[233]*233PER CURIAM.
This matter is before the Court pursuant to a remand from the United States Supreme Court. In that mandate, we were asked to further consider the case in the light of Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). We have done so and revise our opinion to permit the state court to reconsider the matter if it wishes.
Jesse J. Ford raised three issues before the United States District Court in his habeas corpus proceeding: (1) that Ford’s plea of guilty was induced by threats and promises; (2) that the state trial court’s failure to comply with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), requires that the plea be vacated; and (3) that Ford was deprived of the right to effective assistance of counsel.
The district court denied relief on issue
(1) stating:
Pursuant to 28 U.S.C. § 2254(d), a presumption of correctness attaches to state court determinations evidenced by a written finding after a full and fair evidentiary hearing. Once the presumption is properly invoked, the habeas petitioner bears the burden of proving by “convincing” evidence that the state court finding was erroneous. * * * In the present case, Ford does not allege any of the exceptions (42 U.S.C. § 2254(d)(l)-(8)) to invocation of the presumption of correctness and appears to have been afforded a full and fair hearing in state court. The testimony presented to the state post-conviction court was conflicting and that court’s finding that no promises or threats were made to induce the guilty plea is fairly supported by the record as a whole. Accordingly, this Court holds that the state post-conviction court’s finding that no promises or threats were made is entitled to a presumption of correctness and that Ford has not shown this finding to be erroneous. [Citation omitted.]
This issue was not raised on appeal.
(2) on the ground that the record developed at the arraignment, plea hearing and post-conviction evidentiary hearing disclosed that Ford’s guilty plea was voluntarily and knowingly entered. We did not reach the Boykin issue on appeal.
The state court made only a brief comment on the third issue — the alleged ineffectiveness of petitioner’s counsel:
The defendant also testified that since a possibility existed that the victim was pregnant, his guilty plea was somehow involuntary. The argument does not even merit discussion.
The district court also denied relief, stating:
The principal argument presently advanced by the petitioner is that his trial attorney was ineffective in not conducting an investigation into the rumored pregnancy of the victim before allowing Ford to plead guilty to rape. * * *
In reply, the state asserts that Ford did have the effective assistance of counsel, but first contends that Ford failed to exhaust his state remedy as to this claim on the grounds now alleged.
******
The state argues that the question of whether Ford’s counsel investigated the rumored pregnancy was never before the state court as a reason for Ford’s allegation that his counsel was ineffective. Therefore, the state maintains, Ford has not exhausted his state remedies as to that issue. * * *
******
First, while the clear emphasis of Ford’s claim in the state courts was on the alleged promises and threats made to Ford by his attorney to obtain a guilty plea, the general issue of incompetency of counsel was raised and the Nebraska Supreme Court specifically found that “the defendant was represented by competent counsel throughout the original proceedings.” State v. Ford, 200 Neb. 779, 781, 265 N.W.2d 456, 457 (1978). Second, even if the theory of ineffective counsel presently advanced by the petitioner was not adequately presented in the state courts, no remedy is now available to the peti-
[234]*234tioner in the Nebraska courts. Under Nebraska law, after a first motion for post-conviction relief has been judicially determined, a petitioner is precluded from raising in a subsequent motion for post-conviction relief any grounds which could have been raised in the first proceeding. State v. Newton, 202 Neb. 361, 363, 275 N.W.2d 297, 299 (1979). * * *
From the record in the instant case, it does not appear that Ford has deliberately bypassed state procedures and the state has not so alleged. The burden of pleading and proving a deliberate bypass is on the state. Wilwording v. Swenson, 502 F.2d 844, 849 (8th Cir. 1974), cert. denied, 420 U.S. 912 [95 S.Ct. 835, 42 L.Ed.2d 843] (1975). Accordingly, even if the theory of ineffective counsel presently advanced by Ford was not adequately presented to the state courts, under the circumstances of this case the exhaustion doctrine does not prevent review of that claim in this habeas proceeding.
* * * * * *
[T]his appears to be a case where “the petitioner must shoulder an initial burden of showing the existence of admissible evidence which would have been uncovered by reasonable investigation and which would have proved helpful to the defendant either on cross-examination or in his case-in-chief at the original trial.” Accord, United States v. McMillian, 606 F.2d 245, 248 (8th Cir. 1979). Here, the petitioner has not only failed to show that an investigation would have established that the victim was not pregnant, but also how the non-pregnancy of the victim would have aided him in defending the charge of rape. [Emphasis included.]
When issue (3) reached this Court, we carefully reviewed the entire record in the light of the state court’s opinions, the United States District Court’s opinion and 28 U.S.C. § 2254(d). We stated:
There is nothing in this record that indicates that the appellant’s attorney engaged in any pretrial investigation. At the remand hearing, only one aspect of the defense attorney’s investigation was broached — the rumored pregnancy. What is crystal clear from the record is that the defendant’s lawyer did absolutely nothing to determine whether the rumor was true. The attorney testified at the remand hearing that the unsubstantiated rumor was communicated to the defendant the day of his arraignment; he told the defendant that “as we would go to trial we would nail it down one way or the other.”
Free access — add to your briefcase to read the full text and ask questions with AI
[233]*233PER CURIAM.
This matter is before the Court pursuant to a remand from the United States Supreme Court. In that mandate, we were asked to further consider the case in the light of Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). We have done so and revise our opinion to permit the state court to reconsider the matter if it wishes.
Jesse J. Ford raised three issues before the United States District Court in his habeas corpus proceeding: (1) that Ford’s plea of guilty was induced by threats and promises; (2) that the state trial court’s failure to comply with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), requires that the plea be vacated; and (3) that Ford was deprived of the right to effective assistance of counsel.
The district court denied relief on issue
(1) stating:
Pursuant to 28 U.S.C. § 2254(d), a presumption of correctness attaches to state court determinations evidenced by a written finding after a full and fair evidentiary hearing. Once the presumption is properly invoked, the habeas petitioner bears the burden of proving by “convincing” evidence that the state court finding was erroneous. * * * In the present case, Ford does not allege any of the exceptions (42 U.S.C. § 2254(d)(l)-(8)) to invocation of the presumption of correctness and appears to have been afforded a full and fair hearing in state court. The testimony presented to the state post-conviction court was conflicting and that court’s finding that no promises or threats were made to induce the guilty plea is fairly supported by the record as a whole. Accordingly, this Court holds that the state post-conviction court’s finding that no promises or threats were made is entitled to a presumption of correctness and that Ford has not shown this finding to be erroneous. [Citation omitted.]
This issue was not raised on appeal.
(2) on the ground that the record developed at the arraignment, plea hearing and post-conviction evidentiary hearing disclosed that Ford’s guilty plea was voluntarily and knowingly entered. We did not reach the Boykin issue on appeal.
The state court made only a brief comment on the third issue — the alleged ineffectiveness of petitioner’s counsel:
The defendant also testified that since a possibility existed that the victim was pregnant, his guilty plea was somehow involuntary. The argument does not even merit discussion.
The district court also denied relief, stating:
The principal argument presently advanced by the petitioner is that his trial attorney was ineffective in not conducting an investigation into the rumored pregnancy of the victim before allowing Ford to plead guilty to rape. * * *
In reply, the state asserts that Ford did have the effective assistance of counsel, but first contends that Ford failed to exhaust his state remedy as to this claim on the grounds now alleged.
******
The state argues that the question of whether Ford’s counsel investigated the rumored pregnancy was never before the state court as a reason for Ford’s allegation that his counsel was ineffective. Therefore, the state maintains, Ford has not exhausted his state remedies as to that issue. * * *
******
First, while the clear emphasis of Ford’s claim in the state courts was on the alleged promises and threats made to Ford by his attorney to obtain a guilty plea, the general issue of incompetency of counsel was raised and the Nebraska Supreme Court specifically found that “the defendant was represented by competent counsel throughout the original proceedings.” State v. Ford, 200 Neb. 779, 781, 265 N.W.2d 456, 457 (1978). Second, even if the theory of ineffective counsel presently advanced by the petitioner was not adequately presented in the state courts, no remedy is now available to the peti-
[234]*234tioner in the Nebraska courts. Under Nebraska law, after a first motion for post-conviction relief has been judicially determined, a petitioner is precluded from raising in a subsequent motion for post-conviction relief any grounds which could have been raised in the first proceeding. State v. Newton, 202 Neb. 361, 363, 275 N.W.2d 297, 299 (1979). * * *
From the record in the instant case, it does not appear that Ford has deliberately bypassed state procedures and the state has not so alleged. The burden of pleading and proving a deliberate bypass is on the state. Wilwording v. Swenson, 502 F.2d 844, 849 (8th Cir. 1974), cert. denied, 420 U.S. 912 [95 S.Ct. 835, 42 L.Ed.2d 843] (1975). Accordingly, even if the theory of ineffective counsel presently advanced by Ford was not adequately presented to the state courts, under the circumstances of this case the exhaustion doctrine does not prevent review of that claim in this habeas proceeding.
* * * * * *
[T]his appears to be a case where “the petitioner must shoulder an initial burden of showing the existence of admissible evidence which would have been uncovered by reasonable investigation and which would have proved helpful to the defendant either on cross-examination or in his case-in-chief at the original trial.” Accord, United States v. McMillian, 606 F.2d 245, 248 (8th Cir. 1979). Here, the petitioner has not only failed to show that an investigation would have established that the victim was not pregnant, but also how the non-pregnancy of the victim would have aided him in defending the charge of rape. [Emphasis included.]
When issue (3) reached this Court, we carefully reviewed the entire record in the light of the state court’s opinions, the United States District Court’s opinion and 28 U.S.C. § 2254(d). We stated:
There is nothing in this record that indicates that the appellant’s attorney engaged in any pretrial investigation. At the remand hearing, only one aspect of the defense attorney’s investigation was broached — the rumored pregnancy. What is crystal clear from the record is that the defendant’s lawyer did absolutely nothing to determine whether the rumor was true. The attorney testified at the remand hearing that the unsubstantiated rumor was communicated to the defendant the day of his arraignment; he told the defendant that “as we would go to trial we would nail it down one way or the other.”
Notwithstanding the fact that the rumor was unsubstantiated, the defendant’s attorney, assuming its truth, used its negative implication to persuade his client to plead guilty. The record shows that up until the morning of the arraignment, and specifically until the conversation wherein the defendant was confronted with the possibility of the victim’s pregnancy, Ford had no intention to plead guilty.
The record indicates that even after the rumor was communicated to the defendant, he was disinclined to plead, reasoning that if she were pregnant, it would favor his case because he didn’t impregnate her. The appellant stated at the remand hearing that in response to this reasoning, his attorney told him “they’d give her an abortion and, looking at me, ‘cause I’m black and big; big and black, the jury would automatically convict me whether I was guilty or not.” Thereupon, the defendant pleaded guilty to the charge of rape.
We determine that when an unsubstantiated issue is deemed by both counsel and client to be significant enough to trigger the decision to plead guilty, then there arises a duty on the part of the defense counsel to obtain the specifics surrounding the key factual issue. Such a duty necessarily demands thorough investigation. * * *
We disagree with the court below that the appellant was not prejudiced by his counsel’s failure to adequately investigate the rumored pregnancy. In McQueen v. Swenson, [498 F.2d 207 (8th Cir. 1974)], we stated that the prejudice element in a [235]*235habeas analysis is necessary “because the failure to investigate — though a constitutional error — might in certain circumstances be a ‘harmless’ one and hence would not justify habeas corpus relief.” Id., 498 F.2d at 218. Within a trial context, in order to secure habeas corpus relief, the petitioner must show that the ineffective assistance of counsel prejudiced his ability to prepare a defense. Id. at 220. See DuPree v. United States, 606 F.2d 829, 831 (8th Cir. 1979), cert. denied, 445 U.S. 919 [100 S.Ct. 1284, 63 L.Ed.2d 605] (1980); United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976).
Within the context of an arraignment hearing, however, where the defendant enters a guilty plea, the issue of prejudice necessarily centers upon whether the attorney’s failure to competently investigate any material facts prejudiced the defendant’s ability to make an intelligent and voluntary plea of guilty. We feel that in this case, counsel’s failure to substantiate the rumored pregnancy and his using the rumor as a tool to force the defendant to plead guilty prejudiced Ford’s ability to make an intelligent and knowing decision. The resulting prejudice was not “harmless.” [Emphasis included and footnotes omitted.]
A dissenting opinion was filed by Judge Arlin Adams. He dissented on the grounds that there was no “nexus between the alleged ineffective assistance and the guilty plea itself.”
Had it not been for the Nebraska rule with respect to waiver of claims, we would have remanded the matter to the district court with directions to it to remand to the state court to give that court the opportunity to fully examine the question raised. As it was, we agreed with the district court that the state court would not reexamine the issue. We then made our decision and stated our reasons for making it — reasons which we still believe to be sound.
In sum, the district court and this Court considered the entire record and 28 U.S.C. § 2254(d) when we initially decided the matter. We have reconsidered the record and the statute, and we now specifically state that it appears from the record that the merits of the factual dispute with respect to incompetency of counsel were not resolved in the state court hearing. See 28 U.S.C. § 2254(d)(1).
In the event that we have misunderstood the Nebraska waiver rule, and the state court wishes to determine this issue, it will have an opportunity to do so under our order, amended to read as follows:
The order of the district court denying the appellant’s habeas corpus petition is reversed and remanded with instructions to the district court to remand the matter to the state court to give that court the opportunity, if it wishes, to make specific findings and conclusions with respect to whether the appellant received effective assistance of counsel with respect to his plea of guilty and to transmit those findings to the district court within 120 days from the date that the district court enters its order of remand. If it makes such findings, the appellant can then renew his habeas motion in federal court. If not, then the United States District Court shall order the defendant’s judgment and sentence vacated. The district court shall further order the state attorney general’s office, within 120 days, to either schedule the case for trial or allow the defendant to enter a proper plea of guilty.