Colson v. Smith, 28943.

• Decision Date: 21 January 1971
• Docket Number: No. 28943.,28943.
• Citation: 438 F.2d 1075
• Parties: Cleveland COLSON, Petitioner-Appellee, v. Lamont SMITH, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

438 F.2d 1075 (1971)

Cleveland COLSON, Petitioner-Appellee, v. Lamont SMITH, Warden, Respondent-Appellant.

No. 28943.

United States Court of Appeals, Fifth Circuit.

January 21, 1971.

COPYRIGHT MATERIAL OMITTED

Arthur K. Bolton, Atty. Gen. of Georgia, Mathew Robins, Marion O. Gordon, Asst. Attys. Gen., Dorothy T. Beasley, Deputy Asst. Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant.

Al G. Norman, Atlanta, Ga., for petitioner-appellee.

Before THORNBERRY, GOLDBERG and AINSWORTH, Circuit Judges.

THORNBERRY, Circuit Judge:

Cleveland Colson was indicted by the Fulton County, Georgia, Grand Jury on February 15, 1963, along with three other defendants, for robbery by use of force and arms. On April 1, 1963, Colson, represented by court-appointed counsel, pleaded guilty and was sentenced by the Fulton County Superior Court to a term of fifteen to twenty years. In February 1968 Colson filed a petition for writ of habeas corpus in federal district court. His action was stayed several times pending exhaustion of available remedies in the Georgia state courts. Finally, in September 1969, the district court, having concluded that petitioner had substantially exhausted his state remedies,¹ conducted an evidentiary hearing on petitioner's contentions. At the hearing, petitioner presented evidence on the issues of systematic exclusion of Negroes from the Fulton County Grand Jury and ineffective assistance of counsel.² On October 14, 1969, the district court determined that a prima facie case of purposeful grand jury discrimination had been made out, and without reaching the adequacy of counsel question, ordered petitioner remanded to the custody of the State for speedy reindictment and trial. The State appealed, contending first that petitioner by pleading guilty had waived his right to challenge the construction of the grand jury, and also contesting the district court's findings on the issue of grand jury composition. On June 9, 1970, this Court remanded the case to the district court for "findings of fact and conclusions of law regarding petitioner's claim of ineffective counsel and the concomitant issue of the voluntariness of the plea of guilty." Colson v. Smith, 5th Cir. 1970, 427 F.2d 143. Since the district court had already conducted a full hearing on the issue of counsel's competency, all that remained to comply with our order of June 9 was to enter findings of fact and conclusions of law based on the evidence previously presented. Accordingly, the district court entered a final order dated July 17, 1970, concluding that petitioner's plea of guilty was the product of ignorance, fear, and the ineffective assistance of counsel, and again ordering petitioner's release subject to the State's right to reindict him. The State returns to this Court now, contesting not only the district court's findings in its order of October 14, 1969, but also the latest findings of the district court on the issue of effectiveness of counsel.

I.

At the outset we advert to the settled rule in this Circuit that a voluntary plea of guilty waives all nonjurisdictional defects, including the right to challenge the construction of the grand jury. Williams v. Smith, 5th Cir. 1970, 434 F.2d 592; Throgmartin v. United States, 5th Cir. 1970, 424 F.2d 630. Under this rule, were we to find that petitioner's guilty plea was voluntarily entered, we would be precluded from any consideration of the issue of grand jury composition. Thus we must dispose first of petitioner's attack on his plea of guilty.

It is clear that a defendant is entitled to the effective assistance of counsel in determining how to plead and in making his plea, and can attack his conviction collaterally if he is not given this right. 1 C.A. Wright, Federal Practice and Procedure § 171 (1969); Davis v. United States, 5th Cir. 1967, 376 F.2d 535. Moreover, the Supreme Court has said that this threshold right to the assistance of counsel is no less momentous to an accused who must decide whether to plead guilty than to an accused who stands trial. Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L. Ed. 309 (1948). In defining the scope of counsel's duty to an accused client, however, courts have distinguished between the defendant who is standing trial and the defendant who is pleading guilty. This Court recently stated that "the only required duty of counsel under the most liberal construction when a plea of guilty is entered is that counsel * * * should ascertain if the plea is entered voluntarily, and knowingly." Lamb v. Beto, 5th Cir. 1970, 423 F.2d 85, 87. Similarly, the Court of Appeals for the District of Columbia, in an opinion by the now Chief Justice of the United States, Warren Burger, has stated that "ineffective assistance of counsel, as opposed to ignorance of the right to counsel, is immaterial in an attempt to impeach a plea of guilty, except perhaps to the extent that it bears on the issues of voluntariness and understanding." Edwards v. United States, 1958, 103 U.S. App.D.C. 152, 256 F.2d 707, 709. See also Kress v. United States, 8th Cir. 1969, 411 F.2d 16; Alaway v. United States, D.C.Cal.1968, 280 F.Supp. 326. The reason for this narrow prescription of counsel's duty to a client who pleads guilty was explained by the then Judge Burger in Edwards, supra, as follows:

It must be realized this is not a case in which proof of guilt depended upon a trial. In such cases, the accused usually relies to a great extent on counsel to conduct an effective defense, because the accused does not know enough of the law to do so himself. While the accused may have to take the consequences of a poor defense, he may at least say the fault was not his own. But this is not so when he pleads guilty. Here the deed is his own; here there are not the baffling complexities which require a lawyer for illumination; if voluntarily and understandingly made, even a layman should expect a plea of guilty to be treated as an honest confession of guilt and a waiver of all defenses known and unknown. And such is the law.

256 F.2d 707, 709.

We subscribe fully to the principle that guilty pleas are meant to be, and should be, final. And if there was ever any doubt in our minds of the inviolability of that principle, there is certainly no longer any doubt after the Supreme Court's recent decisions declaring with unmistakable clarity its firm commitment to the finality of guilty pleas. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). A necessary result of the seriousness with which courts treat pleas of guilty, however, is that courts have a concomitant responsibility to assure that defendants who plead guilty do so voluntarily and knowingly. One aspect of this responsibility is manifested in Rule 11 of the Federal Rules of Criminal Procedure, which imposes a mandatory duty on the trial court to ascertain that a guilty plea is made voluntarily and with understanding of the nature of the charge. See also McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). We think that an equally important aspect of the courts' responsibilities in this problem area is the protection of the accused's right to the benefit of reasonably competent counsel in making his plea,³ especially when that plea is entered on advice of counsel. One cannot read the Supreme Court's opinions in McMann, Parker and Brady, supra, without being impressed by the significance the Court attached to the role of counsel in the process of deciding how to plead. In all three cases, it was obvious that the Supreme Court envisioned a system under which the defendant, advised by reasonably competent counsel, makes an informed and conscious choice. See also Von Moltke v. Gillies, supra. When this system functions satisfactorily, it is both fair and reasonable to expect that a defendant who has made his choice and received whatever benefits flow therefrom be required to live by that choice. In any particular case in which the system fails, however, it is the courts' duty to supply relief.

Bearing all the foregoing in mind, we turn now to the specific allegations and findings of the instant case.

There is testimony from petitioner in this case that his court-appointed counsel informed him that one of his co-defendants was going to testify against him, that counsel could not undertake to defend him in a jury trial unless petitioner could pay him, and that the best thing petitioner could do was plead guilty. Petitioner's counsel contradicted much of this testimony, but it was uncontroverted that petitioner adhered to his decision to plead not guilty until the day the case was called. Furthermore, it was uncontradicted that there was considerable discussion between the petitioner and his counsel, on the one hand, and the state trial judge, on the other, before petitioner entered his final plea. During this colloquy, it appears that petitioner resisted pleading guilty for some time before finally relenting.⁴ It also appears that although counsel knew beforehand that petitioner wanted to plead not guilty, counsel appeared in court on the day the case was called completely unprepared to go to trial. On this record the trial judge made a fact finding that petitioner's guilty plea was the product of ineffective assistance of counsel. This finding was essentially a credibility decision, which we, of course, will not disturb except on a showing of clear error. United States v. Saunders, 5th Cir. 1970, 435 F.2d 683; United States v. Schoen, 5th Cir. 1970, 434 F.2d 931; Bickers v. Cranford, 5th Cir. 1970, 433 F.2d 955. In this case, however, we go beyond the traditional principles of restraint in appellate review to uphold the district court. We agree further with the district...