Wesley Trahan v. W. J. Estelle, Director, Texas Dept. Of Corrections

appeal may qualifies one its that The doctrine motion to dismiss the action for does to judgment apply a consent from mootness. put would not before us. situation doing court error that which the consenting judgment is asked appellant By court to do. entered, party right ap- waives may, urge it. He

peal from actually that his consent was not

appeal

given. It is Moore Federal Practice 1203.06. plaintiffs did not intend

obvious judg- consent to a their letter-motion Wesley TRAHAN, Petitioner-Appellee, preclude ment them would from trig- review the desire for which appellate ESTELLE, Director, Dept. W. J. Texas judgment be gered request their Corrections, Respondent-Appellant. Nor trial have entered. could the such an intent. It entertained was aware No. 75-2805. seeking were plaintiffs review of Appeals, United States Court orders that had narrowed the case. It two Circuit. Fifth obli- be inconsistent with court’s 10, 1977. F.R.Civ.P. 23 for the Jan. gation under non-appealable terminate case dispose that would of the claims

judgment relief, non- raised

for diocesan-wide plaintiffs on behalf

Marksville

diocesan-wide class. to dismiss

The motion of defendants grounds moot

appeal on ease is appeal plaintiffs cannot

and that That judgment, must be denied.

consent not, however, end matter. Plain-

does 60(b) a Rule motion

tiffs should filed the judgment. They

to correct did not do

so, treat opposition we their filed in this but June

court on motion appeal 60(b) Rule as a motion.

dismiss

We remand case to judgment to vacate

with directions 12, 1975, to enter

February a corrected all

judgment which should final as to or, parties, final as if to less than

issues 54(b) and all a Rule parties, issues certif-

all

icate be issued. should REMAND-

Motion dismiss DENIED. Costs are taxed

ED with directions. appellants.

against

JONES, Judge, dissenting: Circuit always

It is not the hard case that makes

bad law. find, any-

I do not the majority, does appellant the letter of the

thing in give a statement. grand The county 13,

jury him for on rape January indicted alleged 1969. The indictments for the other April were filed offenses meantime, In the father had Divine, employed attorney, C. Houston C. represent defendant, paying a retain- of Divine a copy $250. er forwarded of Trahan’s birth certifiсate to the district at- torney, verifying age, which rendered immune to the him death under then written. On April 2, law as Texas 1969, appeared Divine in the Texas district and obtained continuance of disappeared He into total case. thereafter silence, seeing his client or never maintain- ing touch with the court find out what Jr., Gen., Little, Atty. Asst. I. Herman going reference to the case. Griffin, Atty., Aus- Asst. U. S. Pierce John pleaded guilty, later When son as well tin, Tex., respondent-appellant. for in the corpus proceedings, state habeas Tex., Morrison, III, Liberty, R. Richard father testified that he was unable petitioner-appellee. Divine, the fee assessed he had raise lawyers, with two other that he

talked the fee pay they proposed, could and he had not thereafter seen or heard from Di- GEWIN, vine. COLEMAN and GOLD- Before

BERG, Judges. Circuit pleading rape After guilty to appointed (Attorney advice counsel Car- COLEMAN, Judge. Circuit 29, 1969, ter), August and being sen- Houston, was born in Wesley Trahan life, state penitentiary tenced 13, Texas, August 1952. Evidence sought by way Trahan release of habeas of Texas authorities indicated possession 15, 1973, corpus. June Texas dis- On 28,1968, Trahan commit- December that on evidentiary held a full scale trict court par- of these was a ted five felonies.1 One hearing. testimony at- rape, in Trahan ticularly loathsome counsel, torney, appointed of Trahan’s companions repeatedly three male and father, himself, Trahan type- and of filled a until raped Mary Fregia Jo the seat transcript pages. of 174 written forcibly entered was cover- they vehicle adduced, On the evidence thus ran and the victim’s blood ed with blood found that: her The record reveals into socks. down (1) “voluntarily, knowingly, and Trahan disposition of Trahan’s understandingly entered a Ar- participants, Lawrence two of case counsel”; assistance of effective Melanson, pleaded guilty and Carlo ceneaux crime were sen- part (2) “He has wholly to their failed establish otherwise”; penitentiary for life. any indicating fact tenced (3) was arrested on December “plea Trahan His was not induced rights, interrogated as a result of fear of his made warned nor attorney, penalty”; and declined night by the district Locke, (3) Mary Fregia, breaking the al- Jo Dalbert felonious 1. Besides (4) vehicle, felony robbery entering (1) motor leged of a the armed offenses were individual, robbery shotgun. (2) the armed theft a rifle the same (4) unworthy of belief”. Trahan “is the death penalty under Texas law. Tra- han jail throughout. remained was denied. corpus Habeas relief affirmed, Appeals with- Court of Criminal August 26 or the September opinion. out written term of criminal being imminent, jailer informed the district attorney December filed his On that requested had Trahan district a alleg- meeting the federal petition in prosecutor, Mr. “involuntary” was Woods. ing that his Woods testified of effective request “without assistance that and raised some concern be- appointed counsel”. he knew cause that the defendant had an attorney of record. He nevertheless satis- parties, the By agreement of the case was fied himself meeting that a without defense record, submitted on the state court oral present counsel “ok”. At argument, post hearing deposition from jailhouse followed, conference which Woods Divine, Attorney which he averred in that told Trahan prosecute that he would each he would not have abandoned his client for charges and all against him until he suc- (but pay which failure the fee overlooked ceeded in obtaining a life sentence. Woods any explanation for his retreat into inaction did not inform that Trahan he could not ineffectiveness). receive the death penalty but testified that granted District Court writ. It that, Trahan already knew arguing for a so, however, did the basis that dis- recommended sentence of less than life. negotiated attorney trict had a with 29, On August Trahan, along the defendant in the absence of his with attorney parents, believed (Divine) denying thus that Divine no longer of record Trahan rep- resented him. stage proceed- critical Between 9:45 o’clock, counsel and 10 appointed ings. lawyer The District further held that Court some six- years teen unnecessary experience, “It is determine whether including considera- practice ble criminal attorney performance (Carter), Carter’s constituted represent of counsel or whether ineffective assistance defendant. was

petitioner’s guilty plea involuntary”. Quite naturally, Carter interviewed Court expressly Since the District failed Woods to learn his attitude about the case. issues, to decide these this Court should not Woods advised Carter state was attempt in the now to do so exercise of its seeking the penalty. death knew, Carter appellate function.2 however, that the death was una- vailable and so defendant, advised the We now revert to a more detailed discus- which was information defendant sion of Trahan’s contacts the state already had. Woods offered to recommend attorney. night ar- imprisonment life rape on the rest, сharge, plus attorney questioned Tra- agreement proceed not to on the han other and later that he admitted “could charges. He declared that he would never subject have” told he was Trahan that accept anything less. The district although the death penalty, he asserted opened his files to Carter’s having inspection. that he had no recollection of done There Carter 31, 1969, saw statements from January so. On the district attor- Trahan’s co-defendants, a picture filed a ney notice of intent to seek the the vehicle in occurred, which the Trahan. penalty against allegedly picture The birth seat, of the blood on the shotgun certificate later forwarded Divine dem- allegedly incident, years onstrated Trahan sixteen used and a watch belonging age alleged boyfriend at the time offense who been parked consequently victim, have been could not assessed girl had turned over to Capps, 576; Smith, 2. Lokos v. Cir. Colson v. 143; 528 F.2d F.2d Alabama, 383; Dutton, Giles 5 Cir. 384 F.2d Royal v. 5 Cir. 392 F.2d 544. Kimbrough, 548; Alvis v. 5 Cir. F.2d Proceedings in the United States received she had stating that police, District Court Trahan. Court, course, cogni- District in the with Trahan conferred then Carter of correctness presumption zant of ap- advising him room, jury court fact determina- attends state im- which overwhelming еvidence peared U.S.C., 2254(d). He under 28 Section tions rape. testified Carter him plicating ‍​‌​​​‌‌​‌‌‌‌‌​​‌​‌​​​‌​​​​​‌‌​​​‌‌‌​‌‌‌‌​‌​​‌​​‌‍following “unusual and disturb- in how found interested was more Trahan plea: background” to ing to serve actually have he would time much that he him told Carter a life sentence. (1) plead guilty decided to dur- thought offered not know did the conversation with the on Trahan’s depend would somehow counsel; of defense the absence good time (influencing prison behaviour (2) “significant possibility” A existed credit, etc.). the death had formed fear of that then returned to and Carter Defendant plea; bases for the one of the they and announced courtroom (3) appointed court or counsel The trial an- The state proceed. ready to were attempted contact ordinarily have notice of of the its withdrawal nounced record; Divine, attorney of being penalty, this the death to seek intent (4) counseling a minimum With prerequisite before necessary a to the confined district at- investigation guilty plea. a receipt proceed could file, Carter allowed his client to torney’s immediately which proceedings In the applicable to the maximum guilty con- all of Trahan’s open in followed thirty ap- within minutes of his sentence him. explained to rights were stitutional pointment; by jury; waiver of trial a written signed He (5) should have been a dismissal There confrontation appearance, waived he charges, agree- rather than an other of the witnesses and cross examination pursue them. ment not to evidence; ten he waived the documentary for preparation by law days allowed The Law counsel; he waived appointed by trial not, is such that we need indeed The law imposition by law before allowed time not, express any concerning view we should that he be request a signed He of sentence. preceding points. merits of the five assured the time. He sentenced by any influenced he was not v. Henderson3 was a Toiiett case in fear, hope of threat, persuasion, or delusive prisoner sought to invalidate which a state guilty be- pleading was he pardon systematic exclusion of —that for no other reason. guilty and he was indicting grand cause jury. from the The blacks promised not been a that he had He stated held: .Supreme Court pleaded guilty. if he sentence lighter We hold that after a criminal defend- to him propounded to a response the advice of coun- guilty, on pleads ant he, three oth- along responded with sel, automatically he is not entitled Mary Fregia”, Jo “did bоys, er proof that the collateral relief federal partici- did not boy present fourth a grand jury was unconstitution- indicting duly arraigned, he rape. Being in the pate The focus of federal habe- ally selected. less for not imprisonment sentenced inquiry is the nature of the advice and as life, than with nor more years five than plea, the voluntariness to the spent jail prior for the time credit such of an antecedent consti- existence plea. . infirmity. tutional principle recog- him have never We thus reaffirm the charges against other S., Brady [Brady in the v. U. nized brought to trial. been (1973). 3. 411 36 L.Ed.2d 235 U.S. by 747 tack federal habeas corpus. holding guilty plea represents

(1970)] trilogy: District Court to contrary must has of events which in the chain break reversed. process. criminal

proceeded Since, the District Court did not solemnly defendant has a criminal When decide the issues of voluntariness and effec- in fact court that he is open admitted counsel, tiveness the case must be re- he is guilty of the offense for an appropriate manded disposition of may not in- charged, he thereafter raise those claims. depriva- relating to the dependent claims REVERSED and REMANDED. rights tion of constitutional that occurred entry guilty plea. He prior GOLDBERG, Judge, Circuit concurring may voluntary intelli- only аttack specially: gent character concur result reached advice he received showing that the I agree majority. the district court within the standards set counsel Supreme violated recent declarations forth in McMann. granted when it Court the writ on the basis 4 the In McMann v. Richardson Court had deprivation of counsel at critical stage challenge to a rejected prisoner’s prior notwithstanding appoint- coerced as motivated morning ment counsel the of the plea’s confession, following observation: entry. Accordingly, agree I also guilty Whether a of is unintelli- vacate judgment decision to below and gent and vulnerable moti- therefore when to remand the questions resolution of erroneously vated confession open for consideration on collateral attack thought depends admissible in evidence guilty plea of this effectiveness of —the matter, as an not on whether a initial counsel and of plea. voluntariness retrospectively consider would Particularly in the factual context of this right wrong, counsel’s to be advice or but light below, of the case error how- advice on whether that was within the ever, not think I that the decisions of do range competence of demanded of attоr- Court and this Supreme the scope neys in criminal cases. challenges to convictions resting of habeas Tollett, Following we have held that a guilty pleas admit of applica- automatic upon a to rape collateral attack explanation tion. I deem advisable fuller challenge voluntary was limited “to a what was foreclosed below and what of knowing plea”.5 of his nature Moreover, open. I do not remains think princi We have also reaffirmed the precedent may completely be read to ple required that a lacks the pre-plea exclude consideration of events in understanding voluntariness and if entered of process resolving the issues of the on advice of counsel fails to meet the of counsel effectiveness and voluntariness. minimum de standards of effectiveness not majority I do understand the While rived from the sixth and fourteenth amendm observation, object this latter I do feel ents.6 for all compelled the above reasons to add special concurring opinion. this necessarily

It follows Tra that since so, pleaded guilty doing han with at I least some ad completely disavow any appointed counsel, any vice from court decide the left issues intent undecidеd The issue erroneously with reference his uncounselled below. reached however, meeting there, two attorney, bears both factual legal days previously, open panel was not at- relation to issues this three now re- 1441, 759, 1974, Hopper, 456, 25 L.Ed.2d 763 5. Lee 5 Cir. 499 F.2d 4. 397 U.S. 462. (1970). Estelle, Herring v. 5 Clr. 491 F.2d 125. requires Delimiting relation behalf. The docket day call that resulted mands. correct- presumption a continuance. subsequently consideration Divine sent a proceedings in federal attached Trahan’s copy ness birth certificate to Woods also calls findings. The task fact that appellee only to demonstrate had been contours of outlining the definitional the time alleged sixteen at offense voluntari- counsel and the effectiveness consequently could not receive the inquiries. ness under Texas law. Sometime Divine May, fa- around informed Trahan’s can in of these matters now Clarification he could proceed not ther without more disposi- facilitate the ultimate opinion my money; he remained out of contact with invading pre- case without of this tion August case until after clarifica- of the trial court. Such rogatives plea.2 serve, might rather than ob- hopefully tion struct, goal judicial efficiency. August jailer 26 or in- Trahan, continuously Woods that formed Fаcts; Below Proceedings I. Statement from arrest, incarcerated the time of his understanding my requested meeting prosecu- In order legal relationship applicable Although request between the tor. concerned particular Woods, con- appellee factual who knew represented standards emerge he clearly possible lawyer, as somehow satisfied himself stellation meeting indulge of this in a opinion, confines without defense counsel at the risk present jailhouse statement facts “ok”. That separate meeting repetition. place; between the two then took some during its course told six- then On December prosecute he would charge each un- age, blacks and three older years teen til obtained life sentence. Woods did rape in connection with arrested were inform himself Trahan that he could Texas.1 girl Liberty County, white of a penalty. receive the death According Attorney Woods discussed the District prosecutor, Trahan already arrest, his night Trahan the charge with and, that sanction knew was unavailable Trahan he was sub- have” told and “could desiring dispose case, of his was in- penalty. Trahan to the death ject attempted knowledge to use in bar- that rape on Janu- January for dicted recommendation gaining of less than filed a motion ary the state life. against penalty seek the death intent charge grand August date, A rape. On the trial Trahan re- Trahan on indict- felony appoint returned other the court an jury quested attorney later four that court, him, assuming all against parents Trahan in the same as did his ments that longer involving represented no him. Be- out the incident Divine growing m., ap- robbery by 9:45 and 10:00 a. alleged rape: two counts of tween who, firearm, theft, Wayne count of one count Carter to consult- pointed one Trahan, burglary ing of a vehicle. discussed case with motor Woods. Divine to parents retained C. C. son. represent April their 2 Divine Woods advised that the state Carter only seeking capital punishment his on Trahan’s in Trahan’s appearance made case appeal asserts on planation by 1. The state the district evidence received additional roughshod judge presumption of ran over the judge and the view he took findings to be accorded state correctness facts. meeting requirements under 28 certain fact 2254(d). on this claim § U.S.C. will comment that these are the facts as I reiterate resolved III, directly in Part As a back- more infra. story, judge; Divine’s con- analysis case, ground I set out deposition district tained in his judge resolved facts as the state habeas discussed, infra. will undisputed ex- record. Then follows as minimum recom- state prosecution’s and that the had waived the death penalty, imprisonment plus would be life Trahan answered yes. mendation The trial court ac- proceed cepted not to on the other agreement and immediately announced Carter viewed the At this time a sentence of life charges. imprisonment. The pro- ceedings file.3 attorney’s terminated between 11:00 a. m. p. 12:45 m.6 with Trahan in the then conferred Carter room, where the informed his the federal jury habeas proceeding below, overwhelm- introduced the possessed deposition client that of attor- ney C. C. Divine. implicating him in the deposition evidence contained Divine’s recollection of the penalty.4 and would seek the death Carter states of mind of Trahan and the advised Trahan what the state of his further conver- sations with them difference, at the sought made no time of April as it was his docket call. understanding state could not ob- because of appellee’s tain death In that meeting first Divine Carter, According to age. Trahan was boy’s had noted the concern with the death of this was more aware fact and interested penаlty. He had told Trahan not to worry, long he would serve under a in how life age required because that he be tried in Carter confessed Trahan that sentence. court. Divine juvenile maintained in his nothing subject he knew about that, deposition during his contact with only vague length assertion that offered Trahan, he never discussed in explicit more depend would somehow of incarceration terms the inapplicability of the penal- Trahan’s behavior. Asked if he ty. thought Trahan had under- stood after this conversation that he could Trahan and Carter returned to the court- not receive the death penalty, Divine re- They they pre- room. announced were plied: pared proceed, a declaration that both I doubt that because it was obvious sides understood to mean that a that he had been worked on somebody. offing. immediate Moments la- I don’t know who. He wouldn’t have ter, m., at 10:15 a. the state announced its agitated been such an state of mind. withdrawal the motion of intent to seek very He was fearful about something and penalty. the death The court then obtained I don’t think one little conversation from from Trahan rights waivers of various lawyer telling him something contrary connection guilty plea. Carter to what he has been led to believe would explained waiver, each and Trahan stated put his mind to rest. to the court that he understood each. Tra- han also stated to the court (Divine he had Deposition 28). Finally Divine victim, raped the as reflected in a signed despite related that his informing Woods of stipulation.5 Asked if he understood that at age April hearing, Trahan’s the the dis- file, 3. In that Carter saw statements from Tra- appeared This was a cause in which there to co-defendants, picture a of han’s the car in overwhelming against be evidence Trahan occurred, rape allegedly shotgun the Attorney, Woods, and the District Mr. W. G. incident, allegedly used in the and a watch Jr. at no time threatened or induced him to belonging boyfriend to the who had been guilty. make this of It was Mr. Woods’ parked alleged rape victim when the the position (sic) simply going that he was occurred, girl which watch a had turned over to try rape, asking to Mr. Trahan for ‍​‌​​​‌‌​‌‌‌‌‌​​‌​‌​​​‌​​​​​‌‌​​​‌‌‌​‌‌‌‌​‌​​‌​​‌‍and was police, stating the she had received it from penalty. for the death Trahan. stipulation speaks only 5. The in terms of statu- tory rape. 4. so testified at Carter the state habeas hear- ing. testimony This consistent was with Car- 27, 1972, response ter’s letter of November charges pend- 6. The four besides remain request to a from Trahan’s counsel for a writ- against Trаhan. In accordance with the summary against ten the of evidence plea agreement, prosecutor the has prosecutor sentence the and the intended to proceeded charges. not of those guilty plea. seek absent a The letter stated: 1312 Henderson, In Tollett v. out- 411 appear continued to 93 had U.S. attorney trict (1973), to that he 36 235 and insist S.Ct. a state at the crime

raged sought all defend- invalidate penalty prisoner guilty plea his seek the death ground systematic of on the exclusion of ants.7 jury grand from the indict- blacks out, sets the district majority the As explained As in the language quot- ed him. of the presumption note of taking majority today, the ed Court con- given state fact determi- correctness claim prisoner’s that the could not in cluded 2254(d), 28 found § under U.S.C. nations grounds for provide itself federal collateral disturbing back- following “unusual Following relief. entered on reviewing to Trahan’s after ground” counsel, “may not the advice of defendant proceeding the state habeas record of independent relating thereafter raise claims deposition: (1) Trahan de- Divine deprivation of rights to the constitutional plead the conversa- guilty during cided prior entry that occurred at which defense tion Rather, guilty plea.” “the of federal focus present; (2) “significant counsel inquiry is the nature habeas of advice that fear of the death existed possibility” voluntariness one the bases for had formed existence such of an antecedent constitu- (3) the or Tra- plea; trial court infirmity. . . .”93 tional S.Ct. ordinarily attorney would appointed han’s Divine, contact Tra- attempted to still have This court has had occasion to follow attorney of record at the time of han’s rule. correctly Tollett As the majority (4) with a minimum appointment; Carter’s states, we recognized that a collateral counseling investigation and an confined upon guilty plea attack can only challenge file, attorney’s Carter al- the district voluntary knowing nature of maxi- his client to lowed plea. Lee Hopper, v. 499 F.2d applicable thirty sentence within min- mum (5th Cir.), denied, cert. his appointment. utes (1974). L.Ed.2d 650 Failure defense counsel to meet the standards background the district Against this derived from effectiveness the sixth and jailhouse negotia- concluded that judge strips amendments fourteenth a guilty plea guilty plea, which the of Trahan’s tion requisite voluntary of that knowing counsel, had unrepresented by youth Herring Estelle, nature. See 491 F.2d right his constitutional denied Trahan 1974). (5th Cir. stage proceed- counsel a critical the writ thereupon granted ings. pleaded Because Trahan guilty with at considering corpus without some advice from least court-appointed performance whether Carter’s constituted August 29, I majori- counsel concur in the whether assistance of counsel or ineffective ty’s conclusion that whether August had been entered meeting uncounseled involuntary. The took otherwise two or three days to his appeal. to an amounted unconstitutional denial of at a stage” counsel “critical proceed- Guilty Pleas Scope Challenges II. open was not ings to the federal habeas years guidelines under the Supreme Court has recent set forth in Tol- Having radically grounds erroneously federal restricted lett reached habeas district upon question, attack entered failed to con- prisoner a state whether ineffectiveness advice of counsel. sider of counsel or representation respect 7. With to his took no action Trahan’s until behalf he payment attorney regarding Divine he had ever placed denied insisted a call continuing prerequisite of a fee as a to his birth certificate sometime after Au- representation 29, that his whereupon of Trahan and insisted gust he learned that Trahan had representation the time had not terminated at guilty. pleaded However, guilty plea. he admitted of the

1313 deprived coercion prosecutorial certain that on remand these certitudes are character, understanding voluntary respected and abided. properly which were before it. questions Consideration of the state’s argument judicial post- erosion of the Despite some begin must with a solemn reminder from relief available to those who conviction Supreme Court in Townsend Sain, v. guilty, questions these are within the 293, 311-12, 372 U.S. 83 745, 756, S.Ct. 9 rights constitutional which re-

residuum 770, L.Ed.2d 785 (1963): Therefore, agree inviolate. I also mains in The whole history of the writ —its majority’s judg- decision vacate the unique development a construc- —refutes below and remand the case for find- ment tion of the federal courts’ habeas corpus believe, questions. those ings on powers that would assimilate their tasks underlying that the factual nexus both the to that of of appellate courts review. erroneously issue reached and the two that The function on habeas is different. It is should have been decided properly makes to test way of an original pro- civil legal questions to be re- definition ceeding, independent of the normal chan- Consequent- less than automatic.8 manded nels of rеview of criminal judgments, deem it a worthwhile exercise at ly, I very gravest allegations.9 in some detail to comment on the point given findings to be the fact made in effect great While writ has tremendous cor- proceedings habeas and to power, rective it has never been viewed as parameters to legal resolving be observed limitless. Townsend, Even in the Court remaining issues. recognized state-federal comity and the judicial conservation of resources as rele- Presumptive III. Correctness of State vant jurisdiction. exercise of habeas Findings Fact Congress attempted to implement these in its concerns 1966 In order to exhaust available reme- amendment to the stat- dies, providing appellee sought first collateral relief in ute federal corpus habeas relief judge prisoners, courts. The state accom- Texas to state 28 U.S.C. 2254.10 § Un- 2254(d), his denial of that relief with find- der panied then § added to the statute, ings Appellant findings here claims the of fact of fact. made a state court after hearing presumed erroneously disregarded those are district correct in federal findings granting proceedings, the writ. The record habeas unless the district court present finds unequivocally does not demonstrate one of eight enumerated ex- ceptions the trial has abided the certitudes which relate to the fairness and surrounding findings adequacy the state court’s of the state fact finding proce- conclusions; obligation this court’s is to be dure.11 An applicant for corpus can majority I do not understand the to contend Townsend, 9. The court in faced with the recur- judge a federal must habeas court ring problem power judges of federal of a and the effectiveness of voluntariness try corpus issues of pro- fact anew in habeas atmosphere completely advice in an counsel’s ceedings, outlined the situations in which a preceded of reference to events sanitized entry evidentiary hearing federal would be mandato- Tollett, plea. The lesson of and of ry. Brady trilogy originated, Brady whence States, 742, 397 U.S. 90 S.Ct. United 2, 1966, 2, 10. See Act of Nov. § 80 Stat. 1105. Richardson, (1970); McMann v. L.Ed.2d 90 S.Ct. 25 L.Ed.2d 763 only exception potential 11. The relevance Carolina, (1970); Parker v. North 397 U.S. appears 2254(d)(8), be 28 § here U.S.C. mak- (1970), is that presumption ing inapplicable to determina- rights prior of constitutional to a violation of fact which the tions on consid- provide independent does not basis for fed- whole, eration the record concludes are Tollett, supra, relief. eral collateral fairly supported. excep- Discussion of the opinion 1608. The remainder of this 12, infra, accompany- significant tion follows at note part relationship address the will pre-plea text. events and the issues of vol- between and counsel. untariness effective

1314 (5th 479 1973) F.2d 446 Cir. showing upon (consistency presumption the rebut pre-trial a state court de between a witness’ statement and evidence convincing possibility This testimony question); was erroneous. trial is mixed Walk- termination cases. Caldwell, in all See open (5th 1973) remains er v. 476 F.2d 213 Cir. rebuttal of Rose, 93 410 U.S. counsel). (effectiveness v. Delle of LaVallee (1973). 1203, 35 L.Ed.2d S.Ct. The federal district court is not to defer court resolution of to state such issues. Questions Mixed Findings: Conclusory A. Rather, obligation of the federal “[t]he Fact and Law of judge opposite: is the apply proper the court “determined” habeas The state federal constitutional standards based on guilty volun- pleaded 29 Trahan August facts, underlying although the conclu- of assistance with the effective tarily and from the may sions drawn facts differ from relate these conclusions Because counsel. the state court’s conclusions.” West v. Lou- fact, law and how- of questions mixed isiana, (5th 1973) 478 F.2d Cir. to the section ever, not entitled they are part, in relevant affirmed 510 F.2d 363 of correctness. 2254(d) presumption (1975) (en banc). remand, therefore, is to review district the state court Townsend, supra, prior to decided and the evidence 2254(d), record introduced in feder- that added section amendments and independently al court resolve the is- scope of consideration of its qualified of effective assistance of sues counsel of fed- and fact-finding power independent voluntariness. as follows: courts habeas eral of fact and questions mixed So-called Findings Specific B. of Fact: The Death application of law, require which Question Penalty deter- the historical-fact legal standard minations, sense to not facts may are The district [the no disregard we means Texas court’s findings refer]. In contrast to the of fact. conclusion on a at n. Townsend, supra, 372 U.S. question law, of fact mixed “specific at 783. The deci- 9 L.Ed.2d facts found historical a state habeas subsequent to the 1966 of this sions (such what as actually did language of have followed amendments client), to for his which a standard of law is resolution of held that Townsend deciding applied question mixed of fact constitute a question does not a mixed such law, 2254(d)’s do merit § presumption entitled to fact determination óf correctness in a federal Hopper, proceed- v. su- 2254(d) Lee presumption. § Balcom, v. ing.” Mason supra, 531 the instant case: F.2d at directly to speaks pra, 722. Trahan has levied no challenge to the effective the issues of assistance Since fullness or fairness of the state hearing present ques- mixed and voluntariness Unless the below.12 district court par- finds fact, since such lawof tions ticular determinations not fairly supported within fall section do questions record, by the see 2254(d)(8), correctness, § Texas 2254(d)’s presumption specific court’s fact findings are therefore constraint under no court was entitled to the presumption correctness, state conclusions. to the defer by convincing rebuttable evidence. very has This court F.2d at 462. While it would be position its recently overreaching reaffirmed and no catalog doubt wasteful to counsel in connection the specific effectiveness find- ings is a mixed state court prisoner’s entitled to the a state sec- 2254(d) 2254(d) presumption, tion pre- I do question subject to the find it appro- § Balcom, priate F.2d to comment on one sumption. Mason v. critical factual 1976); Heyd, whether (5th see also Davis issue: the time of his presumption Consequently he has raised no correctness listed exceptions 2254(d)(l-7). presence one § understanding that because of youth’s not receive the knew he could guilty plea, age, he could not receive the death penalty. he had been under penalty because death alleged rape. the time of sixteen To rebut conclusions, state court’s Trahan offered the federal district court that, by court found Texas habeas only deposition Divine. did know he time of the deposition, That based on April Divine’s subject penalty the death re- meeting with both Trahan Woods, of intent of the state’s motion gardless presented appellee as confused and scared vigorously it. That contested conclu- seek regarding the death penalty, and took the in the state supported does seem sion position that Divine’s one session of coun- record. seling youth had not removed ei- (Divine ther fear deposi- confusion. First, the state habeas court resolved con- 28). tion Divine also claimed that Woods flicts in testimony against Trahan.13 had demonstrated an intent to seek the Federal habeas review may accordingly penalty, regardless death age. give weight no testimony to Trahan’s court, perhaps The district mindful of state tribunal. 2254(d), section relied at least part deposition in Second, commenting testimony of Woods and Car- there “significant was a possibility” that fear of ter, еquivocal occasionally while self- the death had formed one of the contradictory, provide does a basis for the guilty plea. bases for the Given its resolu- regarding court’s knowl- conclusion tion of Trahan’s habeas petition, the court edge. While Woods declined several direct never had below to resolve ques- this fact say invitations had himself told Tra- fully. tion more It is unlikely, however, youth han the could not receive the death observations Divine, whose last that, penalty, testify August he did at his contact with Trahan or the meeting presence with Trahan outside the plea was in April, could constitute counsel, already of defense the accused convincing evidence rebutting knew that life was the maximum available finding that Trahan knew the penal- death punishment. initially Carter indicated that ty inapplicable, a finding based on the simply he had advised Trahan that the state Carter, testimony of the district attorney, possessed overwhelming against evidence and Trahan themselves. seeking him and that it was pen- While this great court accords sanctity to alty. during He added an increasingly in- findings court, of a district we must cross-examination, temperate however, also be certain that the trial court not over- he had further advised Trahan that what grоund rules which step the describe the seeking the state was made no difference respect that all federal habeas courts must and that he had informed Trahan of his accord state court fact findings.14 Under findings 13. The state court’s of fact include a 14. The standard which we are to review the general testimony rejection resolution of conflicts in the district court’s of the state fact find against ings and evidence Trahan and for the state. is unclear. Wainwright, Shuler v. finding unworthy (5th While that Trahan was 1974), F.2d 1213 we found the district presumed 2254(d), belief is correct under improperly rejected note § court had state fact find Mason, supra, ings 2254(d) that in where the state court had under indicating § without a stan credibility review; moreover, made tion, similar blanket parties determina- put dard of disagree this court found reason to solely case before the federal habeas upon that assessment but commented in the alterna- the state record. While a district casé, may “In 2254(d) tive: the District Court was not presumption find the section re required credibility to strain to transform this holding evidentiary without hearing, butted an findings binding Brown, Heyd into a (5th choice set of fact Cir.) see 406 F.2d 346 cert. upon denied, it.” 531 F.2d at n. ‍​‌​​​‌‌​‌‌‌‌‌​​‌​‌​​​‌​​​​​‌‌​​​‌‌‌​‌‌‌‌​‌​​‌​​‌‍9. In areas where 396 U.S. 90 S.Ct. 24 L.Ed.2d 69 specific findings, (1969), the state court not make did at least in those situations where the knowledge regarding unlike Trahan’s the death overturns a state fact determina penalty, put the blanket resolution newly does not put tion on the basis of evidence before finding process end absolute fact we would be inclined to treat remand. finding the federal court’s determination as a rules, deposition Divine at 7 (1961): L.Ed.2d 78 ground those overturning reasonably likely “counsel to render possibility and suggests most rendering reasonably plea way in no effective assistance.” finding Herring, supra, (emphasis 491 F.2d at 127 in penalty. of the death any fear resulted original). The Herring court went on open to the district It remains view this standard in the plea set- convincing evidence dem- whether consider ting: that, youth although onstrates Reasonably plea time of the effective at the assistance is an answered easier standard meet in the could not be context of the death knew he trial, in guilty plea a than a but was such that he counsel state of mind his imposed, competent must render still service. It is rationally upon act could not simply lawyer’s duty ascertain if the some fear of the but retained knowledge, voluntarily is entered and knowingly. spectre of execution. actually He must and substantially assist lingering aspect of this one Apart from in deciding his client whether penalty in Trahan’s the death the role of guilty. job It is provide the ac- remand must examine the court on ‘understanding cused an of the law in of coercion and the alleged sources other relation to the facts.’ ineffective counsel. would now claim of Smith, 491 F.2d at 128. In Colson v. 438 guidelines par- briefly areas of demark (5th 1971), 1075 F.2d Cir. previously we had per- in the instant case significance ticular commented on one result of Supreme legal to those issues. taining restriction grounds Court’s for collat- upon attack guilty plea: eral “one cannot Effectiveness Counsel IV. Supreme read the opinions Court’s in frequently court has concerned itself This McMann, Parker and Brady, supra, without representation level of to which with the being impressed by the significance the fourteenth amendments en- sixth and attached to the role Court of counsel in the prisoner contemplating title a state deciding process plead.” how to Id. at point At some the ineffective- guilty. in (emphasis original). 1079 a guilty plea; of counsel invalidates ness judge The trial must in the first instance is, quality “if the of counsel’s service general apply these standards to Carter’s level, a certain minimum below falls through as viewed conduct the state habeas knowing cannot be client’s record, deposition, the Divine addi- voluntary represent because it will not tional evidence. On the outcome of that Estelle, Herring choice.” v. 491 informed application I intimate no view. Counsel’s (5th 1974); Mason, supra, 125 Cir. see F.2d in a of guilty accession after a confer- F.2d at 725. 531 very ence of short duration and a mere Admittedly it is not difficult to receive a scanning prosecutor’s must, file how- counsel, grade as effective but the passing ever, be viewed with some skep- disdain and sub-par category. curve does have a legal prosecution’s ticism where the recommenda- supra, synthesized Herring, response tion imprison- is life and refined its formulations of effective year ment for a seventeen boy. old Resolu- starting high It found the assistance. tion of the effective counsel issue will Ellis, 280 point in MacKenna F.2d necessitate the nevertheless consideration denied, factors;15 (5th 1960), cert. 368 599 Cir. number of of a in remanding, only clearly developed length

fact to be reversed if erroneous. 15. those Besides infra, 52(a); Wright text, cf. v. North Caroli these factors will See F.R.C.P. include the follow 1973) denied, na, (4th Carter, ing: spent by F.2d 405 cert. the amount 483 Cir. of time dispositive, 415 U.S. L.Ed.2d factor itself cannot be see Caldwell, (1974) (district (5th determination that state Walker v. 476 F.2d 213 Beto, 1973); finding supported (5th Cir.), in the record not fact Lamb v. 423 F.2d 86 denied, “clearly еrroneous”). cert. 400 U.S. (1970); Smith, O’Neal v. 431 F.2d fences; result, as a two areas of comment on had allegedly I would advised issue—Carter’s “relatively young” particularly defendant that a trial performance penal might the difference in a result regarding 90-95 year advice sentence when pleas guilty and between in fact maximum consequences On this ad- un- effect of Trahan’s defendant plea agreement vice entered a dis- which he faced bargaining session under counseled maximum sentence years. Though attorney. of 25 recognized trict every item of misinformation Regarding Sentenc- and Effort Advice A. the vitiate would plea, voluntariness of a the discrepancy found that here amounted to ineffective assistance of counsel. The States, 461 F.2d 530 v. United Cooks court borrowed from the definition of vol- 1973), we the conviction (5th vacated Cir. untariness formulated by Judge Tuttle in plea entered after upon based States, v. United 571, 572, 246 Shelton F.2d a trial the defendant that attorney advised (5th 1957) (en banc), n. 2 Cir. rev’d on year ten sen- in six consecutive could result of error grounds, confession on other 356 precedent the acts clear that despite tences 78 U.S. S.Ct. (1958), L.Ed.2d 579 support one such sen- only would alleged adopted by the Supreme Court in Bra- advice, had the defendant On thаt tence. States, 742, 755, dy United what he expecting receive pleaded 1463, 25 (1970), L.Ed.2d 747 in con- significant when it bargain, was a thought “in cluding order voluntarily, punishment the maximum in fact was must know the direct conse- defendant imposed. been The court which could his quences including ‘the actual theory the the conviction on vacated ” any value of commitments made to him.’ misleading of coun- statements “significant Hammond, supra, 528 F.2d at 19. The to a level of denial of due rise sel can found the erroneous advice had so law and result in a vitiation process exaggerated benefit to be obtained of ineffec- proceeding because judicial pleading guilty as to render the F.2d at 532. of counsel.” 461 assistance tive involuntary.16 trilogy, we Brady with In accordance not be a for- that “counsel need recognized Although findings the state pin- do not teller,” we did that he be require but tune role, do, they adequate Carter’s with point competent legal ‍​‌​​​‌‌​‌‌‌‌‌​​‌​‌​​​‌​​​​​‌‌​​​‌‌‌​‌‌‌‌​‌​​‌​​‌‍historian.” reasonably “a support, indicate Trahan informed of “[ejffective This court Id. concluded availability of the penalty. See of and ad- have been aware counsel should B, supra. part Capital punishment, III. of, minimum, the the defendant at a vised subject is not only is, the maximum maximum —that impression regarding mistaken sen- possiblе then understood.” Id. as the law was tencing for which might Carter be held evidence, responsible. Despite accepted by Fourth Circuit followed Cooks States, 528 F.2d 15 habeas v. United re- Hammond that Trahan 1975). sought there had made (4th peatedly Counsel information from the dis- Cir. regarding possibility and Carter error trict about the actual similar sentence, consequences sen- life penal convictions and consecutive Car- separate 1970); specifically (5th of the evidence nature court. The found that Trahan; proceedings complied of his had against Carter’s confinement with Rule 11 attorney’s investigation file and' the case and viewed rather as one where “there Trahan, omitting any inde- was ineffective assistance counsel and a lack consultation pendent or co-defend- contact witnesses because it was not of voluntariness Mason, generally supra, made”, understanding^ citing 531 F.2d at See Ham- ants. Cooks. mond, supra, The list is not to be exhaustive. meant F.2d 724-25. at 18. Cooks itself indi- applying standards. constitutional it was cated Cooks, supra, 461 at 532. Thus the neither it nor F.2d Hammond makes clear that apposite peti- gov- are instant rests Fed.R.Crim.P. cases Cooks involving prisoner. acceptance guilty pleas in federal a state erns the tion Second, the had advised Trahan of record does that he ter substantiate confessed consequences prosecutor those ignorance of his total had intention of absolutely no effort made obtaining any parole he had adverse consequences and that knowledge. In what they Rather, that lack been to correct available. he was good emphasis faith undoubtedly a solely interested in obtaining one life sen- merits of the ferret out the duty to willing tence and was prosecute testified, case, he “I wasn’t prosecution’s on more than the charge necessary, if get.” the time about concerned until he obtained one. Regardless of Texas law, therefore, parole Carter should not of this lack of informa- consequences achieving have felt he was anything other The state has inquiry on remand. tion bear possible punishment than maximum below, attempting to here and maintained his client. would enter a explain why anyone spec- absent the in these circumstances Finally, the support record does finding execution, agreement tre of Carter received adamant assurances charges against four the other prosecute from the that his minimum rec- possibility of consec- eliminated ommendаtion would be a life sentence on which would have carried sentences utive charge agreement and an not to A parole consequences. few fac- adverse prosecute charges. the other Such a find- suggest a minimal amount of ef- that tors ing indicates that plea further bargaining him, have revealed to by Carter could fort might have Carter, been to no avail. how- attorney’s that the district recom- ever, never confronted Woods with the as- or no “actual bene- carried little mendation stacking sertion that consecutive life sen- could easily a revelation have fit”. Such tences would have no adverse affect on a client found to be so affected the Trahan. While the attorney’s district focus with the amount of time he preoccupied obtaining single a life sentence would serve.17 suggest that this might revelation not have recommendation, affected his First, one it is not clear that this avoided cannot be might certain what have followed parole consequences. Regard- adverse from the sentence, attorney’s learning length of a Texas law that Trahan less nothing he had prisoner eligible parole a for after knew to lose pleading makes not twenty serving years guilty. or one third of his Whethеr or not Carter could have sentence, 42.12, prosecutor, whichever is less. See Art. explore moved did fail to provision, any potential arguments V.A.C.C.P.18 This in ef- Sec. court in plea, might fect at the time of Trahan’s favor of lenient treatment for his client. substantially prosecutor’s undercut the at the sixteen time of the alleged power.19 offense, bargaining was the youngest of the co-defend- agree provision. Rodriguez Estelle, would no doubt 17. This court 536 F.2d every regard- (5th 1976). Hammond court that mistake 1096 Cir. ing discrepancy possible punish- between pleas guilty guilty ments under and not can duty Placing 19. on counsel in some circum constitute ineffective assistance of counsel. familiarity parole stances to have some weigh a court should a mistake to see if Rather consequences contrary is not to Herrera v. significant there is likelihood it caused a States, (5th 1975), United F.2d 143 or change guilty. defendant a not States, Trujillo (5th v. United 377 F.2d 266 balancing ap- has followed denied, This court such a Cir.), cert. 389 U.S. proach considering analogous in area of the (1967). Those cases held that a required by disclosure Fed.R.Crim.P. judge parole consequences need not disclose punishment available under the ac- maximum charge Rule 11 in connection with under charge pleads guilty. tuаl to which defendant pleads guilty; they defendant did not Woodall, States v. 438 F.2d 1317 See United understanding confront the issue of how much 1970) (en banc). (5th Cir. attorney supply an must a defendant of the punishment degrees might relative fol recently upheld, against particular charges 18. This court has low a and a 1,500 challenge, year might eighth trigger sen- amendment of not other parole charges. for heroin sale because of this tence consequently entertained, must have argument not an raise Whether ants. is un- these facts that must be addressed anew lay in leniency relative ever no one known; legal is that the trial court consonant with the is known what on Trahan’s attempted one we have expli- to articulate standard which attempted less blind, To ask would be to cate. turn a behalf. hypocritical, eye on if not the real situations rule that the behav no means I would of many desires criminal defendants. ineffective constituted above ior described Rather, simply sug counsel. assistance Actual Appropriate B. Advice as to an are relevant concerns these gest Plea case description, the own Carter’s issue. noteworthy factor is in assess- against One other overwhelming evidence one of counsel in the defendant; spe- the effeсtiveness was most interested of this case. of alternative cial circumstances This consequences penal emphasized recently has the effective has observed First Circuit pleas. States, requires only 479 F.2d counsel standard v. United Correale 1973): an attorney whatever efforts makes on be- (1st Cir. client be of a quality half of a certain but is dis- plea bargain Particularly when “actually also and sub- cussed, sentencing becomes and hence assist his client concern, stantially deciding it is incum- preeminent client’s plead guilty.” whether See Walker v. acquaint himself or counsel to bent Caldwell, supra, 476 F.2d at Specifi- alternatives with all the available herself Walker, cally, in the defend- consequences among listed their adding up several factors to ineffective as- liberty and rehabilitation.20 ant’s attorney’s actually an failure to sistance to at- found the failure circuit has This an illiterate defendant advise whether or relevant factor plea bargaining a tempt plead guilty. to While the not courts must calculus. See assistance ineffective in the certainly guard against the coercion of 724; F.2d at Walker v. Mason, supra, pleas by counsel too guilty concerned with Moreover, Caldwell, at 222. supra, 476 F.2d schedules, Louisiana, see Hora v. own their attorney’s recently listed a defense we have (5th 1974), they must 495 F.2d 1248 also or witnesses present character to failure to circumstances that call for coun- be alert beg to for right of allocution the exercise his client impart to to more than an sel rendering those derelictions leniency among case, of the factual the nature explanation to an assistance lawyer’s ineffective charges, and the benefits bur- of record. See old with no eighteen year remand, guilty. On pleading of dens Mason, at 724. I need supra, 531 F.2d aspect consider this of trial court should would follow how far this court predict in the unusual circumstances role counsel’s First Circuit Corr- stated principle presented. cases in this Cir- with the éale. Consistent however, hearing, Carter ex- cuit, find some minimal At the state I would practice his conse- was to advise penal plained with the actual acquaintance factual strength of the state’s range of sentences to clients of of quences applicable of light law and then to guilty plea, as well as a guilty case them to make their explo- small own decisions as subject a client and some allow may plead they to the extent were returns of bar- to how possible of ration prаctice certainly While is leniency capable. to be inte- arguing gaining cases, general run of provision of commended salutary parts be gral doubts remand should consider penological the trial counsel. effective light in the instant case in adequacy which the accused its counsel here ascribed to attorney’s shall be the one-third of the maximum sentence implied in dicta that an The court sentence, possible year greatest minimum could sentence was that a 4 to 8 to know failure provides assistance. amount to ineffective illegal, a federal statute because tions it had been motivated a prior and, importantly, more age the defendant’s confession, coerced unless counsel’s failure with the district session uncounseled his question had constituted inef- to raise days prior three attorney only two to assistance, the court was careful to fective appointed.21 which Carter date on trial out that theirs was not the situation point knowing may plead well A defendant “where the circumstances that coerced the nothing in terms of his gain little or he will abiding impact confession and also strength simply because of sentence McMann, plea.” supra, taint is When that defendant case. the state’s at 25 L.Ed.2d at 771. at just emerged, ready to has seventeen Carolina, in Parker v. North Similarly, su- a meet- consequences, from those pra, 397 U.S. S.Ct. at at which defense ing observed: present, may counsel was not . Even if the confession should beyond a go upon incumbent involuntary, found have been we cannot relatively passive characterization alleged believe conduct of the ferreting out to a more active state’s case during the police interrogation period agreeing reasons the defendant’s was of such nature or had such endur- able to Only then will he be plead guilty. involuntary effect as to make plea is on the assured the based rest guilty entered over a month later. case and not on some strength of the state’s water, soon had food and Parker the lack misunderstanding or fear that arose out of remedied, was immediately of counsel bargaining session. untutored ample opportunity there was to con- significance alleged sider the Plea: Other At- Voluntariness of V. promises. tacks threats, misrepresentations, No or promises ineffective counsel itself de- Although the alleged interroga- had followed coercive requisite understanding prives tion, and the defendant had had the advice volition, may also render other sources family and counsel for a month before involuntary. plea.23 entry of his The court concluded con- completely counsel cannot effective connection, any, if between Par- “[t]he voluntariness, as one can easi- that of sume ker’s confession and his in which some mis- ly imagine a situation attenuated as dissipate ‘become so could by prosecutors or police conduct 796, 1462, Id. at at taint.’” S.Ct. yet plead guilty go to a defendant coerce plea at 791. Thus must be scruti- attorney who nevertheless by undetected nized for involuntariness as well as ineffec- relatively the lax standard of effective met counsel, though of tiveness the latter of assistance.22 plea involuntary. will render course The indicated as much in Supreme Court not blind possi- must themselves to Courts Brady trilogy. holding In that an oth- the out of an abundance coercion of caution ble criticizing practitioners could not be admittedly valid of the erwise in imperfect science proceedings by asser- of law.24 impeached in habeas alleged 23. The defendant he had been as to Carter 21. The record is unclear whether unspecified help promised agree- in return for any source as to this received information from guilty. ment to mеeting. the effect of that session on On plea without re- the voluntariness of Trahan’s 24. the comment in Tollett that a Were state counsel, V, gard of see Part to the effectiveness “may only prisoner voluntary attack the infra. intelligent by plea of the character show ing that the advice he received from counsel was not within the standards set forth in speak here; hypothetically any 22. I McMann," Tollett, conclusion supra, 411 U.S. at by agents as styled to conduct state in this case must 36 L.Ed.2d at not S.Ct. by principles Brady be drawn in the first instance the district “reaffirmation” of the of the might court, trilogy, by be a suggest any particular it troublesome indication and I no means completely merged ques- that the Court has the one. difficulty, without that he remained fearful should con- remand, the days despite having three of the death been penalty two or whether sider that it any inapplicable coercion it was in his cured informed of Carter advice the dis- from open have resulted It also remains case.26 might find Trahan however, with prosecutorial consultation attorney’s to show that some trict finding below the court’s overreaching, penal- unrelated to the death While alone.25 “ratifica- obvious plea bargaining the constituted ty, occurred at the uncounseled Woods with agreement reached subsequent plea. of an and tainted the I tion” session pres- the outside meeting conducted express opinion no as to the ulti- at the of course more, not, without of counsel ence mate resolution voluntariness dis- involuntariness, the that, finding of simply as a state as delineated pute. stand of the above, the voluntariness dispute legitimate assess remains a court should one ready apparent light upon plea. of Trahan’s attack this plea in in collateral punish- the maximum accept agreement CONCLUSION law or desired available ment Trahan’s regardless sum, correctly district court chas- Carter, advice offered degree attorney speaking district Woods for tised assess- not. That or “effective” whether in the absence of Trahan defense with as at a conclusion aim should ment concluded, however, incorrectly It counsel. simply on entered Trahan whether dialogue, apart viewed alone and due to case or of the state’s strength subsequent accompa- and the arising out misapprehension unabated some counsel, justified the grant advice of nying session. bargaining uncounseled of the join the the writ. Thus I decision to determination of and remand for a vacate re- existed any misapprehension That effectiveness of Trahan’s counsel and very has been garding light the voluntariness findings dis- by the foreclosed largely proceed- found in the state habeas facts as this source supra. On III.B. part cussed ing by appellee. as rebutted Of course coercion, is limited alleged bargaining may session uncounseled proposition, for the adducing support Though incorrectly district and effective assistance. tion of voluntariness bargaining whether the reached follow- did indicate was absence of defense counsel vio- cases, began session Brady its and it line of rights, it com- constitutional lated guilty pleas attacks on collateral discussion correctly pletely rebuked the “[fjocus of feder- that the the observation with meeting. participating in such See ABA of the advice inquiry the nature is al habeas Justice, Project for Criminal on Standards plea, not the exist- the voluntariness (Tentative 4.1 Draft Function § Prosecution constitutional of an such antecedent ence 1970): unprofessional pros- “It is conduct for a Tollett, supra, infirmity.” 411 U.S. at engage directly discussions ecutor (emphasis at 243 36 L.Ed.2d by counsel, represented who is an accused presence added). or absence While also, apрroval.” except counsel’s involved, system- there claim constitutional Responsibility DR of Professional ABA Code grand jury, from a of blacks exclusion atic (A)(1). 7-104 impact certainly on a defend- have an plead, it does to how decision as ant’s to find that Trahan 26. Were the district overreaching prosecutorial type present penalty although the death a fear of retained capacity of his the defendant would rob imposed, not be been informed it could decide, might of a confession the coercion as follow. involuntariness would conclusion agreement unearthed never on terms oft-rejected claim that a is not the This attorney. not face the Tollett did defense capital punishment avoid is entered to type violation of constitutional involuntary nugatory. reason alone abiding impact also might “have Alford, 25, [an] v. North Carolina McMann, supra, at plea,” 397 U.S. 162, (1970). taint Here Trahan 27 L.Ed.2d appre- and it 25 L.Ed.2d resulted from that a claims having placed punishment, a defend- not ac- that ultimate not be read should hension circumstances, small, might po- tually under the every egg if available in the rather ant’s rous, otherwise follow. effective counsel. basket of had on any effect be divorced subsequent counsel’s

adequacy defense subsequent voli- youth’s or the

performance prosecu- between The confrontation

tion. relevant remains most accused

tor and left to below. inquiries

both of this remand to make not understand

I do dream Trahan: impossible writ certain ‍​‌​​​‌‌​‌‌‌‌‌​​‌​‌​​​‌​​​​​‌‌​​​‌‌‌​‌‌‌‌​‌​​‌​​‌‍that a must, rests on the the writ grant

conclusion precedent of attack grounds

limited in the result announced I concur

allows. majority. America,

UNITED STATES

Plaintiff-Appellee, BUCHANAN, C.

James Defendant-Appellant. 75-3749.

No. Appeals, Court of

United States

Fifth Circuit.

Jan. Banc Denied

Rehearing Rehearing En 14, 1977.

Feb.

Case Details

Case Name: Wesley Trahan v. W. J. Estelle, Director, Texas Dept. Of Corrections

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 10, 1977

Citation: 544 F.2d 1305

Docket Number: 75-2805

Court Abbreviation: 5th Cir.