that it did not wish to waive the exhaustion requirements, the state nevertheless filed a motion to dismiss and answer in which it excused Smith from the exhaustion requirements. The United States Magistrate recommended that Smith's writ be denied on the merits, and the district court adopted this recommendation and entered judgment thereon. Smith filed this appeal.

Discussion

Applicable Law

Smith first contends that when the state law exhaustion requirement of 28 U.S.C. Sec. 2254 ¹ is excused because a state court delays ruling on a prisoner's claims, the federal habeas court is required to hear and decide these claims according to state law. While we agree that the exhaustion requirement can be excused by an unreasonable delay in ruling on a petitioner's claims, see, e.g., Shelton v. Heard, 696 F.2d 1127, 1128 (5th Cir.1983); Breazeale v. Bradley, 582 F.2d 5, 8 (5th Cir.1978); Galtieri v. Wainwright, 582 F.2d 348, 354 (5th Cir.1978) (en banc), we do not agree that such a failing by the state court changes the focus of the federal court's review of habeas claims.

Section 2254(a) defines the scope of review for federal habeas claims:

"The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." (emphasis added).

We have followed this mandate and have held that "[f]ederal review of state convictions is confined to the narrow standards of due process." Trussell v. Estelle, 699 F.2d 256, 259 (5th Cir.), cert. denied, 464 U.S. 853, 104 S.Ct. 168, 78 L.Ed.2d 153 (1983). We further stated in Trussell that "[t]he Constitution does not guarantee every state defendant an error-free trial and before a federal court may overturn a state conviction, it must find an error that amounts to a, 'failure to observe that fundamental fairness essential to the very concept of justice.' " Id. (quoting Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941)); see Banzavechia v. Wainwright, 658 F.2d 337, 340 (5th Cir.1981) (error must be "fundamentally unfair" so as to violate due process before habeas is awardable); Bronstein v. Wainwright, 646 F.2d 1048, 1050 (5th Cir.1981) (a state's interpretation of its own laws or rules is no basis for federal habeas corpus relief since no constitutional question is involved).

The purpose of section 2254 is clear--to require state convictions to meet federal constitutional requirements applicable to the states. This purpose does not change when a petitioner is excused from meeting the exhaustion requirement rather than actually exhausting all state remedies. Such a result is prohibited by section 2254(a). We do not sit as a "super" state supreme court. See Billiot v. Maggio, 694 F.2d 98-100 (5th Cir.1982) (citing Martin v. Wainwright, 428 F.2d 356, 357 (5th Cir.), cert. denied, 400 U.S. 918, 91 S.Ct. 179, 27 L.Ed.2d 157 (1970)). Consequently, we decide the following issues only to the extent that federal constitutional issues are implicated and we refuse to act as an arm of the Texas Court of Criminal Appeals.

Specific Habeas Claims

1. Guilty Plea. Smith's principal assertion for invalidating his guilty plea is that the guilty plea form misled him into believing that he would be considered for probation when in fact probation was not available for aggravated robbery. ² Since the guilty plea form contained language about probation ("I request the Court to consider probating any sentence imposed"), Smith contends that it became the duty of his counsel or the court to specifically alert him that Texas law did not permit probation to be imposed for aggravated robbery. Smith thus concludes that his plea was not knowing and voluntary, the two requisites for a constitutionally valid guilty plea. We reject this argument.

As Smith contends, it is true that a guilty plea must be both a knowing and a voluntary act. See Bradbury v. Wainwright, 658 F.2d 1083, 1086 (5th Cir.1981), cert. denied, 456 U.S. 992, 102 S.Ct. 2275, 73 L.Ed.2d 1288 (1982). An accused's mere "understanding" that he will have to serve a lesser sentence, however, will not invalidate a guilty plea. See Self v. Blackburn, 751 F.2d 789, 792-93 (5th Cir.1985); Bradbury, 658 F.2d at 1087. In situations were an actual promise has been made to a petitioner, rather than there being merely an "understanding" on his part, federal habeas relief is awardable if the petitioner "prove[s] '(1) exactly what the terms of the alleged promise were; (2) exactly when, where, and by whom such a promise was made; and (3) the precise identity of an eyewitness to the promise.' " Self, 751 F.2d at 793 (quoting Hayes v. Maggio, 699 F.2d 198, 203 (5th Cir.1983)). This is not the case here.

Smith has not alleged that he decided to plead guilty only after he read the guilty plea form. Presumably, the form was presented to him to sign only after he had determined to change his plea during jury deliberations. Smith does not contend that he asked his attorney to seek probation, that his attorney discussed probation with him, or that he was ever offered probation as a part of the bargain. Smith did not claim in his first state writ filed nine months after he was convicted that he should have gotten or was entitled to receive probation. Indeed, Smith does not even now claim that he ever thought he would, or would likely, receive probation. In his answer to the state's motion to dismiss below, Smith urged that "Petitioner [Smith] did not allege [in his federal habeas] that he expected to receive a probated sentence." (emphasis Smith's). Not only did Smith not allege any such expectation, he has not alleged that he bargained for being considered for probation. He has never alleged that he ever mentioned probation to his counsel, the prosecutor, or the judge, or that any of them ever mentioned it to him. He does not even expressly claim that he would not have pleaded guilty had he not believed he could be considered for probation. Any such conclusion would indeed be incredible given the seriousness of the offense (a robbery during which he shot a person), the fact that the plea was made after the case was submitted to the jury, the lack of any claimed expectation of receiving probation and the absence of any discussion of probation. Since Smith knew the maximum sentence he could receive, does not claim he expected to receive probation, and did not say anything about probation to anyone at his trial and none there said anything to him about it, we hold that his long belated claim that he harbored a subjective, unexpressed confusion about his eligibility for probation as a result of the printed language in the plea form constitutes an...