Opinion
No. 01-2564-Ma.
March 31, 2005
ORDER GRANTING PETITIONER'S MOTION FOR SUMMARY JUDGMENT ON CLAIM ONE AND ORDER GRANTING WRIT OF HABEAS CORPUS
Mark W. Bryan, through counsel, filed his original petition pursuant to 28 U.S.C. § 2254 on June 25, 2001. The only claim presently before the Court is the first ("claim one"), which asserts that Bryan's 1986 plea negotiation, guilty plea, conviction, and sentence as a "persistent offender" cannot survive due process scrutiny under the Fifth and Fourteenth Amendments where the sole basis of Bryan's "persistent offender" status is his void 1983 convictions. The Court has denied respondent's motion to dismiss claim one as procedurally defaulted. 02/17/04 Order at 43. In response to the Court's invitation to the parties to file motions for summary judgment on the merits of claim one, respondent filed a motion for reconsideration on May 5, 2004. Petitioner responded to that motion on June 18, 2004. The Court issued an order on March 18, 2005, denying respondent's motion for reconsideration.
Accompanying Bryan's original habeas petition in this case was a legal memorandum purporting to address the merits of claim one. Memorandum in Support of Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, filed June 25, 2001 ("P. 06/25/01 Br."), at 15-21. That memorandum cited no authority for the proposition that a state prisoner is entitled to § 2254 relief in petitioner's situation. Respondent's original motion to dismiss and for judgment as a matter of law, which was filed on February 1, 2002, did not address the merits of claim one and, instead, argued only that federal review of the merits was barred by Bryan's procedural default. The Court issued an order on November 29, 2002, directing the parties to file briefs addressing the merits of claim one. Respondent filed a supplemental brief on January 2, 2003, and petitioner filed his supplemental brief on February 19, 2003. The Court heard oral argument on April 25, 2003. Respondent filed a posthearing brief on May 12, 2003, addressing only the issue of procedural default, and petitioner filed a posthearing brief on May 14, 2003, that included a discussion of the merits of claim one. The Court's February 17, 2004 order denied respondent's motion to dismiss on the basis of procedural default and invited the parties to submit additional motions on the merits of claim one. In response, petitioner filed a motion on May 5, 2004, seeking summary judgment on claim one, and respondent responded to that motion on June 21, 2004, and did not address the merits of claim one, but reiterated his position on the issue of procedural default.
Because the State's motion to dismiss did not address the merits, the petitioner's reply, which was filed on June 17, 2002, also avoided the merits.
Because no state court has reviewed the merits of claim one, "the deferential standard of review set forth in section 2254(d) is inapplicable." Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir. 2004); see also Maples v. Stegall, 340 F.3d 433, 436-37 (6th Cir. 2003). Accordingly, the Court must consider the issuede novo, in light of the totality of the evidence.Clinkscale, 375 F.3d at 436.
As will be discussed infra, the factual record in the case is not well developed. Although respondent has asserted that this Court has no authority to hold an evidentiary hearing, Respondent's Supplemental Memorandum of Law, filed Jan. 2, 2003 ("R. 01/02/03 Br."), at 2 n. 1, 28 U.S.C. § 2254(e)(2) is inapplicable because Bryan has diligently attempted to obtain a state-court resolution of this claim. See (Michael) Williams v. Taylor, 529 U.S. 420, 432 (2000) (if there has been no lack of diligence, petitioner has not "failed" to develop his claim in state court within the meaning of § 2254(e)(2)). Nonetheless, neither party has requested an evidentiary hearing and, therefore, the claim must be adjudicated in light of the evidence currently in the record. See Petitioner's Motion for and Memorandum in Support of Summary Judgment, filed May 5, 2004 ("P. 05/05/04 Br."), at 16 n. 11; 04/25/03 Tr. at 28-29.
Petitioner contends that Bryan's sentence as a persistent offender was predicated on his 1983 guilty pleas. Bryan was originally charged with first degree murder. A subsequent indictment charged him and another individual with first degree murder and murder during the perpetration of a robbery. 02/17/04 Order at 3. Pursuant to a negotiated plea agreement, Bryan pleaded guilty to a reduced charge of second degree murder and he was sentenced to sixty (60) years imprisonment as a persistent offender. Id. The negotiated plea agreement provided, in pertinent part, as follows:
The facts pertaining to the crime, and the procedural history in state court, are set forth at pp. 3-12, 26-39 of the February 17, 2004 order.
As noted in the Court's previous order, Bryan entered a guilty plea to the first indictment, which did not include a felony murder count. Id. at 5 n. 10; see also Addendum 2, at 4 ("The defendant Bryan is entering a plea of guilty this morning, Your Honor, however, to indictment number 85-02237 [, which charged only first degree murder]. It would be the intention of the State of Tennessee to nolle prosequi as to Mr. Mark Walter Bryan the subsequent indictment [for first degree murder and felony murder] upon his plea of guilty this morning.").
It is stipulated and agreed between the State of Tennessee and the defendant, Mark Walter Bryan, that, upon the defendant's plea of guilty to the offense of Murder 2nd, a presentencing hearing is waived and the State recommends that the defendant be sentenced, within Range II, to confinement for 60 years.
Addendum 1, at 1. In response to the statement, "The defendant is a PERSISTENT OFFENDER," the plea agreement circles the answer, "YES." Id. The preprinted form offers two options to support that designation, and the word "YES" is circled with respect to the first option, "[t]wo (2) or more prior felony convictions for offenses committed within five (5) years immediately preceding the commission of the instant offense." Id. The information set forth in the negotiated plea agreement form was consistent with the fact that Bryan had three 1983 felony convictions.
At the guilty plea hearing, the prosecutor stated as follows:
The charge is murder in the first degree. The defendant, Your Honor, through negotiated settlement this morning, through his attorney, Russell X. Thompson, desires to enter a plea of guilty to the offense of murder in the second degree, and the punishment to be imposed is confinement for a period of sixty years in the state penitentiary, as a persistent offender within Range II. A sentencing notice has been filed.
Addendum 2, at 1. The prosecutor presented the judgment form, the negotiated plea agreement, and the waiver form, Addendum 2, at 2, and outlined the evidence the State would have presented at trial, id. at 2-4, which defense counsel stipulated to, id. at 5. After questioning Bryan, id. at 5-9, the trial court accepted the guilty plea, id. at 9-10, stating as follows:
The "sentencing notice," which was not produced by respondent, was submitted with the original petition. It consists of a document entitled "Notice of Sentencing Status," indicating that Bryan is a persistent offender and stating that "[t]he defendant's criminal record of conviction is on the other side of this page." The second page, entitled "Criminal Record," lists the three 1983 convictions and is signed by the prosecutor on February 27, 1986. Bryan's Appendix B-4, at 156-57.
Mr. Mark Walter Bryan, in indictment number 85-02237, upon your plea of guilty to the offense of murder in the second degree as a persistent offender in Range Two, the court finds you guilty, and it's the judgment of this court that you be taken by the sheriff and delivered to the department of correction, therein to serve a period of sixty years, and that you pay the costs of this cause, for which let mittimus and execution issue.Id. at 10. The trial judge issued an order to the same effect. Addendum 3. Judgment was entered on February 27, 1986. Id.
Because the three 1983 convictions that supported the persistent offender designation have been vacated, petitioner has made a prima facie case that his sentence, which includes the persistent offender designation, is no longer consistent with Tennessee law. In response, respondent cites McConnell v. State, 12 S.W.3d 795, 798 (Tenn. 2000), and State v. Mahler, 735 S.W.2d 226, 227-28 (Tenn. 1987), for the proposition that "the State and defendants may use `offender classification and release eligibility' as subjects of plea bargain negotiations." R. 01/02/03 Br. at 2. In Mahler, a defendant who had been charged with first degree murder entered a guilty plea to second degree murder with a sentence of fifty (50) years as a Range II aggravated offender. The defendant subsequently filed a postconviction petition alleging ineffective assistance of counsel because he "did not have a prior criminal record sufficient to justify his being sentenced as a Range II offender under ordinary circumstances." 735 S.W.2d at 227. In rejecting his claim, the Tennessee Supreme Court made clear that the sentence had been bargained for during plea negotiations:
The offense was a highly aggravated one, and had the prosecution proceeded appellant was in grave danger of receiving the death penalty or, almost at a minimum, a sentence of life imprisonment for murder in the first degree. He deliberately strangled to death a young naval officer who had given him a ride in the officer's automobile. He placed the body of the officer and some of the latter's personal possessions near an exit on Interstate 40 in the vicinity of Crossville, Tennessee, and proceeded to Arkansas and then to Missouri in the officer's automobile. His confession was video taped and is in the record of the post-conviction proceedings. Appellant confessed to deliberate, unprovoked murder of his victim, and there was little reason for the State to strike a plea bargain other than that the victim's family were from out of state and that the trial would have been both an inconvenient and harrowing experience for them.
Counsel appointed for appellant thoroughly investigated the case and realized its seriousness. He was finally able to elicit from the District Attorney General the plea bargain above referred to, and it was knowingly, voluntarily and intelligently accepted by appellant. The trial judge carefully followed the provisions of relevant statutes and cases in accepting the guilty plea, which almost certainly appears to have been in the manifest best interests of the defendant.Id. at 227. With respect to the issue of whether the sentence was illegal under Tennessee law, the Tennessee Supreme Court stated:
The sentence fixed was clearly within statutory limits for the offense of murder in the second degree. In our opinion any question as to the classification of appellant as a Range II offender or as to his release eligibility was waived by the guilty plea. It was not a constitutional error in and of itself and at most rendered the sentence subject to attack on direct review by appeal. Appellant waived any right of appeal in the guilty plea proceedings, and expressly agreed to be sentenced with the classification and release eligibility imposed. These were the only terms which the District Attorney General would even consider and, in our opinion, the resulting sentence was clearly lenient and in the best interest of appellant.Id. at 228; see also id. at 227 ("The sentence in this case, fifty years, is not an illegal sentence. The punishment for murder in the second degree is imprisonment for life or for a period of not less than ten years.") (citing Tenn. Code Ann. § 39-2-212 (repealed)).
In McConnell v. State, the other case cited by respondent, the Tennessee Supreme Court held that a trial court did not have jurisdiction to accept a guilty plea that would have imposed a Range I sentence for second degree murder of 35 years where the statute in effect at the time provided a maximum Range I sentence of 25 years for second degree murder. 12 S.W.3d at 797-98. The state court also stated that "[o]ur decision today in no way alters the ability of the State and defendants to use offender classification and release eligibility as subjects of plea bargain negotiations. These elements of plea bargaining have been and still are properly characterized as non-jurisdictional. However, we do maintain the distinction between the subjects of plea bargaining and the length of a sentence." Id. at 798.McConnell appears to have no bearing on the instant because it involved the interpretation of Tennessee's Criminal Sentencing Reform Act of 1989, which applies to sentences imposed on or after November 1, 1989. Id. Bryan's sentence was imposed before that date.
Respondent seems to contend, in reliance on Mahler, that Bryan's persistent offender designation was not dependent upon his prior convictions but, instead, was part of a negotiated plea agreement with a stipulated sentence. 04/25/03 Tr. at 8, 16, 30-32; see also R. 01/02/03 Br. at 2-3; Petitioner's Brief in Opposition to the State's Motion to Dismiss and in Support of the Petition for Habeas Corpus under 28 U.S.C. § 2254, filed June 17, 2002 ("P. 06/17/02 Br."), at 11, 12 (quoting statements made by the State in previous oral arguments). Respondent asserts that, by accepting this plea offer, Bryan avoided a trial that could have resulted in a death sentence. 04/25/04 Tr. at 8 ("[T]here is evidence in the record that it was potentially a capital case."), 31 ("[T]he real inference is that Mr. Bryan pleaded guilty to second degree murder when he was faced with the possibility of being charged and sentenced to death. That is what is in the record."). However, there is no evidence in the record to support respondent's interpretation of the plea negotiations. It does not appear that respondent has filed the complete record in the trial court and, therefore, it is not possible to determine whether a notice of intent to seek the death penalty was ever filed. The various references to the death penalty arise solely in oral and written arguments years after the entry of judgment, and the statements were not made under oath by persons shown to have personal knowledge. Moreover, contrary to respondent's suggestion, see, e.g., R. 01/02/03 Br. at 2, the Court cannot fault Bryan for failing to develop the factual record as to this claim because the state courts never held a hearing addressing the merits.See 03/16/05 Order at 16-17.
The evidence submitted by Bryan and, in particular, the references to the 1983 convictions in the documents concerning the 1986 guilty plea, are sufficient to permit the Court to conclude that the persistent offender designation was based on the 1983 convictions. Respondent has offered no evidence to the contrary. Accordingly, it would appear that Bryan's sentence as a persistent offender is no longer consistent with Tennessee law.See Wallen v. State, 863 S.W.2d 34, 35-36 (Tenn. 1993) (granting petition for postconviction relief and resentencing petitioner after convictions that formed the basis for Range II status had been vacated).
Although respondent has also argued that "the granting of parole is a discretionary matter vested within the Board of Parole," R. 01/02/03 Br. at 3, it is not clear how that fact is of any assistance to respondent.
That Bryan's sentence is not valid under Tennessee law does not necessarily mean that he is entitled to federal habeas relief, as this Court is authorized to issue a writ of habeas corpus on behalf of a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Error in the application of state law is not cognizable in a federal habeas proceeding. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"); Pulley v. Harris, 465 U.S. 37, 41 (1984).
There is support for the proposition that a sentence imposed on the basis of invalid prior convictions is unconstitutional. In Townsend v. Burke, 334 U.S. 736, 740 (1948), a case not cited by either party, the Supreme Court granted a writ of habeas corpus to a state prisoner whose sentence was based, in part, on offenses for which the petitioner had been acquitted. In so holding, the Supreme Court emphasized that its holding was not based on a finding that the sentence was unduly severe but, rather, on "the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the petitioner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process." Id. at 741. Subsequently, in United States v. Tucker, 404 U.S. 443 (1972), on which petitioner now relies, P. 05/05/04 Br. at 4-5, the Supreme Court relied on Townsend v. Burke in vacating a federal sentence imposed on the basis of prior felony convictions that were constitutionally invalid and thus void. 404 U.S. at 446-49. Accordingly, the Court HOLDS that Bryan's sentence as a persistent offender is constitutionally invalid, in violation of the Due Process Clause of the Fourteenth Amendment, because it is based on the void 1983 convictions. The Court GRANTS petitioner's motion for summary judgment on claim one.
Such a sentence is plainly unconstitutional in the death penalty context, although the applicable constitutional provision is the Eighth Amendment rather than the Due Process Clause.Johnson v. Mississippi, 486 U.S. 578, 586-87 (1988).
Although subsequent decisions have recognized that the time limitations imposed in 1996 for § 2254 petitions and § 2255 motions are applicable to claims such as this one, see Daniels v. United States, 532 U.S. 374 (2001) (§ 2255 motion);Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394 (2001) (§ 2254 petition), the constitutional principle enunciated inTownsend remains intact. There is no timeliness issue as to Bryan's petition.
In response to the Court's questions about the remedy, both parties have argued that it would not be sufficient to vacate Bryan's sentence. See, e.g., 04/25/03 Tr. at 37-44. Therefore, the Court GRANTS the petition for a writ of habeas corpus vacating Bryan's 1986 conviction for second degree murder. The respondent has thirty (30) days from the date of entry of this order to take any action it deems appropriate.
IT IS SO ORDERED.