Cox v. Lockhart
| Decision Date | 16 July 1992 |
| Docket Number | No. 91-1481-EA,91-1481-EA |
| Citation | 970 F.2d 448 |
| Parties | Terry COX, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John Wesley Hall, Jr., Little Rock, Ark., argued (John Wesley Hall, Jr. and Craig Lambert, on the brief), for appellant.
Olan Warren Reeves, Little Rock, Ark., argued (Winston Bryant and Olan W. Reeves, on the brief), for appellee.
Before McMILLIAN and JOHN R. GIBSON, Circuit Judges, and HUNTER, * Senior District Judge.
Terry Cox appeals from the district court's 1 Memorandum Opinion and Order and Judgment denying his habeas corpus petition brought pursuant to 28 U.S.C.A. § 2254.
Appellant Cox, an inmate of the Arkansas Department of Correction, petitioned the district court for the Eastern District of Arkansas for habeas corpus relief under 28 U.S.C.A. § 2254. Cox argued for relief on grounds that his counsel was ineffective for advising him to plead guilty, despite a "winnable" speedy trial issue and that his guilty plea was not knowingly and voluntarily given. On January 25, 1991, the district court entered its order and judgment dismissing Cox's petition and denying the relief sought. We affirm.
Appellant, Terry Cox, advances three grounds for his appeal. First he contends that the district court erred in holding that his Sixth Amendment speedy trial claim is procedurally barred. Second, he asserts that defense counsel was ineffective in advising him to plead guilty. Finally, defendant argues that his guilty plea was not knowingly or voluntarily given.
We believe that, if we find that appellant Cox's guilty plea was knowingly and voluntarily given, his first ground, relating to his Sixth Amendment speedy trial claim, must necessarily fail. As such, we will consider the first and third grounds together. We will then take up appellant's second ground that defense counsel was ineffective.
Appellant, Terry Cox, and a co-defendant were charged with capital murder, attempted capital murder, attempted first degree murder, conspiracy, criminal solicitation and terroristic threatening in an information filed November 10, 1982. Appellant and his co-defendant were to be tried separately. Appellant's state court counsel and the prosecutor agreed that appellant would be tried after his co-defendant. Consistent with such agreement, appellant's counsel filed a motion for continuance, but the motion was never ruled by written order of the court excluding the time for the purposes of the Arkansas Speedy Trial Act. Appellant's attorney agreed to the delays because he wanted the opportunity to see the state's case against appellant, as presented against appellant's co-defendant.
Appellant's co-defendant was convicted in April of 1985. Appellant requested, and was granted, a change of venue, and his case was set for trial on October 21, 1985. By this time, appellant had retained additional defense counsel. On October 7, 1985, appellant's counsel again moved for a continuance, this time for medical reasons. After one more continuance, by agreement, the trial was re-scheduled for October 20, 1986.
On October 10, 1986, appellant filed a motion to dismiss for lack of a speedy trial. As a result of the motion, and the subsequent hearing on the motion, appellant's trial was again re-scheduled. The trial court found that the period of delay was excludable as a period for good cause and that any reliance on the time limits set forth under the state statute or rule had been waived. On September 10, 1987, pursuant to a plea agreement, appellant pled guilty to the reduced charge of first degree murder and was sentenced to forty (40) years in the Arkansas Department of Correction. All other charges were dropped. Appellant's counsel advised acceptance of the plea agreement because of his understanding that, if appellant appealed the denial of his speedy trial motion, the state would withdraw its plea offer and put the After conviction and sentencing, appellant petitioned the state trial court for post-conviction relief pursuant to Rule 37, Ark.R.Crim.P. 37, alleging that defense counsel was ineffective for advising appellant to plead guilty despite a clear violation of Arkansas' speedy trial rule, Ark.R.Crim.P. 28.1, and that the guilty plea was invalid because appellant was unaware that he was waiving his right to appeal by pleading guilty. After a hearing, the state trial court denied appellant's petition. Appellant appealed the denial to the Arkansas Supreme Court, which affirmed. Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989).
case to trial, exposing appellant to either the death penalty or life without parole.
On October 24, 1989, appellant petitioned the United States District Court for the Eastern District of Arkansas for habeas corpus relief, raising essentially the same claims as those raised in his state court proceeding. In an Order and Judgment filed January 25, 1991, the district court denied appellant's petition for relief. It is the decision of the district court that appellant now appeals.
I.
Cox argues that his guilty plea was not knowingly or voluntarily given because he was not made aware that his guilty plea operated as a waiver of his right to appeal. He particularly argues that he was not made aware that he was waiving his right to appeal from the denial of his speedy trial issue. We disagree.
Both parties to this case note that the district court did not make explicit findings with regard to this claim for relief. We believe, however, that a finding that appellant's plea was submitted intelligently and voluntarily is necessarily subsumed in the district court's denial of relief. The district court, in its memorandum opinion and order, sets forth appellant's claim that his guilty plea was involuntary because he was not aware that pleading guilty would effect a waiver of his right to appeal. Therefore, the district court's dismissal of appellant's petition and denial of his request for habeas relief necessarily rests upon a finding that appellant's guilty plea should stand. We will not disturb that determination of the district court unless it is clearly erroneous. Moore v. Swenson, 487 F.2d 1020, 1021 (8th Cir.1973); Crowe v. South Dakota, 484 F.2d 1359, 1362 (8th Cir.1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1435, 39 L.Ed.2d 485 (1974).
At the hearing held by the district court, the parties stipulated that the record was adequate to decide the matter. No testimony was offered. The record considered by the district court included: transcript of Cox's guilty plea; the transcript of Cox's Rule 37 hearing; the signed plea statement; and the Arkansas Court's opinion, including its factual findings, regarding Cox's Rule 37 motion.
At bottom, appellant argues that his guilty plea was not knowingly and voluntarily made because he was not aware at the time of his plea that he was waiving his right to appeal. In support of this argument, appellant points to the transcript of his guilty plea and complains that because the trial court stated the rights that he would be waiving in the affirmative, the record supports a finding that he was being advised that he would retain the right to appeal by pleading guilty. 2
Additionally, Cox directs the Court's attention to his own testimony, the testimony of his father and the testimony of his defense counsel given at his Rule 37 hearing. The voluntariness of Cox's guilty plea was fully considered by the Arkansas courts and they found that it was voluntarily and knowingly given. The trial court found that Cox's plea was, indeed, voluntarily and intelligently entered; the trial court was affirmed by the Arkansas Supreme Court. 3 The court's credibility determinations and findings regarding the underlying facts are entitled to a presumption of correctness and should not be attacked in a federal habeas case. Pittman v. Black, 764 F.2d 545, 546 (8th Cir.), cert. denied, 474 U.S. 982, 106 S.Ct. 389, 88 L.Ed.2d 341 (1985). Our role is merely to determine if the state court's findings have fair support in the record. Id.; see also Amos v. Minnesota, 849 F.2d 1070, 1072 (8th Cir.), cert. denied, 488 U.S. 861, 109 S.Ct. 159, 102 L.Ed.2d 130 (1988) (). We believe they do.
The state court also relied on, and we take note of, the fact that appellant signed a guilty plea statement. At his Rule 37 hearing, appellant Cox conceded that he signed the guilty plea statement and that the trial court went over the guilty plea statement with him at the time. The signed statement says, inter alia, "I understand if I plead guilty to any of these charges as to those charges to which I plead guilty I waive and give up certain of my legal rights, including ... [t]he right to a public and speedy trial by jury, ... [and] [t]he right to appeal from the verdict, conviction, and judgment, challenging all issues of fact and law." Guilty Plea Statement of Terry Cox, Sep. 10, 1987. 4
For the above stated reasons, we agree with the district court that appellant Cox knowingly and voluntarily entered his plea of guilty. Accordingly, we AFFIRM the district court on this point.
1. Guilty Plea Waiver
The district court concluded that ap...
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