Joseph Torrey v. Wayne Estelle

842 F.2d 234 Joseph TORREY, Petitioner-Appellant, v. Wayne ESTELLE, Respondent-Appellee. No. 87-5628. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 4, 1988. Decided March 23, 1988. 1 Cheryl Lutz, Los Angeles, Cal., for petitioner-appellant. 2 Pamela C. Hamanaka, Los Angeles, Cal., for respondent-appellee. 3 Appeal from the United States District Court for the Central District of California. 4 Before CANBY and WIGGINS, Circuit Judges, and LOVELL, * District Judge. LOVELL, District Judge: 5 Joseph Torrey, a California state prisoner, appeals the district court's denial of his petition for writ of habeas corpus, filed under 28 U.S.C. Sec. 2254 . 6 In January of 1980, pursuant to a plea agreement with the people of the State of California, appellant entered a plea of guilty to one count of first degree murder. As part of the plea bargain, the parties agreed that appellant would be committed to the California Youth Authority for execution of his sentence. Appellant was 19 years old at the time the alleged offense was committed. 7 After serving approximately two years in the custody of the Youth Authority, appellant was returned by the Youthful Offender Parole…

Joseph Torrey, a California state prisoner, appeals the district court’s denial of his petition for writ of habeas corpus, filed under 28 U.S.C. § 2254 .

In January of 1980, pursuant to a plea agreement with the people of the State of California, appellant entered a plea of guilty to one count of first degree murder. As part of the plea bargain, the parties agreed that appellant would be committed to the California Youth Authority for execution of his sentence. Appellant was 19 years old at the time the alleged offense was committed.

*235 After serving approximately two years in the custody of the Youth Authority, appellant was returned by the Youthful Offender Parole Board to the committing court for imposition of sentence to state prison on the ground that he was not amenable to Youth Authority Treatment. The Board’s decision was based on the history of his behavior since the time of commitment and his attempt through unauthorized use of the mails to purchase a gun. Following denial of appellant’s motion to withdraw his plea, the court imposed sentence of 25 years to life in the state prison.

Appellant exhausted his state remedies and thereafter filed a petition for writ of…

dissenting.

I dissent because I believe that Torrey’s plea was uninformed and therefore involuntary. Torrey was advised that he could be sentenced to state prison if he was not accepted by the Youth Authority. At the time of his plea, however, Torrey knew that he had been accepted by the Youth Authority. He was told that if he was sent to the Youth Authority, he would remain there until he was 25 years old and that, if he was then considered to be a danger to the community, he might have to remain with the Youth Authority longer. He was never warned that, even though he had been accepted by the Youth Authority, he could still be resentenced to state prison. Yet he is now in state prison serving a sentence of 25 years to life. Under this set *238 of facts, I cannot agree that Torrey was properly informed of his “range of allowable punishment.” United States ex rel. Pebworth v. Conte, 489 F.2d 266, 268 (9th Cir.1974).

The sentence Torrey is now serving was a direct result of his plea. It is true that the line between direct consequences, of which the defendant must be warned, and collateral consequences, of which he need not be warned, is not easily drawn. But Torrey was sentenced…