Smith v. Hannigan

804 F. Supp. 156, 1992 U.S. Dist. LEXIS 15453, 1992 WL 274289
CourtDistrict Court, D. Kansas
DecidedSeptember 14, 1992
DocketNo. 91-3390-S
StatusPublished

This text of 804 F. Supp. 156 (Smith v. Hannigan) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Hannigan, 804 F. Supp. 156, 1992 U.S. Dist. LEXIS 15453, 1992 WL 274289 (D. Kan. 1992).

Opinion

MEMORANDUM AND ORDER

SAFFELS, Senior District Judge..

This matter is before the court on a petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is an inmate in the custody of the Secretary of the Kansas Department of Corrections. In this petition, Smith challenges his 1986 conviction, pursuant to a guilty plea, of one count of rape in violation of K.S.A. 21-3502 and one count of aggravated criminal sodomy in violation of K.S.A. 21-3506. Petitioner specifically alleges (1) the district court failed to establish a factual basis for the guilty plea; (2) the court failed to advise petitioner of his rights; (3) petitioner was denied effective assistance of counsel: (4) the complaint failed to allege a crime; and (5) the court failed to verify the accuracy of the presentence investigation.

Having examined the record in this matter, the court makes the following findings and order.

Factual Background

Petitioner entered a guilty plea in the District Court of Lyon County, Kansas, to one count of rape and one count of aggravated criminal sodomy pursuant to a plea agreement. In exchange, one count of robbery was dismissed on the State’s motion. In February 1986, petitioner was sentenced to consecutive terms of ten to twenty years on each count.

At the time of petitioner’s plea, the trial court conducted a lengthy inquiry into petitioner’s understanding of the charges and acceptance of the plea bargain before accepting his plea.

In July 1987, the Kansas Supreme Court affirmed the sentence imposed. Petitioner has unsuccessfully pursued post-conviction relief in the state courts prior to commencing this action.

Discussion

Factual basis for guilty plea

Petitioner first asserts the trial court failed to establish a factual basis for his guilty plea. The Kansas Court of Appeals concluded an adequate basis for the plea was established, as required by state law, K.S.A. 22-3210(a)(4), noting the district court judge who accepted the plea had signed the warrant for petitioner’s arrest after reviewing a detailed affidavit, had presided at petitioner’s arraignment, and accepted petitioner’s plea after questioning him under oath.

This court finds no basis for disturbing this conclusion. To present a claim cognizable under § 2254, petitioner must assert a violation of his federal constitutional rights. However, the courts are not generally obligated under the federal constitution to establish a factual basis before accepting a guilty plea. See Paulson v. Black, 728 F.2d 1164, 1167 (8th Cir.), cert. denied, 469 U.S. 931, 105 S.Ct. 325, 83 L.Ed.2d 262 (1984); Sena v. Romero, 617 F.2d 579, 581 (10th Cir.1980); Freeman v. Page, 443 F.2d 493, 497 (10th Cir.), cert. denied, 404 U.S. 1001, 92 S.Ct. 569, 30 L.Ed.2d 554 (1971). The court notes that the due process clause may require some inquiry into the factual basis where a defendant maintains his innocence at the colloquy. North Carolina v. Alford, 400 U.S. 25, 37-39, 91 S.Ct. 160, 167-68, 27 L.Ed.2d 162 (1970). Petitioner, however, did not fall within this category of cases.

Failure to advise of rights

Petitioner next contends the trial judge erred in failing to advise him of his specific rights at trial, including his right to subpoena witnesses, to testify in his own behalf, and to a trial by jury; The court must also reject this claim for relief. While a trial court accepting a guilty plea must determine that the plea is given knowingly and voluntarily, “[a]n enumeration of the specific rights waived and ele[158]*158ments charged, however, is not required.” United States v. Davis, 929 F.2d 554, 557 (10th Cir.1991).

The record before this court clearly demonstrates the trial court questioned petitioner to assure his awareness of his right to a trial, his waiver of cross-examination, and his waiver of the opportunity to offer evidence in his own behalf. (Plea transcript, Case No. 85 CR 377 and 85 CR 381, Vol. 2, pp. 6-7.) The trial court’s questioning was thorough and sufficient to determine voluntariness, and the court rejects plaintiffs claim of constitutional error.

Ineffective assistance of counsel

Petitioner next contends he received inadequate legal representation. To establish his claim of ineffective assistance of counsel, petitioner must meet the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The two-part test set forth in Strickland requires (1) a showing that counsel committed errors so serious that the defendant did not receive the counsel guaranteed by the Sixth Amendment, and (2) a showing that counsel’s performance was so deficient that the defendant did not receive a fair trial. Under Strickland, the defendant bears the burden to demonstrate both incompetence and prejudice, and there is a presumption the attorney’s conduct falls within “the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. at 2065.

The Strickland test is applicable to a claim that a guilty plea is invalid due to the ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In this situation, the defendant must show that absent counsel’s errors, he would not have entered a guilty plea and would have insisted upon a trial. Id. at 59, 106 S.Ct. at 370-71.

The record in this case does not demonstrate that petitioner’s plea was involuntarily made due to inadequate representation..

First, it is clear petitioner's counsel was faced with difficult circumstances, as petitioner had made a confession which was determined voluntary after a Jackson v. Denno hearing.

Petitioner’s counsel negotiated a favorable plea agreement on behalf of his client which resulted in the dismissal of one felony count. Counsel conferred with petitioner on several occasions prior to the entry of the guilty plea (Transcript, Case No. 89-C-223, Vol. 2, p. 6). Moreover, the attorney’s testimony during an evidentiary hearing in a state postconviction proceeding reflects that his performance was competent and professional. Counsel testified as follows regarding his practice in dealing with clients:

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804 F. Supp. 156, 1992 U.S. Dist. LEXIS 15453, 1992 WL 274289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-hannigan-ksd-1992.