Payrot v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-10792 Summary Calendar

ALLEN DAVID PAYROT,

Plaintiff-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:96-CV-876-Y - - - - - - - - - - April 28, 1998 Before WISDOM, WIENER, and DENNIS, Circuit Judges,

PER CURIAM:*

Allen David Payrot appeals the district court’s denial of

his habeas corpus petition filed under 28 U.S.C. § 2254. Payrot

pleaded guilty to aggravated sexual assault of a child and was

sentenced to ten years of probation. Later, Payrot violated his

probation. After his probation was revoked, Payrot again pleaded

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 97-10792 -2-

guilty to aggravated sexual assault of another child. He was

sentenced to a twenty-year term of imprisonment.

Payrot filed a state habeas corpus application contending

that his second guilty plea was involuntary because his counsel

failed to discover that the complainant was 15 years old, a fact

which would have negated the element of aggravation in the

offense. The Texas Court of Criminal Appeals granted Payrot’s

application and reversed his conviction. Ex parte Payrot, No.

71,788 (Tex. Crim. App. December 15, 1993)(unpublished). On

remand, the jury found Payrot guilty of the lesser offense of

sexual assault of a child. The trial court sentenced Payrot to

20 years of imprisonment to run consecutive to an unrelated ten-

year sentence Payrot received for the aggravated assault of a

police officer.

In this current petition Payrot contends that the district

court violated his due process and equal protection rights

because the only explanation for his new, increased sentence was

judicial vindictiveness. The district court issued a certificate

of appealability on this issue. Because Payrot filed his habeas

corpus application after the effective date of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), review is

governed by AEDPA jurisprudence. See Lindh v. Murphy, 117 S. Ct.

2059, 2068 (1997).

Payrot argues that a presumption of vindictiveness exists in

his case. Payrot did not raise this argument in his objections No. 97-10792 -3-

to the magistrate judge’s report and recommendation; therefore,

we review for plain error. See Douglass v. United Servs. Auto.

Assn., 79 F.3d 1415, 1428 (5th Cir. 1996)(en banc). Plain error

“[c]ontemplates an error that was clear under current law”. See

United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.

1995)(en banc). We have carefully reviewed his arguments. We

hold that the court’s failure to find a presumption of

vindictiveness is not plain error. Indeed, Payrot was sentenced

by two different judges, making such a presumption highly

unlikely. United States v. Moore, 997 F.2d 30, 38 (5th Cir.

1993). Furthermore, Payrot’s harsher sentence is supported by

his intervening conviction and ten-year prison sentence for the

aggravated assault of a police officer. See id. Finally, there

is no case law to support Payrot’s argument that a presumption of

vindictiveness arises automatically when a defendant’s second

sentence is for a lesser offense than the first but the prison

term is greater.

Payrot also argues that his second sentence was a result of

actual vindictiveness. We have reviewed the record and find no

merit to Payrot’s argument. Payrot’s intervening conviction and

sentence support the harsher sentence, and the trial court that

issued the second sentence was not constrained by a plea

agreement.

The district court did not err in denying Payrot’s federal

habeas corpus petition. No. 97-10792 -4-

AFFIRMED.