IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-50368
Summary Calendar
__________________
ROMERO GRANDO TREVINO, JR.,
Petitioner-Appellant,
versus
WAYNE SCOTT, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. MO 94-CA-099
- - - - - - - - - -
December 5, 1995
Before HIGGINBOTHAM, DUHE' and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
The motion of Romero Granado Trevino, Jr., to proceed in
forma pauperis is GRANTED. Carson v. Polley, 689 F.2d 562, 586
(5th Cir. 1982). Trevino's motion for a certificate of probable
cause (CPC) to appeal the denial of his petition filed pursuant
to 28 U.S.C. § 2254 is also GRANTED. Barefoot v. Estelle, 463
U.S. 880, 893 n.4 (1983)
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-50368
-2-
Trevino argues that he received ineffective assistance of
counsel because his court-appointed counsel coerced him into
pleading guilty. A valid guilty plea waives all
nonjurisdictional defects including an ineffective-assistance-of-
counsel claim, unless the ineffective-assistance claim affects
the voluntariness of the plea. Smith v. Estelle, 711 F.2d 677,
682 (5th Cir. 1983), cert. denied, 466 U.S. 906 (1984).
Trevino challenges the validity of his plea to the extent that he
argues that the trial court failed to admonish him of the full
range of punishment he faced. Trevino contends that the trial
court, in failing to "admonish" him, violated Article 26.13 of
the Texas Code of Criminal Procedure.
Trevino raised this argument for the first time in the
district court in his response to the respondent's motion for
summary judgment. Neither the respondent nor the district court
addressed this issue. The district court should have construed
Trevino's response as a motion to amend his petition and granted
it. See Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir.
1972) (memo opposing summary judgment raised a new issue and
should have been treated as a motion to amend and granted).
Trevino raised the issue after the respondent conceded
exhaustion of state remedies. In his state-court application for
habeas relief, Trevino argued that the trial judge "[k]new before
he excepted [sic] this petitioner['s] `guilty plea' that [his]
attorney had not `admonished' [him] of his plea, nor the
Governing Laws of the Case of Burglary, nor . . . [his] Fifth
Amendment rights to self-incrimination. . . ." In support of
No. 95-50368
-3-
his argument, Trevino cited, among other authorities, Texas Code
of Criminal Procedure 26.13. Article 26.13(a)(1) provides:
"Prior to accepting a plea of guilty . . ., the court shall
admonish the defendant of . . . the range of the punishment
attached to the offense."
The trial court denied the application. The Texas Court of
Criminal Appeals denied the application without written order.
The record reflects, therefore, that Trevino exhausted his state-
court remedies as to this claim. See Picard v. Connor, 404 U.S.
270, 275 (1971); Deters v. Collins, 985 F.2d 789, 795 (5th Cir.
1983) (exhaustion requirement is satisfied when the substance of
a federal habeas corpus claim has been fairly presented to the
highest state court).
Neither the district court nor the respondent addressed
Trevino's challenge to his guilty plea. A guilty plea involves
the waiver of several constitutional rights, and, accordingly, it
must be made knowingly and voluntarily. Boykin v. Alabama, 395
U.S. 238, 242-44 (1969). A federal habeas court will uphold a
guilty plea if it was knowing, voluntary, and intelligent. Hobbs
v. Blackburn, 752 F.2d 1079, 1081 (5th Cir.) (§ 2254 case), cert.
denied, 474 U.S. 838 (1985). Before accepting a guilty plea, a
trial court must ascertain that the defendant "has a full
understanding of what the plea connotes and of its consequence."
Boykin, 395 U.S. at 243-44. The defendant must be informed of
the maximum sentence he may receive. Hobbs, 752 F.2d at 1082.
Counsel's affidavit does not indicate that he discussed the
range of punishment for Trevino's offense. Further, the record
No. 95-50368
-4-
does not contain a transcript of a plea colloquy and thus,
presents no basis to presume that Trevino knew the full range of
punishment for the offense before pleading guilty. Because the
record is inadequate to determine whether defense counsel** or
the court informed Trevino of the full range of punishment, the
case is REMANDED for an evidentiary hearing. See Rogers v.
Maggio, 714 F.2d 35, 39 (5th Cir. 1983).
**
The trial court's failure to meet Boykin's requirements
does not render the plea involuntary if the evidence adduced at
an evidentiary hearing shows that the defendant understood the
charge and its consequences, or if the record indicates that
defense counsel explained the nature of the offense to the
defendant or that the defendant otherwise understood the charge.
Hobbs, 752 F.2d at 1080.