1Circuit 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 Court for the Western

District of Louisiana.

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

DUHÉ, Circuit Judge:

Appellants, Patrick DeVille 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

commission 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 ordered a second sanity commission to examine both

Appellants. After second examinations and hearings, the court

again ruled that Appellants were competent to stand trial and

assist counsel.

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

offered 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 Appellants 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 habeas 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 and voluntary

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

The district court adopted the magistrate judge's recommendations
3

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); Sumner 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. Barnard 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 that 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 incompetent defendant violates the Due

Process Clause. Pate 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. Id. 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 factual
4

understanding of the proceedings against him. Dusky 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. See

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. Godinez 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 for Vidrine two months before his plea. After these

hearings, the trial court received no objective 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 is
5

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

itself that the plea is knowing and voluntary. Parke v. Raley, ---

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

a defendant understands the charges against 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." Frank 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

voluntary because they were not informed of the specific intent

element of second 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 informed and was not aware

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

the offense to which he pled. Id. 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. Id. at 646, 96

S.Ct. at 2258.

The Henderson Court did not purport, however, to lay down an
 

2Federal 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. Hobbs 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 pled. In contrast to the statute in

Henderson, specific intent is not an essential element of second

degree murder in Louisiana. Louisiana Revised Statute § 14:30.1

provides that second degree murder 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 the
 

3In 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

statements, 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?
 

4A 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. See 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 attorneys coerced their

guilty pleas. Appellants first argue that their counsel

misrepresented 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 abrogate
9

that plea should a heavier sentence actually be imposed. Harmason

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 alleged promise; (2) exactly

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

precise identity of any eyewitness to the promise. Smith 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 believe 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.

Lonberger, 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 attorneys 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 presumption 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 evidentiary

hearing that they did not threaten to withdraw from representation

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

court chose to believe this testimony, finding that Appellants'

attorneys vigorously defended 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 to
 

5Appellants 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 guilty.

Appellants also argue that their attorneys failed to explain the

significance of a motion to suppress.5

The standard for determining 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). Hill 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

of reasonableness, and that there is " "a reasonable probability

that, but for counsel's unprofessional errors, the result of the

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

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

the defendants must affirmatively prove, and not merely allege,

prejudice. Bonvillain, 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." United 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 that
12

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 that their counsel's performance was deficient.

Defense counsel for both Appellants testified at the state habeas

evidentiary 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.