Thundershield v. Solem

• Decision Date: 11 April 1977
• Docket Number: No. CIV76-4060.,CIV76-4060.
• Citation: 429 F. Supp. 944
• Parties: Bedie THUNDERSHIELD, a/k/a Bede Thundershield, Petitioner, v. Herman SOLEM, Warden, South Dakota State Penitentiary, Sioux Falls, South Dakota, and the State of South Dakota and its officers and agents, Respondents.
• Court: U.S. District Court — District of South Dakota

429 F. Supp. 944

Bedie THUNDERSHIELD, a/k/a Bede Thundershield, Petitioner, v. Herman SOLEM, Warden, South Dakota State Penitentiary, Sioux Falls, South Dakota, and the State of South Dakota and its officers and agents, Respondents.

No. CIV76-4060.

United States District Court, D. South Dakota, S. D.

April 11, 1977.

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William P. Fuller of Woods, Fuller, Shultz & Smith, Sioux Falls, S. D., for petitioner.

Brent A. Wilbur, Asst. Atty. Gen., Pierre, S. D., for respondents.

MEMORANDUM DECISION

NICHOL, Chief Judge.

Petitioner Bedie Thundershield seeks a writ of habeas corpus, based upon his allegation that his plea of guilty to a state charge of second degree manslaughter was not entered knowingly, intelligently and voluntarily. Thundershield was arrested for the killing of Paul Raymond Gilchrist, which occurred on or about the 29th day of June, 1971, at Mina Lake in South Dakota. Petitioner was arrested in Fort Yates, North Dakota, where he had been jailed for a tribal ordinance violation. Thundershield was transported to Ipswich, South Dakota, where a preliminary hearing was held on July 30, 1971, before a Justice of the Peace. At this hearing Petitioner was represented by counsel, Mr. Brown and Mr. Thurow, who had previously been appointed to represent him.

On September 15, 1971, Petitioner was arraigned before Circuit Court Judge Vernon C. Evans on the charge of murder. At this time he pleaded guilty to the lesser offense of second degree manslaughter. Subsequently, on November 2, 1971, Thundershield was sentenced to the South Dakota State Penitentiary for nine years and nine months.

On July 10, 1973, a hearing on Thundershield's petition for post-conviction relief was held before Circuit Judge Jon Fosheim. At that time Thundershield was represented by Mr. Frank Schlueter, who had been appointed to represent him for the purpose of that hearing. Thundershield's petition was denied by Judge Fosheim on November 13, 1973, which decision was appealed. The South Dakota Supreme Court, in State v. Thundershield, 242 N.W.2d 159 (1976), affirmed Judge Fosheim, and this petition followed.

The underlying facts are essentially as follows. On July 4, 1971, the body of Paul Raymond Gilchrist was found floating in west Mina Lake. Petitioner, while already in tribal custody at Fort Yates, was interviewed by two Bureau of Indian Affairs criminal investigators and stated that he and his wife had been drinking at the lake with Gilchrist; that he had passed out only to be awakened by his wife's screams; that he saw Gilchrist apparently attempting to rape his wife; that he had gotten mad and struck and kicked Gilchrist; and that he had been pretty drunk, and didn't know whether he had hit Gilchrist with a tire iron or other weapon. Thundershield did not have an attorney present at that interview, and it is not clear whether he asked for an attorney to be present. On the basis of his statement, Petitioner was extradited to South Dakota, where the procedures previously described took place.

In his petition before this Court, Petitioner makes essentially three claims regarding the guilty plea entered by him at his arraignment on September 15, 1971. First, that the plea was rendered in deference to illegally obtained statements given to the BIA policemen. Secondly, that Petitioner never admitted the crime, but maintained his innocence throughout all proceedings. Finally, that Petitioner was incorrectly advised of the elements of the crime to which he pleaded guilty. Thundershield maintains that these alleged defects, individually or collectively, rendered his plea defective as a knowing, intelligent and voluntary plea of guilty. A central contention to Petitioner's case is also his claim that he had, and continues to have, a very limited understanding of the English language.

The manner in which Federal courts are to entertain applications for a writ of habeas corpus by a prisoner in state custody is delineated primarily at 28 U.S.C. section 2254. There seems to be no question that Petitioner raises a claim based on "violation of the Constitution, or laws or treaties of the United States," 28 U.S.C. section 2254(a), or that he has exhausted his state remedies, 28 U.S.C. section 2254(b) and 2254(c).

The Court has determined that two of the exceptions listed in 28 U.S.C. section 2254(d) are present in this case,¹ and for that reason additional evidence was submitted to the Court. Because of the somewhat unusual situation present in this case,² the Court did not hold an evidentiary hearing. Instead, 28 U.S.C. section 2246 was utilized, and the affidavit of Dennis Brown, Petitioner's original court-appointed attorney, was submitted by the State. Petitioner filed interrogatories which were answered by Brown. In addition, the deposition of the Petitioner is included in the State post-conviction record, and the Petitioner's affidavit was filed with this Court for purposes of this proceeding. The Court is of the opinion that the record, thus expanded and supplemented, is adequate for the proper resolution of Petitioner's claims. See Brewer v. Williams, ___ U.S. ___, at ___, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

SUPREME COURT DECISIONS BEARING ON THE VALIDITY OF GUILTY PLEAS

This case raises serious questions concerning guilty pleas and the plea bargaining process. Like all waivers of constitutionally protected rights, a plea of guilty is valid only if made knowingly, voluntarily and intelligently. Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). Circumstances which remove the voluntary character of the plea, or indicate that the plea was not knowingly made, leave the plea open to collateral attack. See McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). Because a plea of guilty is a conclusive admission of guilt, and because the plea amounts to a waiver of at least three important federal rights,³ the record of state court proceedings⁴ must show that the plea was voluntarily made with "a full understanding of what the plea connotes and of its consequences." Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969).

Recently, in Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), the Supreme Court pointed out that the elements of voluntariness and understanding are closely related. The Court indicated that a plea may be involuntary in the constitutional sense if made without an understanding of the constitutional protections waived, or if made with such an incomplete understanding of the charges that it was not an intelligent admission of guilt. Henderson, supra at 645, n. 13, 96 S.Ct. 2253.

Other recent Supreme Court decisions make it clear, however, that many factors in the criminal process do not rise to the level of coercing a plea of guilty. Foremost among these factors is a desire to plead guilty to a lesser charge to avoid the possibility of capital punishment or a long term of incarceration. Specifically, the desire to plead guilty to avoid the death sentence does not invalidate a guilty plea under Fifth Amendment standards, Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In addition, the plea of guilty is not coerced merely because it was motivated by a confession which would or might have been inadmissible, especially where the plea is entered upon the reasonably competent advice of counsel. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). Nor will the failure to specifically admit guilt invalidate an otherwise intelligent plea, made as a choice between known alternatives. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). More recently, in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), the Supreme Court summed up its view of the so-called Brady trilogy:

We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.

A guilty plea, voluntarily and intelligently entered, may not be vacated because the defendant was not advised of every conceivable constitutional plea in abatement he might have to the charge, no matter how peripheral such a plea might be to the normal focus of counsel's inquiry. And just as it is not sufficient for the criminal defendant seeking to set aside such a plea to show that his counsel in retrospect may not have correctly appraised the constitutional significance of certain historical facts, McMann, supra, it is likewise not sufficient that he show that if counsel had pursued a certain factual inquiry such a pursuit would have uncovered a possible constitutional infirmity in the proceedings.

The principal value of counsel to the accused in a criminal prosecution often does not lie in counsel's ability to recite a list of possible defenses in the abstract, nor in his ability, if time permitted, to amass a large quantum of factual data and inform the defendant of it. Counsel's concern is the faithful representation of the interest of his client, and such representation frequently involves highly practical considerations as well as specialized knowledge of the law. Often the interests of the accused are

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