The Supreme Court has addressed at some length the effect of a plea of guilty on the later assertion of claimed violations of constitutional rights. See "the Brady Trilogy": Brady v. United States, 357 U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759 (1970); and Parker v. North Carolina, 397 U.S. 790 (1970). The Court recently summarized that the "focus of Federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity... We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea respresents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann." Tollett v. Henderson, 411 U.S. 258, 266-267 (1973). In Tollett the Court considered the case of a petitioner who had plead guilty to murder in the first degree in Tennessee. Court said: "After a series of proceedings in the Tennessee trial and appellate courts, the Tennessee Court of Criminal Appeals ultimately concluded that respondent had waived his claim (that Negroes had been excluded from the grand jury) by failure to raise it before pleading to the indictment, and by pleading guilty." (at 259). The And in Lefkowitz v. Newsome, 420 U.S. 283 (1975) the Court added that if a State does not construe a guilty plea to constitute a "break in the chain of events" with regard to certain types of constitutional claims, then such constitutional claims may be pursued in Federal habeas proceedings. However, "in most States a defendant must plead not guilty and go to trial to preserve the opportunity for state appellate review of his constitutional challenges to arrest, admissibility of various pieces of evidence, or the voluntariness of a confession. A defendant who chooses to plead guilty rather than go to trial in effect deliberately refuses to present his federal claims to the state court in the first instances. McMann v. Richardson, supra, at 768. Once the defendant chooses to by pass the orderly procedure for litigating his constitutional claims in order to take the benefits, if any, of a plea of guilty, the State acquires a legitimate expectation of finality in the conviction thereby obtained. Cf. Fay v. Noia, 372 U.S. 391, 438." (at 289). Tennessee law in this area was spelled out by the Tennessee Court of Criminal Appeals in its denial of post-conviction relief for Ray: "a plea of guilty, understandingly and voluntarily entered upon the advice of counsel, waives all non-jurisdictional defenses and alleged prior constitutitonal rights violations." Ray v. State, supra, at 480 S.W. 2d 920, citing State ex rel. Lawrence v. Henderson 433 S.W. 2d 96 (Tenn, Cr. App. 1968). While the claims available for argument on habeas may thus be reduced for one who has plead guilty, it should perhaps be noted that the Supreme Court has articulated the principle that "a prisoner in custody after pleading guilty, no less than one tried and convicted by a jury, is entitled to avail himself of the writ in challenging the constitutionality of his custody. Blackledge Allison, 431 U.S. 63 (1977). V. Federal Pardon or Parole Federal pardon and parole would not appear to be available remedies for state prisoners such as James Earl Ray. The parole statutes define "eli gible prisoners" as Federal prisoners. 18 U.S.C. 4201. Ray, of course, remains The President's authority a Tennessee prisoner, convicted of a Tennessee crime. under Article II, Section 2, Clause 1 of the Constitution to "grant Reprieves and Pardons for Offences against the United States" applies only to persons convicted under the laws of the United States. The pardoning power flows from the Constitution alone, not from any legislative enactments. Schick v. Reed, 419 U.S. 256 (1974). A Federal court has said: "Since the crime charged here was not an offense against the United States, the President has not the power of pardon..., and it lies only in the state." In re Bocchiaro, 49 F. Supp. 37, 38 (W.D.N.Y. 1943). Conclusion In summary, it would appear that in spite of Mr. Ray's prior unsuccessful efforts at gaining retrial through habeas proceedings, this remedy remains procedurally available to him in the future. The effect of his guilty plea in limiting the issues upon which he may base such relief, his pursuit of the remedy before, and the unlikelihood of new evidence becoming available which relates to those issues not foreclosed by his plea, make successful application for a writ of habeas corpus highly unlikely. While the application may be heard, summary consideration may be anticipated. A Circuit Court recently described its practice: "This Court has consistently interpreted the habeas corpus statutes as imposing no numerical limits on a state prisoner's access to the federal courts... Instead we have held that summary consideration of a petition is the appropriate remedy when an applicant seeks to relitigate a claim... In these circumstances, to equate the filing of successive petitions with an 'abuse' of habeas is to misunderstand the extraordinary nature of the writ. The doors of the federal courts are never closed to habeas petioners, but importunate claims of state prisoners 'need not be entertained,' section 2244(b) tells us, 'unless the court, justice or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ.' This power of summary disposition furnishes ample defense against paper bombardments." Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977). Kaur Bilarde Kent M. Ronhovde |