Lawrence v. Russell, 19683.

• Decision Date: 04 September 1970
• Docket Number: No. 19683.,19683.
• Citation: 430 F.2d 718
• Parties: Dickie Lee LAWRENCE, Petitioner-Appellant, v. Lake F. RUSSELL, Warden, Tennessee State Penitentiary, Nashville, Tennessee, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

430 F.2d 718 (1970)

Dickie Lee LAWRENCE, Petitioner-Appellant, v. Lake F. RUSSELL, Warden, Tennessee State Penitentiary, Nashville, Tennessee, Respondent-Appellee.

No. 19683.

United States Court of Appeals, Sixth Circuit.

September 4, 1970.

John G. Cobey (Court appointed), Cincinnati, Ohio, for petitioner-appellant; Cohen, Todd, Kite & Spiegel, Cincinnati, Ohio, on brief.

James M. Tharpe, Special Counsel, Memphis, Tenn., for respondent-appellee; David M. Pack, Atty. Gen. and Reporter, State of Tennessee, of counsel.

Before EDWARDS, CELEBREZZE and BROOKS, Circuit Judges.

EDWARDS, Circuit Judge.

This is an appeal from denial by a District Judge in the United States District Court for the Western District of Tennessee (Western Division) of petitioner's application for a writ of habeas corpus. He had been convicted in the Tennessee State courts on his guilty plea to the offense of attempted rape of a ten year old child — a capital offense under Tennessee law. He is serving a life sentence.

Petitioner was represented in this proceeding by the chief counsel of the Public Defender's office, who testified subsequently at a state post conviction habeas corpus hearing that he had recommended the plea of guilty because of the nature of the case and the possibility of the death penalty.

Appellant claimed in the state habeas corpus hearing and before the District Judge that his plea was involuntary because he had been beaten in jail and because he had been threatened with the death penalty. He also claimed incompetence of counsel.

At appellate argument, petitioner's appointed counsel relied heavily upon Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which was decided one month after the District Judge entered his order denying the writ sought in this case.

The District Judge did not conduct an evidentiary hearing in this case but did review and analyze the state court corpus hearings. As to the voluntarirecords in two prior state court habeas ness of the plea, the District Judge found:

"There was no evidence that pressure was applied to petitioner\'s then wife or mother to induce him to plead guilty, and he does not seem to have so contended in State court.

"The preponderance of the evidence is that petitioner authorized the guilty plea when it was entered by his counsel and was satisfied with it when he did so. We understand petitioner to contend that he arose from his chair indicating disagreement with some part of the stipulation of facts when it was being read to the jury, and he apparently contends that he thereby indicated disagreement with the entry of the guilty plea. The preponderance of the evidence is, however, that this simply did not happen.

"The preponderance of the evidence is that the prosecutor did not threaten petitioner in open court or elsewhere to send him to the chair if he did not plead guilty.

"The preponderance of the evidence is that petitioner\'s counsel told him that he could, not would, go to the chair if he went to trial. Under the dire circumstances of this case, however, we do not believe that this conviction would be vitiated even if counsel had told petitioner that the jury would give him the chair if he went to trial.

"A plea of guilty entered on a plea-bargain for a specified sentence is not thereby rendered void. This may have been held in some courts, but is not the general rule. If this were so, the penitentiaries would indeed be opened up. (For the universality of the plea-bargain, see `The Prosecutor\'s Role in Plea Bargaining,\' 38 Univ. of Chicago Law Review, No. 1 at p. 50)."

Bearing on the same issue but relating to appellant's claim that a beating in jail sometime prior to the plea of guilty induced or occasioned the same, the District Judge found:

"It is clear from the record that petitioner was beaten up in the jail by fellow prisoners because of their intense disapproval of the crime of which they thought him to be guilty. But there is no evidence that the beating (a) induced him to plead guilty or (b) so affected his mind that he did not know what he was doing when he pleaded guilty."

As to competence of counsel, the District Judge found:

"The preponderance of the evidence is that petitioner\'s Court-appointed attorney conferred with him more than once, that petitioner had agreed to plead guilty, that there was no occasion to subpoena witnesses, that the petitioner did not request the attorney to subpoena the witnesses as contended, and that under the circumstances it would have been fruitless to subpoena these witnesses even if petitioner had gone to trial."

Basing his decision primarily on the facts found above, the District Judge denied the writ.

We have also read the transcripts of the two state court habeas corpus hearings. It seems clear to us that each meets the test of "a full and fair evidentiary hearing in a state court" set forth in Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); and that the evidence adduced particularly at the hearing of October 6, 1967, fully supports the findings of fact and conclusions of the District Judge.

We believe that the evidence at the state court hearings shows that appellant knew exactly what he was doing in entering his plea of guilty. We agree with the District Judge that the acceptance of an agreed upon sentence in order to escape the possibility of a worse fate (here the death penalty) does not render such a plea constitutionally involuntary (Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970)), and that the record does not...