Berry v. Mintzes

• Decision Date: 02 February 1984
• Docket Number: No. 82-1150,82-1150
• Citation: 726 F.2d 1142
• Parties: Thomas BERRY, Jr., Petitioner-Appellant, v. Barry MINTZES, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1142

726 F.2d 1142

Thomas BERRY, Jr., Petitioner-Appellant, v. Barry MINTZES, Warden, Respondent-Appellee.

No. 82-1150.

United States Court of Appeals Sixth Circuit.

Argued March 7, 1983.

Decided Feb. 2, 1984.

David M. Lawson (argued), Southfield, Mich., for petitioner-appellant.

Andrea L. Solak, Asst. Pros. Atty., A. George Best (argued), Asst. Pros. Atty., Detroit, Mich., for respondent-appellee.

Before WEICK, CELEBREZZE and PECK, Senior Circuit Judges.

JOHN W. PECK, Senior Circuit Judge.

On May 18, 1964, Thomas Berry, Jr., with the advice of court-appointed counsel, waived his right to a trial by jury and entered a plea of guilty to the open charge of murder in the Recorder's Court of the city of Detroit, Michigan. ¹ At the close of the hearing held to determine the degree of the offense, the trial judge found Berry guilty of first degree murder. Berry exhausted state remedies and unsuccessfully filed three petitions for a writ of habeas corpus in federal court prior to filing in 1980 the instant petition in the District Court for the Eastern District of Michigan. Following an evidentiary hearing, District Court Judge Avern Cohn denied the petition in an order and judgment filed on December 21, 1981. Berry v. Mintzes, 529 F.Supp. 1067 (E.D.Mich.1981). Berry appealed to this court.

The primary issue raised by this appeal is whether Berry's guilty plea was made voluntarily and knowingly in view of the alleged insufficiencies in the information imparted to Berry prior to the acceptance of his plea and the imposition of sentence. Because we hold that Berry's plea was made voluntarily, we affirm the judgment of the district court.

I. Background

Central to this case is Berry's plea of guilty to an open charge of murder pursuant to Mich.Comp.Laws Sec. 750.318. ² Under Michigan law, when a defendant enters such a plea, the trial judge conducts a record hearing to determine whether the crime committed was first or second degree murder. People v. Grillo, 319 Mich. 586, 30 N.W.2d 284 (1948); People v. Middleton, 22 Mich.App. 694, 177 N.W.2d 652 (1970). See generally People v. Machus, 321 Mich. 353, 32 N.W.2d 480 (1948). If, based on the evidence adduced at the hearing, the trial judge determines that a conviction for manslaughter but not murder is warranted, the trial judge is required to refuse to accept the plea of guilty to the charge of murder but rather must allow the defendant to plead guilty to a charge of manslaughter. ³ People v. Middleton, supra.

On October 25, 1963, Berry was arrested and arraigned on a criminal warrant charging him with first degree murder. On October 29, 1963, counsel was appointed to represent Berry. On November 4, 1963, following a preliminary hearing, Berry was bound over for trial on the first degree murder charge. On December 11, 1963, Berry, after being arraigned on an information charging him with first degree murder, pleaded not guilty.

On May 18, 1964, Berry, who was accompanied by counsel, appeared before the Recorder's Court, waived his right to a jury trial, and indicated that he wished to plead guilty to an open charge of murder which would allow the trial judge to determine the degree of the offense. Several times during the proceeding, in response to questions concerning whether he had been informed of and was aware of his rights Berry answered affirmatively. Berry also stated on the record at several points that he was entering his plea voluntarily and not in reliance on any promises of benefit or reward. Berry also was informed several times on the record that under a plea of guilty to an open charge of murder the trial judge could convict him of manslaughter or of first or second degree murder. During the record hearing, Berry, his codefendant, and several prosecution witnesses testified, and Berry's confession that he had killed the victim with a knife was introduced into evidence. The substance of Berry's testimony and of his counsel's argument was that Berry had killed his victim accidentally rather than intentionally. The prosecution's argument was that the killing, which took place during a robbery, was intentional. At the conclusion of the hearing, the trial judge accepted Berry's plea of guilty to the open charge of murder and found him guilty of first degree murder. On July 2, 1964, Berry was sentenced to life imprisonment without eligibility for parole.

II. Procedural Issues

The sole substantive issue raised by this appeal is whether Berry was denied due process in his entry of a plea of guilty to the open charge of murder. The state contends that under the provisions of Rule 9 of the Rules Governing Section 2254 Cases in the United States District Courts, the merits of this issue should not be reached due to Berry's delay in filing the instant petition and because the issue had been resolved on the merits in previous petitions. Berry responds that the state's contention, which was rejected by the district court, has not been preserved for review because the state has failed to file an appeal or cross-appeal. Both the state's and Berry's positions are meritless.

The parties agree both that the state neither appealed nor cross-appealed the district court's judgment dismissing Berry's petition and that the district court rejected the state's contention that Rule 9 required the dismissal of Berry's petition. Berry argues that the "inveterate and certain" rule articulated in United States v. American Railway Express Co., 265 U.S. 425, 44 S.Ct. 560, 68 L.Ed. 1087 (1924), bars the state from raising the Rule 9 argument because the argument attacks the judgment of the district court.

In Massachusetts Mutual Life Insurance Co. v. Ludwig, 426 U.S. 479, 96 S.Ct. 2158, 48 L.Ed.2d 784 (1976), the Supreme Court reaffirmed the following statement of the "inveterate and certain" rule:

It is true that a party who does not appeal from a final decree of the trial court cannot be heard in opposition thereto when the case is brought here by the appeal of the adverse party. In other words, the appellee may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below. But it is likewise settled that the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.

Id. at 480-81, 96 S.Ct. at 2159 (quoting American Railway Express, supra, 265 U.S. at 435, 44 S.Ct. at 563-564) (footnote omitted). The state's argument that Rule 9 requires dismissal of Berry's petition is no more than "an attack upon the reasoning of the lower court" which requires neither appeal nor cross-appeal. Massachusetts Mutual Life Insurance, supra, 426 U.S. at 481, 96 S.Ct. at 2159; 9 Moore's Federal Practice p 204.11. Accordingly, we turn to the state's Rule 9 arguments.

Rule 9 provides as follows:

(a) Delayed petitions. A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.

(b) Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

The state argues that under subsection (a) the district court was required to dismiss Berry's petition upon a showing of prejudice to the state in its ability to respond to Berry's petition. The state, relying upon the Advisory Committee Note to Rule 9, then argues that when a habeas corpus petition is filed more than five years after the time of judgment of conviction, as in the instant case, prejudice to the state is presumed, although the presumption is rebuttable. The state finally asserts that Berry did not rebut the presumption of prejudice.

The state's argument fails on several counts. First, the presumption of prejudice arising from a delay of more than five years in filing the petition for habeas corpus relief was eliminated from Rule 9 in 1976. Pub.L. 94-426, Sec. 2(7), 90 Stat. 1335 (1976), [1976] U.S.Code Cong. & Ad.News 2478, 2485. See LaLande v. Spalding, 651 F.2d 643, 644 (9th Cir.) (per curiam), cert. denied, 452 U.S. 965, 101 S.Ct. 3119, 69 L.Ed.2d 978 (1981). Second, the district court found that Berry's delay in filing the instant petition did not prejudice the state in its ability to respond. 529 F.Supp. at 1074. Based on our review of the record of the state court proceedings as well as of that of the district court evidentiary hearing, we are unable to hold that the district court's finding of an absence of prejudice was clearly erroneous, even though we acknowledge that the state's inability to procure the testimony of Berry's trial counsel made the state's response more difficult. Cf. Ford v. Superintendent, Kentucky State Penitentiary, 687 F.2d 870 (6th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1217, 75 L.Ed.2d 455 (1983); Arnold v. Marshall, 657 F.2d 83 (6th Cir.1981) (per curiam), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982). We do recognize, however, that this court has held that delay can "increase the petitioner's burden of proof in establishing a constitutional violation." Davis v. Adult Parole Authority, 610 F.2d 410, 415 (6th Cir.1979). Accord Ford, supra, 687 F.2d at 873. Finally, the language of ...