United States Court of Appeals,
Fifth Circuit.
No. 92-1648.
Willie D. ARMSTEAD, Petitioner-Appellant,
v.
Wayne SCOTT, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
Nov. 3, 1994.
Appeal from the United States District Court for the Northern District of Texas.
Before KING, JOLLY and STEWART, Circuit Judges.
STEWART, Circuit Judge:
This is a habeas corpus action brought by a state court
prisoner, Willie D. Armstead, alleging ineffective assistance of
counsel in connection with his guilty plea to two counts of
aggravated robbery in Texas state court. The district court denied
relief, affording a presumption of correctness to the factual
findings of the state court. While we find that the district court
erred in affording a presumption of correctness because the state
court did not actually make a factual finding with regard to one of
Armstead's allegations, we nonetheless conclude that Armstead has
not demonstrated he was prejudiced by his counsel's alleged error.
We therefore affirm the district court's denial of relief.
Background
On January 27, 1988, a Dallas County, Texas, grand jury
returned an indictment charging Armstead with the first-degree
felony offense of aggravated robbery in Cause No. F88-77534-S. The
1 indictment alleged a prior felony conviction for attempted capital
murder on November 30, 1976, also in Dallas County, Texas, in Cause
No. F74-9501-H, for enhancement of punishment pursuant to §
12.42(c) of the Texas Penal Code. On January 29, 1988, the Dallas
County grand jury returned a second indictment for a first-degree
felony offense of aggravated robbery in Cause No. F88-77715-JS.
That indictment also was enhanced by the prior conviction for
attempted capital murder.
On March 11, 1988, pursuant to a plea agreement, Armstead pled
guilty to the two charges. The trial court sentenced him to two
concurrent 40-year terms of confinement and a $750 fine. The trial
court further made an affirmative finding that Armstead had used or
exhibited a deadly weapon, a firearm, during the commission of the
offenses. Also on March 11, 1988, Armstead's wife Elaine pled
guilty to one of the robberies, pursuant to a plea agreement. She
was not sentenced until March 24, 1988. She received a sentence of
fifteen years.
Armstead did not appeal his convictions, nor did he ever seek
to withdraw his guilty plea or allege that his plea bargain had
been breached. He filed an application for state habeas relief
challenging the convictions, which the Texas Court of Criminal
Appeals denied on October 18, 1989. On June 11, 1990, Armstead
filed a federal petition for habeas corpus relief. The district
court dismissed the petition with prejudice on July 24, 1992, and
this appeal followed.
Armstead argues on appeal that his defense counsel was
2 ineffective in the following respects:
(i) advising Armstead to waive his right to the examining trial on the date it was scheduled;
(ii) failing to investigate and contact witnesses;
(iii) telling Armstead that he did not wish to try the case because he did not want to blemish his record with a loss;
(iv) advising Armstead to perjure himself;
(v) failing to inform Armstead of his right to have a jury sentence him;
(vi) telling Armstead he would be found guilty of the robbery charges based upon his prior conviction for attempted murder;
(vii) asking Armstead's mother to persuade him to plead guilty; and
(viii) promising him that his wife, Elaine Armstead, would get probation if he pled guilty.
All eight of Armstead's allegations of ineffective assistance
of counsel were raised previously by him in his state habeas
petition. Armstead's showing in support of his state habeas
petition included three affidavits concerning these contentions.
The affiants were Armstead's wife, his mother, and another convict
who happened to be appearing in court on the same day as Armstead
and who allegedly overheard exchanges between Armstead and his
counsel relating to the promise that Armstead's wife would get
probation if Armstead pled guilty.
In response to Armstead's state habeas petition, the state
court requested that Armstead's counsel, Alfredo Campos, Jr.,
submit an affidavit addressing the allegations of the state habeas
petition, and the attorney did so. The Campos affidavit directly
addressed seven of the eight allegations made by Armstead, but it
3 did not address the "false promise" issue at all.
Specifically, Mr. Campos provided the following answers to
defendant's allegations of ineffective assistance of counsel:
(i) he advised Armstead of his right to an examining trial, and Armstead agreed to waive the examining trial in exchange for the offense report;
(ii) he obtained the offense report, had an investigator available, and had information on the three witnesses for trial, all of which he reviewed with Armstead;
(iii) he did not tell Armstead that he feared "blemishing" his record with a loss;
(iv) he never recommended perjury;
(v) he advised Armstead of his right to jury sentencing;
(vi) Armstead misunderstood his statements regarding the prior conviction; he advised him only that, if the enhancement paragraph were found true, it would raise his minimum penalty for sentencing and that it would "weigh heavily on the punishment phase of the trial";
(vii) he did have a telephone conference with Armstead's mother, wherein he "brought her up to date on the status of the case."
The Court found the statements in counsel's affidavit to be
"true, correct and dispositive of the allegations presented by
[Armstead] relative to Mr. Campos." Based upon these adopted
factual determinations, the state court concluded that counsel was
not ineffective and that Armstead entered knowing and voluntary
pleas.
When Armstead filed his federal habeas petition forwarding
these same allegations, the magistrate judge reviewed Armstead's
claims in light of the state court record and Armstead's burden
under Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88
L.Ed.2d 203 (1985), to show that (1) his attorney actually erred,
4 and (2) he would not have pled guilty but for the error. The
Findings, Conclusions and Recommendation of the United States
Magistrate Judge provided as follows:
In [Campos'] affidavit [submitted in the state habeas proceeding, he] specifically denied each of [Armstead's] allegations of error on his part. Moreover, [Campos] also detailed each of the acts which he took on [Armstead's] behalf, including advising him of all the constitutional rights to which he was entitled, his efforts to investigate the case, and his attempts to insure that [Armstead's] guilty plea was knowing and voluntary.... The state court subsequently accepted those statements by [Campos] as true and adopted them as findings of fact in regard to the claim of ineffective assistance of counsel.... Those findings of fact as to the actions of [Campos] must be presumed to be correct, even though they were entered into as a consequence of a hearing by affidavit rather than an in-court evidentiary hearing. (Emphasis added.)
The magistrate judge concluded, and the district court agreed,
that Armstead's habeas petition should be dismissed based upon the
premise that the state court had implicitly found that none of
Armstead's allegations were meritorious.1
Standard of Review
Under 28 U.S.C. § 2254(d), a presumption of correctness must
be accorded findings of fact made by a state habeas court if
supported by the record. Sumner v. Mata, 449 U.S. 539, 546-47, 101
S.Ct. 764, 769, 66 L.Ed.2d 722 (1981); Loyd v. Smith, 899 F.2d
1416, 1425 (5th Cir.1990). Although an ineffective assistance
claim is not purely a fact inquiry, but rather a mixed question of
law and fact, "state court findings of fact made in the course of
1 Under 28 U.S.C. § 2254(d), we afford a presumption of correctness to a state court factual finding except in certain enumerated circumstances. If the state court factual findings are presumed correct, Armstead's federal habeas petition was properly dismissed.
5 deciding an ineffectiveness claim are subject to the deference
requirement of § 2254(d)." Loyd v. Smith, supra (citations
omitted). However, findings not made in the context of a "full and
fair hearing" or otherwise "not fairly supported by the record" as
a whole are not entitled to the "presumption of correctness." 28
U.S.C. § 2254(d)(2) & (8). The requirement that there be a hearing
on the merits may be satisfied in some cases by affidavits—a
so-called "paper hearing"—rather than by an in-court evidentiary
hearing.
To prevail on an ineffective assistance of counsel claim, a
petitioner must satisfy the two-prong test enunciated in Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The Strickland test requires that a habeas petitioner prove not
only that counsel's performance was deficient, but also that the
deficient performance actually prejudiced the defense to such an
extent that there is a reasonable probability that, but for the
attorney's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome of
the proceedings. Strickland, supra, 466 U.S. at 694, 104 S.Ct. at
2068.
In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d
203 (1985), the Supreme Court applied the Strickland two-prong test
to cases involving guilty pleas. Thus, in a guilty plea scenario,
a petitioner must prove not only that his attorney actually erred,
but also that he would not have pled guilty but for the error.
6 Ibid.
With regard to the first prong of the Strickland /Hill test,
if a defendant is represented by counsel and pleads guilty upon the
advice of counsel, "the voluntariness of the plea depends on
whether counsel's advice "was within the range of competence
demanded of attorneys in criminal cases.' " Hill, supra, 474 U.S.
at 56, 106 S.Ct. at 369, quoting McMann v. Richardson, 397 U.S.
759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).
With regard to the prejudice prong, a defendant must
"affirmatively prove" prejudice. Strickland, supra, 466 U.S. at
693, 104 S.Ct. at 2067. A mere allegation of prejudice is not
sufficient to satisfy the prejudice prong of the Strickland test.
A petitioner must establish that but for his counsel's alleged
erroneous advice, he would not have pleaded guilty but would have
insisted upon going to trial. Carter v. Collins, 918 F.2d 1198,
1200 (5th Cir.1990).
This assessment, in turn, will depend in part on a prediction
of what the outcome of a trial might have been. Hill v. Lockhart,
supra, 474 U.S. at 56-58, 106 S.Ct. at 369-370. For example, where
the alleged error of counsel is a failure to investigate or
discover potentially exculpatory evidence, the prejudice inquiry
will depend on the likelihood that discovery of the evidence would
have led counsel to change his recommendation as to the plea. That
assessment, in turn, will depend in large part on a prediction of
whether the evidence likely would have changed the outcome of a
trial. Similarly, where the alleged error by counsel is a failure
7 to advise the defendant of a potential affirmative defense to the
crime charged, the resolution of the prejudice inquiry will depend
largely upon whether the affirmative defense likely would have
succeeded at trial. Id.
Just last year, in Lockhart v. Fretwell, --- U.S. ----, 113
S.Ct. 838, 122 L.Ed.2d 180 (1993), the Supreme Court noted that an
analysis focussing solely on mere outcome determination, without
attention to whether the result of the proceeding was fundamentally
unfair or unreliable, is defective. Lockhart involved an
allegation of ineffective assistance of counsel during a capital
sentencing hearing. The Court noted that the Sixth Amendment right
to effective assistance of counsel is recognized not for its own
sake, but because of the effect it has on the ability of the
accused to receive a fair trial. Thus, in our prejudice inquiry we
should consider (1) whether, but for counsel's error, the defendant
would not have pled guilty but would have insisted upon going to
trial, Hill v. Lockhart, supra, and (2) whether counsel's deficient
performance caused the outcome to be unreliable or the proceeding
to be fundamentally unfair, Lockhart v. Fretwell, supra.
"Unreliability or unfairness does not result if the ineffectiveness
of counsel does not deprive the defendant of any substantive or
procedural right to which the law entitles him." Fretwell, ---
U.S. at ----, 113 S.Ct. at 844. Fretwell thus narrows somewhat the
scope of the Sixth Amendment's ineffective assistance of counsel
doctrine, and thereby further limits the availability of habeas
relief. Joseph L. Hoffmann, Is Innocence Sufficient? An Essay on
8 the U.S. Supreme Court's Continuing Problems with Federal Habeas
Corpus and the Death Penalty, 68 Ind.L.J. 817, 834, n. 80 (1993).
See also U.S. v. Suarez, 846 F.Supp. 892, 895 (D.C.Guam 1994)
(noting that Lockhart may present a more stringent test than
Strickland ).
This Circuit reads Lockhart v. Fretwell as requiring a rather
appreciable showing of prejudice. "If an appreciable showing of
prejudice is required in the capital contest, a requirement for a
showing of significant prejudice applies a fortiori in the
noncapital context." Spriggs v. Collins, 993 F.2d 85, 88, n. 4.
(5th Cir.1993).
Analysis
Adequacy of the "paper hearing"
The first seven contentions
Under 28 U.S.C. § 2254(d)(2), a presumption of correctness
will not apply to a state court finding of fact if the factfinding
procedure employed by the state court was not adequate to afford a
full and fair hearing.
Armstead argues that the district court should not have
afforded a presumption of correctness to the state court's findings
of fact with regard to any of his allegations because no live
evidentiary hearing was held; instead, the state court made its
decision based upon a "paper hearing"—the affidavits submitted by
Armstead and Campos.
While acknowledging that the presumption of correctness may
apply nonetheless to paper hearings in some instances, Armstead
9 argues that in this case a paper hearing was insufficient to form
the basis for the state court's decision to deny him habeas relief.
He points to Nethery v. Collins, 993 F.2d 1154, 1157 n. 8 (5th
Cir.1993), citing Ellis v. Collins, 956 F.2d 76 (5th Cir.1992), in
which this Court noted that "[f]indings based solely on a paper
record are not necessarily entitled to a presumption of
correctness." The Nethery court also repeated a principle it had
stated in May v. Collins, 955 F.2d 299, 312 (5th Cir.1992): "[I]t
is necessary to examine in each case whether a paper hearing is
appropriate to the resolution of the factual disputes underlying
the petitioner's claim."
In Nethery, this Court refused to afford a presumption of
correctness to one of the state court's findings because the state
habeas court held no evidentiary hearing despite the submission of
conflicting affidavits on that issue. In considering the adequacy
of the paper hearing, we noted that Nethery's petition was not
considered by the same judge who had presided over his trial;
thus, there was no meaningful opportunity for the court to assess
the credibility of the conflicting affiants.
Armstead argues that because there was no trial in this case,
a paper hearing was inadequate. He contends that the judge did not
have an adequate opportunity to assess Armstead's credibility.
Thus, Armstead argues that a paper hearing did not afford him a
full and fair hearing. Accordingly, Armstead contends that the
state court factual findings with regard to each of his allegations
should not be given a presumption of correctness, and we should
10 remand for a live evidentiary hearing as to all eight of his
contentions. We disagree.
Unlike the scenario in Nethery, the trial judge in Armstead's
case who made the factual finding with regard to the conflicting
affidavits via the "paper hearing" was the same judge who presided
over Armstead's guilty plea. The judge had the opportunity to
fully assess Armstead during his plea process and determine his
credibility then. He also had the opportunity to assess the
credibility of Alfred Campos as well as Melvin Tryon, the convict
who appeared in his court the same day as Armstead. We find that
in this case a "paper hearing" was adequate for a determination as
to Armstead's allegations. Thus, the state court's factual
findings are entitled to a presumption of correctness under §
2254(d). However, we must point out that the state court made
factual findings only with regard to the first seven of Armstead's
allegations.
As we discuss below, there was no state court factual finding
with regard to the eighth issue raised by Armstead, that of the
false promise. A presumption of correctness can apply only to
findings that were in fact made. See 28 U.S.C. § 2254(d)(1).
We find that, with regard to the first seven of Armstead's
contentions, the district court correctly afforded a presumption of
correctness to the state court's determination that those
allegations were without merit. Accordingly, the district court
properly denied habeas relief to Armstead based on these
contentions.
11 Armstead's "false promise" contention
Our finding that the paper hearing was adequate as to the
first seven of Armstead's allegations is inapposite to an analysis
of whether Armstead is entitled to relief on his eighth contention.
Consequently, we now must turn our attention to whether the
district court properly denied relief based upon that claim.
The primary issue on appeal is thus whether the district court
properly accorded a presumption of correctness to the state court's
supposed implicit "finding" that Armstead's counsel did not make a
false promise to Armstead that his wife, Elaine Armstead, would get
probation if he pled guilty.
We have carefully reviewed the Campos affidavit. It fails to
address in any manner whatsoever Armstead's contention that Campos
promised that Armstead's wife Elaine would get probation if
Armstead pled guilty. We find the absence of any mention of the
alleged false promise suspect given the very detailed responses
Campos gave to defendant's numerous other contentions. It is
impossible to determine whether the absence of information
regarding this allegation was inadvertent or intended. Because
Armstead had included so many contentions in his habeas petition,
and because Campos' response was so lengthy and detailed (the
affidavit was four pages long, almost entirely single-spaced), the
false promise charge may have gone unnoticed by Campos, or the
response Campos may have had to the alleged false promise simply
may have been lost in the shuffle in drafting the affidavit. On
the other hand, Campos may have chosen consciously not to address
12 this charge for some reason unknown to this Court.
We note that a paper hearing would have been adequate to
resolve this dispute. The court could have directed Campos to
supplement his affidavit to directly address the false promise
charge. However, this was not done. The state court merely
adopted the Campos affidavit as submitted as true and dispositive
of Armstead's allegations. We agree with Armstead that the scope
of the state court finding did not extend to the allegation
regarding the false promise. The state court merely determined
that the Campos affidavit was correct. It did not find that
Armstead's affidavit was not credible. Thus, there was no state
court "finding" on the issue of whether Campos made the false
promise to Armstead.2
Whatever the reasons for the omission in the Campos affidavit
of a response to the false promise charge, the state court
apparently failed to notice it. The magistrate repeated the same
mistake, overlooking the fact that neither the Campos affidavit nor
the state court judgment addressed the false promise issue.
Unfortunately, the district court followed suit, and Armstead's
"false promise" charge slipped through the proverbial crack in the
complicated mosaic of allegations that formed Armstead's habeas
petition.
Under 28 U.S.C. § 2254(d)(1), a presumption of correctness is
2 Cf., May v. Collins, supra, 955 F.2d at 305, in which the trial court's finding of fact expressly stated that the affidavits submitted by the habeas petitioner were not credible and unworthy of belief. The state court factual finding in May was afforded a presumption of correctness.
13 not required when the merits of a factual dispute were not resolved
in the state court hearing. This case presents precisely the
scenario envisioned by § 2254(d)(1).
We conclude that it was error for the district court to find
that there had been a state court finding with regard to all of
Armstead's allegations (to which a presumption of correctness must
be afforded) when in fact the state court never made a factual
finding on the issue of whether Campos made the false promise to
Armstead that his wife would get probation if he would plead
guilty.
Strickland /Hill Test
A. Performance prong
Having determined that the district court did indeed err in
applying a presumption of correctness when in fact the false
promise issue was not resolved by the state court, we must analyze
Armstead's ineffective assistance claim based upon an assumption
that his allegations of deficient performance by counsel are true,
i.e., that Campos did promise Armstead that Elaine would get
probation if he pled guilty, when in fact probation was not
available to her.
However, we note that it is only reasonable to look askance at
Armstead's claim. Elaine Armstead's plea agreement plainly states
that she was not to receive probation. She and Armstead signed
their plea agreements on the same day. However, Armstead notes
that Elaine was not sentenced until approximately two weeks later,
and that he did not know she was not going to receive a prison
14 sentence. He points out that a probation officer visited Elaine
the day she pled guilty, also giving him the impression that she
would receive probation. While it is at least feasible that, at
the time he signed the plea agreement, Armstead may have been under
the impression that his wife Elaine would get probation if he plead
guilty, he admits that he learned she received a prison sentence
upon her sentencing. At no time did he object to this. He did not
raise the issue on direct appeal. Had Armstead truly been under
the impression that there was a deal whereby Elaine would receive
probation only, it seems he would have been protesting from the
rooftops upon first learning that Elaine had in fact received
fifteen years. Arguably, he would have tried to have the alleged
agreement enforced or to withdraw his guilty plea. At the very
least, he would have raised the issue on direct appeal. Instead,
he was silent about the alleged false promise until he filed his
state habeas petition in June 1989, some fifteen months after he
and Elaine were sentenced. Armstead, in raising his claim so late,
is attempting to use collateral attack "to service for an appeal,"
which we will not allow. See U.S. v. Walsh, 733 F.2d 31, 34 (6th
Cir.1984), citing Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588,
1590, 91 L.Ed. 1982 (1947).
Moreover, Armstead's own plea agreements reflect no such
promise, but instead contain a recitation that the documents
contain "all of the provisions of said agreement." Further, in the
section of these plea agreement provided for "[a]dditional
provisions of the agreement ..." the space was left empty on one,
15 and the second reflects that the only "[a]dditional provision" was
that the sentences were to run concurrently. Given the fact that
the plea agreements explicitly state that there were no other terms
to his deal, we are less willing to believe Armstead's contention
that he was under the impression that a promise was made. See U.S.
v. Stumpf, 827 F.2d 1027, 1030 (5th Cir.1987) (failure to object to
the omission of an agreement in the written papers filed of record
was grounds for denying relief for any failure to execute that
agreement.)
But assuming arguendo that Campos did make the false promise
to Armstead, when in fact no such "deal" existed, such conduct on
the part of counsel might constitute deficient performance. For
purposes of analyzing Armstead's claim under the Strickland /Hill
test, we assume arguendo that such an act on the part of counsel
would in fact constitute deficient performance. Thus, we presume
that Armstead has met the first prong of the Strickland /Hill test.
B. Prejudice prong
We have concluded that the district court committed error in
deferring to the supposed state court implicit finding with regard
to the false promise allegation, when in fact there was no state
court finding with respect to this issue. Ordinarily, we would
remand this case to the district court for a hearing on the issue
of whether Campos actually told Armstead that his wife would get
probation if he plead guilty, i.e., whether the alleged false
promise was in fact made, because no finding was made as to that
issue below, either by the state court or by the federal district
16 court.
However, in this case, a remand is not necessary because
petitioner has not satisfied the second prong of the Strickland
/Hill test by establishing prejudice. A court need not address
both components of the inquiry if the defendant makes an
insufficient showing on one. Spriggs v. Collins, 993 F.2d 85 (5th
Cir.1993), citing Strickland, supra, 466 U.S. at 697, 104 S.Ct. at
2069-2070. Assuming arguendo that Armstead received ineffective
assistance of counsel, we conclude that he has not met his burden
of affirmatively proving prejudice as required by Hill v. Lockhart,
supra. It would be a waste of judicial resources to remand for a
factual finding on the error prong of the inquiry when the
prejudice prong clearly has not been satisfied. Thus, we affirm
the district court's dismissal of petitioner's habeas claim.
In this case, where the alleged error by counsel is the false
promise that Elaine Armstead would get probation if Armstead
pleaded guilty, an assessment of the prejudice prong of the
Strickland /Hill test will depend at least partly upon whether
Armstead would have succeeded at trial.
Armstead alleged in his petition that he would not have
pleaded guilty but would have insisted upon going to trial had he
not been told that his wife would get probation if he pleaded
guilty. However, this bare allegation is not sufficient to
establish prejudice.
The evidence of guilt against Armstead was strong. The police
had an eyewitness who identified him out of a lineup. They also
17 lifted his fingerprints from the crime scene. Under Hill, the
determination of whether prejudice has been proven depends upon
whether Armstead has affirmatively shown by a reasonable
probability that, but for his counsel's errors, he would not have
pled guilty and would have insisted on going to trial. We conclude
that Armstead has not shown that even in light of the strong
evidence against him, there is a reasonable probability that he
would not have plead guilty and that he would have insisted on
going to trial.
Armstead previously had been convicted of the first-degree
offense of attempted capital murder for shooting a man with a gun
during the course of another aggravated robbery. The seriousness
of that offense, when combined with the knowledge that Armstead
previously shot someone during a robbery, would most probably have
caused a judge or jury to impose a sentence at or near the maximum
sentence possible. An offer of two forty-year concurrent sentences
clearly was a good deal for Armstead. Otherwise he was subject to
receiving two consecutive 99-year (life) sentences.3 With the
forty-year sentence under the plea bargain, Armstead might see his
freedom again. Under the two 99-year sentences, he would surely
live out the rest of his days in prison. In light of these
circumstances, Armstead has not established that but for Campos'
advice, he would have rejected the plea bargain. See Smith v.
McCotter, 786 F.2d 697 (5th Cir.1986) and Long v. United States,
883 F.2d 966 (11th Cir.1989). He has not shown that the guilty
3 See § 12.42 Texas Penal Code.
18 plea process was unreliable or fundamentally unfair. Lockhart v.
Fretwell, supra, --- U.S. at ----, 113 S.Ct. at 841. Moreover, he
has not shown that he was deprived of any substantive or procedural
right to which the law entitles him. Ibid., at ----, 113 S.Ct. at
844.
The instant case is very similar to another case from this
Circuit, United States v. Fuller, 769 F.2d 1095 (5th Cir.1985). In
Fuller, the defendant sought habeas relief, contending that
misinformation given to him by his lawyer invalidated his guilty
plea. The district court had erroneously advised Fuller that the
maximum penalty for his offense was a fifteen-year prison sentence
and a $25,000 fine, when in fact the maximum sentence was only five
years and the maximum fine only $15,000. The attorney failed to
correct the trial judge when he misstated the maximum sentence.
Fuller also maintained that his lawyer advised him to plead guilty
in order to avoid the very strong possibility of receiving the
maximum sentence if he angered the Court by pleading innocent.
Fuller contended that his lawyer advised him that the prosecutor
would recommend a lesser sentence if Fuller would change his plea
to guilty. At the sentencing, the prosecutor made no
recommendation concerning Fuller's sentence and neither Fuller, nor
Fuller's lawyer, called attention to the newly asserted promise
that the prosecutor would recommend a lighter sentence. The
defendant feared that, if he proceeded to trial and were convicted,
he would receive the maximum sentence. Thus, rather than going to
trial, he pleaded guilty in the hope of receiving a lesser
19 sentence. We held that, under the test laid out in Strickland4,
Fuller failed to demonstrate that the misinformation induced him to
enter the plea or that it prejudiced him.
Fuller was faced with what appeared to be overwhelming
evidence of guilt. While it was debatable whether Fuller might
have accepted the risk of the five year sentence in the hope of an
acquittal at trial had he been properly advised that the maximum
sentence was only five years rather than fifteen, we nonetheless
concluded that Fuller was not erroneously induced to believe that
he would benefit from pleading guilty. He was not led to believe
that a guilty plea would reduce his maximum sentence. He merely
pleaded guilty in the expectation of possible consequences graver
than those he actually faced.
Fuller is very similar to the instant case. Armstead was not
erroneously induced into believing that he would benefit from
pleading guilty. He did in fact benefit by pleading guilty in
light of the tremendous evidence against him. In light of the
strong evidence against him, the two concurrent forty year
sentences constituted a beneficial deal for Armstead compared to
the possibility of two consecutive ninety-nine year sentences had
he gone to trial and received the maximum sentence.
In fact, Armstead presents an even stronger case for a finding
of failure to show prejudice than Fuller. In Fuller, it was at
4 Fuller was decided two months before Hill was handed down by the United States Supreme Court; nonetheless, this Court considered Fuller's claim under the Strickland two-prong test even though Hill had not yet applied Strickland in the guilty plea scenario.
20 least debatable that the defendant might have risked going to trial
and receiving a five year sentence rather than pleading guilty in
light of an alleged promise that the prosecutor would recommend a
lesser sentence. Fuller in fact did receive a five year sentence,
and yet we concluded he did not make a sufficient showing of
prejudice. If Fuller did not bear his burden of establishing
prejudice, then, a fortiori, Armstead has not borne his burden of
demonstrating prejudice. Moreover, even if Armstead has arguably
shown at least some prejudice, he clearly has not shown the
"appreciable" amount of prejudice required under Lockhart v.
Fretwell and Spriggs v. Collins, supra.
Conclusion
The state court findings of fact as to the first seven of
Armstead's allegations were properly accorded a presumption of
correctness by the district court. As to Armstead's eighth
contention, that of the false promise, assuming arguendo that
defense counsel's performance was deficient and did in fact make
the false promise when none in fact existed, Armstead has not made
the requisite showing of prejudice. The judgment of the district
court is AFFIRMED.