Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 82-C-561 -- Allen Sharp, District Judge.
Before POSNER and FLAUM, Circuit Judges, and GORDON, District Judge.*fn*
GORDON, District Judge. Brooks Rogers filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.The District Court for the Northern District of Indiana denied the writ. Mr. Rogers contends that his plea of guilty was involuntary and, therefore, invalid. The denial of the petition will be affirmed.
On September 9, 1978, Mr. Rogers' girlfriend, Terrye Curtis, and her brother, John White, were involved in a minor car accident in the parking lot of a restaurant in Indianapolis. Carl Reed, a witness to the accident, exchanged sharp words with Ms. Curtis and her brother. There may also have been physical contact. After reportedly stating that she would return with her man to settle the argument, Ms. Curtis and her brother left the scene.
About 20 minutes later, Ms. Curtis returned to the restaurant with her mother, her brother and Mr. Rogers. Mr. Reed ran when he saw the car enter the parking lot. A witness reported hearing someone in the car say, "The big one, get the big one." Mr. Rogers stepped out of the car and shot the fleeing Mr. Reed in the back. Mr. Reed was taken to a hospital emergency room where he was pronounced dead.
Mr. Rogers, Ms. Curtis and Ms. Curtis' mother and brother were indicted for Mr. Reed's murder. The disposition of the charges against the latter two parties is not in the record. During plea negotiations, the prosecutor insisted that since he intended to try Mr. Rogers and Ms. Curtis together, he would accept a plea bargain only if agreements were reached with both defendants. Under the terms of the plea bargain reached by the parties, Mr. Rogers agreed to plead guilty to a charge of murder, with the state recommending a 45-year sentence; Ms. Curtis agreed to plead guilty to the lesser charge of manslaughter, without any sentence recommendation.
Appearing before the state court on July 9, 1978, the date previously set for trial, Mr. Rogers and Ms. Curtis, represented by separate counsel, moved to change their pleas to guilty. The state court questioned Mr. Rogers at length to assure that his plea was voluntary. Mr. Rogers stated that he had seen the indictment and knew what the charge was. The court explained that by pleading guilty, Mr. Rogers was waiving his constitutional rights to trial by jury, confrontation of witnesses, compulsory process, protection against self-incrimination, and appeal. Mr. Rogers stated that he understood that his plea of guilty constituted a waiver of these constitutional rights.
Mr. Rogers told the court that he understood the agreement he had made with the prosecutor. Asked what his attorney had told him regarding the statutory penalties for murder, Mr. Rogers twice replied, "they offered sixty and forty." At another point he stated, "To tell the truth, I don't know -- under the law -- a life sentence." The state judge explained to Mr. Rogers that 30 years was the "presumptive" sentence, but that statement was inaccurate. The "presumptive" sentence for murder under Indiana law was 40 years. Sentences as high as 60 years or as low as 30 years are allowed depending on the existence of aggravating or mitigating factors.
In the course of the hearing, Mr. Rogers informed the judge that his plea was motivated by his desire to aid Ms. Curtis. Denying that he signed the plea agreement of his own free will, Mr. Rogers explained that the prosecutor would not agree to reduce the charge against Ms. Curtis unless he pleaded guilty to murder: "In other words, they won't let her have a bargain unless I go along with it. That's a threat in one way of speaking -- in order to give her some time."
Mr. Rogers rarely gave direct answers to the judge's questions, seeking instead to focus the change of plea hearing exclusively on the difficulty of his situation with respect to the plea bargain. He did, however, admit that he shot the victim and expressly affirmed his intention to plead guilty:
THE COURT: You do wish to plead guilty.
MR. ROGERS: I signed the bargain -- the plea bargain. If I have to go to ...