Vickery v. State of South Carolina

• Decision Date: 20 November 1973
• Docket Number: Civ. A. No. 72-1024.
• Citation: 367 F. Supp. 407
• Parties: Joel VICKERY, Petitioner, v. STATE OF SOUTH CAROLINA, Respondent.
• Court: U.S. District Court — District of South Carolina

367 F. Supp. 407

Joel VICKERY, Petitioner, v. STATE OF SOUTH CAROLINA, Respondent.

Civ. A. No. 72-1024.

United States District Court, D. South Carolina, Columbia Division.

November 20, 1973.

James B. Richardson, Jr., Columbia, S. C., for petitioner.

Daniel McLeod, Atty. Gen., Columbia, S. C., for respondent.

ORDER

BLATT, District Judge.

This matter is before the court on a petition for habeas corpus filed on August 16, 1972, in which the petitioner, a state prisoner, through his diligent and extremely able court-appointed counsel, raises a substantial legal question regarding a plea of guilty to a murder charge tendered by him on February 3, 1970. Petitioner contends that it was error for the trial judge to accept his guilty plea without making a recorded determination of the petitioner's awareness of the consequences of such a plea and the resultant waiver of the basic constitutional rights to trial by jury, confrontation of one's accusers, and the privilege against compulsory selfincrimination.¹ Petitioner raised the identical question in a state post-conviction relief proceeding and by Order dated January 19, 1971, following a full evidentiary hearing, the Honorable Francis B. Nicholson found as a fact that petitioner had voluntarily, knowingly, and intelligently entered his plea of guilty, but granted petitioner's writ for habeas corpus relief on the ground that since the record indicated that the state trial judge, who originally accepted the guilty plea, had failed to canvass the petitioner or his attorney regarding petitioner's cognizance of the consequences of the plea, and petitioner's awareness of the relinquishment of the aforementioned constitutional rights by so pleading,² thus, that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), mandated such relief.³ The South Carolina Supreme Court reversed Judge Nicholson, holding that Boykin did not require automatic vitiation of a guilty plea when the transcript of the guilty plea proceeding itself was barren of any dialogue between the court and the defendant it if could be thereafter affirmatively shown by a record developed through reconstruction of the circumstances under which the defendant pled guilty that said plea was voluntarily, knowingly and intelligently tendered. Vickery v. State, 258 S.C. 33, 186 S.E.2d 827 (S.C.1972).

The United States Supreme Court in Boykin was presented a petition for writ of certiorari on appeal from the Alabama Supreme Court's affirmance of defendant's plea of guilty to five counts of common law robbery. After a jury trial to determine punishment,⁴ Boykin was sentenced to death. The Supreme Court reversed on the ground that the record before it did not disclose that Boykin voluntarily and understandingly entered his guilty plea, holding:

"In Carnley v. Cochran, 369 U.S. 506, 516 82 S.Ct. 884, 890, 8 L.Ed.2d 70, 77, we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right. We held: `Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.' We think that the same standard must be applied to determining whether a guilty plea is voluntarily made." 395 U.S. at 242, 89 S.Ct. at 1712. (emphasis ours).

The Supreme Court then observed:

"Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. * * * Second, is the right to trial by jury. * * * Third, is the right to confront one's accusers. * * * We cannot presume a waiver of these three important federal rights from a silent record. 395 U.S. at 243, 89 S.Ct. at 1712.

The ruling in Boykin closely followed in time the court's decision in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), holding that federal district courts must admonish defendants with regard to waiving their specific constitutional rights to jury trial, confrontation of witnesses, and privilege against self-incrimination, and otherwise strictly comply with Rule 11 of the Federal Rules of Criminal Procedure, at the time a guilty plea is tendered, or the plea, if attacked collaterally, will be automatically vacated. In Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969) the Court declined to apply McCarthy retroactively,⁵ and thus open to vitiation all federal guilty pleas accepted without strict compliance with Rule 11, observing that constitutionally valid guilty pleas—that is, guilty pleas which were voluntarily and knowingly entered— could be obtained without strict adherence to the rigidities of Rule 11, and when the colloquy between the court and the defendant did not religiously conform to the requisites of Rule 11, the plea would not be vacated, but the petition would be remanded for an evidentiary reconstruction hearing to develop factually whether the plea was voluntarily and understandingly entered. Thus, in federal courts when a previously entered plea of guilty to a federal charge has been assailed as completely lacking in Rule 11 preciseness, the remedy has been in post-McCarthy cases to automatically invalidate the plea and in pre-McCarthy cases to remand for a reconstruction hearing. The precise question framed by this petition is whether a state prisoner, attacking his post-Boykin guilty plea as having been accepted without conformance to Boykin, is entitled to habeas relief based on McCarthy, or whether a pre-McCarthy type reconstruction hearing is still available to the state.

Petitioner additionally attacks the state court post-conviction evidentiary finding that his guilty plea was knowingly entered, but he concedes the adequacy of that court's finding that his plea was voluntarily made.⁶ Both petitioner and the State admit that the state court post-conviction evidentiary hearing was adequate and both acknowledge "that all evidence that can be marshalled is contained in the record", (Bailey v. MacDougall, 392 F.2d 155, 160 (4 Cir. 1968)) of the state post-conviction hearing.^6a This court has diligently reviewed the transcript of the post-conviction hearing and is independently satisfied from that record that petitioner's plea was knowingly entered as he was abundantly apprised of the consequences of his plea and the forfeiture of his constitutional rights, and he was in no manner coerced or unconscionably persuaded by unrequited promises to plead guilty. In the main, petitioner complains that there is insufficient evidence that he was specifically informed at any stage of the proceeding that by pleading guilty he relinquished the particular constitutional right to confront his accusers. However, as pointed out by the Court of Appeals for the Fourth Circuit, a "catechism of the constitutional rights that are waived by entry of a guilty plea is not compelled either by the Constitution or by Rule 11." Wade v. Coiner, 468 F.2d 1059, 1060 (4 Cir. 1972). See also, United States v. Ready, 460 F.2d 1238, 1239 (4 Cir. 1972). In People v. Tennyson, 9 Ill.App.3d 329, 292 N.E.2d 223 (1972), the petitioner there asserted that his previously entered guilty plea was invalid because the trial court failed to admonish him of the nature of the charge against him and of his right to confront witnesses. The court rejected this contention holding that the record disclosed adequate evidence that the defendant was aware of the forfeiture of his constitutional rights by pleading guilty and suggested that the specific right about which the defendant disclaimed knowledge of relinquishment was included in the right to trial by jury which must be had before one is able to confront one's accusers. Thus, there is no constitutionally based requirement that a state judge utter a warning regarding the specific waiver of the right to confront witnesses. In the instant case, the state court's finding that petitioner's plea was voluntarily and knowingly entered is more than adequately supported by the evidence and is bottomed on reliably found relevant facts, and this court adopts these findings of fact and concludes that the petitioner's guilty plea was voluntarily and knowingly made. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Wright v. North Carolina, 483 F.2d 405, 408 (4 Cir. 1973).

There remains the serious question of the type relief which should be granted by federal courts on habeas corpus attack of a state guilty plea proceeding which on the face of the guilty plea record does not conform to the spirit and letter of Boykin. There is sharply divided opinion in both the state and federal courts as to the remedy to be applied,⁷ but this court, for the reasons hereinafter expressed, is convinced that the better approach requires scrutiny of the records of both the original plea proceeding and the state post-conviction reconstruction hearing to determine if the requirement of knowing waiver⁸ of constitutional rights is present.

The petitioner here advances the theory that Boykin requires that the validity of a guilty plea is to be determined solely and exclusively upon the record developed at the plea proceeding.⁹ The United States Supreme Court has construed Boykin as follows:

"The requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized . . . The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily." (Brady v. United States, 397 U.S. 742, 747 (n. 4), 90 S. Ct. 1463, 1468, 25 L.Ed.2d 747 (1970) (emphasis theirs)).

The courts have varied in their construction of "record"—some...