Frederick Pennington, Jr. v. Vernon Housewright, Director, Arkansas Department of Correction

666 F.2d 329, 1981 U.S. App. LEXIS 15140
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 16, 1981
Docket81-1177
StatusPublished
Cited by17 cases

This text of 666 F.2d 329 (Frederick Pennington, Jr. v. Vernon Housewright, Director, Arkansas Department of Correction) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frederick Pennington, Jr. v. Vernon Housewright, Director, Arkansas Department of Correction, 666 F.2d 329, 1981 U.S. App. LEXIS 15140 (8th Cir. 1981).

Opinions

GIBSON, Senior Circuit Judge.

I.

This is an appeal from the dismissal by the district court,1 without an evidentiary hearing, of a petition for a writ of habeas corpus. 28 U.S.C. § 2254 (1976). Appellant Frederick Pennington argues that he was entitled to an evidentiary hearing on the [330]*330question of whether the guilty plea he entered in state court was involuntary.

Pennington initially was charged with four counts of aggravated robbery, one count of first degree battery, and one count of capital felony murder. With the prosecutor’s consent, Pennington pleaded guilty to first degree murder rather than capital felony murder, and he pleaded guilty to all other counts. He was sentenced to five concurrent life terms and one twenty-year term to run consecutively to the life terms. Pennington also executed three plea statements which provided that his guilty plea was voluntarily and knowingly made. Pennington argued in his habeas corpus petition that he entered into the plea bargain involuntarily.

Pennington alleged in his pro se petition that he was unable to voluntarily plead guilty because of his age (sixteen years old), the absence of his parents when he had to decide whether to accept the negotiated plea, and the prosecutor’s threat to seek the death penalty if Pennington went to trial. He also alleged that his lawyer and the prosecutor told him he would only have to serve seven years.

Before accepting Pennington’s guilty plea on the murder count and one of the robbery counts, the trial court asked the state whether the plea was negotiated, and the prosecutor said two life sentences had been agreed to. The court asked Pennington if the state’s description conformed with his understanding, whether he understood the plea statements he had signed for all of the counts, and whether he understood he was giving up his right to a jury trial. Pennington answered “yes” to those questions. The court asked whether any threats or promises were made to induce the guilty plea (other than the negotiated plea), and Pennington answered “no.” The trial court also asked Pennington whether he was in fact guilty and it asked him to describe the crimes. Pennington admitted his guilt and described the crimes.2

Pennington exhausted his state remedies. He did not receive a hearing on the voluntariness of his plea after the plea was entered. The issue is whether the district court could have decided Pennington’s plea was involuntary without an evidentiary hearing.3

[331]*331II.

An evidentiary hearing is not required for every habeas corpus petition, but “a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.” Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). This does not mean, however, that the hearing must be in the form of a collateral proceeding. The Supreme Court has suggested that great weight is to be given to statements made in connection with a guilty plea: “[I]n collaterally attacking a plea of guilty a prisoner ‘may not ordinarily repudiate’ statements made to the sentencing judge when the plea was entered ... . ” Blackledge v. Allison, 431 U.S. 63, 73, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977), quoting Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 1462, 36 L.Ed.2d 169 (1973). Also, “[sjolemn declarations in open court carry a strong presumption of verity.” 431 U.S. at 74, 97 S.Ct. at 1629. Equally clear is the proposition:

[F]ederal courts cannot fairly adopt a per se rule excluding all possibility that a defendant’s representations at the time his guilty plea was accepted were so much the product of such factors as misunderstanding, duress, or misrepresentation by others as to make the guilty plea a constitutionally inadequate basis for imprisonment.

Id. at 75, 97 S.Ct. at 1629-1630. Thus, “the barrier of the plea or sentencing proceeding record, although imposing, is not invariably insurmountable.” Id. at 74, 97 S.Ct. at 1629. The facts of a particular case determine whether an evidentiary hearing is necessary. Richardson v. United States, 577 F.2d 447, 450 (8th Cir. 1978), cert. denied, 442 U.S. 910, 99 S.Ct. 2824, 61 L.Ed.2d 276 (1979).

The Supreme Court in Allison offered guidance as to the measure of finality a guilty plea should be afforded. Allison alleged in his habeas corpus petition that the terms of the plea bargain made with the North Carolina prosecutors were not followed. The district court dismissed his petition without a hearing. His guilty plea had been accepted under the following circumstances: Allison had signed a form stating he had pleaded guilty voluntarily, the sentencing judge asked Allison only questions which required a “yes” or “no” answer, the attorneys were not questioned, there was no transcript of the sentencing hearing, and there was no evidence the legitimacy of plea bargaining was mentioned.4 Allison had alleged that he was advised by counsel to conceal the plea bargain so that the court would accept the guilty plea. 431 U.S. at 65-69, 76-77, 97 S.Ct. at 1624-1627, 1630-1631. The Supreme Court held that there should have been an evidentiary hearing because of the secrecy surrounding plea bargaining and the lack of a transcript to show an understanding of the agreement.

On the other hand, the Supreme Court observed that under Reforms made by North Carolina in the plea bargaining process, a habeas corpus petitioner will be entitled to an evidentiary hearing “only in the most extraordinary circumstances.” Id. at 80 n.19, 97 S.Ct. at 1632. Under those reforms, described by the Court, the judge advises the defendant that plea bargaining is approved and the defendant can discuss freely any promises without fear of jeopardizing the agreement. The attorneys for both sides are questioned as to whether there was a plea bargain. A transcript of the proceeding is made. Id. at 79, 97 S.Ct. at 1632.

The procedures followed in Pennington’s case are closer to those requiring a hearing “only in the most extraordinary circumstances.” A transcript of the plea hearing is in the record. The prosecutor told the court the plea was negotiated. The defendant said he understood the negotiated plea to be that which the prosecutor described. [332]*332Thus the secrecy which surrounded Allison’s plea bargain was absent in the instant case.

This is not to suggest that a guilty plea received under Arkansas’ procedures is immune from an attack in a habeas corpus petition.5 Even North Carolina’s procedures would not do that. Id. at 75, 80 n. 19, 97 S.Ct. at 1632. But after a review of Pennington’s allegations of involuntariness, one can see that Arkansas’ procedures are sufficient to show voluntariness in Pennington’s case.

III.

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666 F.2d 329, 1981 U.S. App. LEXIS 15140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frederick-pennington-jr-v-vernon-housewright-director-arkansas-ca8-1981.