Unpublished Disposition, 899 F.2d 20 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 20 (9th Cir. 1990)

Ronald L. WHITE, Petitioner-Appellant,v.Henry RISLEY, Warden, Respondent-Appellee.

No. 89-35083.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 24, 1990.* Decided March 29, 1990.

Before MERRILL, KILKENNY and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Ronald L. White, a Montana state prisoner, appeals pro se the district court's summary judgment dismissal of his habeas corpus petition without a hearing. On appeal, White expressly argues that his plea of guilty to aggravated kidnapping was involuntary because it was induced by a breached plea agreement. Inferentially, White also raises on appeal all of the claims on which he based his habeas corpus petition in the district court. In so doing, he argues that his guilty plea resulted from ineffective assistance of counsel, and that the sentence he received of 75 years in prison was impermissibly harsh.

White filed his petition in the district court pursuant to 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 & 2253. We affirm in part, reverse in part and remand for further proceedings.

ANALYSIS

White argues that his 100-year sentence is too severe in view of his youth and lack of direct involvement in the crime to which he pleaded guilty. Such a contention fails to state a ground for federal habeas corpus relief. 28 U.S.C. § 2254(a); Gilmore v. California, 364 F.2d 916, 919 (9th Cir. 1966) following remand, 419 F.2d 379 (1969), cert. denied, 397 U.S. 1078 (1970). Accordingly, the district court's summary judgment on this claim is affirmed.

To comport with the guarantees of due process, a guilty plea must be voluntary and intelligent. Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). Voluntariness can be determined only by examining all of the circumstances surrounding the guilty plea and cannot be presumed from a silent record. Brady v. United States, 397 U.S. 742, 749 (1970); Boykin, 395 U.S. at 293. The accused must be aware of the nature and elements of the charges against him and the possible punishment he faces. Boykin, 395 U.S. at 242-43; Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986). He also must understand that he is waiving his constitutional privileges to avoid compulsory self-incrimination, to confront his accusers, and to a trial by jury. Boykin, 395 U.S. at 243. Other circumstances that may support lack of voluntariness include coercion and lack of opportunity and failure to read presentence reports. Id. See United States v. Donn, 661 F.2d 820, 824 (9th Cir. 1981).

The district court must hold an evidentiary hearing to determine voluntariness if (1) the petitioner's allegations, if proved, would entitle him to relief, and (2) the state court has not, after a full and fair hearing, reliably found the relevant facts. See Townsend v. Sain, 372 U.S. 293, 312-31 (1963); Van Pilon v. Reed, 799 F.2d 1332, 1338 (9th Cir. 1986).

The documents filed by White and by the respondent, Risley, show that there are genuine issues of material fact in dispute as to the voluntariness of White's guilty plea. White alleges his lawyer told him that if he pleaded guilty to aggravated kidnapping, an additional charge of deliberate homicide would be dismissed, he would avoid the death penalty, and he would receive a sentence of forty years in prison. White further alleges he was told by his lawyer not to say anything at his change of plea hearing concerning the length of the prison term he had been promised because there were going to be reporters in the courtroom and to disclose the plea agreement "would make a lot of people mad if they knew he was to get off so lightly." CR 28 at 5. White states his lawyer also told him that he did not have to worry about the sentence the judge would impose because the judge would keep his word and would not give White a longer term than the forty years that had been promised.

White's lawyer denies these allegations. He states the only deal was that the deliberate homicide charge would be dropped and that White would avoid the death penalty, if he pleaded guilty to aggravated kidnapping. White's lawyer further states he specifically told White that he could receive a sentence of up to 100 years on the aggravated kidnapping charge.

The plea agreement White signed contains no mention of the maximum sentence which could be imposed for aggravated kidnapping. At his arraignment, when White initially pleaded not guilty to the charges of deliberate homicide and aggravated kidnapping, the court advised him that the maximum sentence for aggravated kidnapping was 100 years. White alleges, however, that the plea bargain was entered thereafter.

At the change of plea hearing, the state sentencing judge asked White whether he had received any commitment as to the sentence he would be given. The following colloquy occurred:

THE COURT: Has anybody represented to you what, in fact, sentence you would receive on a plea of guilty to the charge of Aggravated Kidnapping?

THE DEFENDANT: Would you repeat that for me, please?

THE COURT: Has anybody represented what type of sentence you would receive on that plea of guilty?

THE DEFENDANT: No, sir.

THE COURT: No promises have been made to you; is that right?

THE DEFENDANT: No, sir.

THE COURT: At this time you are requesting the court to allow you to enter a plea of guilty to that charge; is that right?

THE DEFENDANT: Yes, sir.

The district court based its decision not to hold an evidentiary hearing on the foregoing, as well as the fact that White's lawyer had "filed an affidavit indicating that he spent eight hours with [White] discussing the case and ramifications of a guilty plea, that he explained to [White] that he could receive a sentence of up to 100 years' imprisonment, and that [White's] plea was based upon full and complete knowledge of all the circumstances and potential consequences." CR 29 at 3. The district court also noted that at the change of plea hearing, White's lawyer stated to the state court:

Although the County Attorney and I have discussed the possibility of thoughts on sentencing, there has been nothing passed between us that would constitute a promise or representation made to this particular Defendant concerning sentence, other than the fact that he shall not be sentenced to death.

Id.

While it may well turn out that the testimony of White's lawyer is the more credible, at this stage of the case White has alleged facts, which if true, would establish that his guilty plea was entered as the result of an unkept plea agreement that he would receive a sentence of no more than forty years. The record of White's state sentencing hearing discloses that White denied any promise had been made to him as to the sentence he would receive. But he alleges he answered the court's inquiry as he did to carry out his part of the sentencing deal that had been struck.

The facts are in dispute. Accordingly, we must remand this case to the district court for an evidentiary hearing on this claim. See Townsend v. Sain, 372 U.S. 293, 312-13 (1963).

White's claim of ineffective assistance of counsel has two prongs. White alleges that his first lawyer was a law partner of the county attorney who was assigned the task of prosecuting him. White gave his first lawyer, in response to that lawyer's request, a written account of the circumstances on which the charges against White were based. The statements made in this document were incriminating, and White alleges that he believes the document was given to the county prosecutor. White argues that as a result he felt pressured into pleading guilty. These allegations are speculative and conclusory at best, and do not raise any genuine issue of material fact.

White's second prong of his ineffectiveness of counsel argument focuses on the performance of his second attorney. This is the attorney who represented White in the state of Montana from the time he first entered his not guilty plea at his arraignment, and throughout the change of plea hearing and sentencing. White alleges it was this lawyer who told him that if he pleaded guilty to the aggravated kidnapping charge he would get no more than forty years in prison. As to this claim, White alleges that this lawyer not only falsely promised him a forty-year sentence and represented that the judge had agreed to such a sentence, but the lawyer also failed to give White an opportunity to read the presentence report, misrepresented the constitutional rights White would waive by pleading guilty, and coerced White into entering his guilty plea to the aggravated kidnapping charge.

As to the charge that White's lawyer prevented him from reading the presentence report, the record is somewhat unclear. The transcript of the sentencing hearing shows that at the beginning of the hearing White had not read the presentence report (CR 7, Exh. XII at 34). The sentencing judge told White to read the report during the hearing (id. at 35). The judge later asked White if he had read the entire report, and White stated he had not (id.). Thereafter the state and White's attorney made their statements concerning sentencing. The court then asked White again whether he had read the presentence report. Without consulting White (and the record fails to show any opportunity for consultation), White's attorney responded that White had read the presentence report and had found no errors in it (id. at 89).

White's allegations of ineffective assistance of counsel, if true, indicate a level of competence below that required of defense attorneys. See Iaea v. Sunn, 800 F.2d 861, 864-65 (9th Cir. 1986) (counsel has a duty to provide criminal defendant with necessary and accurate information); United States v. Donn, 661 F.2d 820, 824 (9th Cir. 1981) (defense counsel's failure to show client a presentence report may constitute ineffective assistance of counsel); Mosher v. LaValle, 491 F.2d 1346, 1348 (2d Cir.) (per curiam) (ineffective assistance where counsel told accused that judge had promised minimum sentence, no such promise was given, and accused received maximum sentence), cert. denied, 416 U.S. 906 (1974), cited with approval in Iaea, 800 F.2d at 865.

The documents before the district court at the time of the summary judgment hearing reflect a dispute of genuine issues of material fact concerning the effectiveness of the legal representation provided by White's second attorney. Accordingly, remand for an evidentiary hearing on this claim is also required. See Townsend, 372 U.S. at 312-13.

CONCLUSION

The district court's grant of summary judgment in favor of the respondent, Risley, as to White's claim that he received too severe a sentence is affirmed. The district court's grant of summary judgment on White's claims that his guilty plea was not voluntarily entered and that he entered the plea due to ineffective assistance provided by his second counsel is reversed and the cause is remanded to the district court with directions to hold an evidentiary hearing on these claims.1 

AFFIRMED in part, REVERSED in part and REMANDED for proceedings consistent with this disposition.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

White also alleges he was beaten, threatened and coerced by law enforcement officers who tried to get him to confess and plead guilty. We do not consider these allegations in this appeal. As the district court noted, if White voluntarily and intelligently pleaded guilty, he may not seek federal habeas relief on the basis of pre-plea constitutional violations. Mitchell v. Superior Court for the County of Santa Clara, 632 F.2d 767, 769 (9th Cir. 1980), cert. denied, 411 U.S. 940 (1981)