DocketNumber： 92-1003
Filed Date： 9/11/1992
Status： Precedential
Modified Date： 9/21/2015
September 11, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 92-1003
GERARD L. READY,
Petitioner, Appellant,
v.
PAUL SCOPA,
Respondent, Appellee.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
___________________
___________________
Before
Breyer, Chief Judge,
___________
Campbell, Senior Circuit Judge,
____________________
and Selya, Circuit Judge.
_____________
___________________
Gerard L. Ready on brief pro se.
_______________
Scott Harshbarger, Attorney General, and Robert N. Sikellis,
_________________ __________________
Assistant Attorney General, on brief for appellee.
__________________
__________________
Per Curiam. We have reviewed the briefs of the parties
___________
and the record on appeal. We affirm essentially for the
reasons stated in the magistrate judge's "Findings and
Recommendations," dated June 21, 1991, and the district
court's Memorandum and Order, dated October 28, 1991. We add
only the following comments.
1) Ready is correct that the state courts' conclusion on
the issue of ineffective assistance of counsel is not a
factual finding entitled to a presumption of correctness
pursuant to 28 U.S.C. 2254(d). Strickland v. Washington,
__________ __________
466 U.S. 668, 698 (1984). Similarly, he is correct that the
state courts' conclusion as to the voluntariness of his plea
is also not a factual finding entitled to that presumption.
Marshall v. Lonberger, 459 U.S. 422, 431 (1983). But, in
________ _________
each instance, the findings of fact made by the state courts
in the course of deciding these issues are entitled to the
___
statutory presumption of correctness evidenced in 2254(d).
Strickland v. Washington, 466 U.S. at 698; Marshall v.
__________ __________ ________
Lonberger, 459 U.S. at 431-32.
_________
In this case, Ready has argued that his counsel was
ineffective and his guilty plea was involuntary because his
counsel failed to pursue, or inform him (and he was otherwise
unaware) of, the defense of insanity - in particular, a
defense claiming that, due to a mental disease or defect, he
-2-
lacked the substantial capacity to conform his conduct to the
requirements of law. But, in ruling on Ready's motion for a
new trial, the state courts found that the proffered
affidavits from therapists were conclusory, lacking
supporting information. This is a factual issue determined
after a hearing on the merits and thus entitled to the
presumption of correctness. 28 U.S.C. 2254(d).1 Ready
has not shown that that factual determination was erroneous.
Having failed to support his claim of the existence of a
viable insanity defense, Ready's claims that his guilty plea
was involuntary and his counsel ineffective in failing to
raise and/or inform him of that defense necessarily falls as
well. See United States v. Porter, 924 F.2d 395, 397 (1st
___ _____________ ______
Cir. 1991) (appellant must show that counsel overlooked some
"viable defenses") (quoting United States v. Ortiz Oliveras,
_____________ ______________
717 F.2d 1, 4 (1st Cir. 1983)).
2) Henderson v. Morgan, 426 U.S. 637 (1976), instructs us
_________ ______
that a guilty plea is not voluntary in a constitutional sense
"unless the defendant received 'real notice of the true
____________________
1. Ready is incorrect insofar as he is claiming that the
hearing referred to in 2254(d) must be one in which the
court takes live testimony. Smith v. Estelle, 711 F.2d 677,
_____ _______
681 (5th Cir. 1983), cert. denied, 466 U.S. 906 (1984). The
____________
state trial court held a hearing, in the course of which it
accepted Ready's submissions of affidavits in support of his
motion for a new trial. It is also noteworthy that Ready,
who was represented by counsel at this hearing, did not
offer, nor request an opportunity to offer, testimony.
-3-
nature of the charge against him, the first and most
universally recognized requirement of due process.'" Id. at
___
645 (quoting Smith v. O'Grady, 312 U.S. 329, 334 (1941)).
_____ _______
Ready does not dispute that he was informed of all the
elements of the offenses to which he pled guilty. His
attempt, in effect, to liken the insanity defense to an
additional element is expressly refuted by Massachusetts
caselaw. "While we believe that, under Winship, sanity
_______
becomes a 'fact' of the crime charged after evidence of
insanity has been adduced, we do not believe that sanity is
an 'element' of any given crime". Commonwealth v. Kostka,
____________ ______
370 Mass. 516, 532 (1976). The Commonwealth has the ultimate
burden of proving a defendant's criminal responsibility
beyond a reasonable doubt but only after the question of the
defendant's sanity has been raised. Id. We believe that the
___
state courts and the federal district court correctly
concluded, based on the evidence before the state trial court
at the time of Ready's guilty plea, that that plea was
voluntary. And, as we have said, the district court properly
deferred to the state courts' further finding that the
evidence Ready subsequently proffered with his post-
conviction motion failed to raise a viable insanity defense.
We find no basis, therefore, for concluding that Ready's
guilty plea violated the teaching of Henderson.
_________
-4-
Affirmed. Per Curiam. We have reviewed the briefs of
_________ __________
the parties and the record on appeal. We affirm essentially
for the reasons stated in the magistrate judge's "Findings
and Recommendations," dated June 21, 1991, and the district
court's Memorandum and Order, dated October 28, 1991. We add
only the following comments.
1) Ready is correct that the state courts' conclusion on
the issue of ineffective assistance of counsel is not a
factual finding entitled to a presumption of correctness
pursuant to 28 U.S.C. 2254(d). Strickland v. Washington,
__________ __________
466 U.S. 668, 698 (1984). Similarly, he is correct that the
state courts' conclusion as to the voluntariness of his plea
is also not a factual finding entitled to that presumption.
Marshall v. Lonberger, 459 U.S. 422, 431 (1983). But, in
________ _________
each instance, the findings of fact made by the state courts
in the course of deciding these issues are entitled to the
___
statutory presumption of correctness evidenced in 2254(d).
Strickland v. Washington, 466 U.S. at 698; Marshall v.
__________ __________ ________
Lonberger, 459 U.S. at 431-32.
_________
In this case, Ready has argued that his counsel was
ineffective and his guilty plea was involuntary because his
counsel failed to pursue, or inform him (and he was otherwise
unaware) of, the defense of insanity - in particular, a
defense claiming that, due to a mental disease or defect, he
-5-
lacked the substantial capacity to conform his conduct to the
requirements of law. But, in ruling on Ready's motion for a
new trial, the state courts found that the proffered
affidavits from therapists were conclusory, lacking
supporting information. This is a factual issue determined
after a hearing on the merits and thus entitled to the
presumption of correctness. 28 U.S.C. 2254(d).1 Ready
has not shown that that factual determination was erroneous.
Having failed to support his claim of the existence of a
viable insanity defense, Ready's claims that his guilty plea
was involuntary and his counsel ineffective in failing to
raise and/or inform him of that defense necessarily falls as
well. See United States v. Porter, 924 F.2d 395, 397 (1st
___ _____________ ______
Cir. 1991) (appellant must show that counsel overlooked some
"viable defenses") (quoting United States v. Ortiz Oliveras,
_____________ ______________
717 F.2d 1, 4 (1st Cir. 1983)).
2) Henderson v. Morgan, 426 U.S. 637 (1976), instructs us
_________ ______
that a guilty plea is not voluntary in a constitutional sense
"unless the defendant received 'real notice of the true
____________________
1. Ready is incorrect insofar as he is claiming that the
hearing referred to in 2254(d) must be one in which the
court takes live testimony. Smith v. Estelle, 711 F.2d 677,
_____ _______
681 (5th Cir. 1983), cert. denied, 466 U.S. 906 (1984). The
____________
state trial court held a hearing, in the course of which it
accepted Ready's submissions of affidavits in support of his
motion for a new trial. It is also noteworthy that Ready,
who was represented by counsel at this hearing, did not
offer, nor request an opportunity to offer, testimony.
-6-
nature of the charge against him, the first and most
universally recognized requirement of due process.'" Id. at
___
645 (quoting Smith v. O'Grady, 312 U.S. 329, 334 (1941)).
_____ _______
Ready does not dispute that he was informed of all the
elements of the offenses to which he pled guilty. His
attempt, in effect, to liken the insanity defense to an
additional element is expressly refuted by Massachusetts
caselaw. "While we believe that, under Winship, sanity
_______
becomes a 'fact' of the crime charged after evidence of
insanity has been adduced, we do not believe that sanity is
an 'element' of any given crime". Commonwealth v. Kostka,
____________ ______
370 Mass. 516, 532 (1976). The Commonwealth has the ultimate
burden of proving a defendant's criminal responsibility
beyond a reasonable doubt but only after the question of the
defendant's sanity has been raised. Id. We believe that the
___
state courts and the federal district court correctly
concluded, based on the evidence before the state trial court
at the time of Ready's guilty plea, that that plea was
voluntary. And, as we have said, the district court properly
deferred to the state courts' further finding that the
evidence Ready subsequently proffered with his post-
conviction motion failed to raise a viable insanity defense.
We find no basis, therefore, for concluding that Ready's
guilty plea violated the teaching of Henderson.
_________
Affirmed.
_________
-7-
Smith v. O'GRADY , 61 S. Ct. 572 ( 1941 )
Grady Lee Smith v. W.J. Estelle, Jr., Director, Texas ... , 711 F.2d 677 ( 1983 )
United States v. Frank Porter, Jr. , 924 F.2d 395 ( 1991 )
United States v. Andres Carlos Ortiz Oliveras , 717 F.2d 1 ( 1983 )
Henderson v. Morgan , 96 S. Ct. 2253 ( 1976 )