McChesney v. Henderson

• Decision Date: 26 July 1973
• Docket Number: No. 72-3743.,72-3743.
• Citation: 482 F.2d 1101
• Parties: David McCHESNEY, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

482 F.2d 1101 (1973)

David McCHESNEY, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellant.

No. 72-3743.

United States Court of Appeals, Fifth Circuit.

July 26, 1973.

John M. Mamoulides, Dist. Atty., Parish of Jefferson, Ernest E. Barrow, II, Gretna, La., for respondent-appellant.

James O. Manning, New Orleans, La., (court appointed) for petitioner-appellee.

Before AINSWORTH, GODBOLD and INGRAHAM, Circuit Judges.

AINSWORTH, Circuit Judge :

David McChesney seeks a writ of habeas corpus from a conviction on his plea of guilty in a Louisiana state court to a charge of armed robbery. He contends that the writ should be granted because he was not fully advised at the time of his guilty plea by counsel or the court that he was effectively waiving his constitutional rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and also because he was not advised that the effect of his plea would be confinement for the entire period of his sentence without parole.¹

He has exhausted state remedies, having been accorded a full evidentiary hearing by the Louisiana state district court which denied his petition for habeas corpus. Certiorari was also denied by the Louisiana Supreme Court (260 La. 1196, 258 So.2d 550 (1972)).²

The federal district judge below found, on the basis of the record made when McChesney's guilty plea was accepted in state court, that "he was not advised of his right not to incriminate himself, his right to confront his accusers, his right to trial by jury, the maximum sentence that could be imposed, or any other of his constitutional rights," and thus the record did not satisfy Boykin standards. The district judge further held that under Boykin only the record of the proceeding at the time the plea is accepted may be considered in determining whether the defendant understands the significance of the plea and is entering it knowingly and voluntarily. The district court accordingly declined to give consideration to the evidence taken at the state post-conviction hearing on the issue of whether McChesney was fully informed of his constitutional rights and entered a guilty plea as a voluntary and intelligent choice. The court ordered that the writ be granted unless the state, within thirty days, granted defendant the right to replead to the charge.

McChesney's plea of guilty to the offense of armed robbery was entered in open court on September 10, 1970, by his appointed counsel, Mr. George Stringer, Jr. The defendant, McChesney, was asked at that time by the court whether he understood the plea made in his behalf by his attorney to the effect that he was pleading guilty to armed robbery. His answer was in the affirmative as also was his answer to the court's subsequent question did he appreciate that as a result of the consequences of this plea he would be subject to be sentenced to the state penitentiary at hard labor. The court asked if he still wished a plea of guilty to be entered in his behalf and again the answer was in the affirmative. He was then sentenced to a term of six years at hard labor in the Louisiana state penitentiary.³

In the state habeas proceeding defense attorney Stringer testified that he had advised McChesney what sentence he would receive with a plea and what sentence he could expect if he were convicted. He told the defendant that he had reviewed the matter with the district attorney and discussed the type of plea that would be acceptable to the state and the length of sentence that would be imposed. He explained to him that he would have to be tried by a jury, that it would be necessary that the jury find him guilty, and that he would be allowed to present what evidence he had to the jury. The statute under which he was charged was reviewed by counsel with the defendant. Mr. Stringer explained to the defendant what evidence the district attorney had or intended to produce, which included an eyewitness as well as the arresting officers. He went over the time sequence of the commission of the crime and the evidence found when McChesney (along with another defendant not involved here) was apprehended. He also reviewed the possible defense of the case with the defendant and made a recommendation though he did not tell him to plead guilty, leaving that choice to the defendant. The accused was told that he would have to decide whether he wanted to be tried by a jury or whether he wanted to enter a plea. The defendant therefore indicated to his attorney that he wanted to enter a plea of guilty. Mr. Stringer lacked specific recollection whether he had informed McChesney that he would not be eligible for parole, but he felt certain that he had so informed him because counsel had bargained unsuccessfully with the district attorney to get a plea to a lesser offense so that McChesney might be eligible for parole.⁴

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In his testimony at the state habeas proceeding, McChesney conceded that he had pled guilty to armed robbery, accompanied by his counsel, but he said that if Mr. Stringer had advised him of his constitutional rights he did not fully understand the advice. He said he did not realize until he was incarcerated in the Louisiana state penitentiary that he could not be paroled and that no one had told him that before. When asked about the judge's interrogation at the time of the guilty plea, he admitted that he understood that he was pleading guilty to the crime of armed robbery but he thought that upon good behavior he could serve less than the full sentence and be paroled. It appears from his testimony that his principal complaint was and is that he cannot be paroled from his conviction for armed robbery and that he was not told this before entering his plea. He did not maintain that he was innocent or that he was coerced in any way to enter his plea.⁵

In Boykin, supra, the Supreme Court invalidated a plea of guilty made under unusual circumstances. There the accused appeared with appointed counsel and pled guilty to five charges of armed robbery. "So far as the record shows, the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court." Id., 395 U.S. at 239, 89 S.Ct. at 1710. Pursuant to the requirements of Alabama law, a jury was empaneled to fix the punishment and sentenced Boykin to die. The Court held that when a plea of guilty is entered in a state criminal trial a waiver of several federal constitutional rights takes place, that these are the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers. Accordingly, the Court said, "We cannot presume a waiver of these three important federal rights from a silent record." Id., 395 U.S. at 243, 89 S.Ct. at 1712. "The utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence," is required, said the Court. Id., 395 U.S. at 243-244, 89 S.Ct. at 1712.

However, no rule of criminal procedure was mandated by Boykin, and there is no express requirement that specific articulation of the three constitutional rights above mentioned be given to the accused at the time of the acceptance of a plea of guilty, but it is necessary that the record show that the guilty plea was intelligently and voluntarily made. Supreme Court decisions after Boykin make this clear. For example, in Brady v. United States, 397 U. S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), decided shortly after Boykin, the Supreme Court upheld Brady's plea of guilty as having been voluntarily and intelligently made. The record at the time of entry of the plea showed that the trial judge twice questioned the defendant as to the voluntariness of his plea, and the colloquy between the court and the accused was directed to the issue of the voluntariness of his plea of guilty. The court asked the defendant the following (397 U.S. at 743 n. 2, 90 S.Ct. at 1466) :

"You understand that in doing that you are admitting and confessing the truth of the charge contained in the indictment and that you enter a plea of guilty voluntarily, without persuasion, coercion of any kind? Is that right ?"

The defendant responded, "Yes, your Honor." The court twice again inquired if the accused persisted in the plea of guilty and received affirmative replies. In the post-conviction hearing the district court found that there was no impermissible pressure by petitioner's counsel on the defendant, and that the plea was voluntarily and knowingly made by the accused. The Supreme Court affirmed on the basis that the guilty pleas were both "voluntary" and "intelligent," citing Boykin. Nowhere in Brady was anything said by the Court to indicate that specific articulation of the three constitutional rights set forth in Boykin was required when the plea was entered, the Court stating in footnote 4 (397 U.S. at 747, 90 S.Ct. at 1468) that "the new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily."⁶ To the same effect as the holding in Brady, see Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), decided the same day.

In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), decided the year after Boykin, the Supreme Court said in determining the validity of guilty pleas that "the standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 1711, 23 L.Ed.2d 274 (1969) ; . . ." Id., 400 U.S. at 31, 91 S.Ct. at 164. The Supreme Court declined to vacate Alford's guilty plea because the record in the post-conviction state court hearing "confirmed that Alford had been...