Mitchell v. Superior Court for Santa Clara

• Decision Date: 21 November 1980
• Docket Number: No. 79-2502,79-2502
• Citation: 632 F.2d 767
• Parties: Thomas Robert MITCHELL and Robert Charles Shepherd, Jr., Petitioners-Appellants, v. SUPERIOR COURT FOR the COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 767

632 F.2d 767

Thomas Robert MITCHELL and Robert Charles Shepherd, Jr. Petitioners-Appellants, v. SUPERIOR COURT FOR the COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, Respondent-Appellee.

No. 79-2502.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 17, 1980.

Decided Oct. 7, 1980.

Rehearing Denied Nov. 21, 1980.

Sheldon Portman, San Jose, Cal., for petitioners-appellants.

Michael D. Whelan, Deputy Atty. Gen., San Francisco, Cal., argued, Don Jacobson, San Francisco, Cal., on brief, for respondent-appellee.

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

Before MERRILL and WALLACE, Circuit Judges, and WYATT, ^* District Judge.

WALLACE, Circuit Judge:

Mitchell and Shepherd were charged in California state court with various narcotics violations of the California Health and Safety Code. In a motion to dismiss the charges they claimed that police conduct interfered with their constitutional rights to effective assistance of counsel and due process of law, and that the police coerced them to work as undercover agents in violation of the constitutional guarantee against involuntary servitude. The trial court denied the motion to dismiss after an evidentiary hearing. Mitchell and Shepherd then withdrew their previously entered not-guilty pleas, and pled guilty to two of the six counts with which they were charged; the remaining four counts were dismissed pursuant to a plea bargain. The California Court of Appeal reviewed the issues raised in the motion to dismiss and affirmed the conviction. The California Supreme Court denied hearing. Mitchell and Shepherd then petitioned in federal district court for habeas corpus relief, once again asserting denial of the rights to effective assistance of counsel and due process of law, and the imposition of involuntary servitude. The district court denied the petition. We affirm.

I

On the evening of April 27, 1976, Mitchell and Shepherd were arrested at their apartment after selling a quantity of LSD to a special agent of the Santa Clara County Narcotics Bureau. The police took them to separate rooms of the apartment, informed them of the charges that would be brought against them, and asked them to assist the police by setting up undercover drug purchases. In return for the undercover work the police offered to assist Mitchell and Shepherd in obtaining a pretrial release without bail, and to write a letter to the Adult Probation Department describing Mitchell's and Shepherd's cooperation in the undercover work. Mitchell and Shepherd accepted the police offer.

After being booked at the county jail, but before their release without bail, Mitchell and Shepherd met with an attorney from the public defenders office. The attorney warned them of the dangers of undercover narcotics work and advised them to reconsider their decision. Despite the attorney's warning, Mitchell and Shepherd arranged a purchase of heroin during which a drug dealer known as "Black Bob" was arrested.

Following their arraignment, Rose, a second attorney from the public defenders office, met with Mitchell and Shepherd to ascertain what arrangements had been made with the police. She also contacted Police Officer Kaiser, who denied having made promises to Mitchell and Shepherd. Rose told Kaiser that she did not want her clients working for him. Kaiser replied that he would leave that decision to her clients.

In order to maintain their release without bail and to secure lighter sentences, Mitchell and Shepherd continued working for the police. After they had succeeded in setting up two more narcotics purchases, Officer Kaiser met twice with the deputy district attorney assigned to the cases to persuade him to reduce the charges against Mitchell and Shepherd. The deputy district attorney refused.

At a preliminary hearing held in June 1976, the deputy district attorney moved to revoke Mitchell's and Shepherd's release without bail, stating that their corporation with police had been minimal and that bail would be necessary to ensure their presence at trial. The motion was granted. Mitchell was unable to post bail, and was remanded to the county jail where he was beaten by other prisoners, apparently in retaliation for his undercover work and the resulting arrest of "Black Bob." Before the preliminary hearing, Shepherd was also assaulted, and his attackers cut an "X" in his hand purportedly to identify him for later attacks. Following revocation of the release without bail, Shepherd's mother telephoned Kaiser, who had not been present at the preliminary hearing. Kaiser blamed the revocation of her son's release on the public defenders and their objection to his undercover work.

Following the trial court's denial of their motion to dismiss for various constitutional violations, Mitchell and Shepherd changed their pleas to guilty. In doing so, Mitchell and Shepherd stated that they made such pleas "without waiving any rights to challenge on appeal the motion to dismiss." When the Adult Probation Department contacted Kaiser in preparation for a presentencing report, Kaiser advised only that Mitchell and Shepherd had been unable to set up any large transactions. Kaiser never fulfilled his promise to write to the probation department about the undercover work of Mitchell and Shepherd.

From these facts, Mitchell and Shepherd claimed the following constitutional violations in their petition for habeas corpus: (1) that Kaiser interfered with their attorney-client relationship by denying to Rose that promises had been made to Mitchell and Shepherd, by disregarding Rose's request that she be involved in any future negotiations for undercover work, and by suppressing favorable information that would have aided Rose in plea bargaining; (2) that Kaiser vindictively arranged for revocation of Mitchell's and Shepherd's release without bail in punishment for their exercise of the right to counsel, as demonstrated by Kaiser's comments during his telephone conversation with Shepherd's mother, and that this vindictive revocation of their release violated due process because it was made with the knowledge that Mitchell would be assaulted in jail and thus "shocks the conscience"; and (3) that police promises of pretrial release and light sentences coerced them to work as undercover informants and amounted to involuntary servitude in violation of the Thirteenth Amendment and the Federal Antipeonage Statute, 42 U.S.C. § 1994. In denying the petition, the district court concluded, in part, that Mitchell's and Shepherd's guilty pleas foreclosed relief by federal habeas corpus. Although the propriety of that conclusion was inadequately discussed in the briefs submitted to us, we have determined that the district court's ruling was correct.

II

As a general rule, one who has voluntarily and intelligently pled guilty to a criminal charge may not subsequently seek federal habeas relief on the basis of pre-plea constitutional violations. The Supreme Court has stated:

(A) guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea . . . .

Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973). See also Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Journigan v. Duffy, 552 F.2d 283, 287 (9th Cir. 1977). Unless Mitchell's and Shepherd's petition comes within one of several exceptions to this general rule (Tollett rule), their guilty pleas foreclose federal habeas relief.

A.

The first and most obvious exception to the Tollett rule is implicit in the above-quoted language: a guilty plea will not preclude federal habeas relief if it was not voluntarily and intelligently made with competent advice of counsel. 411 U.S. at 267, 93 S.Ct. at 1608. Mitchell and Shepherd do not contest the voluntary and intelligent nature of their guilty pleas, and the record indicates that the pleas were knowingly and freely given. The contention that police conduct interfered with their rights to effective assistance of counsel relates not to the guilty plea, but to conduct that allegedly occurred prior to the hearing on their motion to dismiss. Only after the state trial court had denied the dismissal motion did Mitchell and Shepherd, with the full advice of their attorneys, change their pleas to guilty. No claim is made that the pre-hearing conduct of the police impaired the advice of counsel received after the hearing. We conclude that the guilty pleas were voluntarily and intelligently made with competent advice of counsel.

B.

In Journigan v. Duffy, supra, 552 F.2d 283, we concluded that a guilty plea precludes federal habeas relief not because a defendant thereby waives his right to seek it, but because a guilty plea admits factual guilt. Id. at 287-88, citing Menna v. New York, 423 U.S. 61, 62 n.2, 96 S.Ct. 241, 242 n.2, 46 L.Ed.2d 195 (1975) (per curiam). "A guilty plea . . . simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established." Menna v. New York, supra, 423 U.S. at 62 n.2, 96 S.Ct. at 242 n.2. Given this basis for the Tollett rule, a guilty plea will not bar "federal habeas corpus where the underlying constitutional claim goes to the power of the state to bring the defendant into court to answer the charges...