* Chief Judge of the Western District of Louisiana, sitting

by designation.

1 United States Court of Appeals,

Fifth Circuit.

No. 94-60426.

Gerald MANGUM, Petitioner-Appellant,

v.

Edward HARGETT, Superintendent, Mississippi State Penitentiary,

Respondent-Appellee.

Oct. 19, 1995.

Appeal from the United States District Co urt for the Southern

District of Mississippi.

Before JOLLY and BENAVIDES, Circuit Judges, and SHAW, * District

Judge.

BENAVIDES, Circuit Judge.

Gerald Mangum, a Mississippi state prisoner, ap p eals the

denial of his petition for writ of habeas corpus. 28 U.S.C. §

2254. Mangum argues that the district judge erred in failing to

recuse himself because the judge was a member of the prosecution

staff at the time Mangum pleaded guilty i n state court and that

counsel rendered ineffective assistance. We hold that because the

district judge did not actually participate in the prior

proceedings, 28 U.S.C. § 455 does not mandate recusal. In regard

to the ineffective assistance of counsel claim, we find that Mangum

has not carried his burden of showing prejudice. We therefore

affirm.

I. FACTS AND PROCEDURAL HISTORY

On March 5, 1981, Mangum pleaded guilty to murder, rape, and1 Initially, Mangum pleaded guilty to the aggravated assault

in Circuit Court of Hinds County, Mississippi, Second Judicial

District, and was sentenced to 15 years in the Mississippi

Department of Corrections with 10 years suspended and 5 years to

serve. After serving the initial portion of the sentence, Mangum

was released. The suspended sentence was revoked when he was

indicted for the above burglary charge.

2 burglary of an occupied dwelling in the Circuit Court of Hinds

County, Mississippi, First Ju dicial District. Pursuant to those

pleas, he was sentenced to life imprisonment for murder, 30 years

(10 years suspended) sentence for the rape and a 15-year (71/2

years suspended) sentence for the burglar y, with the sentences

running concurrently. These sentences were to run consecutively,

however, to a 10-year sentence on a previous conviction for

aggravated assault obtained in the Circuit Court of Hinds County,

Mis sissippi, Second Judicial District. 1 On July 19, 1982, Mangum

filed a motion to withdraw his plea of guilty to murder, which the

court denied the next day. In 1988, Mangum filed a motion to

vacate judgment. Finding that the relief sought in the motion to

vacate was previously denied, the state trial court dismissed the

motion with prejudice. On October 4, 1989, without written

opinion, the Supreme Court of Mississippi affirmed th e order

denying post-conviction relief. M angum v. State, 553 So.2d 24

(Miss.1989).

Mangum filed a petition for habeas corpus relief pursuant to

28 U.S.C. § 2254 in district court. Mangum asserted that his

counsel rendered ineffective assistance by failing to investigate

the crime and by coercing him into pleading guilty to murder rather

than attempting to have the charge reduced to manslaughter.2 In its brief, the state asserts that Mangum had been on

notice of Judge Wingate's assignment for four years, an assertion

Mangum does not deny in his reply brief.

3 On October 25, 1993, the magistrate judge entered his report

and recommendation that Mangum's petition for writ of habeas corpus

be denied, concluding that there was no evidence that Mangum would

have refused to plead guilty and proc eed to trial because of the

alleged ineffective assistance of counsel. Mangum objected to the

report and recommendation and also submitted a petition to amend

with affidavits attached. The district court adopted the

recommendation and denied Mangum's petition to amend. Mangum now

appeals.

II. RECUSAL OF THE DISTRICT JUDGE

Mangum contends that, pursuant to 28 U.S.C. § 455(b)(3),

Judge Wingate was disqualified from hearing his federal hab eas

petition in the court below. Section 455(b)(3) provides that a

judge shall disqualify himsel f "[w]here he has served in

governmental employment and in such capacity particip ated as

counsel, adviser or material witness concerning the proceeding or

expressed an opinion concerning the merits of the particular case

in controversy."

The state argues that the claim is untimely because Mangum

raises it for the first time on appeal. 2 We have "not yet clearly

defined the scope of our revi ew of § 455 issues raised for the

first time on appeal." McKethan v. Texas Farm Bureau, 996 F.2d

734, 744 n. 31 (5th Cir.1993), c ert. denied,

--- U.S. ----, 1 1 4

S.Ct. 694, 126 L.Ed.2d 661 (1994). This Court, however, has3 See also United States v. MMR Corp, 954 F.2d 1040, 1046

(5th Cir.1992) (§ 455 includes a timeliness requirement).

4 declined to reach the merits of a § 455 recusal claim which was

raised for the first time on appeal, concluding that the plaintiff

had waived the objection by failing to raise it earlier.

Stephenson v. Paine Webber Jackson & Curtis, Inc., 839 F.2d 1095,

1096 n. 3 (5th Cir.), 488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 328

(1988) (citing Delesdernier v. Porterie, 666 F.2d 116, 121-23 (5th

Cir.), cert. denied, 459 U.S. 839, 103 S.Ct. 86, 74 L.E d.2d 81

(1982)). 3 In U

nited States v. York, 888 F.2d 1050, 1 055-56 (5th

Cir.1989), we acknowledged the waiver found in Stephenson, supra,

but opined that there was no need to determine "whether the same

should be adopted as an inflexible rule." We also stated that the

Supreme Court had implicitly rejected the view that a motion for

recusal made after trial was per se untimely. I d. (citing

Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860-64,

108 S.Ct. 2194, 2203-04, 100 L.Ed.2d 855 (1988)).

Although the above cases sometimes referred g enerally to §

455, they involved either subsection (a) or (b)(1) of § 455, and

the instant case involves § 455(b)(3). In M ixon v. United States,

620 F.2d 486, 487 (5th Cir.1980), we addressed a § 455(b)(3) claim

that had not been raised in the district court. In that case, the

magistrate who presided over Mixon's 28 U.S.C. § 2255 proceedings

was the same individual who, as an Assistant United States

Attorney, had represented the government in earlier proceedings

involving the same convictions. We found that the magistrate was4 United States v. Di Pasquale, 864 F.2d 271, 279 (3d

Cir.1988), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106

L.Ed.2d 566 (1989) (recusal not required absent a specific

showing that the judge was involved in the previous case);

Kendrick v. Carlson, 995 F.2d 1440 (8th Cir.1993) (prosecutor

with no involvement in prior case not required to disqualify

himself as judge); United States v. Gipson, 835 F.2d 1323 (10th

Cir.), cert. denied, 486 U.S. 1044, 108 S.Ct. 2038, 100 L.Ed.2d

623 (1988) (to require recusal, there must be a showing that

judge actually participated as counsel in the prior proceeding).

5 dis qualified and that such disqualification rendered the § 2255

proceedings a nullity. In the instant case, as set forth below, we

find that recusal was not mandated, and, thus, there was no error,

plain or otherwise.

Mangum asserts that Judge Wingate "was a member of the

prosecution's staff at the time that [he] pled guilty" to the

offense of murder that is the subject of the habeas petition now

before us. Although the state concedes that Judge Wingate was an

assistant district attorney in Hinds County at that t ime, it

asserts that Judge Wingate did not participate in Mangum's guilty

plea proceedings. The state record supports that assertion, and,

further, Mangum does not specifi cally allege that Judge Wingate

(then Assistant District Attorney Wingate) was personally involved

in his case. The state, citing several cases from other circuits, 4

argues that the judge was not required to recuse himself because he

did not actually participate in the proceedings.

The language of § 455(b)(3) provi des that a judge shall

disqualify himself "[w]here he has served in governme ntal

employment and in such capacity participated as counsel, adviser or5 We previously have acknowledged the interpretation of §

455(b)(3) that requires actual participation in the proceedings

by the former government attorney but found it unnecessary to

determine whether that interpretation was correct because, under

any interpretation of that provision, the judge in that case was

not disqualified. United States v. Kelly, 556 F.2d 257, 263 (5th

Cir.1977), cert. denied, 434 U.S. 1017, 98 S.Ct. 737, 54 L.Ed.2d

763 (1978). Cf. Donald v. Jones, 445 F.2d 601, 606-07 (5th

Cir.), cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 543

(1971) (This Court, in the context of a claim of unfair trial,

has looked to the lack of participation by the former government

attorney when the defendant committed the offense while the

attorney was a prosecutor, but the defendant was not indicted

until eight months after the judge took the bench.).

6 Cf. Adams v. United States, 302 F.2d 307 (5th Cir.1962)

(predecessor version of § 455) (fact that judge had been

prosecuting attorney in liquor violation case did not render him

disqualified as a person who had been "of counsel" pursuant to §

455 in perjury prosecution arising out of liquor case where

perjury case was not commenced until he resigned as prosecuting

attorney).

7 Of course, the judge has the discretion to (and sometimes

should) recuse himself even though he did not actually

6 material witness concerning the proceeding." (emphasis added). 5

In contrast, as explained by the Tenth C ircuit, the predecessor

version of § 455(b)(3) provided that "[A]ny

... judge of the United

States shall disqualify himself in any case in whic h he ... has

been of counsel. " U nited States v. Gipson, 835 F.2d 1323, 1326

( 10th Cir.1988) (brackets, ellipsis, and emphasis in opinion). 6

Accordingly, the applicable version of § 455(b)(3) mandates recusal

if the judge has "participated as counsel." I d. "Participation

connotes activity.... One cannot "participate' without doing

something. " Id. (emphasis in opinion).

We find the Tenth Circuit's analysis persuasive. We therefore

adopt the interpretation esp oused by the Tenth Circuit.

Specifically, § 455(b)(3) does not mandate 7 recusal unless theparticipate during his employment as a former government

attorney. In Bradshaw v. McCotter, 796 F.2d 100, 101 (5th

Cir.1986), a state appellate judge's name appeared on the brief

as a prosecuting attorney; however, the judge had not

participated in the appeal as a prosecutor. Although we rejected

the due process claim, we opined that the judge should have

disqualified himself.

7 former government attorney has ac tually participated in some

fashion in th e proceedings. Mangum does not allege specific

participation by Judge Wingate in his guilty plea proceedings, but

rather, he asserts that Judge Wingate was a member of the

prosecution staff. Such a claim is not sufficient to mandate

recusal. Accordingly, the district court did not commit error by

failing to recuse himself, much less plain error. Mangum is not

entitled to any relief on this claim.

III. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

Mangum asserts that his counsel was ineffective and that the

district court erred in dismissin g this claim without holding an

evidentiary hearing. A federal habeas court need not grant an

evidentiary hearing on a claim of ineffective assistance of counsel

"when a petitioner fails to allege facts which, if proved, would

entitle the petitioner to relief, or when the state court record

supports that court's disposition of the claim." A mos v. Scott, 61

F.3d 333, 348 (5th Cir.1995) (footnotes omitted).

To prevail o n an ineffective assistance of counsel claim,

Mangum must show that his counsel's performance was deficient and

that the deficiency prejudiced his defe nse. S trickland v.

Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80

L.Ed.2d 674 (1984). In the context of a guilty plea, a defendant8

must show "that there is a reasonable probability that, but for

counsel's errors, he would not have pleaded guilty and would have

i nsisted on going to trial." H ill v. Lockhart, 474 U.S. 52, 59,

106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).

In regard to the performance prong of the Stri ckland/Hill

test, "if a defendant is represented by counsel and pleads guilty

upon the advice of counsel, the voluntariness of the plea depends

on whether counsel's advice was within the range of competence

demanded of attorneys in criminal cases." A rmstead v. Scott, 37

F.3d 202, 206 (5th Cir.1994) (internal quotation marks and citation

omitted), cert. denied,

--- U.S. ----, 115 S.Ct. 1709, 131 L.Ed.2d

570 ( 1995). In regard to the prejudice prong, a petitioner must

prove that but for his counsel's allegedly incorrect advice, he

would have in sisted on going to trial. I d. Simply alleging

prejudice will not suffice. Whether the petitioner is able to

persuade us that he was prejudiced depends partly on his chances

for success at trial. If the petitioner claims that counsel erred

by failing to investigate or discover certain exculpatory evidence,

the prejudice determination will depend upon whether the discovery

of such evidence would have influenced counsel to change his advice

regarding the guilty plea. Id. Of course, whether counsel would

have changed his advice depends on his prediction whether the

evidence would change the outcome of the trial. I d. Analogously,

to show prejudice in regard to a claim that the attorney failed to

raise a certain defense, the petitioner must show that the defense

likely would have been successful at trial. Id.8 At the guilty plea hearing, however, the judge informed

Mangum that life was the only permissible sentence for murder, to

which Mangum replied that he understood. Further, the court

inquired whether there were any "side agreements of any type,"

and Mangum answered "no."

9 Subsequent to Strickland and Lockhart, the Supreme Court has

further clarified the prejudice inquiry. L ockhart v. Fretwell,

---

U.S. ----, 113 S.Ct. 838, 1 22 L.Ed.2d 180 (1993). Pursuant to

Fretwell, we must also determine "whether counsel's deficient

performance caused the outcome to be unreliable or the proceeding

to be fundamentally unfair." The Supreme Court explained that

"[u]nreliabili ty or unfairness does not result if the

ineffectiveness of counsel does not deprive the defen dant of any

substantive or procedural right to which the la w entitles him."

Fretwell, 113 S.Ct. at 844.

Mangum contends that counsel induced him to plead guilty by

advising him that if he did not so plead, he would be sentenced to

life without parole as an habitual offender. He asserts "that at

the time that he entered his pleas of guilty he could not have been

sentenced as a habitual offender, if he went to trial, and

therefore, because of the mistaken advice from counsel the plea of

guilty was involuntary." Although Mangum now claims that counsel

advised him that he would receive life without parole if he did not

plead guilty, it is worth mentioning that, in the court below and

in his state proceedings, he has claimed that counsel advised him

to plead guilty to escape the death penalty. Also, he previously

has claimed that counsel verbally promised him a 20-year sentence

for the murder. 89 Section 99-19-81 provides that:

Every person convicted in this state of a felony who

shall have been convicted twice previously of any

felony or federal crime upon charges separately brought

and arising out of separate incidents at different

times and who shall have been sentenced to separate

terms of one (1) year or more in any state and/or

federal penal institution, whether in this state or

elsewhere, shall be sentenced to the maximum term of

imprisonment prescribed for such felony, and such

sentence shall not be reduced or suspended nor shall

such person be eligible for parole or probation.

10 In any event, Mangum's claim that he could not have been

sentenced as an habitual offender is based on the fact that he had

n ot been indicted under the habitual offender statute, Miss.Code

Ann. § 99-19-81 (1977). 9 Had Mangum not pleaded guilty to murder

under the proposed plea a greement, however, there is nothing to

indicate that the state could not have obtained an amended or

superseding i n dictment for murder under the habitual offender

statute.

Section 99-19-81 "requires proof that the defendant had been

twice previously convicted of a felony in this state or another."

Lacy v. State, 629 So.2d 591, 594 (Miss.1993). Further, if "one

(1) of such felonies shall have been a crime of violence[, the

defendant] shall be sentenced to life imprisonment, and such

sentence shall not be reduced or suspended nor shall such person be

eligible for parole or probation." Miss.Code § 99-19-83 (1977).

The record reveals that Mangum had a previous conviction for

aggravated as sault in cause no. 3593, Circuit Court of Hinds

County, Mississippi on September 9, 1977. The sentencing order for

that conviction provides that he was se ntenced to fifteen years10 We note that the state transcript filed in the court below

indicates that Mangum's counsel is deceased.

11 In his state pleadings, Mangum admitted that he fired

seven shots at the victim.

11 (ten years suspended) in the Mississippi Department of Corrections

and that sentence was to run concurrently with a different sentence

imposed in Rankin County. The record therefore indicates that

Mangum had two pri or convictions, one of which was a crime of

violence (aggravated assault), at the time he pleaded guilty to the

murder charge. Under that scenario, counsel properly advised

Mangum that, if he insisted on going to trial, he could receive

life imprisonment without parole if he was convicted of any of the

three offenses and sentenced as an habitual offender. Miss.Code §§

99-19-81 & 99-19-83. Because the state court record supports that

court's disposition of the claim, Mangum has not shown that he is

entitled to a hearing to determi ne whether counsel's advice was

erroneous. Amos v. Scott, 61 F.3d at 348. 10

Mangum next argues that his counsel did not interview the

witnesses to the shooting and did not prepare any defense, and, as

a result, improperly advised him to plead guilty to murder rather

than to manslaughter. Mangum contends that he did not murder John

Edgar Simmons, but that he killed Simmons in an attempt to save his

sister from being killed by Simmons. 11 To support his assertions,

Mangum attached affidavits from his sisters, Ella Delois Brown and

Mary Ann Brown. The affidavits provided that each of the women was

present at the shooting and that Mangum's counsel did not interview

them. The affidavits attest that Mangum approached Simmons to12 The following colloquy transpired between the trial court

and Mangum at the guilty plea hearing:

Q. Just tell me what happened and let's start with

the—let's start with the charge of murder first.

Just tell me what happened there.

A. Well, I was out—the dude, John Simmons, my

brother-in-law, we was at my mom-at my mom's home

and my brother-in-law, him and John had had some

kind of misunderstanding and he seen—he looked out

the window and he seen John, you know, in the

s[t]reets ... and he went out there, you know, and

him and John got into it because John had whooped

one of my little nieces or nephew one and my

brother-in-law went to talk to him about it and

they got into it. And—and my sister, she was out

there at the time. She was in the car with the

kids and after all John's family come out and all

of them was on my brother-in-law, then my sister,

you know, she was gonna help her husband. And

when she got into it, John Simmons, he had a two

by four and he went—he started beating my sister

with a two by four and my other sister, she come

in—inside the house and tell me that Simmons had

killed my sister. And when I goes outside, I

seen—I see my sister laying in the s[t]reets and

... I had a gun in my hand and I tell him to stop

and he—when I tell him to stop, he—he raises that

two by four back at me like this (demonstrating)

and I was paranoid, you know. I was paranoid at

that time. He showed me that he would hit me by

him beating my sister with the two by four. And I

didn't have no other choice but to shoot him.

12 prevent him from beating Ella Bro wn to death with a piece of

lumber. Simmons turned to attack Mangum, and Mangum shot him.

At the hearing in which Mangum pleaded guilty to the instant

offense of murder and the other charges of rape and burglary,

Mangum, upon inquiry by the trial court, explained his version of

the facts underlying the murder charge, 12 which is almost identical

to the version he now presents in the affidavits and his pleadings

and briefs. The trial court then informed Mangum that he "may or13 Cf. Bryant v. Scott, 28 F.3d 1411, 1418 (5th Cir.1994)

(counsel's failure to interview alibi witnesses made known to

counsel prior to trial constituted deficient performance).

13 may not have a case of self-defense, do you understand that? Have

you discussed that with your lawyer?" Mangum responded

affirmatively, stating as follows: "we discussed, you know, we

went over all of the decision." The court then inquired whether

Mangum still desired to plead guilty. Mangum answered that he did.

The court inquired further:

Q . Do you understand that on this charge of premeditated

murder that the State would have to prove that on July

the 18th of 1980 that you did kill John Edgar Simmons and

that it was—that you had no lawful right to kill him and

that it was with malice aforethought, that he was a human

being and that it was not in necessary self-defense. Do

you understand that?

A. Yes, sir.

Q. That the State would have to prove all of that. Do you

understand that?

A. Yes, sir.

It is abundantly clear that defense counsel was aware of

Mangum's version of the events and that Mangum's sisters were

present at the time of the shooting. We are hard pressed to

believe that, under the circumstances presented, i.e., the

favorable, negotiated plea and the potentia l consequences of

proceeding to trial on these three felony charges, any further

investigation by counse l would have revealed evidence that would

have changed his advice regarding the guilt y plea. Assuming

arguendo that counsel did not sufficiently investigate the case and

that such conduct const ituted deficient performance, 1 3 Mangum has14 The dwelling that Mangum burglarized was occupied at the

time of the offense.

14 not shown a reasonable probability that, but for coun sel's

allegedly erroneous advice, he would have insisted on going to

trial.

The record indicates that Mangum, who was not unfamiliar with

the Mississippi criminal justice system, understood his situation

and wanted to acc ept the bargain offered by the state. At the

beginning of the hearing, the state had represented that if

Mangum's pleas on all three counts were accepted by the court, it

would recommend a life se ntence for murder, 30-year sentence (10

years suspended) for the rape, and a 15-year sentence (71/2 years

suspended) for the burglary, with the three sentences to be served

concu rrently, but consecutive to the sentence previously imposed

for aggravated assault. The clear implication was that if Mangum

did not plead to all three counts, the state would not recommend

this bargain. As previously set forth, had Mangum not pleaded

guilty, he apparently could have been indicted and sentenced as an

habitual offender, which would have subjected him to the possible

sentence of lif e without parole solely for a rape conviction.

Miss.Code Ann. § 97-3-65. Indeed, under Mississippi law, the trial

court had the discretion to impose each of the sentences

consecutively. Miss.Code Ann. § 99-19-21. We also recognize that

these three offenses (murder, rap e, and house burglary) were

separate crimes committed o n different dates against separate

individuals and property. 14 Moreover, Mangum does not contest his15

guilt as to the rape or burglary convictions and does not contest

that he killed John Simmons, only that he committed the lesser

included offense of manslaughter rather than murder. If Mangum had

gone to trial and was convicted of the charged offenses, he could

have been sentenced such that "he would surely live out the rest of

his days in prison." Armstead, 37 F.3d at 210.

In light of these circumstances, we conclude that Mangum has

not shown that, but for counsel's alleged deficient performance, he

would have rejected the plea bargain and insisted on going to trial

for the charges of murder, rape, and burglary as an habitual

offender. S ee Armstead, 37 F.3d at 210 (overwhelming evidence

against petitioner and favorable bargain persuaded this Court that

petitioner would not have rejected plea bargain). We are satisfied

that Mangum h as not shown the requisite appreciable prejudice or

that his guilty plea proceedings were "unreliable or fundamentally

unfair." A rmstead, 37 F.3d at 207, 210 (citing Fretwell, supra ).

For the above stated reasons, the judgment of the district

court is AFFIRMED.