Turner v. State of Tenn.

• Decision Date: 07 October 1988
• Docket Number: No. 87-5891,87-5891
• Citation: 858 F.2d 1201
• Parties: James Howard TURNER, Petitioner-Appellee, v. STATE OF TENNESSEE, et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1201

858 F.2d 1201

James Howard TURNER, Petitioner-Appellee, v. STATE OF TENNESSEE, et al., Respondents-Appellants.

No. 87-5891.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 19, 1988.

Decided Oct. 7, 1988.

W.J. Michael Cody, Atty. Gen. of Tennessee, Nashville, Tenn., Kymberly Lynn Anne Hattaway (argued), for respondents-appellants.

Edward N. Yarbrough (argued), J. Russell Heldman, Hollins, Wagster and Yarbrough, Nashville, Tenn., for petitioner-appellee.

Before KEITH, MARTIN, and RYAN, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

The State of Tennessee appeals the district court's conditional grant of a writ of habeas corpus. James Howard Turner, who was awaiting retrial in a Tennessee criminal court, petitioned the district court for habeas corpus relief on the grounds that his impending retrial would violate his Sixth Amendment right to the effective assistance of counsel and his Fourteenth Amendment right to due process of law free of vindictive prosecution. The district court conditionally granted the writ, and we now affirm.

I.

Turner and two co-defendants, Earl Carroll and Sam John Passarella, were indicted for the kidnapping of Monte Hudson and his wife and for the murder of Mr. Hudson. The record indicates that the co-defendants accosted the Hudsons in the parking lot of a Nashville Hotel. Mrs. Hudson, who was driven away by Turner, was released unharmed the following day. Mr. Hudson, however, was taken by Carroll and Passarella and murdered.

The co-defendants were tried separately. Carroll agreed to a two-year sentence for simple kidnapping. After a jury trial at which both Carroll and Mrs. Hudson testified, Passarella was convicted of two counts of aggravated assault and sentenced to 70 years in prison.

Turner was represented by Lance Bailey, an attorney from Socorro, New Mexico. Assistant district attorney general John Zimmerman, who also tried the case and is responsible for plea negotiations now, represented the State. Concerned about the trauma that Mrs. Hudson would suffer by testifying at another trial, the State offered Turner the same plea arrangement that Carroll had accepted. This offer remained open until the deadline for settlements imposed by the court. Despite strong recommendations from other attorneys to accept the plea offer, Bailey advised Turner against this offer. The deadline for settlement expired.

On February 9, 1983, Turner was tried before a jury on one count of felony murder and two counts of aggravated kidnapping. Carroll and Mrs. Hudson again testified. Turner was convicted on all three counts and sentenced to life imprisonment for murder plus 40 years on each kidnapping count.

Turner moved for a new trial on the grounds that he had received ineffective assistance of counsel in deciding to reject the two-year plea offer. After an evidentiary hearing, the state trial court granted the motion. State v. Turner, No. C-8536 (Fifth Cir.Ct. for Davidson County Nov. 3, 1983). The Court of Criminal Appeals affirmed, State v. Turner, No. 83-287-III (Tenn.Crim.App. Aug. 7, 1984), and the Tennessee Supreme Court denied permission to appeal and concurred in the result. State v. Turner, No. 83-287-III (Tenn. Dec. 17, 1984).

Pursuant to the order of the state trial court, Turner was detained from the time of his trial in February of 1983 until the Tennessee Supreme Court's decision in December of 1984. Upon remand to the trial court for a new trial, Turner was released on bond and plea negotiations resumed. During these negotiations, the State refused to offer Turner a plea of less than 20 years. Eventually, Turner petitioned the trial court to order the State to reinstate its original two-year offer or, in the alternative, to dismiss the indictment. The state trial court granted Turner's motion on the grounds that the "only way in which the constitutional violation can be neutralized in this case, is to require the State to reinstate the two year plea bargain offer, or to order the case dismissed." State v. Turner, No. C-8536, slip op. at 4 (Fifth Cir.Ct. for Davidson County Feb. 28, 1985).

Pursuant to Tenn.R.App.P. 10, the State applied for an extraordinary appeal. In reversing, the Tennessee Court of Criminal Appeals held that the court could not require the State to make a particular plea bargain offer and that the proper remedy was to remand for a new trial. State v. Turner, 713 S.W.2d 327 (Tenn.Crim.App.1986). The Tennessee Supreme Court denied permission to appeal, State v. Turner, 713 S.W.2d 327 (Tenn.Crim.App.1986), and the U.S. Supreme Court denied certiorari. Turner v. Tennessee, 479 U.S. 933, 107 S.Ct. 407, 93 L.Ed.2d 360 (1986). Trial was set for June 15, 1987. On February 25, 1987, Turner petitioned the federal district court for a writ of habeas corpus pursuant to 28 U.S.C. Secs. 2241(c)(3) and 2254(a).

The district court found that it had jurisdiction to entertain Turner's petition and that Turner had exhausted his state remedies on the issues of the appropriate remedy for deprivation of his right to counsel and the application of the presumption of vindictive prosecution to the subsequent plea bargaining. After deciding that ineffective advice to reject a plea offer can infringe the right to effective assistance of counsel guaranteed by the Sixth Amendment, the district court determined de novo that Bailey's conduct was both incompetent and prejudicial under Strickland v. Washington 66 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Finally, the district court determined that the appropriate remedy for the deprivation of Turner's Sixth Amendment right would be a new plea hearing during which a rebuttable presumption of vindictiveness would attach to any plea offer made by the State in excess of its original two-year offer. Therefore, the district court ordered that a writ of habeas corpus be issued unless the state trial court held such a hearing. Turner v. State of Tennessee, 664 F.Supp. 1113 (M.D.Tenn.1987).

On appeal, the State makes four arguments. First, the State claims that the district court did not have jurisdiction under 28 U.S.C. Sec. 2241(c) to entertain Turner's petition for habeas corpus relief. Second, the State contends that Turner did not exhaust his state remedies regarding his claim of prosecutorial vindictiveness. Third, the State argues that Turner's Sixth Amendment right to the effective assistance of counsel was never violated. Finally, the State maintains that a presumption of prosecutorial vindictiveness should not attach to subsequent plea offers. We consider each of these arguments in turn.

II.

Under 28 U.S.C. Sec. 2241(c)(3), a district court has power to grant habeas corpus relief to a prisoner who is "in custody in violation of the Constitution ... of the United States." The State contends that the district court did not have jurisdiction to entertain Turner's request for habeas corpus relief because Turner was not "in custody in violation of the Constitution." We find no merit to this position. First, it is clear that Turner is "in custody" for the purpose of federal habeas corpus jurisdiction. As we held in Delk v. Atkinson, 665 F.2d 90, 93 (6th Cir.1981), "[o]ne who has been released on bail while awaiting trial is in 'custody' for the purposes of Sec. 2241." Furthermore, Turner clearly claimed to be in custody "in violation of the Constitution." Again as we said in Delk v. Atkinson, "28 U.S.C. Sec. 2241(c)(3) ... does permit the issuance of the writ at the instance of one who claims he is in custody in violation of the Constitution of the United States, regardless of whether a judgment has been rendered." Id. In his petition for habeas corpus relief, Turner alleged that his impending retrial would violate his Sixth Amendment right to the effective assistance of counsel and his Fourteenth Amendment right to due process of law free of vindictive prosecution. Therefore, the district court properly exercised jurisdiction under 28 U.S.C. Sec. 2241(c)(3) over Turner's claim that he was in custody in violation of the Constitution. Accord United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 437 (3d Cir.1982) (a Sixth Amendment right to effective assistance of counsel at the plea bargaining stage is a claim cognizable under federal habeas corpus statutes).

III.

As the Supreme Court stated, "[w]here a state defendant is released on bail or on his own recognizance pending trial or pending appeal, he must still contend with the requirements of the exhaustion doctrine if he seeks habeas corpus relief in the federal courts." Hensley v. Municipal Court, 411 U.S. 345, 353, 93 S.Ct. 1571, 1576, 36 L.Ed.2d 294 (1973). We are convinced that Turner has exhausted his state remedies.

Although the State does not argue otherwise, we note that Turner has exhausted his state remedies with respect to his claim that the scheduled state retrial would violate his right to the effective assistance of counsel: Turner "has taken his claim that he should not be tried again as far as he can in the state courts." Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 302, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984).

The State does, however, argue that Turner failed to exhaust his state remedies with regard to his claim of prosecutorial vindictiveness. On February 12, 1987, the state trial court held a brief hearing during which Turner again rejected the State's twenty-year plea offer and the court set a trial date. The entire transcript of this hearing is ten pages, double-spaced. The State now contends that this transcript which was presented to the district court but was never passed upon by the state appellate courts, contained "new evidence" that placed Turner's claim for relief "in a significantly different and stronger evidentiary position than it was in the state courts."

It is well-settled that a federal habeas corpus petitioner must present the state courts with the same factual and legal claims that he...