909 F.

2d 474

Luis YORDAN, # 094439 Petitioner-Appellant,

v.
Richard L. DUGGER, Secretary of Florida Department of
Corrections, Robert Butterworth, Attorney General,
State of Florida, Respondents-Appellees.
No. 88-3094.

United States Court of Appeals,

Eleventh Circuit.
Aug. 21, 1990.
1

James M. Russ, Orlando, Fla., for petitioner-appellant.

Fleming Lee, Daytona Beach, Fla., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH and CLARK, Circuit Judges, and ATKINS * , Senior

District Judge.
ATKINS, Senior District Judge:

The appellant Luis Yordan appeals from a district court order denying his
motion for a writ of habeas corpus. 28 U.S.C. Sec. 2254. Because the appellant
was arguably denied effective assistance of counsel when he was advised to
plead guilty to certain sexual battery charges in state court, and because the
district court incorrectly concluded that the appellant's involuntary plea claim
was procedurally barred, we REVERSE the district court's order and
REMAND this case for further proceedings consistent with this opinion.

A.
6Facts and Background Information.
7

On February 6, 1984, the State of Florida ("the State") filed a three-count

information against the appellant. Count one charged that the appellant

committed sexual battery against his daughter, a person under twelve years of
age. See Fla.Stat.Ann. Sec. 794.011(2). Florida law provides in relevant part
that a person convicted of this offense "shall be punished by life imprisonment
and shall be required to serve no less than 25 years before becoming eligible for
parole...." See Fla.Stat.Ann. Sec. 775.082(1) (emphasis added). Count two of
the information charged that the appellant committed sexual battery against his
other daughter, a person over twelve years of age. See Fla.Stat.Ann. Sec.
794.011(5). Count three charged the appellant with attempted sexual battery
with a person over twelve years of age. Fla.Stat.Ann. Secs. 794.011(5), 777.04.
8

Initially, the state trial court appointed an assistant state public defender to
represent the appellant. Prior to trial, however, the appellant retained private
counsel and the assistant public defender withdrew from the case. According to
the appellant, his privately-retained lawyer stated that persons convicted under
Sec. 794.011(2) become eligible for parole after serving between five and seven
years in prison. Based on this alleged representation, the appellant agreed to
negotiate a plea bargain with the state. Pursuant to this deal, the appellant
agreed to plead guilty to counts one and three of the information. In exchange,
the state agreed to drop count two of the information, run concurrently the
sentences imposed for counts one and three, and drop charges against the
appellant in an unrelated firearm possession case.

On July 2, 1984, the appellant appeared before the state trial court to enter his
plea. After the court described the nature of the proposed plea agreement, the
following colloquy ensued:

THE COURT: What say the state?

10
MR. WALLSH: Your Honor, the state is ready to proceed.
11
12 COURT: Are those [previously-made descriptions of the plea agreement] an
THE
accurate reflection of the discussions you've had?
13 WALLSH: Yes, sir. It's also our understanding that upon acceptance of the plea
MR.
to Count One, the court would impose the mandatory life imprisonment with twentyfive years and no parole.
THE COURT: And that Count Three will run concurrent with Count One.
14
MR. WALLSH: Yes, sir.
15
THE COURT: And [the firearm possession case] will be nol prossed.
16

MR. WALLSH: Yes, sir.

17
THE COURT: As well as Count Two of [the present case].
18
MR. WALLSH: That's correct.
19
THE COURT: What is your name?
20
THE DEFENDANT: Luis Yordan.
21
THE COURT: Did dou [sic] hear what the state said?
22
THE DEFENDANT: Yes, sir.
23
THE COURT: Is that an accurate reflection of what you want to do?
24
THE DEFENDANT: Yes, sir.
25
26

Transcript of Plea Colloquy, at 3:14-4:12. In response to the court's questions,

the appellant indicated that he was alert and that he was not under the influence
of any drugs or alcohol. Id. at 4:19-25. The appellant further indicated that he
had had time to review his case with his lawyer, and that he was satisfied with
the representation he had received. Id. at 7:9-23. Finally, the appellant admitted
that he had committed the acts charged in counts one and three of the
information. Id. at 10:25-11:1. Based on these representations, the court
accepted the appellant's guilty plea and sentenced him to life imprisonment
with a twenty five year minimum on count one, and to five years imprisonment
on count three.

27

On May 20, 1986, the appellant filed with the state court a motion for postjudgment relief. The motion set forth two grounds of relief. First, the appellant
maintained that his plea was involuntary due to the trial court's failure to
conduct a legally sufficient pre-plea colloquy. Second, the appellant maintained
that he had received ineffective assistance of counsel in violation of his Sixth
Amendment rights. This second claim rested on at least seven allegations of
constitutionally deficient representation; one such allegation provided that the
appellant's lawyer had misrepresented the mandatory minimum sentence that
could be imposed under Sec. 794.011(2). The state trial court denied the motion
without a hearing on July 15, 1986, and the state appellate court subsequently
affirmed the trial court's decision.

28

On January 15, 1987, the appellant filed with the district court the instant
petition for a writ of habeas corpus. The petition also set forth two grounds of

relief. First, the appellant maintained that his plea was involuntary due to
counsel's misrepresentation of the mandatory minimum sentence under Sec.
794.011(2). Second, the appellant alleged that he had received ineffective
assistance of counsel; he again argued that the misrepresented length of the
prison term constituted one ground upon which relief could be afforded.
29

The district court denied the petition. Regarding the appellant's contention that
his plea was involuntary, the court observed that the claim raised in the present
petition "clear[ly] differed" from the claim raised in the prior state court
proceedings. See Order, at 4 (M.D.Fla. Jan. 8, 1988) (noting that present
petition based claim of involuntary plea on counsel's misrepresentation rather
than trial court's deficient plea colloquy). The court therefore concluded that
the appellant had defaulted procedurally on his involuntary plea claim, and that
the default could not be excused under the "cause-and-prejudice" test delineated
in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
Turning to the ineffective assistance claim, the court concluded that the
appellant's allegations were meritless. Specifically addressing the appellant's
contention that his lawyer had misrepresented the mandatory minimum length
of sentence, the district court stated: "[P]etitioner was independently appraised
of the possible penalties by the state prosecutor and the state trial judge. The
Petitioner indicated that he understood the court's explanation, and the
Petitioner persisted in his decision to plead guilty." Order, at 9. Accordingly,
the court rejected the appellant's ineffective assistance claim and denied the
petition. No evidentiary hearing was held. This appeal followed.

B.
Discussion.
30
31

1. Ineffective Assistance of Counsel.

32

We turn first to the appellant's claim of ineffective assistance of counsel. Such

claims are, in general, governed by Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court stated
that to prevail on an ineffective assistance claim, a habeas corpus petitioner
must prove: (1) that "counsel's representation fell below an objective standard
of reasonableness," 466 U.S. at 688, 104 S.Ct. at 2064, and (2) that "there is a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. When
analyzing claims under this test, reviewing courts must indulge a strong
presumption that counsel's conduct fell within the wide range of reasonably
professional assistance. See Harich v. Dugger, 844 F.2d 1464, 1469 (11th

Cir.1988) ("strong presumption" of effective assistance); see also Lancaster v.

Newsome, 880 F.2d 362, 375 (11th Cir.1989) (emphasizing that petitioner was
"not entitled to error-free representation").
33

Strickland 's two-part test also applies where a prisoner contends that
ineffective assistance led him or her to enter an improvident guilty plea. Hill v.
Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). In Hill,
a state prisoner filed a petition for a writ of habeas corpus alleging that he had
received ineffective assistance of counsel. To support this claim, the prisoner
contended that his lawyer had misrepresented the portion of the sentence he
would be required to serve before becoming eligible for parole. To determine
whether these allegations stated a cognizable ineffective assistance claim, the
Supreme Court ruled:

34 the context of guilty pleas, the first half of the Strickland v. Washington test is
In
nothing more than a restatement of the standard of attorney competence set forth in
Tollett v. Henderson, [411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) ] and
McMann v. Richardson, [397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ]. The
second, or "prejudice" requirement, on the other hand, focuses on whether counsel's
constitutionally ineffective performance affected the outcome of the plea process. In
other words, in order to satisfy the "prejudice" requirement, the defendant must
show that there is a reasonable probability that, but for counsel's errors, he would not
have pleaded guilty and would have insisted on going to trial.
35

Hill, 474 U.S. at 58-59, 106 S.Ct. at 370-371. Because the prisoner failed to
allege that he would have pleaded not guilty had counsel informed him of the
proper sentence, the Court held that his ineffective assistance claim did not pass
the second, or "prejudice" part of the test. Accordingly, the Court affirmed the
district court's decision to deny the petition.

36

The manner in which the Hill/Strickland considerations interact with guilty

pleas was further explored in the recent Eleventh Circuit case of Holmes v.
United States, 876 F.2d 1545 (11th Cir.1989). In Holmes, a habeas petitioner
asserted that his lawyer had failed to inform him of the mandatory minimum
sentence and the special non-parole feature of 21 U.S.C. Sec. 848. The
petitioner alleged that because he was not aware of these crucial provisions, he
pleaded guilty to the Sec. 848 crimes charged in the indictment. The petitioner
therefore argued that his lawyer's ineffective assistance had produced the
unwanted guilty plea. Without citing to Hill, the district court denied the
petition.

37

The Eleventh Circuit reversed. This decision rested on a number of factors.

First, the court suggested that legal representation does not pass constitutional
muster where an attorney blatantly misstates to a client the penalty provisions
of the crime with which the client is charged. See Holmes, 876 F.2d at 1552
(relying on Strader v. Garrison, 611 F.2d 61, 64-65 (4th Cir.1979)); see also
Hill, 474 U.S. at 62, 106 S.Ct. at 372 (White, J., concurring in the judgment)
("The failure of an attorney to inform his client of the relevant law clearly
satisfies the first prong of the Strickland analysis ... as such an omission cannot
be said to fall within 'the wide range of professional competen[ce]' ... demanded
by the Sixth Amendment"). Second, there existed documentary evidence which
tended to prove that the petitioner's attorney had in fact misrepresented the
nature of parole eligibility. See Holmes, 876 F.2d at 1553 n. 9 (in postconviction letter to petitioner, attorney suggests that petitioner was not
sentenced under Sec. 848 and would, consequently, be eligible for parole).
Third, the petitioner had averred that he would not have pleaded guilty had he
been aware of the true state of affairs. Finally, the court noted that the district
court had not applied the Hill-analysis when it ruled on Holmes's petition. The
court therefore concluded that "the record does not conclusively establish that
the [petitioner] is entitled to no relief on his ineffective assistance of counsel
claim." Id. at 1553 (footnote omitted). Accordingly, the court remanded the
case for further proceedings.
38

The facts of the present case closely resemble those of Holmes. First, the
appellant's lawyer allegedly stated that if the appellant pleaded guilty to count
one of the information, he would become eligible for parole within five to
seven years. Significantly, the record contains two personal letters which tend
to prove that the appellant's lawyer in fact made this misrepresentation. See,
e.g., Translation of Letter of Luis Gomez, P.A. (July 25, 1984) (suggesting to
the incarcerated appellant that there exist "other ways" to lessen appellant's
sentence). Second, the appellant has emphatically alleged that he would not
have pleaded guilty to the crime charged in count one had he known about the
mandatory 25-year period of incarceration for such offenses. See Memorandum
in Support of Petition for Writ of Habeas Corpus, at 22 (alleging that he had
been informed of penalty provisions, "petitioner definately [sic] would have
taken his chances on the uncertainties of the jury...."). Finally, the district court
did not, when considering the appellant's petition, apply the two-part test
delineated in Hill. Based on these factors, we therefore deem it provident,
under Holmes, to remand the case for further consideration.

39

The procedure on remand shall take the following course. The district court
should first determine whether the facts alleged in the appellant's petition, if
true, would warrant relief under Hill. If, as we expect, the appellant surmounts
this threshold burden, the district court should order an evidentiary hearing on

the merits of the ineffective assistance claim. See Slicker v. Wainwright, 809
F.2d 768, 770 (11th Cir.1987) (citing McCoy v. Wainwright, 804 F.2d 1196,
1199-1200 (11th Cir.1986)) ("If [petitioner] alleges facts that, if true, would
entitle him to relief [under Hill ], the district court should order an evidentiary
hearing on the merits of his claim"). To prevail on the merits of this claim, the
appellant must prove: (1) that the claimed misinformation was given to him by
his attorney; (2) that his counsel's performance fell below an objective standard
of reasonableness; and (3) that he would not have pleaded guilty and would
have insisted on going to trial had he been properly informed about the penalty
provisions attending the crimes charged in the information. Holmes, 876 F.2d
at 1553; see also Slicker, 809 F.2d at 770 (to prevail under Hill, petitioner must,
with respect to third factor, prove sufficient "prejudice" flowing from attorney's
deficient conduct). When the hearing is concluded, the district court will weigh
the evidence, make the necessary credibility determinations and, ultimately,
determine whether the appellant has been afforded constitutionally adequate
representation.
40

2. Procedural Default.

41

We now address the district court's determination that the appellant failed to
raise in the state court proceedings the contention that his plea was involuntary.
The district court correctly noted that in his state post-conviction relief petition
Yordan emphasized the trial court's failure to interrogate him properly
regarding the voluntariness of his plea, while in his federal petition Yordan has
emphasized that his plea was involuntary as a result of misinformation
provided by his attorney. We disagree, however, with the district court's
conclusion that Yordan's federal claim is procedurally barred. A fair reading of
the appellant's pro se brief in support of his state court post-conviction petition,
along with the legal conclusions reached by the state court in denying that
petition, shows that the substance of the appellant's involuntary plea claim was
presented to, and ruled upon by, the state court. See Cummings v. Dugger, 862
F.2d 1504, 1507 (11th Cir.1989) (federal habeas corpus claim not procedurally
barred when substance of claim is previously raised in state court); Hutchins v.
Wainwright, 715 F.2d 512, 519 (11th Cir.1983) (even though issue is
"obliquely stated" in state court proceedings, issue not procedurally barred in
subsequent federal proceedings where state court is alerted to the issue).

42

In the present case, the appellant argued in his state post-conviction petition
that the state trial court erred when it failed to provide him with an interpreter;
in relation to this argument, the appellant contended he did not understand, first,
that the 25-year sentence was without parole and second, that he was pleading
guilty to the full crime as charged, rather than a lesser included offense. R1-6-

App.3A-6. In arguing that he received ineffective assistance of counsel, the

appellant also stated that his attorney's advice led him to enter a plea that was
not "intelligent, knowing and voluntary." R1-6-App.3A-20. Moreover, the state
appellate court expressly recognized and then ruled upon Yordan's involuntary
plea claim. In the portion of its opinion dedicated to Yordan's claim that the
trial court failed to conduct a proper plea inquiry, the court first held that "[t]he
record shows the Defendant understood the significance of his plea and entered
it voluntarily." R1-6-App.3B-3. See Cooper v. Wainwright, 807 F.2d 881 (11th
Cir.1986) (even though petitioner did not explicitly raise specific issue in state
court petition, issue is not procedurally barred where state court considers and
rules on issue). Therefore, we conclude that on remand that district court must
consider the merits of the appellant's involuntary plea claim.
C.
Conclusion.
43
44

Based on the foregoing, we REVERSE the district court's order and REMAND
this case for further proceedings consistent with the principles delineated in
Part B of this opinion.

Honorable C. Clyde Atkins, Senior U.S. District Judge for the Southern District
of Florida, sitting by designation