Martin v. Kemp, 84-8558

• Decision Date: 21 May 1985
• Docket Number: No. 84-8558,84-8558
• Citation: 760 F.2d 1244
• Parties: Robert David MARTIN, Petitioner-Appellant, v. Ralph KEMP, Respondent-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1244

760 F.2d 1244

Robert David MARTIN, Petitioner-Appellant, v. Ralph KEMP, Respondent-Appellee.

No. 84-8558.

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

May 21, 1985.

Paula K. Smith, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before GODBOLD, Chief Judge, KRAVITCH and HATCHETT, Circuit Judges.

PER CURIAM:

Robert David Martin, appeals the district court's denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C.A. Sec. 2254 (West 1977). We reverse the judgment of the district court and remand the action for an evidentiary hearing.

FACTS

On November 3, 1980, Jerry Whidby, an investigator for the Sheriff's Office, Putnam County, Georgia, approached Robert David Martin at Martin's place of employment and attempted to question him about a burglary. Martin refused to answer any questions until he had spoken with an attorney. Whidby placed Martin under arrest and gave him the warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694 (1966). After arriving at the police station, Whidby again attempted to question Martin. Again, Martin asserted his right to have an attorney present during any interrogation. Whidby then attempted to call the lawyer Martin requested. Whidby was unable to contact the attorney, and no further attempts were made to question Martin at that time.

Martin's wife, Teresa Ann Martin, came to the police station to post bail for Martin. Whidby immediately began questioning Teresa about the thefts. Teresa, about eighteen years old, was six or seven months pregnant. Whidby threatened to press charges against Teresa and to incarcerate her if she did not tell all she knew about her husband's alleged involvement in the thefts. Whidby's interrogation of Teresa apparently lasted for some time.

Approximately two to three hours after he had been locked away in a cell, Martin was brought in to see Teresa. Teresa was very nervous, visibly upset, had been crying, and had bitten her fingernails until her fingers were bleeding. Upon seeing Teresa in this emotional state, according to Martin, he agreed to confess to anything that Whidby wanted as long as Whidby would drop all charges against Teresa.

The record does not disclose precisely when Whidby formally charged Teresa with theft by taking. At some point, Whidby placed Teresa under arrest, but promptly released her on $1,000 bail. Martin claims that Whidby refused to dismiss the theft by taking charge against Teresa and threatened to file additional charges against her if Martin did not confess and cooperate fully with the police.

Martin testified that he confessed and pleaded guilty to protect Teresa and their unborn child. Teresa had already suffered one miscarriage, and her doctor had warned that nervous anxiety or undue stress could result in another miscarriage. Teresa was so distressed by Whidby's interrogation that she had to be taken to the doctor the next day.

Two or three days following the interrogation of Teresa, Martin confessed to all of the crimes for which he was convicted. He also assisted the police in recovering much of the stolen property. After the confession, an attorney was appointed to represent him.

At arraignment, Martin pleaded guilty as charged. Contemporaneously with Martin's entering of a guilty plea, the prosecutor dropped charges against Teresa. Charges were dropped because Teresa was pregnant and the Sheriff could not provide her proper medical attention if she were incarcerated.

PROCEDURAL HISTORY

On November 26, 1980, Martin entered a plea of guilty to three counts of burglary, one count of criminal use of an article with an altered identification mark, one count of entering an automobile, and one count of theft by taking. The court sentenced Martin to twenty years imprisonment on each of the burglary charges, with ten years of each sentence to be served on probation. He also received concurrent sentences of three years for criminal use of an article with an altered identification mark, three years for entering an automobile, and twelve months for theft by taking.

Martin did not appeal these convictions. He did, however, file a state habeas corpus petition claiming that he had been denied counsel during police interrogation, that his confession was coerced, that his guilty plea was involuntary, and that he had been denied effective assistance of counsel. Martin also alleged that his bond had been increased illegally.

On February 16, 1982, an evidentiary hearing was held on the state habeas corpus petition. Two days later, the state court denied Martin's petition because the judge who accepted Martin's guilty plea had adequately questioned Martin to determine the voluntariness of the plea, and Martin had not informed the judge of any threats or coercion. The state court concluded that Martin's guilty plea had been voluntarily entered, and that Martin could not challenge the constitutionality of activities which had occurred prior to his entering the guilty plea.

On April 8, 1982, the Supreme Court of Georgia denied Martin's motion for a certificate of probable cause to appeal from the denial of his state habeas corpus petition.

Martin filed this federal habeas corpus petition on August 2, 1982. On that same date, on the authority of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the district court dismissed Martin's petition for failure to exhaust state remedies. On November 18, 1983, in an unpublished opinion, we reversed the judgment of the district court and remanded the action for further consideration. Martin v. Kemp, 718 F.2d 1114 (11th Cir.1983).

On December 22, 1983, Martin filed a "Brief of Facts" in support of his habeas corpus petition in which he included allegations that he had not knowingly and voluntarily waived his right to an attorney when he confessed. He also alleged that he was never indicted on one of the charges for which he was sentenced, that the waiver of indictment which he had signed was invalid, and that he had been denied an attorney and access to pleadings and other necessary documents during the state habeas corpus proceedings.

The district court concluded that a federal evidentiary hearing was not necessary. Relying upon the transcripts of the sentencing hearing and the state habeas corpus hearing, the district court concluded that the police had probable cause to question Teresa about her involvement in the thefts and to file charges against her. The district court concluded that Whidby's threats against Teresa were lawful and, therefore, did not render either Martin's confession or his guilty plea involuntary.

The district court also concluded that Martin's guilty plea negated any claim that he was unconstitutionally denied counsel during police interrogation. The district court denied Martin's ineffective assistance of counsel claim on the ground that Martin had not been prejudiced by his counsel's alleged failure to properly advise Martin on whether to plead guilty.

CONTENTIONS OF THE PARTIES

Martin's primary contention is that both his confession and guilty plea were involuntary because they were prompted by Whidby's threats to prosecute Teresa. The state contends that it had probable cause to question Teresa and to charge her with theft by taking. Therefore, the state argues, any threats made against Teresa were lawful and did not render either Martin's confession or his guilty plea involuntary.

The judge who accepted Martin's guilty plea found that the plea was voluntarily entered. Therefore, the state argues, the guilty plea negated those claims which involved matters which occurred prior to the entry of the plea.

The state answers Martin's ineffective assistance of counsel claim by pointing out that Martin was not prejudiced by his attorney's alleged failure to advise him of his rights, and that Martin's attorney successfully negotiated a five-year reduction in Martin's prison term under the plea bargain agreement.

With regard to Martin's other claims, the state argues that Martin has failed to exhaust his state remedies.

DISCUSSION

A defendant who knowingly and voluntarily enters a plea of guilty waives all nonjurisdictional challenges to his conviction. See McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir. Unit B), reh'g en banc denied, 667 F.2d 93 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 992, 102 S.Ct. 2275, 73 L.Ed.2d 1288 (1982). ¹ Therefore, we first consider whether Martin's guilty plea was voluntary. ² If Martin's plea was voluntary, he has waived this claim and all other claims which challenge the validity of his conviction. Only the claim of denial of counsel and access to court documents during the state habeas corpus proceedings would remain. On the authority of United States v. Nuckols, 606 F.2d 566 (5th Cir.1979), we hold that the evidence as to the voluntariness of Martin's guilty plea was not sufficiently developed in the state habeas corpus proceedings and remand the action for a federal evidentiary hearing. ³

The standard of review for habeas corpus petitions filed by prisoners in state custody is enunciated in 28 U.S.C.A. Sec. 2254(d) (West 1977). Section 2254(d) provides that a state court's findings of fact are presumed to be correct unless one of eight specifically enumerated exceptions applies. This presumption of correctness does not apply, however, to mixed questions of law and fact. Issues which involve mixed questions of law and fact are subject to independent review by an appellate court. Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980); Hance v. Zant, 696 F.2d 940, 946-47 (11th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983).

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