Uresti v. Lynaugh, 86-2229

• Decision Date: 17 July 1987
• Docket Number: No. 86-2229,86-2229
• Citation: 821 F.2d 1099
• Parties: Joseph Manuel URESTI, Petitioner-Appellant, v. James, A. LYNAUGH, Interim Director, Texas Department of Corrections, Respondent-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1099

821 F.2d 1099

Joseph Manuel URESTI, Petitioner-Appellant, v. James, A. LYNAUGH, Interim Director, Texas Department of Corrections, Respondent-Appellee.

No. 86-2229

Summary Calendar.

United States Court of Appeals Fifth Circuit.

July 17, 1987.

Rehearing Denied Aug. 20, 1987.

Joseph Manuel Uresti, pro se.

Liz Bills, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Margaret Portman Griffey, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before POLITZ, WILLIAMS, and JONES, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Joseph Manuel Uresti, represented by court-appointed counsel, pled guilty in the state district court in Houston, Texas, to the felony offense of aggravated rape. On March 15, 1977, he was sentenced to 35 years in prison pursuant to a plea agreement with the state. There was no direct appeal. He has exhausted state court remedies in two habeas applications, which were denied without written order on June 14, 1978 and October 20, 1982, respectively.

He filed this petition pursuant to 28 U.S.C. Sec. 2254 in federal district court. In his petition he alleged (1) his counsel was ineffective and, as a result, his guilty plea was involuntary; (2) his indictment was fundamentally defective as it failed to allege the elements of aggravated rape; and (3) he was beaten into signing a confession. The district court denied relief on March 17, 1986. Uresti filed a timely notice of appeal. On May 7, 1986, the district court denied leave to proceed on appeal in forma pauperis and also certificate of probable cause on grounds that Uresti could not make a rational argument on law or the facts to support his claim for relief. This Court granted certificate of probable cause and leave to appeal in forma pauperis on September 30, 1986.

Issue 1: Guilty Pleas--Ineffectiveness of Counsel.

The major issue in this case grows out of Uresti's guilty plea and alleged ineffective assistance of his court-appointed counsel, Victor Blaine, in connection with it. Uresti claims that his guilty plea was not voluntarily entered because: (1) Blaine told him that he would "appeal" the case only if Uresti accepted the district attorney's offer of a 35 year plea bargain and Blaine would not go to trial with Uresti if he did not accept the 35 year bargain; (2) Blaine laughed at him when he said he wanted a trial by jury and told him that if he went to trial he would get 99 years, and that he would be very lucky if the court allowed him to plead guilty for 60 years; and (3) Blaine gave him erroneous advice on a clear point of law.

For Uresti to establish ineffective assistance of counsel he must meet the two-pronged test set out in Strickland v. Washington, 466 U.S. 668, 678, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This test requires first, "a showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment," and second, there must be a showing that the deficient performance so prejudiced the defense that defendant was deprived of a fair trial. This two-part test for ineffective assistance of counsel applies when a guilty plea is attacked on grounds of ineffectiveness. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). When a defendant complains about attorney error concerning a plea, Strickland 's prejudice prong requires a showing that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial. 106 S.Ct. at 370.

At the time of Uresti's first state habeas application, Uresti's appointed trial counsel filed an affidavit concerning the facts surrounding his representation of Uresti. The state habeas court made findings of fact based in part on this affidavit. It found that attorney Blaine interviewed Uresti, obtained a psychiatric examination for him, had more than one conference with the assistant district attorney handling the case in which he read the state's file, received a copy of Uresti's confession and a copy of the psychiatric examination, and interviewed Uresti's grandmother, mother, and girlfriend. Further, Blaine stated that Uresti was advised of the plea recommendations of the state, that Uresti pleaded guilty voluntarily and knowingly, and he was fully advised of his rights of appeal.

Findings of fact made after an evidentiary hearing are entitled to a presumption of correctness. 28 U.S.C. Sec. 2254(d); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). The state court's hearing by affidavit was sufficient to invoke the presumption, Smith v. Estelle, 711 F.2d 677, 681 (5th Cir.1983), cert. denied, 466 U.S. 906, 104 S.Ct. 1685, 80 L.Ed.2d 159 (1984), and, therefore, the findings about Blaine's investigation and advice must be presumed correct. The state court's determination that the plea was voluntary for constitutional purposes, however, is a question of federal law and is not a fact question subject to the requirements of 28 U.S.C. Sec. 2254(d). Marshall v. Lonberger, 459 U.S. 422, 428, 103 S.Ct. 843, 847-48, 74 L.Ed.2d 646 (1983).

Blaine's affidavit raises one serious question as to whether Uresti's plea was voluntary. Blaine stated that he told Uresti of the offer of a 35 year plea bargain, negotiated down from an original 60 year bargain, and that Uresti indicated he wanted to think it over for a few days. Blaine stated he feared that the offer would be withdrawn, and also that jailhouse lawyers would advise Uresti to his detriment. So he told Uresti "that if he did not accept the recommended thirty-five (35) year plea on that day he, the attorney, would request permission of the Court to permit him to withdraw as his attorney and ask the court to appoint someone else...." Blaine concluded that he did not yell at Uresti, did not laugh at him, but that "he did use what persuasion he could reasonably muster to convince [him] to plead guilty."

It should first be emphasized that Blaine did not threaten "abandonment" and no representation. Instead he indicated he would ask to withdraw and have another attorney appointed. No case directly on point has been found. But the conclusion that Blaine acted properly follows with clarity from the guidance of two cases. In Jones v. Estelle, 584 F.2d 687, 690 (5th Cir.1978), the Court held that a claim that an attorney's "impatience and stern demand for a quick answer, when added to the threat of a life sentence if the case went to trial," was insufficient to show that mental coercion overcame the petitioner's free will in making a guilty plea. Then in Diaz v. Martin, 718 F.2d 1372, 1378 (5th Cir.1983), cert. denied, 466 U.S. 976, 104 S.Ct. 2358, 80 L.Ed.2d 830 (1984), the Court stated that "[i]f the accused refuses to accept proper representation, the lawyer should either withdraw or inform the court fully about the limited nature of the service he has been...