COLEMAN, Circuit Judge.
Wesley Trahan was born in Houston, Texas, August 13, 1952. Evidence in the possession of Texas authorities indicated that on December 28,1968, Trahan committed five felonies.1 One of these was a particularly loathsome rape, in which Trahan and three male companions repeatedly raped Mary Jo Fregia until the seat of the vehicle they had forcibly entered was covered with blood and the victim’s blood ran down into her socks. The record reveals that prior to the disposition of Trahan’s case two of the participants, Lawrence Arceneaux and Carlo Melanson, pleaded guilty to their part in the crime and were sentenced to the penitentiary for life.
Trahan was arrested on December 31, warned of his rights, interrogated that night by the district attorney, and declined to give a statement. The county grand jury indicted him for rape on January 13, 1969. The indictments for the other alleged offenses were filed April 1.
In the meantime, Trahan’s father had employed a Houston attorney, C. C. Divine, to represent the defendant, paying a retainer of $250. Divine forwarded a copy of Trahan’s birth certificate to the district attorney, verifying his age, which rendered him immune to the death penalty under Texas law as then written. On April 2, 1969, Divine appeared in the Texas district court and obtained a continuance of the case. He thereafter disappeared into total silence, never seeing his client or maintaining touch with the court to find out what was going on with reference to the case. When the son later pleaded guilty, as well as in the state habeas corpus proceedings, the father testified that he was unable to raise the fee assessed by Divine, that he had talked with two other lawyers, that he could not pay the fee they proposed, and he had not thereafter seen or heard from Divine.
After pleading guilty to rape with the advice of appointed counsel (Attorney Carter), on August 29, 1969, and being sentenced to the state penitentiary for life, Trahan sought release by way of habeas corpus. On June 15, 1973, the Texas district court held a full scale evidentiary hearing. The testimony of the district attorney, of appointed counsel, of Trahan’s father, and of Trahan himself, filled a typewritten transcript of 174 pages.
On the evidence thus adduced, the state court found that:
(1) Trahan “voluntarily, knowingly, and understandingly entered a plea of guilty with the assistance of effective counsel”;
(2) “He has wholly failed to establish any fact indicating otherwise”;
(3) His “plea of guilty was not induced nor made as a result of any fear of the death penalty”; and
[1307]*1307(4) Trahan “is unworthy of belief”.
Habeas corpus relief was denied. The Court of Criminal Appeals affirmed, without written opinion.
On December 3, 1973, Trahan filed his petition in the federal district court, alleging that his guilty plea was “involuntary” and “without assistance of effective court appointed counsel”.
By agreement of the parties, the case was submitted on the state court record, oral argument, and post hearing deposition from Attorney Divine, in which he averred that he would not have abandoned his client for failure to pay the fee (but which overlooked any explanation for his retreat into inaction and ineffectiveness).
The District Court granted the writ. It did so, however, on the basis that the district attorney had negotiated a plea with the defendant in the absence of his attorney of record (Divine) thus denying Trahan counsel at a critical stage of the proceedings. The District Court further held that “It is unnecessary to determine whether attorney Carter’s performance constituted ineffective assistance of counsel or whether petitioner’s guilty plea was involuntary”.
Since the District Court expressly failed to decide these issues, this Court should not now attempt to do so in the exercise of its appellate function.2
We now revert to a more detailed discussion of Trahan’s contacts with the state district attorney. On the night of the arrest, the district attorney questioned Trahan and later admitted that he “could have” told Trahan that he was subject to the death penalty, although he asserted that he had no recollection of having done so. On January 31, 1969, the district attorney filed a notice of intent to seek the death penalty against Trahan. The birth certificate later forwarded by Divine demonstrated that Trahan was sixteen years of age at the time of the alleged offense and consequently could not have been assessed the death penalty under Texas law. Trahan remained in jail throughout.
On August 26 or 27, 1969, the September term of criminal court being imminent, the jailer informed the district attorney that Trahan had requested a meeting with the prosecutor, Mr. Woods. Woods testified that the request raised some concern because he knew that the defendant had an attorney of record. He nevertheless satisfied himself that a meeting without defense counsel present would be “ok”. At the jailhouse conference which followed, Woods told Trahan that he would prosecute each and all charges against him until he succeeded in obtaining a life sentence. Woods did not inform Trahan that he could not receive the death penalty but testified that Trahan already knew that, arguing for a recommended sentence of less than life.
On August 29, Trahan, along with his parents, believed that Divine no longer represented him. Between 9:45 and 10 o’clock, the court appointed a lawyer of some sixteen years experience, including considerable criminal practice (Carter), to represent the defendant.
Quite naturally, Carter interviewed Woods to learn his attitude about the case. Woods advised Carter that the state was seeking the death penalty. Carter knew, however, that the death penalty was unavailable and so advised the defendant, which was information that the defendant already had. Woods offered to recommend life imprisonment on the rape charge, plus an agreement not to proceed on the other charges. He declared that he would never accept anything less. The district attorney opened his files to Carter’s inspection. There Carter saw statements from Trahan’s co-defendants, a picture of the vehicle in which the rape allegedly occurred, a picture of the blood on the seat, a shotgun allegedly used in the incident, and a watch belonging to the boyfriend who had been parked with the victim, which a girl had turned over to [1308]*1308the police, stating that she had received it from Trahan.
Carter then conferred with Trahan in the jury room, advising him that the state appeared to have overwhelming evidence implicating him in the rape. Carter testified that Trahan was more interested in how much time he would actually have to serve on a life sentence. Carter told him that he did not know and offered the thought that this would somehow depend on Trahan’s behaviour in prison (influencing good time credit, etc.).
Defendant and Carter then returned to the courtroom and announced that they were ready to proceed. The state announced its withdrawal of the notice of intent to seek the death penalty, this being a necessary prerequisite before the court could proceed to the receipt of a guilty plea.
In the proceedings which immediately followed in open court, all of Trahan’s constitutional rights were explained to him.
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COLEMAN, Circuit Judge.
Wesley Trahan was born in Houston, Texas, August 13, 1952. Evidence in the possession of Texas authorities indicated that on December 28,1968, Trahan committed five felonies.1 One of these was a particularly loathsome rape, in which Trahan and three male companions repeatedly raped Mary Jo Fregia until the seat of the vehicle they had forcibly entered was covered with blood and the victim’s blood ran down into her socks. The record reveals that prior to the disposition of Trahan’s case two of the participants, Lawrence Arceneaux and Carlo Melanson, pleaded guilty to their part in the crime and were sentenced to the penitentiary for life.
Trahan was arrested on December 31, warned of his rights, interrogated that night by the district attorney, and declined to give a statement. The county grand jury indicted him for rape on January 13, 1969. The indictments for the other alleged offenses were filed April 1.
In the meantime, Trahan’s father had employed a Houston attorney, C. C. Divine, to represent the defendant, paying a retainer of $250. Divine forwarded a copy of Trahan’s birth certificate to the district attorney, verifying his age, which rendered him immune to the death penalty under Texas law as then written. On April 2, 1969, Divine appeared in the Texas district court and obtained a continuance of the case. He thereafter disappeared into total silence, never seeing his client or maintaining touch with the court to find out what was going on with reference to the case. When the son later pleaded guilty, as well as in the state habeas corpus proceedings, the father testified that he was unable to raise the fee assessed by Divine, that he had talked with two other lawyers, that he could not pay the fee they proposed, and he had not thereafter seen or heard from Divine.
After pleading guilty to rape with the advice of appointed counsel (Attorney Carter), on August 29, 1969, and being sentenced to the state penitentiary for life, Trahan sought release by way of habeas corpus. On June 15, 1973, the Texas district court held a full scale evidentiary hearing. The testimony of the district attorney, of appointed counsel, of Trahan’s father, and of Trahan himself, filled a typewritten transcript of 174 pages.
On the evidence thus adduced, the state court found that:
(1) Trahan “voluntarily, knowingly, and understandingly entered a plea of guilty with the assistance of effective counsel”;
(2) “He has wholly failed to establish any fact indicating otherwise”;
(3) His “plea of guilty was not induced nor made as a result of any fear of the death penalty”; and
[1307]*1307(4) Trahan “is unworthy of belief”.
Habeas corpus relief was denied. The Court of Criminal Appeals affirmed, without written opinion.
On December 3, 1973, Trahan filed his petition in the federal district court, alleging that his guilty plea was “involuntary” and “without assistance of effective court appointed counsel”.
By agreement of the parties, the case was submitted on the state court record, oral argument, and post hearing deposition from Attorney Divine, in which he averred that he would not have abandoned his client for failure to pay the fee (but which overlooked any explanation for his retreat into inaction and ineffectiveness).
The District Court granted the writ. It did so, however, on the basis that the district attorney had negotiated a plea with the defendant in the absence of his attorney of record (Divine) thus denying Trahan counsel at a critical stage of the proceedings. The District Court further held that “It is unnecessary to determine whether attorney Carter’s performance constituted ineffective assistance of counsel or whether petitioner’s guilty plea was involuntary”.
Since the District Court expressly failed to decide these issues, this Court should not now attempt to do so in the exercise of its appellate function.2
We now revert to a more detailed discussion of Trahan’s contacts with the state district attorney. On the night of the arrest, the district attorney questioned Trahan and later admitted that he “could have” told Trahan that he was subject to the death penalty, although he asserted that he had no recollection of having done so. On January 31, 1969, the district attorney filed a notice of intent to seek the death penalty against Trahan. The birth certificate later forwarded by Divine demonstrated that Trahan was sixteen years of age at the time of the alleged offense and consequently could not have been assessed the death penalty under Texas law. Trahan remained in jail throughout.
On August 26 or 27, 1969, the September term of criminal court being imminent, the jailer informed the district attorney that Trahan had requested a meeting with the prosecutor, Mr. Woods. Woods testified that the request raised some concern because he knew that the defendant had an attorney of record. He nevertheless satisfied himself that a meeting without defense counsel present would be “ok”. At the jailhouse conference which followed, Woods told Trahan that he would prosecute each and all charges against him until he succeeded in obtaining a life sentence. Woods did not inform Trahan that he could not receive the death penalty but testified that Trahan already knew that, arguing for a recommended sentence of less than life.
On August 29, Trahan, along with his parents, believed that Divine no longer represented him. Between 9:45 and 10 o’clock, the court appointed a lawyer of some sixteen years experience, including considerable criminal practice (Carter), to represent the defendant.
Quite naturally, Carter interviewed Woods to learn his attitude about the case. Woods advised Carter that the state was seeking the death penalty. Carter knew, however, that the death penalty was unavailable and so advised the defendant, which was information that the defendant already had. Woods offered to recommend life imprisonment on the rape charge, plus an agreement not to proceed on the other charges. He declared that he would never accept anything less. The district attorney opened his files to Carter’s inspection. There Carter saw statements from Trahan’s co-defendants, a picture of the vehicle in which the rape allegedly occurred, a picture of the blood on the seat, a shotgun allegedly used in the incident, and a watch belonging to the boyfriend who had been parked with the victim, which a girl had turned over to [1308]*1308the police, stating that she had received it from Trahan.
Carter then conferred with Trahan in the jury room, advising him that the state appeared to have overwhelming evidence implicating him in the rape. Carter testified that Trahan was more interested in how much time he would actually have to serve on a life sentence. Carter told him that he did not know and offered the thought that this would somehow depend on Trahan’s behaviour in prison (influencing good time credit, etc.).
Defendant and Carter then returned to the courtroom and announced that they were ready to proceed. The state announced its withdrawal of the notice of intent to seek the death penalty, this being a necessary prerequisite before the court could proceed to the receipt of a guilty plea.
In the proceedings which immediately followed in open court, all of Trahan’s constitutional rights were explained to him. He signed a written waiver of trial by jury; he waived the appearance, confrontation and cross examination of witnesses and any documentary evidence; he waived the ten days allowed by law for preparation for trial by appointed counsel; he waived the time allowed by law before the imposition of sentence. He signed a request that he be sentenced at that time. He assured the court that he was not influenced by any threat, fear, persuasion, or delusive hope of pardon — that he was pleading guilty because he was guilty and for no other reason. He stated that he had not been promised a lighter sentence if he pleaded guilty. In response to a question propounded to him he responded that he, along with three other boys, “did rape Mary Jo Fregia”, and that a fourth boy present did not participate in the rape. Being duly arraigned, he was sentenced to imprisonment for not less than five years nor more than life, with credit for the time spent in jail prior to the plea.
The other charges against him have never been brought to trial.
Proceedings in the United States District Court
The District Court, of course, was cognizant of the presumption of correctness which attends state court fact determinations under 28 U.S.C., Section 2254(d). He found the following “unusual and disturbing background” to Trahan’s plea:
(1) Trahan decided to plead guilty during the conversation with the prosecutor in the absence of defense counsel;
(2) A “significant possibility” existed that fear of the death penalty had formed one of the bases for the plea;
(3) The trial court or appointed counsel would ordinarily have attempted to contact Divine, the attorney of record;
(4) With a minimum of counseling and an investigation confined to the district attorney’s file, Carter allowed his client to plead guilty to the maximum applicable sentence within thirty minutes of his appointment;
(5) There should have been a dismissal of the other charges, rather than an agreement not to pursue them.
The Law
The law is such that we need not, indeed we should not, express any view concerning the merits of the preceding five points.
Toiiett v. Henderson3 was a case in which a state prisoner sought to invalidate his guilty plea for systematic exclusion of blacks from the indicting grand jury. The .Supreme Court held:
We hold that after a criminal defendant pleads guilty, on the advice of counsel, he is not automatically entitled to federal collateral relief on proof that the indicting grand jury was unconstitutionally selected. The focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity. .
We thus reaffirm the principle recognized in the Brady [Brady v. U. S., 397 [1309]*1309U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)] trilogy: a guilty plea represents a break in the chain of events which has proceeded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.
In McMann v. Richardson 4 the Court had rejected a challenge to a state prisoner’s guilty plea as motivated by a prior coerced confession, with the following observation:
Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel’s advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.
Following Tollett, we have held that a collateral attack upon a guilty plea to rape was limited “to a challenge to the voluntary and knowing nature of his plea”.5
We have also reaffirmed the principle that a guilty plea lacks the required voluntariness and understanding if entered on advice of counsel that fails to meet the minimum standards of effectiveness derived from the sixth and fourteenth amendments.6
It necessarily follows that since Trahan pleaded guilty with at least some advice from court appointed counsel, any question with reference to his uncounselled meeting with the district attorney, two or three days previously, was not open to attack by federal habeas corpus. The holding of the District Court to the contrary must be reversed.
Since, however, the District Court did not decide the issues of voluntariness and effectiveness of counsel, the case must be remanded for an appropriate disposition of those claims.
REVERSED and REMANDED.