Jackson v. Andrews

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 8, 2002
• Docket: 01-30023
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 01-30023 _____________________

PERRY JACKSON,

Petitioner - Appellant,

versus

O.K. ANDREWS, Warden, Allen Correctional Center,

Respondent - Appellee. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 00-CV-2534-A _________________________________________________________________ January 7, 2002

Before JOLLY, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Perry Jackson, Louisiana prisoner #106488, filed a petition

for a writ of habeas corpus under 28 U.S.C. § 2254. He alleged

that his guilty plea in state court for possession of cocaine was

involuntary because the plea agreement was breached and because the

court failed to advise him of the possibility of an enhanced

sentence based on his multiple offender status. He also asserted

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 that the trial judge improperly participated in the plea

negotiations and was the moving force behind the plea agreement.

The district court denied habeas relief. We granted a certificate

of appealability (“COA”) on the first two issues only. See 28

U.S.C. § 2253.

I

On July 26, 1999, Jackson pled guilty in Louisiana state court

to possession of cocaine pursuant to a plea agreement. The Waiver

of Rights form signed by Jackson and by his attorney, Donald Pryor,

stated that Jackson knowingly and voluntarily waived: his right to

trial by judge or jury; his right to be presumed innocent; his

right to testify; his right to present witnesses; and his right to

appeal any guilty verdict. Jackson acknowledged that his plea was

not the result of coercion, threat, or force. The form further

noted, in Jackson’s own handwriting, his understanding that his

sentence for possession of cocaine would be thirty months. At the

hearing Jackson verbally acknowledged the waiver of all these

rights. Jackson also stated his satisfaction with the advice and

representation of his attorney. The sentencing court told Jackson

that the maximum possible sentence for his offense was five years.

Jackson was sentenced to thirty months’ imprisonment, to run

concurrently with another sentence he was already serving.

Immediately after the sentencing, the following exchange occurred:

BY THE COURT: It is to run concurrent with case number 371- 420. State, are you filing a multiple bill in this case?

2 BY MR. BLACKBURN: No, Your Honor. We are not going to file it today. We would ask that it be set for a multiple bill hearing.

BY THE COURT: I will set the matter with a date that is convenient for Mr. Pryor. Mr. Pryor, give a date for that please.

BY THE DEFENDANT: Your Honor, can I ask a question?

BY THE COURT: Yes, sir.

BY THE DEFENDANT: To run the sentence concurrent, they put it back out and enhance it?

BY THE COURT: They can always file a multiple bill to enhance the sentence. I assume he’s a second offender? Is he a second offender? A third offender?

BY MR. BLACKBURN: If we prove the multiple bill, I think a lifer, at least a quad.

BY THE COURT: What is going to happen, Mr. Jackson, if the State, in fact, can prove that you are a multiple offender, if they can prove that you are a third offender, your sentence is going to be forty months concurrent with the five years you are serving. If they can only prove you are a second offender, your sentences will remain thirty months current [sic] with the five years you are serving. Do you understand that?

BY THE DEFENDANT: Yes, sir.

Neither Jackson nor his attorney objected or sought to withdraw his

guilty plea. The district court found that there was nothing in

the state court record to suggest that Jackson filed a motion to

withdraw his guilty plea. Jackson asserts that he did file such a

motion. There is no such motion in the state court record;

although there is one in the district court record, it is neither

date-stamped nor certified to have been filed with the state court.

3 Jackson states that the court did not rule on the motion. Jackson

did not appeal his conviction. The State filed a habitual offender

bill of information. On November 23, 1999, Jackson admitted to

being a triple felony offender and was sentenced to five years in

prison, to run concurrently with his other sentence.

Jackson filed a “petition for peremptory writ of prohibition”

challenging the sentence enhancement with the Louisiana Fourth

Circuit Court of Appeal, which denied the writ. Jackson then filed

an “application for reconsideration” which the Fourth Circuit

treated as an application for a supervisory writ, and which it

denied, finding that the plea agreement had not been breached. He

filed a supervisory writ in the Louisiana Supreme Court, which was

denied. Finally, Jackson filed the instant habeas corpus petition.

The district court adopted the magistrate judge’s recommendation

that the petition be denied on the merits.

II

Under § 2254(d), a federal application for a writ of habeas

corpus will not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless the

adjudication of the claim “(1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the

United States; or (2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

4 presented in the State court proceeding.” 28 U.S.C. § 2254(d); see

also Williams v. Taylor, 529 U.S. 362, 411-12 (2000). “[A] federal

habeas court making the ‘unreasonable application’ inquiry should

ask whether the state court’s application of clearly established

federal law was objectively unreasonable.” Williams, 529 U.S. at

409.

A guilty plea must be made intelligently and voluntarily.

Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). Further:

On federal habeas review, a guilty plea which was voluntarily entered by a defendant who understood the nature of the charges and consequences of the plea will pass constitutional muster. The plea will be upheld even if the state trial judge fails to explain the elements of the offense, provided it is shown by the record, or the evidence adduced at an evidentiary hearing if one proves necessary, that the defendant understood the charge and its consequences.

Hobbs v. Blackburn, 752 F.2d 1079, 1080 (5th Cir. 1985). On

federal habeas review, as long as the defendant was informed of the

maximum term of imprisonment, this satisfies the requirement that

the defendant be fully aware of the consequences of his plea. Id.

at 1082, citing Bainbury v. Wainwright, 658 F.2d 1083, 1087 (5th

Cir. 1981).

When a guilty plea “rests in any significant degree on a

promise or agreement of the prosecutor, so it can be said to be

part of the inducement or consideration, such promise must be

fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971). In

order to receive federal habeas corpus relief based on alleged

5 promises that are inconsistent with representations made in open

court, a prisoner must prove: (1) the terms of the alleged promise;

(2) when the promise was made; and (3) the precise identity of an

eyewitness to the promise. United States v. Smith, 915 F.2d 959,

963 (5th Cir. 1990), citing Harmason v. Smith, 888 F.2d 1527, 1529

(5th Cir. 1989).

We have held previously that it is not an abuse of discretion

for a district court to deny a request to withdraw a guilty plea

that is based on the defendant’s claim that he was unaware of the

possible application of career offender enhancement to his sentence

prior to the entry of his guilty plea. United States v. Gaitan,

954 F.2d 1005, 1011 (5th Cir. 1992); see also United States v.

Pearson, 910 F.2d 221, 223 (5th Cir. 1990) (although defendant was

not informed, prior to entry of his plea, of applicability of

career offender enhancement, guilty plea which resulted in twenty

year sentence was not involuntary, where court had informed

defendant prior to accepting his plea that he faced maximum prison

term of twenty years, and presentence investigation (PSI) report

concluded that defendant qualified as career offender and

recommended that enhancement be applied).

In Scrivens v. Henderson, the defendant pled guilty to armed

robbery in Louisiana state court and received a twenty year

sentence under a plea bargain. 525 F.2d 1263, 1264 (5th Cir.

1976). The state then filed a bill of information charging

6 Scrivens with being a multiple offender, and his twenty-year

sentence was ultimately vacated and replaced with a forty-nine and

a half year sentence, the minimum allowed under the Louisiana

multiple offender statute. Id. After pursuing state remedies,

Scrivens filed a petition for a writ of habeas corpus, alleging

that his plea bargain had been breached and that his plea was

therefore involuntary. The district court granted the writ, but we

reversed. Scrivens was aware, before entering his guilty plea,

that his sentence could be increased as a multiple offender. Id.

at 1265. Scrivens testified that part of the plea bargain involved

an agreement that Scrivens would not be sentenced as a multiple

offender; however, Scrivens’ lawyer, the prosecutor, and an

assistant district attorney testified that there was no such

bargain. We noted the testimony of the latter three and additional

evidence that there was no such bargain. We observed that “[p]lea

bargaining ‘must have explicit expression and reliance and is

measured by objective, not subjective, standards’ . . . [M]ere

expectation or hope does not constitute plea bargaining.” Id. at

1267, citing Johnson v. Beto, 466 F.2d 478, 480 (5th Cir. 1972).

Here, unlike in Scrivens, it appears that Jackson was not

aware, before entering his guilty plea, that he could be sentenced

to a longer prison term if he was found to be a multiple offender

at the multiple bill hearing. However, as in Scrivens, there was

no agreement that there would not be a multiple bill hearing nor

7 that Jackson’s sentence would not be enhanced. Jackson was

informed of this possibility immediately after entering his guilty

plea, and yet he did not object or withdraw his plea. Further,

Jackson was informed before entering his plea that he could be

sentenced to up to five years for the cocaine possession charge,

and under Hobbs this is all that is required to ensure that a

defendant is fully aware of the consequences of his plea. 752 F.2d

at 1082. See also United States v. Rodriguez 62 F.3d 723, 725 (5th

Cir. 1995) (district court is not bound by the sentencing

recommendation in a plea agreement; just because the defendant does

not receive the sentence he hoped to receive, this is not a

sufficient basis for withdrawing a guilty plea after sentencing).

Most importantly, under Gaitan, it does not matter that Jackson was

unaware, before entry of his guilty plea, of the possibility of

multiple-offender enhancement of his sentence. See 954 F.2d at

1011. Therefore, the court’s failure to advise Jackson of the

possibility of an enhanced sentence, based on multiple offenses,

before his entry of a guilty plea did not render the plea

involuntary.

Additionally, because there was no agreement as to multiple

offender enhancement, the plea agreement was not breached and

Jackson’s guilty plea was not rendered involuntary on this ground

either.

We thus conclude that the state court proceedings in this

8 matter did not result in a decision that was contrary to, or an

unreasonable application of, clearly established Federal law, nor

did they result in a decision that was based on an unreasonable

determination of the facts.

III

Accordingly, we AFFIRM the district court’s denial of

Jackson’s petition for a writ of habeas corpus.

AFFIRMED.