1 Circuit Judge of the Eighth Circuit, sitting by designation. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 93-3773

RONNIE JAMES,

Petitioner-Appellant,

VERSUS

BURL CAIN, Acting Warden,

Louisiana State Penitentiary,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

(June 20, 1995)

Before LAY, 1 DUHÉ, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Petitioner Ronnie James brought this habeas corpus proceeding

in the Eastern District of Louisiana claiming that his guilty plea

to a second degree murder charge was involuntary due to his

attorney m isinforming him of the sentencing results of his plea

bargain. For the reasons set forth below, we find that the

district court erred in dismissing this suit without prejudice.2 At the time of James' offense, this was the only punishment

available for a second degree murder conviction. The second degree

murder statute in effect when James committed the crime for which

he was convicted, 1975 La. Acts 380 (repealed 1976), provides in

relevant part,: "Whoever commits the crime of second degree murder

shall be imprisoned at hard labor for life and shal l not be

eligible for parole, probation, or suspension of sentence for a

period of forty years."

3 The parties agree that at the time of James' sentence it was

not uncommon for the Louisiana governor to commute such a life

sentence.

2 Therefore, we reverse and remand to the district court for a

determination of whether James has shown that he will be prejudiced

by a dismissal of this petition as abuse of the writ.

I. Facts and Procedural History

Ronnie James, the petitioner i n this matter, is currently a

prisoner in a Louisiana state penitentiary. In March, 1976, James

was convicted of second degree murder after he entered a guilty

plea pursuant to a plea bargain. Upon James' conviction, the state

court judge sentenced James to life imprisonment without benefit of

probation, parole or suspension of sentence for forty years. 2

A dispute as to whether James was properly advised as to the

terms and effect of the original plea bargain form the basis of

this habeas corpus suit. The parties agree that, at the time of

James' offense, a prisoner sentenced to life could not be eligible

for parole until the governor of Louisiana commuted the prisoner's

life sentence to a fixed term of years. Commutation was a matter

o f discretion with the governor. 3 The source of James' habeas

corpus complaint is his alleged lack of understanding as to the

two-step parole process——consisting of commutation of the sentence4 The state record reflects that the trial j udge told James

that no probation, parole, or suspension of sentence would be

available for a period of forty years. The precise wording of the

sentence itself states the same. The commutation procedure is not

mentioned in the state trial record. The habeas record contains an

affidavit of James' trial counsel stating that he does not recall

what he told James in 1976 regarding commutation procedure.

3 followed by a parole hearing. James claims that at the time of his

sentencing he was unaware of the commutation requirement and

understood only that he would become eligible for parole in forty

yea rs. He claims that neither the trial judge nor his defense

counsel informed him of the commutation requirement. Because James

says that he would not have accepted the plea agreement had he been

aware of the initial commutation requirement, he claims that he was

prejudiced by entering into an uninformed and, hence, involuntary

plea agreement. 4

This is the second fe deral habeas corpus suit brought by

James. In 1985, James sought habeas corpus relief on the ground

that he was unaware of the elements of the crime for which he was

convicted. Habeas corpus relief was denied in that suit. Because

this is the second federal habeas corpus action brought by James,

the district court referred this case to a United States magistrate

judge to determine whether his second petition should be dismissed

as successive. James' explanation for not asserting this ground

for habeas corpus relief in his first petition was that he did not

become aware o f the commutation requirement until a fter the

original habeas corpus proceeding, when he saw a prison memorandum

setting forth the requirement.

The magistrate judge in the present proceeding determined that4

James had shown cause for not raising the commutation issue earlier

but that he had failed to show prejudice. Therefore, the

magistrate judge recommended that James' petition be dismissed with

prejudice. The district court adopted the magistrate judge's

report but then dismissed the petition without prejudice. The

district court reasoned that, until James had served forty years in

prison, no determination could be made as to whether he was

prejudiced by his misunderstanding as to the parole procedure

during the 1976 plea bargain. Therefore, James could not show he

suffered prejudice due to the commutation ground until he had

served out the portion of his sentence before which either parole

or commutation even became available.

James appeals the dismissal of his habeas corpus petition,

claiming that a final determination can be reached now in the suit

since he is appealing the voluntariness of his plea agreement and

not the capacity of the State to fulfill its promises in that

agreement.

II. Discussion

A district court's decision to dismiss a second or subsequent

federal habeas corpus petition for abuse of the writ lies within

its sound discretion. M cGary v. Scott

, 27 F.3d 181, 183 (5th Cir.

1994). This Court will reverse such a dismissal only if it finds

an abuse of that discretion. S anders v. United States

, 373 U.S. 1,

18-19 (1963); McGary , 27 F.3d at 183; Hudson v. Whitley , 979 F.2d

1058, 1062 (5th Cir. 1992). A district court abuses its discretion

when it bases its decision on an erroneous legal conclusion or on5

a clearly erroneous finding of fact. McGary , 27 F.3d at 183.

In deciding whether to dismiss a case for abuse of the writ,

this Court must apply the same standard used to determine whether

to excuse state procedural defaults in a habeas corpus proceeding.

McCleskey v. Zant

, 111 S. Ct. 1454, 1468 (1991); Jones v. Whitley

,

938 F.2d 536, 540 (5th Cir.), cert. denied , 501 U.S. 1267 (1991).

Thus, a petitio ner's serial habeas corpus petition must be

dismissed as an abuse of the writ unless the petitioner

demonstrates that there was "cause" not to have raised the points

in a previous federal habeas corpus petition and "prejudice" if the

court fails to consider the new point. J ones

, 938 F.2d at 540.

The cause standard requires that the petitioner show that some

objective factor external to the defense impeded the petitioner's

efforts to raise the claim in the first proceeding. See id. The

independent prejudice standard requires the petitioner to show that

he was actually prejudiced by the error of which he complains.

Russell v. Collins

, 944 F.2d 202, 205 (5th Cir.), cert. denied

, 501

U.S. 1278 (1991). Prejudice is irrelevant if the petitioner does

not show cause; however, once the petitioner does show cause,

prejudice must be considered. S ee Hudson v. Whitley

, 979 F.2d

1058, 106 4 (5th Cir. 1992); S aahir v. Collins

, 956 F.2d 115, 118

(5th Cir. 1992).

This Court agrees with both the m agistrate judge and the

district court that James has shown sufficient cause for not

raising the commutation ground in his initial federal habeas corpus

suit. Such cause is grounded in the fact that James was apparently5 It is worthy of note that the State does not challenge the

determinations of both the magistrate judge and the district court

that James did meet the cause requirement.

6 unaware of the commutation requir ement until he saw a prison

memorandum about his status after the denial of his first federal

h abeas corpus petition. 5 Therefore, the question for this Court

becomes whether or not James has demonstrated sufficient prejudice

to establish that he has not engaged in an abuse of the writ.

The petitioner's burden of proving actual prejudice requires

showing "'not merely that the errors at.

. .trial created a

possibility of prejudice, but that they worked to his actual and

substantial disadvantage, infecting his entire trial with error of

constitutional dimensions.'" M urray v. Carrier

, 477 U.S. 478, 494

(1986) (quoting United States v. Frady , 456 U.S. 152, 170 (1982))

(emphases in original). Stated another way, "[s]uch a showing of

pervasive actual prejudice can hard ly be thought to constitute

anything other than a showing that the prisoner was denied

'fundamental fairness' at trial." M urray 477 U.S. at 494; see also

Sawyer v. Whitley

, 945 F.2d 812, 816 (5th Cir.), aff'd

, 112 S. Ct.

2514 (1992) ("[p]rejudice requires a showing of actual pr ejudice

amounting to a denial of fundamental fairness").

A federal court will uphold a guilty plea challenged in a

habeas corpus proceeding if the plea was knowing, voluntary and

intelligent. Hobbs v. Blackburn , 752 F.2d 1079, 1081 (5th Cir.),

cert. denied

, 474 U.S. 838 (1985). A guilty plea is invalid if the

defendant does not understand the nature of the constitutional

prote ction that he is waiving or if he has such an incomplete7

understanding of the charges against him that his plea cannot stand

as an admission of guilt. Henderson v. Morgan , 426 U.S. 637, 645

n.13 (1976). The critical issue in determining whether a plea was

voluntary and intelligent is "whether the defendant understood the

nature and substance of the charges against him, and not

necessarily whether he understood their techn ical legal effect."

Taylor v. Whitley

, 933 F.2d 325, 329 (5th Cir. 1991), cert. denied

,

503 U.S. 988 (1992). If the record shows the defendant "understood

the charge and its consequences," this Court will uphold a guilty

plea as voluntary eve n if the trial judge failed to explain the

offense. Davis v. Butler , 825 F.2d 892, 893 (5th Cir. 1987).

James claims that he suffered prejudice by entering an

involu ntary plea agreement for three reasons. First, he claims

that he suffered prejudice because of a change in Louisiana law

which has made commutation of sentences much more difficult to

attain. Second, James alleges he was prejudiced by entering a plea

agreement involuntarily due to the fact he was not fully apprised

of the commutation prerequisite to parole. Finally, James claims

he was prejudic ed by receiving ineffective counsel because his

trial attorney did not fully apprise him of the parole procedure

and the commutation req uirement. Each of these grounds of

prejudice will be analyzed separately.

Change in Louisiana Law.

A change in parole eligibility procedure during the course of

a petitioner's prison te rm does not give rise to a claim of

prejudice. S ee McNeil v. Blackburn

, 802 F.2d 830, 832 (5th C ir.8

1986) ("[A] petitioner who pleads guilty in reliance on the parole

laws in effect at the time of his plea is not entitled to habeas

relief because of a change in. . .those laws. . . ."). A plea

agreement contains no implied warrant y that parole laws will not

change. I d. Therefore, the change in Louisiana commutation

procedures which made parole more difficult to attain does not give

James a habeas corpus claim for prejudice.

James' Misunderstanding of Parole Procedure.

The United States Constitution does not require the State to

furnish a defendant with information about parole eligibility in

order for the defendant's plea of guilty to be voluntary. C zere v.

Butler , 833 F.2d 59, 63 (5th Cir. 1987). Accordingly, as long as

the defendant understands the length of time he might possibly

receive, he is fully aware of his plea's consequences. S pinelli v.

Collins

, 992 F.2d 559, 561 (5th Cir. 1993). A defendant's mere

expectation about the commutation and parole process is simply no

ground for habeas corpus rel ief. D unn v. Maggio

, 712 F.2d 998,

999-1001 (5th Cir. 1983), cert. denied , 465 U.S. 1031 (1984).

The trial procedure itself had nothing to do wit h any

misunderstanding James may have had as to parole procedure and the

commutation requirement. It is clear that neither the trial court

nor the prosecutor ever affirmatively mislead Jam es as to the

Louisiana parole procedure. To the contrary, the trial court

provided James with completely accurate information a nd verified

that Jame s fully understood the sentencing ramifications of his

guilty plea. Accordingly, James did not enter into his plea9

inv oluntarily based on misinformation for which the trial court

itself was responsible.

Ineffectiveness of Trial Counsel.

The Sixth Amendment guarantee of effe c tive assistance of

counsel entitles a crimin al defendant to a reasonably effective

assistance of counsel given the totality of the circumstances. S ee

Washington v. Strickland , 693 F.2d 1243, 1250 (5th Cir. 1982). A

petitioner who seeks to overturn his conviction on g rounds of

ineffective assistance of counsel must prove hi s entitlement to

relief by a preponderance of the evidence. H ayes v. Maggio

, 699

F.2d 198, 201 (5th Cir. 1983). To demonstrate ineffectiveness of

counsel in the plea bargaining arena, James must establish that his

trial counsel's performance: (1) fell below an objective standard

of reasonable competence and (2) that he was prejudiced by his

counsel's deficient performance. L ockhart v. Fretwell

, 113 S. Ct.

838 (1993); Czere v. Butler , 833 F.2d 59, 63 (5th Cir. 1987). To

succeed in showing prejudice , the habeas corpus petitioner must

show that it wa s in fact reasonably probable that but for the

misadvice of his trial counsel he would not have pleaded guilty and

would have insisted on going to trial. S ee Czere

, 833 F.2d at 63.

The only evidence in the record as to what James' trial

counsel did or did not explain to him about the parole procedure is

James' own testimony and an affidavit of his trial attorney. James

testified that his trial attorney, Ralph Barnett, told him he would

"make parole on 40 years " if he pleaded guilty. James also

testified that upon talking to his trial attorney, he thought that6 In fact this Court has stated in dicta that a failure of an

attorney to inform his or her client as to parole consequences

probably does not render counsel's assistance so objectively

unr easonable as to rise to the level of ineffective. S ee Czere

, 833 F.2d at 63 n.6 ("Even if the Sixth Amendment does not impose on counsel an affirmative obligation to inform clients of the parole

consequences of their ple as, and we doubt that it does (at least

absent so me special facts), other courts have recognized a

distinction between failure to inform and giving misinformation.

. . .").

10 he would be out of prison after forty years. Barnett, on the other

hand, states that he does not remember anything that he did or did

not tell James about parole procedure and the plea agreement. The

only relevant evidence that comes from Barnett's affidavit is that

it was his practice at the time to fully apprise his client of the

effects of a plea agreement.

This Court has never decided whether erroneous advice by

counsel regarding parole eligibility amounts to ineffective

assistance of counsel. See Czere , 833 F. 2d at 63 n.6. However,

this Court and others have recognized that affirmatively erroneous

advice of counsel as to parole procedure is much more objectively

unreasonable than would be a failure to inform of parole

consequences. 6 S ee id. ; see also Strader v. Garrison

, 611 F.2d 61

(4th Cir. 1979) (finding misinformation of parole consequences does

constitute ineffective assistance of counsel); Cepulonis v. Ponte

,

699 F.2d 573, 577 (1st Cir. 1983) (commenting that counsel's

mis information regarding parole eligibility may be more vulnerable

to constitutional challenge than mere lack of information).

The magistrate judge dismissed James' petition with prejudice

on the ground that James did not succeed in showing that he had11

been prejudiced b y being left unaware of the commutation

requirement which preceded his parole eligibility. After agreeing

w ith the magistrate judge's finding of cause, the district court

dismissed the writ without prejudice, stating that the question of

prejudice to James could not be answered until the initial forty

years of his term had passed. Because James was only seventeen

years into his term of life without the benefit of probation,

parole or suspension of sentence for forty years, the district

court reasoned, James could not succeed in showing prejudice.

The district court erred in dismissing the case without

prejudice because of its determination that it could not now make

an in formed prejudice determination in the present case. James'

claim of prejudice is ripe for dete rmination because he is

complaining of a present injury, not an injury that will occur in

twenty years. James' complaint is that his attorney did not inform

him of the fact that he would not automatically become parole

eligible after forty years, but that, instead, he must have his

life sentence commuted to a term of years before becoming parole

eligible. His claim is that his counsel was ineffective and this

caused him to plead guilty. James is alleging that, but for the

ineffective assistance of counsel, he would not have pleaded guilty

and he would not be in prison now. Therefore, James' complaint is

not about illegal custody in twenty years; James' complaint is

about illegal custody now. Because James is complaining about an

injury he is currently su ffering, and not about an injury in the

remote future, it is not premature to consider the prejudice issue.7 James claims that, if his c ounsel had told him about

Louisiana's two-step parole procedure, he would not have pleaded

guilty and, instead, would have gone to trial for first degree

murder, a crime that carried a mandatory death penalty. Of course,

in determining whether James' counsel was ineffective, the district

court will consider the issue as it appeared in 1976, not as it

appears now with the benefit of hindsight. S trickland v. Washington

, 466 U.S. 668, 689 (1984); Laverna v. Lynaugh

, 845 F.2d

493, 498 (5th Cir. 1988). However, as the following chronology

indicates, the critical events in this case o ccurred during

tumultuous times as to the abi lity of the states to enforce the

death penalty for first degree murder:

In 1972, the United States Supreme Court held th e death

penalty, as applied, to be unconstitutional in Furman v. Georgia

, 408 U.S. 238 (1972). In response to this action, Louisiana amended

its first degree (capital) murder statute. 1973 La. Acts 109 (1973

Law). The 1973 Law provided for a mandatory death penalty for

those convicted of first degree murder. In September, 1975, the

Louisiana Supre me Court upheld the constitutionality of the 1973

L aw. S tate v. Roberts

, 319 So.2d 317 (La. 1975), rev'd sub nom.

Roberts v. Louisiana

, 428 U.S. 325 (1976). In October, 1975,

Petitioner James committed the murder which is at issue in this

petition, and he was indicted for first degree murder. On January

22, 1976, the United St ates Supreme Court granted writs of

certiorari in five separate cases concerning the constitutionality

of revised capital murder statutes. G regg v. Georgia

, Jurek v.

Texas

, Woodson v. North Carolina

, Proffitt v. Florida and Roberts

v. Louisiana

, all found at 423 U.S. 1082 (1 976). On March 31,

1976, on the day he was schedul ed to be tried for first degree

murder, James pleaded guilty to second degree murder and received

the mandatory sentence of life in prison without benefit of parole,

probation or suspension of sentence for forty years. As of the

date of James' guilty plea, Louisiana law provided that an inmate

serving a life sentence was not eligible for parole until that

sentence had be en commuted to a fixed three years. L A

. R EV

. S TAT

.

12 Under the record as it presently stands, this Court has no

choice but to hold that the district court should reconsider this

habeas corpus petition to evaluat e whether James has met the

prejudice requirement in order to avoid dismissal of his petition

as abuse of the writ. On remand, the district court should

determine if James has shown that he was prejudiced by ineffective

assistance of counsel. 7 Specifically, the district court shouldA NN

. § 15:574.4(B) (W est 1967). Finally, on July 2, 1976, the

United States Supreme Court handed down decisions in the five

capital murder cases. G regg v. Georgia

, 428 U.S. 153 (1976); Jurek

v. Texas

, 428 U .S. 262 (1976); P roffitt v. Florida

, 428 U.S. 242

(1976); Woodson v. North Carolina

, 428 U.S. 280 (1976); and Roberts

v. Louisiana

, 428 U.S. 325 (1976). In R oberts

, the Court found the

1973 Law to be unconstitutional.

wjl\opin\93-3773.opn

wdg 13 evaluate whether the attorney affirmatively misinformed or failed

to inform James about the parole process and, if so, whether such

misinformation or failure rendered the attorney's actions

objectively unreasonable. If the district court does find that

James' attorney provided him with objectively unreasonable counsel,

then the district court must inquire as to whether James was

prejudiced by this ineffective assistance of counsel.

III. Conclusion

The cause and prejudice inquiries for an abuse of the writ

dismissal in this involuntary plea action are ripe for resolution

since petitioner James is claiming he entered into an involuntary

plea bargain because of ineffectiveness of counsel. Therefore, the

judgment of the district court is reversed and the case is remanded

for a determination of whether James has demonstrated that he would

be prejudiced by having his petition dismissed for abuse of the

writ. If the district court determines that James has not abused

the writ, it will then reach the merits of his ineffective

assistance of counsel claim.

REVERSED AND REMANDED.