Filed: Jun. 25, 2002
Latest Update: Feb. 21, 2020
Summary: REVISED JUNE 25, 2002 UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 00-11279 ARTURO GALVAN, 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 June 6, 2002 Before DAVIS, DeMOSS, and STEWART, Circuit Judges. DeMOSS, Circuit Judge: In January 1996, Arturo Galvan was convicted by a jury in state court of aggravated kidnapin
Summary: REVISED JUNE 25, 2002 UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 00-11279 ARTURO GALVAN, 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 June 6, 2002 Before DAVIS, DeMOSS, and STEWART, Circuit Judges. DeMOSS, Circuit Judge: In January 1996, Arturo Galvan was convicted by a jury in state court of aggravated kidnaping..
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REVISED JUNE 25, 2002
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-11279
ARTURO GALVAN,
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
June 6, 2002
Before DAVIS, DeMOSS, and STEWART, Circuit Judges.
DeMOSS, Circuit Judge:
In January 1996, Arturo Galvan was convicted by a jury in
state court of aggravated kidnaping. Galvan pleaded true to repeat
offender charges and was sentenced to 40 years of imprisonment.
His conviction and sentence were affirmed on direct appeal.
Galvan’s first of two state habeas applications, pertaining to the
revocation of his probation which was used to enhance his sentence,
was denied by the Texas Court of Criminal Appeals without a written
order. Galvan’s second state habeas application was filed on
September 21, 1998, and was also denied by the Texas Court of
Criminal Appeals. Galvan then filed a § 2254 petition raising
several claims, including: (1) ineffective assistance of counsel
for failing to convey a plea bargain offer; (2) an erroneous jury
charge; and (3) ineffective assistance of counsel for failing to
object to the erroneous jury charge. Galvan’s petition was denied
by the district court and this Court granted a COA on all of the
above issues.
BACKGROUND
On December 3, 1994, Arturo Galvan was driving with Michael
Beck and Morgan Rehbeger when he saw fourteen-year-old Brandy
Rigsby at a pay phone with her boyfriend Jason Rankin. Galvan and
his companions surrounded the couple, but Rankin evaded them by
running away. Galvan then coerced Rigsby into entering the car by
threatening her and indicating that he had a firearm. Rigsby
entered the car and Rehbeger and Beck got into the back seat. They
drove to a nearby Park & Ride where Galvan forced Rigsby to have
sexual intercourse with him. They then drove Rigsby back to the
pay phone and released her.
On January 18, 1996, Galvan was convicted by a jury of
aggravated kidnaping which was enhanced by two prior convictions.
Before the trial, the state made a plea offer of 25 years, but this
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offer was rejected. The jury assessed punishment at 40 years’
imprisonment. Galvan’s conviction was affirmed on March 14, 1997,
by the Court of Appeals for the Second District of Texas, and his
petition for discretionary review was refused by the Texas Court of
Criminal Appeals on October 1, 1997.
Galvan filed a state habeas application on September 21, 1998.
On October 20, 1999, the Texas Court of Criminal Appeals denied his
application without written order, relying on the findings of the
trial court without a hearing. Galvan then filed a federal habeas
petition on November 1, 1999. On May 1, 2000, a magistrate judge
entered recommendations and on September 22, 2000, the district
court entered final judgment denying Galvan’s petition for writ of
habeas corpus.
DISCUSSION
Was Galvan’s counsel ineffective for failing to advise Galvan to
accept a plea offer?
Galvan argues that his counsel was ineffective for failing to
advise him to accept the state’s plea offer. Galvan’s family
retained Charles Roach to represent him, and they contracted to pay
Roach $1,600 as a retainer and to continue making monthly payments
of $150 until his total fee of $5,000 was paid. Galvan contends
that when the state’s plea offer of 25 years was rejected, $2,950
remained due, indicating that Roach was motivated not by his
client’s best interest but by his concern for the remaining
balance. Galvan alleges that Roach advised his family that the
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offer was “ridiculous,” despite the existence of highly
incriminating evidence against Galvan. Galvan asserts Roach did
not explain the dangers of being convicted, despite Galvan’s own
mistaken beliefs of innocence.
In response to Galvan’s allegations, the state habeas court
ordered a hearing-by-affidavit on Galvan’s ineffective-assistance-
of-counsel claims. Roach submitted an affidavit which states:
My name is Charles H. Roach. I was the attorney of
record for Arturo Galvan for his criminal cases.
At all times Mr. Galvan maintained that he was
innocent of the charges and would not plead guilty.
Mr Galvan was aware of the pleas offers [sic] of
the States but did not want to enter into a plea
bargain.
The state habeas court accepted Roach’s averments and found that
Galvan was aware of the state’s plea offers but maintained his
innocence and chose not to enter into a plea bargain. The district
court afforded the presumption of correctness to this fact finding
and concluded that Galvan had failed to rebut it with clear and
convincing evidence. Galvan maintains, however, that the state
court findings failed to resolve the factual issue of the extent
and nature of Roach’s advice to Galvan regarding the plea offer,
and, therefore, that the district court gave improper deference to
the state court’s rejection of this claim. Galvan asserts, because
a fact issue was not properly resolved, he should have been
afforded a hearing in federal court.
This Court reviews findings of fact for clear error. United
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States v. Gipson, 985 F.2d 212, 214 (5th Cir. 1993). A factual
finding will be determined to be clearly erroneous only if it
leaves the Court with the definite and firm conviction that a
mistake has been made. United States v. Scott,
987 F.2d 261, 264
(5th Cir. 1993). This Court defers to the trier of fact in
resolving conflicts requiring credibility determinations. United
States v. Samples,
897 F.2d 193, 198 (5th Cir. 1990).
Under the two-prong test enunciated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), Galvan must show that
counsel’s assistance was deficient and that the deficiency
prejudiced him. In evaluating the first prong, judicial scrutiny
of counsel’s performance must be highly deferential, and courts
must indulge in a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.
Id.
at 689. Under the second prong, Galvan must demonstrate prejudice
by showing that his attorney’s errors were so serious that they
rendered the proceedings unfair or the result unreliable. Lockhart
v. Fretwell,
506 U.S. 364, 372 (1993).
As we have already noted, the state court ordered a hearing-
by-affidavit in response to Galvan’s claims and chose to believe
Roach’s affidavit to hold that Galvan knew about the plea and chose
not to enter into a plea bargain. Under pre-AEDPA law, “a fact-
finding procedure that involves credibility determinations and is
based on a ‘paper hearing’ affords the habeas petitioner a full and
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fair hearing when the state court judge who presided over the
petitioner’s trial conducts the habeas proceeding.” Amos v. Scott,
61 F.3d 333, 347 (5th Cir. 1995). In this case, Judge Sharen
Wilson presided over Galvan’s trial and conducted the habeas
proceeding. Judge Wilson accepted the averments in Roach’s
affidavit and her decision to do so acts as an implicit rejection
of Galvan’s allegations and a finding that Galvan was not credible.
See Self v. Collins,
973 F.2d 1198, 1214 (5th Cir. 1992). As the
state court’s decision to deny relief was a credibility
determination, we conclude that the district court did not err in
presuming that the factual findings of the state court were correct
and that Galvan has not rebutted that presumption with clear and
convincing evidence.
Were the jury instructions erroneous?
Galvan argues he was denied due process by a jury instruction
that misinformed jurors that good-time credit would count towards
parole eligibility. He contends that if the jury had been
correctly instructed that he was required to serve at least 20
years of a 40-year sentence before becoming eligible for parole,
the outcome of the proceedings, i.e., his sentence, would have been
different. Galvan argues further that defense counsel was
ineffective for not objecting to the error in the jury charge.
Improper jury instructions in state criminal trials do not
generally form the basis for federal habeas relief. Estelle v.
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McGuire, 502 U.S. 62, 71-72 (1991) (stating that federal habeas
courts do not grant relief solely on the basis that a jury charge
was erroneous). In examining habeas claims of improper jury
instructions, the “inquiry is not whether there was prejudice to
the [petitioner], or whether state law was violated, but whether
there was prejudice of constitutional magnitude.” Sullivan v.
Blackburn,
804 F.2d 885, 887 (5th Cir. 1986). The relevant inquiry
is whether the failure to give an instruction “by itself so
infected the entire trial that the resulting conviction violates
due process.” Cupp v. Naughten,
414 U.S. 141, 147 (1973).
Moreover, there is a strong presumption that errors in jury
instructions are subject to harmless-error analysis. Thus, even if
the instruction was erroneous, if the error is harmless, habeas
corpus relief is not warranted. Brecht v. Abrahamson,
507 U.S.
619, 623-24 (1993). In a habeas proceeding, a constitutional error
is not harmless if it “had substantial and injurious effect or
influence in determining the jury’s verdict.”
Id. (internal
quotation marks and citation omitted).
The jury charge at issue provided in pertinent part:
Under the law applicable in this case, the
Defendant, if sentenced to a term of imprisonment,
may earn time off the period of incarceration
imposed through the award of good conduct time.
Prison authorities may award good conduct time to a
prisoner who exhibits good behavior, diligence in
carrying out prison work assignments, and attempts
at rehabilitation. If a prisoner engages in
misconduct, prison authorities may also take away
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all or part of any good conduct time earned by the
prisoner.
. . . .
You may consider the existence of parole law and
good conduct time. However, you are not to
consider the extent to which good conduct time may
be awarded to or forfeited by this particular
Defendant. You are not to consider the manner in
which the parole law may be applied to this
particular Defendant.
The portion of the instruction in boldface is an incorrect
statement of law, as inmates do not earn time off of the period of
incarceration, but rather, earn the right to be considered for
earlier release due to the award of good time.
A substantively correct instruction concerning the effect of
the Texas parole laws does not offend the federal constitution.
California v. Ramos, 463 U.S. 992, 1004-05 (1983)(stating that an
accurate instruction on a capital defendant’s eligibility for
parole or commutation of sentence does not raise a federal
constitutional issue); see also Drew v. Collins,
964 F.2d 411, 415-
16 (5th Cir. 1992). Whether the same is true when the instruction
is substantively incorrect, as in this case, is unclear. However,
assuming, arguendo, such an instruction amounts to a constitutional
error, it still does not entitle a defendant to habeas relief
unless there is more than a mere reasonable possibility that it
contributed to the verdict. Mayabb v. Johnson,
168 F.3d 863, 868
(5th Cir. 1999) (citing Woods v. Johnson,
75 F.3d 1017, 1026-27
(5th Cir. 1996)). A federal habeas court may not grant relief on
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trial errors unless the petitioner demonstrates that the error “had
a substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht, 507 U.S. at 637-38. The burden of
demonstrating in a collateral proceeding that an erroneous jury
instruction violated the petitioner’s due process rights is
“greater than the showing required to establish plain error on
direct appeal.” Henderson v. Kibbe,
431 U.S. 145, 154 (1977).
Moreover, the jury is presumed to have followed the trial court’s
instruction prohibiting consideration of the extent to which good
conduct time might be awarded to or forfeited by Galvan. Parker v.
Randolph,
442 U.S. 62, 73 (1979) (“A crucial assumption underlying
that system is that juries will follow the instructions given them
by the trial judge.”), overruled on other grounds by Cruz v. New
York,
481 U.S. 186 (1987); cf., Bagley v. Collins,
1 F.3d 378, 381
(5th Cir. 1993) (finding an instruction by the court to the jury
that it should not consider remarks made by the prosecutor was
sufficient to limit the extent to which the jury considered the
remarks).
In the present case, though it is clear that the trial court’s
instruction was inaccurate, the trial court gave further
instructions to the jury that it was to disregard the manner in
which good conduct time would be applied to the defendant. The
jury is presumed to have followed this instruction and Galvan has
failed to show that the instruction had a substantial or injurious
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effect on the jury’s decision. We therefore find that Galvan has
failed to meet his burden of demonstrating that his due process
rights were violated and hold that any error present in the jury
charge was harmless.
Galvan’s only remaining claim is his ineffective-assistance-
of-counsel claim. Galvan bases this claim on the failure to object
to the erroneous jury charge. As already stated above, to prevail
on an ineffective assistance of counsel claim, Galvan must show
that his counsel’s performance was deficient and that the deficient
performance prejudiced the defense. Strickland, 466 U.S. at 687.
As we have already determined that the instruction in the jury
charge did not have a substantial and injurious effect or influence
on the jury, we find that Galvan cannot show any prejudice
attendant to his counsel’s conduct. See
Mayabb, 168 F.3d at 869
(making a similar finding when it was determined that a jury
instruction regarding the burden of proof in a murder trial did not
have a substantial and injurious effect).
CONCLUSION
Having carefully reviewed the parties’ respective briefs and
the record, we hold that the district court did not err in denying
Galvan habeas relief. We therefore AFFIRM the district court’s
decision.
AFFIRMED.
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