Loftis v. Almager, No. 09-16884 (12-11-12) (Adelman, D.J. ED Wisconsin; concurrence by Silverman; dissent by Tashima)

In habeas, does a "no contest" plea with a reference to the state equivalent of an Alford plea (California's West case) require a factual basis to be stated at the change of plea? The opinion, penned by a single judge, holds "no."  The defendant here pled to second degree murder under California law. The defendant sold meth to a minor who overdosed and he failed to get her medical aid. Yet, at the change of plea, the court never stated a factual basis. The defendant however never said he was innocent. The failure to not protest innocence did not constitutionalize the proceeding, and there was no requirement for a factual basis. A reference to West/Alford did not transform the "no contest" plea into an Alford one. Concurring, Silverman joins the judgment, but agrees with the dissent that a factual basis was required. However, he would look to the presentence report to furnish it (a modified approach). Dissenting, Tashima would require a factual basis as the plea proceeding was akin to an Alford plea, which is a claim of innocence. Thus, for him, a factual basis should be required.

The opinion is a rare one in which the writers all offer different approaches, refer to one another by name, and engage in a spirited discussion of positions.

AFPD Carolyn Wiggins of ED California fought the good fight.