842 F.2d 1179 (10th Cir. 1988), 86-1844, Worthen v. Meachum

Docket Nº:86-1844.
Citation:842 F.2d 1179
Party Name:Sidney Allen WORTHEN, Petitioner-Appellant, v. Larry R. MEACHUM, Director; Attorney General of the State of Oklahoma, Respondents-Appellees.
Case Date:March 21, 1988
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1179

842 F.2d 1179 (10th Cir. 1988)

Sidney Allen WORTHEN, Petitioner-Appellant,

v.

Larry R. MEACHUM, Director; Attorney General of the State

of Oklahoma, Respondents-Appellees.

No. 86-1844.

United States Court of Appeals, Tenth Circuit

March 21, 1988

Page 1180

Michael Gassaway of Hughes & Nelson, Oklahoma City, Okl., for petitioner-appellant.

Before McKAY and SEYMOUR, Circuit Judges, and SAM, [*] District Judge.

SEYMOUR, Circuit Judge.

Sidney Allen Worthen brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1982), alleging, inter alia, that his guilty plea in an Oklahoma state court to first-degree murder was involuntary. The federal district court held that Worthen could not challenge his guilty plea because he had not shown cause and prejudice after his failure to raise the issue properly in state court. 1 On appeal Worthen

Page 1181

renews his contentions that his plea was involuntary, and that habeas relief is not barred by his procedural default. We affirm. 2

I. PROCEDURAL DEFAULT

Under Oklahoma law, a defendant may not appeal from a conviction on a guilty plea if he does not apply to withdraw the plea within ten days of the judgment and sentence. See Okla.Stat. tit. 22, Sec. 1051 (1981); Okla.R.Crim.App. 4.1. The transcript of the plea proceeding in this case reveals that Worthen, who was represented by retained counsel, was told that he had the right to ask the court to withdraw his guilty plea within ten days. He responded that he understood. He also stated that he wanted to waive the waiting period, and be sentenced and transported to prison immediately. He did not apply to withdraw his plea within ten days and did not attempt to pursue a timely direct appeal. 3

In May 1985, Worthen filed an application for state post-conviction relief, asserting, in addition to numerous other claims, that his guilty plea was involuntary. Under Oklahoma law, post-conviction relief is not available to a defendant who has not perfected a timely direct appeal unless he articulates special circumstances showing "sufficient reason" for his failure. Okla.Stat. tit. 22, Sec. 1086 (1981); see also Maines v. State, 597 P.2d 774, 776 (Okla.Crim.App.1979). The state courts here held that Worthen had failed to make the required showing and refused to consider the voluntariness of his plea on the merits. After reviewing the above procedural history, the federal district court held that Worthen could not obtain federal habeas review of his guilty plea unless he satisfied the cause and prejudice requirement set out in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In so doing, the court used the wrong legal standard.

In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Supreme Court held that a defendant who had not taken a direct appeal of his state conviction was barred from obtaining federal review only if his decision was a deliberate by-pass of orderly state procedure. Although subsequent Supreme Court cases have held that the more demanding Wainwright cause and prejudice standard applies when a defendant perfects a state appeal but does not raise the issue he later asserts in federal court, see Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986); Reed v. Ross, 468 U.S. 1, 11, 104 S.Ct. 2901, 2907, 82 L.Ed.2d 1 (1984), the appropriate test to apply when a petitioner has taken no direct state appeal remains the deliberate bypass inquiry of Fay, Holcomb v. Murphy, 701 F.2d 1307, 1310 (10th Cir.) ("[The Supreme Court] has not overruled Fay, and until it does we shall apply the rule of that case at least to situations in which no state appeal has been taken."), cert. denied, 463 U.S. 1211, 103 S.Ct. 3546, 77 L.Ed.2d 1394 (1983). See Murray, 106 S.Ct. at 2648 (expressing no opinion when defendant fails to appeal); Wainwright, 433 U.S. at 88 n. 12, 97 S.Ct. at 2507 n. 12 (same).

Although the district court assessed Worthen's procedural default under inappropriate criteria, a remand is not necessary under the circumstances of this case. In evaluating Worthen's showing of cause and prejudice, the court concluded that even if Worthen had established sufficient cause for his failure to appeal, he had not demonstrated actual prejudice because he

Page 1182

had not shown that his guilty plea had been given involuntarily. Thus, even if Worthen were, to prevail after the district court redetermined the availability of federal habeas relief under the less stringent standard of Fay, Worthen would receive on remand no more than the review the district court has already provided--an evaluation of the constitutional validity of his guilty plea. We will therefore consider whether the district court's ruling on this issue was correct.

II. THE GUILTY PLEA

Worthen and a co-defendant were charged with first-degree murder in the death of Worthen's wife, who was found in her home with her throat slit. At the preliminary hearing, the State relied on a signed statement that Worthen had given to investigating authorities. Worthen admitted in the statement that he and a cohort had planned the murder to obtain the insurance proceeds under a life insurance policy Worthen had recently obtained on his wife. He said that his cohort actually did the killing.

Pursuant to Oklahoma law, the State indicated its intent to seek the death penalty for Worthen by filing a Bill of Particulars setting out the evidence of aggravating circumstances upon which it would rely. See Okla.Stat. tit. 21, Sec. 701.10 (1981); Ross v. State, 717 P.2d 117, 122-23 (Okla.Crim.App.1986). The record of the guilty plea proceedings reveals that Worthen agreed to plead guilty to first degree murder upon the advice of his attorney in exchange for the State's agreement to withdraw the Bill of Particulars. The plea bargain thus eliminated the possibility that Worthen could be sentenced to death. Instead, he was sentenced to life in prison.

On appeal, Worthen asserts that his plea was involuntary, and therefore constitutionally invalid, because: 1) he was not advised at the plea proceeding of the range of punishment for the offense; 2) he was likewise not advised of the acts sufficient to constitute the offense for which he was charged; and 3) he entered the plea in reliance upon misrepresentations made by his attorney. He does not challenge the district court's failure to hold an evidentiary hearing, nor does he assert that further factual development is necessary to resolve the issues he pursues on appeal.

A.

A plea is not voluntary unless the defendant knows the direct consequences of his decision, including the maximum penalty to which he will be exposed. See, e.g., Quiroz v. Wawrzaszek, 749 F.2d 1375, 1378 (9th Cir.1984), cert. denied, 471 U.S. 1055, 105 S.Ct. 2119, 85 L.Ed.2d 483 (1985); Rouse v. Foster, 672 F.2d 649, 651 (8th Cir.1982); Cheely v. United States, 535 F.2d 934, 935 (5th Cir.1976). While Worthen is correct in asserting that he was not informed of the maximum sentence on the record of the plea colloquy, we do not agree that a silent record is always dispositive. The critical inquiry is whether Worthen actually knew of the maximum possible sentence. See, e.g., Nelson v. Callahan, 721 F.2d 397, 400 (1st Cir.1983); Rouse, 672 F.2d at 651; Hunter v. Fogg, 616 F.2d 55, 58 (2d Cir.1980). But see Yellowwolf v. Morris, 536 F.2d 813 (9th Cir.1976) (requiring that trial judge advise the defendant on the record of the maximum penalty).

Under Oklahoma law at the time Worthen pled guilty to first-degree murder, he could have received only two possible sentences, death or life in prison. See, Okla.Stat. tit. 21, Sec. 701.9, subd. A (1981). The record reflects that Worthen agreed to plead only after extensive discussion with his attorney, an experienced criminal lawyer. See Berry v. Mintzes, 726 F.2d 1142, 1149 (6th Cir.), cert. denied, 467 U.S. 1245, 104 S.Ct. 3520, 82 L.Ed.2d 828 (1984). Moreover, Worthen expressed no surprise or objection when the court imposed a life sentence. See id.; Johnson v. Fogg, 653 F.2d 750, 753 (2d Cir.1981). Worthen has never alleged he did not know that life imprisonment was the only sentence he could receive after the State agreed not to seek the death penalty. Under these circumstances, we cannot hold his plea unknowing or involuntary simply because the

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court did not, as it should have, specifically inform him at his plea hearing of the maximum sentence.

B.

Worthen contends that his plea was not knowing and voluntary because he was not advised on the record of the acts sufficient to constitute the offense. He does not allege what he did not understand about the charge against him. We assume he is contending that the record lacks an explanation of the nature or elements of the crime. See Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976).

Worthen was at the preliminary hearing where the details of the murder were described by the investigating officer. The transcript of the plea colloquy reveals that Worthen's attorney stated on the record, after referring to the information filed against Worthen, that Worthen was charged with effecting the death of his wife to recover insurance proceeds. Thereupon, in response to a question from the judge, Worthen affirmed that he was pleading guilty because he was guilty of the offense as described.

"It is well established that a plea of guilty cannot be voluntary in the sense that it constitutes an intelligent admission that the accused committed the offense unless the accused has received 'real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.' "

Marshall v. Lonberger, 459 U.S. 422, 436, 103 S.Ct. 843, 852, 74 L.Ed.2d 646 (1983) (citations omitted); Henderson, 426 U.S. at 645 & n. 13, 96 S.Ct. at 2257 & n. 13 (1976)). Thus, in order for a...

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