Tracy v. Johnson

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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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2466 U.S. 668 (1984).
3Strickland, 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).
4Hill v. Lockhart, 474 U.S. 52, 59 (1985).
2
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

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5Id.; 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).
6Hill, 474 U.S. at 59.
7Strickland, 466 U.S. at 697,
3
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.

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