*2 CARNES, Bеfore BLACK and Circuit pursue at least some forms of relief his FAY, Judges, Judge. Senior Circuit regard, In sentence. ment stated as follows: CARNES, Judge: Circuit agrees Edward Allen that he will presents This case of whether apply, orally parole, never or in for writing appellant Jody Allen waived his seek sentence, reprieve, commutation of his corpus review of his any other imprison- form of from life when, court conviction bar- ment. He understands this means will gain, “parole, not to seek commu- be sentenсed to serve the remainder of his tation of penitentiary. natural life in the imprisonment.” form of relief from life Be- waiving consideration the State thereby cause we conclude that Allen did not penalty, Jody death Allen also Edward intelligently waive hereby gives up ask federal habeas review conviction, Superior Court Panel reverse the district court’s Sentence Review judgment imposed upon and remand review for consideration sentence him. petition. hereby Allen’s He thаt the states sentence of life from his life at participation sentence. Id. imprisonment for his dissenting justices excessive. S.E.2d at 108. Two disa- criminal acts greed, stating that such waiver was not agreement authorized district permissible law. id. at under state See 520- “to enforce attorney and successors *3 23, at 458 S.E.2d 108-110. injunc- specific performance or by contract during at time the lifetime of tive relief 1994, 20, petition January Allen filed a On Allen,” that Allen and stated Edward 2254, pursuant seeking § to 28 U.S.C. federal “with full had intо the contract entered 1) corpus claiming and habeas relief1 doing, he was and will awareness of what jurisdiction and state trial court lacked venue it.” It attempt to rescind or revoke not later robbery kidnapping over the and armed however, that Allen was never undisputed, is 2) 3) defective; charges; the indictment was else, attorneys, anyone by his advised guilty plea knowingly, intelligent- was waiving right federal to seek was entered; 4) ly, voluntarily and his coun- and from his conviction or habeas rеlief judge magistrate sel was ineffective. The right had a or that he even knewhe report a and recommendation that did issued such relief. allegations of Al- not reach substantive 14,1985, February the McDuffie Coun- petition, On len’s but instead concluded that Al- accepted plea agreement, en- ty right court len had waived his to seek federal accordingly, judgment and sentenced by entering tered habeas relief into the Allen Allen six consecutive sentences. ment. years Eight appeal. a did not file direct magistrate judge per- The reasoned
later, however, application an he filed for remedy habeas mitting waiver the federal corpus, raising numerous state of habeas writ plea bargain did not contravene and relating his conviction sen- claims statutory provi- federal constitutional held that Al- tence. The state habeas court Although he public policy. sion or stated right state habeas len had waived his knowing, intelli- such a waiver must corpus entering review into voluntary, gent, made with effective as- and Furthermore, agreement. the court conclud- counsel, magistrate judge sistance constitutionally ed that such waiver requirements all those found that permissible, “there no federal bar because judge court been satisfied. district non-capital waiving to a in a case defendant recommendation, adopted report and corpus right habeas review.” [state] petition. habeas denied Allen’s federal Georgia Supreme Court affirmed that appeals that denial. decision, reasoning that Allen’s waiver of his right to seek state habeas relief “is constitu- II. DISCUSSION enforceable[, tional[,] contra- and] does not Thomas, published are no decisions policy.” Allen 265 Because there public vene v. (1995). 519, 107, plea-bargained of the 518, addressing waivers 107 Ga. 458 S.E.2d review, corpus to seek federal habeas Although acknowledged that “[t]he court involving upon waiver of challenge validity of the we draw decisions сan defendant of deci- corpus” rights. There are multitude agreement via habeas con- [state] counsel, involving voluntary sions waiver testing knowing “the nature of Allen, 519, cited for the which is more often agreement,” 265 at 458 none of Ga. 108, than v. Allen had definition of valid waiver Johnson it concluded that S.E.2d at 458, 1019, Zerbst, 82 L.Ed. 58 agreement “knowingly, intel- 304 U.S. S.Ct. entered into (1938). There, Court held Supreme voluntarily, with the able assis- ligently, ordinarily an intentional 520, waiver is Id. at 458 S.E.2d at “[a] tance of counsel.” of a known Thus, relinquishment abandonment is bоund 108. held “Allen 464, at privilege.” Id. at ... cannot seek relief prior petition governed as it existed to that the law 1. federal habeas Because Allen's effective of the Antiter- was filed before the date Act. Act, Penalty Effective Death this case rorism and Cochran, 506, Despite In v. Carnley 369 U.S. differences the factual cir (1962), L.Ed.2d S.Ct. foregoing cumstances between the cases and case, case, waiver of counsel the Court another we find the decisions in cases those Johnson, stating elaborated on that: “Pre Particularly instructive. instructive is the imper suming waiver a silent record is decision, justify Pardue because cannot show, missible. The record must or there rigorous less standard for the waiver of a allegation which must be and evidence (to statutory consideration shows, that an accused was offered counsel treatment) Alabama Youthful Offender Act reject intelligently understandingly but than for waiver what least is at Anything offer. ed the less not waiver.” (to statutory right federal cоr Alabama, review). Boykin 242- pus 395 U.S. The rule we draw from Pardue *4 43, 1709, 1712, 23 274 89 S.Ct. L.Ed.2d and the other decisions we have discussed is (1969), the Court took the standard it had valid, right that order to be of a waiver the right of enunciated for waiver the to counsel to seek federal habeas review must be “an rights applied generally given and it to other relinquishment or intentional abandonment up guilty including right in a plea, the right,” right of a known the to federal habeas self-incrimination, right the trial to minimum, peti review. At a the would-be by right jury, and to ac- thе confront one’s guilty tioner must know at time of the the Boykin guilty plea held that for a cusers. right plea that the federal habeas review enforceable, be and valid record must “[t]he exists, giving up and he must realize he is show, or allegation there must be an and right plea bargain. that as of his shows, ... evidence which that an accused intelligently understandingly” and waived the right, With this as with that others 242, rights implicated guilty plea. Id. at may plea bargains, be waived is no there at 89 S.Ct. requirement constitutional that it be dis
Sоme of our decisions are also relevant to acknowledged guilty plea cussed or in the the of issue whether waiver has been estab colloquy. The source the of defendant’s Burton, lished in this case. In Pardue v. 26 knowledge right the of of his under (11th 1093, Cir.1994), F.3d peti 1094-95 the standing up critical; giving that he is it is not sought tioner federal habeas from his knowledge what is critical is whether that guilty plea ground conviction on the that he understanding Boykin, See exists. at had been of not advised his (“The 242, 89 show, 1712 at S.Ct. record must sentencing more lenient under the Alabama allegation or there be an must and evidence Act, plea a right Youthful Offender bar ”) (quoting Carnley, which ... shows U.S. 369 gain to a life would forfeit. sentence We 516, 890) added); (emphasis at at explained that: Pardue, at (remanding 26 1097 for a F.3d
A defendant satisfies his threshold burden petitioner determination of whether the knew showing guilty plea was obtained right being prior waived because of his unconstitutionally when he demonstrates experience justice system). the criminal the trial сourt failed advise him of As for how those are to deter matters rights under the Youthful Offender mined, again we use the related decisions as Act. After a defendant demonstrates such guide. petitioner our If the habeas estab court, a failure the trial the burden accepted lishes that the court which to the shifts show the defen- guilty plea did not inform him of knowledge dant the nonetheless giving federal habeas review that he was protections. Act’s up right, the burden shifts State to the Kelso, petitioner tо show other evidence the (citing Id. at Fox v. 911 1096 F.2d (11th Cir.1990) waiving knew the and knew he was (noting that “[i]n habeas accompany validity guilty plea ... it. and an challenges guilty plea, to the Whether uniformly assign ing volun courts to the state ... the waiver of showing plea tarily burden was obtained entered is of law and mixed fact, constitutionally.”)) which we review de novo. See Marshall addition, 422, 431, Georgia Supreme although Lonberger, S.Ct. 459 U.S. (1983). plea agreement 74 L.Ed.2d characterized the Court one in which “Allen serve undisputed it herе that the Because life in prison...,” of his remainder accepted guilty did which state court 108, what Ga. at 458 S.E.2d at right to seek federal Allen of his inform says is agreement actually that Allen under- review, the shifted to burden “he stood the to mean that will be showing. requisite to make State of his natu- sentenced to serve remainder two contend Allen’s attor The State penitentiary.” Understanding ral life in the him to federal neys told he had you your will be sentenced serve natural waiving that he habeas review agreeing attorneys unequivocally prison life in not the same as guilty plea. Both nothing they about your prison, testified that told rest of life in nor is it habeas, even mention it agreeing not to attack the validi- same him, no to the the State has evidence ty underlying of the conviction the sentence. contrary. Thus, language ambiguous only about at least whether
Instead, on the State relies rights to covered those reduction itself. The *5 sentence, that Allen provided ment or covered to attack also of parole, “for commutation apply collaterally the and sentence. conviction any of or other form relief added). imprisonment.” (emphasis from life course, aware, of We are of the “any other key The issue here is whether proferentum, a of doctrine of contra canon imprisonment” form of relief from in law in contract that counsels construction corpus relief. We con- cludes federal habeas ambiguities in construing favor сontract of not, it for three clude that reasons. language against Although the drafter. we plea agree said that the construction of have ambigu the The first reason involves princi plea governed generally the the of the crucial of ments “is ous nature ejusdem agreement. generis law, adapted the can ples Under we it of contract have construction, general on of “where words fol law,” of see United purposes criminal specific persons or low a enumeration of 703, (11th 709 Pielago, States v. 135 F.3d things, general be limited the words should Cir.1998), apply little that makes sense specifi persons things to those similar the the defendant’s detriment where canon to cally v. Turk enumerated.” United States the defendant issue is whether 581-82, 2524, ette, 576, 452 U.S. voluntarily in plea waived (1981) 2527-28, (declining 246 69 L.Ed.2d in agreement, and the defendant has raised “specific no apply the canon there was where against claims his law effective assistance general ... followed de enumeratiоn (the agreement) regard yers of the drafters Delray scription”); City see Beach v. also ing plea agreement. of our cases the None Co., 1527, 85 1534 Agricultural F.3d Ins. proferentum doctrine applied the contra have (11th Cir.1996) ejus- (applying the doctrine In against in such a situation. a defendant generis dem that “when enumeration stead, repeatedly in this we have held circuit things gen more specific followed some plea ambiguities agreements the phrase general eral then word word See, against government. be the resolved phrase usually be construed to refer to will States, 79 e.g., v. F.3d San Pedro United things species kind or as those of the same (11th Cir.1996); 1065, v. States 1074 United enumerated.”) specifically In Allen’s (11th Cir.1992); Rewis, 988 969 F.2d agreement, pre the of the items series Jefferies, F.2d v. United States including general language, cede catch-all the Cir.1990). (11th That well-established sentence, “parole, [and] commutation the overall burden on rule reinforces the of the reprieve,” all reductiоn refer evidence of under Pardue to show sentence, underlying not to relief from the voluntary knowing and waiver. conviction itself. waiver, interpret attorney we do not the if the district and defense second reason through more agreement’s “or other form of relief counsel intended do extending agreement than de imprisonment” produce to fed- facto life with-
from life parole they out did not tell Allen pur- eral habeas relief involves about it. pose as revealed See, e.g., background negotiations. revealing, it is Because so we reiterate States, Pedro v. United 79 F.3d San very next sentence (11th Cir.1996) (a plea agreement following the “or other form of relief background of “should read be imprisonment” says language. from life It Rewis, negotiations”); United States be “understands this means he will Cir.1992) (11th (same). 969 F.2d sentenced serve remainder of his natu- attorneys Both of Allen’s testified at penitentiary.” say life in the It ral does not evidentiary hearing parole was their Allen understood it to mean he could principal drafting agreement. focus attack his or sentence via a conviction attorney The district was concerned about otherwise, only proceeding that his early parole or release because he did equivalent sentence would of natural early get out from a life want Allen sen- life sentence. What better evidence is there tence, parole life without no understanding agree- of the defendant’s of an possibility sentеnce at time. says ment than what the itself early release also became concern of Al- understanding? they attorneys, allay len’s because had to reject The third reason State’s attorney’s possibility district fears about that argument the “or other form of get give up in order to him to the death imprisonment” language from life penalty option. waived Allen’s to seek federal habeas *6 attorney What the district and defense language review of conviction that counsel оut an that worked generality that level of not to sufficient attempt
Allen would not to shorten his sen- specific rights. constitute valid waiver of through “parole, tence commutation of his example. Suppose an an agree- Consider any or other form of re- ment states that the defendant knows of and imprisonment.” from life lief We note that guilty plea understands that he is specifically all the identified methods of waiving right his constitutional to confront language relief excluded the chоsen are rights his accusers all “and he would reducing cutting methods or short sen- if have went to trial.” he No court would tence that would not have been available in language hold that alone to sufficient estab- if place the first had a life without that lish the defendant knew about parole parties the sentence at time. The specific tended to waive such trial as sought supply through to their right jury, right privilege the to the Georgia Legislature yet what the had not self-incrimination, Yet, and so fоrth. provided, parole a true life without State asks to us hold of about called a “natural sometimes life” sentence. generality same level of to be sufficient right to waive the to seek federal habeas Even if a life parole without sentence had relief. law, been available under state and Allen had pleaded guilty part itself, it Except plea agreement received as for the strategy avoiding penalty, any the death he State has failed to offer other evidence to would still have been free attack his un- from the record to indicate that Allen knew derlying apparent anything right conviction later. It is about ha- to federal plea agreement, corpus voluntarily from the the circumstances beas review or that he it, surrounding anything right. else in attorneys the record waived that His did not any to parties right that intended do more that him or discuss with even mention him; through agreement than it guilty construct it to nor was mentioned in the Or, parole put questiоnnaire, without in sentence. itself, applicable guilty plea
terms colloquy. more relevant law of or in the Because himself, Boykin, and so Allen even incriminate on. See no indication that knew we find 242-43, review, corpus right to habeas U.S. at at 1712. federal it, to waive we less that intended much aware, colleague as our twice re- We are guilty plea Allen’s waive hold that us, horrible minds that committed right. system justice, crimes. our howev- Under er, even who have committed horrible those requirе holding today Our crimes entitled to the of the law. benefit waiver, explicit an specific form of such as law defining characteristic of our rule of guilty plea acknowledgment during the collo- it applies is that to those are evil as well who right federal quy that to seek habeas saintly, to those who are criminals as well enough It is corpus being review is waived. murderers, law-abiding, kidnappers, as the dispose of this case that State has robbers, It as well as the of us. rest from to show evidеnce source failed applies even Allen. Allen knew of and intended to waive it. we conclude that Allen has not Because waived re- habeas points have taken to heart the made We view, we no occasion whether have to address persuad- dissenting colleague but are not our waiver, voluntarily knowingly if such posed says them. He we have ed entered, contravene constitutional wrong question, asking instead of statutory public Those provisions policy. intеntionally Thomas of and whether knew if a case issues can be addressed and when review, waived establishing arises with evidence ask whether he voluntarily at- defendant penitentiary. rest of his life But our tempted relinquish, bar- question is drawn formulation gain, to seek federal habeas review. precedent spanning unbroken stream of half-century, Supreme from the more than III. CONCLUSION v. Zerbst to our Court’s decision Johnson Accordingly, we the district REVERSE v. Burton. own decision Pardue Those court’s case for order аnd REMAND the when it decisions establish that comes to opin- light further consideration in of this waiver, whether the defen- ion. intentionally relinquished or abandoned dant *7 right. a Common sense dictates that known FAY, dissenting: Judge, Circuit Senior relinquishment can no or there be abandon- respectfully, Most I dissent. doing a known unless the ment of one right. relinquishing knows about case, provided As is often the the answer by any authority depends question upon the question dissent’s formulation of the The majority “This case asked. The states that a sсrutiny against simple withstand cannot question appellant of presents the whether defendant, hypothetical. Suppose capital his seek federal Allen waived understanding no whatsoever of the with of court con- review his state trial, forgoing giving up by he is when, plea bargain, viction get in a life pleads guilty order to sentence of agreed ‘parole, commutation not to understanding and does so with the that he any his other form prison. in spend the rest his life In will ” majori- imprisonment.’ The ignorance dissent’s view that defendant’s to that ty then concludes the answer immaterial, rights being is forfeited question “no.” is only question is because the whether my wrong ques- opinion, asking In agreed spend prison. life in He did his wrong Yet, majority tion the has arrived at agree uphold to do that. no court would question presents validity guilty The this case where the defen- conclusion. in about, agreed, appellant or not the did not know and therefore could whether dant waive, trial, exchange foregoing vаlidly jury dropping the state right to sentence, accusers, spend its effort to obtain a death right to confront his not to penitentiary. any his life in the have the rest of The would Alen known more than he unambiguous clear answer to that did? required Are courts now to conduct “yes.” hearings attempt to and educate defendants law, as to collateral attacks under state col- Appellant having Alen was accused of law, lateral under attacks the laws committed series of horrible crimes includ- surrounding parole pardons, and commuta- ing prosecution The murder. made it so, tion of If I suggest sentences? there will penalty. clear it would seek the death Alen few, any, be if valid agree- waivers and lawyers negotiated and deal. The deal ments. guilty pleas was that Alen would enter the state would recommend sentence of life majority upon relies canon of con- prison. in That was the contract.1 The state ejusdem struction in genens known limit- its abandoned efforts tо have Alen executed ing general agreement. terms of the In Alen the rest of his life rule, discussing Dictionary this Black’s cau- jail. rule, however, tions that “The does not nec- essarily require general provision that the be exactly In an effort to what foreclose scope case, things limited its to the identical majority parties does this specifically apply named. Nor when through attorneys spelled their out that A- contrary the context manifests a intention.” “parole, len not sеek would commutation of (6th ed.1990). Dictionary reprieve, any Black’s Law other form of my opinion, parties imprisonment.” the intention of the (emphasis relief from life added). suggest, agreement could not majority does, To as the be clearer. ambiguous that such is simply contract, If an ambiguity there were in this wrong contrary reality. And, al- none, and I find it seems to me that though always inject dangerous it is such canon of appropriate construction most judicial proceedings, into this cоnclusion is proferentum (against be the rule contra contrary totally to common sense. the party proffers puts who forward the requires anyone thing). The law entering plea bargains governed If are into such “knowingly, do so principles any ambiguities contract telligently, voluntarily, present, they and with the able as- be resolved just sistance of counsel.” Alen did Hawley, that. drafter. United States v. 93 F.3d (10th majority Cir.1996). position takes the that because In this case the no one corpus” prosecutor extremely mentioned “federal habeas reluctant to enter legally not enter binding into a into because of concern (valid waiver). contract What words could about the law of or not whether “any anyone more inclusive than other form jail could be sentenced to life with imprisonment?” relief from life Were no hope reduction under label. lawyers required specify the federal stat- Defense drafted counsel this contract!2 The *8 And, they defendant, utes involved? if through had done attorneys, so convinced agreements by princi- plexed 1. Plea Initially are controlled for several reasons. I note that ples applicable pointed to contracts. As out only opinions indication of these as to majority opinion, actually this Jefferies, who the drafter was is in 908 F.2d at spelled by specific that it out could be enforced pointed 1522 where it is out that Assistant performance injunctive relief. Attorney "brought United States a draft Jefferies, meеting____" response my suggestion 2. that if we are opinion my F.2d at 1522. In safe it is to assume rely upon going canon construction it contrary clear unless it is to the all Rule be the of Contra Preferentum the agreements government. drafted majority says support cites three cases which being support, Such the case these authorities proposition ambiguities plea agree- refute, approach rather than the usual concern- always govern- ments are resolved ing ambiguities Secondly, in contracts. I fail States, ment. See San Pedro v. United 79 F.3d see fact (11th Cir.1996) (Goettel, how the mere that ineffectiveness of n. 5 J. dis- Rewis, damage defense senting); counsel has been raised would United States v. 969 F.2d (11th Cir.1992); surrounding interpretation Jefferies, "law" United States v. of con- (11th Cir.1990). per- 908 F.2d I'm tracts. never do exact- that would prosecutor today. to do court allows him ly what our majori- by convincing the gains this relief
He lawyers the document drafted
ty that than fiction. ambiguous. stranger Life is nothing complicated about
There is committed horrible crimes.
case. Allen some
The state of intended lawyers struck penalty. and his
death not be bargain for Allen. He would good entering pleas of in return for
executed agreeing the rest of his
guilty and agree- jail. I would him to his
life in hold
ment. greatest my respect brother
With sister, majority it seems to me that the signal to all state
opinion strong will send to not enter into
prosecutors And, my opinion, of this nature.
ments system. good judicial for the
that is fair parties was a
agreement struck uphold I would and enforce it.
one and America,
UNITED STATES of
Plaintiff-Appellee, MOUNT,
Phillip Defendant-Appellant.
No. 94-2430. Appeals,
United States Court of
Eleventh Circuit.
Nov.