Mitchell v. Quarterman ( 2008 )


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  •          IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    July 23, 2008
    No. 07-20782
    Summary Calendar             Charles R. Fulbruge III
    Clerk
    WILLIE JAMES MITCHELL, JR
    Petitioner-Appellant
    v.
    NATHANIEL QUARTERMAN, 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. 4:06-CV-3059
    Before JOLLY, DENNIS, and PRADO, Circuit Judges.
    PER CURIAM:*
    Willie James Mitchell, Texas prisoner # 1148418, appeals the district
    court’s denial of his 
    28 U.S.C. § 2254
     petition, challenging his guilty plea
    conviction for aggravated assault with a deadly weapon. The district court
    granted a certificate of appealability concerning the following claims:
    (1) Mitchell’s trial counsel was ineffective in that he erroneously advised
    Mitchell that his best chance for being sentenced to community supervision
    *
    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    should not be published and is not precedent except under the limited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.
    No. 07-20782
    would be to plead guilty to aggravated assault with a deadly weapon; and
    (2) trial counsel failed to advise Mitchell concerning his parole eligibility.
    Mitchell argues that his counsel was ineffective in that he advised him to
    reject the State’s first plea offer of 15 years for pleading guilty to burglary of a
    habitation and incorrectly advised him that he had a chance of receiving
    community supervision if he entered an open plea to the offense of aggravated
    assault with a deadly weapon. The state habeas court determined that under
    Texas law, Mitchell was eligible for deferred adjudication community
    supervision at the time he pleaded guilty and, therefore, Mitchell’s counsel did
    not misadvise him about the possibility of being sentenced to deferred
    adjudication community supervision; the Texas Court of Criminal Appeals
    denied Mitchell’s application based on these findings. In a federal habeas case,
    we do not review a decision of the state’s highest court interpreting its own state
    law. Weeks v. Scott, 
    55 F.3d 1059
    , 1063 (5th Cir. 1995). Because Mitchell’s
    counsel correctly advised him that he was eligible for deferred adjudication
    community supervision at the time he pleaded guilty, the district court did not
    err in determined that counsel’s performance was not deficient. See Strickland
    v. Washington, 
    466 U.S. 668
    , 689-94 (1984).
    Mitchell argues that his counsel was ineffective in that he failed to advise
    him concerning his parole eligibility for both burglary of a habitation and
    aggravated assault with a deadly weapon. Neither the Supreme Court nor this
    court has held that a counsel’s failure to advise a defendant regarding parole
    eligibility amounts to ineffective assistance of counsel. See Hill v. Lockhart, 
    474 U.S. 52
    , 54-55, 60; James v. Cain, 
    56 F.3d 662
    , 667 (5th Cir. 1995). Further,
    Mitchell has not shown that he was prejudiced by his counsel’s alleged error. He
    argues that if he had been informed of his parole eligibility, he would have
    accepted the State’s 15 year plea bargain for a guilty plea for burglary of a
    habitation. However, under Hill, a petitioner must show that but for counsel’s
    error, he would not have pleaded guilty and would have insisted on going to
    2
    No. 07-20782
    trial. See Hill, 474 U.S. at 60. Mitchell does not argue that, had he been advised
    correctly concerning his parole eligibility, he would not have pleaded guilty and
    instead would have insisted on proceeding to trial. If he had not pleaded guilty
    and insisted on going to trial for the burglary of a habitation offense, he would
    have faced a minimum sentence of 15 years and a maximum sentence of life
    imprisonment. See TEX. PENAL CODE §§ 12.42(c)(1), 30.02(d). Mitchell has
    identified no “special circumstances that might support the conclusion that he
    placed particular emphasis on his parole eligibility in deciding whether or not
    to plead guilty.” See Hill, 474 U.S. at 60; see also Czere v. Butler, 
    833 F.2d 59
    ,
    63-64 (5th Cir. 1987). Therefore, the district court did not err in denying this
    claim because Mitchell had not shown that he was prejudiced by his counsel’s
    failure to advise him regarding his parole eligibility. See Hill, 474 U.S. at 60; see
    also Czere, 
    833 F.2d at 63-64
    . The district court’s judgment is AFFIRMED.
    3
    

Document Info

Docket Number: 07-20782

Judges: Jolly, Dennis, Prado

Filed Date: 7/23/2008

Precedential Status: Non-Precedential

Modified Date: 3/2/2024