FILED
United States Court of Appeals
Tenth Circuit
October 12, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
CARLOS TOVAR MENDOZA,
Petitioner-Appellant,
v. No. 09-2145
TIMOTHY HATCH, Warden;
ERASMO BRAVO, Warden,
Guadalupe Correctional Center;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Respondents-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 6:CIV-05-01303-BB)
Kari Converse, Assistant Federal Public Defender, (Alonzo J. Padilla, Assistant
Federal Public Defender, with her on the briefs), Office of Federal Public
Defender, Albuquerque, New Mexico, for Petitioner-Appellant.
Margaret McLean, Assistant Attorney General (Gary K. King, Attorney General,
with her on the brief), Santa Fe, New Mexico, for Respondents-Appellees.
Before BRISCOE, Chief Judge, HOLLOWAY, Circuit Judge, MELGREN,
District Judge. *
*
The Honorable Eric F. Melgren, United States District Judge, District of
Kansas, sitting by designation.
BRISCOE, Chief Judge.
Petitioner Carlos Tovar Mendoza (Tovar), a New Mexico state prisoner,
appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas petition.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse the judgment of
the district court and remand with instructions to conditionally grant Tovar’s
petition, subject to the State of New Mexico allowing Tovar to withdraw his no
contest plea and proceed on the criminal charges against him.
I
The underlying facts
Tovar and his wife, Lilia, both originally from Chihuahua, Mexico, moved
to Albuquerque, New Mexico, in 1987. Tovar was arrested on federal marijuana
charges in 1999, and was subsequently convicted and sentenced to 46 months’
imprisonment. While Tovar was serving his federal sentence, Lilia obtained a
divorce.
Tovar was released from federal custody in July 2002 and moved back to
Albuquerque, where he resided with his mother. Shortly thereafter, Tovar
resumed an intimate relationship with Lilia and proceeded to spend a substantial
amount of time with her and their three children. Tovar “had a key to Lilia’s
house and would, on occasion, work there building furniture.” ROA, Vol. 1 at
2
451.
“At around 11:30 pm on October 8, 2002, Lilia’s neighbor, Mark Bruening
(Bruening) heard screaming in the street outside his house.” Id. “Bruening went
outside and saw Tovar fighting with someone in Lilia’s red Pontiac, but he could
not make out who the other person in the red Pontiac was.” Id. “When Lilia had
not returned to her house by the next morning, Bruening and another friend went
to Tovar’s apartment,” observed Lilia’s car parked there and saw blood inside of
it, and “called the police.” Id. “The police arrived at Tovar’s apartment and,
after viewing blood on items inside Lilia’s car, entered the apartment and arrested
Tovar.” Id. Lilia was found inside Tovar’s apartment badly beaten.
Lilia was taken to the hospital where she was interviewed by the police.
Lilia provided the police with a recorded statement indicating that, “while she
was in her car, Tovar walked up to her, pushed her, and removed her car keys.”
Id. According to Lilia, Tovar “then got into her vehicle, . . . began beating her,”
and “accused her of sleeping with another man . . . .” Id. Lilia stated that Tovar
took her, “against her will, to an area near the river,” where “[h]e continued to
beat her and she jumped into the river.” Id. Lilia indicated that the incident
ended with “Tovar . . . help[ing] her out of the water and t[aking] her back to his
mother’s apartment.” Id.
During the police interview at the hospital, Lilia made no mention of being
raped by Tovar. Nor do the hospital records “indicate that Lilia reported being
3
raped.” Id. However, approximately ten days later, on October 18, 2002, Lilia
informed the lead prosecutor during the grand jury proceedings “that she had been
sexually assaulted in the back seat of her car by Tovar on the evening of October
8, 2002.” Id. at 451-52.
The state criminal proceedings
On October 18, 2002, a grand jury in Bernalillo County, New Mexico
“indicted Tovar for first degree kidnaping, second degree criminal sexual
penetration (CSP), and aggravated battery against a household member.” Id. at
444-45. Tovar was initially represented by attorney Matthew Torres. “Tovar,
however, became unhappy with Mr. Torres’ [sic] representation and, upon
[Tovar’s] request, his family hired Anthony Ayala.” Id. at 445. “Ayala entered
his appearance on February 25, 2003.” Id.
“The first communication that Tovar had with . . . Ayala was on the
telephone while [Tovar] was incarcerated.” Id. at 453. “During this five or six
minute telephone conversation, . . . Ayala explained [that] Tovar[’s] . . . sister
had hired him, that he had special influence to call the jail, that he was friends
with [the state district judge presiding over the case], and that he had [previously]
made deals with [that judge].” Id.
On March 13, 2003, the deputy district attorney sent a plea offer letter to
Ayala. Less than two weeks later, on March 25, 2003, the parties appeared before
the state district court for a plea hearing. Immediately prior to that hearing,
4
Tovar met Ayala in person for the first time “in a small room next to the
courtroom.” Id. Tovar’s “sister and mother were present at this meeting.” Id.
During the meeting, “Ayala again explained to Tovar that he was friends with [the
judge] and that, because of his influence with the judge, he was the only attorney
that could meet in the room adjacent to the courtroom.” Id. Ayala further
“explained to Tovar that [the judge] was in agreement with a three-year
sentence.” Id. At the ensuing plea hearing, Ayala repeatedly attempted on behalf
of Tovar to enter a plea of no contest to the pending charges. “[T]he assistant
district attorney,” however, “was not prepared to go forward with a no contest
plea without first consulting with his supervisor and the alleged victim.” Id. at
445.
On April 4, 2003, Tovar met in person with Ayala immediately prior to the
second plea hearing. The meeting occurred in the courtroom, with Tovar sitting
in the jury box. Ayala gave Tovar a copy of the proposed “plea agreement, which
was in English, and instructed him to sign it for a three-year sentence.” Id. at
453. Tovar, a native Spanish speaker, cannot read English and, thus, was unable
to read the plea agreement. Ayala did not translate the plea agreement into
Spanish nor did he explain to Tovar the significance of the plea agreement.
On April 11, 2003, an information was filed in the same state criminal
proceeding charging Tovar with an additional count of second degree CSP. “This
charge related to an incident” involving Tovar and Lilia that allegedly occurred
5
on September 4, 2002. Id. at 446. According to Lilia, she went to the hospital on
the evening of September 4, 2002, and reported being raped by [Tovar] earlier
that day.” Id. at 452. Lilia “was interviewed by hospital staff and a Sexual
Assault Nurse’s Examination was conducted.” Id. “The medical records do not
indicate any type of trauma or injury to Lilia.” Id. “Lilia was advised to contact
law enforcement if the crime was to be investigated.” Id. “No police report was
ever filed regarding the September incident.” Id. “Although it is unclear from
the record when Lilia reported the September incident to prosecutors, it was
sometime before the March 13, 2003 plea offer letter to Mr. Ayala, and,
presumably, after the October 18, 2002 grand jury proceedings.” Id.
On April 14, 2003, the state district court held a third plea hearing, during
which Tovar signed “a Repeat Offender Plea and Disposition Agreement.” Id. at
445. Under the terms of that agreement, Tovar “pled no contest to” all of the
pending charges, id., and “faced a potential incarceration of up to thirty years,”
id. at 446. At the hearing, the state district judge “reiterated the terms of the plea
agreement,” telling Tovar, “the bottom line is, I can sentence you anywhere from
0 to 30 years in prison.” Id. (internal quotation marks omitted). Through an
interpreter, Tovar stated under oath “that he understood [the potential sentencing
range], that no one had promised him anything that was not contained in the plea
agreement, that the plea agreement had been interpreted for him, that no one had
forced him to enter the plea, that he was entering the plea under his own free will,
6
and that he was satisfied that the agreement was in his best interest.” Id.
Notably, however, “Ayala stood beside Tovar [throughout the hearing] and
instructed [Tovar] as to how to respond to each of [the judge’s] questions.” Id. at
453-54. Further, when the state district judge asked the assistant district attorney
to outline the factual basis for the plea, Ayala stated, “We’ll stipulate that there is
a factual basis, Your Honor.” Id. at 446 n.4.
The presentence report that was subsequently prepared for Tovar noted, in
pertinent part: “In the present offense, the defendant states that he did not kidnap
or sexually penetrate the victim. He claims that the victim lied; he stated, ‘she
knows what happened.’” State ROA, Doc. 37, Exh. 6 at 3. Tovar appeared for
sentencing on July 1, 2003. During the sentencing hearing, “Lilia testified that on
the evening of October 8, 2002, Tovar battered her and took her, against her will,
to an area near the river where he raped her in the back seat of her car.” Id. at
446-47. Tovar attempted to deny these allegations, telling the state district court,
“This time I didn’t do anything.” ROA, Vol. 1 at 447. The state district court
rejected Tovar’s assertions and sentenced Tovar to a term of imprisonment of
twenty-five years, to be followed by five years of supervised probation.
Because the terms of his plea agreement expressly precluded him from
doing so, Tovar did not file a direct appeal.
The state postconviction proceedings
On December 15, 2003, “Tovar filed a pro se state petition seeking habeas
7
relief on a number of grounds that he grouped under two headings: ‘involuntary
and unknowing plea’ and ‘ineffective assistance of counsel.’” Id. at 448. With
regard to the first claim, Tovar alleged that Ayala “promised him” that, as a result
of a purported “side agreement” Ayala had with the state district judge, he “would
receive a three-year sentence.” Id. Tovar further alleged that he “never read his
plea transcript in Spanish and that [Ayala] first showed it to him while he was
sitting in the jury box” awaiting entry of his plea. Id. As for his second claim,
Tovar alleged that Ayala “failed to investigate obvious inconsistencies that would
have proved [Lilia] had lied about being raped.” Id.
Approximately five months after filing his state petition, Tovar moved to
compel the State to respond. The state district court granted the motion and
simultaneously appointed counsel to represent Tovar. However, approximately
eight months later, the state district court summarily dismissed Tovar’s petition
without an evidentiary hearing and without the state having filed a response. The
state district court’s opinion stated, in its entirety: “The Petitioner freely and
voluntarily entered this plea with full knowledge of the consequences. The Court,
as reflected in the transcript, clearly established that Mr. Tovar understood and
wanted the agreement.” Id. at 448-49 (internal quotation marks omitted).
Tovar filed a petition for writ of certiorari with the New Mexico Supreme
Court. On November 15, 2005, the New Mexico Supreme Court summarily
denied Tovar’s petition.
8
The federal habeas proceedings
Tovar initiated these proceedings on December 14, 2005, by filing a federal
habeas petition pursuant to 28 U.S.C. § 2254. Tovar’s federal habeas petition was
substantially similar to his state habeas petition, i.e., it alleged that his plea was
involuntary and that Ayala provided ineffective assistance. The case was referred
to a magistrate judge who recommended that an evidentiary hearing be conducted
on Tovar’s claims.
On April 16, 2007, the district court adopted that recommendation and
ordered that an evidentiary hearing be held on Tovar’s federal habeas petition.
The district court concluded that “[b]ecause [Tovar] diligently attempted to
develop the factual basis for his claims in accordance with New Mexico law, [28
U.S.C.] § 2254(e)(2) d[id] not apply.” Id. at 174. More specifically, the district
court noted that Tovar attached several affidavits to his pro se state habeas that
“contained factual evidence to support [Tovar]’s involuntary and unknowing plea
claim, as well as his failure to investigate claim.” Id. at 173. The district court in
turn applied the pre-AEDPA standard, which provides that a state habeas
petitioner “is entitled to an evidentiary hearing in federal court when ‘his
allegations, if true and not contravened by the existing factual record, would
entitle him to habeas relief.’” Id. at 174 (quoting Cannon v. Mullin, 383 F.3d
1152, 1175 (10th Cir. 2004)). The district court noted, in doing so, that Tovar’s
claim that his no contest plea was involuntary and unknowing was “supported by
9
an allegation that his attorney promised him he would receive a three year
sentence” based upon “a side agreement [Tovar’s counsel had] with the [state
district] judge.” Id. at 175. Moreover, the district court noted that, although
“[t]he voluntariness of a plea ‘can only be determined by considering all of the
relevant circumstances surrounding it,’” id. (quoting Brady v. United States, 397
U.S. 742, 749 (1970)), the state court record did not “completely contravene[],”
id., and indeed “‘cast no real light’ on” Tovar’s allegations, id. (quoting
Machibroda v. United States, 368 U.S. 487, 494-95 (1962)). The district court
also acknowledged the similarity between Tovar’s allegations and those addressed
by the Supreme Court in Blackledge v. Allison, 431 U.S. 63, 65-71 (1977). In
particular, the district court noted that both cases involved a plea which was
allegedly induced by an unkept promise. Lastly, the district court noted the
Supreme Court’s admonition in Blackledge that a plea or sentencing record,
“although imposing” for a petitioner seeking to challenge whether his plea was
knowing and voluntary, “is not invariably insurmountable.” 431 U.S. at 74.
The magistrate judge conducted a two-day evidentiary hearing on April 1-2,
2008. Eleven witnesses testified, including Tovar, the assistant district attorneys
involved in the prosecution of Tovar, and three members of Tovar’s family.
Ayala did not appear as a witness. According to the record, the state contacted
Ayala about the possibility of testifying, but Ayala declined on the grounds that
he was the “target of a criminal investigation . . . .” Aplt. Br., Att. E at 4.
10
On June 16, 2008, the magistrate judge issued a report and recommendation
recommending that Tovar’s petition for writ of habeas corpus be granted. In her
report, the magistrate judge first concluded that the deferential AEDPA standards
of review were inapplicable because the federal court evidentiary hearing resulted
in material factual findings not considered by the New Mexico state courts. Then,
applying the longstanding test for ineffective assistance of counsel set forth in
Strickland v. Washington, 466 U.S. 668 (1984), the magistrate judge concluded
“that . . . Ayala’s performance fell below an objective standard of reasonableness”
because he “failed to explain the significance of the plea agreement and
recklessly promised Tovar that he had an agreement with [the state district judge]
for a three-year sentence,” 1 ROA, Vol. 1 at 459, and “that Tovar ha[d] sufficiently
demonstrated that, but for . . . Ayala’s error, there [wa]s a reasonable probability
that he would not have pleaded guilty and [would instead have] insisted on going
to trial,” id. at 460. 2 The magistrate judge also concluded “that Tovar’s plea was
involuntary as a result of . . . Ayala’s failure to investigate.” Id. at 461. More
specifically, the magistrate judge concluded that “Ayala’s decision to end his
investigation was not consist[ent] with professional standards,” and that “a
1
As a result, the magistrate judge concluded that “Tovar’s signature on the
plea agreement and statements at the April 14th plea hearing were a ‘ritual more
sham than real.’” ROA, Vol. 1 at 460 (quoting Blackledge, 431 U.S. at 78).
2
The magistrate judge also noted that Tovar “produced evidence that
suggest[ed] he did not rape his ex-wife,” and that “it [wa]s likely that a jury
would have acquitted [him] of the two rape charges.” ROA, Vol. 1 at 460.
11
competent attorney would have continued to investigate the rape charges” before
allowing Tovar to plead no contest to those charges. Id. at 462. The magistrate
judge in turn concluded that “Ayala’s failure to entertain th[e available
mitigating] evidence, the viability of a defense, and discuss the matter with his
client, ensured that Tovar was unable to make an intelligent choice of whether to
accept a plea or go to trial.” Id.
Respondents objected to the magistrate judge’s recommendation. On
January 6, 2009, the district court issued a written order denying Tovar’s petition
and dismissing the action. In doing so, the district court expressly “adopt[ed] the
background facts set forth by [the magistrate judge] in her Proposed Findings and
Recommended Disposition.” Aplt. Br., Att. E at 1. Further, the district court
noted “[t]his [wa]s not the first time a court ha[d] been faced with similar
allegations on a habeas petition alleging . . . Ayala’s perfidy to the detriment of
his clients,” id. at 4 (citing Berry-Gurule v. Lucero, 215 F.3d 1336 (10th Cir.
2006); Matter of Ayala, 693 P.2d 580 (N.M. 1984)), and thus stated it “ha[d] little
reason to doubt [the magistrate judge’s] conclusion[s] that . . . Ayala (1) told
[Tovar] he had reached a side deal with [the state district judge] for a three-year
sentence; (2) . . . Ayala never translated the plea agreement into Spanish or read it
to [Tovar]; and (3) . . . Ayala never investigated witnesses and evidence that
might have challenged Lilia Tovar’s testimony regarding the kidnaping and rape
to which [Tovar] pled nolo contendere.” Id. at 4-5 (italics in original).
12
Nevertheless, the district court concluded it would not “allow[] these arguments
to prevail after [Tovar] repeatedly represented under oath that (1) he read and
understood the plea agreement; (2) he understood he could be sentenced to thirty
years; and (3) no one had made any outside promise to him.” Id. at 5. “In other
words,” the district court stated, “if [Tovar] [wa]s allowed to recant his sworn
testimony based on an alleged secret promise from defense counsel, how c[ould]
any judge rely on a sworn plea colloquy?” Id. In sum, the district court
emphasized that “[t]he fundamental problem” with Tovar’s habeas petition “[wa]s
that it [wa]s built entirely on [Tovar’s] admitted perjury before [the state district
court].” Id.
Tovar moved for reconsideration of the district court’s order, noting that it
contained no mention of Tovar’s claim that Ayala was ineffective for failing to
adequately investigate available mitigating evidence. On May 18, 2009, the
district court issued a memorandum opinion denying Tovar’s motion for
reconsideration. In doing so, the district court concluded that Tovar’s “own
perjury . . . doom[ed] [his] arguments under either theory of ineffective
assistance.” Id., Att. F at 3. In other words, the district court concluded that “the
legal effect of [Tovar’s] plea colloquy resolve[d] the prejudice prong of
[Strickland] against [Tovar].” Id. at 4. The district court also concluded, in any
event, that Tovar “was not prejudiced by . . . Ayala’s failing to investigate
[because] that was not a motivating factor in [Tovar’s] plea.” Id. at 5. Rather,
13
the district court concluded, Tovar pled guilty because he wanted “the three-year
sentence he thought . . . Ayala could procure.” Id.
Tovar filed a timely notice of appeal.
II
Standard of review
Typically, “[a]n application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court” is governed by the
deferential standards of review established by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2254(d). In particular, a
petitioner seeking federal habeas relief must establish that a state court decision
adjudicating a constitutional claim on the merits “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States . . . .” Id. § 2254(d)(1). We do not, however,
apply this “deferential review standard when a federal district court holds an
evidentiary hearing and considers new evidence that was not before the state court
at the time it reached its decision, even if the state court resolved the claim on the
merits.” Young v. Sirmons, 486 F.3d 655, 663 (10th Cir. 2007).
In the case at hand, the state district court denied the claims asserted in
Tovar’s state habeas petition on the merits based exclusively on its review of
Tovar’s plea colloquy. Thus, the state district court did not consider any evidence
outside the trial record in denying Tovar relief. The magistrate judge in this
14
federal habeas proceeding, with the express approval of the district court,
conducted an evidentiary hearing on Tovar’s claims. In doing so, both the
magistrate judge and the district court agreed that Tovar had diligently attempted
to develop the factual basis of his claims in state court in accordance with New
Mexico state law, and thus was not precluded under 28 U.S.C. § 2254(e)(2) from
obtaining a federal evidentiary hearing. In turn, both the magistrate judge and the
district court concluded that under the applicable pre-AEDPA standard, Tovar
was entitled to a federal evidentiary hearing because his allegations, if true and
not contravened by the existing factual record, would entitle him to federal habeas
relief. After the evidentiary hearing was conducted, the magistrate judge issued a
series of proposed findings of fact, which were ultimately adopted in full by the
district court. And, both the magistrate judge and the district court relied on
those factual findings in analyzing Tovar’s two claims for federal habeas relief.
Consequently, because those factual findings were not available to the state
district court when it rejected those same claims in the context of Tovar’s state
habeas proceedings, the state district court’s determinations are not entitled to
deference under AEDPA. Instead, Tovar’s claims are subject to de novo review. 3
3
We agree with Tovar that the district court erred in applying AEDPA’s
review standards and affording deference to the state district court’s decision
denying state habeas relief. See Aplt. Br., Att. E at 9 (“Based on this record, I
cannot say that [the state district court’s] acceptance of [Tovar’s] plea as
voluntary violated the AEDPA standard.”); id. at 10 (“The question, then, is
whether the conclusion of the New Mexico courts that [Tovar’s] plea was free and
(continued...)
15
Voluntariness of the plea
Tovar contends the district court erred in concluding that his no contest
plea to the pending state charges was knowing and voluntary. For the reasons
that follow, we agree and conclude that Tovar’s no contest plea was involuntary
and therefore constitutionally invalid.
“[I]f a defendant’s guilty plea [or no contest plea] is not . . . voluntary and
knowing, it has been obtained in violation of due process and is therefore void.”
Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969). Thus, “[t]he longstanding test
for determining the validity of a guilty plea [or plea of no contest] is ‘whether the
plea represents a voluntary and intelligent choice among the alternative courses of
action open to the defendant.’” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting
North Carolina v. Alford, 400 U.S. 25, 31 (1970)). A guilty plea or a plea of no
contest can “be challenged under the Due Process Clause” if “it develops that the
defendant was not fairly apprised of its consequences . . . .” Mabry v. Johnson,
467 U.S. 504, 509 (1984), disapproved of on other grounds by Puckett v. United
States, 129 S.Ct. 1423 (2009). For example, an allegation that a defendant’s plea
“was based on grossly inaccurate advice about the actual time he would serve in
prison” gives rise to “a colorable claim of a constitutional violation.” Gonzalez
v. Crosby, 545 U.S. 524, 542 (2005).
3
(...continued)
voluntary is “contrary to, or involved an unreasonable application of, clearly
established Federal law . . . .”).
16
The procedures under which a challenged plea was taken play an important,
but not decisive, role in determining the validity of the plea. The Supreme Court
has “observed that no procedural device for the taking of guilty pleas is so perfect
in design and exercise as to warrant a per se rule rendering it ‘uniformly
invulnerable to subsequent challenge.’” Blackledge, 431 U.S. at 73 (quoting
Fontaine v. United States, 411 U.S. 213, 215 (1973)). That said, the Court has
also emphasized that “the representations of the defendant, his lawyer, and the
prosecutor at such a hearing, as well as any findings made by the judge accepting
the plea, constitute a formidable barrier in any subsequent collateral
proceedings,” id. at 73-74, and “[s]olemn declarations in open court carry a strong
presumption of verity,” id. at 74. Together, these principles establish that “the
barrier of the plea or sentencing proceeding record, although imposing, is not
invariably insurmountable.” Id. Consequently, “federal courts cannot fairly
adopt a per se rule excluding all possibility that a defendant’s expectations at the
time his guilty plea was accepted were so much the product of such factors as
misunderstanding, duress, or misrepresentation by others as to make the guilty
plea a constitutionally inadequate basis for imprisonment.” Id. at 75.
Although the district court in this case acknowledged some of these
principles, it erroneously concluded that Tovar’s case was analogous to two cases
in which this court rejected state habeas petitioners’ claims that their guilty pleas
were involuntary. In doing so, the district court first stated:
17
The Tenth Circuit found a guilty plea was voluntary on analogous
facts in Worthen v. Meachum, 842 F.2d 1179 (10th Cir. 1988),
overruled on other grounds, Coleman v. Thompson, 501 U.S. 722
(1991). The defendant therein argued his plea was involuntary
because his counsel had misrepresented to him that defendant would
be paroled in five or six years and would be given immunity from
prosecution on other charges. 842 F.2d at 1183. The Tenth Circuit
noted, “Worthen repeatedly stated on the record that he had not been
coerced, threatened, or promised anything by his attorney or anyone
else.” 842 F.2d at 1183. The Court concluded, “When we examine
the present case under the standards utilized in Blackledge, we
conclude that the broken promises Worthen alleges are insufficient to
undermine the voluntariness of his plea.” Id. [the actual citation
should be to page 1184]
Aplt. Br., Att. E at 13. But the district court overlooked the key facts upon which
we rejected Worthen’s claim; facts that are far different than those alleged by
Tovar in this case:
A defendant’s expectation of parole that is based on a bad guess
by his attorney does not render a plea involuntary. When an
involuntariness claim rests on the faulty legal decisions or
predictions of defense counsel, the plea will be deemed
constitutionally involuntary only when the attorney is held to have
been constitutionally ineffective. Here, Worthen was told on the
record that neither his attorney nor the court had any authority over
the Pardon and Parole Board. He does not suggest any reason why he
would have chosen to face the death penalty had his attorney
correctly informed him of his parole eligibility; nor does he allege
that he would have withheld his guilty plea had he known the true
parole possibilities. Under these circumstances, even if Worthen’s
attorney's alleged mistaken advice about parole rendered his
performance inferior to that reasonably expected of attorneys in these
circumstances, Worthen was not prejudiced by advice that the court
specifically told him was incorrect.
Worthen, 842 F.2d at 1184 (citations omitted). We have then the distinction in
Worthen not of a promise by counsel of a specific sentence, as we have in Tovar’s
18
case, but rather only a bad guess regarding parole eligibility.
The district court also concluded that Tovar’s case was analogous to
Laycock v. State of N.M., 880 F.2d 1184 (10th Cir. 1989). But that case, like
Worthen, is distinguishable from the instant case. The petitioner in Laycock, a
New Mexico state prisoner who had pled guilty to armed robbery with a firearm
enhancement and was sentenced to nine years’ imprisonment, filed a federal
habeas petition claiming that his defense attorney “materially misrepresented the
plea bargain by promising him a suspended sentence if [a particular drug
rehabilitation center] accepted him into its drug treatment program.” Id. at 1186.
We noted that the petitioner made no mention of the drug rehabilitation center in
either his initial petition for state postconviction relief or in his subsequent state
habeas petition, and only alleged misrepresentation for the first time in his federal
habeas petition. Thus, we concluded, understandably, that “[t]he facts and
circumstances support[ed] the district court’s conclusion that counsel did not
materially misrepresent the plea.” Id.
The district court in this case also appears to have, contrary to the Supreme
Court’s admonition in Blackledge, effectively prohibited Tovar from obtaining
federal habeas relief due to his in-court statements during the state plea colloquy:
This case is difficult because based on his disciplinary record, it
is easy to convince oneself . . . Ayala might engage in the type of
misrepresentation alleged by [Tovar]. [Tovar] also has the benefit of
having members of his immediate family testify to having heard
representations regarding a deal with [the state district judge].
19
Unfortunately, [Tovar] also carries the weight of a reputation for a
lack of veracity. Even accepting all of [Tovar’s] claims regarding . .
. Ayala’s promises as true, however, they cannot excuse [Tovar’s]
blatant and repeated misrepresentations under oath to [the state
district judge] that he had read the plea agreement and no one had
promised him anything else.
Aplt. Br., Att. E at 14-15 (emphasis added). In short, the district court refused to
grant federal habeas relief due to what it characterized as Tovar’s “blatant and
repeated misrepresentations under oath to [the state district judge] that he had
read the plea agreement and no one had promised him anything.” Id. at 15. But
nothing in Supreme Court precedent suggests that a due process violation
resulting from the entry of an unknowing plea can be overlooked due solely to the
defendant having made false in-court statements during the plea hearing. Indeed,
such a rule would be contrary to Blackledge’s admonition that federal courts not
“adopt a per se rule excluding all possibility that a defendant’s representations at
the time his guilty plea was accepted were so much the product of such factors as
misunderstanding, duress, or misrepresentation by others as to make the guilty
plea a constitutionally inadequate basis for imprisonment.” 431 U.S. at 75.
Moreover, the district court’s conclusion overlooks the fact that Tovar’s
responses during the plea colloquy were, as the magistrate judge aptly concluded,
“a courtroom ritual more sham than real.” Id. at 78.
Indeed, Tovar testified during the federal evidentiary hearing, when
questioned why he responded “Yes” during the plea colloquy when asked by the
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state district judge if he understood he could receive a sentence of up to thirty
years’ imprisonment: “I said ‘Yes’ because Ayala was the one telling me what
answer to give to the judge, when it was ‘Yes’ and when it was ‘No,’ because of
the plea agreement we had for three years between him and [the state district
judge] and me.” ROA, Vol. 4 at 590. More specifically, Tovar testified: “When
the [state district] judge was asking the answers – I mean when the judge was
asking the questions, Anthony Ayala was standing on my left side, and he was
giving me the answers. And I remember very well hearing those two words:
‘Yes.’ ‘No.’ ‘Yes.’ ‘No.’” Id. Likewise, Tovar testified, when questioned why
he responded “No” when asked by the state district judge “if anyone had made
any outside promise to [him]”: “I said ‘No’ because of the relationship; and
because of the best attorney[ 4], Anthony Ayala; and his friendship with [the state
district judge]; and the agreement we had for three years; him saying, ‘Don’t
worry. Trust me. Just go along with everything I say.’” Id. at 590-91.
We conclude, applying the Blackledge analytical framework, that Tovar’s
no contest plea was the product of misrepresentations by Ayala so significant “as
to make [Tovar’s no contest] plea a constitutionally inadequate basis for [his
current] imprisonment.” 431 U.S. at 75. According to Tovar, Ayala repeatedly
4
Tovar testified earlier in the proceeding that when he met with Ayala
prior to the plea hearing, Ayala told him he was friends with the state district
judge and that he (Ayala) “[wa]s the best attorney; to trust him.” ROA, Vol. 4 at
588.
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stated that he was the best attorney, that he had a special relationship with the
state district judge, and that the state district judge had agreed to impose a three-
year sentence on Tovar. As the magistrate judge emphasized, this latter
representation “was not a predication, probability, or an estimate, but rather a
promise” to Tovar. ROA, Vol. 1 at 459. Tovar in turn believed these
representations and thus, at the time of the plea hearing, was not fairly apprised of
the consequences of his plea. In other words, Tovar’s reliance on Ayala’s blatant
and significant misrepresentations about the amount of time Tovar would spend in
prison rendered his no contest plea unknowing and violative of Tovar’s due
process rights. See generally Hill, 474 U.S. at 56; Boykin, 395 U.S. at 243 n.5.
In light of this deprivation of Tovar’s constitutional rights, we conclude
that the appropriate course of action is to reverse the judgment of the district
court and remand with instructions to conditionally grant Tovar’s federal habeas
petition, subject to the State of New Mexico, within a reasonable time, allowing
Tovar to withdraw his no contest plea and proceed on the criminal charges that
were filed against him. 5 See generally Nunes v. Mueller, 350 F.3d 1045, 1056-57
(10th Cir. 2003) (discussing the broad discretion afforded federal habeas courts in
5
For essentially these same reasons, we conclude that Tovar would also be
entitled to relief under his alternative theory that Ayala was constitutionally
ineffective in advising Tovar that he (Ayala) had secured the state district judge’s
agreement to sentence Tovar to a three-year prison sentence. Also, in light of
these conclusions, we find it unnecessary to address Tovar’s remaining claim that
Ayala was constitutionally ineffective for failing to adequately investigate.
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fashioning appropriate relief).
III
The judgment of the district court is REVERSED and the case
REMANDED to the district court with instructions to conditionally grant Tovar’s
federal habeas petition, subject to the State of New Mexico, within a reasonable
time, allowing Tovar to withdraw his no contest plea and proceed on the criminal
charges against him. Appellant’s motion to seal the briefs is GRANTED.
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