Henderson v. Winn Correctional Center

Filing 12

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by David Henderson: 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

D A V I D HENDERSON VERSUS W A R D E N , WINN CORRECTIONAL CENTER

C I V I L ACTION NO. 07-cv-0758 J U D G E HICKS 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 Da vid Henderson ("Petitioner") pleaded guilty in a Webster Parish state court to one c o u n t of distribution of cocaine. He received a 30-year sentence. He filed a direct appeal a n d unsuccessfully challenged his sentence as excessive. State v. Henderson, 880 So.2d 169 ( L a . App. 2d Cir. 2004). He then filed a post-conviction application that asserted the same i s s u e . He later filed a second post-conviction application in which he argued that he was c o n s t ru c t i v el y denied counsel because his attorney did not adequately investigate the case, f i l ed no pre-trial motions, and did not communicate with Petitioner. He now presents that issue in his federal habeas corpus petition. It is recommended, for the reasons that follow, t h a t the petition be denied. S t a t e Court Proceedings P e t i ti o n e r was charged by bill of information with two counts of distribution of c o c a i n e . He was represented by William "Rick" Warren, an attorney with the Indigent D e f e n d e r Board. There was not a trial, so the state court record filed with this court does not

conta in a recitation of all the evidence the prosecution possessed, but the sentencing judge, Cec il P. Campbell, II, did set forth some of the underlying facts that were set forth in the p r e - s en t e n c e report. The report stated that a confidential informant was given money and a s k e d to attempt to purchase illegal drugs in the Cullen area. The informant, who wore a b o d y wire, made two trips to Cullen. On each visit, video and audio surveillance showed P e t i ti o n e r selling cocaine to the informant. Petitioner was charged with two counts of d i s tr i b u ti o n of cocaine, and he faced a possible life sentence if the prosecution sought an e n h a n c e m e n t based on Petitioner's status as a fourth-felony offender (with prior convictions for stealing Treasury checks, simple burglary, and distribution of cocaine). D e f e n s e counsel negotiated a plea bargain by which Petitioner would plead guilty to o n e of the two counts of distribution of cocaine. The other count would be dismissed, and a n habitual offender enhancement would not be sought. That reduced Petitioner's maximum sen tenc e from natural life to 30 years. When Petitioner entered his guilty plea, the judge discussed with him the several legal rights that he was waiving by entering a guilty plea, warned him of the maximum 30-year s e n t e n c e, and told him that there had been no discussion about sentencing. The judge said: " T h e sentence I impose will be based on information I receive in a pre-sentence investigation a n d you could receive the maximum sentence." Petitioner said that he understood that. P e t i ti o n e r also stated on the record that he had an opportunity to discuss the matter with his

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att or ne y, that he was satisfied with the representation he had been afforded, and that he freely a n d voluntarily entered his guilty plea. A t sentencing, Judge Campbell noted Petitioner's criminal history, and he observed t h a t increasingly stiff sentences for the past crimes had not been adequate to deter Petitioner f r o m committing even more crimes. Petitioner committed the cocaine crimes at issue less t h a n a year after his parole had ended from a previous cocaine distribution conviction that r e c e iv e d a 10-year sentence. For that and other reasons, the judge imposed the maximum sen tenc e of 30 years. Petitioner's post-conviction application with respect to the issue he presents in his f e d e r a l petition made a general complaint that his appointed counsel failed to offer a m e a n i n g f u l defense. He complained that counsel encouraged him to plead guilty, did not file p r e - tr i a l motions, and advised him that he would receive a less severe sentence if he pleaded g ui lty. The four-page memorandum in support of the application contains no other

me anin gfu l allegations of fact regarding the representation that Petitioner received. State District Judge Jeff Cox denied the application without a hearing. He wrote that P e t i ti o n e r "has failed to specify with reasonable particularity the factual basis for the r e q u e s te d relief." The state appellate court denied a writ application, writing: "On the s h o w i n g made, the trial court did not err in denying conclusory claims of ineffective a s s i s ta n c e of counsel and of an involuntary and uninformed plea." The Supreme Court of Lo uisia na denied writs without comment.

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An alys is Petitio n er's habeas petition relies on an ineffective assistance of counsel claim. In the ordinary habeas case where there has been a trial and conviction, a petitioner bears the b u r d e n of proving two components, deficient performance and prejudice, to establish i n e f f e c ti v e assistance of counsel. Counsel's performance was deficient only if he made errors so serious that, when reviewed under an objective standard of reasonable professional a s s i st a n c e and afforded a presumption of competency, she was not functioning as the "cou nsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 104 S.Ct. 2052, 2 0 6 4 (1984). Prejudice exists only if there is a reasonable probability that, but for the error, t h e result of the trial would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome. Id. 104 S.Ct. at 2068. The two-part test also applies to challenges to the voluntariness of guilty pleas based o n ineffective assistance of counsel, but the prejudice analysis is modified to focus on w h e t h e r counsel's ineffective performance affected the outcome of the plea process. The p e t i ti o n e r "must show that there is a reasonable probability that, but for counsel's errors, he wo uld not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 1 0 6 S.Ct. 366, 370 (1985). This assessment will turn partially on "a prediction of what the o u tc o m e of a trial might have been." Id.; Ward v. Dretke, 420 F.3d 479, 487 (5th Cir. 2005). T h e test for habeas purposes is not whether Petitioner made the showing required u n d e r Strickland or Hill. The test is whether the State court's decision ­ that Petitioner did

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n o t make the showing ­ was not only wrong but so incorrect as to be contrary to, or an objec tively unreasonable application of, the standards provided by Strickland and Hill's clearly established federal law. Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003); Williams v. T a y lo r, 120 S.Ct. 1495 (2000); Henderson v. Quarterman, 460 F.3d 654, 665 (5th Cir. 2006). Petitio n er's application to this court contains no more facts than were found in his state court application. Petitioner repeats his assertion that he was constructively denied coun sel, and he adds a conclusory assertion that he was "mentally and psychologically c o e r c e d into a guilty plea." He complains that counsel did not adequately investigate his cas e, confer with him, or put together a plausible defense. Petitioner has offered nothing more than conclusory assertions to the state or federal cour t. He has not articulated what an investigation might have revealed, how further c o m m u n i c a t io n with him would have altered the result, or what plausible defense counsel m i g h t have mustered in light of the audio and video surveillance that showed Petitioner s e l li n g cocaine not once but twice. Petitioner has also failed to make so much as a bare a s s e r ti o n that, if counsel had only investigated more or conferred with him more often, P e t i ti o n e r would have insisted on taking his chances by pleading not guilty and going to trial before Judge Campbell (who had a reputation for imposing the maximum sentence more o f t e n than most judges) on both cocaine counts and facing a possible natural life sentence as a fourth-felony offender.

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T here is no basis in this record to find that the state court's decision was anything but correc t. It was certainly not so incorrect as to be an objectively unreasonable application of S t r ic k l a n d or Hill v. Lockhart. There is also no merit to Petitioner's assertion that he was cons tructive ly denied counsel. The constructive denial of counsel doctrine, which requires t h e court to vacate a conviction even if there is no showing of prejudice, applies "in only a very narrow spectrum of cases where the circumstances leading to counsel's ineffectiveness are so egregious that the defendant was in effect denied any meaningful assistance at all." G o c h i c o a v. Johnson, 238 F.3d 278, 284 (5th Cir. 2005). When a defendant receives at least s o me meaningful assistance, he must prove prejudice to obtain relief for ineffective a s s i st a n c e of counsel. Id. at 285. Petitioner received assistance of counsel in the form of a n e g o t i at e d plea bargain that, in the face of what appeared to be a slam dunk case for the p r o s e c u ti o n and the potential for a life sentence, gained Petitioner a substantial reduction in s e n t e n c in g exposure. The constructive denial doctrine does not apply in this case. A cc or di ng ly, I T IS RECOMMENDED that the petition for writ of habeas corpus be denied and t h a t Petitioner's complaint be dismissed with prejudice. O b j e c t io n s U n d e r 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

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e x t e n s io 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). THUS DONE AND SIGNED in Shreveport, Louisiana, this 14 th day of September, 2009.

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