Tracy v. Johnson

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-21140 Summary Calendar

MICHAEL ALAN TRACY, Petitioner-Appellant, versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee.

_________________________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CV-118 _________________________________________ July 7, 2000 Before POLITZ, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:* Michael Alan Tracy, a Texas state prisoner, appeals the denial of his petition for

habeas relief under 28 U.S.C. § 2254. The district court granted a Certificate of Appealability on the issue whether Tracy failed to establish the requisite prejudice resulting from his trial counsel’s alleged deficient performance.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Tracy contends that he received ineffective assistance of counsel because his attorney failed to file a motion to suppress his confession. He maintains that his

confession was the fruit of an unlawful warrantless arrest. He asserts that he would not

have pleaded guilty to the charge of aggravated burglary had he been advised properly regarding the alleged inadmissibility of his confession. Tracy further contends that he

was prejudiced by his attorney’s deficient performance because his confession constituted the only evidence to corroborate any accomplice testimony, and that

without it he could not have been convicted under Texas law. The district court correctly recognized Tracy’s claim as governed by the two- pronged test detailed in Strickland v. Washington.2 Under that test, a defendant claiming ineffective assistance of counsel must prove: (1) that his counsel’s

performance was deficient in that it fell below an objective standard of reasonableness, and (2) that the deficient performance prejudiced his defense.3 In the context of guilty

pleas, to satisfy the second part, the prejudice requirement, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”4 The requisite prejudice

2 466 U.S. 668 (1984). 3 Strickland, 466 U.S. at 687. See also Williams v. Taylor, 120 S. Ct. 1495, (2000) (recognizing the Strickland test as the established legal standard for determining claims of ineffective assistance of counsel). 4 Hill v. Lockhart, 474 U.S. 52, 59 (1985).

depends upon whether the proposed action likely would have succeeded and changed the outcome of trial.5

Although the district court noted the proper standard for review of Tracy’s sixth

amendment claim, it imposed a heavier burden to establish prejudice than is required. Tracy’s burden is to show that there is a “reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to trial.”6 Although Strickland requires the court to consider the “totality of the evidence” when

determining prejudice,7 it does not require that Tracy prove his confession is the sole evidence available to the prosecution, assuming its inadmissibility. The judgment appealed must therefore be vacated and this case must be remanded for reconsideration of Tracy’s habeas corpus petition. Upon remand, the

district court should determine, under the standards as set forth in Strickland and Hill, whether Tracy has established the requisite prejudice. The court, however, may opt to

begin its analysis of the sixth amendment claim by considering the first prong of the Strickland test, i.e., whether his counsel’s performance was deficient. The district court may apply any provision of 28 U.S.C. § 2254(d) it deems appropriate for review

of Tracy’s habeas corpus petition.

VACATED AND REMANDED.

5 Id.; see Armstead v. Scott, 37 F.3d 202 (5th Cir. 1994) (stating that to show prejudice from ineffective counsel at a guilty plea, the defendant must show what the outcome of trial might have been). 6 Hill, 474 U.S. at 59. 7 Strickland, 466 U.S. at 697,