1 United States Court of Appeals,

Fifth Circuit.

Summary Calendar

Nos. 94-40295, 94-50337.

Richard James RANDLE, Petitioner-Appellant,

v.

Wayne SCOTT, Director, Texas Department of Criminal Justice,

Institutional Division, Respondent-Appellee.

Richard James RANDLE, Petitioner-Appellant,

v.

Wayne SCOTT, Respondent-Appellee.

Feb. 1, 1995.

Appeal from the United States District Cour t for the Eastern

District of Texas.

Appeal from the United States District Court for the Western

District of Texas.

Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:

This is a consolidated appeal from denials of federal habeas

r elief in similar proceedings instituted in the Western District

and the Eastern District of Texas. Both appeals involve virtually

identical ineffective assistance of counsel arguments arising from

Richard James Randle's plea of "true" to an enhancement conviction

and his concealment from his counsel and the district courts that

he had previously obtained the reversal of the conviction used to

enhance his sentence in b oth cases. In each case, we AFFIRM the

decision of the district court denying relief.1 The magistrate judge's report in No. 94-40295 notes that

"[o]n remand Petitioner pled [sic] guilty and was sentenced,

without the enhancement paragraph, to thirty-five years

confinement in the Texas Department of Corrections for count

one."

2 FACTS

In 1982 Richard James Randle, proceeding pro se, filed an

application for a state writ of habeas corpus on the grounds that

one count of his three-count robbery conviction was improperly

enhanced by a 1975 forgery conviction which was void because it was

based on a fundamentally defective indictment. The Texas Court of

Criminal Appeals agreed and set aside the first count of the

robbery conviction. 1

Notwithstanding his successful challenge to a count in his

1981 conviction because of the 1975 forgery c onviction, Randle

plead guilty in 1993 to separate indictments in Anderson County,

Texas and in Leon County, Texas. In each instance Randle plead

true t o enhancement paragraphs in such indictments based on the

1975 forgery conviction and his 1981 robbery conviction.

THE ANDERSON COUNTY CONVICTION AND PROCEEDINGS IN THE DISTRICT

COURT FOR THE EASTERN DISTRICT OF TEXAS

(No. 94-40295)

In March 1993, Randle pleaded guilty in Anderson County,

Texas, to robbery and "true" to enhancement paragraphs therein for

the 1975 forgery conviction and the 1981 robbery conviction; on

March 26th, he was sentenced to 35 years' imprisonment and is

currently in the custody of the Texas Depar tment of Criminal

Justice. No direct appeal was filed.3

On March 30th, four days after he was sentenced, Randle filed

a state writ for habeas relief, arguing that the enhancement for

the 1975 forge ry conviction was improper because the underlying

conviction was void. The pleading was prepared on March 27th, the

day after sentencing. His application was denied without a written

order by the Texas Court of Criminal Appeals on June 9, 1993.

On June 16th Randle filed a petition for federal habeas relief

asserting that (1) the state court's enhancement based on the 1975

forgery conviction was improper because the conviction was void and

(2) he did not receive effective assistance of counsel because

counsel failed to investigate the validity of the enhancement

convictions and failed to advise him as to the correct sentencing

range because the improper enhancement wa s used to calculate the

sentence.

In an affidavit attached to the state's motion to dismiss and

answer, Randle's trial counsel stated that (1) prior to the entry

of the guilty plea, but not at any time thereafter, Randle asked

him to investigate whether one of the enhancement convictions had

been reversed; (2) Randle did not advise him that he "personally

filed the sta te writ which had resulted in the reversal" of the

conviction nor did he make him aware of the opinion of the court;

(3) shortly after making the request, Randle advised him that he

wanted to accept the plea offer; (4) he specifically asked Randle

whether he should pursue the investigation, and Randle said that he

should not; (5) on the morning before sentencing, he met with

Randle and explained the ramifications of the plea, including the4

waiver of any complaints he might have respecting the proceedings;

(6) the judge read the enhancement provisions to Randle in open

court, explained their effect, and asked Randle specifically how he

wished to plead, and Randle "stated "True' to each one without

reservation in open court and on the reco rd." Attached to the

affidavit are several letters written by Randle to the state court

judge asking him, inter alia, to all ow Randle to enter into the

plea bargain "as soon as can be arranged."

The magistrate judge recommended denial of the petition

without an evidentiary hearing, determining that Randle waived his

right to challenge the enhancement conviction when he pleaded

"true" and that he did not receive ineffective assist ance of

counsel. In so concluding, the magistrate judge specifically found

that "Randle made the conscious and deceitful decision to hide from

tri al counsel the fact that he had personally reversed the

enhancement conviction [ ], in a pro se state writ, and then he

intentionally entered a plea of true to the same conviction." The

magistrate judg e also determined that Randle was aware of the

forgery conviction that formed the basis of his habeas corpus

efforts for several years; that he signed the application for

state habeas relief one day after his plea, conviction, and

sentencing; and that Randle's assertion that he told counsel that

he had received a reversal but could not remember which one was not

credible.

The dist rict court overruled Randle's objections to the

magistrate judge's findings, adopted the magistrate judge's report5

and recommendation, and entered an order denying Randle's petition.

Randle noticed his appeal timely, and the district court granted a

certificate of probable cause.

THE LEON COUNTY CONVICTION AND PROCEEDINGS IN THE DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

(No. 94-50337)

In Febr uary 1993, Randle pleaded guilty to delivery of a

controlled substance; although the indictment contained two

enhancement paragraphs for the 1975 forgery conviction and the 1981

robbery conviction, the judgment r eflects that the enhancements

were waived by the stat e. Randle was sentenced to 25 years'

imprisonment and is currently in the custody of the Texas

Department of Criminal Justice.

On March 30, 1993, Randle filed a state writ for habeas

relief, arguing that he did no t receive effective assistance of

counsel. His application was denied without a written order by the

Texas Court of Criminal Appeals on June 9, 1993.

On June 18, 1993, Randle filed a petition for federal habeas

relief asserting that his guilty plea was involuntary and unknowing

because he did not receive effective assistance of counsel. He

alleges that his lawyer failed to investigate the validity of the

enhancement convictions and failed to advise him as to the correct

sentencing range because the improper enhancement was used to

calculate the sentence. Randle moved the court for an evidentiary

hearing.

In an affidavit attached to the respondent's motion for

summary judgment, Randle's trial counsel stated that (1) prior to6

the entry of the guilty plea, but not at any time thereafter,

Randle asked him to investigate whether one of the enhancement

c onviction had been reversed; (2) Randle did not advise that he

"pers onally filed the state writ which had resulted in the

reversal" of the conviction nor did he make him aware of the

opinion of the co urt; (3) shortly after making the request to

investigate the validity of the enhancement conviction, Randle

advised him that he wanted to accept the plea offer; and (4) he

specifically asked Randle whe t her he should pursue the

investigation and Randle said that he should not. Attached to the

affidavit are several letters written by Randle to the state court

judge asking him, inter alia, to allow Randle to enter into the

plea bargain "as soon as can be arranged."

The magi strate judge recommended denial of the petition

without an evidentiary hearing, determining, that Randle did not

receive ineffective assistance of counsel when counsel's

performance was considered i n light of all of the circumstances

surrounding the plea bargain because Randle suggested on only one

occasion that one of his enhancement convictions may have been

reversed and should be investigated and then diverted counsel's

attention away from investigation by pressing for a plea bargain.

In so concluding, the magistrate judge specifically noted that

"[t]he judgment in the Anderson County case reflects that the terms

of the plea bargain included the pr ovision that Petitioner's 35

year sentence would run concurrently with th e sentence in the

[instant case]." The magistrate judge also determined that, based7

upon the information available to him at the time, counsel's advice

that Randle was facing a minimum sentence of 25 years was accurate

and not outside the range of reasonable professional assistance in

the circumstances (that "he failed to inform either his

court-appointed attorney or the respective courts that one of the

prior felony convictions" was held to be void over ten years

earlier), and that Randle present ed "no facts to support his

patently s elf-serving assertion" that he would not have pleaded

guilty and insisted upon going to trial.

The district court overruled Randle's objections to the

magistrate judge's findings, adopted the magistrate judge's report

and recommendation, and entered an order denying Randle's petition.

Randle noticed his appeal timely, and the district court granted a

certificate of probable cause.

THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

In each appeal, Randle contends that his lawyer's failure to

investigate the validity of the enhancement convictions and his

er roneous advice respecting the range of punishment constituted

ine f fective assistance of counsel. This Court reviews

ineffective-assistance claims to determine whether counsel's

performan ce was both deficient and prejudicial to the defendant.

U.S. v. Gipson, 985 F.2d 212, 215 (5th Cir.1993) ( citing Strickland

v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d

674 (1984)). H ill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366,

369-70, 8 8 L.Ed.2d 203 (1985), applied the two-prong S trickland

test to cases involving guilty pleas; a petitioner must show not8

only deficient performance, but also that he would not have pleaded

guilty but for the error. Id.

Randle alleges that he would not have pleaded guilty had

counsel not been ineffective. "[E]ffective assistance of counsel

on the entry of a guilty plea requires that counsel ascertain

whether the pleas are entered voluntarily and knowingly." U .S. v.

Diaz, 733 F.2d 371, 376 (5th Cir.1984). "[A] particular decision

not to investigate must be directly assessed for reasonableness in

all the circumstances, applying a heavy measure of deference to

counsel's judgments." C ook v. Lynaugh, 821 F.2d 1072, 1078 (5th

Cir.1987). The scope of the attorney's duty to investigate may be

limited by a defendant's lack of cooperation. B ell v. Watkins, 692

F.2d 999, 1009 (5th Cir.1982), cert. denied, 464 U.S. 843, 104

S.Ct. 142, 78 L.Ed.2d 134 (1983).

Th e record with respect to the Anderson County conviction

supports the district court's determination that Randl e did not

demonstrate that his lawyer was ineffective because Randle

deliberately failed to disclo se his reversal of his 1975 forgery

conviction and he also instructed his counsel to stop pursuing the

matter in order that he might enter a guilty plea "as soon as

[could] be arranged." Randle's previous litigation grounded on the

same argument and his state habeas petition filed four days after

he was sentenced show that he was fully aware, not only that the

enhancement conviction was void, but also the exact ramifications

thereof. Accordingly, Randle's misrepresentation to his lawyer and

to the district court show that his counsel's performance was not9

def icient and outside the wide range of reasonable professional

assistance. S ee U.S. v. Cronic, 466 U.S. 648, 656 n. 19, 104 S.Ct.

2039, 2046 n. 19, 80 L.Ed.2d 657 (1984).

Randl e has similarly failed to establish that, but for his

counsel's failure to disc over the void conviction, his sentence

would have been significantly less harsh. Randle asserts that had

he known that the possible sentencing range would have been five to

99 years or life, rather than 25 to 99 years or life, he would not

have agreed to a sentence of 35 years and would have insisted on

going to trial. The record demonstrates that Randle received a

sentence that was in the correct range of five to 99 years; that,

as part of the plea agreement, a different pending case was

dismissed; and in a third case, Randle received a 25-year sentence

ordered to run concurrently with the instan t imprisonment term.

Moreover, since Randle was not led to believe that his guilty plea

would reduce his maximum sentence, and even if he plead guilty in

expectation of possible consequences graver than those he actually

faced, such d oes not constitute prejudice from the alleged

professional error. S ee Armstead v. Scott, 37 F.3d 202, 210-11

(5th Cir.). Accordingly, this district court did not err in

dismissing Randle's ineffective-assistance claims.

Similarly, the District Court for the Western District of

Texas did not err in rejecting Randle's claim of ineffective

assistance of counsel as the record supports that det ermination.

Although Randle conclusionally asserts for the first time on appeal

that he did disclose his reversal of the 1975 forgery conviction to10

his lawyer, that assertion is contradicted by counsel's affidavit,

and is further belied by Rand le's failure so to contend prior to

the district court's determination that Randle did not disclose the

invalid conviction to his lawyer or the district court.

Accordingly, the district court did not err when it determined, in

light of all of the circumstances, that counsel's performance was

neither deficie nt nor outside the wide range of reasonable

professional assistance. S ee U.S. v. Cronic, 466 U.S. 648, 656 n.

19, 104 S.Ct. 2039, 2046 n. 19, 80 L.Ed.2d 657 (1984).

Randle also failed to establish that, but for his counsel's

failure to discover the void conv iction, his sentence would have

been significantly less harsh. Randle asserts without explanation

that had he known that the possible sentencing range would have

been 15 to 99 years or life, rather than 25 to 99 years or life, he

would not have agreed to a sentence of 25 years a nd would have

insisted on going to trial. The record demonstrates that Randle

received a sentence that was in the correct range of 15 to 99

years; and that as part of the plea agreement, in a pending case

in Anderson County, Randle received a 35-year sentence ordered to

run concurrently with the instant imprisonment term. Heretofore,

we find no prejudice is shown from the alleged professional error

of counsel.

OTHER ARGUMENTS

We have considered Randle's other arguments and contentions in

these two appeals, and find themto be without merit for the

reasons set forth below.11

I. An objection to the use of a "prior invalid conviction

for enhancement purposes" is waived when a plea of guilty is

entered to the enhancement charged. S cott v. Maggio, 695 F.2d 916,

922 (5th Cir.), cert. denied, 463 U.S. 1210, 103 S. Ct. 3544, 77

L.Ed.2d 1393 (1983); s ee also Long v. McCotter, 792 F.2d 1338,

1340 (5th Cir.1986). Accordingly, the district court did not err

in determining that Randle's plea of true to the enhancement

conviction in Anderson County barred his later challenge of the

conviction of the grounds that the enhancement conviction was void

and should not have been used to enhance his punishment.

II. Because we find the record in each case clearly adequate

to fairly dispose of Randle's allegations of ineffective assistance

in each case, evidentiary hearings were unnecessary. U .S. v.

Smith, 915 F. 2d 959, 964 (5th Cir.1990); Rules Governing § 2254

Cases in the U.S. District Courts, Rule 8(a).

III. Finally, we reject Randle's claim made in Case No. 94-

50337 that a summary judgment motion is inappropriate in a habeas

corpus proceeding. We recognize summary judgment proceedings as an

appropriate mode used by the district courts of this Circuit in

habeas corpus proceedings. Rule 11 of the Rules Governing § 2254

Cases in the United States provides that "[t]he Federal Rules of

Civil Procedure, to the extent that they are not inconsistent with

these rules, may be applied, when appropriate, to petitions filed

under these rules." Randle fails to point out any rule or

procedure in the § 2254 rules which is inconsistent with the

s ummary judgment procedure allowed by the Federal Rules of Ci vil2 We note that the motion for summary judgment motion filed

by respondent contained responses to the allegations as required

by Rule 5 of the Rules Governing § 2254 Cases.

12 Procedure. 2

The judgments of the district courts are in each case

AFFIRMED.