Unpublished Disposition, 844 F.2d 792 (9th Cir. 1988)

MEMORANDUM^* 

Roy E. Harrell appeals the district court's denial of his habeas corpus petition under 28 U.S.C. § 2254. Harrell argues that his guilty plea was involuntary and unintelligent, in violation of the fifth, sixth and fourteenth amendments. The district court had jurisdiction pursuant to 28 U.S.C. § 2254, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

We review the state and district courts' determinations of voluntariness de novo, and uphold findings of historical or subsidiary facts unless they are clearly erroneous. See Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir. 1986), cert. denied, 108 S. Ct. 198 (1987).

The district court properly ruled that Harrell had exhausted his state remedies and that the state courts had fair opportunity to decide the issue. See Allbee v. Cupp, 716 F.2d 635 (9th Cir. 1983); Anderson v. Harless, 459 U.S. 4 (1982).

Harrell contends that the overriding reason he pled guilty was his fear of the death penalty and that the evidence establishes that the state did not intend to seek the death penalty. Harrell argues that he was coerced into a bargain with little or no actual value by his attorney, the prosecutor and his family. Harrell's guilty plea must have been voluntary, intelligent and uncoerced. See Boykin v. Alabama, 395 U.S. 238 (1969). Harrell must have been aware of the direct consequences when he chose to plead guilty and the actual value of any commitments made to him. Brady v. United States, 397 U.S. 742, 755 (1970); McMann v. Richardson, 397 U.S. 759, 766 (1970).

The Oregon courts, after holding a post-conviction hearing, found that Harrell's plea was entered voluntarily and intelligently. The district court reviewed the record and found that: (1) Harrell's counsel, Sussee, was a competent attorney; (2) Harrell feared the death penalty, asked Sussee questions about it, and requested to talk to his mother; (3) a 1979 letter from Gortmaker, the prosecutor, to Sussee "clearly stated that the state considered the death penalty in petitioner's case at one stage of the proceedings"; and (4) that Harrell knowingly and voluntarily entered the plea. The district court found the 1979 letter to be consistent with the two-stage analysis of the case by the prosecution and found it "impossible to infer ... that the state never contemplated the death penalty." The district court's findings are not clearly erroneous. See Hayes, 784 F.2d at 1436.

A prosecutor can threaten a greater charge than sought in plea bargaining as long as a defendant is plainly subject to prosecution on that charge. Bordenkircher v. Hayes, 434 U.S. 357 (1978). Since Harrell could accept or reject the prosecutor's offer, the bargain was still voluntary. See id. at 362-64. Harrell could have been sentenced to death and the prosecutor's recommendation to the judge that the state would not seek the death penalty did give Harrell something of actual value.

Harrell's claim does not involve an improper threat of harm to a third person, which is even more coercive than purely bilateral bargaining. See United States v. Nuckols, 606 F.2d 566, 569 (5th Cir. 1979); see also Ferguson v. Boyd, 566 U.S. 873, 876 (4th Cir. 1977) (voluntariness finding invalidated where defendant confessed solely to obtain the release of his girlfriend, who was already released at the time but used by the government as a "hostage"). As he entered the plea, Harrell testified that there was no coercion and assured the court that he had shot his uncle during a robbery attempt. "Solemn declarations made in open court carry a strong presumption of verity." Chizen v. Hunter, 809 F.2d 560, 561-62 (9th Cir. 1986).

Harrell contends that his mother and minister coerced him into pleading guilty. However, " [m]ere advice or strong urging by third persons to plead guilty based on the strength of the state's case does not constitute undue coercion." Iaea v. Sunn, 800 F.2d 861, 867 (9th Cir. 1986). Harrell also admitted that he could have refused their suggestions.

Harrell argues that Sussee's failure to clarify the government's position as to the death penalty after the 1979 letter amounts to ineffective assistance, which renders his plea involuntary. See Tollett v. Henderson, 411 U.S. 258, 266-67 (1973). However, because the advice of Harrell's counsel was reasonably competent, the guilty plea will withstand attack. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir. 1985). Harrell did not demonstrate prejudice by proving that he would not have pled guilty but for Sussee, and that a reasonable probability exists that he would have insisted on going to trial. Iaea, 800 F.2d at 865.

Harrell testified at the post-conviction hearing that he pled guilty "because of my mother--because I saw what the situation was doing to her." A defendant may be convinced by the state's evidence "that a trial is not worth the agony and expense to the defendant and his family." Brady, 397 U.S. at 750. The state's evidence against Harrell was strong, as the preliminary hearing demonstrated, and Harrell's self-defense claim was almost without foundation. There is no evidence that Harrell "could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty." Id. Harrell's statement that he was satisfied with Sussee's performance in open court also undercuts his claim. See United States v. Rubalcaba, 811 F.2d at 491, 494 (9th Cir. 1987). Sussee was prepared to proceed to trial. Harrell admits that he had been informed of his options by Sussee and the state clearly could seek the death penalty. Harrell pled guilty to avoid the death penalty, a possible sentence if he proceeded to trial. The district court's finding that Sussee was reasonably competent was not clearly erroneous.

Harrell has not demonstrated that his plea was involuntary, unintelligent or coerced.

AFFIRMED.