Pappas v. Prince et al

Filing 20

ORDER & REASONS: Before the Court is Respondent Howard Prince's ("Prince") Motion for Reconsideration and Relief from Order, (Rec. Doc. 18) wherein he requests the Court reconsider its prior Order granting Petitioner Vasilios Pappas (& quot;Pappas") an evidentiary hearing on two of Pappas' claims for federal habeas corpus relief. The Court has considered the parties' respective filings, the record, and the applicable law. For the reasons stated, IT IS HEREBY ORDERED that Prince's Motion for Reconsideration and Relief from Order (Rec. Doc. 18) is GRANTED; IT IS FURTHER ORDERED that Pappas' claims for federal habeas corpus relief on the grounds of an invalid guilty plea and ineffective assistance of counsel are DISMISSED WITH PREJUDICE. Signed by Judge Nannette Jolivette Brown on 10/18/2013. (rll, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
VASILIOS PAPPAS

CIVIL ACTION

VERSUS

NO. 12-0423

HOWARD PRINCE

SECTION: "G" (1)

ORDER AND REASONS
Before the Court is Respondent Howard Prince's ("Prince") Motion for
Reconsideration and Relief from Order,1 wherein he requests the Court reconsider its
prior Order granting Petitioner Vasilios Pappas ("Pappas") an evidentiary hearing on two
of Pappas' claims for federal habeas corpus relief. The Court has considered the parties'
respective filings, the record, and the applicable law. For the reasons that follow, the
Court will grant the Motion for Reconsideration and Relief from Order and dismiss
Pappas' claims for federal habeas corpus relief with prejudice.
I. Background
A. Factual Background2
Pappas is a state prisoner incarcerated in Elayn Hunt Correctional Facility in St.
Gabriel, Louisiana. On April 27, 2009, he pleaded guilty under Louisiana law to three
counts of sexual battery, two counts of second degree kidnapping, four counts of false
imprisonment with a dangerous weapon, five counts of aggravated battery, and one count
of second degree battery. On April 27, 2009, the state court sentenced Pappas, pursuant to
a plea agreement, to serve a term of 15 years without probation, parole, or suspension of

1

Rec. Doc. 18.

2

The following factual background derives from the Court's Order and Reasons that Prince
requests the Court to reconsider. See Rec. Doc. 17 at pp. 1-3.

1

sentence, a term of ten years, and a term of five years, all to run concurrently. On April
30, 2009, Pappas filed a motion to alter his sentence or, in the alternative, withdraw his
plea; he withdrew this motion on July 10, 2009.
On or about May 10, 2010, Pappas filed an application for post-conviction relief
with the state district court. On June 2, 2010, the state court dismissed two of Pappas's
claims and ordered the state to file a response to his remaining claim. On November 11,
2010, Pappas filed a motion to withdraw his guilty plea. On November 16, 2010, the state
court denied both the remaining post-conviction claim and the motion to withdraw his
guilty plea. Pappas appealed these decisions, and they were denied by both the Louisiana
First Circuit Court of Appeal and the Louisiana Supreme Court.
On or about February 13, 2012, Pappas filed the instant federal application for
habeas corpus relief. In support of his application, he asserted the following claims:
1. His counsel was ineffective for failing to appeal the denial of a motion to quash
2. His guilty pleas were invalid because he was erroneously led to believe that he
would be eligible for "good time" early release; and
3. His counsel was ineffective for leading him to believe he would be eligible for
a "good time" early release.
The state conceded that Pappas's application was timely, but argued that the application
should be dismissed as a "mixed" petition because he had not yet exhausted his statecourt remedies with respect to the claim of ineffective assistance of counsel for failing to
appeal the denial of a motion to quash. In response, Pappas filed a motion requesting that
he be allowed to withdraw that unexhausted claim and proceed only on his two exhausted
claims.

2

B. The Court's Prior Order and Reasons
This Court issued an Order with Reasons on February 27, 2013, wherein it
adopted the magistrate judge's recommendation to allow Pappas to withdraw his
unexhausted claim.3 However, the Court rejected the magistrate judge's recommendation
to dismiss Pappas' remaining two claims with prejudice.4 First, the Court disagreed with
the magistrate judge's determination that "there is no evidence that the eligibility for
'good time' was a negotiated term of the plea agreement."5 Instead, this Court found that
Pappas' April 30, 2009, motion to alter or modify his sentence specifically stated that he
was under the false impression that he was eligible for "good time."6 Moreover, the Court
noted that Pappas had "provided this Court with several affidavits of people attesting to
the importance of the 'good time' eligibility in his decision to accept the plea agreement."7
Therefore, the Court determined that Pappas was entitled to an evidentiary hearing to
determine whether Pappas "would be able to meet his steep burden" to establish his
claims for relief.8
Second, the Court rejected the magistrate judge's determination that Pappas had
not established the prejudice prong of the analysis for a claim of ineffective assistance of
counsel. Specifically, the Court found that "there is evidence in the record to support
Pappas' contention" that he would not have entered the guilty plea but for his lawyer's

3

Rec. Doc. 17 at pp. 15-16.

4

Id. at pp. 16-19.

5

Id. at pp. 16-17 (quoting Rec. Doc. 15 at p. 13).

6

Id. at p. 17.

7

Id.

8

See id. at pp. 16-19.

3

erroneous advice that Pappas would be eligible for "good time" release.9

The

Court

accordingly determined that Pappas "is entitled to an evidentiary hearing to attempt to
satisfy his burden on his ineffective assistance of counsel claim." 10 Prince filed the
pending motion for reconsideration on March 4, 2013. 11 Pappas filed a "Traverse to
State's Motion to Reconsider and Relief from Order" on March 15, 2013.12 The matter
was set for submission on March 27, 2013.
II. Parties' Arguments
A. Prince's Arguments in Support of Granting Relief
Prince does not contest the Court's order allowing Pappas to withdraw his
unexhausted claim. However, Prince argues that the Court's decision to order an
evidentiary hearing on Pappas' remaining two claims is contrary to the United States
Supreme Court's recent decision in Cullen v. Pinholster. 13 He asserts that Pinholster
limits a federal court's review of a habeas claim that has been adjudicated on the merits
in state court to the record that was before the state court.14 Prince likewise contends that
the Fifth Circuit "has rejected the notion that a federal court can consider evidence for the
first time on habeas review if the evidence is offered merely to support a claim that has
already been presented to the state courts."15 Prince concludes by asserting that "[t]here is
no dispute that the two claims at issue were denied on the merits by the state court, and

9

Id. at p. 19.

10

Id.

11

Rec. Doc. 18.

12

Rec. Doc. 19.

13

Rec. Doc. 18-1 at pp. 1-4 (citing 131 S.Ct. 1388 (2011)).

14

Id. at pp. 3-4.

15

Id. (citing Lewis v. Thaler, 701 F.3d 783 (5th Cir. 2012)).

4

accordingly, any consideration of an evidentiary hearing is governed by § 2254(d)."16
Accordingly, he contends that the Court "should consider the claims solely on the basis of
the state court record."17
B. Pappas' Arguments in Opposition
Pappas argues in response that Prince "has read more into Pinholster than it
actually provides." 18 In particular, Pappas argues that the Supreme Court's decision
"never prohibited a federal court from 'ever' conducting a federal evidentiary hearing in a
state court conviction on habeas challenge."19 Pappas further highlights that this Court's
prior Order including findings that (1) the evidence before the state court here establishes
that there was a prima facie breach of the terms of Pappas' plea agreement; (2) Pappas
was erroneously informed of the plea's terms; and (3) that Pappas' counsel met the
deficiency prong of the test for ineffective assistance of counsel.20 Thus, Pappas argues
that the Court "obviously . . . found that the state court decision was based on an
unreasonable application of clearly established federal precedent." 21 He asserts that
because the state court's determination was unreasonable, the Court acted within its
"complete authority" to order an evidentiary hearing.22
Pappas contends that "[t]he evidence the Federal Judge made [its] determination
from was that same evidence contained in the state-court record."23 He contends that the

16

Id. at p. 4.

17

Id.

18

Rec. Doc. 19 at p. 1.

19

Id. at p. 3 (emphasis in original).

20

Id. at p. 3.

21

Id. at p. 4.

22

Id.

23

Id.

5

sole point of the evidentiary hearing ordered in this case is to allow demonstration of the
prejudice element of Pappas' ineffective assistance of counsel claim. 24 Moreover, he
asserts that the state court adjudicated the merits of this claim, but he argues that
"obviously it was clearly wrong in its unreasonable application of the established federal
law and the facts before the state-court."25
Pappas also contends that Prince's reading of Pinholster would render 28 U.S.C. §
2254(e)(2) superfluous.26 He argues further that a majority of the justices of Supreme
Court favor "allowing federal habeas evidentiary hearings on state court convictions."27
Pappas asserts that his claims were not actually "adjudicated on the merits" in state court
because the "mere rejection of the claims by the state-courts, did not adjudicate the merits
of the claims." 28 Therefore, he concludes, an evidentiary hearing is proper. Finally,
Pappas avers that if the evidence Pappas seeks to present in the federal evidentiary
hearing was "not diligently offered in the state-court proceedings" then the Court should
find that failure to constitute ineffective assistance of counsel by his state post-conviction
attorney.29
III. Standard of Review for Motion for Reconsideration
Although the Fifth Circuit has noted that the Federal Rules "do not recognize a
'motion for reconsideration' in haec verba,"30 it has consistently recognized that such a
motion may challenge a judgment or order under Federal Rules of Civil Procedure 54(b),
24

Id.

25

Id.

26

Id. at p. 5.

27

Id. at p. 6.

28

Id. at p. 8.

29

Id.

30

Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990).

6

59(e), or 60(b).31 Such a motion "calls into question the correctness of a judgment,"32 and
courts have considerable discretion in deciding whether to grant such a motion. 33 In
exercising this discretion, courts must carefully balance the interests of justice with the
need for finality.34 Courts in the Eastern District of Louisiana have generally considered
four factors in deciding motions for reconsideration, which are typically decided under
the Rule 59(e) standard:
(1) the motion is necessary to correct a manifest error of law or fact upon which
the judgment is based;
(2) the movant presents newly discovered or previously unavailable evidence;
(3) the motion is necessary in order to prevent manifest injustice; or
(4) the motion is justified by an intervening change in controlling law.35
A motion for reconsideration, "serve[s] the narrow purpose of allowing a party to
correct manifest errors of law or fact or to present newly discovered evidence." 36
Reconsideration, therefore, is not to be lightly granted. 37 The motion must "clearly
establish" that reconsideration is warranted.38 When there exists no independent reason
for reconsideration other than mere disagreement with a prior order, reconsideration is a
waste of judicial time and resources and should not be granted.39

31

Id. (Rules 59 and 60); Castrillo v. Am. Home Mortg. Servicing, Inc., No. 09-4369, 2010 WL
1424398, at *3-4 (E.D. La. Apr. 5, 2010) (Vance, C.J.) (Rule 54).
32

Tex. Comptroller of Pub. Accounts v. Transtexas Gas Corp. (In re Transtexas Gas Corp.), 303
F.3d 571, 581 (5th Cir. 2002).

33

Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993).

34

Id. at 355-56.

35

See, e.g., Castrillo, 2010 WL 1424398, at *4 (citations omitted).

36

See Waltman v. Int'l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989).

37

Templet v. HydroChem, Inc., 367 F.3d 473, 478-79 (citation omitted).

38

Schiller v. Physicians Res. Group Inc., 342 F.3d 563, 567 (5th Cir. 2003).

39

Livingston Downs Racing Ass'n v. Jefferson Downs Corp., 259 F.Supp. 2d 471, 481 (M.D. La.
2002). See also Mata v. Schoch, 337 BR 138, 145 (S.D. Tex. 2005) (refusing reconsideration
where no new evidence was presented). See also FDIC v. Cage, 810 F.Supp. 745, 747 (S.D. Miss.
1993) (refusing reconsideration where the motion merely disagreed with the court and did not
demonstrate clear error of law or manifest injustice).

7

IV. Law and Analysis
A. Law – Habeas Petitioner's Entitlement to Evidentiary Hearing
As amended by the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C. § 2254 limits the power of a federal court to grant a state
prisoner's petition for a writ of habeas corpus.40 In particular:
Section 2254(a) permits a federal court to entertain only those applications
alleging that a person is in state custody "in violation of the Constitution
or laws or treaties of the United States." Sections 2254(b) and (c) provide
that a federal court may not grant such applications unless, with certain
exceptions, the applicant has exhausted state remedies.41
Additionally,
If an application includes a claim that has been "adjudicated on the merits
in State court proceedings," § 2254(d), an additional restriction applies.
Under § 2254(d), that application "shall not be granted with respect to
[such a] claim ... 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 presented in the State court
proceeding.42
Accordingly, as the United States Supreme Court has explained, the AEDPA sets "a
difficult to meet and highly deferential standard for evaluating state-court rulings, which
demands that state-court decisions be given the benefit of the doubt."43
Moreover, "[s]ection 2254(d)(1) refers, in the past tense, to a state-court
adjudication that 'resulted in' a decision that was contrary to, or 'involved' an
unreasonable application of, established law. This backward-looking language requires

40

Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).

41

Id.

42

Id.

43

Id. (citations and internal quotation marks omitted).

8

an examination of the state-court decision at the time it was made."44 Thus, "review under
§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits."45 The same limitation applies to the review of the reasonableness of
the state court's determination of the facts under section 2254(d)(2).46
The Fifth Circuit applied this precedent in Smith v. Cain.47 Specifically, the Fifth
Circuit in Cain held that a district court may properly order an evidentiary hearing when
it has first determined, under the AEDPA section 2254(d)(1), that the state court's
determination of a habeas petitioner's claim "was contrary to, or at least involved an
unreasonable application of, clearly established Federal law."48
In Cain, the Fifth Circuit upheld the use of an evidentiary hearing to develop the
record on a habeas petitioner's challenge of the state's peremptory strikes at trial.49 The
district court had first determined, pursuant to a magistrate judge's report and
recommendation, that the state court's rejection of Smith's Batson challenge "was
contrary to, or at least involved an unreasonable application of, clearly established
Federal law."50 The district court then adopted the magistrate judge's recommendation
that Smith's habeas relief be granted in the form of an evidentiary hearing on his Batson
claim.51 The Fifth Circuit held that "the district court did what section 2254(d)(1) allows,

44

Id.

45

Id. (emphasis added).

46

See Blue v. Thaler, 665 F.3d 647, 656 (5th Cir. 2011).

47

Smith v. Cain, 708 F.3d 628 (5th Cir. 2013).

48

Id. at 634.

49

Id. at 631.

50

Id. at 634.

51

Id. At the close of the evidentiary hearing and supplemental briefing based upon the expanded
record, the district court "concluded that Smith did not carry his burden of proving purposeful
discrimination and denied his application for a writ of habeas corpus." Id. at 633. Smith appealed,

9

and what Pinholster does not forbid."52 Therefore, this Court must consider, based on the
record before the state court, whether the state court's rejection of Pappas claims was
contrary to, or at least involved an unreasonable application of, clearly established
Federal law or was based on an unreasonable determination of the facts. If the Court
reaches such a conclusion, it is empowered under Smith v. Cain to order an evidentiary
hearing on Pappas' claims. Otherwise, Pappas' claims must be dismissed pursuant to
section 2254(d).
The Court acknowledges that in its Order & Reasons granting Pappas an
evidentiary hearing, it referenced affidavits that Pappas had provided to the Court, and
the April 30, 2009, motion to alter his sentence. These documents, however, were not
part of the record considered by the state court.53 As noted above, Pinholster limits the
Court's section 2254 review to the contents of the record that was before the state court.
Accordingly, the Court finds reconsideration appropriate here in that it inappropriately
considered evidence not before the state court when it made its initial determination.
B. Analysis – Section 2254 Review of Pappas' Claims
Pappas seeks habeas relief on two grounds. First, he alleges that his guilty plea
was invalid. Second, Pappas alleges that he was denied effective assistance of counsel
because he would not have entered into the plea agreement had he known he was
ineligible for "good time" early release. Because this Court's review under section
2254(d) is limited to the record that was before the state court, it will be helpful to
determine what that record does, and what it does not, contain.
arguing that he was entitled to federal habeas relief in the form of remand to the state trial court.
Id. at 634.
52

Id. at 634.

53

Rec. Doc. 17 at p. 17.

10

1. Contents of the State Record
It is undisputed that the affidavits that Pappas submitted to this Court in his
objections to the magistrate judge's Report and Recommendation are not part of the
record submitted to the state court. In his objections, Pappas asserts that he provided the
affidavits to this Court, attached to his objections to the Report and Recommendation, as
a "preview" of the evidence he could provide at an evidentiary hearing on his claim.54
Additionally, the Court has reviewed the five-volume record and is satisfied that it does
not contain the affidavits. Therefore, again reconsideration here is appropriate and
pursuant to section 2254(d) and Pinholster, the Court will reconsider Pappas' claims for
habeas relief without regard to the affidavits submitted with his objection to the
magistrate judge's Report and Recommendation.
As noted above, Pappas filed a motion on April 30, 2009, to alter his sentence or
withdraw his plea.55 He withdrew this motion on July 10, 2009.56 Pappas did not present
the motion, or the certifications made therein by Pappas' lawyer, to any of the state postconviction courts that adjudicated his claims. Instead, at Pappas' post-conviction hearing
before the trial judge, Pappas chose to limit the evidence on this question, and all issues
related to the validity of his guilty plea, to the transcript of the April 27, 2009, sentencing
hearing.57 In particular, the court asked Pappas' attorney, "there's not the necessity for any
testimony or anything else in this hearing; is that correct? It's going to be submitted on

54

Rec. Doc. 16 at p. 15.

55

See Rec. Doc. 9 (Answer) at p. 2 (noting Pappas' motion to reconsider and reform sentence was
filed on April 30, 2009).

56

See State Rec., Vol. II, Motion to Withdraw Motion to Reconsider and Reform Sentence, and
Order granting motion.
57

State Rec. Vol. II, Tr. of November 16, 2010, hearing at p. 3.

11

the transcript and argument?" 58 Pappas' attorney replied, "Absolutely, Your Honor." 59
After that court denied Pappas' claims for post-conviction relief, Pappas appealed to
Louisiana's First Circuit Court of Appeal and the Louisiana Supreme Court. Pappas did
not present any new evidence to those tribunals, and he instead argued his claims based
solely upon the transcript of the April 27, 2009, sentencing proceedings and on the
transcript of the November 16, 2010, post-conviction proceedings before the trial court.
In short, the withdrawn April 30, 2009, motion to reconsider Pappas' sentence was not
presented to any post-conviction state court. Accordingly, it cannot be considered here.
Therefore, the only evidence this Court may consider as it analyzes Pappas' claims are the
transcripts for the April 27, 2009, and November 16, 2010, proceedings.
2. Validity of Guilty Plea
Pappas contends that the state breached the plea agreement, arguing that Pappas
"was repeatedly assured he would only be required to serve 85% of the sentence
imposed" before he would be released from prison.60
When a defendant pleads guilty based on a promise by a prosecutor, "whether or
not such a promise is fulfillable, breach of that promise taints the voluntariness of his
plea."61 However, relief for such a breach is warranted only "when a plea rests in any
significant degree on a promise or agreement of the prosecutor, so that it can be said to be
part of the inducement or consideration."62

58

Id.

59

Id.

60

See Rec. Doc. 14 at p. 7.

61

McKenzie v. Wainwright, 632 F.2d 649, 651 (5th Cir. 1980) (citing Brady v. United States, 397
U.S. 742, 755 (1969)).

62

Santobello v. New York, 404 U.S. 257, 262 (1971).

12

The state court that denied Pappas' post-conviction motion to withdraw his guilty
plea determined that Pappas' plea agreement "was finally arrived at after lengthy
negotiation that involved a plea to many violations of various statutes involving
numerous victims, and not an inducement to enter the guilty plea because of any
erroneous advice given by counsel."63
According to the transcript of the April 27, 2009, sentencing proceeding, the
judge who sentenced Pappas noted that Pappas was "attempting to plead guilty pursuant
to an understanding which you have of your sentence" and informed Pappas that "the 15year sentence imposed is without benefit of probation, parole, or suspension of
sentence."64 The transcript of the proceedings continues:
BY MR. PAPPAS:
Say again. Without benefit of?
BY THE COURT:
Probation, parole, or suspension of sentence. . . .
BY MR. PAPPAS:
So that means I would do how much of the 15?
BY THE COURT:
I'm not going to represent to you how the Department of
Corrections is going to compute your time. All I'm going to tell you is that
I'm imposing that sentence, and however they compute good time or
anything else is completely up to the Department of Corrections.
BY MR. PAPPAS:
Okay.
BY THE COURT:
All right. Now is that your understanding of the sentence?
...
BY MR. PAPPAS:
Yes.
BY THE COURT:
You've discussed all of this with your attorney?
BY MR. PAPPAS:
Yes, sir.
BY MR. FAWER [Pappas' attorney]:
63

State Rec. Vol. II, Tr. of November 16, 2010, hearing at p. 13.

64

State Rec., Vol. II, Tr. of Proceedings of April 27, 2009, at p. 26.

13

For the record, Your Honor, just so you understand what I
said to Mr. Pappas, is that would be a max of 85 percent of the 15.
BY THE COURT:
I can't represent that.
BY MR. FAWER:
I know that. I'm just telling you what I said. It can't be more
than that, and, of course, then there's credit for time served.
BY MR. OUBRE [prosecutor]:
My understanding is that 85 percent is a good time rate. It's
something that he has to earn, so it could be more than that if there was
bad behavior in prison.
BY MR. FAWER:
I understand that, but it's 85 percent.
BY THE COURT:
There will be credit for time served. I am not denying good
time, but how the Department of Corrections computes your sentence is up
to them, not me. Do you understand that?
...
BY MR. PAPPAS:
Yes.65
This colloquy tends to establish that Pappas expected that he would be eligible for
good time, because Pappas clearly asked the trial court how much of the sentence he
would have to serve and because his attorney expressly invoked the provision and
asserted that he had explained it to Pappas. Moreover, the transcript establishes, at a
minimum, that the prosecution was aware that Pappas believed he was eligible to try to
earn "good time" early release. However, the transcript does not establish whether the
plea agreement between the state and Pappas was actually conditioned upon Pappas'
eligibility for "good time." The prosecutor's statement that his "understanding is that 85
percent is a good time rate" that Pappas would have to earn is not itself evidence of what
the plea agreement actually contained. Nowhere in the transcript does the prosecution or
defense attorney state that a condition of the plea agreement was that Pappas would serve
85 percent of his sentence.
65

Id. at pp. 26-28 (emphasis added).

14

Therefore, because the state post-conviction court lacked any evidence as to
whether Pappas' eligibility for good time release was a condition of the agreement, the
state post-conviction court's decision to deny relief on this claim cannot be contrary to, or
involve an unreasonable application of, clearly established federal law that allows habeas
relief for a breach of a plea agreement that "rests in any significant degree on a promise
or agreement of the prosecutor, so that it can be said to be part of the inducement or
consideration."66 Accordingly, because AEDPA section 2254(d)(1) requires deference to
such a determination based upon the record before the state court, the Court cannot
disturb it, and so Pappas' claim for federal habeas relief on this claim must be denied.
3. Ineffective Assistance of Counsel
Pappas' second claim for habeas relief is that his counsel rendered
unconstitutionally ineffective assistance. The United States Supreme Court has
established that the test for ineffective assistance of counsel based upon entry of a plea
agreement requires a habeas petitioner to establish two things.67 First, he must show that
his attorney's conduct was not within the range of competence demanded of attorneys in
criminal cases. 68 Next, the petitioner must establish that "counsel's constitutionally
defective performance affected the outcome of the plea process."69

66

Santobello, 404 U.S. at 262 (emphasis added).

67

Hill v. Lockhart, 474 U.S. 52, 58-59 (1985) (citations and internal quotation marks omitted).

68

Id. (citations omitted).

69

Id. at 59.

15

a. Counsel's Conduct in Failing to Determine that Pappas was
Ineligible for "Good Time" Early Release.
The Supreme Court has clearly established that defendants are entitled to
representation that does not "fall below an objective standard of reasonableness." 70
Moreover, as the Fifth Circuit has explained in the context of advising a defendant on
whether to plead guilty,
[i]t is the lawyer's duty to ascertain if the plea is entered voluntarily and
knowingly. He must actually and substantially assist his client in deciding
whether to plead guilty. It is his job to provide the accused an
'understanding of the law in relation to the facts.' The advice he gives need
not be perfect, but it must be reasonably competent. His advice should
permit the accused to make an informed and conscious choice. In other
words, if the quality of counsel's service falls below a certain minimum
level, the client's guilty plea cannot be knowing and voluntary because it
will not represent an informed choice. And a lawyer who is not familiar
with the facts and law relevant to his client's case cannot meet that
required minimal level.71
Here, Pappas' lawyer stated during his sentencing hearing that he had advised
Pappas of his eligibility for "good time" early release. However, Pappas was not
ineligible. Therefore, counsel was not "familiar with the . . . law relevant to his client's
case." Instead, Pappas' counsel led him to believe that it was possible that he could serve
less time, if he behaved appropriately during incarceration, than was legally possible. In
short, the lawyer's ignorance of the law regarding whether "good time" early release
applied to Pappas' charged crimes rendered Pappas unable to make "an informed and
conscious choice" to plead guilty. Accordingly, this conduct amounted to a
constitutionally defective performance.

70

See Hill, 474 U.S. at 57 (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)).

71

Herring v. Estelle, 491 F.2d 125, 128 (5th Cir. 1974) (emphasis added).

16

b. Prejudicial Effect of Counsel's Unreasonable Conduct
Even so, Pappas next must establish 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."72 As discussed above, the state court record contains the transcript of the
sentencing proceedings.
The state court that denied Pappas' post-conviction motion to withdraw his guilty
plea determined that "I don't think there was a reliance on [the defense attorney's]
representations of good time that induced him to make the plea."73 That court, which also
presided over the April 27, 2009, sentencing proceeding, reasoned that during the
sentencing proceeding the court had "adequately rehabilitated any misunderstanding that
may have arisen, and I don't think there was a reliance that would support the granting of
post-conviction relief."74
However, during the April 27, 2009, sentencing proceeding, the trial court stated
that "how the Department of Corrections computes your sentence is up to them, not
me[,]" and it further informed Pappas that "part of the sentence is if you do not do a
hundred percent of your time and if you are released on parole, you will have to register
as a sex offender." 75 This statement is not by itself sufficient to "rehabilitate[] any
misunderstanding" regarding Pappas' sentence, because it never informed Pappas that he
was statutorily ineligible for "good time" early release. In contrast to statements by
Pappas' counsel during that same proceeding, and by reference to good time by the

72

Hill, 474 U.S. at 59.

73

State Rec. Vol. II, Tr. of November 16, 2010, hearing at p. 12.

74

Id. at p. 13.

75

State Rec., Vol. II, Tr. of Proceedings of April 27, 2009, at pp. 28-29 (emphasis added).

17

prosecution, the lack of clarification during the sentencing proceeding ensured that
Pappas continued to be misinformed about his eligibility for "good time."
Nonetheless, as discussed above, Pappas agreed to plead guilty to multiple counts
of sexual battery and kidnapping; in exchange for this agreement, the state agreed to
reduce three charges of forcible rape to lesser charges of sexual battery, other charges
were nolle prossed, and an out-of-state victim agreed not to pursue charges in another
state.76 Likewise, the agreement called for the sentences to run concurrently, resulting in
a single 15-year sentence. 77 As the state post-conviction court noted, these were
substantial concessions to a defendant charged with rape and kidnapping. Therefore, it
would not be an unreasonable determination by the state court, based upon the record
before it, to determine that such concessions would have been such a strong inducement
to plead guilty that Pappas would have done so even if his lawyer had competently
advised Pappas that he was not eligible for "good time" early release and that therefore he
was not prejudiced even if his counsel was ineffective.
Finding that the state court's determination to that end was not contrary to, nor the
result of an unreasonable application of, clearly established federal law, and finding that
it likewise was not based upon an unreasonable determination of the facts as presented to
the state court, the Court must defer to the state court's decision. Accordingly, Pappas'
claim for habeas relief on the ground of ineffective assistance of counsel must be denied.

76

See State Rec., Vol. II, Tr. of Proceedings of April 27, 2009, at pp. 2-4.

77

Id.

18

V. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that Prince's Motion for Reconsideration and Relief
from Order78 is GRANTED;
IT IS FURTHER ORDERED that Pappas' claims for federal habeas corpus
relief on the grounds of an invalid guilty plea and ineffective assistance of counsel are
DISMISSED WITH PREJUDICE.
NEW ORLEANS, LOUISIANA, this ________ day of October, 2013.

____________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

78

Rec. Doc. 18.

19