Patrick Russell Wayne v. Robert R. Raines

concurring:

I concur in Judge Canby’s opinion. This is written only to emphasize the thoughtful and thorough discussion of the state court trial judge with petitioner and his trial counsel at the change of plea hearing and at sentencing.

Additional facts, not disputed, nor could they be, include: the petitioner, upon advice of counsel, executed a written plea agreement and the trial judge discussed it with petitioner and petitioner was furnished a copy; at a thorough sentencing hearing, the minimum of five years was emphasized several times, and at one point the trial judge stated, “I wish to make it very clear, that you serve the five-year mandatory on each of the concurrent, but a ten-year total. .. . ” Immediately thereafter, and once again, the trial judge asked both petitioner and his counsel whether there were any further matters or questions. Each replied in the negative. As pointed out by Judge Canby, there was no motion to withdraw the guilty pleas, nor was there any expression of surprise or dismay.

Furthermore, the record is sufficiently clear that petitioner’s trial counsel discharged his duties and obligations as defense counsel to advise the petitioner of the…

This is an appeal from a district court order granting Patrick Russell Wayne (petitioner), a state prisoner, habeas corpus relief pursuant to 28 U.S.C. § 2254 . The district court held that petitioner’s guilty pleas were obtained in violation of due process because the trial court record does not reveal that petitioner was aware of the parole limitations in the Arizona armed robbery statute under which he was charged. Wayne v. Raines, 522 F.Supp. 1083, 1087 (D.Ariz.1981). We conclude that petitioner has not shown that he was prejudiced by the state trial judge’s failure to inform him of the applicable parole limitations and, therefore, he is not entitled to collateral relief. Accordingly, we vacate the district court’s order granting relief.

FACTS

Petitioner was charged with four separate offenses of armed robbery in violation of Ariz.Rev.Stat.Ann. § 13-641 (1956) (repealed 1978) and § 13-643 (West Supp. 1957-1978) (repealed 1978). At the time of the alleged offenses, the penalty for robbery committed with a gun or deadly weapon was imprisonment for a minimum of five years and a maximum of a life term. Id. § 13-643(B). Furthermore, a person convicted of robbery with a gun was…

690 F.2d 685 Patrick Russell WAYNE, Petitioner-Appellee, v. Robert R. RAINES, et al., Respondents-Appellants. No. 81-5921. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 3, 1982. Decided Oct. 18, 1982. William J. Schafer, III, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellants. Charles L. Weniger, Tucson, Ariz., for petitioner-appellee. Appeal from the United States District Court for the District of Arizona. Before ANDERSON, SKOPIL and CANBY, Circuit Judges. CANBY, Circuit Judge. 1 This is an appeal from a district court order granting Patrick Russell Wayne (petitioner), a state prisoner, habeas corpus relief pursuant to 28 U.S.C. § 2254 . The district court held that petitioner's guilty pleas were obtained in violation of due process because the trial court record does not reveal that petitioner was aware of the parole limitations in the Arizona armed robbery statute under which he was charged. Wayne v. Raines, 522 F.Supp. 1083, 1087 (D.Ariz.1981). We conclude that petitioner has not shown that he was prejudiced by the state trial judge's failure to inform him of the applicable parole limitations and, therefore, he is not entitled to…