Jesse J. Ford v. Robert F. Parratt, Warden

ADAMS, Circuit Judge,

dissenting.

Although I agree with the majority that ineffective assistance of counsel may vitiate a guilty plea, I believe it can only do so when there is a nexus between the alleged ineffective assistance and the guilty plea itself.

Here, the claimed ineffective assistance of counsel is that the defendant’s attorney did not investigate the rumor that the prosecutrix was pregnant. Although I agree that it would have been preferable had the source of the rumor been tracked down, I *1120do not see, based on the record here, how exploring the rumor would have caused the defendant not to enter the guilty plea. Indeed, the record shows that the defendant, whether rightly or wrongly, believed that the fact of pregnancy might have helped his defense.1

More importantly, perhaps, the defendant did not testify at the hearing on his petition for habeas that the fact of pregnancy influenced his decision to plead guilty. In fact, he testified that the sole reason for the plea was his desire to obtain a reduced sentence. After the trial judge imposed a 15-25 year sentence penalty, the defendant’s appeal to the Nebraska Supreme Court was predicated solely on the length of incarceration.

As this Court stated in Morrow v. Parratt, 574 F.2d 411, 412-413 (8th Cir. 1978):

“The evaluation of a habeas corpus petition alleging ineffective assistance of counsel is a two-step process in this circuit.” Rinehart v. Brewer, 561 F.2d 126, 131 (8th Cir. 1977). First, the defendant must show that his attorney failed to exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances. [Citations omitted.] Secondly, the defendant must show that he was materially prejudiced in the defense of his case by the actions or inactions of defense counsel. [Citations omitted.]

In Morrow, the Court specifically noted that the discovery of facts in question “may have completely changed the defense strategy.” No such determination was made by the witnesses here or by the trial court, and, on the basis of the evidence, it is difficult to see how such a determination could have been made. Assuming arguendo that the defendant met the first step in the Morrow test. The absence of connection between the pregnancy rumor and his motives for pleading guilty precluded a finding of material prejudice.2

The opinion of this Court in Todd v. Lockhart, 490 F.2d 626 (8th Cir. 1974), is an effective answer to petitioner’s second contention on appeal, namely, that the trial court committed reversible error in the manner in which it addressed defendant in the course of accepting his guilty plea. Although the trial court may not have recited to the defendant all of the factors bearing on accepting a plea contemplated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), it was fully adduced at Ford’s post-conviction evidentiary hearing that his guilty plea was entered knowingly and voluntarily. Under Todd, this post-conviction determination cures any error the trial court may have committed.

Accordingly, and with all due respect to my distinguished colleagues, I would deny the petition for habeas corpus.

. In the proceedings accompanying the guilty plea, the defendant admitted that he had had a forcible relationship with the prosecutrix.

. Recently, in en banc decisions, two other circuits have determined that a defendant bears the burden of demonstrating that actual prejudice ensued from the alleged ineffective assistance of counsel. These courts held that the prejudice requirement is compelled by the Sixth Amendment. United States v. Decoster, 624 F.2d 196 (D.C.Cir.1979); Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979).

Commentators have observed that Decoster denotes a trend toward imposing a more stringent standard on a defendant before he will be granted a new trial as a result of ineffective assistance. See, e.g., Note, A Functional Analysis of the Effective Assistance of Counsel, 80 Colum.L.Rev. 1053 (1980); Comment, Defendant Must Prove Counsel’s Serious Incompetence and Likelihood that Such Incompetence Had an Effect on the Outcome — United States v. Decoster, 53 Temp.L.Q. 193 (1980).