Unpublished Disposition, 937 F.2d 613 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 613 (9th Cir. 1988)

Brennan McNEESE, Petitioner-Appellant,v.Robert BORG, Warden, Attorney General of the State ofCalifornia, Respondents-Appellees.

No. 90-55032.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 1991.Decided July 17, 1991.

Before WALLACE, Chief Judge, and GOODWIN and FLETCHER, Circuit Judges.


MEMORANDUM* 

Petitioner Brennan McNeese, a California state prisoner, appeals the denial of his federal habeas corpus petition challenging the validity of his guilty plea. He asserts that he entered the plea without effective assistance of counsel and involuntarily because his trial counsel repeatedly and erroneously promised him that he would receive a sentence of no more than nine years and four months. The district court denied McNeese's petition without holding an evidentiary hearing, basing its denial largely on deference to factual findings which the state trial court purportedly had made in connection with McNeese's motion to withdraw his guilty plea.

We conclude that since the state trial court did not make findings on the critical factual issues, the district court's reliance on state court findings was erroneous. Because the district court will be required to make its own findings on a number of factual issues, and we understand that petitioner's trial counsel has now been located and may be available as a witness, it appears that an evidentiary hearing will be necessary to resolve petitioner's claims. Accordingly, we remand to the district court for an evidentiary hearing on the questions of whether petitioner's trial counsel made the alleged promises, and whether petitioner was prejudiced by reliance on such promises.

BACKGROUND

On September 2, 1987, McNeese pled guilty in Los Angeles Superior Court to two counts of residential robbery with the use of a firearm and to one count of kidnap for the purpose of either ransom or extortion. During the course of the plea hearing, McNeese indicated his understanding and voluntary relinquishment of the various constitutional rights related to trial, and stated that he understood the possible sentences and that neither the district attorney nor anyone else had made either threats or promises in order to persuade him to plead guilty. When the district attorney, who was making the advisement, reached the issue of consecutive sentencing, he stated, "So it is clear if you get consecutive time that would include a life sentence--," at which point McNeese interrupted and interjected, "What are you talking about a life sentence consecutive, nine years and four months?" A conference was held off the record, after which the state trial court accepted McNeese's guilty plea. There was no attempt by the court or the district attorney to explore McNeese's protest regarding the possible consecutive life sentence or to clarify his reference to nine years, four months.

On April 5, 1988, prior to sentencing, McNeese--represented by new counsel--filed a motion to withdraw his guilty plea, alleging that his counsel at the time of the plea had erroneously informed him that he would receive a maximum sentence of nine years and four months, and that his plea therefore was not freely, voluntarily and intelligently made. The same state trial judge held a hearing on the motion to withdraw, at which McNeese, his father, and his girlfriend all testified that McNeese's original attorney had promised them that McNeese would receive a sentence of no more than nine and a half years. McNeese also testified that the attorney had again assured him regarding the nine year and four month sentence in the off-record conference following his protest at the plea hearing. He further testified that he would not have pled guilty if he thought he would receive a sentence of any more than nine years and four months, and that he was very confused during the plea process and fully trusted and relied on his attorney. The district attorney offered no evidence contradicting the witnesses' testimony. McNeese's counsel at the plea hearing was not called as a witness by either side.

The judge denied the motion to withdraw the plea from the bench, without making any formal factual findings or clearly indicating the basis for his denial. However, in the course of colloquy with McNeese at the hearing, the judge indicated on several occasions that he "didn't note any confusion" at the earlier plea hearing. "I thought that it was made perfectly clear to you, Mr. McNeese, what the possible sentences could be for the offenses that you were pleading guilty to.... There wasn't confusion on September the 2nd. It was a very, very orderly procedure, as I recall." The judge's focus was entirely on the face of the plea proceeding.1  He made no finding as to whether McNeese's counsel had made the alleged representations regarding the nine year, four month sentence. He likewise made no explicit finding as to McNeese's subjective confusion or belief, or as to whether McNeese relied on or was prejudiced by the misrepresentations.

McNeese filed a timely notice of appeal of the state court's order denying his motion to withdraw, but failed to obtain the certificate of probable cause which was required at that time by California law in order to appeal from a guilty plea. He therefore was precluded from filing a direct appeal. He did, however, file a petition for a writ of habeas corpus in the California Supreme Court, which the court summarily denied. McNeese subsequently filed a petition for habeas corpus in the federal district court. He requested an evidentiary hearing on a number of issues (including whether his counsel had promised him a particular sentence outside the record) in both his "Traverse to Respondent's Return" and in his "Objections to Magistrate's Report and Recommendations."2  The district court denied McNeese's petition without an evidentiary hearing, adopting the Report and Recommendation of the magistrate, which stated that the district court was "bound by the factual findings of the state trial court," and found on that basis that the petitioner had not sustained his burden of showing that "his attorney rendered incompetent professional advice, and that his plea was not voluntary." McNeese sought to appeal the district court's denial of his petition but was denied a certificate of probable cause by the district court. A panel of this court granted a certificate of probable cause. We have jurisdiction pursuant to 28 U.S.C. § 2253.

DISCUSSION

The decision whether to grant or deny a petition for habeas corpus is generally reviewed de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). To the extent that it is necessary to review a district court's findings of fact, the clearly erroneous standard applies. Id. In reviewing a district court's grant or denial of habeas, state court factual conclusions are entitled to a presumption of correctness under 28 U.S.C. § 2254(d). Hamilton v. Vasquez, 882 F.2d 1469, 1470-71 (9th Cir. 1989). This presumption does not attach, however, to a state court's resolutions of mixed questions of fact and law. Id. at 1471.

The effectiveness of counsel is a mixed question of law and fact, reviewed de novo. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986). Whether a petitioner suffered prejudice because of ineffective counsel is a factual inquiry in this context. See id. at 866. The voluntariness of a guilty plea is a question of law not subject to deferential review. Marshall v. Lonberger, 459 U.S. 422, 431 (1983). However, a state court's findings of historical fact underlying its conclusion of voluntariness are given deference. Iaea v. Sunn, 800 F.2d at 866.

"A habeas corpus petitioner is entitled to an evidentiary hearing if he has alleged facts which, if proven would entitle him to relief and he did not receive a full and fair evidentiary hearing in the state court." Norris v. Risley, 878 F.2d at 1180. Here, McNeese has alleged facts which may support a finding that his counsel was ineffective and his plea involuntary, thus entitling him to relief. While a mere inaccurate prediction of the sentence a defendant will receive, standing alone, does not constitute ineffective assistance of counsel, Iaea, 800 F.2d at 865 (citing McMann v. Richardson, 397 U.S. 759, 770 (1970)), this circuit has recognized that " [g]ross mischaracterization of the likely outcome of the plea, combined with erroneous advice on the possible effects of going to trial, falls below the level of competence required for a defense attorney." Torrey v. Estelle, 842 F.2d 234, 237 (9th Cir. 1988) (citing Iaea v. Sunn, 800 F.2d at 865). Likewise, "counsel's misrepresentations as to what [a defendant's] sentence in fact would be" may render a defendant's plea involuntary. Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir. 1986). See also, United States v. Espinoza, 866 F.2d 1067 (9th Cir. 1988) (evidentiary hearing or additional documentary evidence required where petitioner alleged that counsel promised a certain sentence off the record); Mayes v. Pickett, 537 F.2d 1080, 1083-84 (9th Cir. 1976), cert. denied, 431 U.S. 924 (1977) (holding that even an exemplary Rule 11 record in a federal plea proceeding was inadequate to determine the appellant's claims of involuntariness where he asserted that his attorney made promises regarding his sentence).

In the present case the only arguable factual findings by the state trial court to which we owe deference were its observations that the procedure was orderly and that there was no confusion in the proceeding. The relevant issue, however, is not the clarity of what was said on the record, but what McNeese believed based upon what was said both on the record and off. There was no finding in either the state court or the federal district court as to whether McNeese's trial counsel made the alleged representations regarding the sentence McNeese would receive. Nor was there a finding as to McNeese's subjective belief or confusion on that issue.

Factual findings, including determinations of credibility, may be implicit in the actions of a state trial court, and need not be express in order to be given the presumption of correctness. Marshall v. Lonberger, 459 U.S. at 432-35. However, where, as here, there are a number of different factual findings, each of which independently could support the state trial court's ultimate conclusion, and it is unclear which factual finding formed the basis for that conclusion, the district court has no way of discerning which implicit factual findings were made and should be given deference. See Townsend v. Sain, 372 U.S. 293, 315 (1963) ("If the state court has decided the merits of the claim but has made no express findings, it may still be possible for the District Court to reconstruct the findings of the state trier of fact, either because his view of the facts is plain from his opinion or because of other indicia. In some cases this will be impossible, and the Federal District Court will be compelled to hold a hearing.")

In this case, the state court could have found implicitly that trial counsel made no misrepresentations, that McNeese did not rely on any misrepresentations in light of the advisement at the plea hearing, or that even if he did rely, he was not prejudiced because he would have pled guilty in any event. However, the trial judge's unwavering focus on the clarity of the proceeding, as opposed to statements outside the record or McNeese's subjective understanding, suggests that he made none of those implicit findings, but instead relied on his erroneous conviction that the orderliness of the proceeding ended the inquiry.

In light of the state court's failure to make findings on the critical factual issues, the district court's rejection of McNeese's petition based on state court findings was in error. See Townsend v. Sain, 372 U.S. at 313-14 ("There cannot even be a semblance of a full and fair hearing [necessary to bypass an evidentiary hearing in federal court] unless the state court actually reached and decided the issues of fact tendered by the defendant.") We therefore REVERSE the district court's order dismissing McNeese's petition and REMAND to the district court to hold an evidentiary hearing and make the requisite factual findings necessary to evaluate the effectiveness of McNeese's counsel and the voluntariness of his plea.3 

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Although the trial court's "finding" that the proceeding was orderly arguably is entitled to a presumption of correctness, we question the soundness of even that finding, since the court failed to take note of or reconcile McNeese's interjection at the plea hearing. The state trial judge read into the record the portions of the plea hearing regarding sentencing, probation and parole, but failed to read the portion of the record where McNeese balked at the mention of the consecutive life sentence and referred to "nine years and four months." We need not resolve whether that finding is entitled to deference, however, since the orderliness of the proceeding is not the determinative issue

 2

There was some suggestion at oral argument that McNeese did not request an evidentiary hearing in the district court below. While such a request was not made by way of a separate motion, McNeese clearly asserted his "entitlement" to an evidentiary hearing on at least two occasions in the record. In light of his pro se status in the district court, this was sufficient to constitute a request for an evidentiary hearing

 3

We note, as well, that the district court erred by relying on an alleged declaration by trial counsel which was not part of the district court record and may not have been part of the state court record. The only evidence that the declaration even existed in the state court record was a vague and confusing reference by the district attorney to such a declaration in the hearing on the motion to withdraw. On remand, the district court may not rely on the existence or contents of such a declaration unless a reliable copy can be located indicating that it was part of the record before the state trial court