UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60355

CURTIS B. CURRY,

Petitioner-Appellant,

versus

ROBERT L. JOHNSON, Commissioner, Mississippi State Penitentiary; MIKE MOORE, Attorney General, State of Mississippi,

Respondents-Appellees.

Appeal from the United States District Court for the Northern District of Mississippi (2:96-CV-195-B-B)

March 26, 2001

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

The primary issue at hand is whether Curtis B. Curry was

represented by counsel when he pleaded guilty to two indictments —

numbers 8225 and 8226 — on which he had not been arraigned. His

entire plea encompassed 11 counts, charged in seven indictments, on

five of which he had been arraigned, and, as noted, on two of

which, at issue here, he had not been arraigned.

1 Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. In his federal habeas petition, Curry claimed: his plea was

not voluntary; the state trial court should have held a hearing on

his motion for post-conviction relief; the indictments were

defective; and he received ineffective assistance of counsel. The

district court adopted the magistrate judge’s recommendation that

the petition be dismissed with prejudice. In addition, it denied

Curry a certificate of appealability (COA).

Our court, however, granted Curry a COA on “whether Curry was

represented by counsel when he pleaded guilty to indictments

numbers 8225 and 8226 in that his retained counsel announced to the

court that he had not been retained to represent Curry in those

proceedings”. (Emphasis added.) The order further stated: “If

this question is answered in the negative, the other issues raised

by Curry regarding the voluntariness of his plea may become

relevant and should also be briefed”. (Emphasis added.) Curry was

cautioned, however, to “consider whether vacating the guilty pleas

on these other counts, leaving him open to the possibility of

reindictment, is in his best interest under Mississippi law”. (If

Curry were to succeed in this appeal and we were to vacate his

guilty plea, he could be tried on the original charges and be

subject to almost 400 years in prison without parole.)

We answer the first COA question in the affirmative: Curry

was represented by counsel when he pleaded guilty to indictments

8225 and 8226. Therefore, we do not reach the second COA question

2 — the voluntariness of the plea. The denial of habeas relief is

AFFIRMED.

I.

On 14 July 1993, Curry was to be tried on indictment number

8064 (sale of cocaine to an undercover law enforcement officer).

He previously had been arraigned on that indictment, as well as

four others (8030, 8065, 8066, 8089), for sale of cocaine to the

same undercover officer. He had not been arraigned on two other

indictments: number 8225 charged five counts of possession of a

controlled substance; number 8226, possession of a controlled

substance with intent to distribute.

That morning, before trial began, Curry’s attorney, Johnnie

Walls, requested a meeting with Curry, the district attorney (DA),

two assistant district attorneys, a city attorney, and the trial

judge. Walls informed the judge that he had “advised [Curry] that

he has a great chance of being convicted on every one of [the

various charges] because they involve, for the most part, direct

evidence[,] ... sale to an undercover sworn officer”. (Emphasis

added.) He explained:

The D.A. has made an offer to [Curry] to enter a plea on this cause, 8064, and the rest of them [the four other indictments on which Curry had been arraigned] to be combined, and to recommend a sixty-year sentence, a twenty- five thousand dollar fine, on each one, but this would be concurrent, assuming the Court would accept that recommendation, and that [Curry] would agree to not fight the

3 forfeiture of the property that the State has tried to forfeit that he owns.

... In addition to that, [Curry] is to be arraigned today on two other charges involving possession with intent that I do not represent him on. I don’t know anything about the evidence on those. But it’s my understanding that the D.A. is also willing to make those two charges part of the offer.

(Emphasis added.) Walls expressed his concern that

if [Curry] is convicted of five or six consecutive charges involving possession with intent or sale of cocaine, [] he will spend the rest of his natural life in prison without some kind of parole. Because if the Court decides to sentence him as a second and subsequent, under the second and subsequent statute under which he has been indicted, and if the Court gives him consecutive sentences, assuming that he is convicted on all of them, he could never get out of prison. And I think he needs to understand that from more than just me.

... I’m prepared right now to go out there and try his case. But I’m telling him on the record that I believe he’s going to be convicted of this charge.... [H]e tells me he’s not guilty.... I respect that.... I’m just, quite honestly, worried about him in the sense that I don’t think he’s making the right decision and I’m concerned about what he may say about me later that I didn’t tell him and I didn’t try to explain it....

I hate to say all this in front of the D.A. and on the record, but I think I’m obligated to do it in this instance. And I realize that the statements I’m making are somewhat putting me in conflict with him. But I don’t know what else to do. I just don’t feel comfortable walking into this courtroom feeling almost ninety-nine percent sure my client is going to be convicted. And I’m telling him that and he won’t listen to me.

4 ... I want the record to reflect ... [and] I want him to at least acknowledge that we’ve told him these things that I’ve just said, we’ve discussed the evidence with him, we’ve discussed his possible defenses, and I’ve told him what his rights are.

(Emphasis added.)

The judge complimented Walls’ candor with the court and his

client, and asked Curry if he understood what his lawyer had just

said. Curry affirmed that he did. (Curry has a Master’s degree in

math and taught in the Mississippi public schools for 16 years.)

The judge sought to clarify the number of years to which Curry

could be sentenced as a second and subsequent offender, asking “So

we’re talking about sixty times five cases?”2 The following

colloquy ensued:

[WALLS]: [W]hat bothers me ... is not the total number of years. If he were sentenced to three hundred years

2 Curry had a prior conviction for possession of marijuana.

Except as otherwise provided in Section 41-29-142, any person convicted of a second or subsequent offense under this article may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.

For purposes of this section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this article or under any statute of the United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant or hallucinogenic drugs.

MISS. CODE ANN. § 41-29-147 (1972).

5 [concurrently], under the ... present statute, I think he would still be eligible for parole after he serves ten. But if he happens to get consecutive sentences, then he has to serve ten on each one before he’s eligible for parole under the statute.

And ... I’ve explained that to him ... if he’s tried consecutively, as the D.A. has promised to do, then he may end up as an habitual offender which means he gets no parole on any of them....[3]

[DA]: Your Honor, we have indicated [] to the Defense, that we’re going to review these in the event that we do convict again, and with an eye toward re-indicting as habitual under 99-19-81. And that would, under one conviction of that, under that indictment there, he would have to serve sixty years without parole under one conviction there for sale. And we have indicated that to them, too.

[COURT]: So you wouldn’t need but one conviction out of — [DA]: — That’s right.

3 The habitual offender statute provides:

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.

MISS. CODE ANN. § 99-19-81 (1972) (emphasis added).

6 [COURT]: — what you’ve got left in order to get sixty years without parole?

[DA]: Without parole. And that’s what we were fully intending to do and we did advise Defense attorney of that. We did not do that under the circumstances now because he only has one conviction now. But after another conviction he would be [a] legitimate habitual offender under that section.

...

[COURT]: So ... if you got a conviction today there’s still six more?

...

So all you would need would be one out of six to get another sixty years without probation or parole?

[DA]: That’s right.

[COURT]: And that sentence would be mandatory.

...

The law says I would have to give sixty years without probation or parole.

[WALLS]: That’s right....

[COURT]: Well, surely the District Attorney, out of six cases, will get at least one conviction.

[CURRY]: Can I ask you a question?

(Emphasis added.)

Curry and Walls conferred off the record. Curry then asked

the DA if it was too late to accept the plea offer. The DA stated

7 that he would make his previous recommendation. Walls and Curry

again conferred off the record, subsequent to Walls’ stating:

[S]ince we’re on the record I want to make sure also that Mr. Curry is not feeling pressured by what I did to change your mind. Because if you change your mind, I want you to change your mind because you feel that that’s what you want to do, based on the advice you’ve been given and what you think is best for you. I mean I want you to understand that you have me in a real precarious position. And I’m saying it on the record so everybody can see my feelings about it.

(Emphasis added.) Following a nearly 20-minute recess, Curry

stated: “I’m going to take the plea bargain”.

The court then turned to the two indictments for which Curry

had not been arraigned: 8225 (five counts of possession), and 8226

(sale of cocaine). Walls indicated that he had not been retained

to represent Curry on those charges.

[COURT]: But you may, if you wish, represent him for the purpose of entering a plea. Or do you wish the indictments to be read?

...

[Curry and Walls conferred]

[WALLS]: ... [I]f Mr. Curry is read these indictments and he understands the charges in them and he pleads guilty to these, I have no problem standing with him to do that. But I just want the record to be clear that I have not investigated these and I don’t know the facts of these and he understands that.

But because they are charges that will be pending, left alone out there, that have the

8 potential effect of doing the same thing that all these other charges do, and even greater, it would be my recommendation, if he’s guilty of them, to accept that offer and to allow the D.A. to include these along with the other charges.

[COURT]: It would certainly be in his best interest to have [them] included....

(Emphasis added.) At Walls’ request, the DA then read indictment

8225 to Curry.

Curry conferred with Walls. Thereafter, on the record, Walls

explained Curry’s contention: in 8225, the drugs which counts I,

II, III, and V alleged Curry possessed — meperidine, hydrocodone,

oxycodone, and butalbital (count IV, as the court noted, charged

possession of cocaine) — involved prescription medications. Walls

stated he did not know how to counsel Curry on this defense because

he had not investigated the factual bases for the charges. The

court took a brief recess while the DA checked into the

allegations.

The record does not reflect the outcome of the DA’s inquiry;

but, it does show that, after the recess and after further

conferring with Walls, Curry pled guilty to all five counts of

indictment 8225 and, after it was read by the DA, to the single

count in indictment 8226. Curry stated: he understood the charges

in all seven indictments (arraigned and unarraigned) and had

committed all of the crimes charged in those indictments.

9 After the DA made his sentencing recommendation, the court

informed Curry of the maximum sentence, and Curry affirmed that he

understood he could receive a sentence of 386 years, part of which

could be without parole if he were reindicted and sentenced as a

habitual offender. The judge explained to Curry the rights he

waived by entering the plea, and Curry affirmatively stated that he

waived them. Furthermore, Curry expressed his satisfaction with

the services of his attorney, and stated: Walls had not threatened

him in any way; and Walls had properly represented him during all

stages of the case.

The court sentenced Curry to six terms of 60 years (for 8030,

8064, 8065, 8066, 8089, and 8226), four terms of six years (for

counts I to IV of 8225), and one term of two years (for count V of

8225), with all sentences to run concurrently with each other and

consecutively with an earlier conviction and sentence, which he was

then serving. The court also ordered him, inter alia, to pay a

fine of $25,000 within one year of his release from custody. In

sum, Curry’s sentence for a total of 11 counts in seven

indictments, with all time concurrent, was for 60 years, following

completion of his earlier sentence; and he was eligible for parole.

Curry’s motion for post-conviction relief was denied, and the

Mississippi Supreme Court affirmed the denial. See Curry v. State,

(Miss. 1996) (unpublished). As noted, Curry’s

10 federal habeas claims were denied as well. Curry v. Anderson, No.

2:96-cv-195-B-B (N.D. Miss. 7 May 1999) (unpublished).

II.

Pursuant to the COA, we first consider whether Curry received

effective assistance of counsel when he pled guilty to indictments

8225 and 8226. Again, because we conclude he did, we do not reach

the contingent second issue, that of voluntariness.

A.

An ineffective assistance of counsel claim presents mixed

questions of law and fact; therefore, we review de novo the

district court’s ruling. See, e.g., Pratt v. Cain,

(5th Cir. 1998). As the magistrate judge determined in his

report and recommendation, the state court did not conduct a merits

review of the claim; therefore, AEDPA’s requirement that federal

habeas courts honor state courts’ reasonable conclusions regarding

the constitutional effectiveness of counsel does not apply. See

Jones v. Jones,

(5th Cir. 1998), cert.

denied,

(1999).

Needless to say, a plea hearing is a critical stage of the

prosecution at which the Constitution guarantees the right to

counsel. See Hamilton v. Alabama,

(1961) (state

proceeding at which plea is entered is critical stage); Reed v.

United States,

(5th Cir. 1965) (“One of the most

precious applications of the Sixth Amendment may well be in

11 affording counsel to advise a defendant concerning whether he

should enter a plea of guilty.”).

The first question is whether Walls was, in fact, appointed

counsel for indictments 8225 and 8226; if so, the second is whether

he, in fact, provided representation on those indictments; and, if

so, the third, and final, question is whether that representation

was effective.

1.

As explained, when the court first mentioned indictments 8225

and 8226, Walls advised he did not represent Curry on them.

However, the court appointed Walls for the purpose of entering a

plea. Walls accepted the appointment. Curry, who felt free to

interject at other points in the hearing, did not object; and,

after entering the plea, Curry affirmed his belief that Walls had

given good advice about entering the plea and had properly

represented him at all stages of the case in which he was involved.

On appeal, Curry objects to Walls’ representation, in that he

(Curry) did not expressly consent to the appointment. However,

Curry impliedly consented to it by repeatedly conferring with Walls

about the plea. Cf. People v. Assenato,

,

(Ill. App. Ct. 1994) (“Where a defendant

does not object to his counsel’s representation, he is deemed to

have acquiesced in that representation.” (emphasis added)).

12 Furthermore, even if Curry had objected to Walls’

representation, whether to appoint a different lawyer would have

been in the court’s discretion. For example, as stated in United

States v. Young,

(5th Cir. 1973):

Although an indigent criminal defendant has a right to be represented by counsel, he does not have a right to ... demand a different appointed lawyer except for good cause. Unless a Sixth Amendment violation is shown, whether to appoint a different lawyer for an indigent criminal defendant who expresses dissatisfaction with his court-appointed counsel is a matter committed to the sound discretion of the district court.

(emphasis added; citation omitted).

It does not appear that Curry was indigent. In any event, as

stated, he did not object to Walls’ being appointed for numbers

8225 and 8226. Moreover, “[f]or an attorney to render effective

and competent representation there is no requirement of a

ceremonial court appointment or a formal contract between attorney

and client”. Collins v. Green,

(5th Cir. 1974)

(emphasis added).

2.

“The Constitution’s guarantee of assistance of counsel cannot

be satisfied by mere formal appointment”, Avery v. Alabama,

(1940) (emphasis added); but, Walls’ representation

was more than a mere formality. Cf. United States v. Cronic,

(1984) (“The [Sixth] Amendment requires not merely

13 the provision of counsel to the accused, but ‘Assistance,’ which is

to be ‘for his defen[s]e.’”). The hearing transcript reflects

that, between the time the court appointed Walls to represent Curry

on indictments 8225 and 8226 and Curry took the oath to enter the

guilty plea, Curry conferred with Walls on six separate occasions.

After one such conference, Walls requested a discussion off

the record; when they went back on the record, Walls explained he

had simply wanted to clarify that he had not been retained on those

two indictments and had not investigated them, but would represent

Curry if he was read the indictments and understood the charges.

After another conference between Walls and Curry, Walls

explained to the court that Curry claimed a defense to four of the

five counts in indictment 8225 (each count except possession of

cocaine), in that Curry had a medical prescription; Walls expressed

concern that he did not know how to advise Curry on this defense.

This resulted in a brief investigation by the DA, during which the

court was in recess. As soon as the recess ended, Curry agreed to

plead guilty to all five counts. What the investigation revealed

is not evident in the record; but, whatever occurred apparently

satisfied Walls’ concern that he did not know how to advise Curry,

persuaded Curry to make the plea, and sufficed to allay the judge’s

concerns that prompted him to ask the DA to inquire further into

the defense.

14 Walls did not formally investigate the charges; but, by

repeatedly conferring with Curry, he had the opportunity to learn

about the charges and factual background. Cf. Avery,

(“[T]he denial of opportunity for appointed counsel to confer,

to consult with the accused and to prepare his defense, could

convert the appointment of counsel into a sham and nothing more

than a formal compliance with the Constitution’s requirement that

an accused be given assistance of counsel.” (footnote omitted)).

Walls worked on Curry’s behalf, insisting the indictments be read

to Curry and ensuring that the defense Curry suggested was

addressed. Therefore, as appointed counsel, Walls did actively

represent Curry.

3.

Because Walls was appointed counsel and acted on Curry’s

behalf, this case does not fall within Cronic’s framework. Cronic,

(considering cases in which ineffectiveness of

counsel can be presumed). Even though Curry did not explicitly

accept Walls’ appointment, and merely did so implicitly by not so

objecting, he cannot assert “the complete denial of counsel ... at

a critical stage of his trial”.

. Nor can he maintain

“counsel entirely fail[ed] to subject the prosecution’s case to

meaningful adversarial testing”, id.; Walls prompted an inquiry

into the defense that Curry obtained certain drugs through medical

prescriptions.

15 Therefore, we turn to Strickland v. United States, inquiring

whether counsel’s performance was deficient and, if so, whether

that deficient performance prejudiced the defense. See

(1984); see also Hill v. Lockhart,

(1985)

(applying two-prong Strickland test to challenge to guilty plea).

In the context of a guilty plea, “[p]rejudice occurs if there

is a reasonable probability that, but for counsel’s errors,

[defendant] would not have pleaded guilty and would have insisted

on going to trial”. United States v. Smith,

(5th

Cir. 1988) (emphasis added; internal quotation marks omitted); see

Hill,

.

In many guilty plea cases, the “prejudice” inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error “prejudiced” the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.

Curry maintains Walls’ performance was deficient because, if

Walls had investigated: he would have found Curry was innocent, in

that the drugs had been prescribed for him; it is doubtful he would

16 have encouraged Curry then to enter a plea. However, even if Walls

had concluded Curry was probably innocent, he still may have

counseled him to plead guilty, rather than risk the dire

consequences of a trial-conviction. If Curry had chosen not to

plead guilty to indictments 8225 and 8226, Curry could have been

tried for the six counts as a subsequent offender, and possibly as

a habitual offender, based on Curry’s previous pleas and sentences

on the five indictments for the sale of cocaine; he then would have

faced a possible additional sentence of up to 86 years without

parole.4

Clearly, Curry was not prejudiced by Walls’ representation on

the two unarraigned counts. Walls had successfully negotiated a

plea encompassing the five indictments on which Curry had been

arraigned. Then, at no additional penalty to Curry, the charges in

4 At the plea hearing, Curry affirmed he had committed the charges and he did not claim innocence:

[COURT]: Do you understand that I will not accept your plea of guilty if you claim that you are innocent?

[CURRY]: Yes, sir.

[COURT]: ... [D]o you understand that by pleading guilty you’re admitting that you did in fact commit the crimes stated in the indictments?

[CURRY]: Yes, sir.

(Emphasis added.)

17 the two unarraigned indictments were brought into the plea. Cf.

Strickland,

(“An error by counsel, even if

professionally unreasonable, does not warrant setting aside the

judgment of a criminal proceeding if the error had no effect on the

judgment.”(emphasis added)). Even if Curry had gone to trial on

indictments 8225 and 8226 and had not been convicted, he still

would have faced the sentence that resulted from pleading guilty on

the charges in the other indictments. Therefore, going to trial

could not have decreased his sentence but would have simply risked

lengthy imprisonment (for the rest of his life; he was 41 at

sentencing) without parole.

Because Curry has not shown prejudice, we need not consider

deficient performance vel non. But, in the alternative, Curry

fails on that prong as well; restated, he has not shown Walls’

performance was deficient. The adequacy of Walls’ efforts “is

illuminated by the absence of any indication ... that [Walls] could

have done more had additional time [for investigation] been

granted”. Avery,

; cf. Strickland,

(“[A] particular decision not to investigate must be directly

assessed for reasonableness in all the circumstances, applying a

heavy measure of deference to counsel’s judgments.” (emphasis

added)). There is no indication that Walls would have uncovered

evidence in addition to that which Curry could have brought to his

attention in their various conferences during the plea hearing.

18 His conduct did not fall “below an objective standard of

reasonableness” or outside “the range of competence demanded of

attorneys in criminal cases”. Strickland,

.

Accordingly, Curry was represented by counsel in his pleas to

indictments 8225 and 8226, and his counsel rendered effective

assistance by having these two additional indictments encompassed

in the plea agreement with the original five on which he had been

retained to represent Curry.

B.

As stated supra, because we conclude that Curry was

represented by counsel in pleading guilty to the charges in

indictments 8225 and 8226, we do not reach whether his pleas were

voluntary.

III.

For the foregoing reasons, the denial of habeas relief is

AFFIRMED.

19