                   IN THE UNITED STATES COURT OF APPEALS

                               FOR THE FIFTH CIRCUIT



                                      No. 00-10538



      ROBERT EDWARD BRATTAIN,

                                                               Petitioner-Appellant,

                                          versus

      JANIE COCKRELL, DIRECTOR, TEXAS
      DEPARTMENT OF CRIMINAL JUSTICE,
      INSTITUTIONAL DIVISION,

                                                               Respondent-Appellee.


                  Appeal from the United States District Court for
                          the Northern District of Texas
                          (USDC No. 3:97-CV-1695-D)
          _______________________________________________________
                               November 27, 2001

Before REAVLEY, HIGGINBOTHAM and PARKER, Circuit Judges.


REAVLEY, Circuit Judge:*

      Petitioner Brattain appeals dismissal of his habeas petition based on his failure to

satisfy the in-custody requirement of 28 U.S.C. § 2254. We hold that Brattain is in


      *
        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should not be published and is not precedent except under the limited circumstances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.
custody for habeas purposes, but conclude that he has failed to demonstrate a substantial

showing of a denial of a constitutional right and therefore deny his request for a certificate

of appealability (COA) on the merits of his petition and affirm.



Background



       This case involves two convictions. Brattain’s first conviction was for aggravated

assault in 1991. He was sentenced to ten years, and released on parole in 1994.

       Brattain pleaded guilty to the second offense, a misdemeanor, in 1996. He was

sentenced to a year for this offense. Because of this incident, Brattain’s parole was

revoked and he was reincarcerated on the 1991 offense. It is in dispute whether

Brattain’s parole was revoked solely because of the 1996 conviction or because the

conduct he was accused of violated the terms of his parole independent of the conviction.

       Although Brattain pleaded guilty to the 1996 conviction, he intended to appeal it.

Despite this fact, no notice of appeal was filed. Before entering his guilty plea, Brattain,

who was represented at the time, contested the introduction of certain evidence that led to

the conviction. The evidence was admitted. Brattain contends that his attorney at the

time told him he would appeal the denial of a motion to suppress the evidence after the

guilty plea. Brattain contends that his attorney failed to appeal the conviction and did not

tell Brattain of this decision. After the deadline to file a notice of appeal had passed,



                                              2
Brattain filed a pro se motion for extension of time, but it was denied.

       Brattain then contested the 1996 conviction through state habeas. In the state

habeas petition, Brattain argued that his counsel had been ineffective and that his plea

was involuntarily induced by his reliance on his attorney’s promise to appeal the

evidentiary issue. The state district court held against Brattain on the merits, crediting the

testimony of Brattain’s attorney over Brattain’s and concluding that representation had

been constitutionally sufficient.

       In the meantime, two things happened: Brattain filed the federal habeas petition at

issue here and he finished serving his sentence for the 1996 conviction. Eventually, a

magistrate judge concluded that Brattain’s petition should be dismissed for lack of

jurisdiction because Brattain was not in custody when he filed his federal habeas petition.

The magistrate also conducted an evidentiary hearing into the merits of the petition and

alternatively concluded that the petition be denied on the merits. The district court

adopted the magistrate’s report and issued an order dismissing the petition. The district

court denied a COA. Brattain appealed the denial of the COA. By order dated October

5, 2000, this circuit issued a COA holding that Brattain had demonstrated reasonable

jurists could debate whether the district court erred in determining that he did not meet

the in-custody requirement. Despite the fact that the district court adopted the

magistrate’s alternative finding that Brattain’s claims failed on their merits in its order of

April 24, 2000, the COA concluded that the district court dismissed “solely on the



                                               3
grounds of lack of jurisdiction and did not reach the merits of his constitutional

arguments.” Accordingly, the COA was granted only as to the “in-custody” issue.



Was Brattain in Custody?



       A recent Supreme Court decision, Lackawanna County Dist. Attorney v. Coss,1

which was decided after the district court’s order, addresses some of the issues in this

case. In Lackawanna, the defendant Coss was convicted of Pennsylvania state crimes in

1986.2 He served his time and was later convicted of another state crime. In calculating

the sentence on the second crime, the court considered, but ultimately did not change its

sentence because of, Coss’s prior convictions.3 Coss filed for habeas relief challenging

the earlier, 1986 convictions, even though he was no longer incarcerated because of them.

The Court concluded that although Coss was not technically in custody for the 1986

convictions, he was in custody for the later convictions, and that he therefore satisfied the

in-custody requirement of § 2254.4 Furthermore, the Court noted that although Coss’s

petition nominally attacked the 1986 convictions, it should be construed as attacking the



       1
           121 S. Ct. 1567 (2001).
       2
           Id. at 1570-71.
       3
           See id. at 1571.
       4
           See id. at 1573.

                                              4
later conviction, and that therefore Coss satisfied the in-custody requirement.5 In

allowing Coss to avoid the in-custody requirement by showing that the conviction he was

challenging had adversely affected the sentence that he was actually serving under

another conviction, Lackawanna accorded with prior decisions of this and other circuits.6

       Lackawanna went on, however, to describe two additional requirements for

petitions like Coss’s. First, the Court noted that where a petition challenges a conviction

that has affected the sentence for which the petitioner is in custody, the petitioner cannot

challenge the first conviction if it “is no longer open to direct or collateral attack in its

own right because the defendant failed to pursue those remedies while they were

available (or because the defendant did so unsuccessfully).”7 Second, the Court noted

that in cases such as Coss’s, the petitioner must show that the earlier conviction had

“adversely affected” the sentence served for the second conviction8 for a court to hear a


       5
           See id. at 1572-73.
       6
        See, e.g., United States v. Clark, 203 F.3d 358, 364 (5th Cir. 2000),
vacated on other grounds, 121 S. Ct. 1731 (noting that “This Court and other
Courts of Appeals have uniformly [held that] . . . as long as the habeas relief sought
is framed as an attack on a present sentence, as to which the prisoner is still ‘in
custody,’ then the expired conviction used to enhance that sentence may be
challenged,” and counting cases).
       7
         See Lackawanna, 121 S. Ct. at 1574. This rule is subject to two
exceptions: where counsel was not appointed for indigent defendants, and where the
habeas petition in question is, effectively, the first and only forum available for
review of the prior conviction. See id. at 1574-75.
       8
           See id. at 1575-76.

                                                5
challenge to the earlier conviction. The Court described this issue as a “threshold” issue

of fact.9 Because Coss could not make this showing, his petition was dismissed.10

       Under Lackawanna, in order for Brattain to apply his incarceration under the 1991

conviction towards avoiding the in-custody bar to challenging the 1996 conviction, he

must show that his parole was revoked because of the 1996 conviction. This issue is

disputed by the parties. Respondent-Appellee Johnson11 argues that the parole board

might have revoked parole based on independent information involving the criminal

episode for which Brattain was convicted in 1996, and not relied on the conviction at all.

Brattain contends the opposite.

       Our review of the record demonstrates that Brattain has made a reasonable

showing that his 1996 conviction caused the revocation of his parole.12 Accordingly, we

conclude that Brattain was in custody under § 2254.




       9
            See id. at 1575.
       10
            See id. at 1576.
       11
          When Brattain filed his habeas petition, the Director of Texas’s
Department of Criminal Justice, Institutional Division was Gary L. Johnson. After
the briefs on appeal were filed, Johnson was replaced by Janie Cockrell and the
cause was re-styled accordingly. To be consistent with the briefs and prior orders,
we refer to Johnson as the Respondent-Appellee.
       12
         The Findings and Conclusions of Law issued by Brattain’s hearing officer
showed no consideration of evidence that Brattain engaged in conduct that violated
parole conditions except for the indictment and judgment against him.

                                             6
Brattain’s Constitutional Claims



       As noted above, the magistrate’s Report and Recommendation, which was adopted

by the district court, recommended that Brattain’s claims be denied on the merits. In a

prior decision we erroneously concluded that the district court denied Brattain’s petition

solely because he was not in custody, when, in fact, the district court reached the merits

of Brattain’s petition. In his request for a COA, Brattain asked that his constitutional

claims be certified for appeal. Because we did not address this request in our prior order,

we do so now.

       28 U.S.C. § 2253(c)(2) mandates that a COA will not issue unless the petitioner

makes "a substantial showing of the denial of a constitutional right." If the district court

rejects the constitutional claims on the merits, the petitioner "must demonstrate that

reasonable jurists would find the district court's assessment of the constitutional claims

debatable or wrong."13 Furthermore, "the determination of whether a COA should issue

must be made by viewing the petitioner's arguments through the lens of the deferential

scheme laid out in 28 U.S.C. § 2254(d)."14 This means that while we presume factual

determinations made by the state courts to be correct, the petitioner can rebut this




       13
            Slack v. McDaniel, 529 U.S. 473, 484 (2000).
       14
            Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000).

                                              7
presumption by clear and convincing evidence.15 But absent an unreasonable

determination in light of the record, we will defer to the state court's fact findings.16

       Brattain asserts two constitutional claims: that he was denied effective assistance

of counsel and that his guilty plea was involuntarily induced by his reliance on his

attorney’s promise to appeal his guilty plea. Both of these claims turn on Brattain’s

assertion that his lawyer promised him that he would appeal from the 1996 conviction. In

front of the District court, and at the evidentiary hearing conducted by the federal

magistrate, Brattain testified that he only pleaded guilty because before entering the plea,

his attorney, Tim Banner, promised to appeal the conviction without further payment

from Brattain. Brattain testified that soon after he entered his plea, Banner again

promised that he would handle the appeal without further payment, and that because of

this Brattain did not timely file a notice of appeal or request appointed counsel. Brattain

said that only after it was too late did Banner tell him that he had not filed a notice of

appeal and that it would cost Brattain an additional $1500 if he wanted Banner to do so.

Thus, Brattain argues, he lost his right to appeal because of his reliance on Banner.

Brattain further asserts that, because there was a good chance that the evidentiary issue

that was decided against him would be reversed on appeal, he was prejudiced by

Banner’s failure to appeal.



       15
            See Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000).
       16
            See id. at 740.

                                               8
       Banner’s testimony, provided through affidavit in front of the state court and

through his oral testimony at the federal evidentiary hearing, directly contradicts

Brattain’s. Banner testified that in his opinion, appealing the guilty plea would have been

futile because the evidence that was deemed admissible was not central to the case

against Brattain. Banner also testified that he told Brattain both that he thought an appeal

was futile, and that he would not file a notice of appeal unless Brattain paid him more

money. Banner testified that he told Brattain this before the deadline to file a notice of

appeal had passed.

       Both the state and federal courts below credited Banner’s testimony over

Brattain’s. The magistrate found that, while there was still time to file a notice of appeal,

Banner informed Brattain that he would not filed a notice of appeal unless he were paid,

and that Brattain failed to inform Banner or the judge that he was indigent and therefore

required court-appointed counsel. Because this finding is supported by Banner’s

testimony, it is reasonable. And because Brattain’s constitutional claims turn on his

assertion that Banner misled him, we must conclude that, under the appropriate standard

of review, Brattain has failed to demonstrate that reasonable jurists would find the district

court's assessment of the constitutional claims debatable or wrong. Accordingly, we deny

Brattain a COA on the merits of his constitutional claims and affirm the judgment of the

district court denying habeas relief.

       Application DENIED; Judgment AFFIRMED.



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