     Case: 08-60692     Document: 00511215689          Page: 1    Date Filed: 08/26/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           August 26, 2010

                                       No. 08-60692                         Lyle W. Cayce
                                                                                 Clerk

CLARA BROWN

                                                   Petitioner-Appellant

v.

LAWRENCE KELLY; Superintendent, Mississippi State Penitentiary

                                                   Respondent-Appellee




               Appeal from the United States District Court for the
                Southern District of Mississippi (Jackson Division)
                            USDC No. 3:05-cv-00068


Before HIGGINBOTHAM, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Clara Brown appeals from the district court’s denial of her habeas corpus
petition. Brown seeks to set aside her guilty plea for murder, claiming that her
plea was involuntary and was only entered due to ineffective assistance of
counsel. In the proceedings below, a magistrate heard testimony from Brown
and found credible her claim that she did not understand the charges against
her. Accordingly, he recommended granting habeas relief. Without rehearing


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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this testimony, the district judge rejected the magistrate’s recommendation and
denied habeas relief. In some circumstances, a district judge’s failure to rehear
testimony like this could be reversible error, since a district judge cannot reject
a magistrate’s credibility determinations “affecting a person’s constitutional
rights” without rehearing the testimony heard by a magistrate.            Louis v.
Blackburn, 630 F.2d 1105, 1109 n.3 (5th Cir. 1980). Nevertheless, since the lack
of evidence corroborating Brown’s claims means they must fail under AEDPA,
we affirm the district court’s denial of habeas relief.
                                          I.
      On April 11, 2002, Brown pled guilty in Mississippi state court to the
murder of her boyfriend, Charlie Tate. During her plea hearing, Brown was
represented by attorney Paul Luckett, who had previously provided her with a
“know-your-rights” form, indicating that she had been charged with murder and
that the maximum sentence for murder was life in prison. At the hearing, the
state court judge engaged in a colloquy with Brown to make sure she understood
her rights and the nature of the crime for which she had been charged. During
the colloquy, Brown confirmed that Luckett had gone over her indictment with
her, that Luckett had explained the elements of her crime, and that she was
satisfied with his representation. Brown also confirmed that she understood
that the “maximum” sentence for murder is life and that “[t]here is no minimum
sentence.” Based on these representations and others, the state court judge
found that “Clara Brown ha[d] knowingly, willingly, freely, voluntarily and
intelligently entered her guilty plea.”
      Nevertheless, at times during the plea colloquy, Brown exhibited
confusion, at one point suggesting that she had not always been represented by
counsel, until she retracted this statement. Brown also indicated that she was
on medication during the hearing for her “nerves” and had taken a sleeping pill,
but that the only way she could “think clearly” was by taking this medication.

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Approximately a week after her plea hearing, she was formally sentenced to life
in prison.
      Subsequently, Brown sought post-conviction relief in Mississippi state
court, claiming ineffective assistance of counsel and asserting that her plea was
involuntary because she had believed herself to be pleading guilty to
manslaughter. She alleged that her attorney Luckett had told her she had been
charged with manslaughter, for which she would receive a twenty-year sentence
rather than a life sentence. The state trial court rejected her petition for relief;
the Mississippi Court of Appeals subsequently affirmed the denial of relief in
mid-2004. See Brown v. Mississippi, 876 So.2d 422 (Miss. Ct. App. 2004).
Specifically, the Mississippi Court of Appeals concluded that Brown had
“produced no evidence to support her claim that her counsel failed to advise her
of the maximum penalty she faced,” noting that she herself had “acknowledged
[during her plea hearing] that her counsel [had] explained the indictment and
elements of the crime to her.” Id. at 425.
      Having exhausted her state remedies, Brown then sought habeas relief in
federal court under 28 U.S.C. § 2254. The district judge assigned Brown’s
habeas petition to a magistrate, who held an evidentiary hearing in September
2007 to hear live testimony from Brown and Luckett. At the hearing, Brown
testified that Luckett had told her she was being charged with manslaughter.
Luckett denied this, claiming instead that “Ms. Brown told me that she wanted
to plead guilty [to the murder charge because] she was tired and wanted to get
it over.” After hearing both witnesses, the magistrate concluded in January
2008 that Brown had indeed believed herself to be pleading guilty to
manslaughter, that her plea to murder was involuntary, and that she was
therefore entitled to habeas relief.    Specifically, the magistrate found that
Brown’s      “misunderstanding    was   not   the   result     of   any   affirmative
misrepresentation on the part of her attorney. Rather, it was the result of

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Brown’s own confusion and mental limitations coupled with the failure of her
attorney and the trial judge to make certain that she understood.”                        The
magistrate did not explicitly rule on Brown’s ineffective assistance claim.
       The State objected to the magistrate’s report and recommendation, and in
July 2008, the district judge rejected the magistrate’s recommendation,1
concluding that Brown’s involuntary plea and ineffective assistance claims were
both meritless. The district judge found that Brown’s testimony before the
magistrate was rebutted by the transcript of her plea hearing, her signature of
the know-your-rights form, and Luckett’s testimony. Given these considerations,
the district judge found that Brown had chosen to plea guilty voluntarily to put
the matter behind her, after having “committed a public murder before
witnesses who knew her.” The district judge also concluded that Luckett had
committed no error at all in his representation of Brown. Notably, the district
judge did not rehear any of the testimony heard by the magistrate, instead
relying on the transcript of the proceedings before the magistrate. The district
court refused Brown’s request for a certificate of appealability (“COA”), but we
granted a COA to allow Brown to challenge the district court’s denial of her
involuntary plea and ineffective assistance claims.2
                                              II.
       “The validity of a guilty plea is reviewed de novo,” United States v.
Washington, 480 F.3d 309 (5th Cir. 2007), but the validity of a plea may also


       1
        In her habeas petition, Brown also made an ineffective assistance claim based on
Luckett’s failure to investigate a theory of self-defense. The magistrate found that this claim
was procedurally barred because it had not been raised in state court. The district judge
accepted the magistrate’s recommendation as to this claim, and Brown has not continued to
pursue this claim on appeal.
       2
        On this appeal, Brown has also challenged the state court’s decision to hold her in
contempt of court. When we granted a COA to Brown, we stated that “[h]er claims regarding
her contempt hearing are raised for the first time on appeal and will not be considered.” As
such, we do not address them.

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turn on the resolution of questions of fact. See Marshall v. Lonberger, 459 U.S.
422, 431-32 (1983).    Similarly, an “ineffective assistance of counsel claim
presents a mixed question of law and fact.” Ward v. Dretke, 420 F.3d 479, 486
(5th Cir. 2005). When examining such mixed questions, this Court employs “a
de novo standard by independently applying the law to the facts found by the
district court, as long as the district court’s factual determinations are not
clearly erroneous.” Ramirez v. Dretke, 396 F.3d 646, 649 (5th Cir. 2005).
      Brown’s claims are governed by AEDPA. Under AEDPA, a federal court
may not grant habeas relief after an adjudication on the merits in a state court
proceeding unless the adjudication of the claim (i) “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 (ii)
“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.” 28 U.S.C.
§ 2254(d) (2006). Additionally, under 28 U.S.C. § 2254(e)(1), a state court’s
factual determinations are “presumed to be correct,” and the habeas petitioner
has “the burden of rebutting [this] presumption of correctness by clear and
convincing evidence.” Thus, for Brown to overcome the state court’s conclusion
that her counsel informed her of the nature of the charges against her and the
sentence she faced, she “must demonstrate, by clear and convincing evidence,
that the state court erred.” Burton v. Terrell, 576 F.3d 268, 273 (5th Cir. 2009).
                                       III.
      Initially, we address the failure of the district judge to rehear the
testimony from Brown and Luckett that led the magistrate to conclude that
Brown’s petition for habeas relief should be granted. In habeas proceedings, a
district judge generally may not reject a magistrate’s determination of a
witness’s credibility without rehearing live testimony. It is true that district
judges have almost unlimited authority to “accept, reject, or modify, in whole or

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in part, the findings or recommendations made by” a magistrate. 28 U.S.C. §
636(b)(1) (2006); see also Fed. R. Civ. P. 72(b). Nevertheless, when district
judges consider “credibility questions involved in the determination of critical
fact issues affecting a person’s constitutional rights,” “the fact finder must
observe the witness . . . [i]n order to adequately determine the credibility of [the]
witness as to such constitutional issues.” Blackburn, 630 F.2d at 1109 n.3, 1110.
“This may be accomplished either by the district judge accepting the [credibility]
determination of the magistrate after reading the record, or by rejecting the
magistrate’s decision and coming to an independent decision after hearing the
testimony and viewing the witnesses.” Id. at 1110.
      In this case, it is clear that the magistrate recommended granting habeas
relief because he found Brown’s testimony that she did not understand that she
was pleading guilty to murder to be credible. It is also clear that the district
judge denied habeas relief at least in part because he did not find Brown’s
testimony to be credible.     For example, in his opinion, the district judge
explained that Brown’s testimony was implausible when “placed under the
microscope of credibility.” However, the failure of the district judge to rehear
Brown’s testimony does not automatically necessitate a remand to correct this
error. We have previously suggested that when evidence is “sufficiently telling,”
a district judge might possibly reject a magistrate’s recommendation without
rehearing testimony the magistrate found credible. Jordan v. Hargett, 34 F.3d
310, 314 (5th Cir. 1994). As noted above, Brown must demonstrate by “clear and
convincing” evidence that the state court’s conclusion that she was informed of
the nature of the charges against her is incorrect. See 28 U.S.C. § 2254(e)(1).
Consequently, we now assess whether Brown’s testimony is sufficiently clear
and convincing to overcome the state court’s rejection of her claims.
                                        IV.
      We first review Brown’s involuntary plea claim and conclude that the

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district court properly denied habeas relief.       “The longstanding test for
determining the validity of a guilty plea is ‘whether the plea represents a
voluntary and intelligent choice among the alternative courses of action open to
the defendant.’” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina
v. Alford, 400 U.S. 25, 31 (1970)).
      Brown argues that her guilty plea to murder was involuntary because,
based on a variety of factors, she reasonably believed herself to be pleading
guilty to manslaughter. Her primary argument is that she claims Luckett told
her that she had been charged with manslaughter and that she was facing a
twenty-year sentence. She also argues that Luckett’s alleged failure to inform
her of the actual charges against her was not cured by her plea colloquy. First,
she faults the failure of the state court judge to explain the intent necessary to
support a murder conviction. She points us to Henderson v. Morgan, where the
Supreme Court found that a guilty plea to murder was involuntary because the
habeas petitioner had not been “informed that intent to cause the death of his
victim was an element of the offense.” 426 U.S. 637, 638 (1976). Second, she
contends that she was misled during her plea hearing by the state judge’s failure
to explain that a life sentence is the mandatory punishment for murder. See
Miss. Code Ann. § 97-3-21 (2006) (“Every person who shall be convicted of
murder shall be sentenced by the court to imprisonment for life in the State
Penitentiary.”). He instead characterized life as being the “maximum” sentence
for murder, which she claims led her to believe that she could have received a
twenty-year sentence. Finally, she asserts that the medication she was taking
during her plea hearing and her low level of educational attainment made it
difficult to understand the charges against her without detailed explanation.
      Initially, we note that Brown cannot show that her plea was involuntary
merely by pointing to deficiencies in her colloquy with the state judge during her
plea hearing. The Supreme Court has “never held that the judge must himself

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explain the elements of each charge to the defendant on the record.” Bradshaw
v. Stumpf, 545 U.S. 175, 183 (2005). “Rather, the constitutional prerequisites
of a valid plea may be satisfied where the record accurately reflects that the
nature of the charge and the elements of the crime were explained to the
defendant by [her] own, competent counsel.” Id. We also note that there has
been no suggestion that Brown was incompetent to enter a plea. To the extent
that such a claim would have any merit, it has been defaulted, as it was not
raised in the state court proceedings.
      Therefore, the question before us is whether Brown can overcome the state
court’s conclusion that Luckett informed her of the charges against her. She
cannot. Recently, we have twice considered habeas petitions filed by prisoners
who asserted that their attorneys had not informed them of the sentences they
were facing and who therefore argued that their guilty pleas were involuntary.
See Burton, 576 F.3d at 273; Burdick v. Quarterman, 504 F.3d 545, 548 (5th Cir.
2007). In both cases, the habeas petitioners’ claims were uncorroborated, and
other evidence suggested that the petitioners had been informed of their possible
sentence.   Burton, 576 F.3d at 273 (noting that “defense counsel stated at
sentencing that his client faced a maximum penalty of forty years”); Burdick,
504 F.3d at 568 (defense counsel submitted affidavit stating that he explained
sentencing range). In both cases, we found that these uncorroborated claims
were insufficient to disturb the conclusion in state court that the petitioners’
guilty pleas were voluntary. Similarly, in this case, Luckett has denied Brown’s
claims, and her testimony is uncorroborated. Indeed, the record suggests that
Luckett did in fact explain to Brown the charges against her. At the plea
hearing, Brown confirmed that Luckett had explained the elements of her crime,
after the judge had stated that Brown had been charged with murder and made
no mention of manslaughter. In these circumstances, Brown’s testimony alone
is not clear and convincing evidence that Luckett did not explain the charges she

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was facing.
      This conclusion is not disturbed by the magistrate’s determination that
Brown did not understand the charges against her. As explained above, the
magistrate found that Brown’s “misunderstanding was not the result of any
affirmative misrepresentation on the part of her attorney. Rather, it was the
result of Brown’s own confusion and mental limitations coupled with the failure
of her attorney and the trial judge to make certain that she understood.” Even
if this were true, and Brown did not understand the charges against her, this
would not provide sufficient grounds for habeas relief. In the habeas context, we
have previously held that “[a] guilty plea is not rendered involuntary by the
defendant’s mere subjective understanding that [she] would receive a lesser
sentence. . . . [I]f the defendant’s expectation of a lesser sentence did not result
from a promise or guarantee by the court, the prosecutor or defense counsel, the
guilty plea stands.”   Daniel v. Cockrell, 283 F.3d 697, 703 (5th Cir. 2002),
abrogation on other grounds recognized by United States v. Grammas, 376 F.3d
433, 437-38 (5th Cir. 2004). Since Brown has not shown by clear and convincing
evidence that her attorney failed to explain the charges she faced, any subjective
belief she may have had regarding these charges does not alone provide grounds
for habeas relief. Thus, the magistrate erred in recommending that Brown’s
habeas petition be granted, and the district judge correctly refused to grant relief
on this ground.
                                        V.
      We now review Brown’s ineffective assistance of counsel claim, finding
again that habeas relief is not warranted. To set aside a guilty plea based on
ineffective assistance of counsel, Brown must demonstrate that her “‘counsel’s
representation fell below an objective standard of reasonableness’” and that she
was prejudiced by his poor performance, or rather that “there is a reasonable
probability that, but for [her] counsel’s errors, [she] would not have pleaded

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guilty and would have insisted on going to trial.” Hill, 474 U.S. at 57, 59
(quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). Brown argues
that Luckett’s representation was ineffective because he advised her that she
was facing manslaughter charges, not murder charges. She also alleges that
Luckett’s representation was ineffective because he failed to recommend that
Brown proceed to trial, despite the fact that a guilty plea and jury conviction
would have resulted in the same life sentence. Since Brown had nothing to lose
by going to trial, she claims that Luckett’s representation was ineffective.
      As already explained, Brown has not established by clear and convincing
evidence that Luckett misrepresented the charges she was facing. As such, this
ground for finding ineffective assistance must necessarily fail.              Similarly,
Brown’s uncorroborated testimony cannot establish that Luckett failed to advise
her of the consequences of a guilty plea and her option of going to trial. To the
extent that Brown’s claim is that Luckett’s representation was deficient because
he did not stop her from pleading guilty, this argument must also fail. The
decision to plead guilty was Brown’s, not Luckett’s, see Florida v. Nixon, 543
U.S. 175, 187 (2004), and the Supreme Court has rejected the claim that counsel
is ineffective simply because he or she did not take an action when “there was
nothing to lose by pursuing it.” Knowles v. Mirzayance, 129 S. Ct. 1411, 1418
(2009). Given these considerations, we conclude that habeas relief should not be
granted on Brown’s ineffective assistance of counsel claim.3
                                           VI.
      Thus, we find that the district court correctly denied Brown’s petition for
habeas relief. In these circumstances, the district judge’s failure to rehear



      3
          We note that Brown has not argued that Luckett was ineffective for failing to
investigate her competency to plead guilty. Cf. United States v. Howard, 381 F.3d 873, 881
(9th Cir. 2004) (suggesting that in some circumstances counsel might be incompetent for
failing to investigate client’s competence to enter plea).

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Brown’s testimony was not error. If the district judge had reheard Brown’s
testimony, found it credible, and granted habeas relief based on the strength of
this testimony, we would have been obligated to reverse this decision, given the
paucity of evidence corroborating Brown’s testimony. Thus, it cannot have been
reversible error for the district judge to fail to rehear her testimony. Although
a witness’s credible testimony may provide sufficient grounds for habeas relief
in some cases,4 this is not one of them. Thus, we AFFIRM the district court’s
denial of Brown’s petition.




       4
         The deference due state courts under AEDPA does not mean that habeas relief may
never be granted on the basis of a federal court’s determination of a witness’s credibility. See
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“A federal court can disagree with a state
court’s credibility determination and, when guided by AEDPA, conclude the decision was
unreasonable or that the factual premise was incorrect by clear and convincing evidence.”).

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