Turner v. State of Tenn., 3:87-0152.

• Court: U.S. District Court — Middle District of Tennessee
• Writing for the Court: WISEMAN
• Citation: Turner v. State of Tenn., 726 F.Supp. 1113 (M.D. Tenn. 1989)
• Decision Date: 14 December 1989
• Docket Number: No. 3:87-0152.,3:87-0152.
• Parties: James Howard TURNER v. The STATE OF TENNESSEE.

726 F. Supp. 1113

James Howard TURNER v. The STATE OF TENNESSEE.

No. 3:87-0152.

United States District Court, M.D. Tennessee, Nashville Division.

December 14, 1989.

Edward M. Yarbrough and J. Russell Heldman, Hollins, Wagster & Yarbrough, Nashville, Tenn., for plaintiff.

Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., Nashville, Tenn., for defendant.

MEMORANDUM

WISEMAN, Chief Judge.

This case is before the Court on remand from the Sixth Circuit and the United States Supreme Court. James Howard Turner originally sought a writ of habeas corpus from this Court pursuant to 28 U.S.C. §§ 2241(c)(3) and 2254(a) in February of 1987.¹ Turner alleged violation of his Sixth Amendment right to effective assistance of counsel and his Fourteenth Amendment right to due process of law free from vindictive prosecution. This Court conditionally granted the writ, Turner v. Tennessee, 664 F.Supp. 1113 (M.D. Tenn.1987), and the Sixth Circuit affirmed. Turner v. Tennessee, 858 F.2d 1201 (6th Cir.1988). The Supreme Court, however, vacated this Court's judgment and remanded to the Sixth Circuit. Tennessee v. Turner, ___ U.S. ___, 109 S.Ct. 3208, 106 L.Ed.2d 559 (1989). The Sixth Circuit, in turn, remanded the case to this Court. Turner v. Tennessee, 883 F.2d 38 (6th Cir. 1989). For the reasons stated below, this Court orders that the writ shall issue within thirty days unless the State's original plea offer of two years is reinstated for consideration by petitioner.

The underlying facts of this matter have been sufficiently reported in the prior decisions published on this case. Only the facts essential to the instant memorandum and order will be included below.

In the week preceding his trial, prosecutors offered Turner a plea bargain of a two-year unsuspended sentence in return for a plea of guilty. Turner rejected this plea offer, relying upon the advice of his attorney, a Mr. Lance Bailey of Socorro, New Mexico. At trial, Turner was convicted of one count of first degree felony murder and two counts of kidnapping. He was sentenced to life imprisonment for the murder charge, plus concurrent sentences of 40 years for each of the kidnapping charges. The trial judge granted Turner's motion for a new trial on the grounds that Turner had received ineffective assistance of counsel in making the decision to reject the two-year offer and go to trial. While Turner's case was awaiting retrial, the parties again entered plea negotiations. This time, however, prosecutors refused to offer Turner a plea of less than 20 years. After exhausting his state remedies, Turner petitioned this Court for the writ of habeas corpus.

When this petition was first considered, this Court held that ineffective advice to reject a plea offer can infringe the right to effective assistance of counsel guaranteed by the Sixth Amendment. See 664 F.Supp. 1113, 1118-21. This Court also found, after de novo review, that the actions of Turner's counsel "were outside the bounds of reasonableness established by professional norms." Id. at 1121. In addition, this Court held that Turner had been prejudiced by counsel's incompetent advice in that if the advice had been reasonable, Turner probably would have accepted the plea offer. Id. Finally, this Court determined that an appropriate remedy for the violation of Turner's Sixth Amendment rights would be to attach a presumption of prosecutorial vindictiveness to any subsequent plea offer by the State in excess of the original two-year offer. Id. at 1122-26.

Now, the Supreme Court has vacated this Court's judgment and ordered that this case be reconsidered in light of Alabama v. Smith, ___ U.S. ___, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). As explained below, this Court finds as follows: (I) Alabama v. Smith should not have any effect on the outcome of the instant case; (II) because this case was remanded for reconsideration in light of Alabama v. Smith, this Court must assume that the Supreme Court believes that Smith affects the instant case in some way; (III) this Court may remedy the violation of Turner's constitutional rights without reaching the issue of whether a presumption of prosecutorial vindictiveness should apply in this case; specific performance, by the State's reinstatement of the prior two-year plea offer, is an appropriate remedy in this case.

I.

This Court's first ruling on Turner's petition for a writ of habeas corpus centered on the application of a presumption of prosecutorial vindictiveness after a defendant has been through a trial and successfully asserted that his constitutional rights were violated during the proceedings associated with that trial. This Court found that a realistic likelihood of vindictiveness existed in this case and that a rebuttable presumption of prosecutorial vindictiveness should be applied to any plea offer made by the State in excess of its previous offer of two years. Alabama v. Smith, on the other hand, involved possible vindictiveness on the part of a sentencing judge. The trial judge in Smith sentenced the defendant to two concurrent terms of 30 years following a plea agreement between the prosecution and the defendant. ___ U.S. at ___, 109 S.Ct. at 2203, 104 L.Ed.2d at 870. After the defendant successfully withdrew his guilty plea, he went to trial, was convicted, and was sentenced by the same trial judge to concurrent life imprisonment terms plus a consecutive term of 150 years. Id. ___ U.S. at ___, 109 S.Ct. at 2203, 104 L.Ed.2d at 871. The Supreme Court held that a presumption of judicial vindictiveness is improper "where a second sentence imposed after a trial is heavier than a first sentence imposed after a guilty plea." Id. ___ U.S. at ___, 109 S.Ct. at 2206, 104 L.Ed.2d at 875.

The Smith Court's rationale for refusing to apply the presumption of vindictiveness would not appear to apply to the instant case.

In the course of the proof at trial the judge may gather a fuller appreciation of the nature and extent of the crimes charged. The defendant's conduct during trial may give the judge insights into his moral character and suitability for rehabilitation. Finally, after trial, the factors that may have indicated leniency as consideration for the guilty plea are no longer present.

Id. ___ U.S. at ___, 109 S.Ct. at 2206, 104 L.Ed.2d at 874. These factors relied upon by the Court in Smith simply are not present in the instant case. The State — which brought the charges against Turner—surely gained no more knowledge of the nature and extent of the crimes charged by presenting its case to the court and jury. Likewise, the State cannot gain any greater insight into the moral character of a defendant during the relatively short duration of a trial than it has gained over the course of its extended criminal investigation. A judge who sentences a defendant after approving a plea bargain agreement has precious little contact with that defendant. As the Smith Court indicates, a trial provides many more opportunities for the judge to make a personal evaluation as to the sentence which is appropriate for a particular defendant. The prosecution, however, does not reap those same benefits from a trial.

Smith is an important development in the Supreme Court's line of judicial vindictiveness cases because it supplements the Court's holding in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In Pearce, the sentencing judge presided at two trials of the same defendant, while the Smith judge's sentencing decision was made first following a plea agreement then after a trial. As described above, the Supreme Court placed great weight on the insights possibly gained at trial by the Smith judge. In Pearce situations, however, the Court noted that "the sentencing judge who presides at both trials can be expected to operate in the context of roughly the same sentencing considerations after the second trial as he does after the first; any unexplained change in the sentence is therefore subject to a presumption of vindictiveness." Alabama v. Smith, ___ U.S. at ___, 109 S.Ct. at 2206, 104 L.Ed.2d at 874. This analysis applies by analogy to the instant case. The prosecutor who negotiates the plea agreement before both trials can be expected to operate in the context of roughly the same plea offer considerations before the second trial as he does before the first; any unexplained change in the plea offer is therefore subject to a presumption of vindictiveness.

Petitioner's case is not at all the type of situation contemplated by the Smith Court. Prosecutorial vindictiveness and judicial vindictiveness are not one and the same. The only mention of prosecutorial vindictiveness in Smith is in a footnote, where the Court reiterates the necessity of a realistic likelihood of vindictiveness before the presumption can be applied to prosecutorial conduct. ___ U.S. at ___, 109 S.Ct. at 2205 n. 3, 104 L.Ed.2d at 873 n. 3. Referring to its earlier decision in United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), the Smith Court also restated the limitation on the presumption of vindictiveness that "`a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule.'" ___ U.S. at ___, 109 S.Ct. at 2205 n. 3, 104 L.Ed.2d at 873 n. 3, quoting Goodwin, 457 U.S. at 384, 102 S.Ct. at 2494. Both this Court and the Sixth Circuit relied heavily on Goodwin in the initial consideration of Turner's petition. That case states that "a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pre-trial decision." 457 U.S. at 381, 102 S.Ct. at 2493. Nothing in the Smith decision in any way limits Goodwin. Therefore, it appears that this Court's prior decision in this case, inasmuch as it relied upon Goodwin for finding a presumption of prosecutorial vindictiveness, should not be affected by the recent Alabama v. Smith decision by the Supreme...