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Gipson v. Warden

United States District Court, W.D. Louisiana, Shreveport Division

February 4, 2015

RICKEY WAYNE GIPSON
v.
WARDEN, WINN CORRECTIONAL CENTER

For Rickey Wayne Gipson, Plaintiff: J Ransdell Keene, LEAD ATTORNEY, Law Office of J Ransdell Keene, Shreveport, LA.

For Warden Winn Correctional Center, Defendant: John M Lawrence, D A's Office 26th J D C, Benton, LA.

Mark L. Hornsby, United States Magistrate Judge. JUDGE STAGG.

REPORT AND RECOMMENDATION

Mark L. Hornsby, United States Magistrate Judge.

Introduction

Rickey Wayne Gipson (" Petitioner") shot his wife in the head. She survived. Bossier Parish officials charged Petitioner with attempted second-degree murder, which carried a maximum sentence of 50 years. Petitioner struck a plea bargain to plead guilty to attempted manslaughter, which carried a maximum sentence of 20 years.

There was no trial, so the factual record is sparse. The prosecutor recited a factual basis at the guilty plea hearing. He stated that Mrs. Gibson was at her place of employment in Bossier when Petitioner traveled there from his home in Shreveport. Petitioner engaged his wife in a heated confrontation or altercation. Mrs. Gibson had turned away from Petitioner to leave when Petitioner drew a .38 caliber revolver, grabbed Mrs. Gibson by her shirt, placed the gun to the side of her head, and fired one round. The bullet entered the victim's skull but did not exit. She survived with serious injuries. Petitioner fled, hid his car behind his residence, and hid the gun in a burn barrel in a nearby vacant lot. Petitioner was arrested and, after receiving his Miranda warnings, confessed to shooting his wife. Tr. 66.

Petitioner filed a timely post-conviction application in state court. He also filed later untimely applications and a number of motions to correct sentence or otherwise attack his conviction and sentence. This court directed Petitioner to file copies of his filings and the state court rulings to demonstrate that he had exhausted his state court remedies with respect to each claim presented in this court. He filed 160 pages of material. Doc. 18. The State was directed to file a complete copy of the state court record. The State filed more than 400 pages of materials. Despite these submissions, it does not appear that the record before this court includes a transcript of the sentencing hearing (if one was ever made) or several of Petitioner's filings in the appellate court and Louisiana Supreme Court.

A complete record and a coherent explanation of the procedural steps taken in the state courts, complete with record citations, is critical to the court being able to properly resolve timeliness, procedural bar, and merits issues. The record presented by the parties in this case makes the court's task difficult, but each of Petitioner's several claims must be addressed. For the reasons that follow, it is recommended that his petition be denied.

Ineffective Assistance of Counsel

A. Summary of Claims; State Court Rulings

Petitioner's first issue in his post-conviction application and federal habeas petition argues that trial counsel was ineffective because (1) he did not make use of information that might have avoided guilt, (2) he gave incorrect advice on the plea offer and did not mention that Petitioner would not be eligible for parole or good time, (3) he told Petitioner's brother and stepfather that Petitioner would have to serve only five to seven years if he accepted the plea bargain, and (4) counsel did not properly challenge the contents of the pre-sentence report.

The State trial court issued a written opinion that acknowledged each of those claims, set forth the applicable legal standard, and rejected the claims based largely on the contents of the guilty plea transcript. Petitioner stated at that hearing that he had discussed the matter with his attorney, Randall Robinson, and was satisfied with his representation. Petitioner was asked if he understood " the penalties, minimum and maximum for the plea of guilty to attempted manslaughter is zero to twenty years?" Petitioner answered yes, as he did when asked if he understood his other Boykin rights and that " the sentence is up to the court." Petitioner denied that any promises had been made to induce him to enter the plea, and he said he was pleading guilty because he was guilty. Tr. 63-65.

The trial judge held that this record reflected that Petitioner voluntarily entered his plea knowing all of those circumstances, and the " record in no way reflects" that counsel was ineffective in connection with the representation. Tr. 151-55. The state appellate court summarily rejected a writ application, writing: " Based on the information submitted, the applicant has failed to meet his burden of proving the requested relief ...


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