Johnson v. Mabry

• Decision Date: 06 May 1983
• Docket Number: No. 81-2181,81-2181
• Citation: 707 F.2d 323
• Parties: George JOHNSON, Appellant, v. James MABRY, Commissioner, Arkansas Department of Revenue, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 323

707 F.2d 323

George JOHNSON, Appellant, v. James MABRY, Commissioner, Arkansas Department of Revenue, Appellee.

No. 81-2181.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 15, 1982.

Decided May 6, 1983.

Richard Quiggle, Little Rock, Ark., for appellant.

Steve Clark, Atty. Gen. by Dennis R. Molock, Deputy Atty. Gen., Little Rock, Ark., for appellee.

Before LAY, Chief Judge, McMILLIAN and JOHN R. GIBSON, Circuit Judges.

McMILLIAN, Circuit Judge.

George Johnson appeals from a final order entered in the District Court for the Eastern District of Arkansas dismissing his petition for writ of habeas corpus, 28 U.S.C. Sec. 2254. For reversal petitioner argues that the district court erroneously refused (1) to grant specific performance of a proposed plea bargain and (2) to shift the burden of proof to the state to show that petitioner's ineffective assistance of counsel was not prejudicial. For the reasons discussed below, we reverse and remand.

Petitioner's case, like those of many other state habeas petitioners, has become procedurally complicated. For a statement of the facts underlying petitioner's criminal convictions, see Johnson v. State, 252 Ark. 1113, 482 S.W.2d 600 (1972). According to the evidence presented by the state, in May 1970 petitioner and Eddie Jackson broke into the house of W.A. Siscoe with the intent to commit burglary. Mr. and Mrs. Siscoe and their daughter Vicki arrived home in the middle of the burglary. Vicki was the first person to enter the house; she confronted the intruders and screamed. Mr. Siscoe heard Vicki's screams and entered the house. One of the intruders threatened to kill him and grabbed Vicki and used her to shield his escape from the house. At this point shots were exchanged by one of the intruders and Mr. Siscoe. Vicki was fatally wounded, and petitioner and Mr. Siscoe were wounded.

Petitioner was convicted of first degree murder for the death of Vicki Siscoe and sentenced to life imprisonment. Petitioner was subsequently convicted of burglary and assault with intent to kill on June 15, 1971; these charges arose out of the same incident. Petitioner was sentenced to 21 years imprisonment for the burglary and 12 years for the assault, to be served concurrently. On July 17, 1972, petitioner's murder conviction was reversed by the Arkansas Supreme Court for failure to give a requested jury instruction and remanded for a new trial. Johnson v. State, 482 S.W.2d at 606.

The state trial court appointed Harold Hall of the public defender's office to represent petitioner. The following facts about the plea bargaining negotiations are not disputed. On Friday, October 27, 1972, the prosecuting attorney contacted Hall and proposed a 21-year sentence, to be served concurrently with petitioner's burglary and assault sentences, in exchange for a guilty plea to the charge of accessory after a felony murder. Hall told petitioner the terms the next day, Saturday, October 28, 1972. Petitioner agreed to accept the plea proposal. The following Monday, October 30, 1972, Hall called the prosecuting attorney and accepted the plea bargain. However, the prosecuting attorney told Hall that a mistake had been made and withdrew the proposal. The prosecuting attorney then proposed a recommendation of a 21-year sentence to be served consecutively to petitioner's other sentences. Apparently Hall did not respond to this second proposal and assigned the case to another public defender, John Achor.

Petitioner proceeded to trial November 8, 1972. On November 9, 1972, the trial court declared a mistrial, evidently on the ground of prejudicial newspaper publicity, excused the jury and rescheduled the trial for December 7, 1972. The trial was later continued to February 26, 1973, when petitioner entered a guilty plea to the charge of accessory after a felony murder and was sentenced to 21 years imprisonment, to be served consecutively to the burglary and assault sentences.

Petitioner sought post-conviction relief in the state courts on the grounds of mistake and ineffective assistance of counsel. The state trial court denied relief and its decision was affirmed by the Arkansas Supreme Court in an unpublished opinion, Johnson v. State, No. CR-78-18 (Ark. June 5, 1978). Petitioner then filed the petition for writ of habeas corpus, alleging mistake, coercion and ineffective assistance of counsel. Petitioner argued that he did not understand the nature and consequences of the plea bargain and pled guilty only because his defense attorney threatened him with life imprisonment if he went to trial. Petitioner also argued that he received ineffective assistance of counsel because his defense attorney did not discuss the case with him until ten minutes before trial, failed to interview witnesses and did not explain the nature and consequences of the plea bargain.

The district court referred the petition to a magistrate for an evidentiary hearing and report and recommendation. Petitioner, Hall and Achor testified at the first evidentiary hearing in August 1979. At this point petitioner raised an additional constitutional issue, alleging that the prosecuting attorney's withdrawal of the plea bargain proposal after petitioner's acceptance was unconstitutional. The magistrate held supplemental evidentiary hearings in October and December 1980, at which petitioner, Lacey Gordon ¹ and Benny Kelley ² testified.

The district court adopted the magistrate's report and recommendation, Johnson v. Mabry, No. PB-C-78-139 (E.D.Ark. Sept. 17, 1981), finding that petitioner's mistaken belief about the sentence he would receive if he pled guilty was not reasonably justified, ³ that petitioner's guilty plea was not induced by threats or misrepresentations by defense counsel, ⁴ and that petitioner was not prejudiced by ineffective assistance of counsel. ⁵ The court also rejected petitioner's claim that the prosecuting attorney's withdrawal of the plea bargain proposal was unconstitutional. ⁶ Slip op. at 11-12, citing Government of Virgin Islands v. Scotland, 614 F.2d 360, 363-65 (3d Cir.1980) (Scotland ). The district court dismissed the petition and this appeal followed. On appeal petitioner argues that (1) he has a constitutional right to enforcement of the plea bargain proposal and (2) because of the changed circumstances beyond petitioner's control, the court should have shifted the burden of proof to the state on the question of the absence of prejudice. Because we agree with petitioner's first argument, we do not reach the burden of proof question. See note 5 supra.

In 1971 the Supreme Court recognized that the "disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called 'plea bargaining,' is an essential component of the administration of justice," which, if "[p]roperly administered, ... is to be encouraged." Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971); see also Brady v. United States, 397 U.S. 742, 751-52, 90 S.Ct. 1463, 1470-71, 25 L.Ed.2d 747 (1970) (discussing advantages of plea bargained dispositions for criminal justice administration). The Court's approval of plea bargaining "presuppose[d] fairness in securing agreement between an accused and a prosecutor." Santobello v. New York, 404 U.S. at 261, 92 S.Ct. at 498. The Court held that "[t]his phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances." Id. at 262, 92 S.Ct. at 499. The source of the fairness requirement is constitutional, presumably substantive due process, see Cooper v. United States, 594 F.2d 12, 15-16 (4th Cir.1979) (Cooper ); see also Santobello v. New York, 404 U.S. at 266-67, 92 S.Ct. at 500-01 (Douglas, J., concurring) (specifically noting that Santobello is a state case over which the Supreme Court has no supervisory jurisdiction and recognizing a constitutional basis for the holding); Westen & Westin, A Constitutional Law of Remedies for Broken Plea Bargains, 66 Calif.L.Rev. 471, 474-75 n. 10, 476 n. 16 (1978) (hereinafter Broken Plea Bargains ); Comment, Specific Enforcement to Ensure Due Process in Plea Bargaining, 21 Wm. & Mary L.Rev. 521 (1979) and mandates that "the most meticulous standards of both promise and performance must be met by prosecutors engaging in plea bargaining." Correale v. United States, 479 F.2d 944, 947 (1st Cir.1973); see United States v. Bowler, 585 F.2d 851, 854 (7th Cir.1978) ("to protect the plea bargaining defendant from overreaching by the prosecutor and to insure the integrity of the plea bargaining process"); Palermo v. Warden, 545 F.2d 286, 296 (2d Cir.), cert. denied, 431 U.S. 911, 97 S.Ct. 2166, 53 L.Ed.2d 221 (1976); Geisser v. United States, 513 F.2d 862, 863 (5th Cir.1973), cert. denied, 450 U.S. 1031, 101 S.Ct. 1741, 68 L.Ed.2d 226 (1981) (following several remands).

In general the legal analysis in plea bargaining cases has relied heavily upon contract law principles, in particular emphasizing contract formation (offer and acceptance), breach, estoppel (entry of guilty plea or detrimental reliance), and remedies (rescission or specific performance). See, e.g., Scotland, 614 F.2d at 364; ⁷ Cooper, 594 F.2d at 16 (citing cases from Fourth Circuit); People v. Calloway, 29 Cal.3d 666, 631 P.2d 30, 175 Cal.Rptr. 596 (1981) (bank); People v. Kaanehe, 19 Cal.3d 1, 559 P.2d 1028, 136 Cal.Rptr. 409 (1977); Shields v. State, 374 A.2d 816, 819 (Del.), cert. denied, 434 U.S. 893, 98 S.Ct. 271, 54 L.Ed.2d 180 (1977); see generally Broken Plea Bargains, 66 Calif.L.Rev. at 525. Other cases, however, have recognized that contract law is useful only as an analogy. See United States v. Calabrese, 645 F.2d 1379, 1390 (10th Cir.) (analogy to contract law is not determinative in plea negotiations), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, 69...