Pleasant v. Lumpkin ( 2022 )

Case: 19-20664 Document: 00516314988 Page: 1 Date Filed: 05/11/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 11, 2022
No. 19-20664
Lyle W. Cayce
Clerk
Jerome Fisher Pleasant,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-2133
Before Willett, Engelhardt, and Wilson, Circuit Judges.
Per Curiam:*
Jerome Pleasant, Texas prisoner # 2035248, seeks habeas corpus relief
under 28 U.S.C. § 2254, challenging his convictions for attempted capital
murder and for aggravated assault on a public servant. Although the district
court concluded that Pleasant’s latest ineffective assistance of counsel claim
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 19-20664
was unexhausted, it nevertheless denied his petition on the merits, deferring
to the Texas trial court’s assessment of Pleasant’s habeas claims. Pleasant
subsequently obtained a certificate of appealability (COA) and, on appeal,
re-urges his contention that he received ineffective assistance of counsel and
asserts that he exhausted his state remedies. We affirm in part, vacate in part,
and remand for further proceedings.
I.
On May 16, 2012, while on parole for two unrelated criminal offenses,
Pleasant shot both his fiancée, Sheera Stevenson, and Stevenson’s 13-year-
old daughter in the head after becoming infuriated that Stevenson’s daughter
did not wash the dishes. Miraculously, neither Stevenson nor her daughter
died from their injuries, and they were able to flag down a neighbor for help.
After being shot, the next thing that Stevenson and her daughter remembered
was an ambulance carrying them away to receive medical treatment.
At some point that day, an unidentified individual called the Houston
police department to report the shooting. Officer Sean Jordan was on patrol
at the time the call was received and was one of many officers who responded.
While driving to the crime scene, Jordan noticed a man who matched the
description of the shooter walking on a sidewalk. The man was Pleasant.
Jordan slowed his vehicle to a stop upon approaching Pleasant. At that point,
Pleasant suddenly turned around and aimed a gun at Jordan. Jordan quickly
ducked out of his stopped vehicle and gave chase to Pleasant as he fled the
scene, all the while radioing other officers in the area to request back up.
Officer Phillip Marquez responded to Jordan’s request and was able
to cut off Pleasant’s path with his police vehicle. With nowhere to run,
Pleasant pointed his gun at Marquez, which prompted Jordan to shoot
Pleasant. Pleasant immediately fell to the ground and dropped his weapon.
Jordan and Marquez called for an ambulance and subdued Pleasant. Pleasant
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survived but was paralyzed from the waist down and has remained so since
the incident.
The next day, the State of Texas charged Pleasant with aggravated
assault on a public servant, and attempted capital murder. The state trial
court appointed Connie Williams to represent Pleasant in July 2012. Pleasant
unsuccessfully attempted to have Williams removed from his case numerous
times over the next three years, alleging that Williams had a conflict of
interest, was discriminatory towards Pleasant, and rendered ineffective
assistance of counsel. Pleasant also sought to recuse the trial judge via
interlocutory appeal, but that appeal was dismissed for lack of jurisdiction.
Pleasant’s trial occurred in November 2015; a Harris County jury
found Pleasant guilty of both charged crimes. The jury also concluded that
Pleasant was a habitual offender, and based on that finding, the trial court
sentenced him to life in prison for attempted capital murder and 75 years in
prison for aggravated assault of a public servant.
Pleasant appealed. After his appellate counsel (not Williams) filed an
Anders brief, 1 arguing that there was no nonfrivolous issue for appeal, the
Texas Court of Appeals agreed and affirmed his convictions. Pleasant did
not petition for discretionary review in the Texas Court of Criminal Appeals
(the CCA).
In January 2017, Pleasant filed two state habeas applications, one for
each of his 2015 convictions. In both applications, Pleasant alleged, inter alia,
1
Anders v. California, 386 U.S. 738 (1967).
3
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that Williams was ineffective as his trial counsel because Williams did not
sufficiently communicate with him. 2
A brief aside relevant to our subsequent analysis: Under Texas’s
habeas procedures, a prisoner may file an application for writ of habeas
corpus in “the court in which the conviction being challenged was obtained.”
Tex. Code Crim. Proc. Ann. art. 11.07, § 3(b). The state trial court
then determines “whether there are controverted, previously unresolved
facts material to the legality of the applicant’s confinement.” Id. § 3(c). If
there are none, the application is “immediately transmit[ted]” to the CCA
along with other records relevant to the application. Id. If there are, the trial
court “enter[s] an order . . . designating the issues of fact to be resolved” and
may order affidavits, interrogatory responses, and hearings. Id. § 3(d).
“After the convicting court makes findings of fact,” id., those
“findings and conclusions regarding the applicant’s confinement” and the
trial court’s recommendation are transmitted to the CCA, In re G.S., No. 21-
0127, 2022 WL 1194361, at *3 n.3 (Tex. Apr. 22, 2022). The CCA then
evaluates the record and the trial court’s recommendation and either
“remand[s] the applicant to custody or order[s] his release.” Tex. Code
Crim. Proc. Ann. art. 11.07, § 5. If the CCA determines that there
remain “unresolved facts material to the legality of the applicant’s
confinement,” then the CCA remands the application to the state trial court
for further findings. Id. § 3(c).
In Pleasant’s case, the state trial court entered an order on February
7, 2017, designating certain issues to be resolved; pertinent here, on March
2
Pleasant also alleged that the trial court and Williams erred in a variety of other
ways. However, we do not detail Pleasant’s other claims because he only raises Williams’s
performance as Pleasant’s counsel in this appeal. See also infra n.5.
4
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2, 2017, the court ordered Williams to file an affidavit responding to
Pleasant’s habeas applications. The trial court eventually transmitted
Pleasant’s habeas applications to the CCA in October 2017, before it
received any affidavit from Williams. In January 2018, the CCA remanded
the case because the CCA determined that the trial court had not yet
“resolved the designated issues.”
Williams finally complied with the state trial court’s order and filed an
affidavit on March 20, 2018. Williams’s affidavit stated that he
had numerous conversations with [Pleasant’s] mother,
brother, and other friends about Mr. Pleasant and the facts of
the case . . . [,] spoke with Mr. Pleasant on at least 10
occasions, . . . [and] spent considerable time in an attempt to
plea bargain Mr. Pleasant’s case and at one time, was offered
18 years in a case in which the minimum was 25 years which
was adamantly refused by Mr. Pleasant.[ 3]
The trial court issued proposed findings of fact and conclusions of law in an
order entered March 29, 2018. The trial court specifically “f[ound] the
affidavit of Connie Williams [to be] credible,” and transmitted the case back
to the CCA with the recommendation that Pleasant’s habeas applications be
denied.
In the CCA, Pleasant filed a response to the trial court’s proposed
findings in which he disputed Williams’s statement that Williams presented
Pleasant with an 18-year plea offer. Pleasant contended that if he had known
about the plea offer, he would have accepted it. Pleasant also attached
affidavits from his mother, his brother, and himself, all averring that Pleasant
was never presented with the plea offer and that he would have accepted the
3
It is unclear from the record whether the 18-year plea bargain was offered for the
attempted murder charge, the aggravated assault charge, or for both of them.
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offer had it been shared with him. In May 2018, the CCA denied both of
Pleasant’s habeas applications on their merits in two one-sentence orders
stating, “denied without written order on findings of trial court without
hearing.”
On June 22, 2018, Pleasant filed the present federal habeas corpus
petition, see 28 U.S.C. § 2254, 4 alleging ineffective assistance of counsel
based on various deficiencies in Williams’s performance. In particular,
Pleasant grounded one of his claims (the only one at issue on appeal) on
Williams’s purported failure to tell him about the State’s 18-year plea offer. 5
In response, the State moved for summary judgment, arguing that this claim
was unexhausted and procedurally defaulted. Alternatively, the State
contended that the claim failed on the merits because Williams’s affidavit
established that he conveyed the plea offer to Pleasant.
The district court held that Pleasant’s ineffective assistance claim
based on the plea offer was unexhausted because it was not properly raised
before the CCA. 6 The district court nonetheless proceeded to the merits,
reasoning that “[n]otwithstanding Pleasant’s failure to exhaust the remedies
available in the courts of the State,” § 2254(b)(2) permitted the court to deny
a habeas application “on the merits, notwithstanding the failure of the
4
Section 2254 in its current form was enacted as part of the Antiterrorism and
Effective Death Penalty Act (AEDPA).
5
The district court dismissed all of Pleasant’s claims, but Pleasant’s only claim on
appeal is for ineffective assistance based on Williams’s alleged failure to inform Pleasant of
the State’s 18-year plea offer. In the COA granted by a member of this court, the judge
found that Pleasant failed adequately to brief, and thus abandoned, any other argument in
the district court. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999). Hereafter in
this opinion, references to Pleasant’s “ineffective assistance of counsel” claim refer to the
claim predicated on the plea offer.
6
The district court did not address whether Pleasant’s claim was otherwise
procedurally defaulted.
6
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applicant to exhaust . . . remedies.” Id. § 2254(b)(2). Doing so, the district
court afforded deference to the Texas trial court’s prior “determination that
trial counsel rendered effective assistance,” given that court’s finding that
Williams’s affidavit was credible.
Because it found that the state trial court “properly identified
Strickland [v. Washington, 466 U.S. 668 (1984),] as the governing legal
principle” in deciding Pleasant’s ineffective assistance claims, the district
court evaluated the claim at issue as though it had first been adjudicated on
the merits in state court. See 28 U.S.C. § 2254(d)(1). To obtain relief under
§ 2254(d)(1), Pleasant was required to demonstrate that the state court’s
application of Strickland was objectively unreasonable. See Bell v. Cone, 535
U.S. 685, 694–95 (2002). The district court concluded that Pleasant failed
to do so because “[n]othing in the record supports Pleasant’s bare assertion
that Williams did not inform him of the plea offer,” and Pleasant failed to
establish prejudice. The district court thus denied both Pleasant’s habeas
petition and his request for a COA.
Pleasant petitioned this court for a COA, and a member of this court
granted the petition. Citing Gonzales v. Thaler, 643 F.3d 425 (5th Cir. 2011),
our colleague concluded that the district court “erred in applying the
deferential standard of review” provided by the AEDPA because, as this
court noted in Gonzales, if the claim is unexhausted and “is not procedurally
barred, no deference is owed to the state-court judgment.” 643 F. 3d at 429;
see also Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003) (“With
respect to claims that were not adjudicated on the merits in state court, the
deferential AEDPA standards of review do not apply.”). The order granting
a COA instructed the parties to address the ineffective assistance of counsel
claim and the State’s argument that Pleasant’s claim is procedurally barred.
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II.
Our review of state court findings of fact in habeas proceedings is
limited; indeed, we presume that a state court’s factual determinations are
correct “[i]n a proceeding instituted by an application for a writ of habeas
corpus by a person in [state] custody.” 28 U.S.C. § 2254(e)(1); see Austin v.
Davis, 876 F.3d 757, 778 (5th Cir. 2017); Garcia v. Quarterman, 454 F.3d 441,
444 (5th Cir. 2006). A habeas petitioner bears the burden “of rebutting the
presumption of correctness by clear and convincing evidence.” § 2254(e)(1).
“Our review of a state court’s conclusions of law is also deferential.”
Garcia, 454 F.3d at 445.
[W]hen a claim has been adjudicated on the merits in state
court, habeas relief may not be granted unless the state-court
adjudication “was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by
the Supreme Court of the United States; or . . . was based on
an unreasonable determination of the facts.”
Gonzales, 643 F.3d at 429 (quoting 28 U.S.C. § 2254(d)). “But if the state
courts fail to adjudicate the petitioner’s claim on the merits and the claim is
not procedurally barred, no deference is owed to the state-court judgment
and the federal courts must instead conduct a plenary review.” Id. (citation
omitted). In such a case, we review questions of law and mixed questions of
law and fact de novo. Austin, 876 F.3d at 779; see Martinez v. Johnson, 255
F.3d 229, 237 (5th Cir. 2001) (“In a habeas corpus appeal, we review the
district court’s . . . conclusions of law de novo, applying the same standard of
review to the state court’s decision as the district court.”) (quoting Thompson
v. Cain, 161 F.3d 802, 805 (5th Cir. 1998)).
III.
“Before seeking a federal writ of habeas corpus, a state prisoner must
exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the
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State the opportunity to pass upon and correct alleged violations of its
prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting
Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)) (internal quotation
marks omitted). “To provide the State with the necessary ‘opportunity,’ the
prisoner must ‘fairly present’ his claim in each appropriate state court . . . ,
thereby alerting that court to the federal nature of the claim.” Id. (citing
Duncan, 513 U.S. at 365–66); accord Kittelson v. Dretke, 426 F.3d 306, 315 (5th
Cir. 2005). For habeas applications in Texas, the “appropriate state court”
is, ultimately, the CCA. See Tex. Code Crim. Proc. Ann. art. 4.04,
§ 2; see also Tex. Code Crim. Proc. Ann. art. 11.07 (detailing the
proper Texas procedure for the state courts to evaluate a habeas corpus
application).
A Texas habeas applicant may present new evidence to support his
application after it has been transmitted by the state trial court to the CCA,
but “the party must file in the [CCA] a motion to stay the proceedings
pending the filing of the [new] evidence in the trial court.” Tex. R. App.
P. 73.7(b) (emphasis added); see also Ex parte Speckman, 537 S.W.3d 49, 54–
55 (Tex. Crim. App. 2017) (discussing Texas Rule 73.7).
We agree with the district court that Pleasant’s ineffective assistance
claim based on the plea offer is unexhausted. Williams filed his affidavit in
the state trial court on March 20, 2018, raising for the first time that Pleasant
had been informed of and had “adamantly refused” the State’s 18-month
plea offer, in response to Pleasant’s other ineffective assistance claims. On
March 29, 2018, the trial court entered its findings and recommendation as
to those claims and then rerouted Pleasant’s habeas application to the CCA.
It was not until this point that Pleasant first attempted to offer the affidavits
from his mother, his brother, and himself—in the CCA—to rebut
Williams’s averments surrounding the plea offer. And this juncture was also
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when he first raised an ineffective assistance claim—again in the CCA—
based on his assertions that Williams had not disclosed the plea offer.
To offer his new evidence properly, Pleasant was required by Texas
Rule 73.7(b) to seek a stay in the CCA and then file the three affidavits in the
trial court for that court first to consider them. There is no evidence that
Pleasant complied with this requirement. In other words, Pleasant did not
“fairly present his claim in each appropriate state court,” i.e., in the state trial
court, and then in the CCA, before filing his federal habeas petition.
Baldwin, 541 U.S. at 29 (internal quotation marks omitted) (emphasis added).
Pleasant’s ineffective assistance claim based on the plea offer is thus
unexhausted.
The rub is that, even though the district court correctly concluded
that Pleasant’s claim was unexhausted, the district court nonetheless
proceeded to treat the claim as though it had been adjudicated by the state
courts. In other words, the district court expressly afforded AEDPA’s
deferential standards of review to the state trial court’s conclusion that
Williams’s assistance was effective, which in turn was based on Williams’s
affidavit. See 28 U.S.C. § 2254(d)(1), (e)(1).
But that deference was not due in this case. Once the district court
concluded that the claim was unexhausted, the court should have conducted
a “plenary review,” not a deferential one. Gonzales, 643 F.3d at 429;
Henderson, 333 F.3d at 598. As it happened, the district court appears to have
mixed apples with oranges because the state trial court’s finding that
Williams’s assistance was not ineffective pertained to Pleasant’s other claims
for ineffective assistance—not this one, which was first raised, albeit
improperly, in response to Williams’s affidavit testimony that he discussed
the State’s plea offer with Pleasant, and Pleasant rejected it. Neither the state
trial court nor the CCA had evaluated Pleasant’s latest claim, and neither
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court had made any finding regarding the credibility of Williams’s testimony,
as disputed by Pleasant, specific to the plea agreement. So, as to this
particular claim, there were no state court findings of fact or conclusions of
law to which the district court could defer, and it was error for the district
court to apply the state courts’ findings regarding Pleasant’s other claims to
deny this latest one.
“[W]e are a court of review, not first view.” United States v. Houston,
792 F.3d 663, 669 (5th Cir. 2015). Accordingly, we remand Pleasant’s claim
for further proceedings consistent with the standards provided by the
AEDPA and our precedent governing unexhausted state habeas claims. 7
IV.
We AFFIRM the district court’s holding that Pleasant’s ineffective
assistance of counsel claim based on an allegedly undisclosed plea offer is
unexhausted. However, because the district court then improperly applied
the AEDPA’s deferential standards of review in deciding the merits of the
claim, we VACATE the district court’s dismissal of Pleasant’s claim and
REMAND for further proceedings consistent with this opinion.
AFFIRMED IN PART; VACATED IN PART; REMANDED.
7
We note that the district court should also determine whether Pleasant’s claim is
otherwise procedurally defaulted before reaching the merits. See Gonzales, 643 F.3d at 429;
Kittelson, 426 F.3d at 315.
11