Anderson

dissenting.

I respectfully dissent, for I believe that the state court’s determination that Anderson understood the maximum sentence for the crime to which he was pleading was not “an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” nor was it based on “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254 (d). This quotation is from ADEPA, which requires us to give some deference to the state court’s findings.

The petitioner relies primarily upon the decision in Boykin v. Alabama, 395 U.S. 238, 242 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969). In that case, however, the trial court that accepted the plea asked no questions of the defendant concerning his guilty plea and the defendant did not address the court. This record provides much more, although it does show a period of silence after the court asked the petitioner if he understood this sentence. The colloquy between the court and the petitioner could have been better, but we are only required to determine if the state court unreasonably determined the facts from this evidence. I would…

MEMORANDUM **

Petitioner-Appellant Kenneth Walker Anderson (“Anderson”) appeals the district court’s denial of his habeas corpus petition seeking review of his 1991 second degree murder conviction and resulting 15-year to life sentence. Because we conclude that Anderson, a seriously mentally disabled individual with retarded intellectual functions, was not properly advised of the sentencing consequences of his guilty plea, we reverse.

Anderson’s plea and sentence resulted from the robbery-murder of another homeless man. The prosecution conceded that Anderson’s role in the crime was secondary to that of his co-defendant. Anderson, who has a long history of mental illness and depression, claims that he understood he was to receive a flat 15-year sentence if he pled guilty and the record of the entry of his plea and his later sentencing supports his claim. When entering his plea, Anderson was asked by the state trial court judge if he understood that his plea subjected him to a sentence of 15 years to life and the record shows no response — not even a nod of the head:

The record shows no follow-up or pursuit of a response to this critical question. Nor does Anderson’s later…