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).

Ninth Circuit

POST CON RELIEF - GROUNDS - INSUFFICIENCY OF EVIDENCE POST CON RELIEF - RULE OF LENITY - EXCEPTION - CLAIMS OF INSUFFICIENCY OF EVIDENCE
United States v. Nevils, ___ F.3d ___, 2010 WL 986790 (9th Cir. Mar. 19, 2010) (en banc) (in assessing a claim that a conviction is invalid because the evidence is insufficient to sustain in, under Jackson v. Virginia, the normal rule of lenity requiring the Court of Appeals to construe evidence in a manner favoring innocence rather than in manner favoring the prosecution, does not apply); overruling United States v. Bishop, 959 F.2d 820 (9th Cir. 1992); United States v. Vasquez-Chan, 978 F.2d 546 (9th Cir. 1992); United States v. Wiseman, 25 F.3d 862 (9th Cir. 1994); United States v. Corral-Gastelum, 240 F.3d 1181 (9th Cir. 2001); Brown v. Farwell, 525 F.3d 787 (9th Cir. 2008). The standard of review of claims of insufficiency of the evidence is as follows: The Supreme Court's recent decision in McDaniel v. Brown, reversing a decision by this court, highlights our error. 130 S.Ct. at 673-74. In McDaniel, the defendant had been convicted of sexual assault of a child. Id. at 666. On appeal, we concluded that the evidence was insufficient to establish defendant's guilt beyond a reasonable doubt. See Brown v. Farwell, 525 F.3d 787, 797-98 (9th Cir.2008). In so holding, we discounted the government's argument that the defendant had washed his clothes when he returned home in order to destroy physical evidence of the rape, stating that while the government's theory was "plausibly consistent with him being the assailant," the defendant had provided an alternative reason for washing his clothes. Id. at 797. The Supreme Court rejected this analysis, holding that had we reviewed the evidence as required by Jackson, we would have concluded that "the evidence supports an inference that [defendant] washed the clothes immediately to clean blood from them," rather than adopting an exculpatory explanation. McDaniel, 130 S.Ct. at 674. The Court concluded that "the Court of Appeals' analysis failed to preserve the factfinder's role as weigher of the evidence by reviewing all of the evidence ... in the light most favorable to the prosecution. " Id. (alteration in original) (emphasis omitted) (quoting Jackson, 443 U.S. at 319). Accordingly, to the extent Bishop and its progeny construed evidence in a manner favoring innocence rather than in a manner favoring the prosecution, and required reversal when such a construction was not "any less likely than the incriminating explanation advanced by the government," Vasquez-Chan, 978 F.2d at 551, they strayed from the test established in Jackson, and made "plausible" exculpatory constructions disapproved of in McDaniel v. Brown. We now overrule them. In reaching this conclusion, however, we acknowledge our obligation under Jackson to identify those rare occasions in which "a properly instructed jury may ... convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt[.]" Jackson, 443 U.S. at 317. Although Jackson requires the reviewing court initially to construe all evidence in the favor of the government, the evidence so construed may still be so supportive of innocence that no rational juror could conclude that the government proved its case beyond a reasonable doubt. Moreover, the evidence construed in favor of the government may be insufficient to establish every element of the crime. We have held, for example, that evidence is insufficient to support a verdict where mere speculation, rather than reasonable inference, supports the government's case, see Juan H. v. Allen, 408 F.3d 1262, 1277-79 (9th Cir.2005), or where there is a "total failure of proof of [a] requisite" element, Briceno v. Scribner, 555 F.3d 1069, 1079 (9th Cir.2009). Further, we have long held that evidence of mere proximity to contraband, or association with a person having possession of such contraband, is insufficient standing alone to support a finding of possession of that contraband. See United States v. Chambers, 918 F.2d 1455, 1459 (9th Cir.1990); see also Arellanes v. United States, 302 F.2d 603, 606 (9th Cir.1962). (Id. at ___.)

POST CONVICTION RELIEF - GROUNDS - PLEA COLLOQUY
United States v. Covian-Sandoval, __ F.3d __ (9th Cir. Aug. 31, 2006) (rejecting claim that plea colloquy was inadequate under FRCP 11 where any such error did not warrant relief under the plain error standard of review). http://caselaw.lp.findlaw.com/data2/circs/9th/0550543p.pdf

GROUNDS - INSUFFICIENCY OF EVIDENCE
Chien v. Shumsky, __ F.3d __, 2004 WL 1418015 (9th Cir. June 25, 2004) (habeas granted where evidence supporting perjury conviction for giving misleading information regarding medical credentials found constitutionally insufficient).
http://caselaw.lp.findlaw.com/data2/circs/9th/0156320p.pdf

HABEAS CORPUS - FEDERAL - UNREASONABLE STATE COURT CONCLUSION
Taylor v. Maddox, 366 F.3d 992 (9th Cir. May 10, 2004) (state court conclusion that confession obtained from 16-year old defendant was voluntary was objectively unreasonable, as it ignored testimony of defendant's counsel that defendant had called him shortly after confessing; "[F]ailure to take into account and reconcile key parts of the record casts doubt on the process by which the finding was reached, and hence on the correctness of the finding.").

PLEA - ALFORD PLEA POST CON RELIEF - GROUNDS - FACTUAL BASIS - INSUFFICIENT FACTUAL BASIS EVEN MORE IMPORTANT FOR ALFORD PLEA
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. If the defendants admissions during the plea colloquy, coupled with the prosecutions offer of proof, do not cover all of the essential elements of the offense, the plea is arguably invalid on this ground. 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).

Lower Courts of Ninth Circuit

CAL POST CON - GROUNDS - FACTUAL BASIS
People v. Coulter, 163 Cal.App.4th 1117 (Jun. 10, 2008) (possible, in some cases, for trial court, with express or implied consent of the defendant, to put the issue of factual basis for a guilty plea over to the sentencing hearing).

POST CON RELIEF - WASHINGTON - GROUNDS - INSUFFICIENT EVIDENCE TO SUPPORT PLEA
State v. Colquitt, ___ Wash. App. ___, 2006 Wash. App. LEXIS 1383 (Jun. 29, 2006) ("The agreement Colquitt entered into to participate in drug court was neither a stipulation that the substance in the underlying charge was a controlled substance, nor a stipulation to the sufficiency of the evidence. And, although he agreed that the police report that included a field test of the substance could be admitted, there were no laboratory test results. We hold that the police report and field test were not sufficient evidence of a controlled substance. We reverse and remand to vacate the conviction.").