     Case: 15-30222      Document: 00514024334         Page: 1    Date Filed: 06/07/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                      No. 15-30222                             FILED
                                                                            June 7, 2017

EDWARD RAY TROTTER,                                                       Lyle W. Cayce
                                                                               Clerk
              Petitioner - Appellant,

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

              Respondent - Appellee.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:12-CV-764


Before STEWART, Chief Judge, and JOLLY and WIENER, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellant Edward Ray Trotter, proceeding pro se, appeals the
denial of his habeas petition under 28 U.S.C. § 2254. We affirm.
                                         I.
                               FACTS AND PROCEEDINGS
       Trotter was charged in state court with two counts of distribution of a
controlled dangerous substance (cocaine) and one count of possession of a



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                         No. 15-30222
controlled dangerous substance (cocaine). A jury convicted Trotter as charged
in 2001. 1 The trial court determined that he was a third-felony habitual
offender and sentenced him to life imprisonment without benefits. 2
       Trotter’s conviction and sentence were set aside in 2010 on federal
habeas review for a violation of Batson v. Kentucky. 3 The district court
ordered the state to release Trotter or bring a new trial within 120 days of
the judgment. 4
       Soon after his conviction and sentence were vacated, the government
offered Trotter, who was charged as a fourth-felony habitual offender, a plea
agreement whereby he would plead guilty as a second-felony offender to one
count of possession of a Schedule II controlled dangerous substance (cocaine)
“over 28 grams less than 200 grams.” In exchange, the government offered him
a sentencing recommendation of “30 years hard labor, credit for time served,
no   further       enhancements        pursuant     to   the    multiple     offender     bill,
and . . . dismiss[al of] all other pending charges.” Trotter accepted that offer.
       Before accepting Trotter’s guilty plea, the court informed him that, on
the possession count, he faced “a minimum of five years without benefit of
probation, parole, or suspension of sentence, and up to 30 years hard labor, as
well as . . . a minimum fine of $50,000 and a maximum fine of $150,000.” The
court also admonished Trotter that, by pleading guilty as a second-felony
offender under La. Rev. Stat. § 15:529.1, he would face 15 to 60 years’
imprisonment. Trotter then pleaded guilty to the possession count as a second-



       1State v. Trotter, 852 So. 2d 1247, 1249 (La. App. 2 Cir. 2003), writ denied, 867 So. 2d
689 (La. 2004).
       2   Id. at 1250.
       3476 U.S. 79 (1986); see Trotter v. Warden La. State Penitentiary, 718 F. Supp. 2d 746
(W.D. La. 2010).
       4   Trotter, 718 F. Supp. 2d at 747.
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                                  No. 15-30222
felony offender. The court sentenced Trotter “to 30 years hard labor, credit for
time served. Said 30 years [were] without benefit of probation, parole, or
suspension of sentence.” Trotter confirmed that he understood the sentence.
      After the court accepted Trotter’s guilty plea and imposed his sentence,
the following exchange took place:
      The court: It’s my understanding, under the habitual offender
      law, it’s 30 years is [sic] without probation or suspension; however,
      you are eligible for parol[e] at some point in time under the
      provisions of that . . . . Take care, Mr. Trotter.
      Trotter: You’ll never see me again.
      The court: How long you been in, Mr. Trotter?
      Trotter: Eleven years, sir.
      The court: You know, I don’t know on the multi-bill, but they are
      eligible for probation unless it’s a life sentence, because then you’re
      not eligible for probation if it’s life. But under the statute, you
      know, it could be suspended or probated, but under the statute he’s
      eligible for parol[e]. So you could be—heck, if you already spent
      eleven years, I mean, it may not be that much longer.
      Prosecutor: It will be up to [the Louisiana Department of Public
      Safety and Corrections (“DOC”)].
      The court: Yeah, DOC will calculate it, but under the life-
      provision, there’s no probation, parol[e], or suspension. That’s the
      difference; you see?
      Trotter: Yes, sir.
      The court: It’s the parol[e] aspect of it.
      ...
      The court: So yeah, he still have been—under the old statute,
      basically saying no parol[e]. Well this is probably—you know, look,
      I don’t know what DOC will do, but I—and I don’t know what the
      board would do coming up, but under the statute, you’re eligible
      for parol[e], so you never know.
      Trotter: Yes, sir. Thank you, your honor.
      The court: All right. Yes, sir. Take care, Mr. Trotter.


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The DOC subsequently determined that, because of his four felony convictions,
Trotter was not eligible for parole.
      Trotter filed an application for post-conviction relief in Louisiana state
court. He contended that (1) his guilty plea was not made knowingly or
intelligently because he was induced to plead guilty by the unfulfilled promise
that he would be eligible for parole, and (2) his attorney provided ineffective
assistance of counsel by persuading him to plead guilty on the basis that he
would be eligible for parole. The state courts denied relief, and Trotter filed a
petition under 28 U.S.C. § 2254 for federal habeas review of those claims. The
federal district court denied Trotter’s petition and denied a certificate of
appealability. Trotter timely appealed, and this court granted a certificate
of appealability.
                                               II.
                                   STANDARD OF REVIEW
      “In a habeas appeal, we review the district court’s findings of fact for
clear error and review its conclusions of law de novo, applying the same
standard of review to the state court’s decision as the district court.” 5 We may
grant a state prisoner’s application for a writ of habeas corpus only if his
incarceration was the product of a state court adjudication that “(1) resulted in
a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 6 “This is a difficult to meet and highly deferential standard for



      5   Lefevre v. Cain, 586 F.3d 349, 352 (5th Cir. 2009).
      6 28 U.S.C. § 2254(d); Richardson v. Quarterman, 537 F.3d 466, 472 (5th Cir. 2008).
We review questions of law and mixed questions of law and fact under § 2254(d)(1) and
questions of fact under § 2254(d)(2). Richardson, 537 F.3d at 472.
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evaluating state-court rulings, which demands that state-court decisions be
given the benefit of the doubt.” 7
                                               III.
                                           ANALYSIS
       Trotter maintains that he is entitled to relief because (1) his guilty plea
was not made knowingly or intelligently because it was based on the unfulfilled
promise that he was eligible for parole, and (2) his attorney provided ineffective
assistance of counsel by persuading him to plead guilty on the basis that he
would be eligible for parole.
   A. Voluntariness of His Guilty Plea
       We uphold a guilty plea on habeas review when it is entered knowingly,
voluntarily, and intelligently—that is, when the defendant understands the
charge and its consequences. 8 “A guilty plea is invalid if the defendant does not
understand the nature of the constitutional protection that he is waiving or if
he has such an incomplete understanding of the charges against him that his
plea cannot stand as an admission of guilt.” 9 A defendant understands the
consequences of his guilty plea with respect to sentencing if he knows “the
maximum prison term and fine for the offense charged.” 10 The court is not
required to inform a defendant of his parole eligibility. 11 Nevertheless, “where




       Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted) (internal quotation
       7

marks omitted).
       8Montoya v. Johnson, 226 F.3d 399, 405 (5th Cir. 2000); see Burdick v. Quarterman,
504 F.3d 545, 547 (5th Cir. 2007); James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995); Boykin v.
Alabama, 395 U.S. 238, 244 (1969).
       9   James, 56 F.3d at 666.
       10 Burdick, 504 F.3d at 547 (quoting United States v. Rivera, 898 F.2d 442, 447 (5th
Cir. 1990)); Barbee v. Ruth, 678 F.2d 634, 635 (5th Cir. 1982) (“The consequences of a guilty
plea, with respect to sentencing, mean only that the defendant must know the maximum
prison term and fine for the offense charged.”).
       11   Barbee, 678 F.2d at 635–36; LeBlanc v. Henderson, 478 F.2d 481, 483 (5th Cir. 1973).
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a plea ‘rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration,
such promise must be fulfilled.’” 12 “[W]hen a defendant pleads guilty on the
basis of a promise by his defense attorney or the prosecutor, whether or not
such promise is fulfillable, breach of that promise taints the voluntariness of
his plea.” 13
       Nothing in the record reflects that the terms of Trotter’s plea agreement
included parole eligibility. As explained by the prosecutor to the state trial
court before Trotter entered his plea, the agreement entailed Trotter’s pleading
guilty to one count of possession of crack cocaine, “over 28 grams less than 200
grams,” in exchange for (1) the government’s allowing Trotter to plead as a
second-felony habitual offender rather than a fourth-felony habitual offender,
(2) a “sentence recommendation of 30 years hard labor, credit for time served,”
(3) no further enhancements pursuant to the multiple offender bill, and
(4) dismissal of all other pending charges.
       The court thoroughly informed Trotter of his rights before it accepted his
plea, including that he was waiving his right to a trial by jury, his right to
confront the witnesses against him, and his right against self-incrimination.
The court also admonished him of the minimum and maximum sentence and
fine he faced, asked whether his plea was voluntary, and gave him an
opportunity to ask his attorney questions regarding the plea. The court then
accepted his plea and sentenced him to “30 years hard labor, credit for time
served.” The court explained that “[s]aid 30 years are without benefit of
probation, parole, or suspension of sentence.” The court then asked (1) whether




       12   Montoya, 226 F.3d at 405 (quoting Santobello v. New York, 404 U.S. 257, 262 (1971)).
       13   Id. (quoting McKenzie v. Wainwright, 632 F.2d 649, 651 (5th Cir. 1980)).
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Trotter understood his sentence, to which he said yes, and (2) whether he had
any questions about his sentence, to which he said no.
       Only after it accepted Trotter’s guilty plea and imposed his sentence
“without the benefit of probation [or] parole” did the court speculate as to
whether Trotter might be eligible for parole “at some point.” In response, the
prosecutor correctly noted that whether Trotter will be eligible for parole is “up
to DOC,” and the court agreed. 14
       Trotter has failed to demonstrate that the district court erred in
concluding that his plea agreement was not breached or that his plea was
knowing and voluntary, as Trotter has failed to show that his plea agreement
contained any provision regarding parole eligibility or that his plea was made
unknowingly or involuntarily. His first assessment of error fails.
   B. Ineffective Assistance of Counsel
       To prevail on a claim of ineffective assistance of counsel, a petitioner
must establish that (1) the attorney’s representation fell below an objective
standard of reasonableness, and (2) the deficient representation prejudiced the
petitioner. 15 “In evaluating trial counsels’ performance for deficiency, [there
exists] a ‘strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.’” 16 The petitioner must demonstrate that
“the errors were so egregious as to deprive the defendant of the ‘counsel’



       14 Louisiana law does not preclude parole eligibility for a defendant convicted of
possession of 28 grams or more, but less than 200 grams, of cocaine. See LA. REV. STAT.
§ 40:967(F)(1)(a). Although as a second-felony offender, Trotter might have been eligible for
parole, see LA. REV. STAT. §§ 15:529.1(A)(1), 15:574.4, the DOC determines parole eligibility
and, when determining a prisoner’s eligibility, is not bound by a court’s determination or
adjudication of the prisoner’s habitual offender status under La. Rev. Stat. 15:529.1. See
Townley v. Dep’t of Pub. Safety & Corr., 681 So. 2d 951, 953 (La. 1996).
       15   Strickland v. Washington, 466 U.S. 668, 687 (1984).
       16Charles v. Stephens, 736 F.3d 380, 389 (5th Cir. 2013) (per curiam) (quoting
Strickland, 466 U.S. at 689).
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guaranteed by the Sixth Amendment.” 17 To establish prejudice, the
petitioner must demonstrate that there is a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different.” 18
      Trotter has failed to support his claim that his attorney informed him
that he would be eligible for parole, let alone that his attorney’s representation
fell below an objective standard of reasonableness. As noted above, the record
reflects that, prior to accepting Trotter’s plea and sentencing him, the court
made clear that he would not be eligible for parole. Trotter has not shown
deficient representation or prejudice. His second assessment of error fails.
                                       IV.
                                   CONCLUSION
      The district court’s denial of Trotter’s petition for writ of habeas corpus
is AFFIRMED.




      17   Id.
      18   Id. at 388.
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