Roddy v. Black

• Decision Date: 27 May 1975
• Docket Number: No. 74-1985,74-1985
• Citation: 516 F.2d 1380
• Parties: Claude Francis RODDY, Jr., Petitioner-Appellant, v. Harold E. BLACK, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1380

516 F.2d 1380

Claude Francis RODDY, Jr., Petitioner-Appellant, v. Harold E. BLACK, Superintendent, Respondent-Appellee.

No. 74-1985.

United States Court of Appeals, Sixth Circuit.

May 27, 1975.

Claude Francis Roddy, Jr., Donald L. Cox, Louisville, Ky., for petitioner-appellant.

Ed W. Hancock, Atty. Gen. of Ky., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, Ky., for respondent-appellee.

Before CELEBREZZE, PECK and ENGEL, Circuit Judges.

CELEBREZZE, Circuit Judge.

This is an appeal from the denial of a writ of habeas corpus. After an evidentiary hearing, the District Court rejected Appellant's contention that habeas relief was justified on the grounds that his guilty plea was not properly accepted, that his counsel had rendered ineffective assistance, and that his convictions were induced by the perjury of an ex-wife.

Appellant was charged on December 8, 1971 in two separate indictments alleging immoral and indecent practices under section 435.105, Ky.Rev.Stat. Indictment No. 145905 charged that he had engaged in forbidden activity with an eleven-year-old stepdaughter, Paula Corbitt. Indictment No. 145521 asserted a similar offense involving a second child.

On January 10, 1972, a pre-trial conference was held among Appellant, his counsel, and the Commonwealth's Attorney. This conference was preceded by numerous interviews between Appellant and his attorney, as well as discussions between Appellant's counsel and the complaining witnesses. At the conference, what the District Court described as "an agreed disposition" was reached. Under it Appellant was to plead guilty to assault and battery on Indictment No. 145521 and to receive a 90-day jail sentence, with credit for 71 days already served. As to Indictment No. 145905, the District Court stated that the following terms were agreed to:

The defendant was to plead guilty and to receive a recommended sentence of ten years with the understanding that the defendant would move that the sentence would be withheld for five years and that there would be no objection by the Commonwealth.

Appellant signed a "pre-trial disposition sheet" for No. 145905, which states that his guilty plea would be to the charge of "I & I," that the maximum sentence was ten years, and that the recommendation would be "10 yrs Deft Mo W/H for 5 yrs No objection by Commonwealth." The state trial judge then convened a formal session and accepted Appellant's guilty plea, after a colloquy reprinted as an Appendix to this opinion. Appellant was convicted of assault and battery on No. 145521 and of immoral and indecent practices on No. 145905, receiving a 90-day jail term and a probated ten-year sentence on the respective charges.

While on probation in late 1972, Appellant was charged with armed robbery, malicious shooting and wounding, and grand larceny. Although these charges appear to have been dismissed, they resulted in revocation of his probation. On January 19, 1973, he was sentenced to serve the full ten years received under Indictment No. 145905. After exhausting state remedies, Appellant sought habeas relief from the federal courts. The District Court's denial of a writ led to this appeal.

First, Appellant argues that he is "obviously and clearly innocent of any Second, Appellant asserts that he was denied the Sixth Amendment right to the effective assistance of counsel. The District Court made explicit findings that Appellant's counsel rendered him reasonably effective assistance, in accordance with the standards enunciated in Beasley v. United States, 491 F.2d 687 (6th Cir. 1974). The record supports these findings.

charges" and that justice demands issuance of a writ. The Great Writ is not an instrument which the federal courts may employ at will to reverse state criminal convictions. Rather it is the means by which federal courts may undo "restraints contrary to our fundamental law, the Constitution." Fay v. Noia, 372 U.S. 391, 409, 83 S.Ct. 822, 832, 9 L.Ed.2d 837 (1963). Assuming that no constitutional violations occurred in the taking of Appellant's plea, his imprisonment is the proper and direct result of his own admission of guilt. That his conviction may have been the result of plea bargaining and that he did not expressly admit his guilt are factors that do not invalidate his plea. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); United States v. Cox, 464 F.2d 937, 943 (6th Cir. 1972). Absent a claim of prosecutorial involvement in perjured testimony, the federal habeas corpus court has no jurisdiction to consider Appellant's attack on the veracity of his ex-wife's charges against him. Burks v. Egeler,512 F.2d 221 (6th Cir. 1975).

Third, Appellant argues that his plea was not knowingly and intelligently entered and that the state trial judge failed to follow procedures required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

One aspect of this claim is the argument that under Boykin, before accepting a guilty plea, a state judge must conduct an on-the-record examination of a defendant in full compliance with Rule 11, Fed.R.Crim.P. Appellant maintains that Boykin was violated because the trial judge failed to advise him of the maximum sentence for the offenses charged, to ascertain whether a factual basis existed for the plea, and to state precisely the charges to which he was pleading.

Rule 11 is a federal procedural rule, which must be observed scrupulously by the federal courts. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); United States v. Wolak, 510 F.2d 164 (6th Cir. 1975). The precise terms of Rule 11 are not constitutionally applicable to the state courts. Scranton v. Whealon, 514 F.2d 99 (6th Cir. 1975); Lawrence v. Russell, 430 F.2d 718, 721 (6th Cir. 1970). ¹

What Boykin does require has not been fully discussed in this Circuit. Although our decisions have touched upon Boykin, referring to its "affirmative disclosure" requirement, Cochran v. Norvell, 446 F.2d 61, 63 (6th Cir. 1971), ² no decision has dealt squarely with its meaning. ³

i Boykin requires that no guilty plea be accepted "without an affirmative showing that it was intelligent and voluntary." 395 U.S. at 242, 89 S.Ct. at 1711. Boykin mandates that a conviction based on a guilty plea be reversed It is good procedure, therefore, for a state judge to conduct a careful inquiry into the defendant's understanding of the nature and consequences of his plea. ⁴ A comprehensive on-the-record inquiry into this matter "forestalls the spin-off of collateral proceedings that seek to probe murky memories." 395 U.S. at 244, 89 S.Ct. at 1713.

unless "the prosecution spread(s) on the record the prerequisites of a valid waiver" of the constitutional rights which a defendant surrenders by pleading guilty. 395 U.S. at 242, 89 S.Ct. at 1712.

If the discussion between defendant and trial judge at the time of a plea's acceptance leaves doubt as to whether a plea was in fact voluntary and intelligent, however, a defendant is not automatically entitled to a reversal of his conviction. Rather, in that circumstance if a defendant argues in a post-conviction proceeding that his plea was entered without his consent or without an understanding of the plea's nature and consequences, Boykin places a burden on the State to prove the contrary. A habeas court may not " presume a waiver of (a defendant's) federal rights from a silent record." 395 U.S. at 243, 89 S.Ct. at 1712. The State must prove that the defendant's guilty plea was voluntary and intelligent, and to do so it may introduce evidence extrinsic to the transcript of the plea's acceptance. Todd v. Lockhart, 490 F.2d 626, 628 (8th Cir. 1974); McChesney v. Henderson, 482 F.2d 1101, 1106 (5th Cir. 1973); United States v. Sherman, 474 F.2d 303, 307 (9th Cir. 1973) (Hufstedler, J., dissenting on other grounds); Stinson v. Turner, 473 F.2d 913, 915-16 (10th Cir. 1973); Wade v. Coiner, 468 F.2d 1059, 1060 (4th Cir. 1972); United States ex rel. Darrah v. Brierley, 415 F.2d 9 (3d Cir. 1969); Vickery v. State of South Carolina, 367 F.Supp. 407, 415 (D.S.C.1973); Mountjoy v. Swenson, 306 F.Supp. 379, 384-85 (W.D.Mo. 1969); State v. Darling, 109 Ariz. 148, 506 P.2d 1042, 1046 (1973); Merrill v. State, 206 N.W.2d 828, 830-31 (S.D.1973); Morgan v. State, 287 A.2d 592, 598 (Me.1972).

In the face of an inadequate transcript at the time of a guilty plea's acceptance, the State must make a clear and convincing showing that the plea was in fact knowingly and understandingly entered. ⁵ LeBlanc v. Henderson, 478 F.2d 481 (5th Cir. 1973); Des Bouillons v. Burke, 418 F.2d 297, 300 (7th Cir. 1969).

The transcript of the plea's acceptance in this case is fairly extensive. The trial judge personally addressed Appellant and received affirmative replies to questions whether Appellant understood the charges against him, whether he intended to waive his self-incrimination, confrontation, and jury rights, whether he was pleading freely and voluntarily, and whether he was satisfied with his attorney's performance. This questioning fulfills Boykin's requirement of "an affirmative showing that (Appellant's guilty plea) was intelligent and Appellant argues, nonetheless, that this transcript ⁶ does not rebut his contentions that he was unaware of the possible maximum sentences on the charges against him, that there was no factual basis for the plea, and that he did not understand the charges to which he was pleading. Insofar as doubts exist based on the transcript of the plea's acceptance, the evidence adduced at the District Court's evidentiary hearing is clear and convincing that Appellant's plea was voluntary and intelligent in the challenged respects.

voluntary." 395 U.S. at 242, 89 S.Ct. at 1711.

Appellant signed a disposition sheet which expressly stated that the maximum possible sentence on the more...