Tran v. Lockhart, 87-1814EA

• Decision Date: 26 August 1988
• Docket Number: No. 87-1814EA,87-1814EA
• Citation: 849 F.2d 1064
• Parties: Dung Thai TRAN, Appellant, v. A.L. LOCKHART, Director Arkansas Department of Corrections, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1064

849 F.2d 1064

Dung Thai TRAN, Appellant, v. A.L. LOCKHART, Director Arkansas Department of Corrections, Appellee.

No. 87-1814EA.

United States Court of Appeals Eighth Circuit.

Submitted April 11, 1988.

Decided June 13, 1988.

Rehearing and Rehearing En Banc Denied Aug. 26, 1988.

Susan M. Rogers, Little Rock, Ark., for appellant.

Theodore Holder, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before FAGG, Circuit Judge, BRIGHT, Senior Circuit Judge, and HANSON, ^* Senior District Judge.

HANSON, Senior District Judge.

Dung Thai Tran appeals the District Court's denial of his petition for habeas corpus. In the petition Tran asserts that a guilty plea he entered to a charge of capital felony murder should be set aside on the grounds that his unfamiliarity with the English language at the time of the plea, when combined with the actions of his court-appointed counsel, resulted in a violation of rights guaranteed to him by the United States Constitution. This Court, for the reasons discussed below, affirms the the order of the District Court.

Facts

Dung Thai Tran is a refuge from Vietnam. On March 23, 1979, at the age of 20, Tran plead guilty to the charge of capital felony murder for unlawfully causing the death of Tan Kim while in the course of committing rape and robbery of her. This plea was entered in the Sebastian County Circuit Court of Arkansas before the Honorable Judge David Partain pursuant to a plea agreement in which the state agreed to waive the death penalty. Tran was represented by Sebastian County Public Defender Donald Langston at this hearing. As a result of the plea, Tran was sentenced to life imprisonment without parole.

On December 16, 1985, 6 1/2 years after he entered the guilty plea, Tran filed a pro se petition for a writ of error coram nobis with the trial court that had taken his plea. In this petition Tran alleged that he did not understand the English language well enough to knowingly and voluntarily enter a guilty plea, and that his counsel's assistance had been ineffective. Specifically, Tran alleged: that at the time of his plea hearing he "could not speak the native English language except for yes or no"; that his counsel had been ineffective in not having an interpreter appointed for him; that his counsel was unable to prepare a proper defense for him because he could not talk to Tran in Tran's native language; and that "he is not guilty as he has been persuaded to plead." In the petition Tran also alleged that it had taken him 6 1/2 years to file the writ because he had only recently developed the English skills that had allowed him to realize the "injustice" that had been done to him.

On May 15, 1986, without holding an additional hearing, the state trial court issued an order denying Tran's petition on two alternative grounds. First, the court held that Tran's motion was filed outside of the three-year limitations period required by Rule 37.2(c) of the Arkansas Rules of Criminal Procedure for petitions seeking relief through post-conviction proceedings. Second, the court ruled that the record of Tran's plea hearing "conclusively shows that the defendant is entitled to no relief", implicitly finding that the grounds asserted were meritless.

On November 3, 1986, the Supreme Court of Arkansas denied Tran's pro se petition for a writ of certiorari appealing the decision of the trial court. The Court, without hearing, upheld the trial court's determination that Tran's petition was procedurally barred by Rule 37.2. The Court did not address the issue of of Tran's English sufficiency at the time of his plea.

Having exhausted his state remedies on this claim Tran then filed a petition for a writ of habeas corpus with the United States District Court for the Eastern District of Arkansas, the Honorable Garnett Thomas Eisele. In this petition Tran moved the court for the appointment of counsel and reasserted the basic claims he made in his petition for a writ of coram nobis. Two noteworthy differences in the habeas petition were its failure to make any reference to Tran's guilt or innocence, and the addition of the related allegation that Tran's counsel had persuaded him to go along with whatever his counsel did at the plea hearing. Appellee responded by asking the District Court to deny the petition without a hearing. Attached to the response as exhibits were copies of: the plea hearing transcript; Tran's state writ; and the trial court's order denying the state writ. Tran then moved for an evidentiary hearing on the issues raised.

The District Court, without receiving further evidence and without appointing counsel for Tran, held that Tran's petition presented the Court with two related claims. The claims being whether his counsel was ineffective in assisting him, and whether he understood the consequences of his guilty plea sufficiently to enter a voluntary plea. The Court then found both of these claims to be without merit.

The Court ruled that the ineffectiveness claim failed for two separate reasons. First of all, the Court ruled, the record established that Tran had never requested an interpreter and that an interpreter was not necessary in the case. Secondly, the Court held that Tran had not sufficiently alleged prejudice.

The District Court based its ruling that the voluntary plea claim was without merit on the grounds that the implicit finding by the state trial court that Tran did understand his guilty plea was entitled to a "presumption of correctness" under 28 U.S.C. Sec. 2254(d). Finding that the trial court's findings on this issue were fairly supported by the record, the District Court went on to rule that although Tran's "grasp of the English language may have been somewhat limited, he did possess a sufficient understanding to voluntarily and intelligently offer his plea." Accordingly, the District Court denied Tran's petition in total.

Tran now challenges the District Court's holdings: that he did not allege prejudice; that an interpreter was not necessary; that the trial court's finding of a voluntary plea should be afforded a presumption of correctness; and that he voluntarily and knowingly entered the plea. He also argues that the District Court's failure to hold an evidentiary hearing on the issue was in error.

Ineffectiveness of Counsel

This Court agrees with the District Court that Tran's claims represent two attacks on his plea, one based on the allegation of ineffectiveness of counsel and one based on the allegation that the guilty plea was not voluntarily entered. We will address the ineffectiveness of counsel claim first.

In the case Hill v. Lockhart, Director Arkansas Department of Corrections, the Supreme Court upheld a district court's denial, without an evidentiary hearing, of a habeas petition alleging that a guilty plea should be overturned by reason of ineffectiveness of counsel. 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The Court ruled that in order to challenge a guilty plea through a claim of ineffective assistance of counsel a defendant must show that he was "prejudiced" by his counsel's performance, and specified that "in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S.Ct. at 370. In explaining this standard the Court further ruled that:

In many guilty plea cases, the "prejudice" inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.

Id. at 59, 106 S.Ct. at 370-71.

This Court finds that Tran has not sufficiently plead prejudice under the standard established by the Supreme Court in Hill. First of all, although Tran's state petition could be read as alleging that he was not guilty, he does not assert in either petition that "he would not have pleaded guilty and would have insisted on going to trial" had he been provided with an interpreter. Additionally, nowhere does he supply this Court with the type of specific facts which would allow it to make the kind of detailed analysis required under Hill. The allegation that an interpreter would have allowed him to "relay to his attorney important facts surrounding his case" is simply not enough because it does not provide the type of information which would allow an intelligent assessment of the likelihood that Tran would not have plead guilty. For all we know, the mystery facts which Tran claims he could have disclosed may be entirely irrelevant. Under Hill, this is not enough.

Appellant's assertions that such specific allegations are not necessary overlooks the Hill majority's discussion regarding specifics quoted above, and of that Court's application of these specifics. See Id. at 60, 106 S.Ct. at 371. The assertion also violates common sense. This case is almost ten years old. Surely before a Court reopens a ten year old plea, on the type of grounds which Tran alleges, the petitioner must be required to allege in specific detail what it is he could have told his attorney that would have enhanced a possible...