United States of America Ex Rel. Charles Grays v. Alfred T. Rundle, Supt , 428 F.2d 1401 ( 1970 )

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal challenges a District Court order and opinion,¹ denying relator’s petition for a writ of habeas corpus. See United States ex rel. Grays v. Rundle, 293 F.Supp. 643 (E.D.Pa.1968). Relator, with counsel present, had entered a plea of guilty to murder generally in the Philadelphia state criminal court on January 26, 1954.² After entry of the plea, a hearing was held to determine the applicable degree of murder. The court found relator guilty of first degree murder and sentenced him to life imprisonment. On appeal, relator’s counsel contended that the facts did not justify a finding of murder in the first degree, but this contention was rejected. See Commonwealth v. Grays, 380 Pa. 77, 110 A.2d 422 (1955).³ After serving more than 12 years in prison, relator, for the first time, sought collateral relief in the state court by filing a petition under the Pennsylvania Post Conviction Hearing Act (19 P.S. § 1180-1 ff.),⁴ claiming that his guilty plea had been unlawfully induced and that a coerced confession had been illegally received in evidence at the above-mentioned hearing.⁵ This petition alleged that relator’s counsel '“advised petitioner to change his plea to guilty declaring the degree could rise no higher than second degree in any case” and such “a plea * * * would substantially minimize the degree.” Also relator testified that such counsel told him, prior to the entry of the plea, that one of the hearing judges said that relator would have a new trial if a sentence of more than 6 to 12 years was imposed.⁶ After a hearing in July 1967, the petition was de nied by the trial court and such denial was affirmed. See Commonwealth v. Grays, 428 Pa. 109, 237 A.2d 198 (1968).

Assuming that the state trial court did not conduct, at the time of accepting the guilty plea, an inquiry sufficient to establish that the plea was knowingly and understanding^ made, the totality of the circumstances in the record before the District Court, which included the transcript of the 1954 hearing as well as the 1967 hearing on the post-conviction petition, justified the District Court’s findings and conclusions that the plea was “knowingly and voluntarily entered” and was not “improperly induced” (293 F.Supp. at 647).⁷ The Supreme Court of the United States has recently recognized that a plea entered by a counseled defendant, even though there was a prior confession, now claimed to be coerced, which might have been offered against him, has a presumption of validity which sustains it against collateral attack. See McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 463 (1970), where the Court said:

“The issue on which we differ with the Court of Appeals arises in those situations involving the counselled defendant who allegedly would put. the State to its proof if there was a substantial enough chance of acquittal, who would do so except for a prior confession which might be offered against him, and who because of the confession decides to plead guilty to save himself the expense and agony of a trial and perhaps also to minimize the penalty which might be imposed. After conviction on such a plea, is a defendant entitled to a hearing, and to relief if his factual claims are accepted, when his petition for habeas corpus alleges that his confession was in fact coerced and that it motivated his plea? We think not if he alleges and proves no more than this.

“ * * * a plea of guilty in a state court is not subject to collateral attack in a federal court on the ground that it was motivated by a coerced confession unless the defendant was incompetently advised by his attorney. For the respondents in these cases successfully to claim relief based on Jackson v. Denno, each must demonstrate gross error on the part of counsel when he recommended that the defendant plead guilty instead of going to trial and challenging the New York procedures for determining the admissibility of confessions.

“It is no denigration of the right to trial to hold that when the defendant waives his state court remedies and admits his guilt, he does so under the law then existing; further, he assumes the risk of ordinary error in either his Or his attorney’s assessment of the law and facts. Although he might have pleaded differently had later decided cases then been the law, he is bound by his plea and his conviction unless he can allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.”⁸

We have recently held that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), relied on by relator, is not to be applied retroactively. United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3rd Cir. 1969); see Commonwealth v. Godfrey, 434 Pa. 532, 254 A.2d 923 (1969).

Under the circumstances presented by this record,⁹ the District Court did not err in placing the burden of persuasion upon the relator to show that his plea was not entered as an intelligent act “done with sufficient awareness of the relevant circumstances and likely consequences.”¹⁰ See Walker v. Johnston, 312 U.S. 275, 287, 61 S.Ct. 574, 579, 85 L.Ed. 830 (1941), where the Court, in remanding for a hearing in the District Court to determine the voluntariness of the guilty plea, used this language:

“Not by the pleadings and the affidavits, but by the whole of the testimony, must it be determined whether the petitioner has carried his burden of proof and shown his right to a discharge.” [Emphasis supplied.] (quoted with approval in Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962))

See McMann v. Richardson, supra (last sentence of quotation on p. 5 above). To the extent that our opinions in United States ex rel. McCloud v. Rundle, 402 F.2d 853, 858 (3rd Cir. 1968); United States ex rel. Crosby v. Brierley, 404 F.2d 790, 795-796 (3rd Cir. 1968); and United States ex rel. Fink v. Rundle, 414 F.2d 542, 546 (3rd Cir. 1969), are inconsistent with this decision, involving a 1954 plea, they are not to be followed.

The court expresses its appreciation for the able presentation of, and the helpful briefs filed by, appointed counsel for the relator.

The order of the District Court will be affirmed.

1 . This opinion and order followed an evidentiary hearing in the District Court, where relator was represented by counsel. The District Court opinion contains this explanation at footnote 1:

“Although we do not believe Townsend, supra, mandated an evidentiary hearing in this Court, as a discretionary matter we conducted such a hearing so as to afford relator an opportunity to clarify his position and to afford the District Attorney an opportunity to introduce into evidence anything which might be disclosed by a search of the records and files of relator’s trial counsel (now deceased).”

2 . The colloquy which took place between the court and relator’s counsel at the time of the plea of guilty appears at footnote 2 of the District Court opinion (293 F.Supp. at 645). Both the allegations of the petition (par. 5, 1, b) and the relator’s testimony in the District Court (N.T. 58) show that relator knew that the “electric chair” was a possible penalty for the crime for which he was charged.

3 . This opinion recites the background facts of what the Supreme Court of Pennsylvania later described as a “gangland style killing.” Commonwealth v. Grays, 428 Pa. 109, 110 n. 1, 237 A.2d 198, 199 n. 1 (1968).

4 . It is noted that relator did not bring his application for collateral relief until his counsel had died and was thus unavailable to testify.

5 . The Supreme Court of Pennsylvania made this comment on the relator’s claim of an alleged coerced confession (428 Pa. at 112 n. 3, 237 A.2d at 200 n. 3):

“Appellant’s post conviction application also asserted that an involuntary confession was introduced at the proceeding held to determine degree of guilt, but there was no allegation that the primary motivation for the plea was the confession. Since this contention was not pressed at the hearing and is not now asserted, we conclude that it has been abandoned. Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965), 1580, § 4, 19 P.S. § 1180-4 (Supp.1966).”

6 . The Pennsylvania Supreme Court stated:

“ * * * a hearing would not have been granted unless the facts alleged in the post conviction petition, if true, would have entitled appellant to relief. See, e. g., Commonwealth ex rel. Kern v. Maroney, 423 Pa. 369, 223 A.2d 706 (1966). Denial of relief below is therefore equivalent, under the circumstances of this case, to a trial court finding that appellant’s testimony was not sufficiently credible.” Id. See, also note 7, infra.

7 . The District Court found, after a review of all the evidence, that the testimony of relator (293 F.Supp. at 646-647) and that of his wife (293 F.Supp. at 645 n. 3) were not credible.

8 . Similarly, the same Court said in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970):

“We decline to hold, however, that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant’s desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged.”

9 . In this record, relator liad counsel and there is no evidence, found by the court to be credible, of incomjietent advice of such counsel. There was no evidence of an admitted plea agreement. Compare Bailey v. McDougall, 392 F.2d 155 (4th Cir. 1968), relied on by relator, where the terms of an admitted plea agreement were in issue.

10 . See Brady v. United States, supra.