Baugh v. Lumpkin ( 2023 )

Case: 22-50335 Document: 00516731214 Page: 1 Date Filed: 04/28/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50335
Summary Calendar FILED
____________ April 28, 2023
Lyle W. Cayce
Trevor Aaron Baugh, Clerk
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CV-121
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Trevor Aaron Baugh, Texas prisoner # 02134262, appeals the denial
of his 28 U.S.C. § 2254 application challenging his jury-trial conviction and
sentence for robbery. He contends that the district court erred by denying
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50335 Document: 00516731214 Page: 2 Date Filed: 04/28/2023
No. 22-50335
on the merits his claim that his attorney rendered ineffective assistance
during his plea hearing.
As this court did not grant a certificate of appealability on Baugh’s
claim that his due process rights were violated by Texas habeas laws and
procedures, we lack jurisdiction to consider it. See United States v. Alaniz,
5 F.4th 632, 635 (5th Cir. 2021). We need not decide whether the Texas
Court of Criminal Appeals denied Baugh’s state habeas claim on the merits
such that 28 U.S.C. § 2254(d) applies because Baugh’s claim fails even under
de novo review. See Ward v. Stephens, 777 F.3d 250, 256 (5th Cir. 2015).
Contrary to Baugh’s contention, he is required to show both that
counsel performed deficiently and that Baugh was prejudiced by that
deficient performance. See Strickland v. Washington, 466 U.S. 668, 689-94
(1984); Beets v. Scott, 65 F.3d 1258, 1265-72 & n.8 (5th Cir. 1995) (en banc)
(holding that presumption of prejudice under Cuyler v. Sullivan, 446 U.S.
335, 348 (1980), applies only to cases involving counsel’s representation of
multiple clients with adverse interests). Since the plea-hearing transcript
reasonably may be understood to indicate that Baugh maintained that he was
innocent of committing robbery, his attorney did not perform deficiently by
failing to advocate more forcefully for the acceptance of the plea offer at
issue. See Lafler v. Cooper, 566 U.S. 156, 162-63 (2012). Nor does Baugh’s
trial testimony establish prejudice by showing that he would have been willing
to plead guilty to robbery under the plea offer; at trial, he admitted only to
having committed acts sufficient to support a conviction for theft, not
robbery. See id. at 163; Howard v. State, 333 S.W. 3d 137, 138 (Tex. Crim.
App. 2011) (holding that, to commit robbery, defendant must be “aware that
his conduct is reasonably certain to place someone in fear” of imminent
bodily harm).
AFFIRMED.
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