Frank Naceo Martin, Petitioner Appellee, v. Ray H. Page, Warden, Respondent Appellant, 417 F.2d 309 (10th Cir. 1969)

This is an appeal from a judgment and order of the United States District Court for the Western District of Oklahoma granting relief to appellee Martin by writ of habeas corpus. Martin is a state prisoner presently in the custody of appellant by virtue of the imposition of three sentences which are the subject of the case at bar and at least one additional sentence the validity of which is not now questioned. Each of the questioned sentences was imposed after entry of a plea of guilty and the relief granted by the district court was premised on findings that such pleas were not entered "voluntarily, knowingly and understandingly, but [Martin] entered said pleas with the firm conviction that he would receive a sentence of ten (10) years on all of these charges."

The issue of the voluntariness of Martin's pleas had earlier been considered by the Oklahoma Court of Criminal Appeals in a post-conviction proceeding. That court, after a full evidentiary hearing, rejected Martin's claims and denied relief. Martin v. Page, 444 P.2d 830. However, the federal district court was unable to accord weight to the presumptive correctness of the state court decision, 28 U.S.C. § 2254(d), because the State of Oklahoma had not recorded the testimony given at the state hearing. This unfortunate and avoidable frustration of the cited statute required the district court to hold an independent evidentiary hearing and to make original findings of fact premised largely on a subjective determination of credibility. From our examination of the federal record and our reading of the state court opinion it seems apparent that the state court rejected the credibility of Martin's own testimony and the court below deemed Martin a completely credible witness in his own behalf. Since we are reviewing only the federal evidentiary record we accept the determination of credibility made by the district court.

Appellant concedes, as he must, that appellee is entitled to federal relief if, in truth, the subject pleas of guilty were motivated by a promise of a ten-year sentence.¹  But appellant argues, at least inferentially, that appellee cannot meet his burden of establishing the involuntariness of his pleas by his self-serving testimony and contends directly that Martin's testimony is wholly uncorroborated in the case at bar by circumstance or otherwise. We must reject each argument.

Although the self-serving testimony of a felon is certainly suspect and should be viewed by the fact-finder with caution we know of no rule that extends further as a bar to the acceptance of such testimony as sustaining an evidentiary burden. Here, appellee testified that soon after his arrest and while incarcerated he was interviewed by Oklahoma police officers, urged to clean up the three subject crimes and told: "Well, you understand you can do ten years and come back and everything will be all right, you know, you want to get it all out of the way." Thereafter, appellee testified, he believed he had a "package deal" and accepted all procedures and authoritative suggestions without complaint until sentences were imposed. Appellee's testimony, if credible, is legally sufficient to support the granting of federal relief.

Appellant, however, further contends that the credibility of appellee's testimony is overwhelmed by both direct testimony and the totality of circumstances shown by the record and that the finding below is thus clearly erroneous within the appellate purview of Rule 52(a), Fed. R. Civ. P. We certainly agree that the record does disclose circumstances and events, some of which are discussed in the cited opinion of the state court, that might well convince a fact-finder that appellee's pleas were voluntary. However, appellee's credibility also finds support in the record. Appellee made no personal complaint concerning a beating he suffered from police officers while in custody, indicating a possible inference that, despite inexcusable maltreatment, he was content with his "package deal." And an even stronger inference that such a deal existed can be premised on the undisputed fact that appellee immediately after the pronouncement of life sentences turned on his appointed counsel and violently attacked him in open court. Such conduct is consistent with a subjective belief that a firm and inducive promise had been broken. The trial court, having so found, is supported by the record and the judgment is

Affirmed.