On Petition for Rehearing
[Opinion Oct. 15, 1980, 628 F.2d 400 (5th Cir. 1980)]
In its petition for rehearing, the state raises two points which merit further comment.
The state first argues that the panel ignored the effect of Evans' guilty plea. The state maintains that, under Alabama law, the guilty plea was effective, and forecloses on any doubt regarding the fairness of Evans' trial. The initial difficulty with the state's position is that Evans' guilty plea was not accepted by the trial court. The Alabama Supreme Court reached this specific point in dealing with Evans' codefendant Ritter. Evans and Ritter both entered identical pleas, Evans v. State, 361 So.2d 654, 655-56 (Ala.Crim.App.1977). On appeal, the Alabama Supreme Court adopted the statement of facts of the Court of Criminal Appeals, affirmed as to Evans, but remanded to the Court of Criminal Appeals as to Ritter, Evans v. State, 361 So.2d 666 (Ala.1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979). On remand the Court of Criminal Appeals reinstated the conviction, Ritter v. State, 375 So.2d 266 (Ala.Crim.App.1978). In affirming, the Supreme Court described the events as follows:
Ex parte Ritter, 375 So.2d 270, 276 (Ala.1979), vacated ___ U.S. ___, 100 S.Ct. 3044, 65 L.Ed.2d 1133 (1980) (emphasis added). Since Ritter's plea was identical to Evans', it is clear that, under Alabama law as interpreted by the Alabama Supreme Court, Evans' plea of guilty was not accepted.
The instruction which the trial judge gave to the jury makes it clear that the rejected guilty plea was not determinative.
The state took no exception to these instructions at trial. It therefore cannot now
Finally, even if all of the state's contentions were allowed, it would not have the legal result for which it argues. A guilty plea waives constitutional challenges to proceedings before the plea is entered, not to events afterwards. "The Brady trilogy announced the general rule that a guilty plea, intelligently and voluntarily made, bars the later assertion of constitutional challenges to the pretrial proceedings." Lefkowitz v. Newsome, 420 U.S. 283, 288, 95 S.Ct. 886, 889, 43 L.Ed.2d 196 (1975).
Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973).
The rule in this circuit is the same, as is that of Alabama.
United States v. Boniface, 631 F.2d 1228, 1229 (5th Cir. 1980); accord, Stanley v. Wainwright, 604 F.2d 379, 380 n. 1 (5th Cir. 1979), cert. denied, 447 U.S. 925, 100 S.Ct. 3019, 65 L.Ed.2d 1118 (1980).
Thus, even if Evans' guilty plea had been accepted, it would have waived his right to challenge only defects in prior proceedings. It would also have waived his right to trial. However, a guilty plea has never been held to waive future defects if the case is nevertheless tried.
The state's second point is that, in view of what it contends is the overwhelming evidence of Evans' guilt, no defects in the statute or the trial procedure, no matter how grave, could possibly have prejudiced him. However persuasive this argument might otherwise be, it has been foreclosed by the Supreme Court. In analyzing the Alabama statute in question, the Court stated as follows:
Beck v. Alabama, 447 U.S. 625, 643, 100 S.Ct. 2382, 2392, 65 L.Ed.2d 392 (1980). "Every case" means even cases in which the defendant tried to plead guilty. The Court has established that there are "constitutional error[s] of the first magnitude and no amount of showing of want of prejudice would cure [them]." Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974). Unless the Supreme Court changes its language in Beck, we must conclude that the defects in the Alabama death statute fall into this category.
We extend our opinion. In all other respects the petition for rehearing is denied.
District Judge THOMAS continues to dissent for the reasons previously stated in the panel opinion.
Id. at 746 (emphasis in original).