*2 rights his fеderal constitutional when he NORRIS, Before RYAN and Circuit resulting guilty pleas entered the in those LIVELY, Judges; Circuit Senior Specifically, argues convictions. Judge.* Kentucky Supreme Court has cor NORRIS, Judge. rectly assigned Circuit ALAN E. the burdens of evidence production appeal by the state from an This is an rights to determine federal constitutional granting order of the district court a writ guilty plea proceеd have been waived in corpus petitioner, Gene M. habeas ings. guilty by Jr. Dunn was found statute, jury Kentucky’s offense Ky.Rev. substantive Under PFO substance, (Baldwin 1984), possession of a controlled and StatAnn. 532.080 § being persistent felony offender state’s burden in the fact of a (PFO), upheld felony persuade jury and these convictions were conviction beyond Court. The ef- a reasonable doubt. Hon v. Ken- tucky, (Ky.1984). court’s order is to re- fect of the district S.W.2d Res- question Dunn of his as a PFO and olution of of fact in- lieve conviction is not sentence, instead, appeal; its enhanced undis- volved in this but leave we are re- possession viewing question conviction for the determination of a turbed his initially controlled made substance. law state trial court hearing, suppression after a affirmed trial, sought Prior to havе Court, and ultimate- dismissed, contending PFO indictment upon ly addressed the district court 1970, 1973, and 1976 convictions petition corpus. for a writ habeas based, charge which that should be legal question That of law concerns the suppressed. argued prior con- He of Dunn’s convictions. victions were based invalid pleas accepted Generally, courts are called since those with- when lаw, prior con- having intelligently out Dunn and voluntar- to decide this ily being examined the context of waived federal constitutional viction expressing pretrial prosecu- filed in a PFO which he was entitled. While motion * Judge January Lively on Honorable Pierce became Senior Cir- cuit 1989.
tion,
inquiry
Lonberger,
into tion. Marshall v.
post-conviction
843, 849,
is invalid. The
the conviction
whether
(1983);
the conviction is basеd
395 U.S. at
at
question is whether
guilty plea accepted in the absence
Because the circumstances
upon a
1712.
sur-
rounding
acceptance
the accused
of a valid waiver
examined,
he surrendered
necessarily
must be
federal stan-
guilty.
by pleading
fact-finding
dards control the limited
role
*3
arriving
of the court in
at a deter-
Alabama, 395 U.S.
Boykin
In
v.
In
mination
this
law.
view
(1969),
1709,
238,
89 S.Ct.
Boykin
we conclude that
Supreme Court noted
States
United
among
counted
those standards must be
establishing that
that,
purposes of
for
record from the trial
these: Where the
a
entered
a state court defendant
when
inadequate
affirmatively demon-
court is
constitu
plea he
federal
also waived
plea
intelligent and
strate that
confront
by jury
to trial
and to
tional
voluntary,
pre-
the state
not utilize a
privilege
accusers and the
one’s
satisfy
persua-
sumption to
its burden
self-incrimination,
the state
compulsory
And,
sion.
where it seeks to
intelli
prove
required to
incomplete
by supplementing an
burden
presume
cannot
gent
voluntary. “We
contemporaneous record with extrinsic evi-
important
three
of these
a waiver
dence,
clear and
that evidence
243,
record.” Id. at
89
rights from a silent
convincing.
the waiver is subse
at 1712. Where
S.Ct.
challenged,
normally will
quently
opinion affirming
In the course of its
its effectiveness
attempt to demonstrate
convictions,
proceedings
introducing transcript of the
a
methodology a
set out its view of the
acceptance of
surrounding the trial court’s
employ in determin-
trial court should
state
guilty plea, and other
trial
predicated
a
conviction
whether
leave doubt as
the records
records. Where
upon guilty plea is valid under the United
a
plea was in fact
to whether the
Constitution:
States
may look to evi
voluntary, the state
the defendant
In those cases which
records, such
to the court
dence extrinsic
felony offender
persistent
indicted as a
attending the
recollection of those
as the
suppress any
proper motion to
and files a
However, in
face of
proceedings.
offenses,
the burden
inadequate to demon
a record which is
prove the
is on the Commonwealth
proceedings at the
regularity of
strate the
in each
judgments of conviction
guilty plea’s acceptance, the
time of a
it in-
upon which
underlying offenses
cоnvincing showing
must make a clear and
regu-
presumption of
rely. The
tends to
with this extrinsic evidence
judgment shall be sufficient
larity of
intelligently and
in fact
original
proof.
After
burden
meet
1380,
Black, 516 F.2d
entered.
v.
conviction are intro-
judgments of
917,
Cir.),
denied,
(6th
1384
cert.
duced,
shifts to the defendant
the burden
(1975).
226,
147
We
96 S.Ct.
46 L.Ed.2d
rights or
infringement of his
to show
extraordinary standard
imposed this
have
irregularity
procedure
inher
misgivings
v.
relies,
those set out
such as
seek to
ent
“collateral
23
Alabama, 395 U.S.
memories,”
problem not
probe murky
(1969),
pertinent
or other
274
L.Ed.2d
contemporary
record
present where
presents evi-
If
cases.
395
a valid waiver.
demonstrates
testimony or other
dence, through his
244,
Federal law falls to the Commonwealth detеrmining for whether ate standards en- underlying judgments were intelligent and fact, did, in in a manner which tered States Constitu- purposes of the United for case, of the defendant. A protect the and it has only by done so facie simply not relying upon record will suffice. presumption, silent the state can- per- be said to have met its burden of Kentucky, 703 S.W.2d by supplementing inadequate suasion an denied, cert. (Ky.1985), U.S. сonvincing record with clear and evidence. L.Ed.2d addition, In the Dunn does not methodology results in Manifestly, impose the clear and burden from federal different standards standard persuasion in the event the state uti- does of federal a valid waiver consti- lize extrinsic supplement evidence to rights. permits the state to tutional by utilizing carry its a bare record guilty, of a conviction II. conjunction the time-honored with The state also maintains that judicial proceedings sumption that have district court by findings was bound of fact legally performed.1 regularly and been Kentucky Supreme Court, made *4 Under the Dunn procedure, deferring in not erred to that factual deter persuasion retains the of on the mination. ultimate of and volun- transcript No proceedings But, tary once the state waiver. establish- leading to the 1970 and 1973 convictions conviction, plain es record of the bur- was available at the June 1984 state producing den evidence shifts to the suppression trial court hearing, but there irregularity to show an in the transcript was from the 1976 hear- plea procedure since that unadorned ing. In proceeding, the 1976 judge record, by presumption, bolstered pоsitive elicited answers when he asked held Dunn to be sufficient to establish only Dunn by plead- he understood that prima case that the facie ing guilty waiving he was his to trial validly accepted. permit- The defendant is by jury, and whether he was satisfied with presumption, presum- this ted to “refute” the services of attorney represent- his who ably by that would be sufficient to evidence charges. ed him on the 1976 sup- At the finding support proceedings pression hearing, Dunn testified that nei- inadequate. were proceedings ther the 1970 nor the 1973 the Although procedure ostensibly had he judge been advised the trial permits presumption only the use of the to by jury, his to trial to cross-examine production, reality a burden of it witnesses, Upon and to remain silent. be utilized the state to its state, cross-examination Dunn cоn- persuasion. ultimate burden That be- knowledge ceded that he had some “now rebuttal, cause, if the defendant offers no I from the trials have had” that he was prevail; presumption will be- jury entitled to a trial and could cross-ex- supple- comes a substitute for evidence witnesses, amine but said he “didn’t under- menting prac- the conviction record. The anything” stand back 1970 and 1973. the procеdure, then, tical effect Although judge the trial allowed the con- prevail by carrying to allow the state to stand, upon victions to based his under- persuasion upon the bare record standing placed case law of the fact that a conviction was entered Dunn the burden of ignores This the defendant. result invalid, convictions were nevertheless admonition in Supreme clearly stated evidence: against presuming a waiver a silent And, it offends this court’s re- there So that will be no mistake should since, quirement appeal[,] when the state there be an the Common- [i]f prima establishing is said to have made out a bare wealth has the burden of court, arguably opinions of 1. This in a comment which between Parke, necessary appeal Boykin. Rudolph F.2d to the resolution оf the Court and it, (6th Cir.1988). recently then before noted inconsistencies convic- supplementing soundness evidence clear and con- put them vincing. Although after the Defendant the Kentucky tions issue then conviction based not specifically Court did address the mea- should be convictions the 1970 applying sure of it was If bur- cross-examination, the Commonwealth’s reversed. Dunn’s answers on man- by cleаr and convinc- den is to something establish ifestly, it was less clear than evidence, any conviction based convincing. contrast, By the state trial should be re- upon the 1976 convictions judge pointed inescapable legal to the con- versed. clusion that must be drawn view all presented him sup- the evidence at the Supreme Court addressed pression hearing, he to apply the cor- in the context of the same evidence of production rect burdens and persuasion. opin- out earlier in procedure it had set Moreover, required a federal court is not ion: accord a state court’s determination took the testi- appellant stand and [T]he presumption issue factual of correct- judge that the trial had failed to fied ... 2254(d), ness 28 U.S.C. where § him of certain advise supported is not fairly that determination entry 2254(d)(8). by the record. 28 In U.S.C. § proceedings. No and 1973 view of the inconsistencies the su- between regu- given to rebut the preme court’s recitation June larity relation to 1970 conviction. actually and what oc- juncture, At this the burden shifted back hearing, curred at that charac- court’s judg- on the two Commonwealth testimony terization Dunn’s cross- to, and the record is total- ments referred *5 examination, readily “he that admitted on whether the trial ly silent the issue of he knew rights of the he con- about which rights. him of his How- judge advised court,” by he was not informed the is tends ever, the Commonwealth cross-examined fairly supported by the not issue, concerning and appellant the the knew he the readily admitted that he he was
rights about which
contеnds
III.
by
informed
the court. The evidence
not
methodology
the
Because
and standards
indicated he was satisfied with
further
Supreme
by
the
Court do
utilized
represented
he was
manner in
which
for de-
comply with federal standards
not
see
counsel.
fail to
reversible
We
termining
guilty
is intelli-
whether a
court,
error in the failure of
trial
purposes
for
of the
gent
voluntary
and
failure,
ap-
there was such
advise
Constitution, and the deter-
United States
already
he admits he
pellant
issue
the Ken-
mination
factual
knew existed.
appeal
is
tucky Supreme
at 876.
703 S.W.2d
of correct-
not entitled
is
as demonstrated
ness and
incorrect
If the
Court’s
cause,
correct,
of the
is
ar-
record
order
then it can be
the evidence
that the irrelevant
court is affirmed.
gued
district
appeal, since the
the resolution of this
RYAN,
Judge (concurring
Circuit
that the state car-
supreme
concluded
dissenting
part).
part;
ried its ultimate burden
the bare
through
supplementing
evidence
correctly de-
my colleagues have
Because
of conviction.
records
failed
that the
termined
State
noted,
proving
that Dunn
carry its burden
However,
previously
as we have
by jury
to a
his
trial
plea procеedings is waived
entitlement
where the record of
accusers,
privi-
and his
to confront his
standard for deter-
and
incomplete, the federal
in connec-
lege against self-incrimination
intelli-
mining
whether a
1970,
and
his
1973
1976
voluntary
purposes
tion with
gent and
af-
court’s decision
I concur in the
demands
United States Constitution
firming
238,
of the district court.
voluntary,”
242,
395 U.S.
89 S.Ct.
1709, 1711,
are limited to those
My reasons
addressed
and that
the сourt will not
my
opinion. I
part
presume
II. of
brother’s
re-
the waiver
the defendant of his
however,
disagree,
spectfully
by jury,
with what is
to a trial
to confront his
part
accusers,
I. and dissent
privilege
written
therefrom.
and the
self-in-
crimination “from a silent record.” The
place,
part
In the first
what written in
Black,
1380,
rules of
516 F.2d
opinion
is,
I. of the court’s
is dicta and
(6th Cir.1975),
are that
therefore, unnecessary to the сourt’s deci
state must
the defen-
[t]he
prop
sion. The defendant’s conviction was
guilty plea
dant’s
voluntary
in-
erly
by the district court
vacated
because
telligent, and
may
to do so it
introduce
transcript
of the 1970
dem
transcript
extrinsic to the
conclusively that the
onstrates
plea acceptance.
knowingly
did
waive
rights, and the extrinsic evidence that he And
respect
did so with
to the 1973 and 1976
inadequate
face of an
transcript
[i]n
clear
convictions is not
as
guilty plea’s
at the time of a
acceptance,
required
Black,
by Roddy v.
L.Ed.2d 274 or judgment long ago, to reduced unless and defendant, The in Boykin rules announced are that subsequent judicial until a validity plea the proceeding, of justiciable challenge offers a to guilty requires showing presumed “an affirmative validity guilty the of the pleas plea guilty] intelligent of regularity judgments and and the memo- [the guilty voluntary intelligent, validity The of all and ralizing them. obviate instance, rest, necessity (em- vаcating plea.” in first of the convictions added). regularity phasis of presumed validity or entered that has been judgment agree entirely I my with brother that Surely presumed va- acceptance. Boykin and ... where “[i]n rule lidity Boykin not violate the does the record from court is the trial inade- of these “presumpng] waiver quate affirmatively to demonstrate that the a silent important three vоluntary, would mo- No one think for a record.” may presumption to state utilize a sat- ment, hope, presumption I should persuasion.” (emphasis of isfy its burden validity proceed- regularity of of court added.) Kentucky procedure The set forth to ings not extend the millions does permit does not the state “sat- unchallenged guilty pleas, judg- finalized in isfy” persuasion” its “burden of invok- conviction, on ments of the books presumption. merely requires, It as of courthouses all the states thousands procedural matter, order to im- The union and federal courts. prove pose upon the state a new burden imposes procedure merely validity of an presumptively heretofore to raise the a defendant guilty plea, must valid the defendant raise presumptively issue of the offering validity by an issue as to its some guilty plea, something previous get valid Boykin. of noncompliance with moving judicially, by producing some modi- done, is not rely When that claim, support cum of his of evidence presumption regularity upon the which failing guilty plea to be which his continues judgments attaches to all presumed All valid. Su- record, including generated those if the preme is that burden; newly assumed put proof to its that a is to be proceed prove, instead it must unaided sumptively valid of conviction presumption regularity, that by any resting upon a is indeed invalid and intelli- intelligently because the defendant did not gent. con- waive relevant federal When a defendant offers rights, must do stitutional support any evidence whatever just more make a claim about than naked constitutionаlly claim that his challenge the matter. He initiate a infirm, presumption he has “refute[d] by presenting “through his some evidence regularity” guilty plea judgment testimony or other affirmative evidence.” challenged the Commonwealth he has proce- supra. Under the Dunn validity according to required to dure, defendant initiates an evi- once the standards announced challenge, dentiary Roddy. judgments regularity attaches to all *7 does no to the rules procedure violence and the state of record vanishes Boykin, Roddy, other announced undertake to its “burden precedent. binding federal constitutional underlying judgments Kentucky has a constitution- established in fact in a manner did were entered uniform, procedure or- ally sound protect rights of the defendant.” genu- derly and efficiеnt determination Eighth language supra. ine, evidence-supported challenges Lockhart, 490 in Todd opinion Circuit’s pleas reduced to sumptively valid (8th Cir.1974), which this F.2d courts, this federal in its quoted upon and court relied authority to tell is without pris- opinion, says as much: “once a state acceptable. tak- oner demonstrated that in accordance with not conducted may, affirmatively if it Boykin, the state hearing that the
proves post-conviction