Stewart v. Peters

• Decision Date: 17 April 1992
• Docket Number: No. 91-2922,91-2922
• Citation: 958 F.2d 1379
• Parties: Walter STEWART, Petitioner-Appellee, v. Howard PETERS, III, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1379

958 F.2d 1379

Walter STEWART, Petitioner-Appellee, v. Howard PETERS, III, Respondent-Appellant.

No. 91-2922.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 18, 1991.

Decided Feb. 27, 1992.

Decision Modified, Rehearing Denied

April 17, 1992.

David C. Thomas (argued), Chicago-Kent College of Law, Chicago, Ill., for petitioner-appellee.

Roland W. Burris, Office of the Atty. Gen., Kevin Sweeney, Asst. State's Atty., Renee Golbus Goldfarb (argued), Office of the State's Atty. of Cook County, Terence M. Madsen, Asst. Atty. Gen., Steven J. Zick, Office of the Atty. Gen., Crim. Appeals Div., William P. Pistorius, Asst. Atty. Gen., Office of the State's Atty., Civ. Actions Bureau, Chicago, Ill., for respondent-appellant.

Before BAUER, Chief Judge, and POSNER and KANNE, Circuit Judges.

POSNER, Circuit Judge.

In 1980, Walter Stewart pleaded guilty in an Illinois state court to two murders committed earlier that year in the course of his robbery of a suburban jewelry store, and was sentenced to death. After exhausting his state remedies, People v. Stewart, 101 Ill.2d 470, 79 Ill.Dec. 123, 463 N.E.2d 677 (1984); 123 Ill.2d 368, 123 Ill.Dec. 927, 528 N.E.2d 631 (1988), Stewart sought federal habeas corpus. The district judge, concluding from his study of the record in the state court that "Stewart's guilty plea violated his [Fourteenth Amendment] due process rights because the record does not affirmatively show that the plea was voluntary and intelligent," ordered the state either to release Stewart or to let him plead over. 770 F.Supp. 416 (N.D.Ill.1991).

By pleading guilty a defendant waives a number of federal constitutional rights, such as the right to a jury trial and the right to confront his accusers. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). These are important rights, and reviewing courts want to be sure that the defendant knows what he is doing when he gives them up. So they insist not only that the defendant made the plea without coercion but also that he appreciated its consequences--that is, that he understood the options he was surrendering. Brady v. United States, 397 U.S. 742, 748-50, 756-58, 90 S.Ct. 1463, 1468-70, 1472-73, 25 L.Ed.2d 747 (1970); Evans v. Meyer, 742 F.2d 371, 375 (7th Cir.1984); Morgan v. Israel, 735 F.2d 1033, 1036 (7th Cir.1984). The defendant must not only want to plead guilty; he must have adequate knowledge of what the plea entails as well as the intelligence to bring that knowledge, along with all other pertinent knowledge, to bear on his decision. And the satisfaction of these requirements (compendiously, the requirement that the plea be "voluntary") may not be inferred from the bare fact that the defendant pleaded guilty. Boykin v. Alabama, supra. He might not have known what he was giving up by pleading guilty.

No one doubts that Walter Stewart wanted to plead guilty; nor that he had the intelligence to make an effective plea, for he was 25 years old, had a long criminal record (arguing familiarity with the criminal justice system), and was not retarded, intoxicated, or insane. The question is whether he had adequate knowledge--not knowledge that he might be executed, for the judge told him repeatedly that a guilty plea would not preclude the death penalty; not knowledge that he was, indeed, giving up his right to a jury trial, his right to put on a defense, and his right to cross-examine the state's witnesses, and so on, for these things were made clear to him too; but knowledge of the value that those rights might have in the particular case. A defendant must be allowed to choose with undistorted vision. If he is led to believe that the procedural rights that he will be surrendering by pleading guilty are worthless to him because he has no defense to the state's charges, when actually they are not worthless because he does have a defense, his plea of guilty will not be based on a realistic assessment of the probable consequences, and thus a vital component of voluntariness will be missing. Brady v. United States, supra, 397 U.S. at 756-57, 90 S.Ct. at 1472-73; United States v. Frye, 738 F.2d 196, 199 (7th Cir.1984); Haase v. United States, 800 F.2d 123, 127 (7th Cir.1986). A rational choice is a choice among rationally understood probabilities.

The district judge found that Stewart had not made a voluntary waiver of his trial rights, and we should consider first what the scope of our review of such a determination is. While reserving the question, we suggested in Hanrahan v Greer, 896 F.2d 241, 244 (7th Cir.1990), that our review of a district court's determinations of issues that turn on the application of a legal standard to facts--issues sometimes referred to as "mixed questions of fact and law" or "ultimate questions of fact," such as whether an error is harmless, or a guilty plea voluntary, or whether a party was negligent or had possession--should be deferential in habeas corpus cases just as it is in other types of cases. Mucha v. King, 792 F.2d 602, 605 (7th Cir.1986); United States v. McKinney, 919 F.2d 405, 419 (7th Cir.1990) (concurring opinion). See also Sotelo v. Indiana State Prison, 850 F.2d 1244, 1253-55 (7th Cir.1988) (concurring opinion). It is true that when, as in this case, the district judge does not hold an evidentiary hearing, his determination is based on a pure paper record equally available to us. Yet we were told in Anderson v. City of Bessemer, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985), that the clearly erroneous rule applies to appellate review of a district judge's finding of fact even when the finding is based purely on documentary evidence. See also Mucha v. King, supra, 792 F.2d at 605-06. Why should this not be true in a habeas corpus case as well? The other circuits that have considered the question, however, believe that in such a case appellate review of the district judge's finding of voluntary (or, as here, involuntary) waiver should be plenary. Lesko v. Lehman, 925 F.2d 1527, 1536 (3d Cir.1991); McBee v. Abramajtys, 929 F.2d 264, 266-67 (6th Cir.1991); Schlup v. Armontrout, 941 F.2d 631, 637-38 (8th Cir.1991); Bailey v. Cowley, 914 F.2d 1438, 1440 (10th Cir.1990) (per curiam). We need not take sides today. Either way Stewart must lose. The district judge's error was a clear one.

The transcript of the plea hearing takes up 94 double-spaced typed pages. It begins with the calling of the case for trial, followed by a motion by the prosecutor to drop 5 of the 18 counts--some of the lesser crimes with which Stewart had been charged, such as armed violence and aggravated battery. This is followed by Stewart's waiving his right to a jury trial. He does not contend that this waiver was involuntary.

Stewart's principal lawyer (he had two lawyers) requested a five-minute recess to talk to his client. The request was granted. In judicial parlance a "five-minute recess" is a break of short but indefinite length. According to the lawyer's uncontradicted affidavit he had only one conversation with his client that day and it took half an hour; it could only have been during the recess.

When court resumed, the lawyer reported that after Stewart had discussed the matter with him and had spoken by phone with his mother and sister, and in recognition of the prosecutor's having dropped "those five counts for which we felt there was a defense," Stewart had decided that "no useful purpose would be served by proceeding with an actual denial of guilt in regard to the pending charges" even though the lawyer had made clear to him that a guilty plea would not prevent the state from seeking the death penalty. The lawyer asked Stewart in open court whether this summary of their discussion was accurate, and he said it was. By this time it was noon and the judge said he would take the guilty plea after the lunch recess, but before adjourning he "advise[d] Mr. Stewart of certain possibilities in connection with this case, that he may wish to consider over the lunch hour." By pleading guilty Stewart would be giving up not only his right to a jury trial but his right to any trial. "I merely hear a statement from the prosecutors as to what the facts are. If you and your lawyers agree there is a finding of guilty and judgment of guilty on those findings. Do you understand that?" Stewart said yes. The judge also told Stewart that upon the plea of guilty the state would in all likelihood seek the death penalty, "and the fact that you plead guilty would not necessarily obviate the imposition of such a penalty." Stewart may not have known what the word "obviate" means because later, at the penalty hearing, when the judge used the word again, Stewart asked him what it meant. But at the guilty-plea hearing the judge repeated in simple language that Stewart's pleading guilty would not prevent the state from asking for the death penalty.

The judge added that if the state sought the death penalty it would have to prove--to a jury if Stewart wanted one--"that there were certain aggravating factors." Stewart said he understood. He also acknowledged in response to a question by his lawyer that the lawyer had indeed told him that a guilty plea would not prevent (no "obviate" here) the state from seeking the death penalty.

When court reconvened after lunch the judge asked Stewart whether he had "had a chance to think over what we have talked about," and when Stewart said yes the judge asked, "You so wish to insist [persist?] in your plea of guilty or do you wish to change it?" "No, sir." "You wish to have me hear the case?" "Yes, sir, I think it would be fair." Taken in isolation, the words "You wish to have me hear the case?" could mean that the judge was asking Stewart whether he wanted a trial--and Stewart said yes. The alternative interpretation is that the judge was asking whether Stewart wanted the case resolved by the judge in the manner he had sketched before lunch ("I...