
USCA1 Opinion

	




          September 11, 1992    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1003                                               GERARD L. READY,                                Petitioner, Appellant,                                          v.                                     PAUL SCOPA,                                Respondent, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                                 ___________________               Gerard L. Ready on brief pro se.               _______________               Scott Harshbarger, Attorney General, and Robert N. Sikellis,               _________________                        __________________          Assistant Attorney  General, on brief for appellee.                                  __________________                                  __________________                 Per  Curiam.  We have reviewed the briefs of the parties                 ___________            and  the record  on appeal.   We  affirm essentially  for the            reasons  stated  in  the  magistrate  judge's  "Findings  and            Recommendations," dated  June  21,  1991,  and  the  district            court's Memorandum and Order, dated October 28, 1991.  We add            only the following comments.            1)   Ready is  correct that  the state courts'  conclusion on            the  issue of  ineffective  assistance of  counsel  is not  a            factual  finding entitled  to  a presumption  of  correctness            pursuant to 28  U.S.C.   2254(d).  Strickland  v. Washington,                                               __________     __________            466 U.S. 668, 698 (1984).  Similarly, he is  correct that the            state courts' conclusion as to the voluntariness of his  plea            is also not  a factual finding entitled  to that presumption.            Marshall v. Lonberger,  459 U.S.  422, 431 (1983).   But,  in            ________    _________            each  instance, the findings of fact made by the state courts            in  the course of deciding  these issues are  entitled to the                                                     ___            statutory  presumption of correctness evidenced in   2254(d).            Strickland  v.  Washington,  466  U.S. at  698;  Marshall  v.            __________      __________                       ________            Lonberger, 459 U.S. at 431-32.            _________                 In  this case,  Ready has  argued that  his counsel  was            ineffective and  his guilty plea was  involuntary because his            counsel failed to pursue, or inform him (and he was otherwise            unaware)  of, the  defense  of insanity  -  in particular,  a            defense  claiming that, due to a mental disease or defect, he                                         -2-            lacked the substantial capacity to conform his conduct to the            requirements of  law.  But, in ruling on Ready's motion for a            new  trial,  the  state   courts  found  that  the  proffered            affidavits   from   therapists   were   conclusory,   lacking            supporting information.   This is a  factual issue determined            after  a hearing  on  the merits  and  thus entitled  to  the            presumption of  correctness.   28 U.S.C.    2254(d).1   Ready            has not shown that  that factual determination was erroneous.            Having  failed to  support his  claim of  the existence  of a            viable insanity defense, Ready's  claims that his guilty plea            was  involuntary and  his counsel  ineffective in  failing to            raise and/or inform him of  that defense necessarily falls as            well.   See United States v.  Porter, 924 F.2d  395, 397 (1st                    ___ _____________     ______            Cir. 1991) (appellant must  show that counsel overlooked some            "viable defenses") (quoting United States  v. Ortiz Oliveras,                                        _____________     ______________            717 F.2d 1, 4 (1st Cir. 1983)).            2)   Henderson v.  Morgan, 426 U.S. 637  (1976), instructs us                 _________     ______            that a guilty plea is not voluntary in a constitutional sense            "unless  the  defendant received  'real  notice  of the  true                                            ____________________            1.  Ready is  incorrect insofar  as he  is claiming  that the            hearing  referred to  in  2254(d)  must be  one in  which the            court  takes live testimony.  Smith v. Estelle, 711 F.2d 677,                                          _____    _______            681 (5th Cir. 1983),  cert. denied, 466 U.S. 906 (1984).  The                                  ____________            state trial court  held a hearing, in the course  of which it            accepted Ready's submissions of  affidavits in support of his            motion for a  new trial.   It is also noteworthy  that Ready,            who was  represented  by counsel  at  this hearing,  did  not            offer, nor request an opportunity to offer, testimony.                                         -3-            nature  of  the  charge  against  him,  the  first  and  most            universally recognized requirement of  due process.'"  Id. at                                                                   ___            645 (quoting  Smith v.  O'Grady, 312  U.S. 329,  334 (1941)).                          _____     _______            Ready  does not  dispute  that he  was  informed of  all  the            elements  of the  offenses  to which  he  pled guilty.    His            attempt,  in effect,  to  liken the  insanity  defense to  an            additional  element is  expressly  refuted  by  Massachusetts            caselaw.    "While we  believe  that,  under Winship,  sanity                                                         _______            becomes  a 'fact'  of  the crime  charged  after evidence  of            insanity has been adduced,  we do not believe that  sanity is            an  'element' of any  given crime".   Commonwealth v. Kostka,                                                  ____________    ______            370 Mass. 516, 532 (1976).  The Commonwealth has the ultimate            burden  of  proving  a  defendant's  criminal  responsibility            beyond  a reasonable doubt but only after the question of the            defendant's sanity has been raised.  Id.  We believe that the                                                 ___            state  courts  and  the  federal  district   court  correctly            concluded, based on the evidence before the state trial court            at  the time  of  Ready's guilty  plea,  that that  plea  was            voluntary.  And, as we have said, the district court properly            deferred  to  the  state  courts' further  finding  that  the            evidence   Ready  subsequently   proffered  with   his  post-            conviction motion failed to  raise a viable insanity defense.            We  find no  basis,  therefore, for  concluding that  Ready's            guilty plea violated the teaching of Henderson.                                                 _________                                         -4-                 Affirmed. Per Curiam.   We  have reviewed the  briefs of                 _________ __________            the  parties and the record on appeal.  We affirm essentially            for the  reasons stated  in the magistrate  judge's "Findings            and Recommendations,"  dated June 21, 1991,  and the district            court's Memorandum and Order, dated October 28, 1991.  We add            only the following comments.            1)   Ready is  correct that  the state courts'  conclusion on            the  issue of  ineffective  assistance of  counsel  is not  a            factual  finding entitled  to  a presumption  of  correctness            pursuant to 28  U.S.C.   2254(d).  Strickland  v. Washington,                                               __________     __________            466 U.S. 668, 698 (1984).  Similarly, he is  correct that the            state courts' conclusion as to the voluntariness of his  plea            is also not  a factual finding entitled  to that presumption.            Marshall v. Lonberger,  459 U.S.  422, 431 (1983).   But,  in            ________    _________            each  instance, the findings of fact made by the state courts            in  the course of deciding  these issues are  entitled to the                                                     ___            statutory  presumption of correctness evidenced in   2254(d).            Strickland  v.  Washington,  466  U.S. at  698;  Marshall  v.            __________      __________                       ________            Lonberger, 459 U.S. at 431-32.            _________                 In  this case,  Ready has  argued that  his counsel  was            ineffective and  his guilty plea was  involuntary because his            counsel failed to pursue, or inform him (and he was otherwise            unaware)  of, the  defense  of insanity  -  in particular,  a            defense  claiming that, due to a mental disease or defect, he                                         -5-            lacked the substantial capacity to conform his conduct to the            requirements of  law.  But, in ruling on Ready's motion for a            new  trial,  the  state   courts  found  that  the  proffered            affidavits   from   therapists   were   conclusory,   lacking            supporting information.   This is a  factual issue determined            after  a hearing  on  the merits  and  thus entitled  to  the            presumption of  correctness.   28 U.S.C.    2254(d).1   Ready            has not shown that  that factual determination was erroneous.            Having  failed to  support his  claim of  the existence  of a            viable insanity defense, Ready's  claims that his guilty plea            was  involuntary and  his counsel  ineffective in  failing to            raise and/or inform him of  that defense necessarily falls as            well.   See United States v.  Porter, 924 F.2d  395, 397 (1st                    ___ _____________     ______            Cir. 1991) (appellant must  show that counsel overlooked some            "viable defenses") (quoting United States  v. Ortiz Oliveras,                                        _____________     ______________            717 F.2d 1, 4 (1st Cir. 1983)).            2)   Henderson v.  Morgan, 426 U.S. 637  (1976), instructs us                 _________     ______            that a guilty plea is not voluntary in a constitutional sense            "unless  the  defendant received  'real  notice  of the  true                                            ____________________            1.  Ready is  incorrect insofar  as he  is claiming  that the            hearing  referred to  in  2254(d)  must be  one in  which the            court  takes live testimony.  Smith v. Estelle, 711 F.2d 677,                                          _____    _______            681 (5th Cir. 1983),  cert. denied, 466 U.S. 906 (1984).  The                                  ____________            state trial court  held a hearing, in the course  of which it            accepted Ready's submissions of  affidavits in support of his            motion for a  new trial.   It is also noteworthy  that Ready,            who was  represented  by counsel  at  this hearing,  did  not            offer, nor request an opportunity to offer, testimony.                                         -6-            nature  of  the  charge  against  him,  the  first  and  most            universally recognized requirement of  due process.'"  Id. at                                                                   ___            645 (quoting  Smith v.  O'Grady, 312  U.S. 329,  334 (1941)).                          _____     _______            Ready  does not  dispute  that he  was  informed of  all  the            elements  of the  offenses  to which  he  pled guilty.    His            attempt,  in effect,  to  liken the  insanity  defense to  an            additional  element is  expressly  refuted  by  Massachusetts            caselaw.    "While we  believe  that,  under Winship,  sanity                                                         _______            becomes  a 'fact'  of  the crime  charged  after evidence  of            insanity has been adduced,  we do not believe that  sanity is            an  'element' of any  given crime".   Commonwealth v. Kostka,                                                  ____________    ______            370 Mass. 516, 532 (1976).  The Commonwealth has the ultimate            burden  of  proving  a  defendant's  criminal  responsibility            beyond  a reasonable doubt but only after the question of the            defendant's sanity has been raised.  Id.  We believe that the                                                 ___            state  courts  and  the  federal  district   court  correctly            concluded, based on the evidence before the state trial court            at  the time  of  Ready's guilty  plea,  that that  plea  was            voluntary.  And, as we have said, the district court properly            deferred  to  the  state  courts' further  finding  that  the            evidence   Ready  subsequently   proffered  with   his  post-            conviction motion failed to  raise a viable insanity defense.            We  find no  basis,  therefore, for  concluding that  Ready's            guilty plea violated the teaching of Henderson.                                                 _________                 Affirmed.                 _________                                         -7-
