United States of America Ex Rel. Charles Grays v. Alfred T. Rundle, Supt
428 F.2d 1401
3rd Cir.
1970
Check Treatment

*1 ownership inter- pra, Harriet’s to value policy.

est deficiency it sustains the as Insofar judgment question, here reversed, case Tax Court pro- further for to that Court remanded opinion.

ceedings consistent of America STATES

UNITED Appellant, GRAYS, Charles RUNDLE, Supt.. T.

Alfred

No. 17698. Appeals, Third Circuit. 3, 1969. on Briefs Oct.

Submitted

Argued May July 17,

Decided Alschuler, University of

Martha F. Pennsylvania School, Philadelphia, Law Pa., appellant. Crawford, Deputy James Dist. D. Chief,

Atty., Appeals Division, Philadel- phia, Pa., appellee. 3, 1969

Submitted Oct. STALEY, Before and VAN SEITZ DUSEN, Judges. Argued May 26, 1970 HASTIE, Judge, Before Chief STALEY, FREEDMAN, SEITZ, VAN *2 1402

DUSEN, ALDISERT, (1955).3 serving 422 After ADAMS A.2d Judges. GIBBONS, years prison, relator, more than 12 time, sought

for the first collateral re by filing peti lief in the state court a THE OPINION OF COURT Pennsylvania tion under Post Con Judge. DUSEN, Circuit VAN Hearing viction Act 1180-1 § P.S. ff.),4 claiming challenges District that his had a appeal This unlawfully denying been a rela- induced and that opinion,1 order Court illegally coerced cor- confession had been re habeas petition for a writ tor’s Grays v. in evidence at the above-men ex rel. ceived pus. United States alleged hearing.5 (E.D.Pa.1968). petition F.Supp. tioned This petitioner en- present, had that counsel '“advised Relator, relator’s counsel declaring general- change to murder to his to tered degree higher sec Philadelphia criminal rise no ly state could entry degree any “a January such 26, After ond case” and 1954.2 * * * substantially hearing held deter- minimize plea, was to would of the degree degree.” that applicable of murder. Also relator testified mine the him, entry prior first to the such counsel told relator The court found hearing degree him to life of the that one murder and sentenced appeal, judges relator’s have a imprisonment. relator would On said that did not than 6 to facts of more that trial if a sentence counsel contended new hearing finding imposed.6 justify years first of murder After a rejected. degree, petition July 1967, de nied this contention was but Grays, af- denial was the trial court and such See Commonwealth Pa. bring opinion an 1. This and order followed evi- did not that is noted dentiary Court, hearing application until in the District relief for collateral represented by coun- where relator was thus un- his counsel had died and was opinion testify. sel. The District contains Court to available explanation at footnote 1: Pennsylvania Supreme 5. The Court “Although Townsend, not believe we do claim on the relator’s made this comment supra, evidentiary an hear- mandated alleged Pa. coerced confession of an ing discretionary in this as a 3): 200 n. 112 n. A.2d at at hearing we such matter conducted applica- “Appellant’s post conviction opportunity relator an so as afford involuntary an tion asserted that position clarify and to afford pro- at was introduced confession Attorney opportunity the District an degree ceeding to determine held anything introduce into evidence allegation guilt, that there was no be disclosed a search of the primary motivation records and files relator’s trial coun- conten- hearing was the confession. Since (now deceased).” sel pressed at tion was not colloquy place asserted, 2. The took between we conclude and is not now the court and relator’s counsel at it abandoned. Post Con- has been January appears Hearing Act, time of the viction Act opinion (1965), 1580, footnote P.L. § of the District Court (293 F.Supp. allega- (Supp.1966).” Both the P.S. 1180-4 § petition (par. 5, 1, b) tions Pennsylvania Supreme stated: Court 6. The testimony the relator’s in the District “ * * * not have (N.T. 58) Court show that relator knew alleged granted unless the facts been possible the “electric chair” was a true, post petition, conviction penalty for the crime for which he was appellant relief. entitled would have charged. g., rel. Kern See, e. Commonwealth opinion background Maroney, A.2d This Pa. recites (1966). below is facts Pennsylvania Denial of relief of what equivalent, “gang- the circum- later under described as a therefore case, style killing.” trial court land to a of this Commonwealth stances testimony Grays, appellant’s finding 428 Pa. 110 n. 237 A.2d See, sufficiently (1968). Id. credible.” 199 n. 1 also note infra. Grays, ed, petition when his habeas cor- See Commonwealth firmed. pus alleges his confession was in 237 A.2d 198 428 Pa. fact coerced and that it motivated his Assuming trial plea? alleges We think not if he conduct, ac time of at the court did proves no more than this. inquiry guilty plea, suffi cepting the *3 plea was the “ establish cient * * * plea of in a state made, understanding^ knowingly and subject court is not to collateral attack totality the circumstances of the ground in a court federal on the Court, which District the record before by it was motivated a coerced confes- transcript hear of the 1954 included the sion unless the defendant was incom- ing on the as the as well petently attorney. advised his For justified petition, the post-conviction respondents the in these cases success- findings conclusions and District Court’s fully to claim relief based on Jackson “knowingly plea and volun that the Denno, v. each must demonstrate “improperly tarily entered” and was gross part error on the of counsel 647).7 (293 F.Supp. induced” when he recommended that the de- of the United States has Court plead guilty going fendant instead of recognized recently entered challenging to trial and the New York though defendant, a counseled procedures determining the admis- prior confession, there was a now sibility of confessions. coerced, might claimed to have against pre him, been offered has denigration “It sumption validity of which sustains it trial to hold that when the defendant against collateral McMann attack. waives his state court remedies and Richardson, v. 90 S.Ct. U.S. guilt, admits his he does so under the (1970), 25 L.Ed.2d 463 where the existing; law then further, he as Court said: sumes ordinary the risk error in ei ther attorney’s his Or his “The issue on which we differ with assessment of the law and Appeals Although the facts. Court arises in those he might pleaded involving differently have situations the counselled de- had lat er allegedly decided put. cases then law, fendant who been the the is bound proof his and State to its his there was a sub- conviction allege enough unless he can acquittal, stantial chance of serious part derelictions on except prior who would do so for a of counsel suf ficient to might show that not, confession which be offered all, knowing after against him, intelligent who because act.” plead confession decides to expense agony save himself the recently Boykin We have held that v. perhaps a trial and Alabama, to minimize 89 S.Ct. penalty might imposed. by relator, L.Ed.2d 274 relied on After conviction on such a is a applied retroactively. is not to be hearing, defendant entitled to a Hughes States ex rel. 419 F.2d accept- relief if (3rd his factual claims are see Commonwealth found, 7. The District hold, Court after a review “We decline to that a evidence, testimony of all compelled and invalid un- (293 F.Supp. 646-647) of relator der the Fifth Amendment whenever (293 F.Supp. that of his wife at 645 n. motivated the defendant’s desire to 3) accept were not certainty credible. probability or of a penalty lesser rather than face a wider Similarly, range possibilities the same extending Court said in from acquittal higher U.S. to conviction and a (1970) penalty L.Ed.2d 747 : authorized law for the crime charged.” FREEDMAN, Judge (concur- Godfrey, A.2d 923 434 Pa. ring). rehearing granted on this ease We pre circumstances Under en con- order that the banc record,9 District sented question sider the difficult of where placing burden err did a claim is burden of lies when to show upon persuasion made in a state intel anas not entered that his court was not entered and aware sufficient ligent “done act contemporary silent record is either or circumstances relevant ness of the judge inquiry by as to an Walker likely consequences.”10 See concerning knowledge the defendant’s Johnston, U.S. and the (1941), where L.Ed. 830 acknowledgement guilt. *4 the remanding in for a question is now the future cases For the volun to determine District Court Alabama, by Boykin 395 U. governed v. guilty lan this used of the tariness 274 23 S. guage : requires court the state pleadings and the affida- “Not the that a of to disclose record vits, voluntarily whole of the testimo- but the knowingly made ny, determined the per must it be whether in prophylactic rule se establishes petitioner has his burden carried validating is silent. plea if the record of proof Boykin dis- shown his to a is held, We have charge.” [Emphasis supplied.] (quot- problem, only.1 prospective The there approval ed with in Machibroda v. fore, the to exist where continues States, 487, 495, United predated decision under attack (1962)) L.Ed.2d 473 Boykin on 1969. June past precisely in cases where is (last Richardson, supra McMann v. signifi- that the record there is a silent above). p. quotation on sentence of of of the burden allocation cance of the opinions To our in Unit the extent that magnified de- proof will be and often is Rundle, 402 ed ex v. States McCloud rel. course, For, evidence of cisive. 1968); (3rd F.2d Cir. familiar who are from those must come Crosby Brierley, ex rel. F. usually transaction, be who will with the (3rd 1968); 2d 795-796 Cir. judge, prosecutor, the defendant Rundle, United States ex rel. Fink v. lawyer, one at if he had and his (3rd 1969), F.2d Cir. are incon proof placed is If the burden of time. decision, involving sistent with this on it will have evidence plea, they are not to be followed. they judge, prosecutor are hardly available, they expresses ex- appreciation can still its any pected one of recall the facts presentation of, for the able and the long past And if the cases. numerous helpful by, appointed briefs filed counsel defendant, will state should call for the relator. obviously If on the be a hostile witness. The order of the District Court will placed proof hand is other the burden be affirmed. defendant, appear on to be it would record, In supra. liad counsel and 10. See evidence, there is no found the court credible, incomjietent to be Hughes advice United States such (3 1969); counsel. There was no evidence 419 F.2d Cir. plea agreement. Compare admitted States ex rel. Fear v. Commonwealth Bailey McDougall, (4th Pennsylvania, F.2d 423 F.2d 55 Cir. 1968), Cir. relator, Pennsyl Wiggins relied on where United States ex rel. plea agree vania, terms of an admitted 430 F.2d 650 ment were in issue. significant decisions, him to bear it. For he is of these easier we. need testify his own behalf determine at this available time the bounda- lawyer may repre- they call the who ries are confined. What fact, significant plea. present In how- him at the sented case is advantage apparent ever, placed more repeated emphasis the Court presence competent For the defendant’s credibili- on the real. counsel strong self-interest, ty is affected when is entered as an lawyer represented him and the who assurance that it is done with a full un- longer may, case, derstanding as in possi- be availa- of the and the and, is, plea. ble if he has a fundamental ble of the justifying ad- interest the conduct he apply I would this fundamental dis- vised. determining tinction in the allocation of the burden of in cases such as problem presented We had this us layman’s this. The notion of a adopted in a number of cases and simply is that it means that he requires view that the Constitution charged. has committed the act He record, case of silent or hardly expected to know the proving the burden of that a ingredients crime, technical voluntarily elements which the state must made rests on the state. See United *5 it, establish the defenses which he Rundle, ex States rel. McCloud v. F. it, raise to or the nature and extent (3 1968); 2d 853 Cir. punishment may imposed Crosby Brierley, 404 F.2d 790 guilty. if he is found It is for this rea- Cir. United States ex rel. Fink son that a defendant is entitled to coun- 414 F.2d 542 guilty sel when he enters a and rehearing ordered Since we in this that is invalid if it is entered problem case to reconsider the fresh without the assistance of counsel unless appeared element has in the decisions of to counsel is waived.5 Court of the United States guilty pleads Where the defendant Richardson,2 Brady in McMann v. counsel, however, with the advice of States3 Parker v. North presume there is no reason to that he Carolina,4 4,May all handed on down ignorant was of the nature of the plea. Indeed, or the however, trilogy, The McMann is not assumption the more rational is that all record, based on a necessary silent or considerations which nor does it decide where the burden guilty should have been recorded lies in an plea proceedings attack on a were canvassed with guilty. Indeed, there are indications him his counsel before the decision to inadequacy that there plead guilty was no In was such a reached. pleas case, therefore, records of the though there and the record silent, claims went to presume matters which is we should would not voluntarily have been revealed a full was entered as inquiry. any event, may intelligent In knowing while there act rather speculation regarding be much presume contrary.6 the effect 2. 397 U.S. language S.Ct. 25 L.Ed.2d is true that there Hal (1970). liday States, v. United 394 U.S. S.Ct. 23 L.Ed.2d 16 3. 397 U.S. S.Ct. may appear imply that the burden (1970). government prove rests on 4. 397 U.S. 25 L.Ed.2d voluntary. there, however, dealing with the proof, burden of nor with a constitution 5. See question (see Halliday p. p. al S. 748 n. and cases 1498), per there cited. Ct. rather with the se adopt a standard would I therefore upon depends cases which pre-Boykin represented defendant

whether counsel,7 the had no If he counsel. McCloud, Cros- remain as rule should proof is the burden Fink that plea was to show voluntarily If he knowingly made. counsel, should the burden

had defendant rest on

voluntarily made, extent that to the

McCloud,Crosby inconsist- Fink are view, I hold that ent they longer to be followed. are case was the defendant Since plead-

represented counsel when court, the district in the state ed correctly upon placed the burden finding plea. Its him to overcome did not meet his bur-

that the defendant fully justified evidence and

den is

therefore should sustained. affirming the concur

I therefore court. the district

order of *6 Judges, ADAMS, Circuit SEITZ Opinion.

join in this America, STATES

UNITED Plaintiff-Appellee, STAR, Defendant- FOUR Charles

Victor Appellant.

No. 25281. Appeals, Circuit. Ninth (argued), L. Neil Axtell Robert June Hurly, Glasgow, Mont., appellant. (argued), Keith L. Burrowes Asst. Atty., Packwood, U. S. Otis L. U. S.

Atty., Billings, Mont., appellee. McCarthy McCarthy retrospectively apply, does not rule may challenge defendant still U.S. pleas invalidating voluntariness of his on factual federal grounds. record for vio or on a silent 11 of the Federal Rules of Rule lation If the defendant did not waive his held Procedure. Criminal counsel, plea may pre-McCarthy did the record be invalid where with- cases supra, compliance out more. See n. 5. Rule not disclose