Merle Ray Winford, Appellant, v. Harold R. Swenson, Appellee, 517 F.2d 1114 (8th Cir. 1975)

In this appeal from the denial of habeas corpus relief below, Merle Ray Winford asserts that his 1964 guilty plea to a charge of second degree murder was neither voluntarily nor understandingly made and that in dismissing his habeas petition the District Court erred in not affording him a de novo evidentiary hearing. We reject both contentions and affirm the result below.

The record discloses the following facts and procedural history:

On September 20, 1964, Winford, who had been arrested on a check charge, signed a paper styled a confession wherein he admitted shooting a woman to death. On September 25, Winford was charged in the Circuit Court of St. Louis with first degree murder, an offense which carried a possible penalty of death. Five days later he entered a plea of not guilty. Following consultation with his attorney and the state's amendment of the charge to second degree murder, Winford withdrew his plea of not guilty and entered a guilty plea. The trial court, the late Judge Alvin McFarland, accepted the plea and sentenced Winford to life imprisonment.

Five years later, Winford sought post-conviction relief in state court pursuant to Missouri Supreme Court Rules 27.25 and 27.26, V.A.M.R. Following several pro se motions, including one alleging that Judge McFarland had failed to determine that his guilty plea had been voluntarily and knowingly entered, Winford filed through his attorney¹  a "Supplemental Motion to Set Aside Judgment of Conviction" on April 17, 1970. This motion listed six grounds for vacation of his sentence: (1) the inadequate explanation to the defendant of the nature of the charge against him; (2) the defendant's ignorance of the consequences and legal significance of the guilty plea; (3) ineffective assistance of counsel; (4) failure of counsel to advise defendant that there was insufficient evidence to sustain a first or second degree murder charge; (5) the appointment of counsel so late as to preclude proper preparation of a defense; and (6) the misleading advice by counsel that an agreement had been reached for a ten-year sentence in return for a guilty plea.

At an evidentiary hearing on April 17, 1970, before St. Louis Circuit Judge McFarland, who had initially accepted the guilty plea, Winford testified, inter alia, that his plea had not been entered knowingly. He claimed that he learned of the legal significance of the guilty plea only after consultation with "jailhouse lawyers" with whom he had discussed his case in prison. Moreover, he denied committing the offense with which he had been charged.²  His appointed counsel at the time of the plea testified for the state at the evidentiary hearing,³  as did two assistant circuit attorneys, one of whom had been present at the plea proceedings and another who had taken the written statement from Winford. While reaching findings adverse to Winford on each of the six specific contentions submitted in his "Supplemental Motion,"⁴  Judge McFarland sustained the motion to withdraw the plea on the ground that he had neither advised Winford of the specific constitutional rights waived by the plea nor complied with Missouri Supreme Court Rule 25.04, V.A.M.R., at the time of allocution. That rule provides that the "court * * * shall not accept the (guilty) plea without first determining that the plea is made voluntarily with understanding of the nature of the charge."⁵ 

On appeal by the state, a divided panel of Division 1 of the Missouri Supreme Court adopted the opinion of Judge Higgins, Commissioner in Division 1, affirming the grant of Winford's motions for post-conviction relief. The case was thereupon transferred to the court en banc, where a majority of four judges held that Missouri law does not require vacation of the sentence despite an insufficient record at the time the plea was accepted, where it is found that the guilty plea was in fact made voluntarily and with an understanding of the nature of the charge. While Judge McFarland's opinion granting Winford's motion "did not include the specific statement that defendant entered his plea voluntarily," the majority of the Missouri Supreme Court was of the "view * * * that such is the only reasonable conclusion that could be reached from the findings that were made." Winford v. State, 485 S.W.2d 43, 49 (Mo.1972) (en banc). Three judges dissented, rejecting the majority's inference of voluntariness from Judge McFarland's six specific factual findings adverse to Winford.

On September 17, 1973, Winford filed a pro se petition for federal habeas corpus relief, 28 U.S.C. § 2254, alleging that he had not entered his plea voluntarily and understandingly and that the trial court had failed to determine the voluntariness of his plea. Following the District Court's Intermediate Order to Show Cause and the State's Response thereto, the United States Magistrate concluded that the plea had been entered voluntarily and understandingly and recommended dismissal of the habeas corpus petition without further hearing. Judge Wangelin entered an order to that effect, and Winford appealed, whereupon we issued a certificate of probable cause.

There is no dispute that Winford had exhausted his state remedies prior to his federal collateral attack on his conviction; we therefore proceed directly to the merits of the issues raised in this appeal.

Winford first claims that he is entitled to a writ of habeas corpus because the state evidentiary hearing failed to establish that his guilty plea had been voluntarily and understandingly entered upon advice of the constitutional rights waived by a plea of guilty.

Because the plea in question here antedates the Supreme Court's decision in Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), we test its constitutionality against whether it was voluntarily and understandingly given in light of the totality of the circumstances. Brown v. Swenson, 487 F.2d 1236 (8th Cir. 1973), cert. denied, 416 U.S. 944, 94 S. Ct. 1952, 40 L. Ed. 2d 296 (1974); Meller v. Missouri, 431 F.2d 120 (8th Cir. 1970), cert. denied, 400 U.S. 996, 91 S. Ct. 469, 27 L. Ed. 2d 445 (1971). This pre-Boykin test does not require a record affirmatively showing that the trial judge gave the defendant specific procedural warnings before accepting the plea but only that the record contain facts demonstrating the voluntary and intelligent nature of the plea. Brown v. Swenson, supra. Indeed, the Supreme Court has made it clear that a counseled guilty plea made by a competent defendant aware of the nature of the charge against him and induced by his desire to limit the possible penalty will not be set aside simply because the defendant later learns of constitutional rights which he did not know at the time the plea was entered. Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458, 25 L. Ed. 2d 785 (1970); cf. Tollett v. Henderson, 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973); Lefkowitz v. Newsome, 420 U.S. 283, 95 S. Ct. 886, 43 L. Ed. 2d 196 (1975). A guilty plea entered with the assistance of counsel is presumptively valid. United States ex rel. Black v. Russell, 435 F.2d 546 (3d Cir. 1970), cert. denied, 402 U.S. 947, 91 S. Ct. 1639, 29 L. Ed. 2d 116 (1971); United States ex rel. Sadler v. Pennsylvania, 434 F.2d 997 (3d Cir. 1970); cf. Redus v. Swenson, 468 F.2d 606 (8th Cir. 1972), cert. denied, 411 U.S. 933, 93 S. Ct. 1906, 36 L. Ed. 2d 393 (1973).

It is clear from the specific findings of the state court judge that Winford's plea was an effectively and accurately counseled plea made with full knowledge of the nature of the charge. See note 4 supra. These findings are entitled to a presumption of correctness with the burden on the habeas corpus petitioner to establish that such factual determinations were erroneous. 28 U.S.C. § 2254(d); LaVallee v. Delle Rose, 410 U.S. 690, 695, 93 S. Ct. 1203, 35 L. Ed. 2d 637 (1973). That burden has not been met on the record in this case.

In light of the circumstances surrounding the plea,⁶  as found by the state court, we conclude that the District Judge correctly dismissed the petition.⁷ 

Invoking the language of Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), Winford contends that Judge Wangelin erred in denying him a de novo evidentiary hearing since the state court had not expressly resolved all issues of fact, i. e., whether the plea was voluntary and understanding. It is true that Townsend requires a federal evidentiary hearing on a habeas corpus petition where the merits of the factual dispute have not been resolved in the state hearing. 372 U.S. at 313-14, 83 S. Ct. 745. This requirement is reflected in 28 U.S.C. § 2254(d). Nonetheless, Townsend expressly recognizes that the federal courts sitting in habeas corpus may, in the absence of clear expression by the state court, reconstruct implied findings of fact and interpolate the constitutional criteria applied. 372 U.S. at 314-15, 83 S. Ct. 745; Farmer v. Caldwell, 476 F.2d 22 (5th Cir.), cert. denied, 414 U.S. 868, 94 S. Ct. 178, 38 L. Ed. 2d 117 (1973). This is precisely the analysis used by the Magistrate in recommending to Judge Wangelin that no further evidentiary hearing would be necessary.

The appellant has demonstrated no defect of constitutional dimension in the state evidentiary hearing which would require the District Court to hold its own evidentiary hearing to expand the record, see Tyler v. Swenson, 427 F.2d 412 (8th Cir. 1970), nor has he specified what relevant evidence might have been offered at such a hearing, cf. Procunier v. Atchley,400 U.S. 446, 91 S. Ct. 485, 27 L. Ed. 2d 524 (1971). We find no error here.

We thus reject Winford's specific contention that the state court record was inadequate because it did not contain an explicit determination that the plea was voluntary and understanding. As was observed in another context, such issues are not purely factual questions for conclusive state court determination but rather are in the nature of conclusions incorporating "criteria for judgment which in themselves are decisive of constitutional rights." Watts v. Indiana, 338 U.S. 49, 51, 69 S. Ct. 1347, 1348, 93 L. Ed. 1801 (1949) (opinion of Frankfurter, J.). See also Procunier v. Atchley, supra. As such, they are issues suitable for federal court resolution on the basis of the surrounding circumstances as found by the state court. Since the state court resolved all of Winford's specific factual allegations against him, see note 4 supra, further evidentiary proceedings are unnecessary.

Accordingly, the order of the District Court dismissing Winford's habeas corpus petition without a de novo evidentiary hearing is affirmed.

HEANEY, Circuit Judge (dissenting).

I respectfully dissent for the same reasons the three Missouri Supreme Court judges dissented in Winford v. State, 485 S.W.2d 43 (Mo.1972) (en banc). I am not convinced that this record contains facts demonstrating the voluntary and intelligent nature of the plea.