Burden v. State of Ala., 76-2327

• Decision Date: 17 November 1978
• Docket Number: No. 76-2327,76-2327
• Citation: 584 F.2d 100
• Parties: Robert Lee BURDEN, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 100

584 F.2d 100

Robert Lee BURDEN, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.

No. 76-2327.

United States Court of Appeals Fifth Circuit.

Nov. 17, 1978.

Robert Lee Burden, pro se, E. Mabry Rogers, Birmingham, Ala. (Court-appointed), for petitioner-appellant.

William J. Baxley, Atty. Gen., Montgomery, Ala., Randolph P. Reaves, Asst. Atty. Gen., Montgomery, Ala., Barry V. Hutner, Legal Research Aide, for respondent-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before AINSWORTH and CLARK, Circuit Judges, and HUGHES ^*, District Judge.

CHARLES CLARK, Circuit Judge:

On April 25, 1970, Robert Lee Burden was arrested on a charge filed by his estranged wife accusing him of "carnally knowing, or abusing in the attempt to carnally know, Charlene Burden a girl under the age of 12." An Alabama grand jury subsequently indicted Burden as a result of these charges. The state trial court appointed counsel for Burden, and, on June 4, 1971, Burden pled guilty to the charges. The court sentenced Burden to a prison term of fifty years.

Although Burden did not file an appeal directly attacking his conviction, he has filed numerous collateral challenges in both the state and federal courts. ¹ In his most recent habeas petition Burden assigned three grounds of error. He alleged first, that his guilty plea was involuntary in that he was not informed prior to sentencing of the elements of the crime for which he was arrested; second, that the state did not inform him of his right to appeal; and third, that his appointed counsel failed to apprise him of his right to appeal. The district court, acting without a hearing, adopted the federal magistrate's recommendations and held that Burden's plea was voluntary and that his right to appeal was not infringed by the State or by his appointed counsel.

Under 28 U.S.C. § 2254(b), a state prisoner is required to exhaust state remedies before seeking habeas review in the federal courts. It appears that Burden's arguments regarding his counsel's failure to inform him of his right to appeal were never expressly presented to the Alabama state courts. Although it would have been proper for the district court to have dismissed all of Burden's claims for failure to exhaust on the ineffectiveness of counsel issue, this failure to exhaust does not preclude appellate review of Burden's other grounds of error. Galtieri v. Wainwright, 582 F.2d 348, at 352-63 (5th Cir. 1978). Appellate review is particularly appropriate in this case since the exhausted and unexhausted grounds, though legally separate, are identical in factual underpinning. Burden's claims concerning the denial of information about his right to appeal are inextricably intertwined with his contentions regarding appointed counsel's failure to inform him of that right.

The due process clause of the fourteenth amendment requires that a guilty plea must be voluntarily given; such a plea inherently involves a waiver of many of defendant's constitutional rights. A recent Supreme Court decision handed down after the denial of Burden's habeas petition held that a guilty plea cannot be voluntary if the defendant is not informed of the elements of the crime with which he is charged. Henderson v. Morgan,426 U.S. 637, 96 S.Ct. 2253, 2257-58, 49 L.Ed.2d 108, 114 (1976). Burden contends that he was not informed of the elements of the crime of carnal knowledge prior to his guilty plea, and that, in fact, he never understood what carnal knowledge meant.

The district court concluded that Burden's guilty plea was voluntary since he had signed an "Ireland Form." ² An examination of the form Burden signed shows that it does not contain a recital of the elements of the crime, nor does it contain any representations made by the judge or Burden's appointed counsel concerning the information Burden received. Moreover, the record of the guilty plea proceedings contains no reference to the elements of the crime. ³ Thus, the state record is inadequate to show whether the requirements of Henderson were met. When the state record is insufficient to allow a determination of the merits of a defendant's habeas claims the district court must hold a hearing to develop those facts. Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770, 785 (1963). Thus, this case must be remanded to the district court for determination of the voluntariness issue in light of Henderson. If, in that hearing, the...