Hayes v. Kincheloe

• Decision Date: 19 March 1986
• Docket Number: No. 85-3681,85-3681
• Citation: 784 F.2d 1434
• Parties: Mark HAYES, Petitioner-Appellee, v. Larry KINCHELOE, Respondent-Appellant. C.A.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1434

784 F.2d 1434

Mark HAYES, Petitioner-Appellee, v. Larry KINCHELOE, Respondent-Appellant.

C.A. No. 85-3681.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1985.

Decided March 19, 1986.

Thomas Hilliard, Federal Public Defender, Seattle, Wash., for petitioner-appellee.

Chris Quinn-Brintnall, Tacoma, Wash., for respondent-appellant.

On Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, REINHARDT and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

The State of Washington appeals the district court's order granting Mark Hayes' petition for a writ of habeas corpus on the basis that Hayes' guilty plea was involuntary. We affirm.

FACTS

On the evening of January 24, 1980, Hayes shot and killed Larry Jackson and Audrey Ellis outside a bar in Tacoma, Washington. Earlier in the evening, Hayes' acquaintance, Terrell Campbell, became involved in a quarrel with the two victims. Campbell left the bar and returned with Hayes and Hayes' girlfriend, Judy Wilson. The quarrel with the victims resumed outside the bar. Hayes went to his car, obtained a handgun, and eventually shot the victims. The record is ambiguous as to whether the shooting was deliberate and intentional or was accidental or in self defense. Hayes pleaded guilty to two counts of second degree murder and was sentenced to two concurrent life terms.

Hayes later sought post conviction relief by filing a personal restraint petition in the Washington Court of Appeals. Hayes contended that his plea was not made knowingly and intelligently. Specifically, Hayes argued that he was unaware that intent was a necessary element of second degree murder. Hayes stated that at the time of his arraignment he thought that he was pleading guilty to a strict liability offense, and would not have pleaded guilty had he known the state was required to prove intent.

The Washington Court of Appeals reviewed the record and denied relief. The court stated:

The record shows that petitioner received a copy of the amended information informing him of the elements of the crime. The Statement of Defendant on Plea of Guilty states that no undisclosed promises were made to him; such a statement should be accepted at face value. In re Keene, [95 Wash.2d 203, 622 P.2d 360] (1980). The factual basis for the plea was established both by petitioner's own statement and by the deputy prosecutor's recitation at the plea hearing, which established intent to kill. This is sufficient. See State v. Newton, [87 Wash.2d 363, 552 P.2d 682] (1976).

Hayes then filed a petition for discretionary review with the Supreme Court of Washington. The court denied the petition, stating:

The record ... discloses a sufficient basis for a finding of the requisite intent, even though petitioner's version of the offense does not of itself describe his intent. For example, among the facts recited by the prosecutor was that the victims had each been shot several times. To the extent that petitioner's real contention is that he was not properly informed of the intent element, the claim must still fail. He acknowledged that he had received a copy of the information, which set forth the intent element of the crime. Intent was also the subject of discussion at the hearing at which the plea was taken.

In short, the record here does not contain the degree of confusion and uncertainty which this court recently found to require a remand for further inquiry into the facts of the plea-taking. In re Hews, [99 Wash.2d 80, 88, 660 P.2d 263] (1983). Rather, a fair reading of the record as a whole shows that petitioner's plea was constitutionally voluntary, based on an adequate understanding of the nature of Hayes then filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Washington. The district court referred the matter to a magistrate, who reviewed the record of state proceedings and decided that an evidentiary hearing was required. The magistrate took Hayes' testimony and accepted a deposition of John J. O'Connell, Hayes' former counsel. The magistrate found that Hayes' guilty plea was not voluntarily made since Hayes did not receive actual notice of the true nature of the charge against him, or possess an understanding of the law in relation to the facts. The magistrate therefore recommended that the court issue the writ of habeas corpus unless the state allowed Hayes to withdraw his plea. The district court adopted the magistrate's findings and conclusions and eventually issued the writ. The state appeals.

                the charge and having an adequate factual basis.    Id. at 92 [660 P.2d 263]
                

STANDARD OF REVIEW

In the past, we reviewed a district court's findings as to voluntariness of a guilty plea under the clearly erroneous standard of review. Stone v. Cardwell, 620 F.2d 212, 213 (9th Cir.1980). The Supreme Court's decision in Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983), and our decision in United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984), mandate rejection of the standard of review expressed in Stone v. Cardwell.

In Marshall, the Supreme Court stated that the requirements of 28 U.S.C. Sec. 2254(d) do not apply in determining whether a plea was voluntary because "the governing standard as to whether a plea of guilty is voluntary for purposes of the Federal Constitution is a question of federal law and not a question of fact ..." 459 U.S. at 431, 103 S.Ct. at 849 (citations omitted). The Court distinguished questions of historical fact, and inferences drawn from those facts, which clearly are subject to the presumption of correctness afforded state court findings of fact by 28 U.S.C. Sec. 2254(d). Id.; see Diaz v. Martin, 718 F.2d 1372, 1376 (5th Cir.1983); Nash v. Israel, 707 F.2d 298, 301 (7th Cir.1983).

Although the Supreme Court in Marshall focused solely on the standard of review of state court decisions by a federal court, the Court's reasoning applies with equal vigor to our review of district court findings. A question of law in the eyes of the district court remains a question of law in the eyes of an appellate court. Moreover, even if the voluntariness of a guilty plea were considered a mixed question of law and fact, our en banc decision in United States v. McConney would require de novo review. We generally review mixed questions de novo, especially when constitutional rights are involved. McConney, 728 F.2d at 1204.

Therefore, we review the district court's determination as to the voluntariness of the guilty plea de novo. ¹ We will uphold the district court's finding of historical or subsidiary facts unless those findings are clearly erroneous, but we reserve the right to give different legal weight to such facts. See Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306-07, 71 L.Ed.2d 480 (1982) (per curiam); Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir.1985).

EXHAUSTION OF STATE REMEDIES

At oral argument, we asked counsel to discuss whether Hayes could have pursued relief under any other Washington procedural rules. In response, counsel for the state directed our attention to Washington Civil Rule 60(b) and Washington Criminal Rule 7.6. We hold that Hayes' pursuit of relief by means of a personal restraint petition and a petition for discretionary review sufficiently exhausted his state remedies.

The exhaustion requirement is a matter of comity, not jurisdiction. Lindquist v. Gardner, 770 F.2d 876, 877 n. 1 (9th Cir.1985). Our concern for comity between state and federal courts is satisfied if "the petitioner's federal claim has been 'fairly presented to the state courts.' " Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir.1979) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971)). If a petitioner presents his claim to the highest state court and that court disposes of the claim on the merits, the exhaustion requirement has been satisfied. Jackson v. Cupp, 693 F.2d 867, 869 (9th Cir.1982); Batchelor v. Cupp, 693 F.2d 859, 863 (9th Cir.1982), cert. denied, 463 U.S. 1212, 103 S.Ct. 3547, 77 L.Ed.2d 1395 (1983); Carothers v. Rhay, 594 F.2d at 228. Hayes presented his claim by means of a personal restraint petition to the Washington Court of Appeals and the Supreme Court of Washington. Both courts rejected the claim on its merits. Hayes, therefore, exhausted his state remedies. ²

PRESUMPTION OF CORRECTNESS OF STATE COURT FINDINGS

Generally, a federal court in a habeas corpus proceeding must accord a presumption of correctness to a state court's factual findings. 28 U.S.C. Sec. 2254(d). The presumption of correctness adheres to appellate, as well as trial court determinations of fact. Sumner v. Mata, 455 U.S. at 592-93, 102 S.Ct. at 1304-05. The presumption of correctness does not apply to a state court's determination of legal questions or mixed questions of fact and law. Id. at 597, 102 S.Ct. at 1306-07; Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980); Pierre v. Thompson, 666 F.2d 424, 427 (9th Cir.1982). The presumption of correctness also does not apply when one of the exceptions listed in 28 U.S.C. Sec. 2254(d) exists.

The decisions of the Washington courts that considered Hayes' personal restraint petition primarily reflect legal conclusions to which the presumption of correctness does not apply. To the extent the state court decisions reflect the factual finding that Hayes understood the nature of the charges against him, the decisions are not supported by the record upon which they are based.

The discussions of intent during the arraignment do not support the state courts' conclusion that Hayes understood the elements of second degree murder. The superior court judge did not recite the elements of the crime of second degree murder to Hayes at any time during the arraignment. At one...