Gilbert v. Anderson

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 96-60077 Summary Calendar

RAY ALEXANDER GILBERT,

Petitioner-Appellant,

VERSUS

JAMES V. ANDERSON, SUPERINTENDENT, MISSISSIPPI STATE PENITENTIARY,

Respondent-Appellee.

Appeal from the United States District Court For the Southern District of Mississippi (3:93-CV-525-LN) May 15, 1997

Before WISDOM, KING, and SMITH, Circuit Judges. PER CURIAM:*

Ray Alexander Gilbert, Mississippi state prisoner # 69516,

appeals the dismissal of his petition for habeas corpus under 28

U.S.C. § 2254. Gilbert argues that his counsel rendered

ineffective assistance by failing to raise a speedy-trial defense

on his behalf. He further alleges that, as a result of this

* Pursuant to Local Rule 47.5, the court has determined t hat this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. failure, his guilty plea was not knowing and voluntary.

A valid guilty plea waives all non-jurisdictional defects,

including an ineffective assistance of counsel claim, unless the

ineffective assistance claim affects the voluntary nature of the

plea. Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). If a

defendant enters a guilty plea on the advice of counsel, whether

the plea was voluntary and knowing turns on whether the advice

rendered was within the range of competence demanded of attorneys

in criminal cases. Hill v. Lockhart, 474 U.S. 52, 56 (1985). To

prove ineffective assistance of counsel, the defendant must prove

that his counsel’s performance was both deficient and prejudicial

to him. Strickland v. Washington, 466 U.S. 668, 687 (1984). In

the context of a guilty plea, the defendant must show that, but

for his counsel’s errors, he would not have pleaded guilty and

would have insisted upon going to trial. Hill, 474 U.S. at 57-

58; Joseph v. Butler, 838 F.2d 786, 791 (5th Cir. 1988).

The record shows that Gilbert was facing a life sentence for

murder, a 20-year sentence for parole violations, and a 30-year

sentence for possession of cocaine. Gilbert’s counsel testified

that he thought the proposed plea agreement was a good deal. He

further indicated that, in his judgment, a speedy trial defense

was unlikely to succeed and would only jeopardize the proposed

plea agreement. Counsel’s advice that Gilbert accept the

proposed plea agreement was a strategic choice that was within

2 counsel’s professional judgment. “Strategic choices made after

thorough investigation of facts and law are virtually

unchallengeable”. Black v. Collins, 962 F.2d 394, 401 (5th Cir.

1992). Gilbert has shown neither deficiency nor prejudice as

required by Strickland. The district court’s dismissal of

Gilbert’s petition for habeas corpus is AFFIRMED.

Finally, the interests of justice do not require appointment

of counsel for Gilbert. See Schwander v. Blackburn, 750 F.2d

494, 502 (5th Cir. 1985). Accordingly, the motion for

appointment of counsel is DENIED.