Alvin Mead v. Burl Cain, Warden , 438 F. App'x 341 ( 2011 )

Case: 10-30964 Document: 00511578990 Page: 1 Date Filed: 08/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 22, 2011
No. 10-30964
Summary Calendar Lyle W. Cayce
Clerk
ALVIN MEAD,
Petitioner-Appellant
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:03-CV-3058
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Alvin Mead, Louisiana prisoner # 310779, appeals the denial of his 28
U.S.C. § 2254 petition challenging his conviction for possession of cocaine, for
which he is serving a life sentence as an habitual offender. The district court
granted Mead a certificate of appealability on the issue of ineffective assistance
of counsel. Mead argues that counsel failed to adequately advise him regarding
whether to accept the plea offer.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-30964 Document: 00511578990 Page: 2 Date Filed: 08/22/2011
No. 10-30964
Whether Mead received ineffective assistance of counsel is reviewed de
novo. Cf. Medillin v. Dretke, 544 U.S. 660, 680 (2005). We review the district
court’s findings of fact for clear error and its conclusions of law de novo. Charles
v. Thaler, 629 F.3d 494, 498 (2011). To establish ineffective assistance, Mead
must show (1) that counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense. See Strickland v. Washington, 466 U.S.
668, 687 (1984). “Prejudice in the state sentencing context turns on whether,
absent counsel’s errors, there is a reasonable probability that the defendant’s
sentence would have been significantly less harsh.” Charles, 629 F.3d at 499(internal quotation marks and citations omitted).
Mead argues that he was deprived of constitutionally adequate
representation when, after the State agreed to impose the sentence the defense
sought, counsel allowed him to reject the plea offer without adequately advising
him of its advantages and disadvantages. Significantly, Mead does not allege
that he was unaware that he was facing a life sentence as an habitual offender.
See United States v. Herrera, 412 F.3d 577, 580 (5th Cir. 2005). The state record
and allegations made for the first time in Mead’s appellate brief indicate that the
terms of the plea offer were communicated to Mead; however, Mead, who has
consistently maintained his innocence, exercised his right to a trial by jury.
Mead’s assertions that he was prejudiced by counsel’s failure to give him
unspecified advice and that it is reasonable likely that he would have accepted
the plea offer had he received such advice are purely conclusional. As such, his
allegations of prejudice are insufficient to support a basis for habeas relief. See
Green v. Johnson, 160 F.3d 1029, 1040 (5th Cir. 1998). Consequently, Mead was
not entitled to an evidentiary hearing. Fc. United States v. Edwards, 442 F.3d
258, 264 (5th Cir. 2006).
AFFIRMED.
2