Per Curiam. This is an appeal from the denial of a petition for habeas corpus for failure to demonstrate any facts which, if proven, would establish a violation of 28 U.S.C. § 2254(a). For the following reasons, we affirm the judgment of the district court.
Petitioner-appellant John B. Dempsey was convicted of unarmed robbery under Mass. Gen. L. ch. 265 § 191 for two separate bank robberies. Dempsey entered pleas of guilty to both indictments and was sentenced to two concurrent twenty-year terms. A state post-conviction motion to withdraw his plea on the ground that it was not voluntary because the elements of the crime were not explained to him was denied. The Massachusetts Appeals Court issued an unpublished Memorandum and Order affirming the denial, Commonwealth v. Dempsey, 21 Mass. App. Ct. 1103, 485 N.E.2d 206 (1985), and the Massachusetts Supreme Judicial Court denied further review, 396 Mass. 1104, 487 N.E.2d 855 (1986).
The pro se habeas petition recites these supporting facts:2
The prosecution accused the petitioner of unarmed robbery, M.G.L.A. ch. 265, § 19, but . . . failed to show or prove that the petitioner used 'force and violence' or 'intimidation', M.G.L.A. ch. 277, § 39. Absent such showing of force and violence or intimidation, petitioner's pleading procedures for unarmed robbery were defective and not voluntary, . . . . The Commonwealth violated the petitioner's rights to due process of law, by . . . failing to prove the necessary elements of the crime to lawfully convict the petitioner of unarmed robbery.
Dempsey sought to withdraw his plea and obtain a new trial.
The Commonwealth filed a motion to dismiss with these supporting exhibits: the state court transcripts of the plea proceedings, sentencing, and the hearing on the plea withdrawal motion, Dempsey's affidavit submitted with that motion, and both state courts' findings and rulings on the motion. In response, petitioner's appointed counsel filed a memorandum in opposition which expressly recognized that respondent's dismissal motion was, "in reality", a motion for summary judgment. Petitioner's opposition included, as an exhibit, the supplementary motion and memorandum filed in state court by previously appointed counsel in support of Dempsey's plea withdrawal motion.
The district court treated the respondent's motion to dismiss as one for summary judgment, Fed. R. Civ. P. 12(b), (c),3 and decided that no evidentiary hearing was required because the expanded record affirmatively showed that petitioner's plea was voluntary. Concluding that no genuine issue of material fact was presented, the district court granted summary judgment for the respondent. On appeal only one issue is properly presented for our consideration: whether the plea procedure afforded the petitioner real notice that intimidation was a necessary element of the crime of unarmed robbery.4
This is what happened. In February 1983 petitioner, a tall seventeen-year old, entered a bank, walked up to a window, held out a plastic bag, and instructed the teller to fill it up. The teller walked away. Dempsey leaned over the counter, opened the drawer, and removed $1,130. A second teller observing this said, "Oh, my God, it's happening again", and activated the alarm. A bank officer tried to stop Dempsey, who later disputed that he said to the officer, "I am going to shoot you." Dempsey left the bank and was apprehended almost immediately. He was unarmed. Dempsey was brought back into the bank and was positively identified by the first teller. The second teller and a co-worker also identified Dempsey as the same person who had "held up" the bank nine days earlier when $4000 was taken.
Dempsey waived the reading of the indictment when he was arraigned. At the plea proceeding on August 24, 1983, the state trial court judge paraphrased the indictment as follows:
Q. Do you know that the two indictments to which you're offering to plead guilty read as follows: The first charges that on the 18th day of February 1983, you did assault Mary Hayes with intent to rob her, and did rob and steal from her money of the amount and value of $1,130, the property of the Central Cooperative Bank. Do you understand that?
Q. And do you understand that this is what you're pleading guilty to?
Q. And the second indictment charges that on the 9th day of February 1983, you did assault Sheila Egan with intent to rob her, and did rob and steal from her money of the amount and of the value of $4,000 of the property of Central Cooperative Bank. Do you understand that?
Q. And do you understand that that's what you're pleading guilty to?
The district attorney then described the facts of the case, as recited above, after which the following colloquy took place between the court and the petitioner:
Q. Did you hear what the District Attorney said?
A. Yes, sir.
Q. Are those facts true?
A. Yes, sir.
Q. By pleading guilty, Mr. Dempsey, you admit that those facts are true. Do you understand that?
A. Yes, sir.
Q. By pleading guilty willingly, freely and voluntarily?
A. Yes, sir.
Q. Has anyone forced you to plead guilty?
A. No, sir.
Q. Have any threats been made that induced you to plead guilty?
A. No, sir.
Q. Have you had enough time to fully discuss your case, your rights, defenses and the possible consequences of this guilty plea with your attorney?
A. Yes, sir.
Q. And with your family?
A. Yes, sir.
Q. Do you think your attorney has acted in your best interest?
A. Yes, sir.
Q. Do you think he has fairly represented you?
A. Yes, sir.
Q. Are you confused in any way by the questions that I've asked you?
A. No, sir.
Q. As I understand it, you're pleading guilty because you are guilty and for no other reason, is that correct?
A. Yes, sir.
The court accepted the plea. One month later, presumably dissatisfied with his sentence, petitioner filed a pro se motion to withdraw his guilty plea and for a new trial. A supporting affidavit stated, in parts relevant to this appeal, that 1) prior to the plea-taking he "had discussions" with his attorney, who repeatedly said that petitioner had no chance at winning before a jury given the charges against him, 2) after his attorney informed him of the proposed plea agreement involving a possible twenty-year sentence, petitioner responded that he would never agree to such a plea, but would consider the possibility of reduced charges of grand larceny with a three-to-five-year sentence, and that 3) during "conversations" with his attorney, he was not fully able to comprehend what was transpiring because of his age, education, and lack of prior "court" experience,5 and because he was a recovering alcoholic.
A hearing on the motion was held before the same trial judge who had accepted petitioner's plea. Appointed counsel argued that the record failed to show that petitioner was given any explanation of the essential elements of the crime of robbery, or that the victims were put in fear or threatened. Dempsey's counsel conceded that if the motion was granted petitioner would plead guilty to larceny regarding the second bank incident, but would disclaim any involvement in the earlier robbery.
In denying the motion, the trial judge found: 1) that he had not given the petitioner any further explanation of the specific elements of the charged offenses beyond reading from the indictments; 2) the word "assault" was included in each charge as read, and the petitioner said he understood that he was pleading guilty to having assaulted the victims; 3) although the district attorney's recitation of the facts did not explicitly state that the victims were afraid or that the defendant threatened the teller, a threat was implied in the petitioner's admitted behavior; and similarly, 4) the petitioner's admission of the earlier "hold-up" also implied the use or threat of force. The trial judge concluded, relying on a series of Massachusetts cases which hold that a plea is voluntary in the constitutional sense when the defendant admits facts constituting the unexplained elements, see, e.g., Commonwealth v. Begin, 394 Mass. 192, 197, 474 N.E.2d 1120, 1124 (1985), that the record sufficiently showed that the petitioner was aware of the elements of the crime of robbery when he pled, and that the plea was voluntary.
The Massachusetts Appeals Court affirmed, upholding the finding that a threat was implied in the petitioner's behavior. The appeals court discerned - from various record indications, e.g., that Dempsey was a very, very tall young man, that the teller walked away from the window after the command to fill up the bag with money, and in the threat to "shoot" a bank officer while attempting to exit -the bank the basis for a reasonable inference that the bank tellers, approached by such a person demanding cash, would be and were put in fear, even without a weapon being visible or overtly threatening words being spoken. The court concluded that Dempsey, as an intelligent, eleventh-grade student at the time of the robberies, could reasonably be regarded as having understood the true nature of the charges against him. Although the appeals court described the prosecution's recitation of the underlying facts of the offenses as "unduly meager," and indicated that the plea-taking inquiry regarding petitioner's discussions with his attorney could have been more detailed and incisive, it nonetheless concluded that the record as a whole fairly implied that Dempsey had, in fact, discussed his rights and defenses as well as the consequences of a guilty plea with his attorney. The appeals court decided that the trial judge could reasonably presume that defense counsel, in advising Dempsey, had routinely explained the nature of the charged offenses. Henderson v. Morgan, 426 U.S. 637, 647 (1976). ("It may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.") The appeals court, citing Nelson v. Callahan, 721 F.2d 397, 400-01 (1st Cir. 1983), observed that Henderson did not require a recitation of the technical elements of the crime. In the end, the appeals court ruled that Dempsey "must be taken to have admitted facts which included all the elements of unarmed robbery."
The federal district court accepted the state courts' findings and inferences as affirmatively and sufficiently supported in the record. Relying on Henderson v. Morgan, the district court found Dempsey's plea voluntary because his record statements were the equivalent of a finding of fact or voluntary admission showing that he had acted with the intent to intimidate. See, e.g., Henderson, 426 U.S. at 646.
We must first determine whether the facts alleged by Dempsey, if proven, would establish a constitutional violation entitling him to relief. The Due Process Clause mandates that a defendant's guilty plea be both intelligent and voluntary. See Nelson, 721 F.2d at 399. On review, the plea record must affirmatively show that the defendant possessed an intelligent awareness and voluntary appreciation of the elements of the charged offenses. Boykin v. Alabama, 395 U.S. 238, 242-43 & n.5 (1969). This requires, first and foremost, that the defendant receive "'real notice of the true nature of the charge against him.'" Henderson, 426 U.S. at 644-45, quoting Smith v. O'Grady, 312 U.S. 329, 334 (1941). Here, as in Henderson, the issue is whether, in relinquishing certain constitutional rights, the petitioner had "such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt," 426 U.S. at 645 n.13, it being accepted that "without adequate notice of the nature of the charge against him, or proof that he in fact understood the charge, the plea cannot be voluntary." As the district court noted, while "real notice" does not unalterably require a detailed description of every element of a crime, see McGuirk v. Fair, 622 F.2d 597, 598 (1st Cir.), cert. denied, 449 U.S. 882 (1980), it does require notice of each "critical element of the offense". Henderson, 426 U.S. at 647 n.18. That is to say, prior to judicial acceptance of a guilty plea, a defendant must be informed of every essential element of the alleged offense. See Valencia v. United States, 923 F.2d 917, 921 (1st Cir. 1991).
Under Mass. Gen. L. ch. 265 § 19, the exertion of force, whether actual or constructive, is an essential element of the offense of unarmed robbery. Commonwealth v. Jones, 12 Mass. App. Ct. 489, 491, 426 N.E.2d 726, 727 (1981); Commonwealth v. Mahoney, 331 Mass. 510, 513, 120 N.E.2d 645, 647 (1954). It is the use of either "personal violence" or "intimidation" to accomplish the taking which principally distinguishes common law robbery from larceny. Commonwealth v. Jones, 362 Mass. 83, 86-87, 283 N.E.2d 840, 843 (1972). Constructive force, such as intimidation, employs "threatening words or gestures, and operates on the mind", Commonwealth v. Novicki, 324 Mass. 461, 467, 87 N.E.2d 1, 4 (1949), so as to produce reasonable apprehension of imminent harm.6 Commonwealth v. Gauthier, 21 Mass. App. Ct. 585, 488 N.E. 2d 806, 809 (1986).
Thus, since petitioner's central allegation - that the record fails to demonstrate real notice that he was informed or understood that intimidation was an essential element of the offense of unarmed robbery - if proven true, would establish a cognizable claim under 28 U.S.C. § 2254, we next consider whether the district court supportably bypassed an evidentiary hearing. This, in turn, requires us to examine the entire record and ascertain precisely what transpired in the state proceedings. See, e.g., Neron v. Tierney, 841 F.2d 1197, 1201 (1st Cir. 1988); Campbell v. Fair, 838 F.2d 1, 5 (1st Cir. 1988).
Where the facts are in dispute, the federal court in habeas corpus [proceedings] must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding.
Townsend v. Sain, 372 U.S. 293, 312 (1963) (emphasis added). However:
28 U.S.C. § 2254(d) provides, . . ., consistently with Townsend v. Sain, that in the absence of any of the circumstances there enumerated, 28 U.S.C. § 2254(d)(1)-(8), making a hearing mandatory, the federal court is bound by the state court's finding of historical fact unless the petitioner offers convincing evidence that they are erroneous. . . . The petitioner, under § 2254(d), has the burden of disproof.
Leavitt v. Howard, 462 F.2d 992, 995 (1st Cir. 1972).7
We focus on the record of the plea colloquy as all subsequent state court findings on this issue were based on the record of this colloquy. We must defer, under 28 U.S.C. § 2254(d), to those state court findings on "basic, primary or historical facts," Cuyler v. Sullivan, 446 U.S. 335, 341-42 (1980), unless they are not fairly supported in the record as a whole. § 2254(d)(8). We are also "bound to respect . . . the inferences fairly deducible from these facts." Marshall v. Lonberger, 459 U.S. 422, 435 (1983). The ultimate question of constitutional compatibility, of course, remains a matter of independent federal review.8 Miller v. Fenton, 474 U.S. 104, 110-12 (1985). We conclude that the state courts' factual determinations that the petitioner's plea was knowing and intelligent find adequate support in the record, and that, as a matter of law, his plea was voluntary.
We first address the factual components of the voluntariness inquiry: what the defendant knew and understood when the plea of guilty was entered. The trial judge read the essential parts of the two indictments, each of which plainly described conduct constituting a relatively simple offense. In Mack v. United States, 635 F.2d 20 (1st Cir. 1980), we stated that "there are indictments as to which a simple reading is the only explanation necessary." Id. at 25 n.2. Unarmed robbery is not a complex, technical crime with numerous elements; a reading of such an indictment is unlikely to confuse or mislead the average defendant. And here, as in Mack, the factual recital by the district attorney provided additional explanation of the nature of the charges. The petitioner knew he was pleading guilty to two charges, each of which included an "assault". The word "assault" in the indictment gave some notice of the essential element of the offense. As the district court noted, the term "assault" ordinarily connotes force or intimidation, which was also implicit in the district attorney's recitation of the facts.
Nor is this the case of an illiterate or uneducated defendant. The petitioner must have understood that unarmed robbery includes the use of force. The charges are simple enough so that an intelligent individual with petitioner's level of formal education and background, including some familiarity with the legal system, should be believed when he says that he understands them.9 See United States v. Carter, 815 F.2d 827, 829 (1st Cir. 1987). Significantly, petitioner's affidavit also manifests a subjective appreciation of the difference between larceny, which he concedes committing, at least as to the second incident, and unarmed robbery. This concession, while not dispositive, is a strong indicator that petitioner was aware and understood, at the time of the plea, that the charges conveyed the element of force. We conclude that the record fairly supports the state courts' determination that petitioner was informed and understood that he was charged with a taking by force or intimidation. Finally, since intimidation involves a question of fact, see, e.g., Miller v. Fenton, 474 U.S. at 112; see also Novicki, 324 Mass. at 466, 87 N.E. 2d at 4, we defer to the state courts' finding that the defendant's admitted conduct implied a threat. The latter finding is reasonably supported in the record and a permissible inference compelled by the historical facts. Petitioner's subsequent concession that he was guilty of larceny and his admission at the plea-taking to unarmed robbery indicates that he knew the distinguishing element as to both robberies. The mixed question remains - whether the record affirmatively shows that the petitioner, so informed, relinquished his rights voluntarily at the plea-taking.
The Henderson Court delineated various record indicia that could reliably substitute for either a finding of fact after a trial, or a voluntary admission by the defendant, and thus show, for purposes of demonstrating the voluntary character of a guilty plea, that the petitioner possessed a knowledge and understanding of the critical elements of the charged offenses. These indicia are 1) an explanation by the trial judge, 2) representations or stipulations by defense counsel, or 3) petitioner's "factual statement or admission necessarily implying" that he had the requisite intent, the critical missing element at issue in Henderson, 426 U.S. at 646-47. In Henderson, neither the court nor counsel had explained the essential element of intent to commit second-degree murder. The Court concluded that the lack of explanation was not excused by the defendant's admission that he repeatedly stabbed the victim with a knife. The Court's ruling must, however, be read in the context of an indictment which had not formally charged second-degree murder, the crime to which the plea was made. Thus, the indictment had not otherwise provided any notice of the unexplained element.
The Henderson "presumption" (that the defendant had routinely been informed by counsel of the charges on which he was indicted) is generally applied when there are record indications that it is appropriate to do so. For example, in Marshall v. Lonberger, 459 U.S. 422 (1983), the Court found it fitting to apply the presumption when the record showed, and a state court had found, that the defendant was represented by competent and capable counsel, id. at 428, 434 n.3, and counsel stipulated at the plea proceeding that "there were sufficient facts to sustain the charges in the indictment." Id. at 430, 437. Similarly, in Nelson, 721 F.2d at 400-01, we found the state court application of the presumption supported by hearing testimony of the defendant's trial counsel. While we doubt that there are similar or comparable objective indicia here, we conclude, nevertheless, that petitioner's plea was voluntary because the void was filled by his admission of facts which necessarily include the unexplained element of intimidation. See id. at 401; cf. United States v. Allard, 926 F.2d 1237, 1246 (1st Cir. 1991) (admission in plea colloquy of facts underlying offense could satisfy requirement of Fed. R. Crim. P. 11(c) that defendant be informed of the nature of the charge). In this case, we are influenced by the finding of the Massachusetts Appeals Court that the acts admitted by the petitioner were sufficient to constitute all the necessary elements of unarmed robbery, and must respect the state appellate court's articulation of how state law applies to the facts of this case. Tarrant v. Ponte, 751 F.2d 459, 461-65 (1st Cir. 1985); see also Cola v. Reardon, 787 F.2d 681, 688 n.5 (1st Cir.), cert. denied, 479 U.S. 930 (1986).10 Only in extreme circumstances, not present here, would we impute an unprincipled disregard on the part of a state court for the criminal statute that defines an offense. We are, thus, compelled to accept the appeals court determination that the conduct admitted by the petitioner constituted all the elements of the two offenses of unarmed robbery. See Tarrant, 751 F.2d at 464. We cannot accept the petitioner's argument that the facts as shown in this record, including their logical inferences, support only a theory of larceny,11 or that a reasonable factfinder could not find intimidation in the circumstances presented. We believe the record before us contains sufficient assurances that petitioner's plea was a voluntary acknowledgement of culpability for the crimes charged.
The judgment of the district court denying habeas corpus relief is affirmed.
Petitioner's pending motion for release pending review, which duplicates an earlier motion denied on September 9, 1991, is denied for the reasons stated in that order.
Petitioner's motion to amend is denied as moot since the case has proceeded as if "the state officer having custody of the applicant [was] named as respondent," § 2254 Rule 2(a), and because we, in any event, affirm the denial of the writ.
Finally, petitioner's motion for stay of entry of judgment is denied.
1. In relevant part, § 19 states: (b) Whoever, not being armed with a dangerous weapon, by force and violence, or by assault and putting in fear, robs, steals or takes from the person of another, or from his immediate control, money or other property which may be the subject of larceny, shall be punished by imprisonment in the state prison for life or for any term of years. (Emphasis added).
2. In a prior appeal, we concluded that state remedies had been exhausted as to this claim. Dempsey v. Commonwealth, No. 90-1158, slip op. (1st Cir. Jun. 18, 1990) (unpublished).
3. Under Rule 11 of the Rules Governing § 2254 cases, the district court has discretion to utilize the Federal Rules of Civil Procedure in appropriate cases. See, e.g., Heath v. Jones, 863 F.2d 815 (11th Cir. 1989). Since respondent's motion to dismiss included matters outside the pleadings, as did petitioner's reply and opposition (filed four weeks before the dismissal order), we perceive no abuse of discretion on the part of the district court in transforming the dismissal motion into one for summary judgment under Fed. R. Civ. P. 56. We are satisfied, in the circumstances here, that the petitioner was afforded a reasonable and meaningful opportunity to come forward and present all pertinent evidence. Fed. R. Civ. P. 12(c); Whiting v. Maiolini, 921 F.2d 5, 6-7 (1st Cir. 1990).
4. Other arguments presented in appellant's pro se brief were not made below and are not properly before us. We do not consider them.
5. Apparently petitioner was, at time of the robberies, on probation for a juvenile offense of a similar nature.
6. The intimidation may be slight as long as it is used for the purpose of accomplishing the theft, and induces the victim to relinquish the property. LaFave & Scott, Substantive Criminal Law § 8.11, at 451-52 (1986); see also Nolan, Criminal Law § 286, at 218-19 (1988).
7. The "convincing evidence" standard concerns the quantum of proof required at an evidentiary hearing to rebut the validity of state court findings of fact. Leavitt, 462 F.2d at 995 n.4. To defeat respondent's motion for summary judgment, the petitioner must make a strong showing that he could overcome, by convincing evidence of error, the presumption imposed by § 2254(d).
8. Whether a plea is voluntary is usually a mixed question of fact and law subject to plenary review. Porter v. Lockhart, 925 F.2d 1107, 1110 (8th Cir.), cert. denied, 111 S. Ct. 2902 (1991); LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir.), cert. denied, 488 U.S. 958 (1988); Matusiak v. Kelly, 786 F.2d 536, 543 (2d Cir. 1986); Williams v. Raines, 783 F.2d 774, 775 (9th Cir. 1986); Nash v. Israel, 707 F.2d 298, 301 (7th Cir. 1983). De novo review is appropriate when, as here, our review involves a judgment as to the "proper application of a legal standard to undisputed facts." United States v. Wright, 873 F.2d 437, 443 (1st Cir. 1989).
9. We reject petitioner's bare assertion that his youth, per se, was a mitigating factor. Compare Derrick v. Peterson, 924 F.2d 813 (9th Cir. 1990) (16-year-old defendant's confession and waiver of Miranda rights voluntary) United States v. Williamson, 806 F.2d 216 (10th Cir. 1986) (18-year-old defendant's plea voluntary despite waiver of counsel and court's failure to explicitly advise him of the elements of the offense charged).
10. In Nelson, we did not address whether the petitioner's plea statements would be legally sufficient to constitute an admission to a completed offense, since we decided that the precise contours of the offense at issue there were for the state courts to determine. 721 F.2d at 401.
11. Petitioner's reliance upon United States v. Wagstaff, 865 F.2d 626 (4th Cir.), cert. denied, 491 U.S. 907 (1989), is misplaced. In Wagstaff, a conviction under the federal bank robbery statute, 18 U.S.C. § 2113(a), which similarly prohibits a taking by force and violence or by intimidation, was reversed because of insufficient evidence as to intimidation. There, the defendant, like the petitioner here, was unarmed, produced no note, and made no overtly threatening gestures, but, unlike the petitioner, said nothing. Intimidation, under § 2113(a), does not require the actual use of force. It is the intent to resort to force that controls, see United States v. DeLeo, 422 F.2d 487, 491 (1st Cir.), cert. denied, 397 U.S. 1037 (1970); it is conduct which creates the impression that any resistance would be met with violence, United States v. Jones, 932 F.2d 624, 625 (7th Cir. 1991). Even where the perpetrator spoke calmly, made no threats, and was unarmed, courts have found threats of harm implicit in written or verbal demands for money. See, e.g., United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir. 1983); United States v. McVicar, 907 F.2d 1 (1st Cir. 1990). Whether the victim is courageous or timid, the test for intimidation under § 2113(a) is objective: would an ordinary, reasonable person be fearful of bodily harm? United States v. Higdon, 832 F.2d 312, 315 (5th Cir. 1987), cert. denied, 484 U.S. 1075 (1988). The petitioner derives no benefit from an analogy to the standards for a finding of intimidation under the federal bank robbery statute.