James Howard Turner v. State of Tennessee

TURNER, Howard James

Petitioner-Appellee, TENNESSEE, al., et

STATE OF

Respondents-Appellants.

No. 87-5891. Appeals,

Sixth Circuit. 19, 1988.

Argued Feb. 7, 1988.

Decided Oct. Cody, Atty.

W.J. Michael Gen. of Tennes- see, Nashville, Tenn., Kymberly Lynn Anne (argued), Hattaway respondents-appel- lants. Yarbrough (argued),

Edward N. J. Rus- Heldman, Hollins, Wagster sell and Yar- Nashville, Tenn., brough, petitioner-ap- pellee. KEITH, MARTIN,

Before RYAN, Judges. Circuit MARTIN, Jr., BOYCE F. Circuit Judge. appeals Tennessee the dis- grant

trict court’s conditional of a writ of Turner, corpus. James Howard awaiting was retrial in a Tennessee who court, petitioned criminal district court grounds relief impending retrial would his violate Sixth Amendment to the effective counsel assistance of and his Fourteenth process to due of law prosecution. free vindictive The district writ, conditionally granted we now affirm.

I. co-defendants, Turner and two Earl Car- Passarella, roll Sam John were indicted kidnapping of Monte Hudson and wife and for the murder of Mr. Hudson. The record indicates that co-defendants parking lot of Pursuant to the order of the state trial the Hudsons accosted court, Hudson, Turner was detained from the time Mrs. Nashville Hotel. in February of his trial of 1983 until the un- away by was released driven Tennessee Court’s decision De- Hudson, following day. Mr. harmed Upon cember of 1984. remand to the trial however, by and Passar- was taken Carroll trial, court for a new Turner was released murdered. ella and negotiations plea on bond and resumed. separately. were tried The co-defendants negotiations, the During these re- State two-year sentence agreed to a Carroll plea fused to offer than 20 Turner less jury trial at simple kidnapping. After years. Eventually, petitioned Turner testi- and Mrs. Hudson Carroll which both trial court order State to reinstate its fied, two was convicted of Passarella or, original two-year in offer the alterna- sen- aggravated and counts of assault tive, to dismiss the indictment. The state years prison. in tenced to granted trial court Turner’s motion on the “only grounds way that the which Bailey, by Lance represented Turner was constitutional can be neutralized violation Socorro, New Mexico. attorney from an case, require in this is to the State to general John attorney district Assistant year offer, plea bargain the two reinstate Zimmerman, and also tried the case or to order the case dismissed.” State v. now, negotiations rep- responsible plea C-8536, (Fifth Turner, op. slip No. at the State. Concerned about resented 28, 1985). County Cir.Ct. for Davidson Feb. by Mrs. Hudson would suffer trauma that trial, 10, of- testifying Tenn.R.App.P. at the State the State another Pursuant applied extraordinary appeal. for an In plea arrangement fered Turner the same reversing, the Tennessee Court of Criminal accepted. This offer that Carroll had Appeals held that court could re for settle- open mained until the deadline particular plea quire the State to make a Despite imposed by the court. ments proper bargain remedy and other attor- strong recommendations from trial. v. was to remand for new State offer, Bailey ad- neys accept Turner, (Tenn.Crim.App. 713 S.W.2d offer. The dead- vised Turner 1986). Supreme Court de Tennessee expired. line for settlement Turner, permission appeal, nied State v. February Turner tried On (Tenn.Crim.App.1986), S.W.2d and. felony mur- jury on one count of before a Supreme Court denied certiorari. the U.S. kidnap- aggravated two counts der and Tennessee, 479 v. Turner again Mrs. testi- ping. and Hudson Carroll Trial was three Turner was convicted all fied. February 1987. On set for June imprisonment to life counts and sentenced district petitioned Turner the federal kidnap- plus years on each for murder corpus pursuant of habeas court for writ ping count. 2254(a). 2241(c)(3) U.S.C. §§ for a new trial on the Turner moved juris- that it had court found The district he had received ineffective grounds that petition and diction to entertain deciding reject counsel his state reme- that Turner had exhausted eviden- plea offer. After an appropriate reme- the issues of the dies on granted hearing, the state trial court tiary right counsel dy deprivation of his Turner, No. C-8536 application the motion. State of the and the (Fifth County subsequent Nov. prosecution for Davidson Cir.Ct. vindictive 1983). af Appeals deciding of Criminal After that inef- plea bargaining. Turner, firmed, reject No. 83-287-III offer can fective advice to State 1984), Aug. 7, (Tenn.Crim.App. and the to effective assistance infringe the Amend- permis guaranteed the Sixth Court denied counsel Tennessee de novo ment, court determined concurred the result. the district appeal sion to incompetent was both (Tenn. Bailey’s conduct No. 83 - 287—III 1984). under Wash- prejudicial Strickland Dec. ington, 466 80 one custody who claims he is in in violation (1984). Finally, States, the district of the Constitution of the United appropriate regardless determined that the rem judgment whether a has been edy deprivation for the of Turner’s Sixth rendered.” petition Id. relief, alleged would be a new that his im- hearing during pre pending which a rebuttable retrial would violate his Sixth sumption of vindictiveness would attach to Amendment to the effective assist- any plea made excess ance of counsel and his Fourteenth Amend- original two-year Therefore, of its offer. process ment to due of law free of prosecution. the district court ordered Therefore, that a writ of vindictive the dis- corpus habeas be issued unless the state trict properly jurisdiction court exercised hearing. trial court held such a 2241(c)(3) Turner v. under 28 U.S.C. over Turner’s § Tennessee, (M.D. 664 1113 claim custody that he in in was violation of of Tenn.1987). the Constitution. Accord United States ex Zelinsky, rel. Caruso v. 689 F.2d 437 appeal, argu- On the State makes four (3d Cir.1982) (a Sixth Amendment First, ments. State claims that of effective assistance counsel at the jurisdiction district court not did un- bargaining stage cognizable is a claim un- 2241(c) der 28 U.S.C. to entertain Turn- § statutes). der corpus federal habeas petition corpus er’s for habeas relief. Sec- ond, the State contends that did Turner III. regarding exhaust his state remedies stated, As the “[wjhere Court prosecutorial claim of vindictiveness. state defendant is released bail or on his Third, argues the State that Turner’s Sixth recognizance pending own trial pending Amendment to the effective assist- appeal, he still must contend with the re ance of counsel was violated. Final- never quirements of the if exhaustion doctrine he ly, the State maintains that a corpus seeks habeas in relief the federal prosecutorial vindictiveness should not Court, Hensley Municipal courts.” subsequent attach offers. We con- S.Ct. 36 L.Ed. arguments sider each of these in turn. (1973). 2d 294 are convinced Turn er has exhausted his state remedies. II. Although the not argue State does other- 2241(c)(3), Under 28 U.S.C. a dis § wise, we note that Turner has exhausted power grant trict court has habeas cor respect his state remedies with to his claim pus prisoner custody relief who is “in that the scheduled state retrial would vio- in violation of Constitution ... late his effective assistance of United States.” State contends that “has counsel: Turner taken his claim that jurisdiction the district court did not have again he should not be tried as as far request to entertain Turner’s for habeas can in the state courts.” Justices Bos- corpus relief because Turner not “in Municipal Lydon, ton custody in violation of Constitution.” L.Ed.2d 311 position. First, We find no merit this it (1984). custody” clear that Turner is “in for the purpose jurisdic does, however, corpus federal habeas The State argue that Atkinson, tion. As we held Delk 665 Turner failed to exhaust his state remedies Cir.1981), (6th regard F.2d prosecutorial has with to his claim of “[o]ne awaiting February 12, released on bail while trial On vindictiveness. ‘custody’ purposes during for 2241.” state trial held a hearing brief § Furthermore, clearly again rejected claimed be which Turner the State’s custody “in twenty-year plea violation the Constitu court set a Again tion.” as we said transcript Delk v. Atkin date. The entire of this son, 2241(c)(3) “28 permit pages, U.S.C. ... does double-spaced. ten § the issuance of the at the transcript, writ instance of State now contends may petition corpus district court entertain a presented which was passed upon prior the state relief to a retrial in state never court where but was courts, “new petitioner alleges contained evidence” appellate that the retrial would “in placed Turner’s claim relief constitutionally be offensive. Delk v. At Cir.1981). sequ stronger eviden- significantly (6th different and kinson, 665 F.2d 90 Con it was in the state tiary than position ently, we conclude that district court courts.” properly petition entertained Turner’s habeas relief. federal

It is well-settled present the corpus petitioner must same factual and le state courts IV. urges upon the federal gal claims that he that, also contends con 4, 6, Harless, 459 U.S. court. Anderson v. trary finding every state and 276, 277, ease, federal court that has examined this (6th Cir.), Love, Sampson 782 F.2d Turner’s Sixth ef denied, 844, 107 cert. fective of counsel was not violat (1986), example, this court Although, ed. corpus as the district court ob petitioner, who held that a habeas newly- served, “[njeither Court nor presented to the district court had not squarely evidence vindictiveness the Sixth Circuit ever has held discovered level, not ex incompetence at the state had considered counsel that results his state remedies because new deciding go hausted a defendant trial rather “in petitioner’s placed the claim a evidence plead guilty infringes than posture than that at significantly different guaranteed effective assistance of counsel at Turner’s situa the state level.” Id. Amendment,” 664 the Sixth at tion, however, easily distinguished. The 1118, challenge prop the State does not 12, February 1987 hear transcript of the reject incompetent advice to a osition “evidence,” new ing, which contained no a plea offer can constitute Sixth Amend clearly not claim a place did Turner’s court, deprivation. The district after ment “significantly posture.” Conse different thoughtful analysis, that “an a concluded argument that submis quently, the State’s go incompetently counseled decision transcript to the district court sion of the range appears to fall within the required another review of the case provided by protection appropriately merit. state courts without at 1120. Amendment.” Id. Sixth analysis agree district court’s and Having concluded that the federal v. Duck conclusion. Accord Johnson grant jurisdiction statutes habeas 898, (7th Cir.) worth, 900-02 793 F.2d petition and that Turner has over Turner’s (criminal has to effective defendant remedies, we consider exhausted state deciding whether of counsel in assistance indicate principles of federalism whether agreement), accept reject proposed plea en court should not have that the district denied, 107 S.Ct. rt. 479 cor petition Turner’s tertained ce 416, (1986); L.Ed.2d 367 Ordinarily, federal courts pus relief. Zelinsky, F.2d ex rel. Caruso enjoin pending state criminal should not Cir.1982) (“the reject a (3d decision to Harris, Younger 401 U.S. proceedings. guilty is plea bargain plead and not (1971). vitally and a crit important decision also a however, Where, “special circumstances” right to effective stage ical at which the intervention, a court justify federal district attaches”); Beckham assistance counsel pre-trial corpus juris can exercise (5th Wainwright, 639 F.2d Cir. proceedings. criminal diction over state 1981) (incompetent advice withdraw Braden v. 30th Judicial Circuit Court of instead stand 1123, negotiated guilty and 93 S.Ct. Kentucky, right to effective trial violates defendant’s This circuit counsel). assistance already that a district established agreeing While Bailey to the that if testified had ever effective assistance of counsel extends to offer, to accept advised him offer, reject plea it, decision the State I “would have taken relied because challenges the conclusion that judgment.” Transcript at 112-13. was violated. Under Strickland Wash testimony, by itself, subjective, This ington, self-serving, and in the Court’s view in- (1984), a Sixth Amendment satisfy sufficient to Strickland claim of ineffective counsel is quirement prejudice. objec- There is constitutionally cognizable unless it can record, however, tive evidence be the attorney’s shown that conduct was tends to corroborate claim Turner’s incompetent both prejudicial. Al provides independent reason believe though it does not contend that Turner’s significant there is a probability not incompetent, counsel was the State ar that, Bailey’s had advice been reason- gues that no Sixth Amendment violation able, accepted Turner would have was demonstrated because Turner failed to offer. prejudice establish that he as suffered response result of his counsel’s To misconduct. es propose one-year was to counteroffer. prejudice, tablish the the “defend requisite argu- This fact itself rebuts the State’s ant must show that there is reasonable ment that Turner’s publicly privately that, probability unprofes but for counsel’s professed belief his innocence would errors, sional proceeding result of the prevented plea. Moreover, as would have been Id. at different.” testified, Binkley mandatory parole proba S.Ct. at 2068.1 “A reasonable one-year date for a sentence was nine bility probability is a to sufficient under months, parole the mandatory date mine confidence the outcome.” Id. two-year for a sentence was thirteen and arguing In that Turner failed to demon- a half leaving only a four-and-a- months— that, probability strate a reasonable but for actually half month difference in time errors, pro- counsel’s the of the result be served under the the offer and coun- ceeding different, would have the Only teroffer. a small difference re- State alleged identifies two deficiencies in counteroffer, mained between offer and First, proof. the claims State that only change and therefore small Turner did not that he demonstrate actual- Bailey’s might advice closed the have ly accepted two-year would plea have the gap. Judge Finally, Kurtz concluded on Second, offer had counsel so advised. proof the the basis of at the the State claims that Turner failed to es- during of “the own Court’s observations tablish ap- that the trial court have would litigation,” the course of this that “Turn- proved plea arrangement the had Turner appeared er at all times be under agreed to it. Bailey’s I Memoran- control.” Turner finding dum at 3. This factual based maintaining The correct in upon demeanor entitled to considerable that Turner must there establish that is a 2254(d). deference under 28 U.S.C. § probability that, reasonable for the in but Patton v. Yount U.S. [467 competence counsel, he have ac would (1984) S.Ct. ]. cepted two-year pled guilty. the offer and State, however, review, is incorrect main On de this novo Court concludes taining objective Turner has satisfied not this that there is in the evidence issue, considering burden. the this dis record “sufficient to undermine confi- trict petitioner court wrote: dence in outcome” the so that Lockhart, 58-59, satisfy ‘prejudice’ 1. requirement, In Hill v. the the de- 366, 370-73, (1985), fendant must show that there a reasonable the that, errors, prejudice probability Court confirmed that the but for counsel’s he requirement Washington applies pleaded guilty Strickland v. would not have and would have guilty challenges pleas going based on insisted on to trial." ineffective Id. at S.Ct. at words, assistance of counsel. “In other in order significant find establishing that it much more met his burden of has no that, point can probability evidence that a reasonable but there is indicates that state trial court would Bailey’s incompetence, he have would approved two-year plea not have ar two-year pled accepted offer and rangement. that, We believe if the State Strickland, requirements of guilty. The suggest wishes to the trial court Hill, are supra, supra, satisfied. approved plea arrange have would not as- denied the effective Petitioner was ment, State, and not bears the guaranteed by sistance of counsel persuasion. prosecution burden of Amendment. Sixth therefore, may, argue prisoner, Based 1121-22. at probability has established a reasonable dis- foregoing analysis, agree we that, but for his counsel’s ineffective assist that Turner estab- trict court’s conclusion ance, accepted he would have ar that, probability absent a reasonable lished was, rangement prosecution, offered incompetence, have would his counsel’s nevertheless, prejudiced not because offer. two-year plea accepted the State’s approved trial court would not have Moreover, unpersuaded by we are plea arrangement. prevail To on such an argument that Turner failed the State’s however, argument, prosecution must prove prejudice he did not estab because convincing offer clear and evidence have that the state trial court would lish approved the trial not court would two-year plea arrangement. approved Here, plea arrangement. es stating Although the State is correct probability that he tablished reasonable approved accepted agreement that a must be would have State’s disposi- plea the trial court before it becomes it not for his offer were counsel’s Johnson, State, tive, Mabry v. assistance. on the see ineffective 2543, 2546, hand, no other has offered evidence that (1984) 11(e)(3), prepared do and Tenn.R.Crim.P. we the state contemplated arrange approve required Turner was not believe that Consequently, that Turner ment. we hold probability that demonstrate a reasonable prejudice under Strickland the established approved the trial court would have Washington. v. plea arrangement. two-year See United F.2d Zelinsky, ex rel. v. 689 States Caruso

435, (3d Cir.1982)(court V. 438 n. 2 finds that corpus petitioner presented federal deprivation for the Remedies in Amendment claim of meritorious Sixth to the effective the Sixth effective of counsel in decision counsel “should tailored assistance of be though plea bargain reject offer even from constitutional injury the the suffered “the petitioner possibility unnecessarily not rebut that in did and should violation might approved fringe competing the United trial court not have interests.” 361, 364, bargain”). Morrison, 449 101 alleged plea terms of the U.S. States 668, (1981). In imposes 66 L.Ed.2d 564 of no case statute that S.Ct. know remedy for the dis requirement, fashioning unfair a a and we think it such recognized a new properly that require litigants speculate trict court and unwise to specific deprivation remedy trial cannot the particular judge how a would as to F.Supp. at 1123-24. Turner suffered. particular under circumstances.2 acted note, however, proba- a estab- Turner bility effect established reasonable that the record does 2. We guilty plea satisfied probability would have that the trial court that lish a reasonable acceptance approved plea arrangement. requirements under Rule would have Second, First, approved essentially requires an almost iden- the trial court Tenn.R.Crim.P. 11 plea arrangement two-year for Turner’s tical court ensure a criminal defendant Finally, various rul- guilty plea voluntary Carroll. co-defendant enter an informed Therefore, give strong ings establishing indica- a reason- of the state trial manner. original approve accepted prepared to probability tion it was that would have able advised, accepted two-year it. arrangement offer had Turner had counsel so retaliation, presumption such a rebuttable complain inadequate representa- does not prosecutorial vindictiveness should be Instead, during tion trial. Turner claims where there is a “realistic likeli- established that his counsel’s misconduct cost him the prosecutorial retaliation. Id. at hood” opportunity to consider the State’s 27, 94 S.Ct. at 2102. In constitutionally-guaran- offer with the Goodwin, 457 U.S. teed assistance of Consequently, counsel. (1982), Supreme es- Court trial, more fair or even a series of “[o]ne determining tablished criteria for whether them, not necessarily would the lost revive prosecutorial likelihood” of “realistic Kraus, chance.” State v. 397 N.W.2d taliation exists. As the district court rec- (Iowa 1986). Accord United States ex ognized, courts should focus on “the nature rel. v. Zelinsky, Caruso 689 F.2d timing of the asserted” and “the (3d Cir.1982). Indeed, only way neu- 382, 381, prosecutor’s action.” Id. at deprivation tralize the constitutional suf- 102 S.Ct. at 2493. fered Turner would seem to provide be to Turner with an opportunity to consider the Supreme Court announced two-year plea State’s offer with the effec- appropriate tive assistance of counsel. require where the asserted would “duplicative expenditures prosecutorial Supreme Court has indicated that resources,” Id. at 102 S.Ct. at specific performance plea agreement of a require and would the State “to do over constitutionally permissible remedy. Ma thought already what it it had done correct Johnson, 11, 104 bry v. 510 n. ly.” Id., quoting Kentucky, Colten 2548 n. 104, 117, 1953, 1960, 92 S.Ct. 32 L.Ed. (1984); York, Santobello v. New pronounced 2d 584 257, 263, 495, 499, presumption especially warranted where (1971). Nevertheless, the district court de prosecutor “personal moreover had a require clined to the State to reinstate its stake” or there was “institutional bias Instead, two-year plea offer. the district question.” the retrial of a decided court concluded that Turner had “no abso Goodwin, United 457 U.S. at States remedy specific per lute timing S.Ct. at 2494. As of the formance of the former offer” but action, prosecutor’s Court an the state court withdraw the offer change in charging nounced that “a only upon showing that the “withdrawal is decision made after an initial trial is com apprehension free of a reasonable of vindic pleted likely improperly is much more to be tiveness.” 664 at 1125. The dis pre-trial than is a motivated decision.” trict court went on to state that “a satisfac light criteria, agree of these we with the tory showing two-year would rescind the analysis district court that “the structural bargain parties negotiate and free the to as ’Goodwing requires finding of a of a real usual.” Id. at 1124. The now con in istic likelihood of vindictiveness this situ presumption tends a prosecutorial that of application ation and demands of a rebut- vindictiveness should not attach to subse presumption any table of vindictiveness to quent plea in original offers excess of the offer made the State in excess of two-year offer. previous its offer on the eve of the first trial.” 664 at 1125. clearly Court has es tablished that a criminal defendant who We believe that the district court’s reme- successfully pursues dy depriva- his constitutional for Turner's Sixth Amendment comports requirements to direct or collateral relief from con tion with the of may subjected greater Granting viction not be to v. Morrison. See, punishment exercising right. adequately for Turner another trial would not e.g., Blackledge remedy deprivation. Perry, Turner’s constitutional hand, pro specific requiring per- To On the other against chilling posed by original two-year plea tect the effects formance the ar- of infringe might unnecessarily rangement (1974). There By is no such realistic the State. likelihood competing

the interests of in originally this case. The state had two- a allowing the to withdraw the compelling making reason the inordi- a showing that such upon year nately two-year offer to of lenient a prosecuto- product of is not the withdrawal plea: prosecution the concern the vindictiveness, the district has rial Hudson, would fail Mrs. of because one prescribed United struck the balance victims, “apprehensive kidnapping Morrison. States v. trial,” testifying again about at the Turner judgment of district court already through since had she been affirmed. experience unpleasant testifying against of co-defendant, Appar- Passarella. RYAN, Judge, concurring Circuit ently family Mrs. also shared her Hudson’s part. dissenting in part and to of another reluctance face ordeal agree writ of habeas While I Through trial. no fault of state of case, properly issued in this corpus was Tennessee, early lenient offer was remedy dis- and find no fault with the by the jected defendant and state was rectify con- has trict court fashioned trial, required proceed risking occurred, I which has stitutional violation possibility losing entirely of the case if deter- agree court’s cannot with district “apprehensiveness” Mrs. Hudson’s hard- of vindictive- mination that non-cooperation. As ened into it turned twenty- to the state’s ness should attach out, it did not. testified Turn- She bargain not the year plea offer. There is er, he was of two convicted counts record that the slightest indication kidnapping and one count of murder recom- the defendant state’s first-degree. accept mend that the trial court sen- seventy-year The convictions and the robbery aggravated guilty to one count now set tence that resulted have years’ twenty with maximum sentence defendant, uncon- aside. The save as a action taken confinement vindictive ineptness of his retained coun- stitutional punish means the defendant success- sel, ordinarily no more would be entitled to seventy- fully appealing his conviction acquittal prospects than a trial year sentence. hand, one or a convic- and freedom on the warrant the unique facts of this case any confinement for number tion and we unique approved relief to life on the The state of years up other. —a required show at which the state Tennessee, prosecutor, nothing as done its of a why cause former offer of af- bring about that state improper should not be reinstat maximum sentence motivation it once compelling fairs. The opinion nothing ed. But this court’s store,” away the in the form “give had to suggests a valid reason the district court’s longer agreement, two-year plea no burdening position state’s for further Nevertheless, exists, the state however. al by imposing judge-made presumption, plead guilty Turner to has offered allow rebuttable, twenty-year state’s beit aggravated kidnapping single to a count of controlling is vindictive. The plea offer aggravated rather than the two counts determining Court authorities of murder in the first kidnapping and one presumption of vindictiveness whether a degree, and to recommend sentence judicially imposed make clear twenty years. should be Whether than not more Due Clause is not offend permitted that “the Process to rescind Tennessee should be by punish of increased in favor of possibilities previous two-year ed all its pose is matter to only present twenty-year ment but those that ... its ” judge. No ‘vindictiveness.’ trial realistic likelihood be resolved state shown, however, Goodwin, justify reason judicial imposing upon proceedings pres- the offer the state (1982); determination that Blackledge Perry, ently has on the table presumptive- reflects

ly vindictive retaliation the accused proving that he was the victim of the

unconstitutional ineffectiveness of his re-

tained counsel.

I would return proceedings court for a requiring the state

of Tennessee to show why origi- cause

nal plea offer should not be rein-

stated, but application without the any

presumption in the matter because it is

evident from the record before us that the twenty-year

state’s plea offer does not

“pose a realistic likelihood of vindictive- Goodwin,

ness.” supra; Blackledge, su-

pra. FUCHS, al.,

Eldon et On their behalf

and on persons behalf of all

similarly situated, Plaintiffs-Appellants,

RURAL ELECTRIC CONVENIENCE CO INC.,

OPERATIVE Central Illinois Company Public Service Mary E.

Bushnell, Chairman the Illinois Commission,

Commerce agency an Illinois,

the State of Defendants-Appel

lees.

No. 87-2849.

United States Court Appeals,

Seventh Circuit.

Argued April 20, 1988. Sept.

Decided 1988.

Rehearing and Rehearing En Banc

Denied Nov.

Case Details

Case Name: James Howard Turner v. State of Tennessee

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 7, 1988

Citation: 858 F.2d 1201

Docket Number: 87-5891

Court Abbreviation: 6th Cir.