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Sixth Circuit Announces Full, Unconditional Pardon, Regardless of Issue of Innocence, Meets Heck Requirement of Invalidated Conviction; § 1983 Claims May Be Pursued

by Harold Hempstead

The U.S. Court of Appeals for the Sixth Circuit held that Heck v. Humphrey, 512 U.S. 477 (1994), does not bar a plaintiff who received a full, unconditional pardon from filing a § 1983 claim raising constitutional violations relating to their criminal conviction.

In 2008, Johnetta Carr, while maintaining her innocence, entered an Alford plea, see United States v. Tunning, 69 F.3d 107 (6th Cir. 1995) (an “‘Alford plea’ refers to a defendant who pleaded guilty but maintained that [she] is innocent”); see also North Carolina v. Alford, 400 U.S. 25 (1970), “to second degree manslaughter, conspiracy to commit robbery, conspiracy to commit burglary, and tampering with physical evidence … [and] was sentenced to … [20] years of imprisonment.”

After her 2009 parole and 2018 discharge from her sentence, she applied for a pardon on December 6, 2019. During the pardon process, she maintained her innocence, and “[t]he Kentucky Innocence Project filed letters in support of her application.” Kentucky Governor Matthew Bevins granted Carr “the full and unconditional pardon [that] she … requested” and restored to her all the “rights and privileges of a citizen of … [the] commonwealth.”

A year later, Carr filed a § 1983 claim in the U.S. District Court for the Western District of Kentucky, naming several defendants and contending that they violated her constitutional rights in her criminal case by fabricating evidence, coercing false statements, and withholding exculpatory evidence.

The defendants requested that Carr’s § 1983 complaint be dismissed, arguing that it was barred by the Supreme Court of the United States’ (“SCOTUS”) decision in Heck. The district court granted the defendants’ request and denied Carr’s request that the court grant supplemental jurisdiction over her state law claims. Carr appealed.

The Court began its discussion with SCOTUS’s decision in Heck. After Heck was convicted of voluntary manslaughter and sentenced to 15 years imprisonment, he filed a § 1983 seeking monetary damages for constitutional violations relating to his criminal case.

After stating that a petition for writ of habeas corpus is the exclusive remedy to seek release from custody, SCOTUS noted that Heck was seeking damages. SCOTUS reasoned that in order to determine whether his claims are cognizable under § 1983 it needed to compare such claims to malicious prosecution, which requires the plaintiff to show “termination of the prior criminal proceeding in favor of the accused.” This showing avoids “parallel litigation and collateral attacks on a conviction via § 1983,” SCOTUS explained. 

SCOTUS instructed that in order to recover damages for an unconstitutional conviction or imprisonment, the plaintiff’s conviction must have already been invalidated by: (1) reversal on direct appeal, (2) executive expungement, (3) declared invalid by a state tribunal, or (4) called into question by a writ of habeas corpus.

Turning to the present case, Carr argued that her conviction had already been invalidated as required by Heck because her pardon falls under the second manner of invalidation articulated in Heck, i.e., executive expungement.

The Court observed that the issue of “whether a pardoned individual can pursue a § 1983 claim relating to her conviction” is an issue of first impression in the Sixth Circuit, but other “[c]ourts that have considered the issue unanimously agree that pardons in some way fall under Heck’s reach.” See Savory v. Cannon, 947 F.3d 409 (7th Cir. 2020) (en banc); Wilson v. Lawrence Cnty., 154 F.3d 757 (8th Cir. 1998); Walden v. City of Chicago, 391 F. Supp. 2d 660 (N.D. Ill. 2005); Snyder v. City of Alexandria, 870 F. Supp 672 (E.D. Va. 1994).

The Court agreed with the Eighth Circuit that when the Heck Court said a conviction is invalidated if it is “expunged by executive order,” the term “expunged” means destroyed or obliterated “figuratively,” not literally “physically destroying information.” Wilson. In reaching this conclusion, the Wilson Court looked to the other methods of invalidating a conviction under Heck and reasoned that they don’t require “literal destruction,” so the Wilson Court adopted the figurative meaning of expunged. The Wilson Court then explained that a full pardon obliterates a conviction, so a full pardon constitutes expungement by executive order.

Similarly, the Court agreed with the Seventh Circuit’s usage of the words “‘pardon’ or ‘executive pardon’ as synonyms for ‘expunged by executive order.’” Savory. Thus, the Court announced: “we join our sister circuits in holding that a pardoned individual has had her conviction expunged by executive order under Heck.”

The Court flatly rejected the defendants’ argument that Carr’s pardon didn’t invalidate her conviction because the pardon didn’t include language indicating her innocence. The Court explained that Heck doesn’t require a finding of innocence and doesn’t “impose a prerequisite of innocence to seek relief under § 1983.” See Heck; see also Savory

The Court held that “a full pardon, regardless of its implications for the question of innocence, meets the requirements of Heck. Under this standard, the Court ruled that Carr’s pardon satisfies the requirement because it’s a “full and unconditional pardon.” Thus, the Court concluded that Carr may proceed with her § 1983 claims.

Accordingly, the Court reversed the dismissal of Carr’s § 1983 claims and state law claims and remanded the case back to the district court for further proceedings. See: Carr v. Louisville-Jefferson Cnty., 2022 U.S. App. LEXIS 16662 (6th Cir. 2022). 

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Related legal cases

Carr v. Louisville-Jefferson Cnty.

Wilson v. Lawrence Co., Missouri

Wilson v. Lawrence County, 154 F.3d 757 (8th Cir. 08/17/1998)

[1] U.S. Court of Appeals, Eighth Circuit

[2] No. 97-4142

[4] August 17, 1998


[6] Before Beam, Loken, and Murphy, Circuit Judges.

[7] The opinion of the court was delivered by: Beam, Circuit Judge.

[8] Submitted: May 15, 1998

[9] Appeal from the United States District Court for the Western District of Missouri.

[10] Johnny Lee Wilson appeals the district court's adverse grant of summary judgment in this action under 42 U.S.C. § 1983, which seeks damages from the defendants for wrongfully arresting and incarcerating Wilson in violation of his constitutional rights. We reverse and remand for trial.


[12] In 1986, county officials arrested Wilson, who is mentally retarded, in connection with the murder of an elderly woman. Wilson was charged with capital murder under Missouri law. In order to avoid the possibility of the death penalty, he submitted an Alford plea *fn1 to first-degree murder. Wilson was convicted and sentenced to life imprisonment without the possibility of probation or parole.

[13] In September of 1995, after Wilson had spent more than nine years in prison, Missouri Governor Mel Carnahan granted him the following pardon:

[14] I, MEL CARNAHAN, GOVERNOR OF THE STATE OF MISSOURI, have had presented to me a request for the pardoning of Johnny Lee Wilson, who was on the 30th day of April, 1987, by a judgment of the Circuit Court of Jasper County, sentenced for the crime of First Degree Murder. After examination of the application and the facts relevant thereto, and upon the recommendation of the Board of Probation and Parole, I hereby grant to Johnny Lee Wilson a full pardon from the above conviction. This pardon obliterates said conviction so that I hereby relieve Johnny Lee Wilson from the obligation to satisfy any part of the sentence for said conviction which may remain unsatisfied, restore to him all rights of citizenship forfeited by said conviction, and remove any legal disqualification, impediment or other legal disadvantage which may be a consequence of said conviction.

[15] App. at 80. Governor Carnahan also issued an accompanying statement explaining the reasons for his decision to pardon Wilson:

[16] As a result of an intense investigation conducted by my office, I have decided to issue a pardon to Johnny Lee Wilson because it is clear he did not commit the crime for which he has been incarcerated.

[17] It is common for convicted criminals to make claims of innocence. In almost all of these cases, the claims of innocence are false. However, in this case, it is clear that Johnny Lee Wilson's claim is true.

[18] To meet my responsibilities under the Constitution, this office has conducted an exhaustive investigation into the facts of this case. We have spent literally hundreds of hours re-examining the evidence in this case. We have reviewed all the transcripts and re-interviewed the key witnesses including the prosecutor and law enforcement officials involved in this case.

[19] From this investigation, it is clear that Johnny Lee Wilson's confession is false and inaccurate. Furthermore, there is no evidence to corroborate or substantiate it. Quite to the contrary, there is significant evidence to indicate that it is false.

[20] It is evident that the only facts this mentally retarded man knew about this hideous crime were the facts given to him by investigators who felt pressure to solve the case quickly. And virtually all the information Wilson himself tried to offer about the crime-in response to the investigator's questions-was inaccurate and inconsistent with the known facts.

[21] In fact, the original motivation for Wilson's arrest has been removed. The person who originally accused Wilson of committing the crime has recanted his accusation and now admits that the statement he made to police was untrue.

[22] App. at 82-83.

[23] Following his release from prison, Wilson filed this action against Lawrence County and various named and unnamed law enforcement officials. The complaint raised claims under state tort law as well as 42 U.S.C. § 1983, alleging that the defendants had "conducted a biased investigation by intimidating and coercing witnesses" and "provided information, knowing it was false and/or misleading or in reckless disregard for the truth or falsity of the information, to the prosecution and the court in an effort to obtain Wilson's conviction at any apparent cost," resulting in Wilson's conviction and incarceration in violation of his rights. The defendants moved to dismiss Wilson's federal claim under Rule 12(b)(6) or, in the alternative, for summary judgment. The district court granted summary judgment in favor of the defendants on the section 1983 claims, and declined to exercise supplemental jurisdiction over Wilson's remaining state law claims. Wilson appeals.


[25] We review the district court's grant of summary judgment de novo. See Smith v. Jenkins, 919 F.2d 90, 92 (8th Cir. 1990). Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All facts and inferences are viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The question before us is whether the defendants are entitled to judgment as a matter of law.

[26] A claim is not cognizable under section 1983 where a judgment in favor of the plaintiff would necessarily imply invalidity of the plaintiff's state conviction or sentence, unless the conviction or sentence has already been invalidated. See Heck v. Humphrey, 512 U.S. 477, 487 (1994). The plaintiff "must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 486-87.

[27] The parties agree that a favorable resolution of at least some of Wilson's 1983 claims would imply that his conviction was invalid. *fn2 Therefore, under Heck, he cannot maintain this 1983 action absent a showing that his conviction has been invalidated by some means independent of the instant proceeding. Wilson asserts that his conviction was "expunged by executive order" by virtue of his full pardon from the governor. The defendants disagree. The district court, relying on Missouri law, concluded that a person who is pardoned by the governor remains guilty in the eyes of the Missouri court and therefore cannot bring a 1983 claim for wrongful incarceration. In our view, however, the issue in this case is one of federal law. *fn3 Cf. Smith v. Holtz, 879 F. Supp. 435, 443 (M.D. Pa. 1995) (holding that the common law of malicious prosecution should not be read into 1983 beyond the boundaries of Heck because "we are here formulating a body of federal substantive law-determining the elements of a federally-enacted cause of action"). The relevant question is whether Wilson's pardon invalidated his conviction within the meaning of Heck. We find that it did.

[28] Though Heck does not list an executive pardon among the ways a state conviction can be invalidated for purposes of 1983, it "certainly seem[s] to be within the reach of the Court's language." Snyder v. City of Alexandria, 870 F. Supp. 672, 686 (E.D. Va. 1994) (finding that a 1983 plaintiff's pardon for innocence falls within Heck's description of the ways a conviction can be invalidated). Heck expressly approves the method of "expunge[ment] by executive order." The term "expunge" has two different connotations. It can mean "[t]he act of physically destroying information-including criminal records-in files, computers, or other depositories." Black's Law Dictionary 582 (6th ed. 1990). Its more common meaning, however, is figurative: "[t]o destroy; blot out; obliterate; erase; efface designedly; strike out wholly." Id.; see also The Random House Dictionary of the English Language 683 (2d ed. 1987) ("to strike or blot out; erase; obliterate").

[29] None of the other authorized methods of challenging the validity of a state conviction-direct appeal, state collateral proceedings, and federal habeas review-all of which the Court mentioned in the same breath as "expunge[ment] by executive order," entails the literal destruction, or "expungement" of the record of conviction. It is highly unlikely that the Court intended arbitrarily to impose that requirement in this one category of cases. Thus, we think the Court intended the figurative meaning of "expunge."

[30] In this sense, Wilson's pardon did "expunge" his conviction "by executive order." Governor Carnahan, acting within his authority under the Missouri Constitution, see Mo. Const. Art. IV, Sec. 7, issued Wilson a full pardon, stating, "it is clear [Wilson] did not commit the crime for which he has been incarcerated." The pardon states on its face that it "obliterates said conviction." Wilson's pardon is therefore an "executive order" that "expunged," "obliterated," and "invalidated" his conviction. Heck requires nothing more.

[31] The district court determined that the requirements of Heck were designed, in part, to avoid the possibility of inconsistent outcomes based on the same transaction. Because Wilson was adjudicated guilty, the court reasoned that Heck prevents the inconsistency of allowing him to recover damages for his wrongful conviction. This is to turn Heck on its head. Any successful collateral attack on a conviction necessarily results in inconsistent outcomes based on the same transaction. Heck does not prevent this. In fact, Heck condones collateral proceedings as a mechanism for satisfying its mandates. A federal writ of habeas corpus does not reverse or void the state judgment of conviction. See Rimmer v. Fayetteville Police Dep't, 567 F.2d 273, 277 (4th Cir. 1977) (observing that "the state court judgment is neither reversed nor vacated" when a federal court issues a writ of habeas corpus); Smith v. Spina, 477 F.2d 1140, 1147 (3d Cir. 1973) (stating that a federal writ of habeas corpus "does not have the force and effect of voiding a conviction"). It does, however, by Heck's own terms, "invalidate" the conviction for purposes of bringing a section 1983 claim challenging that conviction. Indeed, the only way a state conviction could be "invalidated" without the consequence of inconsistent outcomes based on the same transaction is reversal on direct appeal. The invalidation requirement of Heck is not limited, however, to the direct appeal process.

[32] The gist of Heck is that section 1983 is not an appropriate vehicle for attacking the validity of a state conviction. Wilson does not seek to put it to this improper use. He used the executive clemency process, which the Supreme Court has expressly approved, as the forum in which to challenge his criminal conviction. See Herrera v. Collins, 506 U.S. 390, 411-17 (1993). In Herrera, the Court described pardons as "provid[ing] the 'fail safe' in our criminal Justice system," noting that "history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence." Id. at 415 (citations omitted). The present case is a prime example of the usefulness of the pardon process to vindicate the innocent, and it demonstrates that the Court's faith in the viability of executive clemency was not misplaced. Section 1983 rightly provides a remedy to an innocent man whose constitutional rights have been violated by an erroneous conviction and wrongful nine-and-one-half-year incarceration.

[33] We find that, by virtue of the pardon he received from Missouri's governor, Wilson's conviction was invalidated and "expunged by executive order" within the meaning of Heck. Accordingly, we reverse the district court's grant of summary judgment.

[34] Because Wilson's federal claim is cognizable, the district court had no discretion to dismiss his state law claims, as they are so intertwined with his section 1983 claim that they form part of the same case or controversy. See 28 U.S.C. § 1367.


[36] For the foregoing reasons, the district court's grant of summary judgment is reversed, Wilson's state law claims are reinstated, and the case is remanded for trial.

[37] A true copy.

[38] Attest:



Opinion Footnotes


[40] *fn1 With an Alford plea, the defendant pleads guilty and consents to the imposition of a sentence while still proclaiming his innocence of the charged offense. See North Carolina v. Alford, 400 U.S. 25, 37 (1970). The court is obliged to find "strong evidence of actual guilt" before accepting such a plea. Id.

[41] *fn2 We do not address the issue of which claims imply the invalidity of Wilson's conviction and which do not. Nor do we consider whether any of the claims may be time-barred. Those potential issues were not before the district court and are not advanced on appeal.

[42] *fn3 Even if it were necessary to resort to state law to inform our decision on this federal question, we would find that a governor's pardon does invalidate a conviction in the State of Missouri. The Missouri Supreme Court determined the legal effect of a gubernatorial pardon in Guastello v. Department of Liquor Control, 536 S.W.2d 21 (Mo. 1976). In Guastello, the court adopted the view that, in Missouri, a full pardon "obliterate[s]" "the fact of conviction," "but the guilt remains." Id. at 23-24. The "guilt" to which the court referred was not the "legal guilt," but the "moral guilt," or the "moral character," of the pardonee. Id. at 23 & n.1. The Department of Liquor Control was not free to deny Guastello a liquor license based on his prior conviction, the court held, because that conviction was obliterated when the governor granted him a full pardon. Id. at 25. If, under the law of Missouri, a gubernatorial pardon has the effect of "obliterat[ing]" a state conviction, it can properly be said to "expunge" and "invalidate" that conviction as well.

U.S. v. Tunning





No. 95-5097

August 8, 1995, Argued

November 3, 1995, Decided
November 3, 1995, Filed

PRIOR HISTORY: [**1] ON APPEAL from the United States District Court for the Eastern District of Kentucky. 87-00026. William O. Bertelsman.

COUNSEL: For UNITED STATES OF AMERICA, Plaintiff - Appellee: Frederick A. Stine, V, Asst. U.S. Attorney, Argued, Briefed, Office of the U.S. Attorney, Covington, KY.

For RONALD L. TUNNING, Defendant - Appellant: Carol A. Serelson, Argued, Briefed, Cheyenne, WY.

JUDGES: Before: KEITH, RYAN, and BATCHELDER, Circuit Judges.

OPINION: [***1]

[*109] RYAN, Circuit Judge. The defendant, Ronald Tunning, appeals from the judgment and sentence entered after he pleaded guilty to one count of credit card fraud in violation of 18 U.S.C. § 1029(a)(2). Tunning makes several arguments on appeal, but we address only the one we find dispositive: whether Tunning's guilty plea record reflects a sufficient factual basis to support the guilty plea as [***2] required by Fed. R. Crim. P. 11(f). We hold that it does not and we vacate Tunning's conviction.


On June 10, 1987, a grand jury in Covington, Kentucky, returned an indictment against Tunning charging him with six counts of credit card fraud and one count of fraudulent use of a social security number. Count 1 of the indictment charged Tunning with using an unauthorized American Express card between September 1984 and September 1985. In exchange for a guilty plea to this count, the government agreed to dismiss the remaining counts of the indictment. After pleading guilty, Tunning remained on bond to await sentencing. [**2]

Rather than appear for sentencing, Tunning absconded and eventually made his way to Nebraska, where, in 1994, he participated in a bank fraud scheme involving the unlawful alteration of checks. While an indictment for bank fraud was imminent in Nebraska, Tunning decided to return to Kentucky. He later claimed that his intention was to surrender for sentencing on his 1988 credit card conviction. Before doing so, however, on May 8, 1994, he was stopped for a traffic violation near Covington, Kentucky, and a routine check revealed the outstanding fugitive warrant against him. He was arrested and turned over to federal authorities.

After the Nebraska grand jury returned a bank fraud indictment against Tunning, that case was transferred to the Eastern District of Kentucky. Tunning pleaded guilty to this new charge, and on January 3, 1995, he was sentenced for both the 1988 credit card fraud conviction and the 1994 bank fraud conviction. The credit card fraud conviction was not subject to the Sentencing Guidelines, and the district court imposed the statutory maximum term of imprisonment, which was 10 years, and also ordered restitution in the amount of $ 24,404.06. The bank fraud conviction [**3] was subject to the Sentencing Guidelines, and the appropriate sentence range was calculated to be 10 to 16 months. The district court sentenced Tunning to the [***3] minimum sentence of 10 months, to run consecutively to the 10 year sentence for the credit card fraud conviction.

Tunning appeals only the 1988 credit card fraud conviction and only the sentence imposed for that offense.




In 1988 when he was facing the seven count indictment, Tunning desired to plead guilty in order to avoid a trial, but he also desired to avoid stating on the record the factual basis for his guilty plea. To accommodate Tunning's wishes, the district court allowed the factual basis for the plea to be established by the prosecutor's presenting a summary of what the government's evidence would have shown at trial.

[*110] The parties call Tunning's plea an "Alford plea," referring to North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970). In Alford, a state defendant had been indicted for first-degree murder, which was a capital offense. The defendant claimed that he was innocent, but when his attorney interviewed the potential witnesses the defendant claimed would substantiate his innocence, [**4] each witness "gave statements that strongly indicated [the defendant's] guilt." Id. at 27. In the face of strong evidence of his guilt and no evidence of his innocence, the defendant's attorney advised Alford to plead guilty to second-degree murder, which was a non-capital offense. Id. Alford pleaded guilty, and the prosecutor called three witnesses to establish the factual basis for the plea: a police officer who summarized the state's case and two witnesses who testified as to what they had seen. Although no one had seen the actual killing, the witnesses testified that the defendant had left his house with a gun promising to kill the victim and that the defendant returned sometime later "with the declaration that he had carried out the killing." Id. at 28. The defendant took the stand and testified that he had not [***4] committed the crime but that he was pleading guilty to avoid the death penalty. Id. On appeal, the defendant claimed that his conviction was unconstitutional because his guilty plea had not been voluntarily and knowingly made. Id. at 29. The Supreme Court held that

while most pleas of guilty consist of both a waiver of trial and an [**5] express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.

Id. at 37.

In its strictest sense, then, an "Alford plea" refers to a defendant who pleaded guilty but maintained that he is innocent. See United States v. Harlan, 35 F.3d 176, 180 n.1 (5th Cir. 1994). Tunning is not such a defendant because he never stated on the record that he was innocent. The Federal Rules of Criminal Procedure recognize only three pleas: Fed. R. Crim. P. 11(a)(1) states that "[a] defendant may plead not guilty, guilty, or nolo contendere. If a defendant [**6] refuses to plead . . . , the court shall enter a plea of not guilty." The so-called "Alford plea" is nothing more than a guilty plea entered by a defendant who either: 1) maintains that he is innocent; or 2) without maintaining his innocence, "is unwilling or unable to admit" that he committed "acts constituting the crime." Alford, 400 U.S. at 37. Because we believe it is important to bear in mind that in either situation the defendant's plea [***5] is guilty, we will use the term "Alford-type guilty plea," rather than merely "Alford plea."

We also note that there should be no confusion regarding the difference between an Alford-type guilty plea and a plea of nolo contendere. In United States v. Harlan, supra, the district court had interchangeably used the terms "nolo" and "Alford" during the sentencing hearing and had indicated that the judgment was pursuant to a "nolo" plea. The court of appeals stated that "although an Alford plea and a plea of nolo contendere are not technically synonymous, resolution of this apparent discrepancy is not necessary to the outcome of this appeal, and the court assumes, as do the parties, that [the defendant] [**7] entered an Alford plea." 35 F.3d at 180 n.1. See also Crofoot v. United States Gov't Printing Office, 761 F.2d 661, 665 & n.1 (Fed. Cir. 1985). Fed. R. Crim. P. 11(b) states that "[a] defendant may plead nolo contendere only with the consent of the court" and that such consent may be given "only after due consideration of the views of the parties and the interest of the public in the effective administration of justice." Rule [*111] 11 imposes no similar requirement for the defendants who plead guilty but refuse to admit to facts substantiating that guilt. An Alford-type guilty plea is a guilty plea in all material respects.


Tunning argues that the district court failed to ascertain that a sufficient factual basis supported his guilty plea. Fed. R. Crim. P. 11(f) provides: "Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea."

In McCarthy v. United States, 394 U.S. 459, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969), the Supreme Court adopted a rule of strict compliance with the procedures of Rule 11. This rule was modified in 1983 with the adoption of Rule 11(h), [**8] which provides that variations from the requirements of Rule 11 are excusable so long as they do not affect the "substantial rights" of the defendant. See, e.g., United States v. Goldberg, 862 F.2d 101 [***6] (6th Cir. 1988). However, this "harmless error" analysis does not apply to appellate review of the sufficiency of the factual basis supporting the guilty plea. "'While the exact method of producing a factual basis on the record is subject to a flexible standard of review, the need to have some factual basis will continue to be a rule subject to no exceptions.'" Id. at 106 (quoting United States v. Fountain, 777 F.2d 351, 357 (7th Cir. 1985), cert. denied, 475 U.S. 1029 (1986)).

The requirement that a sentencing court must satisfy itself that a sufficient factual basis supports the guilty plea is not a requirement of the Constitution, but rather a requirement created by rules and statutes. Higgason v. Clark, 984 F.2d 203, 208 (7th Cir.), cert. denied, 113 S. Ct. 2974 (1993). "The purpose of this requirement is to ensure the accuracy of the plea through some evidence that a defendant actually committed the offense." United States v. Keiswetter, [**9] 860 F.2d 992, 995 (10th Cir. 1988), modified as to remedy, 866 F.2d 1301 (10th Cir. 1989) (en banc).

We must first decide whether the required factual basis is different when a defendant enters an Alford-type guilty plea. Relying on the language of Alford, Tunning argues that when a defendant enters an Alford-type guilty plea, the district court may accept the guilty plea only if the factual basis is established by "strong evidence." We conclude that Tunning has misread Alford. The Alford Court's comment regarding "strong evidence of actual guilt" was made in the context of differentiating a defendant who refuses to admit his conduct, such as Tunning, from a defendant who protests his innocence, such as the defendant in Alford. Only for the latter defendant must there be "strong evidence." "If a defendant enters a guilty plea while continuing to assert his innocence, the district court may accept [the guilty plea] if there is 'a strong factual basis.'" United States v. Alber, 56 F.3d 1106, 1110 (9th Cir. 1995) (emphasis added) (quoting Alford, 400 U.S. at 37-38). This requirement of "strong evidence" enables a court to determine that [**10] the defendant's guilty plea is [***7] voluntary and therefore not constitutionally infirm. See Higgason, 984 F.2d at 207.

The Fourth Circuit has rejected the argument that an Alford-type guilty plea requires a "strong factual basis." United States v. Morrow, 914 F.2d 608, 611 (4th Cir. 1990). The court concluded that "any Rule 11 proceeding requires that a factual basis for the plea be established and we are unwilling to place more requirements in the context of an Alford plea." Id. at 612. The Seventh Circuit concluded that "Rule 11 does not distinguish between factual material supplied by the defendant and that supplied by the prosecutor." United States v. Ivory, 11 F.3d 1411, 1415 (7th Cir. 1993).

We hold today that there is no difference in the requirements of Fed. R. Crim. P. 11(f) for a defendant who pleads guilty and admits to acts constituting the crime and a defendant who pleads guilty but who either 1) affirmatively protests his innocence or 2) refuses to admit to acts constituting the crime; that is, either of the two possible Alford-type guilty pleas. "Strong evidence of actual guilt" is not necessary to satisfy [*112] Rule 11(f), even where a [**11] defendant protests his innocence. Just as for any guilty plea, when a defendant desires to enter an Alford-type guilty plea, Fed. R. Crim. P. 11(f) requires only that the district court "satisfy itself that there is a factual basis for the plea."

The ideal means to establish the factual basis for a guilty plea is for the district court to ask the defendant to state, in the defendant's own words, what the defendant did that he believes constitutes the crime to which he is pleading guilty. So long as the district court ensures that the defendant's statement includes conduct -- and mental state if necessary -- that satisfy every element of the offense, there should be no question concerning the sufficiency of the factual basis for the guilty plea. This "ideal" method is by no means the only method, however. "We recognize that the district court may determine the existence of the Rule 11(f) factual basis from a number of sources, [***8] including a statement on the record from the government prosecutors as well as a statement from the defendant." Goldberg, 862 F.2d at 105. And, of course, it is possible that witnesses may be called to state the factual basis with the defendant [**12] providing confirmation. Our inquiry turns, then, to whether the record of the plea hearing in this case establishes a factual basis for all the elements of credit card fraud.

Count 1 of the indictment, the count to which Tunning pleaded, charged Tunning under 18 U.S.C. § 1029(a)(2). That section makes it a crime if someone "knowingly and with intent to defraud traffics in or uses one or more unauthorized access devices during any one-year period, and by such conduct obtains anything of value aggregating $ 1,000 or more during that period." 18 U.S.C. § 1029(a)(2). The statute also requires that the act affect interstate or foreign commerce. This offense, then, has four elements: 1) the intent to defraud; 2) the knowing use of or trafficking in an unauthorized access device; 3) to obtain things of value in the aggregate of $ 1,000 or more within a one-year period; and 4) an affect on interstate or foreign commerce. The definition of "access device" includes a credit card. 18 U.S.C. § 1029(e)(1). An "unauthorized access device" is defined as "any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud." 18 U.S.C. § 1029(e)(3).

In order [**13] to establish the factual basis of Tunning's guilty plea to Count 1, the prosecutor stated:

Your Honor, the United States would prove that on or about September 15, 1984, Mr. Tunning obtained an American Express credit card in the name of Timothy Kennedy, and he obtained it using certain false information. He used his own Social Security number. He used -- there is a real Tim Kennedy with whom Mr. Tunning has been associated before. He used Mr. Kennedy's actual date of birth on the application for that credit card. [***9] There was also some question in our mind, and the United States would have offered some proof as to whether or not the address he actually put on the application was in fact a real address for him and whether the income, the annual income that he reported on that application was in fact expected to be received by him. [Defense counsel] and I have discussed the proof the defendant would have put on in that -- on those issues. However, that would have been part of the United States' argument, your Honor.Further the United States would have proven that there were a number of other cards, I believe twenty other cards that were obtained [**14] from this individual in the name of Tim Kennedy. So some of the others had also -- those applications that we could find the false date of birth

North Carolina v. Alford

400 U.S. 25; 91 S. Ct. 160; 27 L. Ed. 2d 162


No. 14

November 17, 1969, Argued

November 23, 1970, Decided


Reargued October 14, 1970.


DISPOSITION: 405 F.2d 340, vacated and remanded.


Appellee was indicted for the capital crime of first-degree murder. At that time North Carolina law provided for the penalty of life imprisonment when a plea of guilty was accepted to a first-degree murder charge; for the death penalty following a jury verdict of guilty, unless the jury recommended life imprisonment; and for a penalty of from two to 30 years' imprisonment for second-degree murder. Appellee's attorney, in the face of strong evidence of guilt, recommended a guilty plea, but left the decision to appellee. The prosecutor agreed to accept a plea of guilty to second-degree murder. The trial court heard damaging evidence from certain witnesses before accepting a plea. Appellee pleaded guilty, although disclaiming guilt, because of the threat of the death penalty, and was sentenced to 30 years' imprisonment. The Court of Appeals, on an appeal from a denial of a writ of habeas corpus, found that appellee's guilty plea was involuntary because it was motivated principally by fear of the death penalty. Held: The trial judge did not commit constitutional error in accepting appellee's guilty plea. Pp. 31-39.

(a) A guilty plea that represents a voluntary and intelligent choice among the alternatives available to a defendant, especially one represented by competent counsel, is not compelled within the meaning of the Fifth Amendment because it was entered to avoid the possibility of the death penalty. Brady v. United States, 397 U.S. 742. P. 31.

(b) Hudson v. United States, 272 U.S. 451, which held that a federal court may impose a prison sentence after accepting a plea of nolo contendere, implicitly recognized that there is no constitutional bar to imposing a prison sentence upon an accused who is unwilling to admit guilt but who is willing to waive trial and accept the sentence. Pp. 35-36.

(c) An accused may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime, or even if his guilty plea contains a protestation of innocence, when, as here, he intelligently concludes that his interests require a guilty plea and the record strongly evidences guilt. Pp. 37-38.

(d) The Fourteenth Amendment and the Bill of Rights do not prohibit the States from accepting pleas to lesser included offenses. P. 39.

COUNSEL: Jacob L. Safron reargued the cause for appellant. With him on the briefs were Robert Morgan, Attorney General of North Carolina, and Andrew A. Vanore, Jr., joined in and adopted by the Attorneys General for their respective States as follows: Joe Purcell of Arkansas, David P. Buckson of Delaware, William J. Scott of Illinois, John B. Breckinridge of Kentucky, Joe T. Patterson of Mississippi, and Robert L. Woodahl of Montana; by the Government of the Virgin Islands; and by the National District Attorneys Association.

Doris R. Bray, by appointment of the Court, 394 U.S. 1010, reargued the cause and filed briefs for appellee.

Jack Greenberg, James M. Nabrit III, Michael Meltsner, Norman C. Amaker, Charles Stephen Ralston, Anthony G. Amsterdam, J. LeVonne Chambers, and James E. Ferguson II filed a brief for Albert Bobby Childs et al. as amici curiae.

JUDGES: White, J., delivered the opinion of the Court, in which Burger, C. J., and Harlan, Stewart, and Blackmun, JJ., joined. Black, J., filed a statement concurring in the judgment, post, p. 39. Brennan, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 39.

OPINION: [*26] [***165] [**162] MR. JUSTICE WHITE delivered the opinion of the Court.

On December 2, 1963, Alford was indicted for first-degree murder, a capital offense under North Carolina [*27] law. n1 The court appointed an attorney to represent him, and this attorney questioned all but one of [***166] the various witnesses who appellee said would substantiate his claim of innocence. The witnesses, however, did not support Alford's story but gave statements that strongly indicated his guilt. Faced with strong evidence of guilt and no substantial evidentiary support for the claim of innocence, Alford's attorney recommended that he plead guilty, but left the ultimate decision to Alford himself. The prosecutor agreed to accept a plea of guilty to a charge of second-degree murder, and on December 10, 1963, Alford pleaded guilty to the reduced charge.

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n1 Under North Carolina law, first-degree murder is punished with death unless the jury recommends that the punishment shall be life imprisonment:

"A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death: Provided, if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury. All other kinds of murder shall be deemed murder in the second degree, and shall be punished with imprisonment of not less than two nor more than thirty years in the State's prison." N. C. Gen. Stat. § 14-17 (1969).

At the time Alford pleaded guilty, North Carolina law provided that if a guilty plea to a charge of first-degree murder was accepted by the prosecution and the court, the penalty would be life imprisonment rather than death. The provision permitting guilty pleas in capital cases was repealed in 1969. See Parker v. North Carolina, 397 U.S. 790, 792-795 (1970). Though under present North Carolina law it is not possible for a defendant to plead guilty to a capital charge, it seemingly remains possible for a person charged with a capital offense to plead guilty to a lesser charge.

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[*28] Before the plea was finally accepted by the trial court, the court heard the sworn testimony of a police officer who summarized the State's case. Two other witnesses besides Alford were also heard. Although there was no eyewitness to the crime, the testimony indicated that shortly before the killing Alford took his gun from his house, stated his intention to kill the victim, and returned home with the declaration that he had carried out the killing. After the summary presentation of the State's case, Alford took [**163] the stand and testified that he had not committed the murder but that he was pleading guilty because he faced the threat of the death penalty if he did not do so. n2 In response to the questions of his counsel, he acknowledged that his counsel had informed him of the difference between second- and first-degree [*29] murder and of his rights in case he chose to go to trial. n3 The trial court then asked appellee if, in light of his denial of guilt, he still desired to plead guilty to second-degree murder and appellee answered, "Yes, sir. I plead guilty on -- from the circumstances that he [Alford's attorney] told me." After eliciting information about Alford's prior criminal record, which was a long one, n4 the trial court sentenced him to 30 years' imprisonment, the [***167] maximum penalty for second-degree murder. n5

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n2 After giving his version of the events of the night of the murder, Alford stated:

"I pleaded guilty on second degree murder because they said there is too much evidence, but I ain't shot no man, but I take the fault for the other man. We never had an argument in our life and I just pleaded guilty because they said if I didn't they would gas me for it, and that is all."

In response to questions from his attorney, Alford affirmed that he had consulted several times with his attorney and with members of his family and had been informed of his rights if he chose to plead not guilty. Alford then reaffirmed his decision to plead guilty to second-degree murder:

"Q [by Alford's attorney]. And you authorized me to tender a plea of guilty to second degree murder before the court?

"A. Yes, sir.

"Q. And in doing that, that you have again affirmed your decision on that point?

"A. Well, I'm still pleading that you all got me to plead guilty. I plead the other way, circumstantial evidence; that the jury will prosecute me on -- on the second. You told me to plead guilty, right. I don't -- I'm not guilty but I plead guilty."

n3 At the state court hearing on post-conviction relief, the testimony confirmed that Alford had been fully informed by his attorney as to his rights on a plea of not guilty and as to the consequences of a plea of guilty. Since the record in this case affirmatively indicates that Alford was aware of the consequences of his plea of guilty and of the rights waived by the plea, no issues of substance under Boykin v. Alabama, 395 U.S. 238 (1969), would be presented even if that case was held applicable to the events here in question.

n4 Before Alford was sentenced, the trial judge asked Alford about prior convictions. Alford answered that, among other things, he had served six years of a ten-year sentence for murder, had been convicted nine times for armed robbery, and had been convicted for transporting stolen goods, forgery, and carrying a concealed weapon. App. 9-11.

n5 See n. 1, supra.

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[***HR1A] [1A]
Alford sought post-conviction relief in the state court. Among the claims raised was the claim that his plea of guilty was invalid because it was the product of fear and coercion. After a hearing, the state court in 1965 found that the plea was "willingly, knowingly, and understandingly" made on the advice of competent counsel and in the face of a strong prosecution case. Subsequently, Alford petitioned for a writ of habeas corpus, first in the United States District Court for the Middle District of North Carolina, and then in the Court of Appeals for the Fourth Circuit. Both courts denied the writ on the basis of the state court's findings that Alford voluntarily [*30] and knowingly agreed to plead guilty. In 1967, Alford again petitioned for a writ of habeas corpus in the District Court for the Middle District of North Carolina. That court, without an evidentiary hearing, again denied relief on the grounds that the guilty plea was voluntary and waived all defenses and nonjurisdictional defects in any prior stage of the proceedings, and that the findings of the state court in 1965 clearly required rejection of Alford's claim that he was denied effective assistance of counsel prior to pleading guilty. On appeal, a divided panel of the Court of Appeals for the Fourth Circuit reversed on the ground that Alford's guilty plea was made involuntarily. 405 F.2d 340 (1968). In reaching its conclusion, the Court of [**164] Appeals relied heavily on United States v. Jackson, 390 U.S. 570 (1968), which the court read to require invalidation of the North Carolina statutory framework for the imposition of the death penalty because North Carolina statutes encouraged defendants to waive constitutional rights by the promise of no more than life imprisonment if a guilty plea was offered and accepted. Conceding that Jackson did not require the automatic invalidation of pleas of guilty entered under the North Carolina statutes, the Court of Appeals ruled that Alford's guilty plea was involuntary because its principal motivation was fear of the death penalty. By this standard, even if both the judge and the jury had possessed the power to impose the death penalty for first-degree murder or if guilty pleas to capital charges had not been permitted, Alford's plea of guilty to second-degree murder should still have been rejected because impermissibly induced by his desire to eliminate the possibility of a death sentence. n6 We noted [*31] probable jurisdiction. 394 U.S. 956 (1969). We vacate the judgment of the Court of Appeals and remand the case for further proceedings.

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n6 Thus if Alford had entered the same plea in the same way in 1969 after the statute authorizing guilty pleas to capital charges had been repealed, see n. 1, supra, the result reached by the Court of Appeals should have been the same under that court's reasoning.

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[***HR2] [2]
[***HR3] [3]
We held in Brady v. United States, 397 U.S. 742 (1970), that HN1a plea of guilty which would not have been entered except for the defendant's desire to avoid a possible death penalty and to limit the maximum penalty to life imprisonment or a term of years was not for that reason compelled within the meaning of the Fifth Amendment. Jackson established no new test for determining the validity of guilty [***168] pleas. HN2The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. See Boykin v. Alabama, 395 U.S. 238, 242 (1969); Machibroda v. United States, 368 U.S. 487, 493 (1962); Kercheval v. United States, 274 U.S. 220, 223 (1927). That he would not have pleaded except for the opportunity to limit the possible penalty does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice, especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant's advantage. The standard fashioned and applied by the Court of Appeals was therefore erroneous and we would, without more, vacate and remand the case for further proceedings with respect to any other claims of Alford which are properly before that court, if it were not for other circumstances appearing in the record which might seem to warrant an affirmance of the Court of Appeals.

[***HR4] [4]
As previously recounted, after Alford's plea of guilty was offered and the State's case was placed before the judge, Alford denied that he had committed the murder but reaffirmed his desire to plead guilty to avoid a possible death sentence and to limit the penalty to the 30-year maximum provided for second-degree murder. [*32] HN3Ordinarily, a judgment of conviction resting on a plea of guilty is justified by the defendant's admission that he committed the crime charged against him and his consent that judgment be entered without a trial of any kind. The plea usually subsumes both elements, and justifiably so, even though there is no separate, express admission by the defendant that he committed the particular acts claimed to constitute the crime charged in the indictment. See Brady v. United States, supra, at 748; McCarthy v. United States, 394 U.S. 459, 466 (1969). Here Alford entered his plea [**165] but accompanied it with the statement that he had not shot the victim.

[***HR5] [5]
If Alford's statements were to be credited as sincere assertions of his innocence, there obviously existed a factual and legal dispute between him and the State. Without more, it might be argued that the conviction entered on his guilty plea was invalid, since his assertion of innocence negatived any admission of guilt, which, as we observed last Term in Brady, is normally "central to the plea and the foundation for entering judgment against the defendant . . . ." 397 U.S., at 748.

In addition to Alford's statement, however, the court had heard an account of the events on the night of the murder, including information from



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