Young v. Winn Correctional Center

Filing 21

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Bobby Ray Young: IT IS RECOMMENDED that the petition for writ of habeas corpus be denied, and that Petitioner's complaint be dismissed with prejudice. Objections to R&R due by 10/1/2009. Signed by Magistrate Judge Mark Hornsby on 9/14/09. (crt,Cassanova, M)

UNITED STATES DISTRICT COURT W E S T ER N DISTRICT OF LOUISIANA S H R E V EP O R T DIVISION

B O B B Y RAY YOUNG VERSUS W A R D E N WINN CORRECTIONAL CENTER

C I V I L ACTION NO. 07-cv-0710 J U D G E STAGG M A G I S T R A T E JUDGE HORNSBY

R E P O RT AND RECOMMENDATION I n t r o d u c t io n B o b b y Ray Young ("Petitioner") was convicted of one count of possession of cocaine in Louisiana's First Judicial District Court, Caddo Parish. The trial court adjudicated P e t i t i o n e r a second felony offender and imposed an enhanced sentence of eight years i m p r i so n m e n t at hard labor without benefit of parole, suspension of sentence, or good-time credit. The Louisiana Second Circuit Court of Appeal affirmed. State v. Young, 862 So.2d 3 1 2 (La. App. 2d Cir. 2003). The Supreme Court of Louisiana amended Petitioner's s e n t e n c e to delete the prohibition on parole and good-time credit. State ex rel. Young v. State , 872 So.2d 505 (La. 2004). P e t i ti o n e r then filed in state court a "Motion to Vacate Sentence to the Second Felony B i l l for Broken Plea Agreement," which was entertained as an application for p o s t - co n v i c t io n relief. Petitioner argued that the prosecutor breached the terms of his plea

a greem ent. The state courts denied the application. Petitioner now seeks federal habeas c or pu s relief. It is recommended, for the reasons that follow, that his petition be denied. The Plea Agreement P e t i ti o n e r argues that the plea agreement made between assistant district attorney M i k e Powell and Petitioner's defense counsel, Peter Black, implied that no recommendation a s to sentencing would be made by the District Attorney's office. Petitioner claims that the p l e a agreement was breached when prosecutor Powell later recommended to Judge C h a r l e s R. Scott that he impose the maximum sentence of ten years. A review of the facts s h o ws that the plea agreement did not prohibit the prosecutor from making that reco mm end ation . The setting for the plea offer was that Petitioner had been convicted of possession of c o c a i n e . He was facing the prospect of an enhancement of his sentence for that crime based o n his status as a three-time convicted felon. He was also facing a prosecution for a firearms c r i m e . The plea offer written by Mr. Powell and sent to defense attorney Peter Black reads, i n its entirety, "If Mr. Young will plead to a 2 n d felony (habitual offender) bill, I will agree to leave the sentencing up to Judge Scott and dismiss the Poss. of Firearm by Convicted Fel on charge. I want to have an answer ASAP. Thank you, Mike." Tr. 613.

The transcript of the Second Felony Offender Guilty Plea Hearing reads as follows:

Mr. Powell: Mr. Young had previously been billed as a third felony offender under t h e habitual offender law. And he's previously entered a plea of not Page 2 of 11

guilty to the third felony offender billed filed in this matter. It's my u n d e r s ta n d i n g that he is now going to withdraw his not guilty plea and e n t e r a guilty plea as a second felony offender in this matter. He is g o i n g to admit that he is the person that was found guilty in this court in this docket number on March 6th , 2001, and that he is the same B o b b y Ray Young that was convicted on May 17 th , 1999 in the First J u d i c ia l District Court, Caddo Parish, Louisiana and was sentenced to f o u r years hard labor in docket number 181,975. If he does, in fact, e n t e r a plea of guilty as a second felony offender in this docket number, t h e state has agreed to dismiss the possession of a firearm charge p e n d i n g against him before this court in docket number 210,796, we will not pursue this matter as a third felony offender in docket 211,534. W e will ask that sentencing be left up to the Court and a PSI be o r d e r ed . I think that reflects our agreement. M r. Black: T h e Court: That's our agreement, Your Honor. M r . Young, it's my understanding that you are going to admit that you are a second felony offender in that you were the person that was c o n v i c te d in this court in docket number 211,534 on or about March 16, 2 0 0 1 , and that you had a prior felony on May 17th , 1999 in the First J u d i c ia l District Court, docket number 181,975. If you admit that and if you waive your right to a formal hearing on that issue, and after some q u e s t io n s I will ask you I will order a presentence investigation. Your s e n t e n c in g range will be at least two and a half years hard labor without b e n e f i t of probation, parole, or suspension of sentence but with credit f o r time served. Your maximum would be ten years hard labor, all w i t h o u t benefit of probation, parole, or suspension of sentence but with credit for time served. You will have to pay court costs or serve ten da ys in the parish jail, credit for time served concurrent with any hard l a b o r sentence. Now with all that said, Mr. Young, do you want to p ro ceed and enter a plea of guilty as a second felony offender?

M r . Young: Ye s, sir. Tr. 268-269. A f t e r the plea hearing, Mr. Powell sent a letter to Judge Scott. Powell listed several factors that he wanted the court to consider before arriving at a decision regarding Page 3 of 11

Petitioner's sentence, including that Petitioner had his child with him at the time of the o f f e n s e , he resisted the police, he discarded a .40 caliber loaded gun, he was on parole, and h e had a lengthy criminal history, including a conviction for Attempted First Degree Murder and Simple Escape. In light of these factors, prosecutor Powell recommended that Young " g e t the maximum of ten years, consecutive to his parole time." Tr. 612. A t the sentencing hearing, both Mr. Black and M r . Powell made recommendations to t h e court regarding sentencing. Tr. 276-281. Mr. Black, citing Petitioner's health

c o n d i t i o n s , familial responsibilities, educational background, and rehabilitative potential, a s k e d for a lenient sentence. Petitioner spoke as well, acknowledging his bad choices and a s k i n g the court for mercy. Mr. Powell, citing the details of the arrest and Petitioner's e x t e n s iv e criminal record, asked for the maximum sentence. Judge Scott, after considering t h e s e statements and the presentence investigation, sentenced Mr. Young to eight years imp rison me nt at hard labor, two years less than the maximum sentence. Tr. 281-284. The State Court Decision A f t e r the sentencing hearing, Petitioner filed his pro se "Motion to Vacate Sentence to the Second Felony Bill for Broken Plea Agreement." He argued that the prosecutor b re a c h e d the terms of his plea agreement by arguing for the maximum sentence. The trial court found that "the District Attorney's Office met the terms of the offered and agreed-upon p l e a bargain," specifying that "[n]owhere in the plea bargain did it state that the prosecutor w o u l d not offer a sentencing recommendation. It merely stated that no specific sentence

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wo uld be agreed upon between the District Attorney's Office and the Defendant." The trial court also noted that "M r. Young, represented by counsel Mr. Peter Black, agreed to the plea a g r e e m e n t in open court, and was provided an opportunity at the sentencing, along with his attor ney, to recommend a sentence to the court." Tr. 616-618. The state appellate court denied a writ application in a brief opinion. It wrote, in part, " N o t h i n g in this record indicates that the district attorney agreed to make no recommendation a n d the trial court's ruling is correct. The writ is denied." Tr. 615. The Supreme Court of L o u i s i a n a denied the writ without comment on the merits, but it did cite the procedural hurd le of State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172. Tr. 642. The state has not argued the application of a procedural bar, perhaps realizing the likelihood that M elinie 's prohibition on excessive sentence arguments in a post-conviction application is not applic able to this breached plea bargain claim, so it might not provide an independent and adeq uate grounds for the state court's decision. In any event, there is no procedural bar raise d, so none will be addressed. Federal Standard of Review A federal court shall not grant habeas relief with respect to any claim that was a d j u d i ca t e d on the merits in state court proceedings unless the adjudication (1) resulted in a d e c i s io n that was 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 (2) resulted in a d e c i s io n that was based on an unreasonable determination of the facts in light of the evidence

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p r e s e n te d in the State court proceeding. 28 U.S.C. § 2254(d)(1). Relief is not permitted u n d e r the "unreasonable application" standard unless the state court decision was so wrong a s to be objectively unreasonable. Lockyer v. Andrade, 123 S.Ct. 1166, 1175 (2003). And it is only the state court's ultimate decision, not the quality of its analysis or opinion, that is at issue. Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc). An alys is In Santobello v. New York, 92 S.Ct. 495, 499 (1971), the leading case on breached p l e a agreements, the prosecutor agreed to (1) permit the defendant to plead guilty to a lesser c h a r g e and (2) make no recommendation as to the sentence. The defendant pleaded guilty. B y the time of sentencing, both the judge and the prosecutor had been replaced. The new p r o s e c u to r recommended the maximum one year sentence. Over a defense objection that the r e c o m m e n d a t i o n violated the terms of the plea bargain, the judge imposed the one year sen tenc e. The Supreme Court held that "when a plea rests in any significant degree on a promise o r agreement of the prosecutor, so that it can be said to be part of the inducement or c o n s i d e ra t i o n , such a promise must be fulfilled." Santobello, 92 S.Ct. at 499. In other words, i f the state is a party to the plea agreement, the terms of the bargain must be enforced. The C o u r t determined that relief was warranted, but it left to the state court on remand to d e t e r m in e whether that relief would be (1) specific performance of the agreement, in which

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c a s e the defendant would be re-sentenced by a different judge, or (2) granting the defendant the opportunity to withdraw his guilty plea. Id. Following Santobello, circuit courts have held that an agreement on the part of the p r o s e c u to r to "take no position" regarding sentencing precludes the prosecutor from making a recommendation to the court. See, e.g., U.S. v. Diamond, 706 F.2d 105 (2d Cir. 1983) (where prosecutor agreed not to recommend any specific sentence to the judge but reserved t h e right to provide information relevant to the sentence, prosecutor did not breach plea a g r e e m e n t when it provided such information, in contrast to a prosecutor who agreed to "take n o position"); U.S. v. Vaval, 404 F.3d 144 (2d Cir. 2005) (where prosecutor's promise was to take no position concerning where defendant's sentence should fall, prosecutor breached b y saying that "technically" it could move for upward departure and subsequently making statem ents clearly intended to urge the court to grant upward departure); and U.S. v. N o l a n - C o o p e r, 155 F.3d 221, 237 (3rd Cir. 1998) ("a promise to take no position on an issue...is a promise not to attempt to influence the defendant's sentence on that particular issue"). T h e question for this court is whether the state court's decision that the prosecutor did n o t violate the plea agreement was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." § 2254(d)(1). The clearly established law for this case is found in Santobello. The agreement in Santobello to make no recommendation was not the same as the agreement in this case to

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l e a v e sentencing to the judge. The court has not located a Supreme Court case that has a d d r e s s ed a plea agreement precisely like the one in this case, but it is convinced that the state court's decision is not an objectively unreasonable application of the principles set forth i n Santobello. Prosecutor Powell, unlike the prosecutor in Santobello, did not expressly agree to m a k e no recommendation or take no position as to Petitioner's sentence. Rather, he agreed only that sentencing would be left to the judge. Petitioner asks the court to infer from that a g r e e m e n t an unwritten but implied term that the prosecution could not recommend a s e n t e n c e, but agreeing to leave sentencing to the judge is not the same as promising not to ma ke a recommendation to the judge regarding the sentence. Appreciating the distinction perhaps requires awareness that in Louisiana state courts, u n l i k e in federal court, it is quite common for a plea bargain to include a sentence that is a g r e e d upon by the prosecutor and the defendant. The reported cases are full of mentions of p l e a bargains that included an "agreed sentence." See., e.g., State v. Mingo, 965 So.2d 952 ( L a . App. 2d Cir. 2007) (defense counsel and the district attorney agreed the defendant would r e c e iv e four years with credit for time served, and the state would not file a multiple offender bill); State v. Timmons, 998 So.2d 145 (La. App. 2d Cir. 2008) (plea bargain called for an a g r e e d sentence of eight years, with no multiple offender bill to be filed); and State v. Taylor, --- So.3d ----, 2009 WL 1315818 (La. App. 2d Cir. 2009) ("where a specific sentence or a s e n t e n c in g cap has been agreed upon as a consequence of a plea bargain, a sentence imposed

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with in the agreed range cannot be appealed as excessive if that right has not been specifically rese rve d") . Powell's offer to leave the sentence to the judge was simply to indicate that there was n o agreed sentence as part of the plea offer. Nothing in the terms of the plea agreement p r o h i b it e d either counsel from arguing for a lower or higher sentence, and both attorneys did s o at the hearing. The defense attorney who handled the plea bargain and sentencing hearing i s a skilled and zealous defender of his clients, and he offered no objection that the p r o s e c u to r had violated the terms of the bargain. The experienced and capable judge who i m p o s e d the sentence, after hearing the terms of the bargain, gave no hint that he believed t h e prosecutor was prohibited from arguing at sentencing. A court that examines a breached pleas claim should consider whether the prosecution 's conduct was "consistent with the defendant's reasonable understanding of the agr eem ent." U.S. v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005). The lack of objection or i n d i c at i o n of concern indicates that defense counsel and the sentencing judge appreciated, a t the time of sentencing, that the terms of the bargain were reasonably understood to permit t h e prosecutor to make argument regarding the appropriate sentence. This court has no doubt t h a t defense counsel would have objected, and the state court judge would have spoken up, if there was any concern that the plea bargain had been breached. The state court's decision did not result in a decision that was contrary to, or involved a n unreasonable application of, the principles established in Santobello or other Supreme

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C ourt precedent. It also did not result in a decision that was based on an unreasonable d e t e r m i n at i o n of the facts in light of the evidence presented in the state court proceeding. Th us, under § 2254(d)(1), the federal court cannot grant habeas relief. Accordingly; I T IS RECOMM E N D E D that the petition for writ of habeas corpus be denied, and t h a t Petitioner's complaint be dismissed with prejudice. Objections Un der the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v ed by this recommendation have ten (10) business days from service of this report and r e c o m m e n d a t i o n to file specific, written objections with the Clerk of Court, unless an e x t e n s i o n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party's objections within ten (10) days after being served with a copy thereof. Counsel are d i r e c te d to furnish a courtesy copy of any objections or responses to the District Judge at the t i m e of filing. A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n set forth above, within 10 days after being served with a copy, shall bar that pa rty, except upon grounds of plain error, from attacking on appeal the unobjected-to p r o p o s e d factual findings and legal conclusions accepted by the district court. See Douglass v . U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc).

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T H U S DONE AND SIGNED in Shreveport, Louisiana, this 14th day of September, 200 9.

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