Brown v. Kelly

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Brown v. Kelly

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Case: 08-60692

Document: 00511215689

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Date Filed: 08/26/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 26, 2010 N o . 08-60692 Lyle W. Cayce Clerk

C L A R A BROWN P e titio n e r-A p p e lla n t v. L A W R E N C E KELLY; Superintendent, Mississippi State Penitentiary R e s p o n d e n t -A p p e lle e

A p p e a l from the United States District Court for the Southern District of Mississippi (Jackson Division) U S D C No. 3:05-cv-00068

B e fo r e HIGGINBOTHAM, DAVIS, and BENAVIDES, Circuit Judges. P E R CURIAM:* C la r a Brown appeals from the district court's denial of her habeas corpus p e t it io n . Brown seeks to set aside her guilty plea for murder, claiming that her p le a was involuntary and was only entered due to ineffective assistance of c o u n s e l. In the proceedings below, a magistrate heard testimony from Brown a n d found credible her claim that she did not understand the charges against h e r . Accordingly, he recommended granting habeas relief. Without rehearing

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 08-60692 t h is testimony, the district judge rejected the magistrate's recommendation and d e n ie d habeas relief. In some circumstances, a district judge's failure to rehear t e s t im o n y like this could be reversible error, since a district judge cannot reject a magistrate's credibility determinations "affecting a person's constitutional r ig h t s " without rehearing the testimony heard by a magistrate. Louis v.

B la c k b u r n , 630 F.2d 1105, 1109 n.3 (5th Cir. 1980). Nevertheless, since the lack o f evidence corroborating Brown's claims means they must fail under AEDPA, w e affirm the district court's denial of habeas relief. I. O n April 11, 2002, Brown pled guilty in Mississippi state court to the m u r d e r of her boyfriend, Charlie Tate. During her plea hearing, Brown was r e p r e s e n t e d by attorney Paul Luckett, who had previously provided her with a " k n o w -y o u r -r ig h ts " form, indicating that she had been charged with murder and t h a t the maximum sentence for murder was life in prison. At the hearing, the s t a t e court judge engaged in a colloquy with Brown to make sure she understood h e r rights and the nature of the crime for which she had been charged. During t h e colloquy, Brown confirmed that Luckett had gone over her indictment with h e r , that Luckett had explained the elements of her crime, and that she was s a t is fie d with his representation. Brown also confirmed that she understood t h a t the "maximum" sentence for murder is life and that "[t]here is no minimum s e n te n c e ." Based on these representations and others, the state court judge fo u n d that "Clara Brown ha[d] knowingly, willingly, freely, voluntarily and in t e llig e n t ly entered her guilty plea." Nevertheless, at times during the plea colloquy, Brown exhibited c o n fu s io n , at one point suggesting that she had not always been represented by c o u n s e l, until she retracted this statement. Brown also indicated that she was o n medication during the hearing for her "nerves" and had taken a sleeping pill, b u t that the only way she could "think clearly" was by taking this medication. 2

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No. 08-60692 A p p r o x im a t e ly a week after her plea hearing, she was formally sentenced to life in prison. S u b s e q u e n t ly , Brown sought post-conviction relief in Mississippi state c o u r t, claiming ineffective assistance of counsel and asserting that her plea was in v o lu n t a r y because she had believed herself to be pleading guilty to m a n s la u g h t e r . She alleged that her attorney Luckett had told her she had been c h a r g e d with manslaughter, for which she would receive a twenty-year sentence r a t h e r than a life sentence. The state trial court rejected her petition for relief; t h e Mississippi Court of Appeals subsequently affirmed the denial of relief in m id -2 0 0 4 . See Brown v. Mississippi, 876 So.2d 422 (Miss. Ct. App. 2004). Specifically, the Mississippi Court of Appeals concluded that Brown had " p r o d u c e d no evidence to support her claim that her counsel failed to advise her o f the maximum penalty she faced," noting that she herself had "acknowledged [d u r in g her plea hearing] that her counsel [had] explained the indictment and e le m e n t s of the crime to her." Id. at 425. H a v in g exhausted her state remedies, Brown then sought habeas relief in fe d e r a l court under 28 U.S.C. § 2254. The district judge assigned Brown's h a b e a s petition to a magistrate, who held an evidentiary hearing in September 2 0 0 7 to hear live testimony from Brown and Luckett. At the hearing, Brown t e s t ifie d that Luckett had told her she was being charged with manslaughter. Luckett denied this, claiming instead that "Ms. Brown told me that she wanted t o plead guilty [to the murder charge because] she was tired and wanted to get it over." After hearing both witnesses, the magistrate concluded in January 2 0 0 8 that Brown had indeed believed herself to be pleading guilty to m a n s la u g h t e r , that her plea to murder was involuntary, and that she was t h e r e fo r e entitled to habeas relief. B r o w n 's "misunderstanding was Specifically, the magistrate found that not the result of any affirmative

m is r e p r e s e n t a t io n on the part of her attorney. Rather, it was the result of 3

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No. 08-60692 B r o w n 's own confusion and mental limitations coupled with the failure of her a t t o r n e y and the trial judge to make certain that she understood." m a g is tr a t e did not explicitly rule on Brown's ineffective assistance claim. T h e State objected to the magistrate's report and recommendation, and in J u ly 2008, the district judge rejected the magistrate's recommendation,1 c o n c lu d in g that Brown's involuntary plea and ineffective assistance claims were b o th meritless. The district judge found that Brown's testimony before the m a g is tr a t e was rebutted by the transcript of her plea hearing, her signature of th e know-your-rights form, and Luckett's testimony. Given these considerations, t h e district judge found that Brown had chosen to plea guilty voluntarily to put t h e matter behind her, after having "committed a public murder before w it n e s s e s who knew her." The district judge also concluded that Luckett had c o m m it t e d no error at all in his representation of Brown. Notably, the district ju d g e did not rehear any of the testimony heard by the magistrate, instead r e ly in g on the transcript of the proceedings before the magistrate. The district c o u r t refused Brown's request for a certificate of appealability ("COA"), but we g r a n t e d a COA to allow Brown to challenge the district court's denial of her in v o lu n t a r y plea and ineffective assistance claims.2 II. " T h e validity of a guilty plea is reviewed de novo," United States v. W a s h in g to n , 480 F.3d 309 (5th Cir. 2007), but the validity of a plea may also The

In her habeas petition, Brown also made an ineffective assistance claim based on Luckett's failure to investigate a theory of self-defense. The magistrate found that this claim was procedurally barred because it had not been raised in state court. The district judge accepted the magistrate's recommendation as to this claim, and Brown has not continued to pursue this claim on appeal. On this appeal, Brown has also challenged the state court's decision to hold her in contempt of court. When we granted a COA to Brown, we stated that "[h]er claims regarding her contempt hearing are raised for the first time on appeal and will not be considered." As such, we do not address them.
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No. 08-60692 t u r n on the resolution of questions of fact. See Marshall v. Lonberger, 459 U.S. 4 2 2 , 431-32 (1983). Similarly, an "ineffective assistance of counsel claim

p r e s e n t s a mixed question of law and fact." Ward v. Dretke, 420 F.3d 479, 486 (5 t h Cir. 2005). When examining such mixed questions, this Court employs "a d e novo standard by independently applying the law to the facts found by the d is t r ic t court, as long as the district court's factual determinations are not c le a r ly erroneous." Ramirez v. Dretke, 396 F.3d 646, 649 (5th Cir. 2005). B r o w n 's claims are governed by AEDPA. Under AEDPA, a federal court m a y not grant habeas relief after an adjudication on the merits in a state court p r o c e e d in g unless the adjudication of the claim (i) "resulted in a decision that w a s contrary to, or involved an unreasonable application of, clearly established F e d e r a l law, as determined by the Supreme Court of the United States" or (ii) " r e s u lt e d in a decision that was based on an unreasonable determination of the fa c t s in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d) (2006). Additionally, under 28 U.S.C. § 2254(e)(1), a state court's fa c t u a l determinations are "presumed to be correct," and the habeas petitioner h a s "the burden of rebutting [this] presumption of correctness by clear and c o n v in c in g evidence." Thus, for Brown to overcome the state court's conclusion t h a t her counsel informed her of the nature of the charges against her and the s e n te n c e she faced, she "must demonstrate, by clear and convincing evidence, t h a t the state court erred." Burton v. Terrell, 576 F.3d 268, 273 (5th Cir. 2009). III. I n it ia lly , we address the failure of the district judge to rehear the t e s t im o n y from Brown and Luckett that led the magistrate to conclude that B r o w n 's petition for habeas relief should be granted. In habeas proceedings, a d is t r ic t judge generally may not reject a magistrate's determination of a w it n e s s 's credibility without rehearing live testimony. It is true that district ju d g e s have almost unlimited authority to "accept, reject, or modify, in whole or 5

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No. 08-60692 in part, the findings or recommendations made by" a magistrate. 28 U.S.C. § 6 3 6 (b )(1 ) (2006); see also Fed. R. Civ. P. 72(b). Nevertheless, when district ju d g e s consider "credibility questions involved in the determination of critical fa c t issues affecting a person's constitutional rights," "the fact finder must o b s e r v e the witness . . . [i]n order to adequately determine the credibility of [the] w it n e s s as to such constitutional issues." Blackburn, 630 F.2d at 1109 n.3, 1110. "This may be accomplished either by the district judge accepting the [credibility] d e t e r m in a t io n of the magistrate after reading the record, or by rejecting the m a g is tr a t e 's decision and coming to an independent decision after hearing the t e s t im o n y and viewing the witnesses." Id. at 1110. I n this case, it is clear that the magistrate recommended granting habeas r e lie f because he found Brown's testimony that she did not understand that she w a s pleading guilty to murder to be credible. It is also clear that the district ju d g e denied habeas relief at least in part because he did not find Brown's t e s t im o n y to be credible. For example, in his opinion, the district judge

e x p la in e d that Brown's testimony was implausible when "placed under the m ic r o s c o p e of credibility." However, the failure of the district judge to rehear B r o w n 's testimony does not automatically necessitate a remand to correct this e r r o r . We have previously suggested that when evidence is "sufficiently telling," a district judge might possibly reject a magistrate's recommendation without r e h e a r in g testimony the magistrate found credible. Jordan v. Hargett, 34 F.3d 3 1 0 , 314 (5th Cir. 1994). As noted above, Brown must demonstrate by "clear and c o n v in c in g " evidence that the state court's conclusion that she was informed of t h e nature of the charges against her is incorrect. See 28 U.S.C. § 2254(e)(1). Consequently, we now assess whether Brown's testimony is sufficiently clear a n d convincing to overcome the state court's rejection of her claims. IV . W e first review Brown's involuntary plea claim and conclude that the 6

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No. 08-60692 d is t r ic t court properly denied habeas relief. "The longstanding test for

d e t e r m in in g the validity of a guilty plea is `whether the plea represents a v o lu n t a r y and intelligent choice among the alternative courses of action open to t h e defendant.'" Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina v . Alford, 400 U.S. 25, 31 (1970)). B r o w n argues that her guilty plea to murder was involuntary because, b a s e d on a variety of factors, she reasonably believed herself to be pleading g u ilt y to manslaughter. Her primary argument is that she claims Luckett told h e r that she had been charged with manslaughter and that she was facing a t w e n t y -y e a r sentence. She also argues that Luckett's alleged failure to inform h e r of the actual charges against her was not cured by her plea colloquy. First, s h e faults the failure of the state court judge to explain the intent necessary to s u p p o r t a murder conviction. She points us to Henderson v. Morgan, where the S u p r e m e Court found that a guilty plea to murder was involuntary because the h a b e a s petitioner had not been "informed that intent to cause the death of his v ic t im was an element of the offense." 426 U.S. 637, 638 (1976). Second, she c o n t e n d s that she was misled during her plea hearing by the state judge's failure t o explain that a life sentence is the mandatory punishment for murder. See M i s s . Code Ann. § 97-3-21 (2006) ("Every person who shall be convicted of m u r d e r shall be sentenced by the court to imprisonment for life in the State P e n it e n t ia r y ." ). He instead characterized life as being the "maximum" sentence fo r murder, which she claims led her to believe that she could have received a t w e n t y -y e a r sentence. Finally, she asserts that the medication she was taking d u r in g her plea hearing and her low level of educational attainment made it d iffic u lt to understand the charges against her without detailed explanation. I n it ia lly , we note that Brown cannot show that her plea was involuntary m e r e ly by pointing to deficiencies in her colloquy with the state judge during her p le a hearing. The Supreme Court has "never held that the judge must himself 7

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No. 08-60692 e x p la in the elements of each charge to the defendant on the record." Bradshaw v . Stumpf, 545 U.S. 175, 183 (2005). "Rather, the constitutional prerequisites o f a valid plea may be satisfied where the record accurately reflects that the n a t u r e of the charge and the elements of the crime were explained to the d e fe n d a n t by [her] own, competent counsel." Id. We also note that there has b e e n no suggestion that Brown was incompetent to enter a plea. To the extent t h a t such a claim would have any merit, it has been defaulted, as it was not r a is e d in the state court proceedings. T h e r e fo r e , the question before us is whether Brown can overcome the state c o u r t 's conclusion that Luckett informed her of the charges against her. She c a n n o t . Recently, we have twice considered habeas petitions filed by prisoners w h o asserted that their attorneys had not informed them of the sentences they w e r e facing and who therefore argued that their guilty pleas were involuntary. See Burton, 576 F.3d at 273; Burdick v. Quarterman, 504 F.3d 545, 548 (5th Cir. 2 0 0 7 ). In both cases, the habeas petitioners' claims were uncorroborated, and o t h e r evidence suggested that the petitioners had been informed of their possible s e n te n ce . Burton, 576 F.3d at 273 (noting that "defense counsel stated at

s e n t e n c i n g that his client faced a maximum penalty of forty years"); Burdick, 5 0 4 F.3d at 568 (defense counsel submitted affidavit stating that he explained s e n t e n c in g range). In both cases, we found that these uncorroborated claims w e r e insufficient to disturb the conclusion in state court that the petitioners' g u ilt y pleas were voluntary. Similarly, in this case, Luckett has denied Brown's c la im s , and her testimony is uncorroborated. Indeed, the record suggests that L u c k e tt did in fact explain to Brown the charges against her. At the plea h e a r in g , Brown confirmed that Luckett had explained the elements of her crime, a ft e r the judge had stated that Brown had been charged with murder and made n o mention of manslaughter. In these circumstances, Brown's testimony alone is not clear and convincing evidence that Luckett did not explain the charges she 8

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No. 08-60692 w a s facing. T h is conclusion is not disturbed by the magistrate's determination that B r o w n did not understand the charges against her. As explained above, the m a g is tr a t e found that Brown's "misunderstanding was not the result of any a ffir m a t iv e misrepresentation on the part of her attorney. Rather, it was the r e s u lt of Brown's own confusion and mental limitations coupled with the failure o f her attorney and the trial judge to make certain that she understood." Even if this were true, and Brown did not understand the charges against her, this w o u ld not provide sufficient grounds for habeas relief. In the habeas context, we h a v e previously held that "[a] guilty plea is not rendered involuntary by the d e fe n d a n t 's mere subjective understanding that [she] would receive a lesser s e n te n c e . . . . [I]f the defendant's expectation of a lesser sentence did not result fr o m a promise or guarantee by the court, the prosecutor or defense counsel, the g u ilt y plea stands." Daniel v. Cockrell, 283 F.3d 697, 703 (5th Cir. 2002),

a b r o g a tio n on other grounds recognized by United States v. Grammas, 376 F.3d 4 3 3 , 437-38 (5th Cir. 2004). Since Brown has not shown by clear and convincing e v id e n c e that her attorney failed to explain the charges she faced, any subjective b e lie f she may have had regarding these charges does not alone provide grounds fo r habeas relief. Thus, the magistrate erred in recommending that Brown's h a b e a s petition be granted, and the district judge correctly refused to grant relief o n this ground. V. W e now review Brown's ineffective assistance of counsel claim, finding a g a in that habeas relief is not warranted. To set aside a guilty plea based on in e ffe c t iv e assistance of counsel, Brown must demonstrate that her "`counsel's r e p r e s e n t a t io n fell below an objective standard of reasonableness'" and that she w a s prejudiced by his poor performance, or rather that "there is a reasonable p r o b a b ilit y that, but for [her] counsel's errors, [she] would not have pleaded 9

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No. 08-60692 g u ilt y and would have insisted on going to trial." Hill, 474 U.S. at 57, 59 (q u o tin g Strickland v. Washington, 466 U.S. 668, 688 (1984)). Brown argues t h a t Luckett's representation was ineffective because he advised her that she w a s facing manslaughter charges, not murder charges. She also alleges that L u c k e tt 's representation was ineffective because he failed to recommend that B r o w n proceed to trial, despite the fact that a guilty plea and jury conviction w o u ld have resulted in the same life sentence. Since Brown had nothing to lose b y going to trial, she claims that Luckett's representation was ineffective. A s already explained, Brown has not established by clear and convincing e v id e n c e that Luckett misrepresented the charges she was facing. As such, this g r o u n d for finding ineffective assistance must necessarily fail. Similarly,

B r o w n 's uncorroborated testimony cannot establish that Luckett failed to advise h e r of the consequences of a guilty plea and her option of going to trial. To the e x t e n t that Brown's claim is that Luckett's representation was deficient because h e did not stop her from pleading guilty, this argument must also fail. The d e c is io n to plead guilty was Brown's, not Luckett's, see Florida v. Nixon, 543 U .S . 175, 187 (2004), and the Supreme Court has rejected the claim that counsel is ineffective simply because he or she did not take an action when "there was n o th in g to lose by pursuing it." Knowles v. Mirzayance, 129 S. Ct. 1411, 1418 (2 0 0 9 ). Given these considerations, we conclude that habeas relief should not be g r a n t e d on Brown's ineffective assistance of counsel claim.3 V I. T h u s , we find that the district court correctly denied Brown's petition for h a b e a s relief. In these circumstances, the district judge's failure to rehear

We note that Brown has not argued that Luckett was ineffective for failing to investigate her competency to plead guilty. Cf. United States v. Howard, 381 F.3d 873, 881 (9th Cir. 2004) (suggesting that in some circumstances counsel might be incompetent for failing to investigate client's competence to enter plea).

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No. 08-60692 B r o w n 's testimony was not error. If the district judge had reheard Brown's t e s t im o n y , found it credible, and granted habeas relief based on the strength of t h is testimony, we would have been obligated to reverse this decision, given the p a u c ity of evidence corroborating Brown's testimony. Thus, it cannot have been r e v e r s ib le error for the district judge to fail to rehear her testimony. Although a witness's credible testimony may provide sufficient grounds for habeas relief i n some cases,4 this is not one of them. Thus, we AFFIRM the district court's d e n ia l of Brown's petition.

The deference due state courts under AEDPA does not mean that habeas relief may never be granted on the basis of a federal court's determination of a witness's credibility. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence.").

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