Tamayo-Reyes v. Keeney

• Decision Date: 04 March 1991
• Docket Number: No. 90-35315,TAMAYO-REYE,P,90-35315
• Citation: 926 F.2d 1492
• Parties: Joseetitioner-Appellant, v. J.C. KEENEY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1492

926 F.2d 1492

Jose TAMAYO-REYES, Petitioner-Appellant, v. J.C. KEENEY, Respondent-Appellee.

No. 90-35315.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 10, 1991.

Decided March 4, 1991.

Steven Jacobson, Asst. Federal Public Defender, Portland, Ore., for petitioner-appellant.

Rives Kistler, Asst. Atty. General, Salem, Ore., for respondent-appellee.

Appeal from the United States District Court for the District of Oregon.

Before BROWNING, CANBY, and TROTT, Circuit Judges.

TROTT, Circuit Judge:

Jose Tamayo-Reyes appeals the denial of his habeas corpus petition, claiming the district court erred in refusing to grant an evidentiary hearing on whether his nolo contendere plea to manslaughter was unconstitutional. We reverse in part and remand because the district court improperly deferred to certain state court factual findings based on 28 U.S.C. Sec. 2254(d) (1988), instead of holding an evidentiary hearing on the merits of Reyes's claim as required by Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

FACTS AND PROCEEDINGS BELOW

Reyes is a Cuban immigrant with little education and almost no knowledge of English. In 1984 he allegedly stabbed and killed a man in a bar fight. He was arrested, charged with murder, and provided with a defense attorney and interpreter.

Reyes's attorney, Mr. Tommy Hawk, decided Reyes should plead nolo contendere to Manslaughter in the First Degree. Or.Rev.Stat. Sec. 163.118(1)(a) (1989). Reyes signed a plea form that explained in English the rights he was waiving by entering the plea. The state court then held a hearing to approve the plea, at which Reyes was represented by Hawk and his interpreter, Mr. Ben Sanchez. The judge asked Hawk and Sanchez if they had explained to Reyes the rights enumerated in the plea form and the consequences of pleading nolo contendere, and they answered in the affirmative. The judge then explained to Reyes in English the rights he would waive by his plea, asking Sanchez to translate for him. Reyes indicated he understood his rights and still wished to plead nolo contendere to manslaughter. The judge accepted his plea.

Two years later, Reyes collaterally attacked the plea in a post-conviction proceeding in the Oregon Circuit Court for the County of Marion. He alleged his plea had not been knowing and intelligent because Sanchez failed in several critical instances to translate accurately and completely for him. As a result, he claimed, he did not understand the purposes of the plea form or the plea hearing. He did not know he was pleading no contest to manslaughter; instead, he thought he was agreeing to be tried on the manslaughter count. He also contended his plea was invalid because Sanchez had not interpreted for him the mens rea element of manslaughter. ¹

Following the proceeding, the state court dismissed Reyes's petition. The state court of appeals affirmed without an opinion. Reyes v. Keeney, 88 Or.App. 187, 744 P.2d 1011 (1987). The state supreme court denied review. Reyes v. Keeney, 304 Or. 680, 748 P.2d 142 (1987). Reyes then petitioned the district court for a writ of habeas corpus, claiming he was entitled to an evidentiary hearing on whether his nolo contendere plea was unconstitutional.

The district court held that two findings by the state post-conviction court were dispositive of Reyes's claims, that these findings were presumed correct under 28 U.S.C. Sec. 2254(d) (1988), and that therefore no evidentiary hearing was required. Reyes timely appeals.

We have jurisdiction under 28 U.S.C. Secs. 1291 and 2253 (1988). We review de novo a district court's denial of a petition for a writ of habeas corpus. Madera v. Risley, 885 F.2d 646, 648 (9th Cir.1989).

ANALYSIS

I The Substantive Legal Issues ²

Our initial inquiry is whether Reyes's allegations, if proved, would establish the right to habeas corpus relief. See Townsend, 372 U.S. at 307, 83 S.Ct. at 754; see also Nevius v. Sumner, 852 F.2d 463, 466 (9th Cir.1988), cert. denied, 490 U.S. 1059, 109 S.Ct. 1972, 104 L.Ed.2d 441 (1989). We are persuaded that Reyes makes the necessary allegations.

North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970), holds that the validity of a guilty or nolo contendere plea depends on whether it "represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Accord Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543, 2547, 81 L.Ed.2d 437 (1984); Marshall v. Lonberger, 459 U.S. 422, 436-37, 103 S.Ct. 843, 852, 74 L.Ed.2d 646 (1983). ³ Reyes advances two reasons why his plea of nolo contendere to manslaughter was not the product of an intelligent choice. The first is that Sanchez did not translate adequately the mens rea element of manslaughter. The second is that Sanchez did not translate adequately the plea form and the plea proceeding. We address these allegations in turn.

A. Translation of the Mens Rea Element of Manslaughter

In Oregon, Manslaughter in the First Degree is defined, in relevant part, as a "criminal homicide ... committed recklessly under circumstances manifesting extreme indifference to the value of human life...." Or.Rev.Stat. Sec. 163.118(1)(a) (1989). Reyes alleges Sanchez failed to translate the mens rea element of this crime. At most, he claims, Sanchez told him only that manslaughter was "less than murder."

In Henderson v. Morgan, 426 U.S. 637, 646-47, 96 S.Ct. 2253, 2258, 49 L.Ed.2d 108 (1976), the Supreme Court invalidated a defendant's guilty plea to second-degree murder because he entered the plea without being informed that intent to cause death was an element of the offense. If Reyes indeed was told only that Manslaughter in the First Degree was "less than murder," the mens rea element of the offense was not adequately described to him, and he states a basis for overturning his plea. See United States v. Bigman, 906 F.2d 392, 394-95 (9th Cir.1990); Hayes v. Kincheloe, 784 F.2d 1434, 1438-40 (9th Cir.1986), cert. denied, 484 U.S. 871, 108 S.Ct. 198, 98 L.Ed.2d 150 (1987); Williams v. Raines, 783 F.2d 774, 775-76 (9th Cir.1986); Sober v. Crist, 644 F.2d 807, 809-10 (9th Cir.1981) (per curiam).

Henderson does not require that every element of the crime must be explained to the defendant; it establishes only that the defendant must be informed of the mens rea element. Henderson, 426 U.S. at 647 n. 18, 96 S.Ct. at 2258 n. 18; see also Sober, 644 F.2d at 809. Under Oregon's definition of Manslaughter in the First Degree, the terms "recklessly" and "extreme indifference" describe the mens rea element of the offense. Or.Rev.Stat. Sec. 163.118(1)(a) (1989). The Oregon Supreme Court has held these terms are components of the same basic mental state, but that the "extreme indifference" language indicates more must be proved than mere recklessness. ⁴ Needless to say, the shades of legal meaning here are difficult even for English-speaking lawyers to differentiate. We do not believe, therefore, that Henderson demands a rigid, technically precise translation of the terms mentioned. However, if the general import of these terms was not adequately conveyed to Reyes, his nolo contendere plea was not knowing or voluntary.

We repeat our recent admonition that " 'it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.' " Bigman, 906 F.2d at 395 (quoting Henderson, 426 U.S. at 647, 96 S.Ct. at 2259); cf. United States v. Goodheim, 686 F.2d 776, 777-78 (9th Cir.1982). Without expressing a view of when this presumption should attach as a general matter, we believe it is of limited relevance to this case. Even if we were to presume Hawk described to Reyes in English the mens rea element of manslaughter, there remains the critical issue of whether Sanchez accurately translated that communication. Without an adequate translation, Hawk's advice in English, no matter how lucid and complete, would not satisfy Henderson.

One might argue that whatever presumption exists concerning the completeness of attorneys' consultations with their clients should apply by extension to interpreters' translations of those communications. We are unprepared however, at least in the circumstances of this case, to confer upon the State the benefit of such a double presumption.

In sum, Reyes has alleged facts which, if proved, would establish a basis for habeas corpus relief.

B. Translation of the Plea Form and Plea Proceeding

Reyes's second claim is that Sanchez failed to translate accurately and completely (1) critical portions of the plea proceeding, and (2) the plea form he signed in advance of the proceeding. As a result, Reyes asserts he had no idea what was happening at the hearing as the judge explained in English the nature of the impending plea and the rights he would waive by entering the plea. He also had no idea what he had agreed to by signing the plea form. In short, he did not understand that he was pleading nolo contendere to manslaughter and giving up his right to a jury trial. Reyes thus alleges a second set of facts which, if proved, would establish a basis for habeas corpus relief.

C. Determinations Below

The state post-conviction court issued the following findings:

1. Petitioner's plea of guilty ⁵ was knowingly and voluntarily entered.

2. Petitioner was properly served by an interpreter in the proceedings leading to his conviction.

3. The interpreter correctly, fully and accurately translated the communications between Petitioner and his attorney.

4. Petitioner has not sustained his burden of proof in regard to any of the allegations in his petition.

5. Representation by counsel was reasonable and effective under the circumstances.

The magistrate assumed Reyes's legal claims turned entirely on the credibility of his allegation that Sanchez "did not adequately...