Donald Bouchillon v. W. J. Estelle, Jr., Director, Texas Department of Corrections
507 F.2d 622
5th Cir.
1975
Check Treatment

*1 Department Corrections, of RIVES, GEE, Before GODBOLD and Respondent-Appellee. Judges. Circuit No. 74-2459. GODBOLD, Judge: Circuit Appeals, of United States Court appellant By this habeas suit attacks a Fifth Circuit. for en- 1946 Texas state conviction used have been hancement. remedies State 29, 1975.

Jan. on v. Relying exhausted. Santobello 257, 495, York, 92 30 New 404 U.S. S.Ct. (1971), 427 and United States ex L.Ed.2d Rundle, v. 466 F.2d 730 rel. Culbreath 1972), 1946 sen- (CA3, he claims that his the did not was void because court tence plea rec- prosecution’s bargain the accept suspended a sentence of ommendation years’ two him to and instead sentenced law, had the Under Texas confinement. imposed, the been suspended sentence used not have been for could conviction enhancement.

623 Fed.Rule Crim.Proc. 11. A prosecutorial may court Nothing more than a rec- reject plea a in exercise of judi- sound promised, was and ommendation that cial discretion. performed. re- bargain was Santobello accept that court the quires neither the phase “This the process of of crimi- nor that prosecutor’s recommendation justice, nal adjudicative the and ele- permitted be to withdraw the defendant ment inherent accepting plea in a of plea his after the is re- recommendation guilty, must by be attended safe- jected. Culbreath does not hold that guards to insure the defendant what is unequivocal right there is an to with- reasonably due in the circumstances. plea suggests draw the but rather that Those circumstances vary, will a but as policy judge’s a matter of the discre- constant is factor that when a plea of with- should in favor tion be exercised any rests in significant degree aon drawal in circumstances.1 In the most promise or agreement prosecu- of the case before us the state court record re- tor, so that it be part can said to be of prosecutor’s veals that the recommenda- the consideration, or inducement such tion was refused “when some new com- promise must be (Emphasis fulfilled.” plaints came to the attention of the added.) Court.” 262, 404 at U.S. 92 S.Ct. at 498. I agree with the Third Circuit’s ex- unnecessary it makes conclusion Our pression in judge Culbreath that “if the con- the new whether us to consider for ultimately determines that the interest by appellant urged rule stitutional justice of would by not be served accept- retroactively ap- should, adopted, be if ing the Government’s recommendation plied. made pursuant agreement to such the Affirmed. defendant permitted should be to with- draw guilty plea, where, his particularly here, as there is no Government of claim RIVES, Circuit Judge (specially con- prejudice or harm.” 466 F.2d at 735. curring): present case, In the Bouchillon appar- result, I concur in the but for differ- ently not did ask of plea to withdraw his Supreme In the ent reasons. Santobello guilty, but he urges that the trial court only not held constitutional the Court should have made certain that the de- practice plea bargaining strongly of but fendant advantage understood the of practice approved that as an essential making request, such a or should have component the of crim- of administration affirmatively opportunity offered him an justice be properly inal to administered to withdraw his plea guilty. of Assum- (404 260, 261, at 92 encouraged and U.S. ing that since Santobello such an affirm- dicta, 495). In well-considered the S.Ct. duty placed ative is on the it court when beyond agree- Supreme Court went the accept prosecutor’s refuses to the recom- prosecu- ment between an and a accused mendation, I would hold that under the duty tor and the of the court: discussed prescribed Denno, tests v. in Stovall is, course, 1967, right 293, 297, 1967, “There no absolute of 388 U.S. 87 18 S.Ct. 1199, accepted. Lynch to have guilty plea ap- a L.Ed.2d the rule should not be Overholser, 705, 719, plied v. retroactively. specially 369 U.S. I therefore [82 (1962); 1063, 1072, concur. S.Ct. 8 L.Ed.2d 211]

1. only The authority yet in cited Culbreath is Federal Rules of Procedure not a Criminal proposed reference to adopted. to amendments the