Lollar v. Cockrell , 77 F. App'x 701 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 22, 2003
Charles R. Fulbruge III
Clerk
No. 02-41397
Summary Calendar
MICHAEL CRAIG LOLLAR,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:01-CV-162
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Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Michael Craig Lollar, Texas inmate #822448, appeals the denial
of his 28 U.S.C. § 2254 petition. Lollar pleaded guilty to a
charge of aggravated sexual assault of a child and was sentenced by
the court to life imprisonment and a $5,000 fine.
The district court granted Lollar a certificate of
appealability (“COA”) on his claims that (1) his plea of guilty was
involuntary in that Lollar’s waiver of a jury trial on punishment
*
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that this opinion should not be published and is not precedent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.
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was predicated on counsel’s erroneous advice that the jury would
not be instructed on parole eligibility; (2) ineffective assistance
of counsel at the punishment phase; (3) ineffective assistance of
counsel in that his attorney failed to prepare for the trial or the
punishment phase of the proceeding; (4) ineffective assistance of
counsel relating to the polygraph examinations; (5) ineffective
assistance of counsel stemming from the disclosure of information
relating to the polygraph, thus breaching the attorney-client
privilege; and (6) overall ineffective assistance of counsel.
Federal habeas relief may not be granted on questions
adjudicated on the merits by a state court unless the state court’s
decision (1) was contrary to or was an unreasonable application of
clearly established federal law as determined by the Supreme Court;
or (2) was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding. 28
U.S.C. § 2254(d). Lollar concedes that the state court applied the
correct federal legal standard.
A state-court decision involves an unreasonable application of
clearly established federal law if the state court “‘correctly
identifies the governing legal rule but applies it unreasonably to
the facts of a particular prisoner’s case.’” Williams v. Taylor,
529 U.S. 362, 407-08 (2000). “‘An application of law to facts is
unreasonable only when it can be said that reasonable jurists
considering the question would be of one view that the state court
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ruling was incorrect.’” Morris v. Cain, 186 F.3d 581, 584 (5th
Cir. 1999).
To establish a claim of ineffective assistance of counsel, a
petitioner must show that counsel’s deficient performance caused
him prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).
A failure to establish either deficient performance or prejudice
defeats the claim. Id. at 697. To demonstrate prejudice in a
guilty plea context, a petitioner must show that there is a
reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). Prejudice in the
sentencing context requires a showing that the sentence was
increased due to counsel’s error. Glover v. United States, 531
U.S. 198, 203, 204 (2001).
Lollar contends that counsel’s advice that a jury would not be
instructed on the amount of time that he had to serve prior to
becoming eligible for parole caused him to waive the right to have
the jury assess punishment and rendered his plea involuntary.
Lollar asserts that the erroneous advice caused him to waive the
right to have the jury assess punishment.
The record shows that Lollar understood the charges, was
admonished as to the constitutional rights he was waiving and the
sentence that he faced, and entered a knowing and voluntary plea.
See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969). Lollar
admitted that he made the ultimate decision to have the judge
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impose sentence. Lollar has not shown that counsel’s advice
resulted in an increased sentence. Glover, 531 U.S. at 203, 204.
Lollar contends that counsel’s lack of preparedness for the
hearing on punishment deprived him of the effective assistance
of counsel. He asserts that counsel did not familiarize himself
with the presentence investigation report (“PSI”), particularly the
section containing the Sexual Assessment Inventory (“SAI”) results;
counsel did not consult Lollar’s therapist or any other expert in
psychology; counsel did not present an expert witness in
psychology; and counsel did not investigate the psychological
factors used to predict the likelihood of recidivism. Lollar
contends that counsel did not inquire whether the State intended to
present witnesses at the punishment hearing; did not move for a
continuance when he learned that witnesses would testify; and did
not request notice that the State intended to introduce evidence of
extraneous offenses. Lollar argues that counsel did not insure
that he had sufficient time to review the PSI; did not make sure
that Lollar had reviewed the PSI; and did not review the PSI with
Lollar.
Lollar asserts that counsel was unprepared to and did not
rebut the State’s evidence and that counsel did not present
mitigation evidence on the issues of Lollar’s remorse and his
likelihood of recidivism. Lollar argues that counsel should have
presented Lollar’s apology video and expert witnesses to rebut the
State’s expert’s testimony. Lollar asserts that counsel did not
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argue for deferred adjudication and that counsel argued for Lollar
to receive a severe sentence.
The record shows that counsel was sufficiently prepared
and familiar with the PSI, adequately cross-examined the
State’s witnesses, and tried to rebut the State’s evidence. Lollar
has not shown prejudice from counsel’s surprise at the State’s
presentation of witnesses or from counsel’s failure to consult
Lollar regarding the PSI. Lollar has not shown that a continuance
would have been granted and would have been helpful. Lollar has
not shown that the introduction of the apology video would have
resulted in a reduced sentence; he has not indicated the content of
the video, nor has he explained how this would have affected his
sentence in light of the fact that victim did not receive the
video, and his apology letter was before the court.
Lollar has not shown that the judge would have considered
deferred adjudication and that counsel’s remark that Lollar
deserved “severe punishment” affected his sentence. Lollar has not
shown that the introduction of expert evidence would have resulted
in a less harsh sentence. Glover, 531 U.S. at 203, 204. Lollar
contends that counsel was ineffective because he revealed negative
polygraph results; did not advise Lollar that he had the right not
to disclose the results of the polygraphs; did not protect the
attorney-client privilege and allowed Lollar to admit offenses to
his wife and family; advised Lollar to take additional polygraph
examinations; disclosed the results of the additional polygraphs
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without Lollar’s knowledge or consent; did not advise Lollar that
he had the right to obtain other counsel; and did not withdraw
despite strong reservations about cross-examining a child witness.
Lollar argues that if he had known that he could have withheld the
polygraph results, he would not have pleaded guilty. He insists
that counsel’s decisions cannot be considered sound strategy.
The reasonableness of counsel’s challenged conduct must
be judged on the facts of the particular case, viewed as of
the time of counsel’s conduct. Strickland, 466 U.S. at 690.
“Counsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable
professional judgment.” Id. “A conscious and informed decision on
trial tactics and strategy cannot be the basis for constitutionally
ineffective assistance of counsel unless it is so ill chosen that
it permeates the entire trial with obvious unfairness.” Green v.
Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997).
At the punishment hearing, counsel objected to preserve the
attorney-client privilege as to matters discussed in the office by
the polygraph operator, counsel, and Lollar. Counsel admitted that
as part of a strategy, Lollar and he decided to share information
with the police. Lollar admits that he revealed information about
the charged offense and other offenses to third parties.
The state court found that Lollar and his attorney decided to
openly discuss the charges with the prosecution in order
to mitigate the sentence. The state court also found that
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the polygraph operator testified to facts that were divulged to the
prosecution as a result of decisions made by Lollar and his
attorney. These findings are presumed correct, and Lollar has not
provided clear and convincing evidence to rebut them. 28 U.S.C.
§ 2254(e)(1).
The record shows that Lollar agreed to the initial strategy of
taking a polygraph to avoid indictment and to preserve his
reputation. Lollar was informed of counsel’s strategy and
acquiesced in the decisions. Lollar has not shown that reasonable
jurists considering the question of the reasonableness of counsel’s
defense strategy would be of one view that the state court ruling
was incorrect. See Morris, 186 F.3d at 584. Lollar has not shown
that the state courts’ decisions were unreasonable
applications of clearly established federal law. 28 U.S.C.
§ 2254(d).
Lollar has not briefed the issue of overall ineffective
assistance of counsel. Accordingly, the issue is waived. Smith v.
Cockrell, 311 F.3d 661, 679 n.12 (5th Cir. 2002).
Lollar has not requested a COA on the claims of ineffective
assistance of counsel on which the district court denied a COA,
i.e., that counsel had a conflict of interest and that counsel
abandoned Lollar and became an agent of the State. Accordingly, we
do not address these issues. United States v. Kimler, 150 F.3d
429, 431 (5th Cir. 1998).
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Lollar asserts that he would not have pleaded guilty
if counsel had advised him that he had the right to keep the
polygraph results confidential and the right to go to trial
even though counsel thought that he was guilty. Lollar contends
that he should have been afforded an evidentiary hearing.
The district court did not grant a COA on these issues, and Lollar
has not requested a COA. We do not reach these issues. Kimler,
150 F.3d at 431.
Lollar has not shown that the state-court decisions that
resulted in the denial of habeas relief were contrary to or were an
unreasonable application of clearly established federal law as
determined by the Supreme Court, or that the decisions were based
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. 28 U.S.C.
§ 2254(d). Accordingly, the judgment of the district court is
AFFIRMED.