Nelson v. Callahan

• Decision Date: 14 November 1983
• Docket Number: Nos. 83-1195,83-1196,s. 83-1195
• Citation: 721 F.2d 397
• Parties: Walter NELSON, Petitioner, Appellee, v. William F. CALLAHAN, Respondent, Appellant. Walter NELSON, Petitioner, Appellant, v. William F. CALLAHAN, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 397

721 F.2d 397

Walter NELSON, Petitioner, Appellee, v. William F. CALLAHAN, Respondent, Appellant.

Walter NELSON, Petitioner, Appellant, v. William F. CALLAHAN, Respondent, Appellee.

Nos. 83-1195, 83-1196.

United States Court of Appeals First Circuit.

Argued Oct. 7, 1983.

Decided Nov. 14, 1983.

Bernard Grossberg, Boston, Mass., by appointment of the Court, for petitioner, appellee.

Francis Robinson, Newton, Mass., with whom Francis X. Bellotti, Atty. Gen., Frederick R. Riley, Asst. Atty. Gen., Chief, Criminal Bureau, Barbara A.H. Smith, Asst. Atty. Gen., Chief, Criminal Appellate Division, and Michael B. Roitman, Asst. Atty. Gen., Boston, Mass., were on brief, for respondent, appellant.

Before BOWNES and BREYER, Circuit Judges, and SMITH, ^* Senior District Judge.

BOWNES, Circuit Judge.

In this habeas corpus action, petitioner Walter Nelson challenges the constitutional validity of his 1956 criminal convictions in the Massachusetts courts on the grounds that his guilty pleas were involuntary. Nelson was indicted in February, 1956, by a Suffolk County grand jury for first degree murder, sodomy and assault with intent to commit rape. After observation at the State Hospital in Bridgewater, he was pronounced "feeble-minded" but "sane" and "responsible for his alleged criminality." At his arraignment in April, 1956, Nelson pled not guilty to all three charges. After several days of trial, however, he entered guilty pleas to second degree murder, sodomy and assault with intent to commit rape; he was sentenced to consecutive prison terms of life, 18 to 20 years, and life for the respective offenses.

In 1970, Nelson moved in the Superior Court of the Commonwealth for a new trial, claiming that his convictions rested in part on a coerced confession. After a hearing, the motion was denied. Nelson filed a second motion in the Supreme Judicial Court in 1976, which was remanded to the Superior Court. On April 24, 1979, the Superior Court made detailed findings of fact and conclusions of law: it held that the pleas to second degree murder and sodomy were voluntary and therefore valid, but that the assault plea was not. The sentence and indictment for assault with intent to commit rape were accordingly vacated and dismissed on June 12, 1979, and February 12, 1981, respectively. Nelson unsuccessfully appealed the denial of his motion with respect to the murder and sodomy charges to the Massachusetts Appeals Court, Commonwealth v. Nelson, 9 Mass.App. 886, 402 N.E.2d 1073 (1980) (affirming Superior Court), the Supreme Judicial Court denied further review.

On February 24, 1981, Nelson filed a habeas corpus petition in the United States District Court for the District of Massachusetts challenging the validity of his pleas to second degree murder and sodomy. On February 16, 1983, the district court, Zobel, J., granted the petition with respect to the sodomy charge and denied it with respect to the murder charge. Both Nelson and the Commonwealth have appealed.

The Superior Court found the relevant facts surrounding Nelson's change of plea in 1956 as follows. After Nelson initially pled not guilty on all counts, a jury was impanelled and the trial proceeded for three or four days: several prosecution witnesses testified, and a confession signed by Nelson was ruled voluntary and admitted into evidence. At this point, defense counsel conferred with Nelson and members of his family. He advised them that the jury would be warranted in finding Nelson guilty of first degree murder on the evidence already before them, and that, in his opinion, there was no possibility of acquittal. He explained the alternative theories of first degree murder, viz. deliberate premeditation and extreme atrocity or cruelty. He also told Nelson and his family that, under the circumstances, there was a substantial possibility of a death penalty if Nelson were convicted. He pointed out that if Nelson pled guilty to second degree murder he could be sentenced only to life imprisonment, and suggested that Nelson so plead. He explained the rights that Nelson would be relinquishing if he pled guilty. Defense counsel also told Nelson that he would not sponsor a plea of guilty to second degree murder unless Nelson had actually killed the woman.

As a result of this discussion, Nelson decided to change his plea. The trial judge did not inquire into the voluntariness of the guilty pleas when he accepted them, nor did he explain to Nelson which rights he was giving up or the elements of the charged offenses. The clerk merely recited each charge, asked Nelson for his plea, and received the response "guilty."

Nelson now contends that his pleas to second degree murder and sodomy were involuntary because he did not understand that by pleading guilty he waived his self-incrimination privilege and his rights to a jury trial and confrontation; he also contends that he did not realize that consecutive sentences could be imposed, and that he was not informed of the elements of the charged offenses.

The record does not affirmatively show that Nelson's pleas were entered "voluntarily and understandingly" as required since the Supreme Court's decision in Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 1713, 23 L.Ed.2d 274 (1969). In cases like the present one tried before Boykin, however, the burden of proving involuntariness lies with the petitioner. Bruce v. Estelle, 536 F.2d 1051, 1058 (5th Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977) (burden of proof); United States ex rel. Curtis v. Zelker, 466 F.2d 1092, 1097-98 (2d Cir.1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1405, 35 L.Ed.2d 612 (1973) (same); Smith v. Cox, 435 F.2d 453, 457-58 (4th Cir.1970), vacated on other grounds sub nom. Slayton v. Smith, 404 U.S. 53, 92 S.Ct. 174, 30 L.Ed.2d 209 (1971) (nonretroactivity); United States ex rel. Hughes v. Rundle, 419 F.2d 116, 118 (3d Cir.1969) (same); see also Porter v. Superintendent, 383 Mass. 111, 417 N.E.2d 1199, 1202 (1981). It was therefore up to the state court to hear Nelson's case, make findings of fact, and decide whether he met his burden of proof. The role of federal courts in habeas corpus proceedings concerning state court convictions is generally limited to determining whether a federal constitutional violation has occurred; the fact findings of state courts are entitled to a presumption of correctness unless they are not fairly supported by the record. Sumner v. Mata, 455 U.S. 591, 591-92, 102 S.Ct. 1303, 1304, 71 L.Ed.2d 480 (1981). Having reviewed the record thoroughly, we agree with the district court that the Superior Court's fact findings are adequately supported, and therefore accept them as binding.

Nelson's contention that he was not informed of the rights he waived by pleading guilty is flatly contrary to the Superior Court's explicit finding that he "had a first hand understanding of his right to a jury trial and his right to confront the witnesses against him," and that he "intelligently waived" these rights along with his privilege against self-incrimination. Although the record in this case is sketchy, we note that the state court's findings are supported by the hearing testimony of Nelson's trial counsel, and that Nelson relies only on his bare assertion that he was not informed of his rights. The state court has already determined that Nelson failed to meet his burden of proof on this issue, and we are not in a position to reevaluate the evidence.

Nelson's second claim is that he was not informed that he might be sentenced to consecutive prison terms, and that this made his pleas constitutionally involuntary. In this situation, we must look at " 'whether the defendant was aware of actual sentencing possibilities, and, if not, whether accurate information would have made any difference in his decision to enter a plea.' " Hunter v. Fogg, 616 F.2d 55, 58 (2d Cir.1980), quoting Caputo v. Henderson, 541 F.2d 979, 984 (2d Cir.1976). The state court found that Nelson "was not aware of the 'maximum possible sentence' because he was not informed by either the trial judge or defense counsel of the possibility of consecutive sentences," but concluded that there was no reason to think that accurate information would have affected his decision to change pleas.

The defendant's primary if not sole motivation to enter a plea ... was to avoid the possible imposition of the death penalty. Moreover, counsel had informed him that second degree murder was punishable by life imprisonment. The Court is unable to find any evidence in the record to show that defendant was relying upon the erroneous assumption that he could receive only one life sentence if he changed his plea.

We agree that any misunderstanding on Nelson's part as to sentencing did not materially affect his pleas, and therefore does not rise to the level of a substantial constitutional objection.

Nelson's third contention goes to his understanding of the elements of the charged offenses, especially the malice requirement for second degree murder. He claims that neither the trial judge nor defense counsel explained to him the meaning of malice or the fact that it was an essential element of second degree murder. He argues, relying on Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), that he lacked " 'real notice of the true nature of the charge against him,' " id. at 645, 96 S.Ct. at 2257, quoting Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859 (1941), and that his guilty plea was therefore constitutionally deficient.

In Henderson, the Supreme Court held that a guilty plea to second degree murder was involuntary where it was established as a fact that the defendant had not been informed and was not aware that under New York law intent to kill was an essential element of the offense to which he pled. As we have observed elsewhere, the Henderson Court did not purport to lay down an absolute requirement...