United States District Court, S.D. Mississippi, Northern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
CARLTON W. REEVES, UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation of United States
Magistrate Judge John C. Gargiulo. Docket No. 34. Judge
Gargiulo recommends that Daniel Zales's 28 U.S.C. §
2254 petition for Writ of Habeas Corpus be denied.
Id. Zales objects to the Report and
Recommendation. Docket No. 38. Having fully reviewed the
Report and Recommendation and Zales's objections, the
Court concludes that the Report and Recommendation is legally
correct, and therefore overrules Zales's objection.
was convicted under Mississippi Code § 97-21-59 for
uttering a counterfeit instrument. The statute states:
Every person who shall be convicted of having uttered or
published as true, and with intent to defraud, any
forged, altered, or counterfeit instrument, or any
counterfeit gold or silver coin, the forgery, altering, or
counterfeiting of which is declared by the provisions of this
chapter to be an offense, knowing such instrument or coin to
be forged, altered, or counterfeited, shall suffer the
punishment herein provided for forgery, pursuant to Section
Code. Ann. § 97-21-59 (emphasis added).
has five objections to the Report and Recommendation:
1. Zales's plea was not knowing, intelligent, and
voluntary because he was not informed by the Court, defense
counsel, or prosecutor that § 97-21-59 contains an
element of intent.
2. The prosecutor failed to proffer an adequate factual basis
for the Court to find that Zales's conduct fell within
the criminal statute.
3. Defense counsel failed to disclose and explain the
elements of the charged offense to Zales.
4. Zales and the government entered into a contract when he
agreed to take an Alford plea. When the Court
asked Zales to incriminate himself, that contract was broken
and Zales's Fifth Amendment right against
self-incrimination was violated. Further, the Court never
explained the true meaning of an Alford plea to
5. Ground Four of his habeas petition was properly exhausted.
objections are best summarized by his own words. Zales's
“[habeas petition] hinges on whether [he] was informed
of and if he received a real notice of the required essential
element of ‘intent to defraud.'” Docket No.
38 at 3. He claims no court has addressed this specific
objection, so this Court will address it now.
a defendant understands the charges against him, understands
the consequences of a guilty plea, and voluntarily chooses to
plead guilty, without being coerced to do so, the guilty plea
and any concomitant agreement will be upheld on federal
review.” Frank v. Blackburn, 646 F.2d 873, 882
(5th Cir.), modified on other grounds, 646 F.2d 902
(5th Cir. 1981).
relies on Henderson v. Morgan to support his
position. 426 U.S. 637 (1976). In Henderson, the
Supreme Court held that because the defendant was not
informed that intent was an essential element of the crime to
which he pled, his plea was not voluntary. Id. at
647. “The Henderson Court did not purport,
however, to lay down an absolute requirement that the
technical elements of an offense be recited to a defendant. A
plea will be upheld if it is shown by the record, or the
evidence adduced at an evidentiary hearing, ...