Perry v. Crouse, No. 288-69.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: BREITENSTEIN and HOLLOWAY, Circuit , and CHRISTENSEN
• Citation: 429 F.2d 1083
• Parties: James G. PERRY, Appellant, v. Sherman A. CROUSE, Warden, Kansas State Penitentiary, Appellee.
• Docket Number: No. 288-69.
• Decision Date: 27 July 1970

429 F.2d 1083 (1970)

James G. PERRY, Appellant,
v.
Sherman A. CROUSE, Warden, Kansas State Penitentiary, Appellee.

No. 288-69.

United States Court of Appeals, Tenth Circuit.

July 27, 1970.

Arthur T. Biddle, Denver, Colo., for appellant.

Edward G. Collister, Jr., Asst. Atty. Gen., Topeka, Kan. (Kent Frizzell, Atty. Gen., was on the brief), for appellee.

Before BREITENSTEIN and HOLLOWAY, Circuit Judges, and CHRISTENSEN, District Judge.

HOLLOWAY, Circuit Judge.

Appellant seeks reversal of the denial of habeas corpus relief by the Federal District Court following an evidentiary hearing on the validity of a guilty plea. In 1965 appellant pleaded guilty in the State District Court to one count of armed robbery and was sentenced to a term of 10 to 21 years. No appeal was taken but post-conviction relief was sought in the sentencing court. That court denied relief without an evidentiary hearing and the Kansas Supreme

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Court affirmed. Perry v. State, 200 Kan. 690, 438 P.2d 83

Appellant then commenced his federal habeas corpus proceeding claiming that his 1965 guilty plea was not voluntarily and intelligently made. Among other things his allegations generally were that the plea was compelled by the existence of a coerced confession and threat of sentencing under the Kansas habitual criminal act; that he had been denied effective assistance of counsel; and that he had been denied an evidentiary hearing by the State Courts. Following an evidentiary hearing on the merits of appellant's claims the Federal District Court found that appellant's "plea was entered freely, knowingly and understandably by petitioner upon advice of counsel, and that he was not deprived of due process of law in any manner." The writ was denied and this appeal followed.

First, appellant argues that the State Court record made at the time of the plea does not affirmatively show that the plea was entered voluntarily and intelligently. Appellant says that the absence of such an affirmative showing entitles him to plead anew, relying on Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274, and McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418. However, for reasons that follow we conclude that neither Boykin nor McCarthy apply here and do not agree with appellant's first proposition.

McCarthy v. United States, supra, does permit pleading anew as proper relief for infraction of Rule 11, F.R. Crim.P., as amended in 1966. However, the case was decided only under the Rule, which was fashioned under the supervisory powers of the Court, and was not decided on constitutional grounds. And the rule in McCarthy entitling defendants to plead anew applies prospectively only to pleas accepted after that decision in April, 1969. Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16. So McCarthy does not apply here.

Boykin held that it was error for an Alabama court to accept guilty pleas to robbery charges without an affirmative record showing that the pleas were made intelligently and voluntarily, and reversed the convictions and death sentences thereon. Appellant argues that the case relies on the McCarthy case heavily and that, therefore, the impact of the Boykin decision is that appellant is entitled to plead anew. However, we do not reach this question of interpretation of the Boykin case because we are persuaded that it does not apply to appellant's 1965 plea.

The Supreme Court has repeatedly cited three criteria as relevant in determining whether a newly enunciated ruling is to be applied retroactively: (1) the purpose of the new rule; (2) the extent of reliance on the old rule; and (3) the effect retroactive application would have on the administration of justice.¹ Therefore, we turn to consideration of these criteria against the background of the Boykin decision.

The purpose of the new rule may be viewed in different ways, but its substantial aim is to afford relief from an improperly accepted plea where there is no affirmative showing of voluntariness on the record at the time the plea is accepted. A claim based on the inadequacy of that record alone would appear to justify relief under the Boykin decision. However, the basic purpose involved would not be sacrificed by prospective application of the Boykin case since that decision did not introduce the rule that a plea must be made voluntarily and intelligently to be valid. See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, at notes 4, 5 and 6. The totality of the circumstances surrounding the acceptance of a guilty plea — both the in-court and out-of-court facts — may be probed under pre-Boykin

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decisions and relief given from improperly accepted pleas. See Halliday v. United States, supra; and Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473. We recognize that such collateral proceedings may involve the probing of "murky memories," Boykin v. Alabama, supra, 395 U.S. at 244, 89 S.Ct. 1709, and that the element of fact-finding involved would favor retroactivity. See Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 15 L.Ed.2d 453. Nevertheless, retroactivity is not essential in view of the other safeguards available under prior law. See Johnson v. New Jersey, 384 U.S. 719, 729-730, 86 S.Ct. 1772, 16 L. Ed.2d 882

The second and third criteria for determining retroactivity do not support such application of the Boykin decision. We note the observation in Boykin that requiring the showing of waiver on the record is not a constitutional innovation. See 395 U.S. at 242, 89 S.Ct. 1709.² However, the application of such a requirement to proceedings for acceptance of guilty pleas imposes a new procedural standard. The courts and prosecuting authorities were not advised of a constitutional requirement of an affirmative record showing of voluntariness until the Boykin decision and both proceeded in reliance on prior practice.³ The effect of retroactive application would obviously be to throw in jeopardy many pleas in fact voluntarily and intelligently made, but accepted without an affirmative record showing thereon. Cf. DeStefano v. Woods, 392 U.S. 631, 634, 88 S.Ct. 2093, 20 L.Ed.2d 1308. Thus, both the reliance factor and the adverse effect on the administration of justice argue persuasively against retroactivity.

The reasoning in Halliday v. United States, supra, against the retroactivity of McCarthy is most persuasive and deals with a closely parallel question....