Lawrence La Vern Sober v. Roger W. Crist, Warden, Montana State Prison, and Michael T. Greely, Attorney General, State of Montana

After exhausting his state court remedies, appellant petitioned the United States District Court for the District of Montana for habeas relief, which was denied without a hearing. Appellant, who pled guilty on the advice of appointed counsel to attempted nonconsensual sexual assault and was sentenced to 10 years, alleged violation of several constitutional rights, most of which Judge Battin correctly found to be foreclosed by his plea under Tollett v. Henderson, 411 U.S. 258 , 93 S.Ct. 1602 , 36 L.Ed.2d 235 (1973). Tollett , however, leaves two violations open to protest even after a guilty plea: “The focus of federal habeas inquiry is the nature of the advice [of counsel] and the voluntariness of the [guilty] plea, not the existence as such of an antecedent constitutional infirmity.” Id. at 266 , 93 S.Ct. at 1608 . Judge Battin’s opinion did not address the former issue and only dealt with the coercion aspect of the latter, ignoring appellant’s contention that his plea was unintelligent because he did not understand the nature or elements of the crime to which he was admitting guilt. The record does not show whether counsel was effective or not. While it demonstrates that the…