United States Court of Appeals,

Fifth Circuit.

No. 92-1648.

Willie D. ARMSTEAD, Petitioner-Appellant,

v.

Wayne SCOTT, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

Nov. 3, 1994.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, JOLLY and STEWART, Circuit Judges.

STEWART, Circuit Judge:

This is a habeas corpus action brought by a state court

prisoner, Willie D. Armstead, alleging ineffective assistance of

counsel in connection with his guilty plea to two counts of

aggravated robbery in Texas state court. The district court denied

relief, affording a presumption of correctness to the factual

findings of the state court. While we find that the district court

erred in affording a presumption of correctness because the state

court did not actually make a factual finding with regard to one of

Armstead's allegations, we nonetheless conclude that Armstead has

not demonstrated he was prejudiced by his counsel's alleged error.

We therefore affirm the district court's denial of relief.

Background

On January 27, 1988, a Dallas County, Texas, grand jury

returned an indictment charging Armstead with the first-degree

felony offense of aggravated robbery in Cause No. F88-77534-S. The

1 indictment alleged a prior felony conviction for attempted capital

murder on November 30, 1976, also in Dallas County, Texas, in Cause

No. F74-9501-H, for enhancement of punishment pursuant to §

12.42(c) of the Texas Penal Code. On January 29, 1988, the Dallas

County grand jury returned a second indictment for a first-degree

felony offense of aggravated robbery in Cause No. F88-77715-JS.

That indictment also was enhanced by the prior conviction for

attempted capital murder.

On March 11, 1988, pursuant to a plea agreement, Armstead pled

guilty to the two charges. The trial court sentenced him to two

concurrent 40-year terms of confinement and a $750 fine. The trial

court further made an affirmative finding that Armstead had used or

exhibited a deadly weapon, a firearm, during the commission of the

offenses. Also on March 11, 1988, Armstead's wife Elaine pled

guilty to one of the robberies, pursuant to a plea agreement. She

was not sentenced until March 24, 1988. She received a sentence of

fifteen years.

Armstead did not appeal his convictions, nor did he ever seek

to withdraw his guilty plea or allege that his plea bargain had

been breached. He filed an application for state habeas relief

challenging the convictions, which the Texas Court of Criminal

Appeals denied on October 18, 1989. On June 11, 1990, Armstead

filed a federal petition for habeas corpus relief. The district

court dismissed the petition with prejudice on July 24, 1992, and

this appeal followed.

Armstead argues on appeal that his defense counsel was

2 ineffective in the following respects:

(i) advising Armstead to waive his right to the examining trial on the date it was scheduled;

(ii) failing to investigate and contact witnesses;

(iii) telling Armstead that he did not wish to try the case because he did not want to blemish his record with a loss;

(iv) advising Armstead to perjure himself;

(v) failing to inform Armstead of his right to have a jury sentence him;

(vi) telling Armstead he would be found guilty of the robbery charges based upon his prior conviction for attempted murder;

(vii) asking Armstead's mother to persuade him to plead guilty; and

(viii) promising him that his wife, Elaine Armstead, would get probation if he pled guilty.

All eight of Armstead's allegations of ineffective assistance

of counsel were raised previously by him in his state habeas

petition. Armstead's showing in support of his state habeas

petition included three affidavits concerning these contentions.

The affiants were Armstead's wife, his mother, and another convict

who happened to be appearing in court on the same day as Armstead

and who allegedly overheard exchanges between Armstead and his

counsel relating to the promise that Armstead's wife would get

probation if Armstead pled guilty.

In response to Armstead's state habeas petition, the state

court requested that Armstead's counsel, Alfredo Campos, Jr.,

submit an affidavit addressing the allegations of the state habeas

petition, and the attorney did so. The Campos affidavit directly

addressed seven of the eight allegations made by Armstead, but it

3 did not address the "false promise" issue at all.

Specifically, Mr. Campos provided the following answers to

defendant's allegations of ineffective assistance of counsel:

(i) he advised Armstead of his right to an examining trial, and Armstead agreed to waive the examining trial in exchange for the offense report;

(ii) he obtained the offense report, had an investigator available, and had information on the three witnesses for trial, all of which he reviewed with Armstead;

(iii) he did not tell Armstead that he feared "blemishing" his record with a loss;

(iv) he never recommended perjury;

(v) he advised Armstead of his right to jury sentencing;

(vi) Armstead misunderstood his statements regarding the prior conviction; he advised him only that, if the enhancement paragraph were found true, it would raise his minimum penalty for sentencing and that it would "weigh heavily on the punishment phase of the trial";

(vii) he did have a telephone conference with Armstead's mother, wherein he "brought her up to date on the status of the case."

The Court found the statements in counsel's affidavit to be

"true, correct and dispositive of the allegations presented by

[Armstead] relative to Mr. Campos." Based upon these adopted

factual determinations, the state court concluded that counsel was

not ineffective and that Armstead entered knowing and voluntary

pleas.

When Armstead filed his federal habeas petition forwarding

these same allegations, the magistrate judge reviewed Armstead's

claims in light of the state court record and Armstead's burden

under Hill v. Lockhart,

,

,

(1985), to show that (1) his attorney actually erred,

4 and (2) he would not have pled guilty but for the error. The

Findings, Conclusions and Recommendation of the United States

Magistrate Judge provided as follows:

In [Campos'] affidavit [submitted in the state habeas proceeding, he] specifically denied each of [Armstead's] allegations of error on his part. Moreover, [Campos] also detailed each of the acts which he took on [Armstead's] behalf, including advising him of all the constitutional rights to which he was entitled, his efforts to investigate the case, and his attempts to insure that [Armstead's] guilty plea was knowing and voluntary.... The state court subsequently accepted those statements by [Campos] as true and adopted them as findings of fact in regard to the claim of ineffective assistance of counsel.... Those findings of fact as to the actions of [Campos] must be presumed to be correct, even though they were entered into as a consequence of a hearing by affidavit rather than an in-court evidentiary hearing. (Emphasis added.)

The magistrate judge concluded, and the district court agreed,

that Armstead's habeas petition should be dismissed based upon the

premise that the state court had implicitly found that none of

Armstead's allegations were meritorious.1

Standard of Review

Under

(d), a presumption of correctness must

be accorded findings of fact made by a state habeas court if

supported by the record. Sumner v. Mata,

,

,

(1981); Loyd v. Smith,

(5th Cir. 1990). Although an ineffective assistance

claim is not purely a fact inquiry, but rather a mixed question of

law and fact, "state court findings of fact made in the course of

1 Under

(d), we afford a presumption of correctness to a state court factual finding except in certain enumerated circumstances. If the state court factual findings are presumed correct, Armstead's federal habeas petition was properly dismissed.

5 deciding an ineffectiveness claim are subject to the deference

requirement of § 2254(d)." Loyd v.

(citations

omitted). However, findings not made in the context of a "full and

fair hearing" or otherwise "not fairly supported by the record" as

a whole are not entitled to the "presumption of correctness."

(d)(2) & (8). The requirement that there be a hearing

on the merits may be satisfied in some cases by affidavits—a

so-called "paper hearing"—rather than by an in-court evidentiary

hearing.

To prevail on an ineffective assistance of counsel claim, a

petitioner must satisfy the two-prong test enunciated in Strickland

v. Washington,

,

,

(1984).

The Strickland test requires that a habeas petitioner prove not

only that counsel's performance was deficient, but also that the

deficient performance actually prejudiced the defense to such an

extent that there is a reasonable probability that, but for the

attorney's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome of

the proceedings.

,

.

In Hill v. Lockhart,

,

,

(1985), the Supreme Court applied the Strickland two-prong test

to cases involving guilty pleas. Thus, in a guilty plea scenario,

a petitioner must prove not only that his attorney actually erred,

but also that he would not have pled guilty but for the error.

6

With regard to the first prong of the Strickland /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.' "

,

, quoting McMann v. Richardson,

,

,

(1970).

With regard to the prejudice prong, a defendant must

"affirmatively prove" prejudice.

,

. A mere allegation of prejudice is not

sufficient to satisfy the prejudice prong of the Strickland test.

A petitioner must establish that but for his counsel's alleged

erroneous advice, he would not have pleaded guilty but would have

insisted upon going to trial. Carter v. Collins,

(5th Cir. 1990).

This assessment, in turn, will depend in part on a prediction

of what the outcome of a trial might have been. Hill v. Lockhart,

supra,

,

. For example, where

the alleged error of counsel is a failure to investigate or

discover potentially exculpatory evidence, the prejudice inquiry

will depend on the likelihood that discovery of the evidence would

have led counsel to change his recommendation as to the plea. That

assessment, in turn, will depend in large part on a prediction of

whether the evidence likely would have changed the outcome of a

trial. Similarly, where the alleged error by counsel is a failure

7 to advise the defendant of a potential affirmative defense to the

crime charged, the resolution of the prejudice inquiry will depend

largely upon whether the affirmative defense likely would have

succeeded at trial.

Just last year, in Lockhart v. Fretwell, --- U.S. ----,

,

(1993), the Supreme Court noted that an

analysis focussing solely on mere outcome determination, without

attention to whether the result of the proceeding was fundamentally

unfair or unreliable, is defective. Lockhart involved an

allegation of ineffective assistance of counsel during a capital

sentencing hearing. The Court noted that the Sixth Amendment right

to effective assistance of counsel is recognized not for its own

sake, but because of the effect it has on the ability of the

accused to receive a fair trial. Thus, in our prejudice inquiry we

should consider (1) whether, but for counsel's error, the defendant

would not have pled guilty but would have insisted upon going to

trial, Hill v. Lockhart, supra, and (2) whether counsel's deficient

performance caused the outcome to be unreliable or the proceeding

to be fundamentally unfair, Lockhart v.

"Unreliability or unfairness does not result if the ineffectiveness

of counsel does not deprive the defendant of any substantive or

procedural right to which the law entitles him." Fretwell, ---

U.S. at ----,

. Fretwell thus narrows somewhat the

scope of the Sixth Amendment's ineffective assistance of counsel

doctrine, and thereby further limits the availability of habeas

relief. Joseph L. Hoffmann, Is Innocence Sufficient? An Essay on

8 the U.S. Supreme Court's Continuing Problems with Federal Habeas

Corpus and the Death Penalty, 68 Ind.L.J. 817, 834, n. 80 (1993).

See also U.S. v. Suarez,

(D.C.Guam 1994)

(noting that Lockhart may present a more stringent test than

Strickland ).

This Circuit reads Lockhart v. Fretwell as requiring a rather

appreciable showing of prejudice. "If an appreciable showing of

prejudice is required in the capital contest, a requirement for a

showing of significant prejudice applies a fortiori in the

noncapital context." Spriggs v. Collins,

.

(5th Cir. 1993).

Analysis

Adequacy of the "paper hearing"

The first seven contentions

Under

(d)(2), a presumption of correctness

will not apply to a state court finding of fact if the factfinding

procedure employed by the state court was not adequate to afford a

full and fair hearing.

Armstead argues that the district court should not have

afforded a presumption of correctness to the state court's findings

of fact with regard to any of his allegations because no live

evidentiary hearing was held; instead, the state court made its

decision based upon a "paper hearing"—the affidavits submitted by

Armstead and Campos.

While acknowledging that the presumption of correctness may

apply nonetheless to paper hearings in some instances, Armstead

9 argues that in this case a paper hearing was insufficient to form

the basis for the state court's decision to deny him habeas relief.

He points to Nethery v. Collins,

, 1157 n. 8 (5th

Cir. 1993), citing Ellis v. Collins,

(5th Cir. 1992), in

which this Court noted that "[f]indings based solely on a paper

record are not necessarily entitled to a presumption of

correctness." The Nethery court also repeated a principle it had

stated in May v. Collins,

(5th Cir. 1992): "[I]t

is necessary to examine in each case whether a paper hearing is

appropriate to the resolution of the factual disputes underlying

the petitioner's claim."

In Nethery, this Court refused to afford a presumption of

correctness to one of the state court's findings because the state

habeas court held no evidentiary hearing despite the submission of

conflicting affidavits on that issue. In considering the adequacy

of the paper hearing, we noted that Nethery's petition was not

considered by the same judge who had presided over his trial;

thus, there was no meaningful opportunity for the court to assess

the credibility of the conflicting affiants.

Armstead argues that because there was no trial in this case,

a paper hearing was inadequate. He contends that the judge did not

have an adequate opportunity to assess Armstead's credibility.

Thus, Armstead argues that a paper hearing did not afford him a

full and fair hearing. Accordingly, Armstead contends that the

state court factual findings with regard to each of his allegations

should not be given a presumption of correctness, and we should

10 remand for a live evidentiary hearing as to all eight of his

contentions. We disagree.

Unlike the scenario in Nethery, the trial judge in Armstead's

case who made the factual finding with regard to the conflicting

affidavits via the "paper hearing" was the same judge who presided

over Armstead's guilty plea. The judge had the opportunity to

fully assess Armstead during his plea process and determine his

credibility then. He also had the opportunity to assess the

credibility of Alfred Campos as well as Melvin Tryon, the convict

who appeared in his court the same day as Armstead. We find that

in this case a "paper hearing" was adequate for a determination as

to Armstead's allegations. Thus, the state court's factual

findings are entitled to a presumption of correctness under §

2254(d). However, we must point out that the state court made

factual findings only with regard to the first seven of Armstead's

allegations.

As we discuss below, there was no state court factual finding

with regard to the eighth issue raised by Armstead, that of the

false promise. A presumption of correctness can apply only to

findings that were in fact made. See

(d)(1).

We find that, with regard to the first seven of Armstead's

contentions, the district court correctly afforded a presumption of

correctness to the state court's determination that those

allegations were without merit. Accordingly, the district court

properly denied habeas relief to Armstead based on these

contentions.

11 Armstead's "false promise" contention

Our finding that the paper hearing was adequate as to the

first seven of Armstead's allegations is inapposite to an analysis

of whether Armstead is entitled to relief on his eighth contention.

Consequently, we now must turn our attention to whether the

district court properly denied relief based upon that claim.

The primary issue on appeal is thus whether the district court

properly accorded a presumption of correctness to the state court's

supposed implicit "finding" that Armstead's counsel did not make a

false promise to Armstead that his wife, Elaine Armstead, would get

probation if he pled guilty.

We have carefully reviewed the Campos affidavit. It fails to

address in any manner whatsoever Armstead's contention that Campos

promised that Armstead's wife Elaine would get probation if

Armstead pled guilty. We find the absence of any mention of the

alleged false promise suspect given the very detailed responses

Campos gave to defendant's numerous other contentions. It is

impossible to determine whether the absence of information

regarding this allegation was inadvertent or intended. Because

Armstead had included so many contentions in his habeas petition,

and because Campos' response was so lengthy and detailed (the

affidavit was four pages long, almost entirely single-spaced), the

false promise charge may have gone unnoticed by Campos, or the

response Campos may have had to the alleged false promise simply

may have been lost in the shuffle in drafting the affidavit. On

the other hand, Campos may have chosen consciously not to address

12 this charge for some reason unknown to this Court.

We note that a paper hearing would have been adequate to

resolve this dispute. The court could have directed Campos to

supplement his affidavit to directly address the false promise

charge. However, this was not done. The state court merely

adopted the Campos affidavit as submitted as true and dispositive

of Armstead's allegations. We agree with Armstead that the scope

of the state court finding did not extend to the allegation

regarding the false promise. The state court merely determined

that the Campos affidavit was correct. It did not find that

Armstead's affidavit was not credible. Thus, there was no state

court "finding" on the issue of whether Campos made the false

promise to Armstead.2

Whatever the reasons for the omission in the Campos affidavit

of a response to the false promise charge, the state court

apparently failed to notice it. The magistrate repeated the same

mistake, overlooking the fact that neither the Campos affidavit nor

the state court judgment addressed the false promise issue.

Unfortunately, the district court followed suit, and Armstead's

"false promise" charge slipped through the proverbial crack in the

complicated mosaic of allegations that formed Armstead's habeas

petition.

Under

(d)(1), a presumption of correctness is

2 Cf., May v. Collins, supra,

, in which the trial court's finding of fact expressly stated that the affidavits submitted by the habeas petitioner were not credible and unworthy of belief. The state court factual finding in May was afforded a presumption of correctness.

13 not required when the merits of a factual dispute were not resolved

in the state court hearing. This case presents precisely the

scenario envisioned by § 2254(d)(1).

We conclude that it was error for the district court to find

that there had been a state court finding with regard to all of

Armstead's allegations (to which a presumption of correctness must

be afforded) when in fact the state court never made a factual

finding on the issue of whether Campos made the false promise to

Armstead that his wife would get probation if he would plead

guilty.

Strickland /Hill Test

A. Performance prong

Having determined that the district court did indeed err in

applying a presumption of correctness when in fact the false

promise issue was not resolved by the state court, we must analyze

Armstead's ineffective assistance claim based upon an assumption

that his allegations of deficient performance by counsel are true,

i.e., that Campos did promise Armstead that Elaine would get

probation if he pled guilty, when in fact probation was not

available to her.

However, we note that it is only reasonable to look askance at

Armstead's claim. Elaine Armstead's plea agreement plainly states

that she was not to receive probation. She and Armstead signed

their plea agreements on the same day. However, Armstead notes

that Elaine was not sentenced until approximately two weeks later,

and that he did not know she was not going to receive a prison

14 sentence. He points out that a probation officer visited Elaine

the day she pled guilty, also giving him the impression that she

would receive probation. While it is at least feasible that, at

the time he signed the plea agreement, Armstead may have been under

the impression that his wife Elaine would get probation if he plead

guilty, he admits that he learned she received a prison sentence

upon her sentencing. At no time did he object to this. He did not

raise the issue on direct appeal. Had Armstead truly been under

the impression that there was a deal whereby Elaine would receive

probation only, it seems he would have been protesting from the

rooftops upon first learning that Elaine had in fact received

fifteen years. Arguably, he would have tried to have the alleged

agreement enforced or to withdraw his guilty plea. At the very

least, he would have raised the issue on direct appeal. Instead,

he was silent about the alleged false promise until he filed his

state habeas petition in June 1989, some fifteen months after he

and Elaine were sentenced. Armstead, in raising his claim so late,

is attempting to use collateral attack "to service for an appeal,"

which we will not allow. See U.S. v. Walsh,

(6th

Cir. 1984), citing Sunal v. Large,

,

,

(1947).

Moreover, Armstead's own plea agreements reflect no such

promise, but instead contain a recitation that the documents

contain "all of the provisions of said agreement." Further, in the

section of these plea agreement provided for "[a]dditional

provisions of the agreement ..." the space was left empty on one,

15 and the second reflects that the only "[a]dditional provision" was

that the sentences were to run concurrently. Given the fact that

the plea agreements explicitly state that there were no other terms

to his deal, we are less willing to believe Armstead's contention

that he was under the impression that a promise was made. See U.S.

v. Stumpf,

(5th Cir. 1987) (failure to object to

the omission of an agreement in the written papers filed of record

was grounds for denying relief for any failure to execute that

agreement.)

But assuming arguendo that Campos did make the false promise

to Armstead, when in fact no such "deal" existed, such conduct on

the part of counsel might constitute deficient performance. For

purposes of analyzing Armstead's claim under the Strickland /Hill

test, we assume arguendo that such an act on the part of counsel

would in fact constitute deficient performance. Thus, we presume

that Armstead has met the first prong of the Strickland /Hill test.

B. Prejudice prong

We have concluded that the district court committed error in

deferring to the supposed state court implicit finding with regard

to the false promise allegation, when in fact there was no state

court finding with respect to this issue. Ordinarily, we would

remand this case to the district court for a hearing on the issue

of whether Campos actually told Armstead that his wife would get

probation if he plead guilty, i.e., whether the alleged false

promise was in fact made, because no finding was made as to that

issue below, either by the state court or by the federal district

16 court.

However, in this case, a remand is not necessary because

petitioner has not satisfied the second prong of the Strickland

/Hill test by establishing prejudice. A court need not address

both components of the inquiry if the defendant makes an

insufficient showing on one. Spriggs v. Collins,

(5th

Cir. 1993), citing

,

. Assuming arguendo that Armstead received ineffective

assistance of counsel, we conclude that he has not met his burden

of affirmatively proving prejudice as required by Hill v. Lockhart,

supra. It would be a waste of judicial resources to remand for a

factual finding on the error prong of the inquiry when the

prejudice prong clearly has not been satisfied. Thus, we affirm

the district court's dismissal of petitioner's habeas claim.

In this case, where the alleged error by counsel is the false

promise that Elaine Armstead would get probation if Armstead

pleaded guilty, an assessment of the prejudice prong of the

Strickland /Hill test will depend at least partly upon whether

Armstead would have succeeded at trial.

Armstead alleged in his petition that he would not have

pleaded guilty but would have insisted upon going to trial had he

not been told that his wife would get probation if he pleaded

guilty. However, this bare allegation is not sufficient to

establish prejudice.

The evidence of guilt against Armstead was strong. The police

had an eyewitness who identified him out of a lineup. They also

17 lifted his fingerprints from the crime scene. Under Hill, the

determination of whether prejudice has been proven depends upon

whether Armstead has affirmatively shown by a reasonable

probability that, but for his counsel's errors, he would not have

pled guilty and would have insisted on going to trial. We conclude

that Armstead has not shown that even in light of the strong

evidence against him, there is a reasonable probability that he

would not have plead guilty and that he would have insisted on

going to trial.

Armstead previously had been convicted of the first-degree

offense of attempted capital murder for shooting a man with a gun

during the course of another aggravated robbery. The seriousness

of that offense, when combined with the knowledge that Armstead

previously shot someone during a robbery, would most probably have

caused a judge or jury to impose a sentence at or near the maximum

sentence possible. An offer of two forty-year concurrent sentences

clearly was a good deal for Armstead. Otherwise he was subject to

receiving two consecutive 99-year (life) sentences.3 With the

forty-year sentence under the plea bargain, Armstead might see his

freedom again. Under the two 99-year sentences, he would surely

live out the rest of his days in prison. In light of these

circumstances, Armstead has not established that but for Campos'

advice, he would have rejected the plea bargain. See Smith v.

McCotter,

(5th Cir. 1986) and Long v. United States,

(11th Cir. 1989). He has not shown that the guilty

3 See § 12.42 Texas Penal Code.

18 plea process was unreliable or fundamentally unfair. Lockhart v.

--- U.S. at ----,

. Moreover, he

has not shown that he was deprived of any substantive or procedural

right to which the law entitles him. Ibid., at ----,

.

The instant case is very similar to another case from this

Circuit, United States v. Fuller,

(5th Cir. 1985). In

Fuller, the defendant sought habeas relief, contending that

misinformation given to him by his lawyer invalidated his guilty

plea. The district court had erroneously advised Fuller that the

maximum penalty for his offense was a fifteen-year prison sentence

and a $25,000 fine, when in fact the maximum sentence was only five

years and the maximum fine only $15,000. The attorney failed to

correct the trial judge when he misstated the maximum sentence.

Fuller also maintained that his lawyer advised him to plead guilty

in order to avoid the very strong possibility of receiving the

maximum sentence if he angered the Court by pleading innocent.

Fuller contended that his lawyer advised him that the prosecutor

would recommend a lesser sentence if Fuller would change his plea

to guilty. At the sentencing, the prosecutor made no

recommendation concerning Fuller's sentence and neither Fuller, nor

Fuller's lawyer, called attention to the newly asserted promise

that the prosecutor would recommend a lighter sentence. The

defendant feared that, if he proceeded to trial and were convicted,

he would receive the maximum sentence. Thus, rather than going to

trial, he pleaded guilty in the hope of receiving a lesser

19 sentence. We held that, under the test laid out in Strickland4,

Fuller failed to demonstrate that the misinformation induced him to

enter the plea or that it prejudiced him.

Fuller was faced with what appeared to be overwhelming

evidence of guilt. While it was debatable whether Fuller might

have accepted the risk of the five year sentence in the hope of an

acquittal at trial had he been properly advised that the maximum

sentence was only five years rather than fifteen, we nonetheless

concluded that Fuller was not erroneously induced to believe that

he would benefit from pleading guilty. He was not led to believe

that a guilty plea would reduce his maximum sentence. He merely

pleaded guilty in the expectation of possible consequences graver

than those he actually faced.

Fuller is very similar to the instant case. Armstead was not

erroneously induced into believing that he would benefit from

pleading guilty. He did in fact benefit by pleading guilty in

light of the tremendous evidence against him. In light of the

strong evidence against him, the two concurrent forty year

sentences constituted a beneficial deal for Armstead compared to

the possibility of two consecutive ninety-nine year sentences had

he gone to trial and received the maximum sentence.

In fact, Armstead presents an even stronger case for a finding

of failure to show prejudice than Fuller. In Fuller, it was at

4 Fuller was decided two months before Hill was handed down by the United States Supreme Court; nonetheless, this Court considered Fuller's claim under the Strickland two-prong test even though Hill had not yet applied Strickland in the guilty plea scenario.

20 least debatable that the defendant might have risked going to trial

and receiving a five year sentence rather than pleading guilty in

light of an alleged promise that the prosecutor would recommend a

lesser sentence. Fuller in fact did receive a five year sentence,

and yet we concluded he did not make a sufficient showing of

prejudice. If Fuller did not bear his burden of establishing

prejudice, then, a fortiori, Armstead has not borne his burden of

demonstrating prejudice. Moreover, even if Armstead has arguably

shown at least some prejudice, he clearly has not shown the

"appreciable" amount of prejudice required under Lockhart v.

Fretwell and Spriggs v. Collins, supra.

Conclusion

The state court findings of fact as to the first seven of

Armstead's allegations were properly accorded a presumption of

correctness by the district court. As to Armstead's eighth

contention, that of the false promise, assuming arguendo that

defense counsel's performance was deficient and did in fact make

the false promise when none in fact existed, Armstead has not made

the requisite showing of prejudice. The judgment of the district

court is AFFIRMED.

21