George BROWN, Jr., Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee, 435 F.2d 1352

WIDENER, District Judge: This case raises the issue of whether a trial judge’s participation in plea bargaining negotiations vitiates the voluntariness of a subsequent guilty plea. The district court held that a state prisoner’s plea of guilty was voluntary notwithstanding the fact that the record made it clear that the trial judge had entered into the plea bargaining negotiations. We affirm the decision of the district court. On April 29, 1957, Emma Marion Harper, and her husband, Charles Hamilton Harper, were robbed in Essex County, Virginia. The robber was armed with a revolver. Mr.

Harper was severely beaten with a hammer by the robber and was near death for a period of time. He later recovered. On May 2, 1957, George Brown, Jr., the petitioner herein, was arrested in Alexandria, Virginia. Brown testified that he had a second or third grade education and an IQ of 58. However, at the state habeas corpus hearing in 1967, Brown demonstrated that he was mentally alert when he spontaneously objected to the relevancy of certain questions asked on cross-examination. After his arrest, Brown was interrogated but did not incriminate himself.

He alleged that he was forced to stand in a two man line-up with one Oscar Willis for identification by Mrs. Harper. In his brief before this court, it is claimed that Mrs. Harper knew Willis at the time of the line-up and identified Brown as the robber. During the interrogation and the line-up, Brown was without counsel. On May 16, 1957, Brown was indicted upon two counts of robbery, the first count charging the robbery of Mrs. Harper; the second count charging the robbery of Mr. Harper by “severely striking, beating and severely wounding the said Harper” with a hammer.

The Virginia law applicable to robbery allows imposition of the death penalty for conviction under either of the two counts. In Virginia, the jury fixes punishment if the case is tried by jury. Va.Code Ann., § 19.1-291 (1960). The judge fixes punishment if the defendant is tried without a jury. Va.Code Ann., § 19.1-192 (1960). On the day the indictment was returned against Brown, the court appointed an experienced lawyer to represent Brown. Brown initially indicated to his attorney that there was another person involved in the robbery and that he, Brown, was not guilty.

The appointed attorney testified at the state habeas corpus hearing that, later, Brown’s contention that another party was involved “sort of evaporated.” After his investigation of the case, counsel advised Brown that he should plead guilty rather than risk a jury trial in which the jury could have sentenced him to death. Prior to the trial, Brown’s lawyer entered into plea negotiations with the prosecutor. Later, after both the prosecutor and defense counsel had talked with the trial judge, the judge told Brown’s counsel that if he pleaded guilty, the court would impose a life sentence.

When this proposal was offered to Brown, he decided to plead guilty to the first count of the indictment charging him with the robbery of Mrs. Harper. The plea was accepted and petitioner was sentenced to life imprisonment. The second count of the indictment which charged Brown with attacking and robbing Mr. Harper was nolle prossed on the same date upon the motion of the prosecutor. Petitioner’s main contention in the appeal now before this court is that his guilty plea was involuntary because it was coerced by the trial judge.

The petitioner asks this court to hold as a matter of law that a guilty plea is involuntary where the trial judge participated in the plea negotiation process prior to the time the defendant decided to plead guilty. In his order, the trial judge found “that the accused fully understood the nature and effect of his plea.” At the state habeas corpus hearing, held more than ten years after the petitioner’s trial, Brown’s attorney could not recall if the trial judge had specifically questioned Brown concerning his guilty plea.

However, he testified that it was the trial judge’s usual practice to question defendants about pleas of guilty. The prosecutor, after reviewing his file of the case, testified that the trial judge “advised him (Brown) that he had a right to plead not guilty, and in case he pled not guilty, he would be entitled to a jury trial.” He further testified that the trial judge advised Brown “that if he entered a plea of guilty, it would be his decision after advising with his lawyer * * Brown contends that the trial judge did not tell him “anything at all” about his plea or his right to a jury trial.

This court has considered the voluntariness of Brown’s guilty plea once before when it affirmed the decision of the United States District Court for the Eastern District of Virginia, at Norfolk, dismissing Brown’s petition without a hearing on March 3, 1959. We affirmed the lower court because Brown had failed to substantiate his “general allegations” that his plea had been coerced by his court-appointed attorney. Brown v. Smyth, 271 F.2d 227 (4th Cir. 1959).

Although this same ground of involuntariness of guilty plea was raised in the 1959 petition before the district court, this court is not precluded from considering this claim. In Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1962), the United States Supreme Court set out guidelines to control successive petitions for habeas corpus. In that case, the Supreme.

Court held that “[C]ontrolling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.” Sanders, p. 15, 83 S.Ct. p. 1077.

Referring to the ease before it then, the Supreme Court stated [Pjetitioner’s first motion under § 2255 was denied because it stated only bald legal conclusions with no supporting factual allegations. * * * the denial, thus based, was not on the merits. It was merely a ruling that petitioner’s pleading was deficient.” Sanders, p. 18, 83 S.Ct. p. 1079.

Brown’s first petition was denied without a hearing on similar grounds, specifically, that Brown had failed to substantiate his “general allegations.” Thus, in accord with the guidelines of Sanders, the prior determination as to the voluntariness of Brown’s guilty plea was not based upon the merits and does not preclude the present petition upon the same ground.

The district court below made sufficient findings of exhaustion of state remedies, and we need only note that although petitioner did not specifically raise the issue of the participation of the trial judge in plea bargaining negotiations in his habeas corpus hearing before the Circuit Court of Essex County, the record of that hearing reveals that the issue was before that court. Thus, for the purposes of exhaustion of state remedies, this issue was before the Virginia Supreme Court of Appeals when it refused to issue a writ of error in Brown’s ease. See United States v. Pate, 240 F.Supp. 696, 704 (N.D.Ill.1965).

Brown had properly exhausted his state remedies upon this point when he petitioned the district court for a writ of habeas corpus. See Grundler v. North Carolina, 283 F.2d 798, 800 (4th Cir. 1960). Shortly before this court heard the present case, the United States Supreme Court decided the case of Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

In Brady, the petitioner alleged that his guilty plea was coerced by virtue of a criminal statute which provided a maximum penalty of death if the accused pleaded not guilty and was tried by a jury but provided for a maximum penalty of life imprisonment if the accused pleaded guilty and was sentenced by the judge.

Even though Brady did not involve a plea bargaining situation, the Supreme Court stated in its opinion: “Insofar as the voluntariness of his plea is concerned, there is little to differentiate Brady from * * * (3) the defendant who is permitted by prosecutor and judge to plead guilty to a lessor offense included in the offense charged; and (4) the defendant who pleads guilty to certain counts with the understanding that other charges will be dropped.” Brady, p. 751, 90 S.Ct. p. 1470.

These two situations which the Supreme Court considered analogous to Brady’s situation must necessarily be characterized as plea bargaining.

In Brady, the Supreme Court went on to set out the standard by which the voluntariness of guilty pleas should be measured: “A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e. g. bribes).” [Citing Shelton v.

United States, 246 F.2d 571, 572 n. 2 (5th Cir. 1957)]. [Emphasis our own.] “The actual value of any commitments made to him by the court” can only contemplate plea bargaining in which the judge has participated. Speaking specifically to a plea bargaining situation, the Supreme Court said that in order to reach a contrary decision in Brady: “it would be necessary to forbid prosecutors and judges to accept guilty pleas to selected counts, to lesser included offenses, or to reduced charges. The Fifth Amendment does not reach so far.” Brady, p. 753, 90 S.Ct. p. 1471. In Lassiter v.

Turner, 423 F.2d 897, 900 (4th Cir. 1970), this court stated: “ * * * plea bargaining is well established in the administration of criminal justice. Properly conducted and fairly negotiated, plea bargaining serves a useful purpose for society, the prisoner and the quality of justice in those cases which must be tried.

In addition to other safeguards which limit the character of the negotiations and the subsequent agreement, an overriding constitutional limitation is that the plea must not have been induced by promises or threats which deprive it of the character of a voluntary act.” The Supreme Court’s decision in Brady provides the standard by which reviewing courts may now measure any promises which might have induced the defendant’s guilty plea.

Simply because the promise made by the judge induced the defendant to plead guilty does not make that plea involuntary, rather, the promise must be of the prohibited type to affect the voluntariness of the defendant’s plea. The petitioner would have us prescribe a specific standard of conduct to be followed by trial judges in plea negotiations.

He suggests that it is proper for a judge to indicate his ratification of a bargain already reached by the defendant, defense counsel, and the prosecutor, but improper for a judge to become involved in the negotiation process itself “prior to the time the defendant has decided to plead guilty, i. e., prior to the time the defendant has indicated to the prosecutor that he is willing to accept the bargain proposed.” [Appellant’s emphasis]. By appellant’s standard, a judge who refuses to ratify the first of several plea bargains, has not become involved in the plea bargaining process.

However, continued bargaining, with repeated submission of agreements to the judge for his ratification, would involve the judge in the formulation of the final agreement. Such a procedure would only be an indirect manner of judicial participation in the plea bargaining process. It would be an exercise in judicial circuitousness that is not necessary to insure the voluntariness of guilty pleas.

In referring to a conversation between a trial judge and a defendant regarding a guilty plea, Judge Friendly said: “ * * * no one contends that such a conversation by a judge is a per se denial of due process; decision turns on what was said and its probable effect. A reviewing court must not impose on a hard-pressed nisi prius judge, speaking extemporaneously to a criminal defendant, a standard of precise and balanced expression not always realized even in opinions which appellate judges have had ample opportunity to revise.” United States v.

LaVallee, 319 F.2d 308, 315 (2d Cir. 1963) concurring and dissenting opinion. If we were to impose the standard sought by the petitioner, a trial judge could not be certain that his comments would not be considered by the defendant or by a reviewing court as bringing the judge into the plea bargaining process. For this reason, such a standard as proposed by the petitioner might effectively put an end to plea bargaining. Over three-fourths of all criminal convictions in the United States are upon pleas of guilty. Brady, 397 U.S. at page 752, 90 S.Ct. 1463 [Citing D.

Newman, Conviction, The Determination of Guilt or Innocence Without Trial, 3 and n. 1 (1966)]. To keep the judge out of plea discussions would: “ * * * deny the defendant important and relevant information which might be helpful in choosing a plea. Such a rule enforces the defendant’s * * * right to plead in the dark." Comment, 32 U.Chi.L.Rev. 167, 183 (1964). An end or serious curtailment of plea bargaining could only have the effect of depriving a criminal defendant of what little bargaining power he may have.

In many, or even most, cases, the only defense available is the determination and nerve of the defense attorney. To deprive the attorney of the opportunity to talk to the judge about a guilty plea before a defendant has made up his mind to plead guilty, would deprive him of one of the most valuable tools of his defense.

This court is of opinion that at the time he entered his plea of guilty, petitioner was fully aware of the consequences, including the “value of any commitments made to him by the court.” His guilty plea was not induced by “threats,” “misrepresentation” or by “promises having no proper relationship to the prosecutor’s business.” Brady, 397 U.S. p. 755, 90 S.Ct. p. 1472. We are further of opinion that the conversation had by the trial judge with the defense attorney did not in fact render the petitioner’s plea involuntary.

The conduct of the trial judge was not only not prohibited by Brady but was of a type in fact contemplated by the opinion. Our opinion is reinforced by the following statement from United States ex rel Rosa v. Follette, 395 F.2d 721, 725 (2d Cir. 1968): “The issue ultimately to be resolved is not so much who participated in the plea discussions but whether the defendant’s decision to plead guilty was coerced or otherwise invalid.” What we have written is not intended to disparage the American Bar Association’s Standards concerning the trial judge’s participation in plea discussions.

On the contrary, we recognize that the Standards prescribe a proper rule of practice, although we do not mean that a criminal defendant cannot receive a fair trial under any other circumstances. They do not, however, state a constitutional limitation, and for this reason we do not hold that the judge’s participation in the plea discussion in itself rendered the plea involuntary. It is, of course, a factor which must be considered, as Brady and the commentary to the Standards point out.

We find no merit in petitioner’s contention that he was denied due process, especially in light of our finding that petitioner’s plea of guilty was made voluntarily. Thus, the writ should not issue and we therefore affirm the decision of the district court. Affirmed. . ABA, Standards Relating to Pleas of Guilty, § 3.3 (Approv. Draft, 1968) provide : 3.3 Responsibilities of the trial judge. (

a) The trial judge should not participate in plea discussions. (

b) If a tentative plea agreement has been reached which contemplates entry of a plea of guilty or nolo contendere in the expectation that other charges before that court will be dismissed or that sentence concessions will be granted, upon request of the parties the trial judge may permit the disclosure to him of the tentative agreement and the reasons therefor in advance of the time for tender of the plea.

He may then indicate to the prosecuting attorney and defense counsel whether he will concur in the proposed disposition if the information in the presentence report is consistent with the representations made to him. If the trial judge concurs, but later decides that the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, he shall so advise the defendant and then call upon the defendant to either affirm or withdraw his plea of guilty or nolo contendere. [Subsection (

e) is not reproduced here]