Wauford v. State Of New Mexico ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 5 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
LANDREE E. WAUFORD, also
known as Landree Earl Wauford,
Plaintiff-Appellant,
No. 98-2134
v.
(Dist. of New Mexico)
(D.C. No. CIV 97-1335)
STATE OF NEW MEXICO;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has unanimously determined that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
This case is before the court on petitioner Landree Wauford’s application
for a certificate of appealability. Wauford seeks a certificate of appealability so
that he can appeal the district court’s dismissal of Wauford’s 28 U.S.C. § 2254habeas corpus petition. See 28 U.S.C. § 2253(c)(1) (providing that no appeal can
be taken from the denial of a § 2254 habeas petition unless the petitioner first
obtains a certificate of appealability).
Under New Mexico law, “[a]ny person convicted of a noncapital felony . . .
who has incurred one prior felony conviction . . . is a habitual offender and his
basic sentence shall be increased by one year, and the sentence imposed . . . shall
not be suspended or deferred.” N.M. Stat. Ann. § 31-18-17. In 1992, Wauford
was convicted of attempted armed robbery, aggravated burglary, and escape.
Pursuant to New Mexico’s habitual offender statute, the state trial court enhanced
Wauford’s sentence based on a 1983 New Mexico conviction for armed robbery.
In the instant § 2254 petition, Wauford asserts that the habitual criminal
enhancement violates his rights under the Sixth and Fourteenth Amendments
because the 1983 conviction was the result of an unknowing and involuntary
guilty plea. Wauford further alleges that his trial counsel was ineffective for
failing to investigate the 1983 conviction and challenge the habitual offender
enhancement.
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The district court succinctly summarized the procedural history of this case
as follows:
[Wauford] previously filed an application attacking the same
1992 state sentence at issue in this proceeding. Wauford v. State ,
No. CIV-95-0647 NV/RLP. See Duhart v. Carlson , 469 F.2d 471,
473 (10th Cir. 1972) (a court may take judicial notice of its own
record). As grounds for the previous application, [Wauford] claimed
he was denied a speedy trial, his plea was coerced, and he was
denied effective assistance of counsel. He also claimed his sentence
was wrongfully enhanced for a 1983 felony conviction under New
Mexico’s habitual offender statute.
Before counsel was appointed in the previous proceeding,
[Wauford] moved to dismiss the habitual offender claim without
prejudice in order to exhaust the claim in state court. That motion
was granted by the Court. Later, while represented by counsel,
[Wauford] filed a pro se motion to amend the application in order to
reassert the habitual offender claim, alleging that the claim had been
exhausted. The Court dismissed with prejudice [Wauford’s] claims
based on speedy trial, coerced plea, and assistance of counsel,
though no ruling was made on the motion to amend. [Wauford] now
reasserts the habitual offender claim in this proceeding.
Dist. Ct. Order at 1-2. In light of this procedural history, the district court
assumed the petition was not barred as successive or abusive and proceeded to
decide the petition on the merits.
As to the merits of Wauford’s petition, the district court first concluded
that Wauford’s claim about the “misapplication” of the habitual criminal
enhancement was purely a question of state law not congnizable under § 2254.
Dist. Ct. Order at 2 (citing Shafer v. Stratton , 906 F.2d 506, 510 (10th Cir.
1990)). But see Higgins v. Smith , 991 F.2d 440, 442-43 (8th Cir. 1993) (Gibson,
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J., dissenting) (noting conflict among courts as to whether sentence imposed in
excess of that allowed under state law is amenable in habeas petition);
Richardson v. Evans , No. 95-6464, 1996 WL 603278, at *4 (10th Cir. Oct. 22,
1996) (unpublished disposition) (holding in context similar to case at hand that
“[t]he Due Process Clause of the Fourteenth Amendment prohibits courts from
depriving persons of liberty or property as punishment for criminal conduct
except to the extent authorized by state law”). In resolving Wauford’s
ineffectiveness claim, the district court assumed that Wauford’s attorney had not
investigated Wauford’s criminal history or informed Wauford about the
possibility of challenging his 1983 felony conviction. It concluded as a matter of
law, however, that Wauford’s ineffective assistance of counsel claim failed
because the habitual offender enhancement was collateral to his underlying
conviction and Wauford’s counsel had no obligation to inform Wauford about the
possibility of challenging the prior felony conviction. Dist. Ct. Order at 3 (citing
Wiedemer v. Marr , Nos. 96-1161, -1162, 1997 WL 44934 at *2 (10th Cir. Feb. 5,
1997) (unpublished disposition)). But see Richardson v. Tansy , No. 91-2127,
1992 WL 314126, at *3 (10th Cir. Oct. 22, 1992) (unpublished disposition)
(implicitly recognizing that failure to investigate criminal background may
constitute ineffective assistance if counsel’s performance was deficient and that
deficient conduct prejudiced the defendant).
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To be entitled to a certificate of appealability, Wauford must make a
substantial showing of the denial of his constitutional rights. 28 U.S.C. §
2253(c)(2). Wauford can make such a showing by demonstrating the issues
raised are debatable among jurists of reason, an appellate court could resolve the
issues differently, or the issues raised deserve further proceedings. Barefoot v.
Estelle , 463 U.S. 880, 893 & n.4. (1983). Because each of the legal grounds
identified by the district court in dismissing Wauford’s petition is reasonably
debatable and because the district court’s dismissal of the § 2254 petition can be
easily affirmed on the merits, this court grants Wauford a certificate of
appealability and proceeds to the merits.
Our review of the record leads us to conclude that the district court did not
err in dismissing Wauford’s petition. The record on appeal contains copies of
Wauford’s Plea and Disposition Agreement to the 1983 felony as well as a copy
of the Guilty Plea Proceeding. In each of these documents, Wauford specifically
acknowledges that he is entering the plea knowingly and voluntarily.
Furthermore, in the Plea and Disposition Agreement, Wauford’s attorney attests
that he has discussed the case in detail with Wauford and advised Wauford of all
his constitutional rights. Finally, in the Guilty Plea Proceeding, the trial judge
specifically found that Wauford had “knowingly, voluntarily, and intelligently
plead[ed] guilty” to the charged crimes. These documents clearly demonstrate on
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their face that Wauford’s 1983 guilty plea was knowing and voluntary. See
United States v. Davis , 929 F.2d 554, 557-58 (10th Cir. 1991) (finding trial
court’s journal entry sufficient to prove voluntary and intelligent plea where
journal entry recited that “the plea was freely and voluntarily made with an
understanding of the nature of the charge and consequences of the plea”).
Accordingly, Wauford’s claim that his 1983 conviction was involuntary and,
therefore, cannot be counted under New Mexico’s habitual offender statute is
without merit.
Wauford’s ineffective assistance claim is similarly without merit. In light
of the documents referenced above, there is no real probability that Wauford
would have refused the 1992 plea and insisted on going to trial had his counsel
further investigated his prior conviction. More to the point, this court cannot say
it is likely that any further investigation of Wauford’s prior conviction would
have changed the outcome of the 1992 plea negotiations. Thus, Wauford has
failed to demonstrate any constitutional violation. See Richardson v. Tansy , No.
91-2127, 1992 WL 314126, at *3 (10th Cir. Oct. 22, 1992) (unpublished
disposition) (rejecting claim of ineffective assistance arising from facts almost
identical to those in the instant case on the ground the petitioner had suffered no
prejudice).
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The judgment of the district court dismissing Wauford’s § 2254 petition is
hereby AFFIRMED .
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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