UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-8026
TONY ORLANDO PRICE,
Petitioner - Appellant,
versus
GENE JOHNSON, Virginia Department of
Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (CA-04-224-7)
Submitted: February 7, 2007 Decided: February 23, 2007
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John J. Korzen, Rebecca L. Kinlein, Erik A. Lindahl, WAKE FOREST
UNIVERSITY, Winston-Salem, North Carolina, for Appellant. Kathleen
Beatty Martin, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony Orlando Price appeals from the district court’s
denial of his 28 U.S.C. § 2254 (2000) petition. He pled guilty to
malicious wounding by stabbing and by throwing a caustic substance.
We previously granted a certificate of appealability on the issue
of whether Price’s plea was knowing and voluntary and appointed
counsel to represent Price. After formal briefing by the parties,
we affirm the district court’s order as to that issue.1
Price argues that because his guilty plea hearing was
“fraught with confusion” concerning whether he intended to enter an
Alford2 plea or traditional guilty plea, his guilty plea was not
knowing and voluntary. Price has no constitutional right to plead
guilty, or to require the court to accept an Alford plea.
Santobello v. New York, 404 U.S. 257, 262 (1971); Alford, 400 U.S.
at 38 n.11. We find any error in accepting Price’s plea as a
traditional guilty plea versus an Alford plea was harmless error.
Even if Price’s guilty plea were involuntary because he intended to
enter an Alford plea, the error would not affect his substantial
rights. See Perry v. Commonwealth, 533 S.E.2d 651, 652-53 (Va. Ct.
App. 2000) (holding that Alford pleas are treated the same as a
guilty plea and thus “by freely and intelligently entering an
1
We deny a certificate of appealability and dismiss the appeal
as to Price’s other claims.
2
North Carolina v. Alford, 400 U.S. 25 (1970).
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Alford plea,” Perry “waived his right to appeal the issue of
whether the evidence was sufficient to prove beyond a reasonable
doubt that he was guilty of that charge.”).
Price, as the Commonwealth contends, has not argued that
he intended to plead not guilty, rather that he intended to enter
an Alford plea instead of a traditional guilty plea. Price argues
on appeal that there was insufficient evidence to sustain his
conviction. Under Perry, regardless of whether Price entered an
Alford plea or traditional guilty plea, he waived his right to
challenge the sufficiency of the evidence. Therefore, even if
Price’s traditional guilty plea were involuntary because he
intended to enter an Alford plea, the error would be harmless.
We therefore affirm the district court’s order denying
relief on Price’s § 2254 petition. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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