Tollett v. Henderson 8212 95

Citation36 L.Ed.2d 235,411 U.S. 258,93 S.Ct. 1602
Decision Date17 April 1973
Docket NumberNo. 72,72
PartiesLewis S. TOLLETT, Warden, Petitioner, v. Willie Lee HENDERSON. —95
CourtUnited States Supreme Court

Where a state criminal defendant, on advice of counsel, pleads guilty he cannot in a federal habeas corpus proceeding raise independent claims relating to the deprivation of constitutional rights that antedated the plea, Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, such as infirmities in the grand jury selection process, but may only attack the voluntary and intelligent character of the guilty plea by showing that counsel's advice was not within the standards of McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763. Pp. 261—269.

459 F.2d 237, reversed and remanded.

R. Jackson Rose, Asst. Atty. Gen., State of Tennessee, for petitioner.

H. Fred Hoefle, Cincinnati, Ohio, for respondent.

Mr. Justice REHNQUIST delivered the opinion of the Court.

Twenty-five years ago respondent was indicted for the crime of first-degree murder by a grand jury in Davidson County, Tennessee. On the advice of counsel, he pleaded guilty and was sentenced to a term of 99 years in prison. Many years later he sought habeas corpus in both state and federal courts. In one petition in United States District Court, he contended that a confession he had given to the police had been coerced, and that he had been denied the effective assistance of counsel. The District Court considered these claims and decided them adversely to respondent, the Court of Appeals for the Sixth Circuit affirmed without opinion, and this Court denied certiorari. Henderson v. Henderson, 391 U.S. 927, 88 S.Ct. 1829, 20 L.Ed.2d 667 (1968). Respondent then sought state habeas corpus, alleging for the first time that he was deprived of his constitutional right because Negroes had been excluded from the grand jury which indicted him in 1948. After a series of proceedings in the Tennessee trial and appellate courts, the Tennessee Court of Criminal Appeals ultimately concluded that respondent had waived his claim by failure to raise it before pleading to the indictment, and by pleading guilty.

Respondent then filed in the United States District Court the petition for habeas corpus which commenced the present litigation, asserting the denial of his constitutional right by reason of the systematic exclusion of Negroes from grand jury service. Petitioner, in effect, conceded such systematic exclusion to have existed, and the District Court so found. The issue upon which the District Court and the Court of Appeals focused was whether respondent's failure to object to the indictment within the time provided by Tennessee law constituted a waiver of his Fourteenth Amendment right to be indicted by a constitutionally selected grand jury.

At a state hearing, respondent testified that his lawyer did not inform him of his constitutional rights with respect to the composition of the grand jury, that he did not know how the grand jury was selected or that Negroes were systematically excluded, and that his attorney did not tell him that he could have challenged the indictment, or that failure to challenge it would preclude him from later raising that issue. An unchallenged affidavit submitted by the attorney who represented respondent in the 1948 criminal proceeding stated that counsel did not know as a matter of fact that Negroes were systematically excluded from the Davidson County grand jury, and that therefore there had been no occasion to advise respondent of any rights he had as to the composition or method of selection of that body.

On the basis of this evidence, the Court of Appeals held that the record demonstrated no such 'waiver' of constitutional rights as that term was defined in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)'an intentional relinquishment or abandonment of a known right or privilege.' The Court of Appeals went on to affirm the judgment of the District Court, which had ordered respondent released from custody because Negroes had been excluded from the grand jury which indicted him for the offense in question. We granted certiorari in order to decide whether a state prisoner, pleading guilty with the advice of counsel, may later obtain release through federal habes corpus by proving only that the indictment to which he pleaded was returned by an unconstitutionally selected grand jury.1


Respondent, a Negro, and two others were arrested by Tennessee authorities for the robbery of a Nashville liquor store and the attempted murder of an employee who was shot during the episode. Three weeks later the employee died, and a Davidson County grand jury subsequently returned a murder indictment against respondent. Respondent signed a confession admitting his involvement in the robbery and shooting.

At the time of his arrest, respondent was 20 years old and his formal education had terminated at the sixth grade level. He had no attorney when he signed the confession, but subsequently his mother retained counsel to represent him. The attorney's major effort appears to have been to arrange a form of plea bargain, whereby respondent would plead guilty to the murder charge and the sentence, although imposed by a petit jury, would be 99 years, rather than the ultimate penalty. Respondent initially expressed a desire to plead not guilty, but, apparently because of the evidence against him and the possibility that the death sentence might be imposed if he were convicted, he decided on the advice of his counsel to plead guilty. The plea was entered, and the agreed-upon sentence was imposed.


For nearly a hundred years it has been established that the Constitution prohibits a State from systematically excluding Negroes from serving upon grand juries that indict for crime and petit juries that try the factual issue of the guilt or innocence of the accused. Strauder v West Virginia, 100 U.S. 303, 309, 25 L.Ed. 664 (1880). See also Virginia v. Rives, 100 U.S. 313, 322—323, 25 L.Ed. 667 (1880). These holdings have been reaffirmed over the years, see, e.g., Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), and Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939), and are not of course questioned here. But respondent's assertion of this claim has another dimension to it; it was made for the first time many years after he had pleaded guilty to the offense for which he was indicted by the grand jury. None of our previous decisions dealing with the constitutional prohibition against racial discrimination in the selection of grand jurors has come to us in the context of a guilty plea.2

In Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763 (1970), and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), this Court dealt at some length with the effect of a plea of guilty on the later assertion of claimed violations of constitutional rights. In Brady v. United States, supra, 397 U.S. at 750, 758, 90 S.Ct. at 1470, 1474, the Court said:

'The State to some degree encourages pleas of guilty at every important step in the criminal process. For some people, their breach of a State's law is alone sufficient reason for surrendering themselves and accepting punishment. For others, apprehension and charge, both threatening acts by the Government, jar them into admitting their guilt. In still other cases, the post-indictment accumulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family. All these pleas of guilty are valid in spite of the State's responsibility for some of the factors motivating the pleas; the pleas are no more improperly compelled than is the decision by a defendant at the close of the State's evidence at trial that he must take the stand or face certain conviction.

'This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial. We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves. But our view is to the contrary and is based our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants' admissions that they committed the crimes with which they are charged. In the case before us, nothing in the record impeaches Brady's plea or suggests that his admissions in open court were anything but the truth.'

In McMann v. Richardson, supra, 397 U.S. at 770—771, 90 S.Ct. at 1448, the Court laid down the general rule by which federal collateral attacks on convictions based on guilty pleas rendered with the advice of counsel were to be governed:

'In our view a defendant's plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant's confession. Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.' (Footnote omitted.)

The Court of Appeals in its opinion in this case expressed the view that Brady, supra, and McMann, supra, were not...

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