Jackson v. Andrews

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this opinion should not be published and is not precedent except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.
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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?
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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.
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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
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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).
II
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
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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
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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
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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
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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.
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