Ready v. Scopa, 1st Cir. (1992)

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[NOT FOR PUBLICATION]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.
___________
and
the record
reasons
stated
We have reviewed the briefs of the parties

on appeal.
in
the
Recommendations," dated
We
affirm essentially
magistrate
June
21,
judge's
1991,
for the
"Findings
and
the
and
district
court's Memorandum and Order, dated October 28, 1991.
We add
only the following comments.
1)
Ready is
correct that
the
issue of
ineffective
factual
finding entitled
pursuant to 28
U.S.C.
the state courts'

assistance of
to
counsel
a presumption
2254(d).
conclusion on
Strickland
of
is not
correctness
v. Washington,
__________
466 U.S. 668, 698 (1984).
Similarly, he is
__________
correct that the
state courts' conclusion as to the voluntariness of his

is also not
a factual finding entitled
Marshall v. Lonberger,
________
_________
each
in
459 U.S.
plea
to that presumption.
422, 431 (1983).
But,
in
instance, the findings of fact made by the state courts

the course of deciding
statutory
these issues are

___
entitled to the
presumption of correctness evidenced in
Strickland
__________
v.
Washington,
__________
466
U.S. at
698;
2254(d).
Marshall
________
v.
Lonberger, 459 U.S. at 431-32.

_________
In
this case,
ineffective and
Ready has
argued that
his guilty plea was
his counsel
was
involuntary because his
counsel failed to pursue, or inform him (and he was otherwise

unaware)
defense
of, the
defense
of insanity
in particular,
claiming that, due to a mental disease or defect, he
-2-
lacked the substantial capacity to conform his conduct to the
requirements of
new
trial,
affidavits
law.
the
But, in ruling on Ready's motion for a
state
from
a hearing
presumption of
on
failed to
This is a
the merits
proffered
lacking
factual issue determined

thus entitled
28 U.S.C.
to
2254(d).1
the
Ready
that factual determination was erroneous.

support his
involuntary and
claim of
his counsel
raise and/or inform him of

well.
the
conclusory,
and
viable insanity defense, Ready's

was
that
were
correctness.
has not shown that

Having
found
therapists
supporting information.
after
courts
See United States v.

___ _____________
Cir. 1991) (appellant must
the existence
of a
claims that his guilty plea

ineffective in
failing to
that defense necessarily falls as

Porter, 924 F.2d
______
395, 397 (1st
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,
universally recognized requirement of

645 (quoting
Ready
Smith v.
_____
does not
elements
of the
attempt,
in effect,
offenses
to
additional
element is
caselaw.
"While we
becomes
that he
a 'fact'
liken the
expressly
believe
of
the crime
insanity has been adduced,

an
'element' of any
proving
he
Id. at
___
334 (1941)).
all
by
the
His
defense to
an
Massachusetts
under Winship,
_______
charged
most
pled guilty.
insanity
that,
and
informed of
refuted
sanity
after evidence
we do not believe that
given crime".
370 Mass. 516, 532 (1976).
U.S. 329,
was
to which
first
due process.'"
O'Grady, 312
_______
dispute
the
of
sanity is
Commonwealth v. Kostka,
____________
______
The Commonwealth has the ultimate
burden
of
defendant's
beyond
a reasonable doubt but only after the question of the
defendant's sanity has been raised.

state
courts
and
the
federal
criminal
Id.
___
district
responsibility
We believe that the

court
correctly
concluded, based on the evidence before the state trial court

at
the time
voluntary.
deferred
of
Ready's guilty
that that
plea
was
And, as we have said, the district court properly

to
evidence
the
Ready
state
courts' further
subsequently
conviction motion failed to

We
plea,
find no
basis,
proffered
finding
with
that
his
the
post-
raise a viable insanity defense.
therefore, for
concluding that
Ready's
guilty plea violated the teaching of Henderson.

_________
-4-
Affirmed. Per Curiam.

_________ __________
the
We
have reviewed the
parties and the record on appeal.
for the
reasons stated
and Recommendations,"
briefs of
We affirm essentially
in the magistrate
judge's "Findings
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
factual
ineffective
finding entitled
pursuant to 28
U.S.C.
assistance of
to
a presumption
2254(d).
466 U.S. 668, 698 (1984).
counsel
of
Strickland
__________
Similarly, he is
is not
correctness
v. Washington,
__________
correct that the
state courts' conclusion as to the voluntariness of his

is also not
a factual finding entitled
Marshall v. Lonberger,
________
_________
each
in
459 U.S.
plea
to that presumption.
422, 431 (1983).
But,
in
instance, the findings of fact made by the state courts

the course of deciding
statutory
these issues are

___
entitled to the
presumption of correctness evidenced in
Strickland
__________
v.
Washington,
__________
466
U.S. at
698;
2254(d).
Marshall
________
v.
Lonberger, 459 U.S. at 431-32.

_________
In
this case,
ineffective and
Ready has
argued that
his guilty plea was
his counsel
was
involuntary because his
counsel failed to pursue, or inform him (and he was otherwise

unaware)
defense
of, the
defense
of insanity
in particular,
claiming that, due to a mental disease or defect, he
-5-
lacked the substantial capacity to conform his conduct to the

requirements of
new
trial,
affidavits
law.
the
But, in ruling on Ready's motion for a
state
from
a hearing
presumption of
on
failed to
This is a
the merits
proffered
lacking
factual issue determined

thus entitled
28 U.S.C.
to
2254(d).1
the
Ready
that factual determination was erroneous.

support his
involuntary and
claim of
his counsel
raise and/or inform him of

well.
the
conclusory,
and
viable insanity defense, Ready's

was
that
were
correctness.
has not shown that

Having
found
therapists
supporting information.
after
courts
See United States v.

___ _____________
Cir. 1991) (appellant must
the existence
of a
claims that his guilty plea

ineffective in
failing to
that defense necessarily falls as

Porter, 924 F.2d
______
395, 397 (1st
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,
universally recognized requirement of

645 (quoting
Ready
Smith v.
_____
does not
elements
of the
attempt,
in effect,
offenses
to
additional
element is
caselaw.
"While we
becomes
that he
a 'fact'
liken the
expressly
believe
of
the crime
insanity has been adduced,

an
'element' of any
burden
of
proving
he
Id. at
___
334 (1941)).
all
by
the
His
defense to
an
Massachusetts
under Winship,
_______
charged
most
pled guilty.
insanity
that,
and
informed of
refuted
sanity
after evidence
we do not believe that
given crime".
370 Mass. 516, 532 (1976).
U.S. 329,
was
to which
first
due process.'"
O'Grady, 312
_______
dispute
the
of
sanity is
Commonwealth v. Kostka,
____________
______
The Commonwealth has the ultimate
defendant's
criminal
responsibility
beyond
a reasonable doubt but only after the question of the
defendant's sanity has been raised.

state
courts
and
the
federal
Id.
___
We believe that the
district
court
correctly
concluded, based on the evidence before the state trial court

at
the time
voluntary.
deferred
of
Ready's guilty
that that
plea
was
And, as we have said, the district court properly

to
evidence
the
Ready
state
courts' further
subsequently
conviction motion failed to

We
plea,
find no
basis,
proffered
finding
with
that
his
the
post-
raise a viable insanity defense.
therefore, for
concluding that
guilty plea violated the teaching of Henderson.

_________
Affirmed.
_________
-7-
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USCA1 Opinion

September 11, 1992

[NOT FOR PUBLICATION]

and Selya, Circuit Judge.

Gerard L. Ready on brief pro se.

We have reviewed the briefs of the parties

court's Memorandum and Order, dated October 28, 1991.

only the following comments.

the state courts'

state courts' conclusion as to the voluntariness of his

a factual finding entitled

422, 431 (1983).

instance, the findings of fact made by the state courts

these issues are

presumption of correctness evidenced in

Lonberger, 459 U.S. at 431-32.

his guilty plea was

involuntary because his

counsel failed to pursue, or inform him (and he was otherwise

claiming that, due to a mental disease or defect, he

lacked the substantial capacity to conform his conduct to the

But, in ruling on Ready's motion for a

factual issue determined

that factual determination was erroneous.

raise and/or inform him of

viable insanity defense, Ready's

has not shown that

See United States v.

Cir. 1991) (appellant must

claims that his guilty plea

that defense necessarily falls as

395, 397 (1st

show that counsel overlooked some

"viable defenses") (quoting United States

717 F.2d 1, 4 (1st Cir. 1983)).

Morgan, 426 U.S. 637

that a guilty plea is not voluntary in a constitutional sense

offer, nor request an opportunity to offer, testimony.

universally recognized requirement of

insanity has been adduced,

we do not believe that

370 Mass. 516, 532 (1976).

The Commonwealth has the ultimate

a reasonable doubt but only after the question of the

defendant's sanity has been raised.

We believe that the

concluded, based on the evidence before the state trial court

And, as we have said, the district court properly

conviction motion failed to

raise a viable insanity defense.

guilty plea violated the teaching of Henderson.

Affirmed. Per Curiam.

have reviewed the

parties and the record on appeal.

dated June 21, 1991,

and the district

court's Memorandum and Order, dated October 28, 1991.

only the following comments.

the state courts'