Post-Conviction Relief for Immigrants

A plea is involuntary and invalid under the Fifth and Sixth Amendments to the U.S. Constitution and Federal Rule of Criminal Procedure 11(f) if the court taking the plea does not establish a sufficient factual basis for the plea.[331]

            In order to comply with F.R.Crim.P. 11(f), the record must establish that the judge is satisfied there is a factual basis for the plea.[332]  This requirement is part of the voluntariness determination required for the taking of a plea of guilty.[333]  When a defendant denies guilt, the court must make a more searching inquiry and the record must reveal a strong factual basis for a finding of guilty, before the plea is valid.[334]  If the defendant’s admissions during the plea colloquy, coupled with the prosecution’s offer of proof, do not cover all of the essential elements of the offense, the plea is arguably invalid on this ground.

            While Rule 11 violations are subject to a harmless error analysis, it should be argued that the failure to ensure a factual basis for the plea is more than “a minor or technical violation of Rule 11,” and therefore the harmless error provision of Rule 11(h) should not be applied.[335]

            In California, Penal Code § 1192.5 requires that the court satisfy itself that a factual basis exists before accepting a guilty plea in a felony case.[336]  There is no factual basis requirement under state law for misdemeanors.

[331] McCarthy v. United States, 394 U.S. 459, 466 (1969); see Wallace v. Turner, 695 F.2d 545 (11th Cir. 1983); Boykin v. Alabama, supra, at 242; F.R.Crim.P. 11(f); United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir. 1983), cert. denied, 467 U.S. 1215 (1984); see McCarthy v. United States, supra, at 466; United States v. Zuber, 528 F.2d 981 (9th Cir. 1976) (record failed to establish factual basis for charge of conspiracy to violate statute concerning interstate transportation of stolen goods); United States v. Kamer, 781 F.2d 1380, 1386 (9th Cir.), cert. denied, 479 U.S. 819 (1986) (Rule 11(f) violation found where an element of the offense was not inferable from the record).

[332] Santobello v. New York, 404 U.S. 257, 261 (1971); United States v. Landry, 463 F.2d 253 (9th Cir. 1972).

[333] McCarthy v. United States, supra, at 464-467; but see Higgason v. Clark, 984 F.2d 203, 208 (7th Cir.), cert. denied, 113 S. Ct. 2974 (1993) (the requirement that a sentencing court must satisfy itself that a sufficient factual basis supports the guilty plea is not a requirement of the Constitution, but rather a requirement created by rules and statutes).

[334] United States v. Avery, 15 F.3d 816 (9th Cir. 1993), citing North Carolina v. Alford, 400 U.S. 25 (1970); see Banks v. McGougan, 717 F.2d 186, 188 (5th Cir. 1983), citing Willett v. Georgia, 608 F.2d 538, 540 (5th Cir. 1979); Wallace v. Turner, 695 F.2d 545, 548 (11th Cir. 1983).

[335] United States v. Dawson, 193 F.2d 1107 (9th Cir. 1999) (dissenting opinion).

[336] For a discussion of the legal sufficiency of a factual basis for a felony plea in California, see People v. Wilkerson, 6 Cal.App.3d 1571, 8 Cal.Rptr.2d 392 (1992).