1 Circuit Judge of the Seventh Circuit, sitting by

designation.

1 United States Court of Appeals,

Fifth Circuit.

No. 92-4829.

Patrick O. DeVILLE and Jimmy A. Vidrine, Plaintiffs-Appellants,

v.

John P. WHITLEY, Warden, Louisiana State Penitentiary,

Defendants-Appellees.

May 27, 1994.

Appeals from the United States District C ourt for the Western

District of Louisiana.

Before WOOD, Jr., 1 SMITH and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

Appellants, Patrick DeV ille and Jimmy Vidrine, appeal the

dismissal of their habeas petition. Appellants contend that their

pleas of guilt to second degree murder are invalid because (1) they

lacked the mental capacity to plead; (2) they were not informed of

the elements of second degree murder; (3) their attorneys coerced

them into pleading; and (4) they were denied the effective

assistance of counsel. After a careful review of these

contentions, we affirm the district court's dismissal.

BACKGROUND

On September 8, 1980, Homer Gautreaux was robbed and bound,

forced to swallow pills and a cleansing agent , and later died of

asphyxiation. Two days later, DeVille and Vidrine were arrested

for the first degree murder and armed robbery of Gautreaux.2

At arraignment, Appellants pleaded "not guilty and not guilty

by reason of insanity." The state trial court appointed a sanity

c ommission composed of two physicians to examine Appellants, and

Appellants appeared before the court for sanity hearings. The

court found Appellants sane, able to understand the charges against

them and capable of assisting counsel in their defenses. However,

because a discrepancy existed between the two physicians' reports,

the court ord ered a second sanity commission to examine both

Appella nts. After second examinations and hearings, the court

again ru led that Appellants were competent to stand trial and

assist counsel.

On May 26, 1981, the first day scheduled for trial, the state

off ered Appellants a plea bargain. Appellants pled guilty to

second degree murder, and the state dismissed the first degree

murder and armed robbery charges. The court accepted the plea

agreement, and Appell ants were sentenced to life imprisonment at

hard labor without the benefit of probation, parole or suspension

of sentence.

With state collateral remedies exhausted, Appellants filed

this petition for federal habeas relief. A federal magistrate

judge reviewed the pleadings, briefs, and state habea s court

records and concluded that an evidentiary hearing was not

necessary. The magistrate judge recommended denial of the petition

finding that Appellants' guilty pleas were knowing an d voluntary

and that Appellants were not prejudiced by counsel's performance.

The district court adopted the magistrate judge's recommendations3

and dismissed the habeas petition. We granted Appellants'

certificate of probable cause and this appeal followed.

DISCUSSION

I. Standard of Review

When reviewing the habeas proceedings of petitioners in state

custody, we must accord a presumption of correctness to state court

findings of facts. 28 U.S.C. § 2254(d); S umner v. Mata, 455 U.S.

591, 591-92, 102 S.Ct. 1303, 1304, 71 L.Ed.2d 480 (1982). We

review the district court's finding for clear error, but decide any

issues of law de novo. B arnard v. Collins, 958 F.2d 634, 636 (5th

Cir.1992), cert. denied,

--- U.S. ----, 113 S.Ct. 990, 122 L.Ed.2d

142 (1993).

II. Mental Competency

Appellants claim t hat they were not mentally competent to

plead guilty and that the trial court erred by not inquiring into

their mental capacity before they entered their pleas. The

conviction of a mentally inc ompetent defendant violates the Due

Process Clause. P ate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836,

838, 15 L.Ed.2d 815 (1966). When a court has reason to believe

that a defendant may be incompetent, it must conduct a competency

hearing. Godinez v. Moran,

--- U.S. ----, ---- n. 13, 113 S.Ct.

2680, 2688 n. 13, 125 L.Ed.2d 321 (1993). The competency standard

in guilty plea cases is identical to the competency standard to

stand trial. I d. at ----, 113 S.Ct. at 2686. The trial court must

determine whether the defendant has sufficient present ability to

consult with his counsel and whether he has a rational and factual4

understanding of the proceedings against him. D usky v. United

States, 362 U.S. 402, 402, 80 S.Ct. 788, 788, 4 L.Ed.2d 824 (1960).

Appellants have failed to meet their heavy burden of proving

actual mental incompetency at the time of their pleas. S ee

Flugence v. Butler, 848 F.2d 77, 79 (5th Cir.1988). A factual

finding of competency by the state court is presumed to be correct.

Id. Four physicians examined each Appellant and opined that

Appellants were competent to stand trial. The state court held

extensive sanity hearings. Appellants have provided no new

evidence of incompetency that would entitle them to a federal

evidentiary hearing. See Townsend v. Sain, 372 U.S. 293, 313, 83

S.Ct. 745, 757, 9 L.Ed.2d 770 (1963), overruled on other grounds by

Keeney v. Tamayo-Reyes,

--- U.S. ----, 112 S.Ct. 1715, 118 L.Ed.2d

318 (1992). After a careful review of the record, we cannot say

that the state court's assessment of competency was erroneous.

Nor do we find that the trial court should have inquired into

Appellants' competency during the plea colloquy. G odinez requires

the trial court to make an inquiry only when there is doubt about

competency. --- U.S. at ---- n. 13, 113 S.Ct. at 2688 n. 13. The

court held a competency hearing for DeVille four months before his

plea and f or Vidrine two months before his plea. After these

hearings, the trial court received no objecti ve information that

would reasonably put it on notice that Appellants may not have been

competent.

III. Knowing and Voluntary Plea

After the court has determined that the defendant is5

competent to stand trial or enter his plea, the court must satisfy

itself that the plea is knowing and voluntary. P arke v. Raley,

---

U.S. ----, ----, 113 S.Ct. 517, 523, 121 L.Ed.2d 391 (1992). "If

a defendant understands the charges a gainst him, understands the

consequences of a guilty plea, and voluntarily chooses to plead

guilty, without being coerced to do so, the guilty plea and any

concomitant agreement will be upheld on federal review." F rank v.

Blackburn, 646 F.2d 873, 882 (5th Cir.1980), modified on other

grounds, 646 F.2d 902 (5th Cir.), cert. denied, 454 U.S. 840, 102

S.Ct. 148, 70 L.Ed.2d 123 (1981).

A. Elements

Appellants first claim that their pleas were not knowing and

volunt ary because they were not informed of the specific intent

element of se cond degree murder. Appellants rely heavily on

Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108

(1976).

In Henderson, the Supreme Court held that a guilty plea to

second degree murder was involuntary where it was established as a

fact that the defendant had not been in formed and was not aware

that under New York law intent to kill was an essential element of

the offense to which he pled. I d. at 646-47, 96 S .Ct. at 2258.

The Court stressed that the defendant's plea could not be voluntary

when no one had explained to the defendant that his plea was an

admission to having the specific intent to kill. I d. at 646, 96

S.Ct. at 2258.

The Henderson Court did not purport, however, to lay down an2 Federal Criminal Procedure Rule 11 requires that a federal

judge address a defendant in open court, informing the defendant

of the nature of the charges. A state court need not comply with

the formal procedures set forth in Rule 11 as long as the plea

comports with the requirements of due process. See Frank, 646

F.2d at 882.

6 absolute requirement that the technical elements of an offense be

recited to a defendant. A plea will be upheld if it is shown by

the record, or the evidence adduced at an evidentiary hearing, that

a defendant understood the charge and its consequences when he pled

guilty. H obbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir.), cert.

denied, 474 U.S. 838, 106 S.Ct. 117, 88 L.Ed.2d 95 (1985).

In this case, the record shows that Appellants understood the

charge to which they p led. In contrast to the statute in

Henderson, specific inten t is not an essential element of second

d egree murder in Louisiana. Louisiana Revised Statute § 14:30.1

provides that second degree murde r may be a specific intent or a

felony murder crime:

Second degree murder is the killing of a human being:

(1) [specific intent provision]; or

(2) When the offender is engaged in the perpetration or

attempted perpetration of aggravated rape, aggravated arson,

aggravated burglary, aggravated kidnapping, aggravated escape,

armed robbery, or simple robbery, even though he has no intent

to kill or to inflict great bodily harm.

La.Rev.Stat.Ann. § 14:30.1 (West 1986). The state trial court did

not read the statute or explain in technical terms each element of

second degree murder, 2 but it fully apprised the defendants of the

acts necessary to comprise the crime of felony murder under the3 In this respect, the district court erred in finding that

the state trial judge failed to inform Appellants of all the

elements of second degree murder. The district court nonetheless

found that Appellants had knowledge of the elements of second

degree murder. Although we do not follow the district court's

reasoning, we may affirm on any proper ground. Bickford v.

International Speedway Corp., 654 F.2d 1028, 1031 (5th Cir.1981).

7 second degree murder statute. 3 The following colloquy took place

between the court and DeVille:

Q [The Court]. Mr. Gautreaux died on or about September 7,

1980. Now, in order for me to accept a guilty plea on a

second degree murder, I'm going to have to question you about

the incidents of Mr. Gautreaux's death. I've read some of the

stateme nts, Mr. DeVille, and I understand that you and a

companion went to Mr. Gautreaux's house on the night of his

death. Is that correct?

A [The Defendant]. Yes, sir.

Q. And that you and this companion went there with the

intention of breaking in and stealing. Is that correct?

A. Yes, sir.

Q. One of you entered through a window and the other was let

in through a door. Is that correct?

A. Yes, sir.

Q. And one of you had a gun. Is that right?

A. Yes, sir.

Q. And Mr. Gautreaux was awakened in his bed and he was tied

up. Is that correct?

A. Yes, sir.

Q. And Mr. Gautreaux, while tied up, was forced to eat pills

and drink Pine Oil which resulted in his death. Is that

correct?

A. Yes, sir.

Q. And that $50.00 was found in the apartment and was stolen.

Is that correct?4 A similar colloquy took place between Vidrine and the

court.

8 A. Yes, sir. 4

The court gave Appellants notice that the questions it was asking

were necessary for an acceptance of a plea to second degree murder.

The questions fully encompassed the elements of felony murder.

Unlike Henderson, no hidden element was admitted to by Appellants.

The only element Appellants suggest they would dispute is specific

intent to kill, which is not an essential element to the crime of

second degree murder in Louisiana.

The record demonstrates that Appellants had sufficient notice

of the charge to which they pled. Appellants knowingly admitted to

each element of felony murder under the Louisiana second degree

murder statute. Thus, Appellants have failed to meet their burden

of proving that they lacked adequate notice of the charge of second

degree murder. S ee Bonvillain v. Blackburn, 780 F.2d 1248, 1251

(5th Cir.) (habeas petitioner has burden of proving that he is

entitled to relief), cert. denied, 476 U.S. 1143, 106 S.Ct. 2253,

90 L.Ed.2d 699 (1986).

B. Coercion

Appellants next claim that their attor neys coerced their

guilty pleas. Appellants first argue that their counsel

misrepres ented the meaning of life imprisonment by suggesting to

Appellants that they would not serve a full term. A mere

understanding by Appellants, however, that they would receive a

lesser sentence in exchange for a guilty plea will not abrogate9

that plea should a heavier sentence actually be imposed. H armason

v. Smith, 888 F.2d 1527, 1529 (5th Cir.1989). To prevail on their

claim, Appellants must prove that an actual promise was made by

showing (1) the exact terms of the al leged promise; (2) exactly

when, where, and by whom such a promise w as made; and (3) the

precise identity of any eyewitness to the promise. S mith v.

McCotter, 786 F.2d 697, 701 (5th Cir.1986).

The state habeas court held an evidentiary hearing on this

exact issue. After hearing all the testimony, the court rejected

Appellants' claim:

It is ludicrous and incredible that a man, an attorney like

Mr. Launey [Vidrine's attorney] or Mr. Mitchell [DeVille's

attorney] would tell these people that they would be out in

five or ten years, when it's fundamental that a person

convicted of second degree murder will receive a life sentence

without the benefit of parole, probation or suspension. Now,

that doesn't mean that there might have been some type of talk

that years later they could apply for some commutation of

sentence or some leniency. That's always possible. But the

distinct possibility of getting parole is absolutely

unbelievable. To believe what these people would be saying,

would be to brand Mr. Launey and Mr. Mitchell, competent

lawyers, to be absolutely dishonest, incompetent and not fit

to be lawyers serving the public.

The state court chose to disbelieve the testimony of Appellants and

their witnesses and bel ieve the testifying attorneys that no

promise regarding sentencing was made. We have "no license to

redetermine credibility of witnesses whose demeanor has been

observed by the state trial court, but not by [us]." Marshall v.

Lon berger, 459 U.S. 422, 434, 103 S.Ct. 843, 850, 74 L.Ed.2d 646

(1983). Appellants have failed to overcome the presumption of

correctness attendant to state court findings and prove that an

actual promise was made.10

Appellants also argue that their pleas were coerced, and thus

involuntary, because their at torneys threatened to withdraw from

the case if they did not plead guilty. At the plea colloquy, the

court asked Appellants whether they were being forced, pressured or

induced in any way to enter their pleas. Both Appellants responded

negatively. Although their attestations to voluntariness are not

an absolute bar to raising this claim, Appellants face a heavy

burden in proving that they are entitled to relief because such

testimony in open court carries a strong presum ption of verity.

See Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52

L.Ed.2d 136 (1977).

Both attorneys testified at the state habeas evidenti a ry

hearing that they did not threaten to withdraw from representation

if their cl ients did not plea guilty. Again, the state habeas

court chose to be lieve this testimony, finding that Appellants'

attorneys vigorously defe nded their clients and that they were

prepared to go to trial on the day that Appellants pled guilty. We

will not second-guess the state court's credibility determinations.

We conclude that Appellants have failed to meet their burden of

showing that their pleas were involuntary.

IV. Ineffective Assistance of Counsel

Finally, Appellants argue ineffective assistance of counsel.

Three of their claims overlap with their assertions that their

pleas were not knowing and voluntary. Appellants argue that their

attorneys misrepresented the meaning of life imprisonment, failed

to explain the elements of second degree murder and threatened to5 Appellants had moved to suppress statements that they had

made while in custody. The Louisiana Supreme Court stayed their

trial until the court held an evidentiary hearing on the

suppression motion. State v. Vidrine, 401 So.2d 967 (La.1981).

When Appellants pled guilty, they waived the right to this

suppression hearing.

11 withdraw from the case if Appellants did not plead gu ilty.

Appellants also argue that th eir attorneys failed to explain the

significance of a motion to suppress. 5

The standard for dete rmining the effectiveness of counsel

during a guilty plea proceeding is the two-prong test set forth by

the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). H ill v. Lockhart, 474 U.S. 52,

57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985). A defendant must

show that counsel's representation fell below an objective standard

o f reasonableness, and that there is " "a reasonable probabil ity

that, but for counsel's unprofess ional errors, the result of the

proceeding would have been different.' " I d. (quoting Strickland,

466 U.S. at 694, 104 S.Ct. at 2068). To meet the prejudice prong,

the defendants must affirmatively prove, an d not merely allege,

prejudice. B onvillain, 780 F.2d at 1253. Thus, "[e]ven where

counsel has rendered totally ineffective assistance to a defendant

entering a guilty plea, the conviction should be upheld if the plea

was voluntary. In such a case there is "no actual and substantial

disadvantage' to the defense." U nited States v. Diaz, 733 F.2d

371, 376 (5th Cir.1984) (quoting Diaz v. Martin, 718 F.2d 1372,

1379 (5th Cir.1983)).

Appellants have failed to satisfy their burden of proving that12

they were prejudiced by their first three claims of deficient

performance. Our previous discussion concluding that Appellants'

pleas were voluntary defeats these claims of ineffective assistance

of counsel.

As for the claim regarding the motion to suppress, Appellants

have not shown th at their counsel's performance was deficient.

Defense counsel for both Appellants testified at the state habeas

evidentiar y hearing that they explained the significance of the

motion to suppress to Appellants. Appellants lack of understanding

of the significance of the motion to suppress does not make

counsel's attempt to explain it deficient.

Even assuming that Appellants' counsel were in some respect

deficient in their explanation of the motion to suppress, the state

trial court asked both petitioners whether they understood that

they were entitled to a suppression hearing and whether they were

willing to waive that hearing. Both Appellants responded that they

understood and were willing to waive the right to the hearing. The

court's admonishment cured any deficiency in counsel's performance

and made the error harmless. See Bonvillain, 780 F.2d at 1253.

CONCLUSION

For the foregoing reasons the denial of Appellants' writ of

habeas is

AFFIRMED.