Brown v. Peyton, 13810.

• Decision Date: 29 December 1970
• Docket Number: No. 13810.,13810.
• Citation: 435 F.2d 1352
• Parties: George BROWN, Jr., Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

435 F.2d 1352 (1970)

George BROWN, Jr., Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.

No. 13810.

United States Court of Appeals, Fourth Circuit.

Argued June 3, 1970.

Decided December 29, 1970.

H. Lane Kneedler, Charlottesville, Va. (Court-assigned) for appellant.

Edward J. White, Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen., on brief) for appellee.

Before BRYAN and WINTER, Circuit Judges, and WIDENER, District Judge.

WIDENER, District Judge:

This case raises the issue of whether a trial judge's participation in plea bargaining negotiations vitiates the voluntariness of a subsequent guilty plea. The district court held that a state prisoner's plea of guilty was voluntary notwithstanding the fact that the record made it clear that the trial judge had entered into the plea bargaining negotiations. We affirm the decision of the district court.

On April 29, 1957, Emma Marion Harper, and her husband, Charles Hamilton Harper, were robbed in Essex County, Virginia. The robber was armed with a revolver. Mr. Harper was severely beaten with a hammer by the robber and was near death for a period of time. He later recovered.

On May 2, 1957, George Brown, Jr., the petitioner herein, was arrested in Alexandria, Virginia. Brown testified that he had a second or third grade education and an IQ of 58. However, at the state habeas corpus hearing in 1967, Brown demonstrated that he was mentally alert when he spontaneously objected to the relevancy of certain questions asked on cross-examination.

After his arrest, Brown was interrogated but did not incriminate himself. He alleged that he was forced to stand in a two man line-up with one Oscar Willis for identification by Mrs. Harper. In his brief before this court, it is claimed that Mrs. Harper knew Willis at the time of the line-up and identified Brown as the robber. During the interrogation and the line-up, Brown was without counsel.

On May 16, 1957, Brown was indicted upon two counts of robbery, the first count charging the robbery of Mrs. Harper; the second count charging the robbery of Mr. Harper by "severely striking, beating and severely wounding the said Harper" with a hammer. The Virginia law applicable to robbery allows imposition of the death penalty for conviction under either of the two counts. In Virginia, the jury fixes punishment if the case is tried by jury. Va.Code Ann., § 19.1-291 (1960). The judge fixes punishment if the defendant is tried without a jury. Va.Code Ann., § 19.1-192 (1960).

On the day the indictment was returned against Brown, the court appointed an experienced lawyer to represent Brown. Brown initially indicated to his attorney that there was another person involved in the robbery and that he, Brown, was not guilty. The appointed attorney testified at the state habeas corpus hearing that, later, Brown's contention that another party was involved "sort of evaporated."

After his investigation of the case, counsel advised Brown that he should plead guilty rather than risk a jury trial in which the jury could have sentenced him to death.

Prior to the trial, Brown's lawyer entered into plea negotiations with the prosecutor. Later, after both the prosecutor and defense counsel had talked with the trial judge, the judge told Brown's counsel that if he pleaded guilty, the court would impose a life sentence. When this proposal was offered to Brown, he decided to plead guilty to the first count of the indictment charging him with the robbery of Mrs. Harper. The plea was accepted and petitioner was sentenced to life imprisonment. The second count of the indictment which charged Brown with attacking and robbing Mr. Harper was nolle prossed on the same date upon the motion of the prosecutor.

Petitioner's main contention in the appeal now before this court is that his guilty plea was involuntary because it was coerced by the trial judge. The petitioner asks this court to hold as a matter of law that a guilty plea is involuntary where the trial judge participated in the plea negotiation process prior to the time the defendant decided to plead guilty.

In his order, the trial judge found "that the accused fully understood the nature and effect of his plea."

At the state habeas corpus hearing, held more than ten years after the petitioner's trial, Brown's attorney could not recall if the trial judge had specifically questioned Brown concerning his guilty plea. However, he testified that it was the trial judge's usual practice to question defendants about pleas of guilty. The prosecutor, after reviewing his file of the case, testified that the trial judge "advised him (Brown) that he had a right to plead not guilty, and in case he pled not guilty, he would be entitled to a jury trial." He further testified that the trial judge advised Brown "that if he entered a plea of guilty, it would be his decision after advising with his lawyer * * *." Brown contends that the trial judge did not tell him "anything at all" about his plea or his right to a jury trial.

This court has considered the voluntariness of Brown's guilty plea once before when it affirmed the decision of the United States District Court for the Eastern District of Virginia, at Norfolk, dismissing Brown's petition without a hearing on March 3, 1959. We affirmed the lower court because Brown had failed to substantiate his "general allegations" that his plea had been coerced by his court-appointed attorney. Brown v. Smyth, 271 F.2d 227 (4th Cir. 1959).

Although this same ground of involuntariness of guilty plea was raised in the 1959 petition before the district court, this court is not precluded from considering this claim. In Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1962), the United States Supreme Court set out guidelines to control successive petitions for habeas corpus. In that case, the Supreme Court held that "Controlling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application." Sanders, p. 15, 83 S.Ct. p. 1077. Referring to the case before it then, the Supreme Court stated Petitioner's first motion under § 2255 was denied because it stated only bald legal conclusions with no supporting factual allegations. * * * the denial, thus based, was not on the merits. It was merely a ruling that petitioner's pleading was deficient." Sanders, p. 18, 83 S.Ct. p. 1079. Brown's first petition was denied without a hearing on similar grounds, specifically, that Brown had failed to substantiate his "general allegations." Thus, in accord with the guidelines of Sanders, the prior determination as to the voluntariness of Brown's guilty plea was not based upon the merits and does not preclude the present petition upon the same ground.

The district court below made sufficient findings of exhaustion of state remedies, and we need only note that although petitioner did not specifically raise the issue of the participation of the trial judge in plea bargaining negotiations in his habeas corpus hearing before the Circuit Court of Essex County, the record of that hearing reveals that the issue was before that court. Thus, for the purposes of exhaustion of state remedies, this issue was before the Virginia Supreme Court of Appeals when it refused to issue a writ of error in Brown's case. See United States v. Pate, 240 F.Supp. 696, 704 (N.D.Ill.1965). Brown had properly exhausted his state remedies upon this point when he petitioned the district court for a writ of habeas corpus. See Grundler v. North Carolina, 283 F.2d 798, 800 (4th Cir. 1960).

Shortly before this court heard the present case, the United States Supreme Court decided the case of Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In Brady, the petitioner alleged that his guilty plea was coerced by virtue of a criminal statute which provided a maximum penalty of death if the accused pleaded not guilty and was tried by a jury but provided for a maximum penalty of life imprisonment if the accused pleaded guilty and was sentenced by the judge. Even though Brady did not involve a plea bargaining situation, the Supreme Court stated in its opinion:

"Insofar as the voluntariness of his plea is concerned, there is little to differentiate Brady from * * * (3) the defendant who is permitted by prosecutor and judge to plead guilty to a lessor offense included in the offense charged; and (4) the defendant who pleads guilty to certain counts with the understanding that other charges will be dropped." Brady, p. 751, 90 S.Ct. p. 1470.

These two situations which the Supreme Court considered analogous to Brady's situation must necessarily be characterized as plea bargaining.

In Brady, the Supreme Court went on to set out the standard by which the voluntariness of guilty pleas should be measured:

"A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor\'s business (e. g. bribes)." Citing Shelton v. United States, 246 F.2d 571, 572 n. 2 (5th Cir. 1957). Emphasis our own.

"The actual value of any commitments made to him by the court" can only contemplate plea bargaining in which the judge has participated. Speaking specifically to a plea bargaining situation, the Supreme Court said that in order to reach a contrary decision in Brady:

"it would be necessary to

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