Hill v. Lockhart/Concurrence White

by Byron White

JUSTICE WHITE, with whom JUSTICE STEVENS joins, concurring in the judgment.

The only question properly before the Court is whether petitioner is entitled to an evidentiary hearing in a federal habeas proceeding where he has alleged that his guilty plea [p61] entered in state court was involuntary and resulted from ineffective assistance of counsel. I write separately to state why, under the particular facts of this case, petitioner is not entitled to an evidentiary hearing on his habeas claim of ineffective assistance of counsel.

It is necessary, in my view, to focus on the "plea statement" signed by petitioner. The statement is a standardized form to be completed by defense counsel, in consultation with his client, and submitted to the court for consideration. The form calls for the insertion of specific information in the appropriate spaces. Among the items to be included are the crime with which the defendant is charged, whether that crime is a felony or a misdemeanor, and the maximum sentence and/or fine defendant could receive if found guilty of the offense. There is also a blank space in which to indicate the number of prior convictions which the defendant has suffered. App. 28.

As the majority indicates, petitioner signed such a written "plea statement" indicating that he understood the charges against him, the consequences of pleading guilty, and that he was "aware of everything in this document." Ante, at 54; App. 28. In the space provided for disclosing the number of prior convictions, petitioner's form reads "0." Ibid.

Although it is unclear whether petitioner or his counsel filled out the form and inserted this number, there is no allegation that petitioner told his attorney about his previous Florida felony conviction. Indeed, it is incredible that the attorney would have filled in the "0" had he known there was a prior conviction. Petitioner thus has no factual basis for suggesting that his attorney's advice was incompetent, or that he was affirmatively misled by counsel as to his earliest possible parole eligibility date. Without an allegation that the attorney knew of petitioner's prior conviction, but failed to inform him of the applicability of the Arkansas "second offender" statute, there is no reason to provide petitioner with an evidentiary hearing on his claim of ineffective assistance [p62] of counsel. None of his allegations, if proved, would entitle petitioner to relief, as there is nothing in the record to indicate "that [defense] counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687–688 (1984); see also McMann v. Richardson, 397 U.S. 759, 771 (1970).

Were it not for the misinformation in the plea statement—had petitioner's attorney known of a prior conviction and still informed petitioner that he would be eligible for parole after serving one-third of his sentence—petitioner would be entitled to an evidentiary hearing and an opportunity to prove that counsel's failure to advise him of the effect of Ark. Stat. Ann. § 43-2829B(3) (1977) amounted to ineffective assistance of counsel. The failure of an attorney to inform his client of the relevant law clearly satisfies the first prong of the Strickland analysis adopted by the majority, as such an omission cannot be said to fall within "the wide range of professionally competent assistance" demanded by the Sixth Amendment. Strickland v. Washington, supra, at 690.

Moreover, an examination of the record reveals that petitioner alleged sufficient facts to "show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Ante, at 59. In the first two paragraphs of his habeas petition, petitioner alleged, in pertinent part, as follows:

"I agreed to plead guilty with the understanding that I'd get 35 yrs. for 1st degree murder & 10 years concurrent for theft of property, and that I would only have ⅓ of my sentence to do, less good time. . . .

"My lawyer told me that a plea negotiation was binding to both sides and that the Court would impose the sentence agreed to by me and the prosecutor. I did not know that the Court could deviate from the concessions agreed to without informing me, nor that it could say to do 1/3 minimum enstead [sic] of just 1/3, until parole." App. 8–9.

[p63] Later, petitioner made the following objections to the Magistrate's proposed order:

"Petitioner's first two arguments should be restated to allege that his guilty plea was involuntary in that his counsel improperly advised him as to his earliest possible parole eligibility date and as a result of that incorrect advice the Petitioner did not fully understand the consequences of his plea." Id., at 40.

"The Petitioner contends that his counsel's erroneous advice concerning his potential parole eligibility date was a critical factor in his decision to enter a guilty plea. It was an important consequence of his plea which he did not understand." Id., at 41–42.

"It is Petitioner's contention that he would not have entered the negotiated plea had his attorney correctly advised him that he would be required to serve one-half of his sentence less good time under Arkansas law." Id., at 46–47.

In sum, because petitioner failed to allege that his attorney knew about his prior conviction but failed to inform him of the applicability of Ark. Stat. Ann. § 43-2829B(3) (1977), I find that petitioner did not allege sufficient facts to entitle him to an evidentiary hearing on his ineffective-assistance-of-counsel claim. Had petitioner made such an allegation, however, he would be entitled to such a hearing, as he clearly alleged more than sufficient facts that, if proved, would show that he was prejudiced by his counsel's error, and thus entitled to habeas relief.