Opinion
Case No. 04-3153-JWL.
November 22, 2004
MEMORANDUM AND ORDER
Larry Tellington pled no contest to three counts of conspiracy to sell cocaine. Mr. Tellington brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2554 (Doc. # 1), alleging that he did not knowingly and voluntarily enter into his plea agreement because his plea was motivated by the threat made by the prosecutor, Gerald R. Kuckelman, to re-file charges against Mr. Tellington that were more serious than those originally filed, and that there was no legal basis to allege the additional offenses.
Mr. Tellington's motion for appointment of counsel (Doc. # 16) is denied. The Sixth Amendment right to counsel does not apply to collateral attacks on conviction such as a § 2254 motion, see generally Pennsylvania v. Finley, 481 U.S. 551 (1987), and the district court has discretion to appoint counsel when "the interests of justice so require," 18 U.S.C. § 3006A(a)(2)(B). In this case, the issues are not particularly complex, either legally or factually, and the record established by the state court proceedings, where Mr. Tellington had counsel, clearly present the legal and factual issues which are identical to those here. See Engberg v. Wyoming, 264 F.3d 1109, 1121-22 (10th Cir. 2001).
After thoroughly reviewing the parties' motions, their briefs and the underlying record, the court finds that the evidence clearly establishes that Mr. Tellington is entitled to no relief. In particular, the state court adjudicated Mr. Tellington's claim on the merits and found that he knowingly and voluntarily entered into the guilty plea, despite the prosecutor's threat of prosecution based upon the mistaken belief that he could have been charged with crimes more serious than those to which he pled no contest, and Mr. Tellington has failed to demonstrate that the state court's adjudication of his claims was contrary to or an unreasonable application of controlling Federal law.
BACKGROUND
The State of Kansas filed a complaint charging Mr. Tellington with three counts of conspiracy to sell cocaine in violation of K.S.A. § 21-3302. On February 13, 2002, at a preliminary hearing, the state announced that it was not prepared to proceed that day because it did not yet have necessary lab results from the Kansas Bureau of Investigation. The prosecutor also explained that he thought that the parties might be able to reach a plea agreement, but since Mr. Tellington would not accept his offer, the prosecutor was going to dismiss the case and re-file the charges as Level 1, a level punishable by lengthier imprisonment, rather than the Level 3 offenses charged at the time. The prosecutor, as well as defense counsel, Charles Tuley, believed Mr. Tellington's criminal history would elevate the drug offenses from Level 3 to Level 1. The court dismissed the case without prejudice.
At some point after Mr. Tellington's hearing for his motion to withdraw the no contest plea, the state became aware that Mr. Tellington's prior convictions were of the type that could not increase the Level 3 offenses to Level 1.
Later that same day, the parties reached a plea agreement. The state re-filed the case, but only filed three counts of conspiracy to sell cocaine, Level 3 offenses, to which Mr. Tellington entered a plea of no contest in Case No. 02 CR 87.
When Mr. Tellington entered the plea, the trial court advised Mr. Tellington of his rights and explained the possible penalties. The court also inquired of Mr. Tellington if anyone was forcing him to enter the plea, whether it was freely and voluntarily made and if it was what he wanted to do. Mr. Tellington stated that he understood each question, and he stated that he was acting freely and voluntarily. The court also asked Mr. Tellington about the services of his attorney. Mr. Tellington did not voice any complaints or problems with his counsel.
On March 18, 2002, Mr. Tellington filed a motion to withdraw his plea, claiming that he did not understand the consequences of the plea, and that he had been coerced. On April 29, 2002, following a hearing, Mr. Tellington's motion to withdraw his plea was denied by the Atchison County District Court, and this decision was appealed. Mr. Tellington was sentenced a controlling term of 24 months imprisonment on May 6, 2002.
On May 16, 2003, Mr. Tellington's convictions were affirmed by the Kansas Court of Appeal in State v. Tellington, No. 89, 157 (Kan.Ct.App. May 16, 2003) (unpublished opinion). A petition for review was denied by the Kansas Supreme Court on July 9, 2003.
Mr. Tellington filed for habeas corpus relief pursuant to 28 U.S.C. § 2254 on May 17, 2004, and the court now entertains this petition.
STANDARD
Because Mr. Tellington "filed his habeas petition after April 24, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") govern this appeal." Martinez v. Zavaras, 330 F.3d 1259, 1262 (10th Cir. 2003) (citations omitted). The AEDPA "circumscribes a federal habeas court's review of a state-court decision." Anderson v. Mullin, 327 F.3d 1148, 1152 (10th Cir. 2003) (quotations omitted).
Specifically, where, as here, the Kansas Court of Appeals reviewed the merits of petitioner's claims, "habeas relief is not warranted unless the state adjudication `(1) . . . was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Martinez, 330 F.3d at 1262 (quoting § 2254(d)) (emphasis added). "Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). "Under the `unreasonable application' clause, the Court in Williams stressed that the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was `objectively unreasonable.'" Anderson, 327 F.3d at 1153 (citing Williams, 529 U.S. at 409).
The court presumes "that factual determinations made by the state court are correct, and the petitioner bears the burden of rebutting this presumption with clear and convincing evidence." Martinez, 330 F.3d at 1262 (citing § 2254(e)(1); Fields v. Gibson, 277 F.3d 1203, 1221 (10th Cir. 2002)). "This presumption does not extend to legal determinations or to mixed questions of law and fact." Id. (citing Herrera v. Lemaster, 225 F.3d 1176, 1178-79 (10th Cir. 2000)). "That is, the `deferential standard of review does not apply if the state court employed the wrong legal standard in deciding the merits of the federal issue.'" Id. (quoting Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003)). "Ultimately, our review of the state court's proceedings is quite limited, as section 2254(d) sets forth a highly deferential standard for evaluating state-court rulings." Anderson, 327 F.3d at 1152.
ANALYSIS
Mr. Tellington alleges that he did not knowingly and voluntarily enter his plea agreement because his plea was motivated by the prosecutor's threat to re-file charges against him that were more serious than those originally filed, and that there was no legal basis to allege the additional offenses. The Kansas Court of Appeals, however, found that Mr. Tellington's plea was voluntarily and knowingly made after he was informed of his rights and the possible penalties by the court.
The Due Process Clause of the Fourteenth Amendment requires that a defendant knowingly and voluntarily enter a plea of guilty. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). "The longstanding test for determining the validity of a guilty plea is `whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)).
The Tenth Circuit has held that a prosecutor can threaten and follow through on the threat to charge greater applicable offenses where the defendant declines to plead guilty to lesser offenses. U.S. v. Miller, 948 F.2d 631, 633 (10th Cir. 1991); see also Bordenkircher v. Hayes, 434 U.S. 357, 365 (1987) (same). Here, Mr. Tellington claims that the prosecutor threatened to re-file the case charging more serious offenses, but there was nothing inappropriate per se in this act.
The Tenth Circuit, however, has not determined whether a prosecutor's threat to a defendant to increase charges if the defendant does not plead guilty, when made in good faith but based on a mistake of fact or law, violates substantive due process so as to invalidate a no contest plea. But, the Ninth Circuit has addressed this issue, and the court finds the Ninth Circuit's reasoning to be persuasive.
In United States v. Zweber, the Ninth Circuit examined a case where the defendants argued that they should be allowed to withdraw guilty pleas since both the government and the defendants made a mistake of law in concluding that a role reduction would be legally appropriate. 913 F.3d 705, 711 (9th Cir. 1990). The court held that "[t]he fact that the mistake in this case was mutual does not support the defendant's claim. It is unfortunate that the government and defense counsel both erred, but defense counsel are not entitled to rely on the government's good faith misunderstanding of the law as a basis for relief."
In this case, the prosecutor made a good faith mistake that Mr. Tellington's prior convictions were of the type that could justify more severe charges. This belief was also held by defense counsel which evidences that the mistake was made in good faith. However, the fact that the prosecutor made a good faith mistake of law and fact does not support Mr. Tellington's argument that his plea was not knowing and voluntary, as it would be perverse to allow a defendant to rely on the prosecutor's interpretation of the law and facts even more heavily than that of his own counsel. See U.S. v. Estrada, 849 F.2d 1304 (10th Cir. 1988) (counsel's assurances that defendant would not receive "much of a sentence," where defendant was actually sentenced to a term of 12 years in prison, did not rise to the level of constitutionally deficient counsel); Wellnitz v. Page, 420 F.2d 935 (10th Cir. 1970) (guilty plea was voluntary even though counsel informed defendant that he would "get 25 years" and defendant was actually sentenced to 100 years); United States v. Zambrano-Sanchez, 182 F.3d 934, 1999 WL 339694, at *3 (10th Cir. 1999) (counsel allegedly estimated a sentence of five to six and one-half years and the defendant received 151 months). As such, the court cannot conclude that the state court's adjudication was contrary to nor an unreasonable application of Federal Law as determined by the Supreme Court and elaborated upon by this Circuit.
There are also the indicia of a voluntarily and knowingly entered plea in the District Court of Atchison County's plea colloquy on February 13, 2002 at Mr. Tellington's Waiver of Preliminary Hearing, Arraignment, and Pleas of No Contest. At the outset of the hearing, the parties informed Judge Martin Asher that they had reached an agreement. Judge Asher conducted a colloquy to ensure that Mr. Tellington understood his rights. During the course of this colloquy, Mr. Tellington admitted that no one told him that he had to take a plea. Mr. Tellington affirmatively informed and represented to the court that he understood the plea bargain and had sufficient time to discuss it with his attorney. Furthermore, he admitted that he had not been coerced in any way to take the plea bargain. Finally, Mr. Tellington represented to the court that no one promised him leniency in exchange for his plea. The Tenth Circuit has found such admissions during a plea colloquy to be compelling evidence that a defendant voluntarily and knowingly entered his or her plea. United States v. Trusdale, 38 Fed. Appx. 485, 2002 WL 258200 (10th Cir. Feb.25, 2002) (representations of the defendant and findings of the judge accepting the plea can constitute a barrier to subsequent collateral proceedings); see also United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (explaining that the court looks to an informed plea colloquy for evidence that defendant knowingly and voluntarily entered into agreement). For these reasons, Mr. Tellington has failed to demonstrate entitlement to federal habeas relief.
CONCLUSION
Under the circumstance of this case, the court finds that the state court's adjudication was neither contrary to nor an unreasonable application of Federal law as determined by the Supreme Court. As such, the court denies Mr. Tellington's motion in it entirety. IT IS THEREFORE ORDERED BY THE COURT that Mr. Tellington's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2554 (Doc. # 1) is denied.
IT IS FURTHER ORDERED BY THE COURT that Mr. Tellington's motion to appoint counsel (Doc. # 16) is denied.
IT IS SO ORDERED.