JERRY WASHINGTON, PETITIONER V. UNITED STATES OF AMERICA No. 89-6359 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-5) is reported at 886 F.2d 154. JURISDICTION The judgment of the court of appeals was entered on September 19, 1989. A petition for rehearing was denied on November 3, 1989. The petition for a writ of certiorari was filed on January 2, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether a prior conviction was properly used to enhance petitioner's sentence despite petitioner's claim that the guilty plea that produced his prior conviction was not entered knowingly and voluntarily. 2. Whether petitioner established a prima facie case of discrimination in the government's use of peremptory strikes. STATEMENT Following a jury trial in the United States District Court for the Eastern District of Missouri, petitioner was convicted of possession of a firearm by a convicted felon, in violation of former 18 U.S.C. App. 1202(a)(1) (1982 & Supp. II 1984). Under the enhanced-penalty provision of that statute, he was sentenced to imprisonment for fifteen years. The court of appeals affirmed. 1. On May 6, 1986, shortly after midnight, two St. Louis, Missouri, police officers saw petitioner's car weaving across traffic lanes. The officers used the emergency lights of their patrol car to stop the car. As one officer approached petitioner's car, he saw petitioner unloading a pistol. The officer arrested petitioner and searched his car. That search revealed a loaded .32 caliber pistol. Further investigation revealed that petitioner had three prior felony convictions. Gov't C.A. Br. 3. 2. At petitioner's trial, the jury venire included four black persons. The government exercised two of its six peremptory strikes to remove two black potential jurors. Petitioner objected to the government's removal of the two black jurors on the basis of the rule announced in Batson v. Kentucky, 476 U.S. 79 (1986). The district court denied the motion, finding that petitioner had failed to establish a prima facie case of discrimination. Pet. App. 2. After the jury convicted petitioner, the district court enhanced his sentence under former 18 U.S.C. App. 1202(a)(1) (1982 & Supp. II 1984), by relying on petitioner's 1957 burglary conviction, his 1964 robbery conviction, and his 1970 burglary conviction. Petitioner challenged the use of the 1957 conviction to enhance his sentence, arguing that the guilty plea supporting it had not been entered knowingly and voluntarily. Following an evidentiary hearing, the district court rejected that contention. Pet. App. 4-5. 3. The court of appeals affirmed. The court agreed that petitioner had failed to make out a prima facie case of discrimination under Batson v. Kentucky, supra. The court noted that petitioner had simply pointed to the government's exercise of the two peremptory strikes to remove two of the four black potential jurors on the venire. The court found that such a numerical showing alone was inadequate and that petitioner had not supported his showing with additional circumstantial evidence of discrimination, for example, that black potential jurors had been struck at a disproportionate rate compared to white potential jurors. Pet. App. 2-3. The court also held that the use of petitioner's 1957 conviction to enhance his sentence was proper. Although the court noted that Boykin v. Alabama, 395 U.S. 238 (1969), required that the sentencing record affirmatively reflect that a guilty plea was entered knowingly and voluntarily, the court indicated that its prior decisions had been reluctant to apply that requirement retroactively. Pet. App. 4 (citing Brown v. Swenson, 487 F.2d 1236 (8th Cir. 1973), cert. denied, 416 U.S. 944 (1974)). Instead, the court stated, under Eighth Circuit precedents, a plea entered prior to Boykin was valid if it appeared from the "totality of the circumstances" that the plea was entered knowingly and voluntarily. Under that approach, when a counseled defendant pleaded guilty, the plea was presumed valid. Pet. App. 4. Applying those principles, the court ruled that petitioner had not overcome the presumption that his 1957 plea was valid. The court noted that it was "undisputed" that petitioner was represented by competent counsel when he enter his 1957 plea. The court also noted that the district court had found that the 1957 plea was entered by petitioner with knowledge and understanding of the charges against him. Based on those supporting facts, the court held that the district court's ultimate finding that petitioner's guilty plea was knowing and voluntary was not "clearly erroneous." Consequently, the court held, the use of the 1957 conviction to enhance petitioner's sentence was proper. Pet. App. 5. ARGUMENT 1. Petitioner renews his contention (Pet. 10-14) that his sentence was improperly enhanced on the basis of his 1957 burglary conviction. Petitioner insists that both courts below misread the record in concluding that his guilty plea was entered knowingly and voluntarily. That factbound contention warrants no further review. In Boykin v. Alabama, 395 U.S. 238 (1969), this Court reversed a conviction in a capital case that was obtained through a guilty plea. The Court observed that "(s)o far as the record shows, the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court." Id. at 239. The Court held that in light of the waiver of constitutional rights implicated by a guilty plea and the fact that it results in a conviction, a court should not accept a plea "without an affirmative showing that it was intelligent and voluntary." Id. at 242-243. In Brady v. United States, 397 U.S. 742 (1970), the Court explained that Boykin had accepted the "knowing and voluntary" standard for guilty pleas that had been announced in prior cases, but had added the requirement that the sentencing record must "affirmatively disclose" that the defendant's guilty plea was given knowingly and voluntarily. 397 U.S. at 747 n.4. While Boykin itself involved review on direct appeal, in a collateral attack on a guilty plea, the requirements of the Constitution may be satisfied, and a plea held to be valid, based on the record established on post-conviction review. See North Carolina v. Alford, 400 U.S. 25, 29 n.3 (1970). Thus, even when the record in the sentencing court does not affirmatively demonstrate that a defendant was aware of his rights and the consequences of his plea, his plea may be upheld if the record subsequently compiled establishes that the plea was knowing and voluntary. The issue to be determined is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Id. at 31. /1/ Applying proper constitutional standards, the court of appeals correctly held that the district court did not commit clear error in finding that petitioner's 1957 plea was knowingly and voluntarily entered. The district court held an evidentiary hearing to inquire into the circumstances surrounding the 1957 guilty plea. Virtually no paper record was available, and memories had dimmed. At the hearing, Clarence Godfrey, a public defender at the time, testified regarding his representation of petitioner. Although Godfrey could not remember the specific events that had transpired 30 years earlier, he did recall that as a matter of standard practice he and the sentencing judge would determine that the defendant had committed the offense charged before allowing the entry of a guilty plea. In the hearing held in this case, petitioner did not testify that he lacked an understanding of the consequences of the 1957 plea, nor did he offer other evidence casting doubt on the adequacy of his plea. Notably, in the more-than 30 years since his conviction, petitioner has never sought post-conviction relief claiming that his counsel failed to render adequate representation, or that his guilty plea was invalid. Gov't C.A. Br. 7. Those factors supported the district court's finding that the plea in question was entered knowingly and voluntarily. In upholding that finding, the court of appeals stressed that petitioner's guilty plea was entered with the assistance of counsel. The existence of representation supports a presumption in the Eighth Circuit that a pre-Boykin plea is constitutionally valid unless affirmatively shown to be otherwise. Such a presumption is fully appropriate for the relatively few pre-Boykin convictions that are encountered by the court of appeals. As this case demonstrates, it will often be extraordinarily difficult to reconstruct the details of guilty pleas dating from three decades ago. In such cases, the presence of counsel provides some assurance that the defendant's rights were adequately protected. This Court has frequently indicated that a guilty plea gathers additional reliability from a defendant's representation by counsel. See United States v. Broce, 109 S. Ct. 757, 764-765 (1989); Mabry v. Johnson, 467 U.S. 504, 508 (1984) ("a voluntary and intelligent plea of guilty made by an accused person, who had been advised by competent counsel, may not be collaterally attacked"); McMann v. Richardson, 397 U.S. 759, 770 (1970). /2/ Against that background, the court of appeals' approach represents a sensible reconciliation of the defendant's interest in protection of his constitutional rights and society's interest in protecting the finality of a conviction based on a guilty plea. Cf. United States v. Timmreck, 441 U.S. at 784 ("the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas") (footnote omitted). Petitioner had the opportunity to overcome the presumption that his counseled guilty plea was valid. The holding below that petitioner failed to carry that burden does not warrant this Court's review. 2. Petitioner next contends (Pet. 15-17) that both courts below erred in concluding that petitioner failed to establish a prima facie case of discrimination under Batson v. Kentucky, supra. In Batson, the Court held that a defendant can establish an equal protection violation based on the government's use of peremptory challenges to remove black potential jurors from the petit jury in his particular case. 476 U.S. at 96. The defendant must first make a prima facie showing that the prosecutor has used his peremptory strikes to remove potential jurors because of their race. The Court did not lay down a mathematical formula to govern that inquiry, but instead emphasized that "the trial court should consider all relevant circumstances." Id. at 96-97. If that burden is satisfied, the prosecutor must then provide a racially neutral explanation for his use of peremptory challenges to remove the excluded jurors. Id. at 94-98. The ultimate issue for the trial court is whether "the defendant has established purposeful discrimination." Id. at 98. Here, petitioner did not establish a prima facie case of discrimination. The record shows that the government used two of its six peremptory strikes to remove black persons from the venire; it also shows that two black persons were not removed by the government. Petitioner failed to point to any other circumstances that would support an inference that the government had improperly relied on the jurors' race in exercising its peremptory challenges. The bare numerical fact that the government used two out of six peremptory challenges to remove black potential jurors in those circumstances does not justify an inference of discrimination. In the absence of comparative statistics that show a disproportionate use of peremptory strikes against blacks, statements or questions by prosecutors during voir dire that would tend to demonstrate a discriminatory intent, or some other differential treatment of blacks and whites in the jury selection process, there was no basis for finding a prima facie case. See United States v. Lane, 866 F.2d 103, 105-106 (4th Cir. 1989) (prima facie case not shown where jury contained two blacks, and only one black and one black alternate were struck peremptorily); United States v. Sangineto-Miranda, 859 F.2d 1501, 1520-1521 (6th Cir. 1988) (prima facie case not shown where jury consisted of seven blacks, even though all of the government's peremptory challenges were directed at blacks); United States v. Rogers, 850 F.2d 435, 437 (8th Cir. 1988) (prima facie case not shown where jury consisted of two blacks and a black alternate, even though three black veniremen were struck peremptorily). Petitioner's suggestion (Pet. 17) that this Court should formulate some rigid list of criteria to govern the application of the prima-facie-case standard under Batson is out of harmony with the prevailing approach in the lower courts and with the guidance of Batson itself. The courts of appeals have recognized that "(t)he trial judge plays a 'pivotal role . . . in determining a prima facie case.'" United States v. Grandison, 885 F.2d 143, 146 (4th Cir. 1989); United States v. Clemons, 843 F.2d 741, 746 (3d Cir.), cert. denied, 109 S. Ct. 97 (1988). This Court, too, emphasizes the central function of the trial judge in implementing the Batson holding. Batson, 476 U.S. at 97. Because of the trial court's superior opportunity to observe the government's actions and to evaluate its exercise of peremptory strikes in context, that court is owed great deference in its determinations whether a prima facie case has been established. Any hard-and-fast test for application of the prima-facie-case standard would undermine the trial judge's unique function and would produce unsound results. Petitioner has identified no reason that would justify a departure from the deference owed to the trial court's findings. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General MERVYN HAMBURG Attorney MARCH 1990 /1/ The same principles are reflected in this Court's holding in United States v. Timmreck, 441 U.S. 780 (1979), that a technical violation of Fed. R. Cim. P. 11 in the taking of a guilty plea does not furnish grounds for collateral attack under 28 U.S.C. 2255. While prejudicial defects in the guilty-plea colloquy may support a direct appeal, they do not necessarily result in constitutional errors and thus cannot automatically justify collateral relief. Petitioner's case, even though not precisely like Timmreck, implicates the same concerns because it seeks collaterally to invalidate a conviction for sentence-enhancement purposes. As in Timmreck, to avoid "inroad(s) on the concept of finality," 441 U.S. at 784, "technical" defects in the plea-taking process may not be used to upset a conviction that has been on the books for more than 30 years. /2/ Of course, counsel who represents a defendant in connection with a guilty plea must render constitutionally effective assistance. Cf. Strickland v. Washington, 466 U.S. 668 (1984). Petitioner's belated claim (Pet. 10-11, 14) that his 1957 counsel was inadequate under the Sixth Amendment is not properly raised here. Petitioner did not advance such an argument in his brief in the court of appeals (Pet. C.A. Br. 7-11), and that court, understandably, did not pass on any such claim. At all events, the court of appeals would have appropriately been skeptical that petitioner, who had never in 30 years questioned that conviction, suddenly had formed the view that his lawyer was constitutionally deficient.