Bonner v. Collins

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 13, 1995
• Docket: 95-40201
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-40201

Summary Calendar

CHARLES EDWARD BONNER, Plaintiff-Appellant,

versus

WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas (G-93-CV-107)

(September 25, 1995)

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Charles Bonner appeals from the district court's denial of

his application for a writ of habeas corpus. We affirm.

I. Immunity

Bonner claims the right to enforce an agreement signed by

parole officer Eaves, in which Eaves promised to dismiss certain

charges in return for Bonner's promise to submit to a 90-day term

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. for a technical parole violation. Despite this agreement, Bonner

went to trial in both Chambers and Brazoria counties and was

convicted in both. Nothing in the record indicates that the

trier of fact in either case ever became aware of the agreement,

any statements that Bonner made in connection with it, or any

evidence derived from it. After an unsuccessful application for

state habeas corpus, Bonner sought federal habeas relief of both

convictions in a single petition. Upon the state's motion,

Bonner limited his application to a request for relief from the

Brazoria County conviction for robbery. Upon referral, the

magistrate judge held that the Chambers County state habeas

court's findings were entitled to a presumption of correctness

pursuant to 28 U.S.C. § 2254(d), and therefore adopted that

court's finding that Eaves had no authority to enter into a

binding transactional immunity agreement. The district judge

adopted the magistrate's recommendation of dismissal without

comment.

In essence, Bonner argues that he should be able to enforce

his agreement with Eaves. In doing so, he contests the ability

of the district court to apply the § 2254(d) presumption of

correctness to findings made in the Chambers County state habeas

proceeding because his current federal habeas petition deals only

with the Brazoria County conviction. In particular, Bonner

claims that he is entitled to relitigate the issue of whether

Eaves had actual or apparent authority to enter into a binding

immunity agreement.

2 We decline to reach this issue, choosing instead to affirm

on grounds other than those relied upon in the court below. We

hold that criminal defendants are not entitled to enforce

agreements of this nature even if made with a state attorney-

general.

Bonner states no violation of a federal constitutional

right. The prosecution did not introduce into evidence Bonner's

agreement or any evidence derived from it or any statements or

admissions from Bonner. Cf. Kastigar v. United States, 406 U.S.

441 (1972); United States v. Robertson, 582 F.2d 1356 (5th Cir.

1978). The prosecution did not induce Bonner to aid in

investigating others, cf. United States v. Weiss, 599 F.2d 730,

734 (5th Cir. 1979), nor did it lure Bonner into a guilty plea,

cf. Santobello v. New York, 404 U.S. 257, 262 (1971). See

generally Weiss, 599 F.2d at 736-38. No federal constitutional

provision protects Bonner's expectation interest in the Eaves

agreement. Under such circumstances, no federal constitutional

claim is at issue.

II. Other Issues

Bonner's other claims lack merit. First, Bonner argues that

the state waived its right to make responsive pleadings in the

Brazoria County habeas proceeding. Infirmities in state habeas

corpus proceedings do not, however, constitute grounds for

federal relief. Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th

Cir. 1992), cert. denied, 113 S. Ct. 1958 (1993). Second, to the

extent that Bonner properly raised arguments regarding

3 prosecutorial misconduct and double jeopardy in his opening

brief, we affirm the court below. If any prosecutorial

misconduct occurred, Bonner has not shown that it was "so

pronounced and persistent that it casts serious doubts upon the

correctness of the jur[ies'] verdict[s]." United States v.

Rodriguez, 43 F.3d 117, 124 (5th Cir.) (alterations added), cert.

denied, 115 S. Ct. 2260 (1995). No double jeopardy violation

occurred because the first jury panel in Brazoria County had not

been sworn when the court declared a mistrial. Crist v. Bretz,

437 U.S. 28 (1978). Finally, Bonner has raised other issues for

the first time in his reply brief. We decline to consider

arguments made in this manner. McGruder v. Necaise, 733 F.2d

1146, 1148 (5th Cir. 1984).

For the reasons stated above, we deny both of Bonner's

motions.

AFFIRMED.