Blackledge v. Allison – Oral Argument – February 22, 1977

Media for Blackledge v. Allison

Audio Transcription for Opinion Announcement – May 02, 1977 in Blackledge v. Allison

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Warren E. Burger:

We will hear arguments next in Blackledge against Allison.

Mr. League you may precede whenever you are ready.

Richard N. League:

Thank you your honor.

Mr. Chief Justice and May it please the court.

I am Richard League from Raleigh, North Carolina to argue this case for the petitioners.

This case had hopefully involves a long-shot in the criminal justice process, possibility of a broken plea bargain.

The case began back in January of 1972 in Alamance County, North Carolina.

At that time, Gary Darrell Allison entered a plea of guilty to a charge of safecracking or attempted safecracking.

In accordance with our state procedure, he was examined to determine whether or not his plea was a voluntary and intelligent act and as part of that proceeding, he was asked several questions.

One of which determined that he knew the maximum punishment for his crime.

Another was designed to determine whether or not there had been any promises made to him in order to secure his plea.

He said that there had been.

At the conclusion of this proceeding, the trial judge accepted his plea and entered a sentence of 17 to 21 years for the offense.

Sometime after that, he began Post-Conviction proceedings in the State Court and ultimately, in March 1973 filed an application for writ habeas corpus with the United States District Court for the Middle District in North Carolina.

In that writ, he alleged that his plea had been induced by a promise of ten years by his lawyer.

This of course was opposite of what he told the trial judge and he told him that no promises had been made to secure his plea.

At first, the District Court dismissed the writ then it reopened the case and after some correspondence with the petitioner about substantiating his claim, he claimed that he had a witness to his lawyer’s offer to him of this ten-year sentence.

The district court again dismissed his claim for failure to supply an affidavit with regard to this.

On appeal, the Fourth Circuit reversed the District Court and held that a form of inquiry was used addressing the accused to determine whether or not any promises had made and was non-reliable way to go about this and also condemned the District Court’s attempt to have the matter substantiated by way of Affidavit.

We are here before you today to assert as a central thrust of our argument that the Townsend v. Sain, authorized the District Court to accept the State Court findings on this manner that there were no promises made for the petitioner’s plea and to adjudicate this habeas corpus petition on the basis of that.

As far as reliability goes, there has not been much law developing in this aspect of the decision in Townsend v. Sain or the statute that declares the law with regard to it.

But it was a sworn proceeding that somewhat differentiates it from those Rule 11 enquiries as I understand them.

It is a proceeding in which the petitioner himself solely testified.

It was also a proceeding that covered the matter involved whether or not there had been a promise for his plea.

With regard to the attacks on this type of enquiry, I hope that the court will understand them to be a largely matter folklore rather than fact.

It developed from impressions made I believe in the Metropolitan Northeast in the mid 50’s and the early 60’s.

To some extent, they are based on a study done in the Midwest in the 1950’s.

I think a misinterpretation to that study.

A gentleman named Mr. Newman who was frequently quoted with regard to the matter of guilty plea has observed a series of arraignments at that time and found that in none of them did anyone answered to response about promises say that the District Attorney promised him a sentence.

That of course I do not believe.

Richard N. League:

It is a remarkable observation because you would not expect that.

Certainly, you would not expect it in North Carolina.

I would say to you that whatever validity that these observations and attacks on this type of proceeding that use had at one time, they are pretty far removed in time and space from North Carolina in 1972, the time of course, when Allison entered his plea.

Since that time or between that time 10 to 15 years time difference we had the Brady decision by this Honorable Court which specifically incorporated as the part of the definition of the volunteer civically.

Knowledge of the actual value of commitments made to an accused by this day and of course that was picked up and some of our cases, well before Allison’s plea.

One of the reasons asserted for finding that the enquiry was not reliable made by Mr. Goldsmith, was that the word “promises” was the one that was capable of being narrowly construed by a lawyer with regard to his client or in advising his client and the client would therefore say that there were no promises to him, and although he was aware of a deal, he would not concede that as a promise.

But I believe that that is incorrect.

I believe that ordinarily, you would expect a man no matter how the matter was phrased, no matter whether the word promise was used to him or not to conceive of a deal as a sure thing.

They conceive of it in terms of a promise whether or not that word was not used.

Also, another reason given for not accepting the State’s proceeding in this case was the fact that a man might not speak up.

He might not admit in court to either there was a bargain or that, after it was breached that it was breached, he would for some reasons stay silent.

But again, I would ask your Honors to recall that man you are dealing with and not especially assorted people.

They were after all the men who will rob you or kill you or assault you and you can certainly expect that a fair number of them would not speak up and certainly, we were able to find a few instances out there and have included them in our brief.

With regard to this particular matter, I think that if the court were to depart from Townsend v. Sain and were not to allow the District Court to accept State Court findings in this context but significantly undercut one of the basic reasons for two of its subsequent cases, in McCarthy Case and the Boykin Case, certainly, one of the hopes behind each of those cases was to cut down post conviction work or to expeditiously handle it.

Other courts go by the board and do so for a type of claim that I do not think that a lot of people give much credence to.

In Machibroda of the United States, this court did not describe this type of claim in very high terms.

The Courts of Appeal who have looked at it and a number of them are even in remand for hearing have indicated that they did not think that it was very high likelihood of the success with regard to the matter below, at least from the petitioner’s point of view.

General League, can I just ask one question?

Richard N. League:

Yes sir.

Is it your position that if the record does contain a statement by the defendant that no promises were made, that’s completely is the end of the matter?

He may not ever come in later and say that the reason he said that was because his lawyer told them to.

Richard N. League:

Your honor, largely unless they can come forth with some evidence, that is our position and that is comprehended by the Townsend v. Sain.

That is before the hearing.

Richard N. League:

I beg your pardon.

Before a hearing, he has to bring in new evidence.

Richard N. League:

Yes sir.

Give some substantial indication of it.

Give me any other case where a man is required to make a valid allegation which if he proves he will win and he is required to bring in some affidavit from somebody.

Richard N. League:

Well, in any other case, it might be where he claimed that he had a new witness.

I would think that that would be the standard way of doing it.

Richard N. League:

Something that was not developed, previously, something that was not before the court.

And he just alleged that here, didn’t he allege that he had a new one.

Richard N. League:

Yes sir, but he failed to come across with any indicia of it as directed by the District Court.

He has to bring him proof before he gets a hearing.

Richard N. League:

Indicia of proof, of course at hearing he could introduce the –

What case do you have to support that?

Richard N. League:

I believe the Townsend v. Sain supports that genre.

The Townsend v. Sain was an independent hearing in the State Court.

Richard N. League:

I still believe is —

What is it?

Richard N. League:

As language in that case Your Honor about —

What are you going to do with Santobello?

Are you going to get to that?

Richard N. League:

I do not believe that Santobello comprehended the situation that we have.

Why not?

Richard N. League:

It just does not deal with the matter of him contradicting what he said under oath on the basis of the State Court finding.

Well, how about Fontaine?

Richard N. League:

Fontaine is a case, Your Honor, where indicia of new evidence was demonstrated.

Did he have to bring in a witness?

Richard N. League:

Ultimately, to prove his case he would have.

Yes, but this, he had to bring in a witness before he got his chance to start to begin to get ready to prove his case.

Richard N. League:

A statement from the witness Your Honor, under oath.

Well, where is that that he had to get the — give me a case that said that when you file a pleading in the court, you have to get affidavits from other people before even you can get to hearing.

Richard N. League:

That is just an acceptable technique of the District Courts.

It not mandated, it stems from—

If it is an acceptable technique, where else has it been done?

Richard N. League:

I would not know.

How can it be acceptable if it is only been done once.

Richard N. League:

Well, it is authorized by statute, Your Honor.

I mean, I cannot isolate cases and tell you in Kansas in ’55 they did it or New York in ‘73 they did it.

Do you mean North Carolina legislature can legislate on Federal Habeas?

Richard N. League:

No sir, it is in the Federal Habeas Statute.

Federal Court statute says that you have to have an independent witness before you can —

Richard N. League:

No sir, it is that you can use affidavits.

If I have an affidavit, which Section is that?

Richard N. League:

No sir, I have relied on Townsend v. Sain for the probability and not for the allowance of the District Court to utilize this method, a newly discovered aspect part of that case.

What is newly discovered here, this is?

Richard N. League:

Well, it is newly discovered in the sense of that case.

Well, suppose he had filed a case and he said, I had my lawyer told me and the persecutor and attorney told me that I could only get 10 years and that the judge had agreed to it, would he have had a hearing?

Richard N. League:

If he just said that?

Yes sir.

Richard N. League:

Without any prior finding in State Court?

Yes sir.

Richard N. League:

As a lawyer I am —

In this very case, I am talking about.

Richard N. League:

He had a prior hearing, no sir.

If this very case, he had filed the exact same paper, but he had not said that somebody else was a witness.

Would that ever require a hearing?

Richard N. League:

No sir.

Why not?

Richard N. League:

Because the state had determined it and the District Court could use state’s time.

The state did not have to do anything.

Richard N. League:

Sir?

The state did not have to do anything.

Richard N. League:

And what point of?

Just when he files that, automatically —

Richard N. League:

Well, they could have dismissed it out of hand or they could have required us show cause because they would not had the state finding without asking to show cause.

Mr. League back up a little bit.

Now, in the Federal court this is a civil case, is it not?

Richard N. League:

Yes sir.

Governed by the Federal Rules of Civil Procedure, even though it arises in a criminal situation.

Richard N. League:

Yes sir.

Under the Federal rules of Civil Procedure, could the court direct a pre-trial hearing to explore the claims of a plaintiff in the civil case before setting it for trial?

Richard N. League:

Yes sir, it happened in one case.

Are you analogizing what the District Judge did here was to magistrate to what a District Judge can do in a civil case, a damaged case or any ordinary lawsuit of breach of contract in the way of pretrial exploration by the pretrial examiner if they have one or by the magistrate if they do not.

Richard N. League:

That would be an acceptable analogy.

Your Honor, I thought I would really in terms of a hearing without the witness present, a hearing on the basis of records alone it is sometimes described as a hearing though it is not the hearing in the same sense that you have to line-up testimony.

I believe that in some of the decisions on this court, a hearing has also been described in terms of a review without live witnesses, perhaps the earlier Habeas hearings.

Are you suggesting that this is comparable to the authority of the District Judge to require a plaintiff in a civil case to produce documents in advance of trial for purposes of expediting the trial when it occurs?

Richard N. League:

I believe it is, it is based in there.

In part like you say Your Honor on the Townsend v. Sain situation where a matter that has been determined once before, maybe reopened if there is an offer of new discovered evidence in a broader sense than that.

Would you agree that in a criminal case, that distinguished Civil Case, the District Judge would have no right to require the criminal defendant to make some prima facie showing about his case, showing his hand as if it were in his defense theory.

Richard N. League:

Yes.

Can you get me the case please where in a civil case a man was ordered to bring an affidavit of a witness before he could file his lawsuit?

Richard N. League:

No, I cannot.

I would speak just a little bit further Your Honor in that regard.

Of course the man did file a small suit here in advance.

The question was whether or not a prior determination should have been overthrown or at least reexamined and in common to that determination, there was a claim of new evidence in a broader sense and that somewhat used in several terms the judge merely said, let us see it in advance.

I think he had that discretion.

I think that it was invested in him by Townsend v. Sain or at least I hope it was.

In a somewhat comparable situation, it has been developed by the Congress with regard to Habeas generally an authorization to allow affidavits on the merits.

Conceivably, the judge could call affidavits from all parties and decide the case on that basis.

But he did not?

Richard N. League:

No, he did not.

The one phase in a previously – a statement by any other person contrary to what he said in court like it was with regard to the petition.

Going ahead then and in conclusion to my argument, I will just say that the District Court’s discretion in this type of case, I do not think has any less advice than any other.

Certainly the District Courts have practiced with some of these men.

They had them practice before them.

Some of the judges have been men that they practiced under, and they are able pretty much to decide whether or not a proceeding is reliable and hold a party because of the way it is conducted in that area, because of the prejudices of the judges about certain things or because parties are a little bit slick.

I necessarily would not think.

Can I ask you a question about the procedure followed in this case?

As I understand there was an appeal to the Appellate Court in the state system, was there not?

Richard N. League:

Not on direct review, no sir.

No appeal on direct review?

Richard N. League:

No sir.

In the collateral, when he attacked it collaterally, of course he fully exhausted by—

In the state post conviction proceeding, there was collateral attack and an appeal from that.

But in the appendix that you have filed, on page 11 there is a transcript of the plea in the Alamance County Superior Court.

How did that get into record?

I am just curious.

Was that an exhibit to your motion to dismiss or how did it get in the record?

Richard N. League:

It was filed by me in response as an exhibit with my plea.

It is part of your answer to the indictment.

Richard N. League:

The indictment to transcript and the commitment as I recall.

I see because your answer as I read it does not actually make the point that seems to be involved now.

Richard N. League:

No sir, it incorporated by this other answer done by another lawyer previously that the matter has been adjudicated.

That was their sole defense.

That the issue of guilt or innocence was adjudicated?

Richard N. League:

No sir, the matter of promises for a plea.

I see.

Richard N. League:

Should not be reexamined.

I think it is the thrust of a — I believe it is Mr. Haskell that did that answer.

I would go ahead if there were no further questions from the court and let that be my argument.

Thank you very much for your consideration.

I would just like to ask you one question about Santobello.

I am not sure I am too clear on factual situation there.

Was it correct that in Santobello there was no dispute about the fact that one of the assistant persecutors had made some representations, which he had not communicated to the other assistant persecutor, who then in turn did not disclose them to he court.

So that there was no dispute over the factual situation as we have here.

Richard N. League:

That is correct.

But you could not bring it out in this case.

Richard N. League:

I beg your pardon.

You could not bring that out in this case because you did not get it in here.

Richard N. League:

Well, the petitioner did.

Petitioner got a hearing?

Richard N. League:

The petitioner did get a hearing and of course we put forth our position on it.

Well, you do not know what would have come out if there had been a hearing do you?

Richard N. League:

No sir, I am not sure, but I can speculate with a fair degree of accuracy.

We do not know what the prosecutor did, do we?

Richard N. League:

As a matter of record, only on the basis of what the petitioner said, you know it from that.

He said no promises were made too him.

You mean what he said in court?

Richard N. League:

That is right.

So now, if it was a matter of fact that it was all true, the fact that he did say it in court and was told to say it, he could never bring that up?

Richard N. League:

Not without a substantial show in new evidence prior to getting a hearing.

Like what?

Richard N. League:

Like an affidavit from the witness that he claimed he had.

Well, suppose there is no witness there but him.

Richard N. League:

He is out of luck.

He is out of luck?

Richard N. League:

Yes sir.

Thank you.

Well, the only issue here is that whether or not there should be a hearing, is it not?

Richard N. League:

Yes.

That is the sole, single issue at this point.

Richard N. League:

Yes sir.

Now, I did suggest that some form of this proof might not entitle under relief as it is just between him and his lawyer, but that is not presently developed.

Whether he gets a hearing, depends upon whether he can meet the statutory standards, which the judge appears to have tried to apply here that on the face of the record, it appears conclusively that he is not entitled to relief.

Richard N. League:

Yes sir.

Now, the face of the record, was the record that the judge, the Federal Judge referred to, the record in the state court on his guilty plea?

Richard N. League:

Yes sir.

Warren E. Burger:

Thank you Mr. League.

Richard N. League:

Thank you.

Warren E. Burger:

Mr. Goldsmith.

C. Frank Goldsmith, Jr.:

Mr. Chief Justice and May it please the court.

My name is Frank Goldsmith Jr. and I represent the respondent prisoner in this matter Garry Darrel Allison.

To please the court, I would like to go over several additional facts to those which counsel for the petitioner had stated.

Mr. Goldsmith, were you in this at the trial level?

C. Frank Goldsmith, Jr.:

No sir, I was appointed at the Fourth Circuit level.

Well, do you agree that that record that got in there about that plea, but how it did got into the record?

C. Frank Goldsmith, Jr.:

I agree that that is an accurate transcript of the —

No, but how did it get in the record?

Do you not know?

C. Frank Goldsmith, Jr.:

Well, I was not present when it was put in the record.

I think Mr. League is correct that it was furnished as an answer to the state’s, as an attachment to the state’s answer to the petition for the writ of habeas corpus and I believe it was certified to be an accurate record by the clerk of Superior Court of Alamance County.

I do not have any quarrel with the accuracy of the record it self.

I have a great deal of quarrel with the sufficiency of that record as a basis upon which the Federal District Court could deny this matter of hearing in this matter.

I think it must be — this is the only record.

The record actually occurs in this form, which is reproduced in the appendix in page 11.

It is a simple form on which the clerk of court merely records the answers.

Yes or no answers to the questions posed to the defendant by the judge.

The only question that we are concerned with and the only one that could possibly have any relevance to the issue of plea bargain and the existence of a plea bargain in this case is question number 11, “As his lister or you lawyer or any policeman, law enforcement, or law officer or anyone else made any promise or threat to you to influence you to plea guilty in this case?” And the only space provided is for a yes or no answer.

There is no space provided for the terms of a plea bargain if one existed and furthermore, on the reverse of the form, the Trial Judge is required to find because it is printed on the form that he find that the plea was entered voluntarily and without promise of leniency.

So, it implies on the very form itself under the old and I stress this is the old North Carolina procedure, there could have been no planning of any promise of leniency.

The plea would have been stricken, and therefore, it is not unreasonable to suppose that a defendant would be expected to answer “no” to those questions before there has been any promises or threats made to induce him to plead guilty.

I think it is significant, the wording of promises or threats, the two are coupled together as though that is in proprietarily can be expected to be denied and I think that is in fact how the North Carolina procedure was conducted during this period of time, prior to the Fourth Circuit decisions and the later legislation which changed our proceeding.

It is not unreasonable at all to expect the defendant in that situation to denote to that question.

This was not simply matter of my speculation on this part.

There is authority cited in our brief.

There is an authority in fact cited in the petitioner’s brief in this case to support the propositions that an answer like that is routinely given and even counseled to be given by a defense attorney in order to have a plea accepted.

It has been substantiated I believe in two articles, at least two articles which include empirical research, introduced with judges and lawyers.

C. Frank Goldsmith, Jr.:

One in the Yale Law Journal, a 1975 article by Professor Alschuler, entitled “The defense attorney’s role in plea bargaining,” at 84 Yale Law Journal, 1179.

Another one in 1970, Washington Law Quarterly at page 289, the Trial Judge’s dissatisfaction as to volunteer in his understanding of guilty pleas and both these articles evidence cited in tenant’s support what is well known to any practitioner at that time in North Carolina, that plea bargains were never disclosed in response to such a question on such a form.

Plea bargains were routinely made and entered into.

There was nothing improper about plea bargains, but they simply did not ever appear on the record, they were never disclosed in response to that question.

There is another fact I think is significant in this case and that is the fact that this plea colloquy in the sentencing of the defendant occurred only 37 days after this court’s decision in Santobello and to the extent of Santobello legitimized plea bargaining or was used by the Defense Bar in general as having legitimated plea bargaining.

Then I think it is not unreasonable to assume that Santobello had not had time to take an affect in North Carolina and that this plea bargains were not normally made a part of the record.

I would further point out that the only record of this matter, the state of the record now is simply this sheet of paper and that is simply not an adequate compliance with the requirement, not necessarily of Townsend v. Sain, but also of the Congressional requirement that there exist inadequate record to permit the view.

Let me go back to the question that I put to your friend for the state.

In a civil case, not a habeas corpus civil case, but any kind of a civil case which is then tried, gone to judgment whether by the Jury or the Judges, the sole fact finder and the loosing party comes in with a motion for new trial on the grounds of newly discovered evidence, would it be appropriate for the District Judge to require the moving party seeking a new trial on these grounds to state what that newly discovered evidence is before he determines whether he is going to go how the judge is going to proceed with it?

C. Frank Goldsmith, Jr.:

I certainly agree that he would be entitled to that.

Now, I take it that your friend was analogizing that situation to this, whether it is or not, so, you may disagree, where do you think the analogy is faulty?

C. Frank Goldsmith, Jr.:

I think the analogy is misplaced primarily in the fact that in the situation posed by Your Honor, there has already been a trial on the merits.

There has been a bite of the apple and opt in —

Has there not been a determination as distinguished the trial on the merits on the submission of the guilty plea?

C. Frank Goldsmith, Jr.:

I would argue not that the only thing that could be —

How could the judge accept the guilty plea if he did not make a determination on the merits of the plea?

C. Frank Goldsmith, Jr.:

Well, I think the judge makes a determination generally that it is a voluntary plea.

We are speaking now of course of the State Court Judge.

C. Frank Goldsmith, Jr.:

Yes sir, I am speaking of the State Court Judge, but I would submit that under this prior procedure, unlike the current procedure, the State Judge does not make any determination or even any inquiry into the existence of a plea bargain or not and that is the hearing which under 2254, the Federal Habeas Corpus statute, that is the claim that must be determined in State Court at some point, if a hearing of Federal Habeas Corpus is to be avoided and there has been no such hearing in any State Court or in any Federal District Court.

The criteria established by Townsend v. Sain incorporated into the statute by Congress have not been met.

There has been no full and fair hearing pursuant to an adequate fact finding procedure found in material facts and determine the issues tendered by the defendant to say that at the arraignment itself the court did all those things.

I think it would be to stretch unrealistically the purpose of the arraignment procedure under former North Carolina Law and so we submit that Townsend far from being authority for the position of the petitioner in this case was authority for our opposition, particularly in so far it has been incorporated into statute.

What if any impact does the new North Carolina statute has on this case?

C. Frank Goldsmith, Jr.:

On this particular case, it has none I would say Your Honor. On the issue presented by this case, I would submit that it has a great deal of the potential impact because if as this court has previously said, if there is a flushing out of these claims at the trial level and an attempt made to resolve them there to the extent that is successful, it should be pure of these claims arising on field later on.

But as to Mr. Allison’s own facts of course that occurred prior to this change and I would submit that he is entitled to a hearing.

I think the real issue here as far as the North Carolina procedure embodied in this particular question, is full satisfaction of the requirement that there be being an adequate state court determination and we would submit that that is not the case.

Would you say it is just a special situation in this particular case and cases like them or could the day there will be an adequate inquiry at the time of the accepting the plea so that there would no need for a hearing when later habeas corpus is brought.

C. Frank Goldsmith, Jr.:

I would say, that today there would be, certainly a fuller inquiry under the North Carolina —

No, I did not what asked you.

I just asked you, can you make an inquiry and have a determination at the time of accepting the plea that would insolate the plea against the habeas corpus attack?

C. Frank Goldsmith, Jr.:

I do not believe you can Your Honor.

I believe that no matter what, the fullness of the inquiry, the course —

Byron R. White:

Well then are you expanding the Townsend test for when you get a hearing?

C. Frank Goldsmith, Jr.:

I think—

Byron R. White:

If there has been a full and fair hearing in the state court, you do not get a hearing, do you, unless there has been some mistake of law, is that not right?

C. Frank Goldsmith, Jr.:

That is correct.

I think there are several problems to Townsend.

One is there be inadequate fact finding procedure.

This reform would take care of that element with Townsend’s, but there also in Townsend is a requirement that the issue tended by the defendant actually had been determined in the State Court.

Byron R. White:

Well, the judge determines and he tells the defendant that here are the issues voluntariness and whether there is a basis in fact for your plea, whether you plea.

Now, if you had any plea bargains we want to know it now and if there haven’t I do not want you to tell me that, gives every opportunity to make any claim that he wants to claim and they hear everything he has got to say, now what is inadequate about that?

C. Frank Goldsmith, Jr.:

Well, I would submit that would be a much harder case if that had happened —

Byron R. White:

Well, that is what I am asking you about?

I just want to know what your basis is, what your position is?

C. Frank Goldsmith, Jr.:

Mr. Justice White, my only position is that there are not always be a continuing availability of a mechanism for relief, which is what the court said in Fontaine v. United States.

So you would not like to put a number five on Townsend v. Sain or seven or eight and another situation in which hearing would be required.

C. Frank Goldsmith, Jr.:

I think what I would prefer is there to be such a mechanism, because I think that —

In taking this position, are you not going beyond Sain?

C. Frank Goldsmith, Jr.:

Yes sir.

I think that is probably right.

I think it could be viewed that way.

Of course, we also have the Congressional statute condition of Townsend v. Sain.

I do not know when I am going beyond the statute or not and speculative on this case.

Well, do you think the statute goes beyond Sain?

C. Frank Goldsmith, Jr.:

It does not.

I think it incorporates most of the criteria of Sain.

It does go beyond it in some respects.

I just simply think that there are situations where we might be able to show that he was in fact coerced into entering his plea despite such an inquiry and if he can show that, I think that would be a much harder burden to show and perhaps then a District Court Judge would be justified in requiring him to furnish some additional proof.

And you say this case is different in any event because at the time everybody had the notion that you should not confess to plea bargains in open court?

C. Frank Goldsmith, Jr.:

That is correct Your Honor.

C. Frank Goldsmith, Jr.:

I believe that to be the fact, I think that has been demonstrated by some empirical studies to have been the fact at that time.

Mr. Goldsmith, can I just ask one question analogizing this to a normal civil case.

Did the state file anything comparable to a motion for summary judgment supported by any affidavit in this case denying a plea bargain?

C. Frank Goldsmith, Jr.:

No Your Honor.

I would also submit they did not.

They verified their answer to the habeas corpus petition, but it was verified, accepted by the attorney representing the state in that matter.

There was no affidavit by the prosecuting attorney in the trial court or the defense attorney or any other witnesses that knew anything about the fact of this particular matter.

There is no motion there for summary judgment and I would admit that on the issue of affidavit that in any event it is improper to resolve what is essentially a question of credibility on the submission of affidavits, that is why we –

Well, but by filing an affidavit the state could have put the burden on the plaintiff to come forward with a countervailing affidavit?

C. Frank Goldsmith, Jr.:

Yes sir in the normal situation that could have been done.

I think the Fourth Circuit found and we submit that it is correct to find that to put that burden on an indigent prisoner confined in a prison unit apart from his co-defendant from whom he seeks the affidavit is an unrealistic burden.

Well, I do not think the fact that indigency would make any difference if the state had filed its own affidavits which would require response in the normal summary judgment procedure, but here as I understand that the wrinkle here is that the state did not file the motion for summary for judgment, they rather said that you have got deny in advance which is of course an unusual practice.

C. Frank Goldsmith, Jr.:

That is correct, it is unusual.

But you would not question the fact that if the state had filed an appropriate motion for summary judgment supported by appropriate affidavits, then your client would have had the burden of coming forward with the affidavit, even though indigent and difficult in all the rest of it?

C. Frank Goldsmith, Jr.:

Yes Your Honor, although I submit that his own affidavit would have been sufficient to raise the issue of material fact sufficient to rebut the summary judgment.

I do not think it would be proper to require him to get an affidavit from a possibly hostile witness in another prison unit upon penalty of having this claim dismissed.

Why not?

C. Frank Goldsmith, Jr.:

Well, simply because in the normal setting of a plaintiff in summary judgment procedure —

He is in the position of contradicting a statement he made in open the court to a judge in response to a very relevant question, which comes about as close to perjury on his present situation as you can come without having perjury, you concede that, do you not?

C. Frank Goldsmith, Jr.:

Yes sir.

I simply submit that it is an unrealistic requirement.

This co-defendant I think —

Why unrealistic?

C. Frank Goldsmith, Jr.:

Well, because this co-defendant is the one who had changed his plea originally to induce Allison to plead guilty.

There is evidence in the file from letters from Allison and so on that the co-defendant was very reluctant to make any statement at all because he was trying to get work release privileges and other benefits in the Penal System and he feared he may be penalized for that.

I think it is simply not realistic for the magistrate to have assumed that their interests were identical and that this would be a willing witness who would willingly furnish an affidavit for the plaintiff, in this case the petitioner.

Well, he is going to have to furnish something someday if you prevail on this case, is he not?

C. Frank Goldsmith, Jr.:

He certainly is and of course compulsory process is available to require him to come into to court and be examined under oath and cross examined by the state.

We feel that is the way this matter ought to be resolved.

Taking the statute, the Federal Statute on its literal meaning, would you say that on the face of the record, bear in mind the implications of that term, those terms, on the face of the record that conclusively appeared that the petitioner was entitled to no relief?

C. Frank Goldsmith, Jr.:

Of course, Your Honor that is the statute, that is the standard for Federal motions to vacate so the plaintiff –

That is why I am emphasized for the Federal?

C. Frank Goldsmith, Jr.:

I would submit that in essence they are, they boil down to the same standard and that this record would not conclusively show that he is entitled to no relief for the same reasons that it is not an adequate state court determination on the merits of his claim.

To say that it is conclusive and forbid any further attempt by and to ever impeach it, I think it would be simply be an unrealistic position in light of the practicality of our —

Well, if the Federal Judge believed what this gentleman has stated to this State court Judge at the sentencing plea then it wound conclusively appear on the face of the record, would it not?

C. Frank Goldsmith, Jr.:

If the word “Promise” in the context to the senate were construed to admit the plea bargain, yes it would.

We submit that it was not intended that way, it was coupled with threat and that it was not ever understood by any party to the proceeding to contemplate the disclosure of plea bargain.

So I take that you concede that this has been Federal case purely, not state habeas corpus in the federal court or federal habeas corpus on a state case that the judge would have been justified in saying that on the face of the record it conclusively appears is entitled to no relief if the District Judge in so doing were relying on the transcript of the rule 11 hearing?

C. Frank Goldsmith, Jr.:

On these facts presented by this case, I would respectfully disagree.

I would say that where there is a Federal prisoner and this was the only question that was asked in the rule 11 preceding that that would not conclusively establish that no plea bargain had been made and there are I think federal cases I know, federal cases cited in the brief of both cites supporting that proposition.

Justice Machibroda was able to bring his allegation despites its incredibility.

So we submit that any Federal prisoner who simply asks whether any policies or threats made to influence you to plead guilty is not thereby precluded from ever sorting that there was a plea bargain and it will cover plea bargain.

What else should the Federal District Judge at the sentencing proceeding do? What should he ask to comply with rule 11 which you say, “This record would not meet rule 11 standards?”

C. Frank Goldsmith, Jr.:

It would not.

Rule 11 of course have been amended in 1975, and now, I think inquiry is made specifically in the Fourth Circuit, the Rhird Circuit, the Fifth Circuit, by direction of those circuits, Federal District Judges are specifically required to inquire into the matter of plea bargaining much as the North Carolina statute now requires that inquiry to be made.

In addition, the new federal Rule 11 requires that plea negotiations be disclosed in open court to the judge, he can accept or reject them and that they be explained on the record.

I think that that is a very salutary development and to the extent thus followed in Federal Courts and in states like North Carolina that have their own procedure, these claims should not rise anymore.

I think it’s unlikely that they will.

As I said, to response to Mr. Justice White’s question, I think there ought to be a mechanism where they could —

As I understand your position, you could always plead yourself into a hearing, no matter what happens in the state court?

C. Frank Goldsmith, Jr.:

Yes sir, in essence.

All he has to do is to say what his own lawyer told him.

C. Frank Goldsmith, Jr.:

Yes sir, if he alleges coercion and alleges that he was required to cover it up for some reason.

This is a requirement established by the Fourth Circuit too that there must be allegations why he should be permitted to contradict his earlier statement in the state court and if he makes those allegations.

And if the state responds to petition with an affidavit as the attorney saying “no” and he responds with his own affidavit saying “yes”, hearing, you have to get him before the court.

C. Frank Goldsmith, Jr.:

I would say so because it is a question of credibility and I think it needs to be resolved by cross examination witnesses.

Probably, it is not relevant for the disposition of this case now, but let me ask you this question.

I suppose you have a hearing and suppose you got the relief you wanted.

C. Frank Goldsmith, Jr.:

Yes sir.

And then the matter proceeded on from there.

Would his false statement to the State Court, District Judge subject him to some penalty for contempt of court or possibly perjury in the state court for having misled the state Judge?

C. Frank Goldsmith, Jr.:

That is a possibility Your Honor and I am not prepared an answer whether it would on the North Carolina law or not.

I would urge that it not be considered as contempt in view of the traditional context in which that question is asked as relating to any impropriety, really that is what the question gets there, any promises or threats to influence the plea.

You conceded if I understand you correctly that he did deliberately mislead the State Court Judge by a false statement?

C. Frank Goldsmith, Jr.:

Deliberately in response to his counsel’s advice, yes sir.

That is what he alleges.

He deliberately misled the State Court.

What his morals were at the moment are irrelevant.

Under North Carolina law, would that subject him do you think to some sanction?

C. Frank Goldsmith, Jr.:

I suppose that it might.

Would it also subject the lawyer?

C. Frank Goldsmith, Jr.:

I suppose it would have.

Certainly Your Honor, if it subjected him to anything, it ought to subject the lawyer for the same penalty.

Depending on the court’s determination, he might subject the lawyer to some disciplinary proceeding if he found one way.

C. Frank Goldsmith, Jr.:

Yes sir.

But if he found the other way, he could subject Allison to some sanction.

C. Frank Goldsmith, Jr.:

In fact it think McNally v. United States in the First Circuit, the court did instruct or strongly suggest that disciplinary proceeding be instituted in just such a case against the attorney.

Mr. Goldsmith, just focusing on the lawyer for a moment, would you tell me with respect to the practice that prevailed at the time of this plea and also with respect to the practice in North Carolina today, was it then or is it now customary to make any inquiry of counsel for the prosecution or counsel for the defense as to whether there was a plea bargain?

C. Frank Goldsmith, Jr.:

It is now and it was not then.

The new plea transfer at form requires the attorney to sign and to make a statement that he thinks that the plea is voluntary himself, it is not nearly as detailed in disclosure as that required by the defendant personally.

There is no, usually no colloquy between the court and the defense counsel except the case of the defense counsel signing the statement.

The fact is how it varies. Some judges may inquire of counsel whether there is any plea bargain and normally when that question reached on today’s form, whether there has been any plea negotiation it is both counsel who speaks.

And at the time of this plea, counsel did not sign the form, did he?

It was just signed by the —

C. Frank Goldsmith, Jr.:

That is right Your Honor.

He did not, just the defendant himself.

Was the form at that time customarily executed and filled out in open court or in clerk’s office, how was it handled?

C. Frank Goldsmith, Jr.:

It was customarily done in open court.

It was.

C. Frank Goldsmith, Jr.:

The manner for doing it in an open court varied.

C. Frank Goldsmith, Jr.:

Sometimes the defense counsel would sit by the defendant and write the answers into the blanks.

Sometimes the clerk of court could write the answers into the blanks, very rarely if ever that the defendant would actually write the answers, but his oral answers would be put down in the appropriate blank.

It was not an open court.

Without any representation by counsel as to the existence or non-existence of a plea bargain?

C. Frank Goldsmith, Jr.:

That is correct.

But counsel was present when this occurred, defense counsel?

C. Frank Goldsmith, Jr.:

In this particular case, yes sir and any time that counsel, the client was represented of course he would be present.

Right.

C. Frank Goldsmith, Jr.:

The problem here I think is that there is no record apart from this form.

We do not have the verbatim transcript if one was made of the plea proceeding and so we do not know what else might have been said by anyone at the proceeding.

We have absolutely no record of what happened at the sentencing three days later and it is conceivable that the defendant may have raised some objection and we do not know that and that is we submit should be properly brought out as relating to its credibility at a hearing and have an inquiry hearing.

I submit that the state of the record presently is simply insufficient to ascertain that that was determined irrevocably that there would be no plea bargain.

I think one other factor I want to call the court’s attention to that, I did not cite my brief and that is the official commentary to the North Carolina general statutes.

The statutes themselves are set out in my brief, the ones that, the amendment to Chapter 15(a) of the North Carolina Criminal Procedure Act which required an open court disclosure plea bargains.

I think it is significant to note the official commentary which is reprinted with those statutes and that is the purpose of the statute was to legitimate plea negotiation and “to bring plea negotiations out of the back room” and further, their own the writers of the official commentary say that the purpose is now intended to allow the defendant to tell the truth in plea proceedings, implying that perhaps in former times the defendant was not always expected to tell the truth in response to that type of question in plea proceedings.

The same type of comments that I think were found in the amendments to Rule 11(e) of the Federal Rules of Criminal Procedure.

I think it simply points out that this is a new day, this is taking pleas out of the dark ages and that this plea arouse in the dark ages of plea bargaining when these things were not brought out in open court and were not explicitly recognized as being constitutionally sound.

To please the court we submit that unless this court can honestly say that this procedure was a full and fair hearing in fulfillment of the requirement in Townsend v. Sain then it is bound to affirm the Fourth Circuit Court of Appeals and it must be kept amended.

The only relief sought is a hearing at which witnesses who have not previously testified will be able to —

Warren E. Burger:

We will resume there at one o’clock and at that time, you can decide if you wish whether you want to use the four minutes remaining to you.

C. Frank Goldsmith, Jr.:

Thank you Your Honor.

Warren E. Burger:

You may continue counsel.

C. Frank Goldsmith, Jr.:

Thank you Mr. Chief Justice and if it please the court I would like to take just a moment to explore the suggestion made that affidavits would be appropriate in this kind of case if the appropriate procedure were followed that is a motion for summary judgment.

I would hope that the court would not restrict those claims that maybe heard in Federal habeas corpus to those cases where the plea bargain is witnessed by some outside party.

I think that the hypothetical situation posed by Mr. Justice Marshall is appropriate.

It is appropriate to ask that question, if Allison had not been so fortunate as to have his bargain witnessed by his co-defendant then it seems to me that it would be inappropriate to try to resolve his claim on the basis of requiring him to submit further evidence of his claim and that affidavits still don’t go very far towards resolving that type of issue or it does resolve on credibility.

I got some information from what you have said that the gentleman from whom he hoped to get these statements is now in prison somewhere and that it might be difficult for him to get an affidavit, but that he can be compelled to testify.

C. Frank Goldsmith, Jr.:

That is exactly right Your Honor.

That is what you are standing on, is it?

C. Frank Goldsmith, Jr.:

That is what I am standing on and I am stating further that it would be inappropriate to fashion a general requirement of other evidence of the claim because there are situations where maybe only the attorney and his client discuss the plea.

They may have to take his deposition in prison if you prevail in this case in any event.

C. Frank Goldsmith, Jr.:

Yes sir, they may or he maybe called to testify in the hearing.

I think that would be an option with the District Court Judge, but I think some compulsory process must exist for obtaining his testimony and subjecting him to cross examination by both parties.

Is there any explanation in the record counsel for the absence of any affidavit from either attorney?

C. Frank Goldsmith, Jr.:

The only explanation Your Honor that I can offer is that, the case did not progress far enough to obtain such evidence.

I think that in any event had an affidavit been obtained that might not resolved the issue either because if the affidavit from the Defense Counsel denied any suggestion of a plea bargain, there still remains the question of credibility and I do not think we can be so cynical as I said in my brief to suppose that every time there is contradiction between the client and his lawyer that the lawyer is invariably right.

As a question, I think it has to be resolved by the trial or fact in an evidentiary hearing where credibility can be tested, but no one to date has approached as far as I know, either the defense lawyer or the persecutor or any other party to the case to ascertain what there version of the facts is.

And your position is that an expanded, there full implement of the Federal Rule 11 approach will wash this kind of a problem out?

C. Frank Goldsmith, Jr.:

I think it would go far towards washing the problem out in that the claims would not be made in the first instance because they will be flushed out and if made the burden would be hard to sustain I think as to why someone not to be heard to contradict as earlier statement after full inquiry.

Warren E. Burger:

Very well Mr. Goldsmith.

C. Frank Goldsmith, Jr.:

Thank you Your Honor.

Warren E. Burger:

Do you have anything further Mr. League?

Richard N. League:

Yes sir, I would make a couple of comments in rebuttal if I might with regard to the new procedure, the expanded inquiry.

I can speak of personal knowledge as to whether or not that is stayed in the post conviction applications on the basis of this type of claim.

It has not.

Maybe this made them somewhat easier to deal with, but that is speculative too at this time.

With regard to the question Mr. Justice Stevens posed about the absence of an affidavit from the attorney or from the District Attorney in this case, at the time this case came through, the case was handled to the extent it needed be handled except in the Charlotte division of the Western District.

The matters where routinely dismissed on the basis of a showing by the state that this transcript of plea had been going into or rather the inquiries made in the transcript to going into and the man that said that no promises were made for him.

To the candidate it was not an act, it was not expressed, the dismissals were not expressed in terms of taking a state court finding.

I think they were expressed more in terms of being blatant or lacking sufficient credibility to cause the court to move.

That is the basis for that.

Certainly, I had the foresight to know I would be here today the case would be handled quit a bit differently.

With regard to the matter of the form that was used, the fact that it had no place to include on it any promises that had been made, of course that form was not a maximum inquiry form it was a minimum inquiry.

You see, the forms coming through attached to writs sometimes, a question which dictates it, and more questions were asked by the judge and at that time you get a verbatim transcript, assuming one is available as it usually is, but unfortunately it was not in this case.

Frequently, you see, an answer to the question is yes.

Are you under the influence of any alcohol, drugs, or medicine?

Of course the inquire proceeds is just what you are under the influence of what turns out to be a tranquilizer or some sort of medicine.

That is the typical example where the inquiry, the minimum inquiry shown by this transcript is expanded on.

But what if, what is wrong with the habeas corpus petition that says, “I know that I have pleaded guilty and I know I have said there was not any plea bargain, but I lied, I was lying at that time.

I was making a misstatement, a false statement, but I have made it because my lawyer told me to?

He just told me to, advice me that that was the way to do things and maybe he is right or wrong, but that is why I did it” and he attaches an affidavit of the attorney to that affect that he did advice him to say that which was contrary to the fact.

Is that this case?

Richard N. League:

Well, as it is pled and as far as we know now that is the fact involved according to his allegations, it was just between him and his attorney.

Of course, I used it as one of my supporting arguments, policy reasons the fact that there is really no question why that is good enough to get his plea overturned because it was between him and his attorneys, it is not the state option.

What if he alleged that his lawyer advised him, he alleged that the lawyer advised me as follows and it turns out that is wholly false legal advice and that no competent attorney would give that advice, but in this habeas corpus makes his allegations and claims that there is a counsel claim, that he was not represented by competent counselor.

Richard N. League:

In effect, it’s resistant, yes.

In effect the resistant counsel.

You would not say that that claim would not deserve a hearing, would you?

Richard N. League:

But latterly stopped.

Even if the — you mean there is never?

In effect, the resistant counsel claims are never open on the habeas, is that it?

Richard N. League:

When it not involves a state action.

I mean, I look back over You Honor and I see that was the glass or case that in effective assistance, but —

Why is not the guilty plea cases seem to indicate that perhaps pleading guilty will close of some issues, but ineffective assistance the counsel is not one of them.

Richard N. League:

Well, it would not, but in a case where he had specifically denied what he now says and uses that as a basis for his claim then you get the collateral stopped.

Well, if his lawyer gives him the advice and he follows his attorney’s advice and his attorney’s advice is completely out of balance, way out of the ball park.

Richard N. League:

It depends on whether he would misrepresent that to the judge on the inquiry.

Of course, if he had not, he is without fault and should not be penalized?

Okay.

Richard N. League:

With regard to the fact that the threats or promises are length together, I do not think that is something that you should have such as sinister cast as Mr. Goldsmith suggest in a new form.

There are still linked together other than the promises about does anyone made any threats or promises to you.

I think originally were joined because they had the same propensity for wrong.

There are some things that a man might be considered or man might consider a threat or promise it would be incorrect and could not be done legally.

It would be some things he considers a threat or a promise which would be permissible later on.

Typically, he might feel threatened that the state was going to indict him. He might feel coerced because his people came around and tried to talk to him into pleading guilty.

There is nothing wrong with this.

A man could conceive them as a threat and I think that it is because of the possibility that both these things have the same possibilities for affecting a play that they were joined together.

With regard to plea bargaining and its non-disclosure in the state that is a matter that varies throughout the state.

I can only speak for Wake County where I live; there was no plea bargain until 1971 when we got a new DA there, the old one, supposedly never plea bargained.

As far as judges not liking it and that varied from judge to judge and again there is a good reason why we leave it to the discretion of the District Court.

Richard N. League:

He knows this and he can evaluate.

That would be my remarks in rebuttal.

Thank you so much.

Warren E. Burger:

Thank you gentleman.

The case is submitted.