Smith
v.
LeBlanc

United States District Court, E.D. LouisianaMar 17, 2004
CIVIL ACTION NO. 03-2194 SECTION: "C" (E.D. La. Mar. 17, 2004)

CIVIL ACTION NO. 03-2194 SECTION: "C"

March 17, 2004


ORDER AND REASONS


Before this Court is a petition for habeas corpus relief by Ivory Smith ("Petitioner"), pursuant to 28 U.S.C. § 2254. As grounds for relief, the petitioner makes four claims: (1) Petitioner's guilty plea was unlawfully induced in violation of his due process rights; (2) Petitioner's conviction resulted from a coerced confession; (3) Petitioner was denied the effective assistance of counsel; and (4) Sentence imposed was excessive.

Upon review of the record, this Court has determined that the record is sufficient and that no evidentiary hearing is necessary. For the reasons set forth as follows, this petition is DENIED.

Petitioner, Ivory Smith, is a state court prisoner incarcerated at Dixon Correctional Institute, Jackson, Louisiana. Petitioner was arrested on October 14, 1999, after being identified on a videotape as allegedly selling approximately $20 worth of crack cocaine to an undercover police officer on June 10, 1999. On February 16, 2000, Petitioner pled guilty to one violation of R.S. 40:967 A(1), having knowingly and intentionally distributed crack cocaine, and was sentenced to twenty-two years at hard labor. Petitioner received credit for time served and an additional case pending against Petitioner was nolle-prosequied and dismissed in accordance with the plea agreement. On April 24, 2000, Petitioner filed a Motion to Reconsider Sentence with the state district court, which was denied on April 26, 2000, due to untimeliness. Subsequently, Petitioner filed a Motion for Clarification of Sentence on March 23, 2001 with the state district court. The motion was granted on May 31, 2001, which amended the sentence imposed on February 16, 2000 so that it will be served concurrently with Petitioner's parole revocation sentence. On April 16, 2002, Petitioner filed a Motion to Vacate and/or Correct an Illegal Sentence with the state district court. Petitioner's motion was denied on May 7, 2002, as untimely and without merit. Consequently, Petitioner filed a petition for supervisory and remedial writs, which was denied by the state intermediate appellate court on May 28, 2002. Petitioner then filed for a writ of certiorari from the Louisiana Supreme Court. Without assigning reasons, the Louisiana Supreme Court denied Petitioner's writ application on June 6, 2003.

State Rec., Vol. I of I, transcript of February 16, 2000, p. 2, 11.; State Rec., Vol. I of I, St. John the Baptist Sheriff Office Chain of Custody form.

State Rec., Vol. I of I, transcript of February 16, 2000, p. 11.

State Rec., Vol. I of I.

State Rec., Vol. I of I.

State Rec., Vol. I of I.

State Rec., Vol. I of I.

State Rec., Vol. I of I.

State Rec., Vol. I of I.

State Rec., Vol. I of I.

State ex rel Ivory Smith v. State, 845 So.2d 1085 (La. 6/6/03) (No. 2002-KH-1828); State Rec., Vol. I of I.

On July 17, 2003, Petitioner filed this application for federal habeas corpus relief. In support of his application, Petitioner claims: (1) Petitioner's guilty plea was unlawfully induced in violation of his due process rights; (2) Petitioner's conviction resulted from a coerced confession; (3) Petitioner was denied the effective assistance of counsel; and (4) Sentence imposed was excessive.

Rec. Doc. 2.

Rec Doc. 2.

Timeliness

Generally speaking, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires that a petitioner bring his Section 2254 claims within one (1) year of the date on which his conviction or sentence became final. The AEDPA's one-year statute of limitations is tolled for the period of time during which a properly filed application for state post-conviction relief or other collateral review attacking a conviction or sentence is pending in state court. See Fields v. Johnson, 159 F.3d 914 (5th Cir. 1998); 28 U.S.C. § 2244(d)(2). "`[A] properly filed application' is one submitted according to the state's procedural requirements, such as the rules governing notice and the time and place of filing." Villegas v. Johnson, 184 F.3d 467, 469 (5th Cir. 1999) ( quoting Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998)); Williams v. Cain, 217 F.3d 303 (5th Cir. 2000).

Subsequent to Petitioner's sentencing on February 16, 2000, he failed to file a timely motion to reconsider sentence. Therefore, Petitioner's sentence became final at the conclusion of the statutory period allotted for the filing of such a motion. As such, Petitioner's sentence became final on February 22, 2000, and AEDPA's statute of limitations began to run. On April 24, 2000, Petitioner filed a Motion to Reconsider Sentence with the state district court, which was denied on April 26, 2000. Petitioner then had 30 days to seek timely review of the court's decision; therefore, the statute of limitations was tolled from April 24, 2000 through May 26, 2000. With two days remaining in the statutorily provided period for filing federal habeas corpus relief, Petitioner filed a Motion for Clarification of Sentence with the state district court on March 23, 2001. A decision was rendered on May 31, 2001. The tolling period ended on June 30, 2001, after the expiration of the 30-day period allowed for the filing of an appeal. Ultimately, the period in which Petitioner could file a timely application for federal habeas relief lapsed on July 2, 2001. Even when construing the date of filing of Petitioner's federal habeas petition to the earliest date allowable (i.e. the date Petitioner signed the application; see Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995); see also United States v. O'Kaine, 971 F. Supp. 1479, 1480 (S.D. Ga.1997)), Petitioner's habeas application was considered filed on July 17, 2003, and thus was not timely filed.

La. C.Cr.P. Art. 881.1.

State Rec., Vol. I of I.

State Rec., Vol. I of I.

Despite the untimeliness of Petitioner's application, given AEDPA's mandate that a federal habeas court must closely scrutinize the record for purposes of timeliness and other procedural matters, this Court will address the merits of Petitioner's claims for the purposes of clarity and finality.

Exhaustion

AEDPA requires that a petitioner's federal petition for relief advance the same factual allegations, evidence, and legal theories as were presented to the state courts. 28 U.S.C. § 2254(b)(1). Generally, a lack of exhaustion inhibits federal habeas relief. However, a federal court may be precluded from addressing the merits of a petitioner's claims, even where identical factual and legal claims have been asserted on the state and federal levels, when petitioner's claims have been procedurally defaulted (i.e. where petitioner has failed to follow a rule of state procedure). In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court explained the procedural default doctrine as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in fundamental miscarriage of justice.
Glover v. Hargett, 56 F.3d 682, 683-84 (5th Cir. 1995) (quoting Coleman, 501 U.S. at 750 (emphasis added)).

The independence requirement is fulfilled where the last state court rendering judgment "clearly and expressly" indicated that its judgment is independent of federal law and rests on a state procedural bar. Amos v. Scott, 61 F.3d 333, 338 (5th Cir.), cert. denied, 516 U.S. 1005 (1995), citing Harris v. Reed, 489 U.S. 255, 263 (1989). However, in cases such as Petitioner's, where the last state court reviewing the matter "summarily affirms a lower court judgment denying relief, the federal court looks to the last explained decision to determine whether it was decided primarily upon a state procedural bar." Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir.), cert. denied, 525 U.S. 1049 (1998) (citing Ylst v. Nunnemaker, 501 U.S. 797, 802-04 and n. 3 (1991)). Importantly, if the last state court addresses the merits, although lower courts relied upon a procedural bar, the federal court will assume the issue was addressed on the merits and federal review is not barred. Smith v. Collins, 977 F.2d 951, 955-56 (5th Cir. 1992), cert. denied, 510 U.S. 829 (1993). The instant case involves a question of whether the merits of Petitioner's claims were ever adjudicated at the state level.

Petitioner's writ applications were denied by the Louisiana Supreme Court and the state intermediate appellate court without assigning reasons. As such, the last court to provide a reasoned decision was the state district court in response to Petitioner's Motion to Vacate and/or Correct an Illegal Sentence of April 19, 2002. Previously, the same district court summarily denied Petitioner's initial motion to reconsider sentence based on Louisiana Code of Criminal Procedure Article 881.1, since it was filed beyond the thirty day, statutory time limit for filing a motion to reconsider sentence after the imposition of said sentence. Then, Petitioner filed a Motion to Vacate and/or Correct an Illegal Sentence on April 19, 2002. Again, the court concluded that Petitioner's motion was untimely based on. Article 881, but the court proceeded to briefly discuss the merits of Petitioner's claims. However, the merits discussion failed to address all of Petitioner's claims (namely ineffective assistance of counsel and constitutional excessiveness of sentence), failed to cite specific legal support or argument for the decision, and appears to be included as dicta for purposes of finality. If this is the case, there was no adjudication on the merits and Petitioner's claims are procedurally barred.

State Rec., Vol. I of I.

The entirity of the court's merits discussion is reproduced as follows:

The petitioner alleges that his sentence was illegal in that it was obtained in violation of his constitutional rights and that the sentence was excessive. A review of the record indicates that Mr. Smith signed a waiver of constitutional rights in the presence of his attorney. Furthermore, as indicated in the Boykin transcript, Mr. Smith was informed of the rights that he was surrendering by entering a plea of guilty. Mr. Smith was asked on several occasions if he understood the consequences of his plea and whather he understood the explanation of the rights he was giving up. Mr. Smith answered affirmatively to all questions posed by the court. The appears to be no evidence of impropriety that would warrant vacating or correcting the sentence given to Mr. Smith, (incorrect word choice appearing in original)

State Rec., Vol. I of I.

However, it is not necessary for this Court to surmise the intentions of the state district court, since AEDPA allows a federal court, in its discretion, to deny habeas relief on the merits, regardless of whether the applicant has exhausted state remedies. See Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997); 28 U.S.C. § 2254 (b)(2). The rationale being that when a federal court denies habeas relief on the merits for an unexhausted claim, concerns for comity are much less compelling than when it grants relief on such a claim. See Granberry v. Greer, 481 U.S. 129, 134-35(1987).

Standard of Review

AEDPA comprehensively overhauled federal habeas corpus legislation, including 28 U.S.C. § 2254. Amended subsections 2254(d)(1) and (2) contain revised standards of review for questions of fact, questions of law, and mixed questions of law and fact. Provided that the state court adjudicated the claim on the merits, pure questions of law and mixed question of law and fact are reviewed under § 2254(d)(1) and questions of fact are reviewed under § 2254(d)(2). Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).

As to questions o f law and mixed questions of law and fact, a federal court must defer to the state court's decision unless it "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The United States Supreme Court has noted:

§ 2254(d)(1)'s "contrary to" and "unreasonable application" clauses have independent meaning. A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams[ v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)] that an unreasonable application is different from an incorrect one.
Bell v. Cone, 535 U.S. 685, 694 (2002) (citations omitted).

As to questions of fact, factual findings are presumed to be correct and a federal court will give deference to the state court's decision unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2); see also Hill, 210 F.3d at 485; 28 U.S.C. § 2254(e)(1).

Ineffective Assistance of Counsel

In the interest of clarity and logical analysis, Petitioner's claims have been reorganized and regrouped.

It is well-established that the Sixth Amendment right to counsel encompasses more than a defendant's right to merely have a lawyer present; rather, a defendant is entitled to the effective assistance of counsel. See McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970). Consequently, the United States Supreme Court established a two-prong test for evaluating ineffective assistance of counsel claims in Strickland v. Washington, 466 U.S. 668 (1984). A successful claim under Strickland requires a petitioner to show that although counsel was present, counsel's performance was deficient and that these deficiencies were prejudicial to the defense. See Strickland, 466 U.S. at 697, If a court finds that a petitioner has made an insufficient showing as to either one of the two prongs of inquiry, it may dispose of the claim without addressing the other prong. Id.

To satisfy the prejudice prong under Strickland, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. The Strickland court defined a reasonable probability as "a probability sufficient to undermine confidence in the outcome." Id. In making a determination as to whether prejudice occurred, courts must review the record to determine the "relative role that the alleged trial errors played in the total context of [the] trial." Crockett, 796 F.2d at 793.

However, there are "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." United States v. Cronic, 466 U.S. 648, 658 (1984). Therefore, when surrounding circumstances render it so unlikely that any lawyer could provide effective assistance, ineffectiveness is presumed without an inquiry into counsel's actual performance at trial. See Cronic, 466 U.S. at 660-662; see also Powell v. Alabama, 287 U.S. 45 (1932). But, it is " only when [such] surrounding circumstances justify a presumption of ineffectiveness [that] a Sixth Amendment claim [can] be sufficient without inquiry into counsel's actual performance at trial." Cronic, 466 U.S. at 662 (emphasis added).

Petitioner argues that the last-minute substitution of his court-appointed counsel constitutes such per se prejudicial "surrounding circumstances" as envisioned by the Cronic court, However, the circumstances of Petitioner's case do not justify an application of Cronic here. In Cronic, the Court illustrated that only the most severe infringements of a defendant's right to effective assistance of counsel would give rise to a presumption of prejudice. Such situations, as cited by the Court, include the complete denial of counsel at a critical stage of trial, and where counsel entirely fails to subject the prosecution's case to meaningful adversarial testing. Id. at 659. But, absent deficiencies of this magnitude, the Court found virtually "no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt. Id. at 659, n. 26; see also Strickland, 466 U.S. at 693-696.

Rec. Doc. 7. Petitioner's application for a federal writ of habeas corpus did not contain an explanatory brief of the alleged constitutional violations for which he is seeking relief. However, reviewing the record as a whole, this Court has looked to Petitioner's legal arguments and factual justifications for relief reiterated throughout his petitions for remedial writs on the state level.

In Cronic, the fact that defendant's newly appointed counsel was alotted only 25 days for trial preparation, compared to the government's four and one-half years of investigation and document review, the inexperience of counsel who had previously handled real estate transactions and was trying his first criminal case, the complexity and gravity of the charges against defendant, and the inaccessibility of witnesses failed to provide a basis for concluding that defendant had been denied the effective assistance of counsel. Cronic, 466 U.S. at 663-666.

In Morris v. Slappy, 461 U.S. 1 (1983), the Court declined to find a Sixth Amendment violation in a case analogous to Petitioner's. There, the defendant's originally-appointed attorney, who had represented defendant at the preliminary hearing and conducted an extensive investigation, was hospitalized and replaced by another attorney from the Public Defender's Office, despite defendant's objection. Morris, 461 U.S. at 5-7. Since the newly-appointed counsel felt that he was fully prepared for the trial and produced successful results considering the case, the Court did not construe the substitution as prejudicial, or consider defendant's interest in continued representation by his original counsel. Id. at 12-13.

However, Petitioner contends that his situation is analogous to that of the defendants' in Powell v. Alabama, 287 U.S. 45 (1932), holding that where no counsel was appointed until the morning of the trial, said appointment was either so indefinite or so close to trial as to amount to a denial of effective assistance of counsel. Cronic, 466 U.S. at 660, citing Powell. 287 U.S. at 53. Powell presented a unique situation involving young, ignorant, illiterate defendants, facing a highly-publicized trial for a capital offense, in an openly hosfile community, who were appointed an admittedly unprepared attorney who was not a member of the local bar. Powell, 287 U.S. at 49-55.

Further, the Court has concluded that "[n]ot every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise prepare for trial violates a defendant's Sixth Amendment right to counsel." Morris, 461 U.S. at 11; see also Chambers v. Maroney, 399 U.S. 42, 53-54 (1970). Moreover, the Court has rejected the claim that the Sixth Amendment guarantees a "meaningful relationship" between an accused and his counsel. Morns, 461 U.S. at 14.

In this case, Petitioner was appointed counsel, Arthur Walton ("Walton") of the Office of Indigent Defenders ("IDB"), approximately four days after his arrest. Walton filed various motions on Petitioner's behalf between October 1999 and February 2000. However, on the day of the February 16, 2000 plea hearing and sentencing Richard B. Strides ("Strides"), also of the IDB, replaced Walton with Petitioner's consent. Petitioner's habeas application does not question the adequacy or effectiveness of his counsel until Strides replaced Walton on the day of Petitioner's plea proceeding and sentencing. The record reflects that Petitioner's plea agreement was reviewed and apparently arranged by Walton. Given the continuity of their relationship, Walton was in a position to know of Petitioner's particular wants and needs regarding his plea, and presumably negotiated accordingly. Importantly, the terms of the plea agreement were in place prior to Petitioner's sentencing, therefore the substitution of counsel would have had little, if any, impact on Petitioner's plea agreement. To that end, it appears that Strides' only participation in Petitioner's case involved guiding him through the plea hearing and sentencing. These are routine matters, that do not generally require substantial preparation or investigation. Further, Petitioner has not identified any special circumstances which would necessitate an increased amount of readying or attention to his plea hearing or sentencing.

State Rec., Vol. I of I, Notice of Appointment of Counsel.

State Rec., Vol. I of I, transcript of February 16, 2000, p. 2 (lines 2-22).

State Rec., Vol. I of I, Waiver of Constitutional Rights and Plea of Guilty; State Rec., Vol. I of I, transcript of February 16, 2000 proceedings, p. 2 (lines 2-10).

As such, Petitioner's situation does not give rise to a presumption of prejudice under Cronic. Therefore, Petitioner bears the burden of showing that counsel's performance was deficient and prejudicial under Strickland. But, the record fails to reflect that Strides' representation was lacking or inadequate in any way, or that his conduct negatively impacted the outcome of the proceedings. Further, in a guilty-plea context, to satisfy Strickland's prejudice requirement, the petitioner must show that but for the counsel's errors he would not have pleaded guilty and insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Montoya v. Johnson, 226 F.3d 399, 408 (5th Cir. 2000), cert. denied, 532 U.S. 1067 (2001). Consequently, Petitioner has failed to make the requisite showing under the applicable Strickland standard; therefore, his claim is denied.

Conviction was obtained through an unlawfully induced guilty plea: Petitioner was induced to plea without fully understanding the consequences

Petitioner asserts that he was unconstitutionally compelled to plead guilty on June 10, 1999, as a result of the absence of his attorney. First, it is necessary to clarify when the alleged unconstitutional action took place. The Petitioner references June 10, 1999 as the date he was induced to plead guilty. However, the state's record indicates June 10, 1999 as the date of the criminal activity underlying Petitioner's conviction. Petitioner was not arrested until October 14, 1999, and his plea agreement was not presented to, and accepted by, the Fortieth Judicial District Court of Louisiana until February 16, 2000. It is important to distinguish these events, because the ambiguity of Petitioner's claim could be interpreted as alleging that his guilty plea resulted from improper police or prosecutorial action prior to his hearing. However, Petitioner has failed to make any specific claims to this effect, and is therefore precluded from raising them for the first time at the federal level, due to lack of exhaustion. See U.S.C. § 2244.

Rec. Doc. 2.

State Rec., Vol. I of I.

After a review of the merits, it should be noted that the record provides no support for a claim of police or prosecutorial misconduct. The record shows that Petitioner was mirandized at the time of his arrest, and subsequently signed a notice and waiver of rights indicating that he understood his rights, was willing to answer questions without a lawyer present, and was not threatened, pressured, or induced to answer questions or give up any of his rights. State Rec., Vol. I of I, arrest report; State Rec., Vol. I of I, Interrogation: Advice of Your Rights form dated October 14, 1999.

Petitioner's Motion to Vacate and/or Correct an Illegal Sentence states:

Movant was induced to pled guilty to the one count on June 10, 1999, without his attorney present violating his constitutional rights of adequate due process under his Sixth Amendment. (See Transcript at p. 2, 3, 4) Nevertheless, in this same proceeding the trial court erred in letting and appointed a Mr. Richard B. Stricks, of the IDB, to stand in and represent Movant on the same day of trial an sentencing, (emphasis added) (misspelling and incorrect word choice appearing in original)

State Rec., Vol. 1 of 1, Motion to Vacate and/or Correct an Illegal Sentence dated April 16, 2002? p. 3-4. The cited transcript is the record of proceedings occurring on February 16, 2000.

Nevertheless, a review of Petitioner's prior applications for relief on the state level indicates that the claim of unconstitutional inducement of his guilty plea was based on the events of February 16, 2000.28 As such, since the record clearly reflects that Petitioner was represented by counsel at the February 16, 2000 proceedings, the Court assumes that his contention that his guilty plea was offered "without his attorney present" is based on the absence of Arthur Walton, the IDB attorney originally appointed to Petitioner's case, and the substitution of Richard Stricks as Petitioner's counsel. However, as previously discussed, the substitution of counsel which occurred during Petitioner's plea hearing and sentencing does not amount to a deprivation of effective assistance of counsel. Further, "an indigent defendant does not have an unqualified right to the appointment of counsel of his own choosing." Morris, 461 U.S. at 10 (citing Slappy v. Morris, 649 F.2d 718, 720 (9th Cir. 1981)). As such, the record does not support Petitioner's claim that he was without the effective assistance of counsel at the time of his guilty plea in violation of his due process rights, and this claim is therefore denied.

State Rec., Vol. 1 of 1, transcript of February 16, 2000, p. 2 (lines 2-22), p. 7 (lines 26-31), p. 11 (lines 3-4), p. 12 (lines 21-30).

Petitioner's Understanding of the Consequences of Pleading Guilty

Before accepting a guilty plea, a trial judge must ensure that it is knowing and voluntary. See James v. Cain, 56 F.3d 662, 666 (5th Cir. 1996). A defendant must "[have] a full understanding of what the plea connotes and of its consequences." Taylor v. Whitley, 933 F.2d 325, 329 (5th Cir. 1991), cert. denied, 503 U.S. 988 (1992) ( quoting Boykin v. Alabama, 395 U.S. 238, 244 (1969)).

The record reflects that the court thoroughly explained the consequences of pleading guilty to Petitioner, and that such a plea results in the waiver of certain rights. The court proceeded to detail specifically which rights were being waived including: the right to a jury trial and to plead not guilty; the right to be presumed innocent until proven guilty beyond a reasonable doubt; the rights of confrontation and cross examination of witnesses; the right to testify yourself at trial, or to remain silent, the right to subpoena witnesses, the right to appeal a guilty verdict, and the right to the assistance of an attorney. Additionally, Petitioner's signed plea agreement delineated precisely which rights were being forfeited by pleading guilty, and reflects Petitioner's initials after the statement of each waiver.

THE COURT:
By . . . entering this plea, do you acknowledge that you understand you're giving up certain rights?
MR. SMITH: Yes, ma'am.
State Rec., Vol. I of I, transcript of February 16, 2000, p. 5-6.

State Rec., Vol. I of I, transcript of February 16, 2000.

State Rec., Vol. I of I, plea agreement.

However, Petitioner alleges that the timing of the court's recitation of his rights nevertheless renders his plea unconstitutional. Petitioner argues that the court was required to advise him of his rights (specifically the right to remain silent and the right to a formal hearing) prior to his identification and acknowledgment, in open court, that he in fact committed the offense of which he was accused. Petitioner bases this argument on several Louisiana state decisions, principally State v. Moffett, 572 So.2d 705 (La.App. 4th Cir. 1990) (failure to advise defendant at hearing before defendant admitted his identity that defendant had the right to a formal hearing, the right to require the state to prove his identity, and the right against self-incrimination was reversible error). However, Petitioner's reliance on this line of cases is misplaced, because the applicability of Moffett was specifically limited by State v. Stemley, 618 So.2d 455 (La.App. 4th Cir. Apr 28, 1993) (No. 91-KA-1975). Stemley stated that "only where [a] defendant pleads to [a] multiple bill is Moffett applicable." Id. at 458. Since Petitioner was not multiple billed, Moffett is inapplicable. As such, given the court's proper admonishment of Petitioner, the constitutional burden has been carried and Petitioner's claim is denied.

Petitioner also contends that his guilty plea was not constitutionally valid, because he did not understand the punishment, which would result from his plea. He alleges that he consented to plead guilty under the belief that his sentence would range between five to ten years. "However, his `mere "understanding"' that he would receive a lesser sentence in exchange for a guilty plea will not abrogate that plea", given that a heavier sentence was actually imposed. Harmason v. Smith, 888 F.2d 1527, 1529 (5th Cir. 1989). The Fifth Circuit has consistently held that:

In order for a prisoner to receive federal habeas relief on the basis of alleged promises that are inconsistent with representations made in open court when his guilty plea was accepted, he must `prove (1) exactly what the terms of the alleged promise were; (2) exactly when, where, and by whom such a promise was made; and (3) the precise identity of an eyewitness to the promise.'
Id. (quoting Smith v. McCotter, 786 F.2d 697, 701 (5th Cir. 1986)).

Petitioner has not satisfied this requirement, nor has he offered any evidence of the alleged misleading plea promise, but for his assertion that he was led to believe a lower sentence would be imposed as a result of pleading guilty. In actuality, Petitioner's sentence was within the statutory range established by the Louisiana legislature. Further, Petitioner has a criminal history, including a previous drug-related offense, which was presumably incorporated into the court's sentencing rationale. Further, Petitioner received several annunciated benefits in connection with his guilty plea, including, credit for time served, and the nolle prosequi of an additional charge. For these reasons, Petitioner's claim is denied.

La. R.S. 40:967(A)(1) states:
A. Manufacture; distribution. . . . it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule II.
. . .
B. Penalties for violation of Subsection A. . . . (4)(b) distribution, dispensing, or possession with intent to produce, manufacture, distribute or dispense cocaine or cocaine base or a mixture or substance containing cocaine or its analogues as provided in Schedule II(A)(4) of R.S. 40:964 shall be sentenced to a term of imprisonment at hard labor for not less than five years nor more than thirty years.

Excessive Sentence

Finally, Petitioner contends that his sentence of twenty-two years at hard labor is excessive and "grossly out of proportion to the crime actually committed." However, Petitioner did not brief this claim and his application fails to specify the constitutional violation for which relief is requested. Nonetheless, Petitioners requests for state relief appear to advance two lines of reasoning for the unconstitutionality of his sentence: (1) the sentence actually imposed was greater than the sentence Petitioner believed would be imposed in accordance with the plea agreement, and (2) the length of sentence constitutes cruel and unusual punishment given the nature of the crime. Petitioner's claim concerning the legitimacy of his sentence in light of his plea agreement is discussed above, so only Petitioner's cruel and unusual claim will be discussed here.

Although never specifically referenced, Petitioner's "grossly out of proportion" language utilized in Petitioner's prayer for federal habeas corpus relief mirrors the United State Supreme Court case Gregg v. Georgia, 428 U.S. 153 (1976), examining what constitutes excessive punishment in light of the Eighth Amendment.

The Supreme Court has held that sentences that are greatly disproportionate to the offense are cruel and unusual under the Eighth Amendment. Weems v. United States, 217 U.S. 349 (1910). However, the Eighth Amendment's prohibition against sentences that are grossly disproportionate to the crime is tempered by the corollary principle that "the determination of prison sentences is a legislative prerogative that is primarily within the province of legislatures, not courts . . . Therefore, the courts must grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes." United States v. Gonzales, 121 F.3d 928, 942 (5th Cir. 1997). As such, "it is firmly established that successful challenges to the proportionality of punishments should be `exceedingly rare'." Mills v. Cain, 1999 WL 681385, 6 (E.D.La.) ( quoting Gonzales, 121 F.3d at 942). Ultimately, the Fifth Circuit has outlined a three part test to be used in Eighth Amendment proportionality analysis, McGruder v. Puckett, 954 F.2d 313 (5th Cir. 1992). First, the court weighs the gravity of the offense against the severity of the sentence. Id. at 316. Then, if the court finds that the sentence is "grossly disproportionate" to the offense, the court should look to the sentences rendered for similar crimes in the same jurisdiction, and the sentences for the same crime in other jurisdictions. Id.

The bench mark case for measuring constitutional proportionality has been Rummel v. Estelle, 445 U.S. 263 (1980), where the Supreme Court upheld a life sentence for a person convicted of three, non-violent property crimes, specifically, passing a forged check for $28.36, fraudulent use of a credit card totaling $180, and obtaining $120.75 through false pretenses.

Louisiana state courts have previously held that sentences similar to Petitioner's, arising from similar criminal conduct, are not constitutionally excessive. See State v. Perow, 607 So.2d 888 (La.App. 2nd Cir. 1992) (No. 93-0947), writ denied, 653 So.2d 562 (4/21/95) (sentence of 15 years on conviction of distribution of cocaine arising from sale of S20 piece of crack cocaine was not constitutionally excessive; defendant's criminal history and benefits of his plea agreement outweighed the fact that only small amounts of cocaine were sold); see also State v. Smith, 524 So.2d 837 (La.App. 3rd Cir. 1988) (plea bargain should be considered as factor in determining whether sentence is excessive).

In the instant case, Petitioner had prior felony convictions for possession of cocaine and for simple burglary. Additionally, there was apparently a firearm charge pending against Petitioner at the time of his sentencing which was nolle prosequied in accordance with his plea bargain, and later state court action indicates that Petitioner was on parole at the time of his arrest. Nevertheless, his twenty-two year sentence was run concurrently to the parole violation. Given Petitioner's criminal record, with special attention afforded to his previous drug-related offense, although his twenty-two year sentence resulting from the possession and sale of a relatively small amount of cocaine may be harsh, it is not constitutionally cruel, unusual, or disproportionate. Petitioner's claim is therefore denied.

CONCLUSION

For purposes of the limited review that can be taken by this Court, and having considered the complaint, the record, and the applicable law, it is determined that Petitioner has not established that his state trial and conviction present grounds for the relief requested.

Accordingly,

IT IS ORDERED, ADJUDGED AND DECREED that the petition of IVORY SMITH for writ of habeas corpus under 28 U.S.C. § 2254 be DISMISSED WITH PREJUDICE.

Judgment shall be entered accordingly.