                                    United States Court of Appeals,

                                              Fifth Circuit.

                                              No. 92-2046.

                               John Lee SPINELLI, Petitioner-Appellee,

                                                    v.

   James A. COLLINS, Director Texas Department of Criminal Justice, Institutional Division,
Respondent-Appellant.

                                              June 8, 1993.

Appeals from the United States District Court for the Southern District of Texas

Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

          EMILIO M. GARZA, Circuit Judge:

          James A. Collins, Director, Texas Department of Criminal Justice, Institutional Division,

("Direct or") appeals the district court's judgment granting John Lee Spinelli habeas corpus relief.

Finding that the district court erred in granting Spinelli's petition for writ of habeas corpus, we

reverse.

                                                    I

          Spinelli was convicted of aggravated robbery ("1978 conviction") by a jury in state court, and

sentenced to life imprisonment. Three outstanding indictments were still pending against Spinelli in

state court for aggravated robbery (Cause No. 271111), aggravated kidnapping (Cause No. 271112),

and burglary (Cause No. 251407).1 Subsequently, Will Gray, the attorney who represented Spinelli

on the 1978 aggravated robbery charge, told Spinelli that the State of Texas ("State") expected the

1978 conviction to be reversed on appeal, and that if he pleaded guilty to the aggravated robbery,

kidnapping, and burglary charges, the State would not retry him on the 1978 conviction.2 During plea

negotiations, the prosecutor told Spinelli that the State would recommend maximum sentences of 60

years for the aggravated robbery charge, 60 years for the aggravated kidnapping charge, and 20 years

   1
    The kidnapping and robbery charges arose from the same transaction as the 1978 offense; the
burglary arose out of a separate incident.
   2
       The 1978 conviction was reversed by the Texas Court of Criminal Appeals in 1981.
for the burglary. As a result, Spinelli was told that he would have to plead guilty to terms of

imprisonment of five to 60, five to 60, and two to 20 years, respectively. The prosecutor also agreed

to (1) recommend that the sentences run concurrently with each other, and with Spinelli's sentences

on previous California and federal convictions, and (2) have the Texas Department of Corrections

("TDC") take him to a California penitentiary to serve his terms of imprisonment.3

          Subsequently, in the same court in which he had been tried in 1978, Spinelli pleaded guilty

to the charges of aggravated robbery, aggravated kidnapping, and burglary. The state court's record

includes, for each offense, a judgment and a sentence. The judgments assessed punishment at sixty,

sixty, and twenty years, respectively. However, pursuant to Texas's practice of indeterminate

sentencing,4 the sentences stated that Spinelli would be imprisoned for not less than five years nor

more than sixty, not less than five years nor more than sixty, and not less than two years nor more

than twenty, respectively. Spinelli did not understand Texas's practice of indeterminate sentencing,

and mistakenly believed that the minimum term represented the amount of time before he would be

eligible for parole. Therefore, Spinelli believed that he would be eligible for parole after serving five

years with respect to the aggravated robbery and kidnapping convictions. Actually, Spinelli would

not be eligible for parole until he had served twenty years. Tex.Code Crim.Proc.Ann. art. 42.12 §

15(b) (Vernon 1979). Spinelli did not learn the truth about his parole eligibility until a couple of years

later.


   3
    Several days later, the State informed Spinelli that the TDC could not "take" him to
California. The State told Spinelli that if California exercised its detainer, the State would allow
Spinelli to serve the remainder of his terms of imprisonment in a California penitentiary. Spinelli
agreed to the State's request that the plea agreement be modified to state that if California chose
to exercise its detainer, Texas would allow him to serve his Texas sentences there concurrently.
   4
       Under Texas Rules of Criminal Procedure:

                          If the verdict fixes the punishment at confinement in an institution operated
                 by the Department of Corrections for more than the minimum term, the judge in
                 passing sentence shall pronounce an indeterminate sentence, fixing in such
                 sentence as the minimum the time provided by law as the lowest term in an
                 institution operated by the Department of Corrections and as the maximum the
                 term stated in the verdict.

          Tex.Code Crim.Proc.Ann. art. 42.09 § 1 (Vernon 1979) (repealed Sept. 1, 1981).
        Spinelli filed three applications for writs of habeas corpus in state court, which were denied.

Spinelli then filed a petition for writ of habeas corpus in federal district court, see 28 U.S.C. § 2254

(1988), seeking to withdraw his guilty pleas to the aggravated robbery and kidnapping charges.

Spinelli argued that his guilty pleas were involuntary because he erroneously believed that he would

be eligible for parole after five years based on (1) the prosecutor's statement during plea negotiations

that he would have to plead guilty to terms of five to 60, five to 60, and two to 20 years, and (2) the

sentences he received. The district court found that Spinelli's mistaken belief about his parole

eligibility was not based on any promises by the prosecution, his defense attorney, or the court. In

addition, the district court found that the plea agreement had not been breached. Nevertheless, the

district court found that Spinelli was entitled to habeas relief because he had a mistaken belief as to

his parole eligibility. The Director appeals.

                                                   II

        The Director argues that the district court erred in finding that Spinelli's guilty plea was

involuntary on the ground that Spinelli mistakenly believed that he was entitled to parole in five years.

In a § 2254 case, the district court's findings of fact will be upheld unless they are clearly erroneous.

Duff-Smith v. Collins, 973 F.2d 1175, 1179 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct.

1958, --- L.Ed.2d ---- (1993). Questions of law are reviewed de novo. Id.

         If a defendant's subjective belief was not based on any promises made by the defense

attorney, the prosecut or, or the court, "[t]he law of this Circuit ... holds that the defendant's

subjective belief alone is not sufficient to invalidate a guilty plea." Matthews v. United States, 569

F.2d 941, 942 (5th Cir.) (Where defendant argued that his guilty plea was involuntary because the

government had threatened him, we held that the district court's finding that no threat had been made

was not clearly erroneous, and that, therefore, the defendant's subjective belief that a threat had been

made was insufficient to set aside his guilty plea.), cert. denied, 439 U.S. 1046, 99 S.Ct. 721, 58

L.Ed.2d 705 (1978); see, e.g., Self v. Blackburn, 751 F.2d 789, 792-93 (5th Cir.1985) (attorney's

explanation of possibility of parole after t en and one-half years not a promise, and therefore

defendant's mistaken belief that he would be eligible for parole after ten and one-half years did not
render his guilty plea involuntary); Hall v. Maggio, 697 F.2d 641, 643-44 (1983) (same). The

United States Constitution does not "require[ ] the State to furnish a defendant with information

about parole eligibility in order for the defendant's plea of guilty to be voluntary." Czere v. Butler,

833 F.2d 59, 63 (5th Cir.1987) (quoting Hill v. Lockhart, 474 U.S. 52, 55, 106 S.Ct. 366, 369, 88

L.Ed.2d 203 (1985)). Accordingly, " "[a]s long as [the defendant] underst[ands] the length of time

he might possibly receive, he [is] fully aware of his plea's consequences.' " Barbee v. Ruth, 678 F.2d

634, 635 (5th Cir.) (quoting Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir.1981) cert.

denied, 456 U.S. 992, 102 S.Ct. 2275, 73 L.Ed.2d 1288 (1982)), cert. denied, 459 U.S. 867, 103

S.Ct. 149, 74 L.Ed.2d 125 (1982).

       Neither party disputes the district court's finding that Spinelli's mistaken belief about his parole

eligibility was not based on any promise by his defense attorney, the prosecutor, or the court. See

Record on Appeal, vol. 1, at 15 (district court's opinion). In addition, Spinelli does not deny that he

knew that maximum sentence he was to receive, and the parties' stipulated facts state that Spinelli was

admonished as to the maximum time he could possibly receive. See Record Excerpts for Collins at

19. The district court, however, declined to follow the general rule that a defendant's mistaken belief

is not enough to set aside the defendant's guilty plea, where the misunderstanding did not rest on any

promises and where the defendant understood the maximum amount of time the defendant might

possibly receive. Instead, the district court distinguished this case, and then found that Spinelli's

guilty plea was involuntary because of his mistaken belief:

               No one, however, promised Spinelli that he would be up for parole in five years, as
       he has conceded. His belief that such was the case rested not upon any promise, but upon his
       misunderstanding of the law of indeterminate sentencing—a procedure that was, we think,
       rife with possibilities for misunderstanding. Absent a demonstrable promise, a challenge to
       a guilty plea on the basis that the defendant did not understand how long he would serve will
       not succeed if the Defendant was aware of the maximum time he might serve. Barbee v.
       Ruth, 678 F.2d 634, 635 (5th Cir.1982), cert. denied, 459 U.S. 867 [103 S.Ct. 149, 74
       L.Ed.2d 125] (1982).

               What distinguishes this action, however, from the usual attempt to set aside a plea
       bargain is the peculiar fact that the State, on its own initiative, returned Spinelli to the trial
       court from his place of confinement and sought guilty pleas to his outstanding charges in
       return for a promise not to reprosecute a prior conviction that was likely to be reversed. We
       have never heard of such a transaction, and would treat Spinelli's accounting of it with some
       skepticism were it not for t he fact that the State has nowhere denied that it took place or
       sought, by way of an evidentiary hearing, or otherwise, to introduce evidence that would
        challenge Spinelli's version of events. The State appears to stand solely on the proposition
        that as Spinelli knew the maximum he might serve, he cannot obtain federal habeas relief.

                The facts underlying this action contain many small obscurities. The crucial point is
        that the State undertook to return Spinelli to court, and there made him a deal that, though
        he mistakenly thought otherwise, did not improve his situation one iota. When he walked into
        court in July 1980 he hoped for parole in twenty years on his 1978 conviction; when he
        walked out he hoped for it in five, t hough in reality he again faced a wait of twenty years,
        minus time served.

Record on Appeal, vol. 1, at 30-31. The district court's distinction in paragraph two is legally

insignificant . The district court failed to explain why the distinction had any bearing on the

applicability of the general rule that a defendant's mistaken belief alone is insufficient to set aside the

defendant's guilty plea. The district court did not cite any authority in making the distinction, and we

do not believe that the State's actions in initiating the plea negotiations with Spinelli and in offering

not to reprosecute him were improper. The district court clearly erred in finding that Spinelli's

mistaken belief about his parole eligibility rendered his guilty plea involuntary.5 Therefore, the district

court erred in setting aside Spinelli's guilty pleas entered on July 18, 1980, in Cause No. 271111

(aggravated robbery) and No. 271112 (aggravated kidnapping).

                                                    III

        For the foregoing reasons, we REVERSE the district court's judgment granting Spinelli's

petition for a writ of habeas corpus.




   5
    Spinelli claims that the district court also set aside his guilty plea because he "received no
benefits from, or consideration for, the plea bargain." Brief for Spinelli at 22. Spinelli appears to
base his contention on the district court's statement that "the State undertook to return Spinelli to
court, and there made him a deal that, though he mistakenly thought otherwise, did not improve
his situation one iota." Record on Appeal, vol. 1, at 30-31. We do not agree with Spinelli that
the district court based its decision on lack of consideration. In light of the district court's opinion
as a whole, we believe the district court meant that the deal "did not improve [Spinelli's] situation
one iota [with regard to parole eligibility]." As the district court correctly points out immediately
after making the statement that Spinelli's situation did not improve, under the life sentence Spinelli
was serving for the 1978 conviction, he would not be eligible for parole until he had served 20
years. Likewise, under the sixty year sentences Spinelli received for aggravated burglary and
kidnapping, he would not be eligible for parole until he had served 20 years. Even assuming,
arguendo, that Spinelli is correct, we find no lack of consideration because Spinelli received
several concessions under the plea agreement. See supra part I.
