United States Court of Appeals,

Eleventh Circuit.

No. 94-8597.

Charlie FINCH, Petitioner-Appellant,

v.

James H. VAUGHN, Warden, Respondent-Appellee.

Oct. 31, 1995.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:93-cv-1023-RHH), Robert H. Hall, Judge.

Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and HENDERSON,

Senior Circuit Judge.

BIRCH, Circuit Judge:

In this habeas corpus case, we determine whether a guilty plea

was knowing, intelligent and voluntary and resulted from

ineffective assistance of counsel under the Fifth, Sixth and

Fourteenth Amendments, when the petitioner pled guilty to state

narcotics charges with the understanding that his state sentence

would be concurrent with his federal sentence. The district court

denied habeas relief. We REVERSE and REMAND.

I. BACKGROUND

In September, 1988, petitioner, Charlie Finch, who was on

parole for a federal sentence with approximately ten years

remaining, was arrested on state cocaine charges in DeKalb County,

Georgia. Thereafter, federal authorities filed a detainer against

him for violating his parole. Finch hired Harvey Monroe as his

defense counsel.

After selecting a jury, Monroe and the state district attorney
 1

While Finch and his counsel anticipated going to trial, the

location of a critical prosecution witness was the impetus for a

plea bargain. 

engaged in plea negotiations.1 These negotiations culminated in

Monroe's pleading guilty in return for a ten-year prison term to

run concurrently with his previous federal sentence. Accordingly,

a DeKalb County Superior Court judge sentenced Finch to a ten-year

term of imprisonment "concurrent with any sentence that you are

presently under, probation or parole." R1-1D-8. At Monroe's

instigation, Finch specifically questioned the state trial judge

concerning the meaning of "concurrent":

MR. MONROE: I think Mr. Finch wants to ask a question.

MR. FINCH: Something I didn't quite understand in this case,

Your Honor. Concurrent.

THE COURT: The same time. I will not make this consecutive

to anything. You serve this at the time that you are serving

any other sentence. If you get your parole revoked, this will

be served at the same time.

MR. FINCH: That means that will be concurrent with the

federal?

THE COURT: Yes, sir.

MR. FINCH: Okay.

Id. at 9 (emphasis added).

Although Finch was taken into federal custody briefly

following his plea, federal authorities returned him to state

custody that same day. Finch was sent to state prison to serve his

state sentence. His remaining federal sentence has been suspended

until his release from state custody, at which time his federal

parole will be revoked, and he will serve his federal sentence.

Thus, the parole violation had the effect of tolling Finch's
 2

Monroe made several futile inquiries on Finch's behalf to

get federal authorities to revoke his probation. Subsequently,

present appellate counsel unsuccessfully sought state parole to

the federal detainer, and a reconstructed sentence in the trial

court that might have compelled Finch's transfer to federal

custody. 

federal parole and deferring service of the entire remaining

sentence until after he completes his state term.

Following informal efforts to effectuate the state court's

concurrency stipulation as to his state and federal sentences,2

Finch sought a state writ of habeas corpus on the grounds that his

guilty plea based on a concurrent state and federal imprisonment

term was involuntary, unintelligent, and ill-counseled. An

evidentiary hearing was conducted in Baldwin County Superior Court.

Finch testified as to his understanding of his sentence as a result

of the plea bargain in response to questions by his present

appellate attorney:

Q. Mr. Finch, when you pleaded guilty in DeKalb County in

front of Judge Castellani, what was the plea bargain?

A. The plea bargain was that I pleaded guilty to ten years to

run concurrent with any previous sentence.

Q. Did anyone tell you that the Superior Court might not have

the power to enforce that sentence or effectuate that

sentence?

A. No. I was under the impression that concurrent sentence,

that's what it meant, you know, that the sentence would run

concurrent with the other.

Q. What did you anticipate would happen with your federal

sentence?

A. Well, I thought that once I got the sentence saying it

would run concurrent, then I would be released to the feds.

Q. Did that happen?

A. No, it didn't.
 ....

Q. Why did you believe your federal parole would be revoked?

Where did you get that idea that it would be promptly revoked?

A. I was under the impression that when I got a concurrent

sentence then I would be released to the federal due to the

fact that they had already lodged a detainer on me.

 ....

Q. [D]id anyone tell you in connection with your DeKalb County

plea or in any other connection, that the power to order

concurrency did not belong to Judge Castellani or to the State

or the D.A.?

A. No, no one told me that.

Q. You thought that if the judge designated or stipulated that

the sentences would be concurrent, they would be concurrent.

Right? You had no reason to believe otherwise?

A. That's what I thought.

R1-1H-11-12, 13 (emphasis added).

Monroe also testified at the evidentiary hearing in the state

habeas court concerning his understanding of the concurrent

sentence and the advice that he had given Finch in response to

questions from the court, the state assistant attorney general, and

Finch's present counsel:

A. In an effort to help Mr. Finch—or I thought it was to

help—Judge Castellani made his sentence run concurrent [with]

anything, any sentence he was serving. And I think his words

were whether it be parole or probation. But the problem, of

course, we all—I think we all were aware of was we didn't know

whether the federal people would take custody of Mr. Finch and

let him start serving that federal time so that the concurrent

part of Judge Castellani's sentence would have any meaning to

it. We hoped they would, but subsequently, they did not.

They merely placed a detainer with the intention of letting

Mr. Finch sit there until his State time runs out and then

taking him back into federal custody.

THE COURT: Was that a calculated risk y'all ran as a defense?

WITNESS: We were well aware of it, yes.

THE COURT: Okay. Was Mr. Finch aware of it?
WITNESS: I certainly—certainly hope so. I thought he was

aware of it.

 ....

Q. Was he aware that the detainer could be lodged against him

and that the sentence would be tolled until the State Court

time was served, so in effect the federal time would be

consecutive to what he was currently serving?

A. We didn't use that terminology, it would be tolled. He

knew that he owed the federal government ten years or some

part of it.

 ....

Q. So, but now his parole isn't revoked now?

A. Right. It isn't revoked now.

 ....

Q. When it is, is that sentence going to be concurrent?

A. Well, the fact—the effect of it, naturally it will not be.

 ....

Q. There's nothing in the transcript to suggest that anybody

indicated at least on the transcript to Mr. Finch that the

court didn't have the power to deliver the concurrent

sentence, which was the basis of the bargain he was making?

A. The question on page 8 [of the plea proceedings], the

statement by the court, line 18: "Mr. Finch, the court will

sentence you as to count two to ten years to serve. I will

make that concurrent with any sentence that you are presently

under, probation or parole."

Q. But Judge Castellani nowhere in there said, the D.A.

nowhere says and you no where [sic] says—say—I'm sorry—

A. None of us said—

Q. —that there was a big if connected to this.

A. It's not clear in the transcript, no.

 ....

Q. Well, do you remember ever specifically telling him that,

look, Charlie, it doesn't make any difference what Judge

Castellani provides here, you know, we're going to get up here

and talk about concurrency and it's not going to make any
difference. The D.A. is going to recommend concurrency and it

probably won't make any difference. Do you ever recall

anything like that?

A. No. What I said is we will do everything we can to get the

federal people to try to take you into custody so that this

sentence will be concurrent. That was the way we—

Q. But you never addressed it, telling him, you're sitting

down here, we'll [sic] dealing at a table where there's a very

important party not represented and not committed. You see

what I'm—you didn't tell him that whether that sentence is

concurrent or not is up to somebody that's not even here in

the courtroom? Not even in DeKalb County?

A. No. As I recall—as I recall, I told him that we

couldn't—there was no guarantee that we could make the Federal

Parole Commission do anything. That's a risk. A real risk.

And in that case, I don't recall discussing in terms of if

that happens, then your sentence won't really be concurrent.

I don't remember saying anything like that.

 ....

Q. Did you have any anticipation that things would happen the

way they did? Did you realistically expect that?

A. Well, we were—we had the theory, yeah, that the federal

people might not do what we thought they should do.

Q. But it wasn't substantial enough to make preliminary

inquiry? Correct?

A. (No response)

Q. I mean the fear.

A. We had a jury sitting there waiting on us.

Q. I know you probably had compulsions in other directions.

But I mean just as to the plea, not for the fire burning

across the courtroom.

A. We really didn't. We didn't do anything to check with

federal people prior to entering the plea.

Q. Are you aware that their policy in situations like this is

to have it occur exactly as it occur[red]?

A. I wasn't then.

Id. at 25-26, 27, 30, 31, 32-33, 45 (emphasis added).

Monroe testified that the plea negotiations were unanticipated
since he had come to court prepared to go to trial. Further, he

conceded that he had no experience with a defendant who had

violated state laws while on federal parole, that he was unaware of

how federal authorities might assume custody or federal policy in

such situations, and that he had no pre-plea contact with federal

parole authorities. Specifically, Monroe testified that he did not

advise Finch that his federal sentence could be tolled during his

state sentence, and that the state plea bargain for sentence

concurrency was meaningless because it depended on federal

compliance, when the government was not a party to the bargain.

The state habeas court denied relief, and the Georgia Supreme

Court declined to review the case. Finch then sought habeas relief

in federal district court. The district court adopted the report

and recommendation of a magistrate judge and denied Finch's

petition. Both the state and federal habeas courts found Finch's

plea to be constitutional because it was not induced by threat or

coercion, and they concluded that he received appropriate advice

from his attorney, because Monroe had some knowledge that there had

to be federal compliance for the concurrent sentences to be

effective. On appeal, Finch pursues his arguments that his plea,

negotiated explicitly for a state prison term concurrent with the

balance of his federal sentence, was not knowing, intelligent and

voluntary, and that he received ineffective assistance of counsel

in violation of the Fifth, Sixth and Fourteenth Amendments.

II. DISCUSSION

 Our review of the voluntariness of a guilty plea and

ineffective assistance of counsel is plenary because "these issues
are mixed questions of fact and law ... subject to independent

review on appeal." LoConte v. Dugger, 847 F.2d 745, 750 (11th

Cir.), cert. denied, 488 U.S. 958, 109 S.Ct. 397, 102 L.Ed.2d 386

(1988). A guilty plea is an admission of criminal conduct as well

as the waiver of the right to trial. Brady v. United States, 397

U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970).

"Waivers of constitutional rights not only must be voluntary but

must be knowing, intelligent acts done with sufficient awareness of

the relevant circumstances and likely consequences." Id.; United

States v. Fairchild, 803 F.2d 1121, 1123 (11th Cir.1986) (per

curiam).

 Reviewing federal courts "may set aside a state court guilty

plea only for failure to satisfy due process." Stano v. Dugger,

921 F.2d 1125, 1141 (11th Cir.) (en banc), cert. denied, 502 U.S.

835, 112 S.Ct. 116, 116 L.Ed.2d 85 (1991). "[W]hen it develops

that the defendant was not fairly apprised of its consequences" or

when "the defendant pleads guilty on a false premise" in the

prosecution's plea agreement, a guilty plea violates the Due

Process Clause. Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct.

2543, 2547, 81 L.Ed.2d 437 (1984). The Court has instructed that

the "essence" of any promises that induce a guilty plea "must in

some way be made known" to the defendant. Santobello v. New York,

404 U.S. 257, 261-62, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971).

 For a guilty plea to be entered knowingly and intelligently,

" "the defendant must have not only the mental competence to

understand and appreciate the nature and consequences of his plea

but he also must be reasonably informed of the nature of the
charges against him, the factual basis underlying those charges,

and the legal options and alternatives that are available. ' "

Stano, 921 F.2d at 1142 (citation omitted) (emphasis added).

Voluntariness implicates "[i]gnorance, incomprehension," and

"inducements" as well as "coercion, terror" and "threats." Boykin

v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 1712, 23 L.Ed.2d

274 (1969); Stano, 921 F.2d at 1141. Thus, "[i]gnorance of the

consequences of a guilty plea may require its rejection." Stano,

921 F.2d at 1141 (citing Boykin, 395 U.S. at 243-44, 89 S.Ct. at

1712).

 In exchange for pleading guilty on the morning of his trial,

Finch understood that his state term of imprisonment would be

concurrent with the balance of his federal sentence. This was his

"inducement" for pleading guilty. See Santobello, 404 U.S. at 262,

92 S.Ct. at 498-99. Finch, a layman, was entitled to presume that

the state was bargaining in good faith, see Meagher v. Dugger, 861

F.2d 1242, 1246 (11th Cir.1988) (per curiam), and that the

concurrent sentence provision was meaningful and would be

operative.

 In addition to Monroe's counseling Finch regarding the

concurrent service of his state and federal sentences, the

transcript of the plea proceeding reveals that Finch sought further

assurance from the state court that his understanding of the

concurrent sentences was correct before pleading guilty. Thus, his

understanding of the concurrent state and federal sentences that he

would receive was reinforced by the state trial judge, who

explained to Finch that "concurrent" meant that the sentences would
be served at the same time. Finch was entitled to believe that the

state court's solemn pronouncement of a term of the plea agreement

was definitive and, consequently, that the state would effectuate

the terms of its plea bargain. See United States v. Ford, 99 U.S.

594, 606, 25 L.Ed. 399 (1878).

 The advice concerning the concurrency of his state and

federal sentences given to Finch by Monroe, the state in its plea

bargain, and the state trial judge was worse than misleading, it

was erroneous. Under the principle of dual sovereignty, a

defendant may be prosecuted and sentenced by state and federal

governments if his conduct violates the laws of each sovereign.

United States v. Wheeler, 435 U.S. 313, 316-18, 98 S.Ct. 1079,

1082-83, 55 L.Ed.2d 303 (1978); United States v. Ballard, 6 F.3d

1502, 1507 (11th Cir.1993). We specifically have held that a

federal court is authorized to impose a federal sentence

consecutive to a state sentence, although the state court

explicitly made its sentence concurrent with the federal sentence.

United States v. Adair, 826 F.2d 1040, 1041 (11th Cir.1987) (per

curiam). A federal court is entitled to ignore a state court's

imposition of such a sentence because adherence would encroach upon

the federal court's sentencing authority "by, in effect,

eliminating the federal sentence." Ballard, 6 F.3d at 1509.

Additionally, a federal sentencing court is not bound by a state

plea bargain unless the federal government directly or indirectly

was involved in the state plea bargaining process. Meagher v.

Clark, 943 F.2d 1277, 1282 (11th Cir.1991); see Pinaud v. James,

851 F.2d 27, 30 (2d Cir.1988) (when "federal officials are not
parties to the state plea bargain," the federal court is not

obligated to comply with the terms of the plea agreement entered

into by the defendant and the state).

 Finch not only was unable instinctively to appreciate the

allocation of state and federal prosecuting and sentencing

authority and he was given no reason to question that the two

governments would not cooperate, but also he was not informed that

established federal policy permitted a federal parole violation

warrant to suspend or toll his federal sentence so that it could be

revoked and served in full after completion of his state term of

imprisonment. Moody v. Daggett, 429 U.S. 78, 84, 97 S.Ct. 274,

277, 50 L.Ed.2d 236 (1976); Goodman v. Keohane, 663 F.2d 1044,

1046-47 (11th Cir.1981) (per curiam); Cook v. United States

Attorney General, 488 F.2d 667, 670-71 (5th Cir.), cert. denied,

419 U.S. 846, 95 S.Ct. 81, 42 L.Ed.2d 75 (1974). Thus, it was

virtually certain that Finch's state and federal sentences would be

consecutive and not concurrent.

" "[A] plea of guilty entered by one fully aware of the direct

consequences, including the actual value of any commitments

made to him by the court, prosecutor, or his own counsel, must

stand unless induced by threats (or promises to discontinue

improper harassment), misrepresentation (including unfulfilled

or unfulfillable promises), or perhaps by promises that are by

their nature improper as having no proper relationship to the

prosecutor's business (e.g. bribes).' "

Brady, 397 U.S. at 755, 90 S.Ct. at 1472 (citations omitted)

(emphasis added). Finch had a due process right to assume that the

prosecutor would recommend and the court would issue an effective

sentence. See Correale v. United States, 479 F.2d 944, 946-49 (1st

Cir.1973).

Under this controlling law, it is clear that a federal
sentencing court could not be bound by the state plea bargain that

Finch's state sentence would run concurrently with his prospective

federal sentence for violating his parole. Not only were federal

officials not parties to the plea bargain, but also effectuation of

the plea bargain would negate a federal court's sentencing

authority in contravention of dual sovereignty. Because this

erroneous advice from his attorney, the state, and the state trial

judge was the basis for Finch's guilty plea, his plea was

unconstitutionally induced in violation of his due process rights.

In analyzing inducement for his guilty plea, the state and federal

habeas courts incorrectly focused on threats or coercion and failed

to recognize the untenable sentencing information and plea bargain

provision explained to Finch from legal authorities upon whom he

was entitled to rely, his counsel and, especially, the state judge.

Thus, we conclude that Finch's guilty plea was unconstitutional

because it was not knowing, intelligent and voluntary.

 Consequently, Monroe's plea negotiations and advice to Finch

concerning pleading guilty constituted ineffective assistance of

counsel. "A guilty plea is open to attack on the ground that

counsel did not provide the defendant with "reasonably competent

advice.' " Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708,

1716, 64 L.Ed.2d 333 (1980) (quoting McMann v. Richardson, 397 U.S.

759, 770, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763 (1970)); see Hill v.

Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370-71, 88 L.Ed.2d 203

(1985) (holding that, in the plea context, a habeas petitioner

establishes ineffective assistance of counsel by demonstrating that

counsel's advice and performance fell below an objective standard
of reasonableness, based upon which he pled guilty). For a guilty

plea to "represent an informed choice" so that it is

constitutionally "knowing and voluntary," the "[c]ounsel must be

familiar with the facts and the law in order to advise the

defendant of the options available." Scott v. Wainwright, 698 F.2d

427, 429 (11th Cir.1983). "The failure of an attorney to inform

his client of the relevant law clearly satisfies the first prong of

the Strickland analysis ... as such an omission cannot be said to

fall within "the wide range of professionally competent assistance'

demanded by the Sixth Amendment." Hill, 474 U.S. at 62, 106 S.Ct.

at 372 (White, J., concurring) (quoting Strickland v. Washington,

466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984)).

When negotiating the plea bargain on the morning of trial,

Monroe was prepared for trial and not sentencing. He had neither

researched the law concerning federal parole revocations nor

inquired of federal authorities concerning government policy and

procedure regarding defendants who commit state crimes while on

federal parole. The transcript of the evidentiary hearing in the

state habeas court evidences that Monroe had no experience with a

defendant who had violated state laws while on federal parole.

Significantly, he was unaware that Finch's federal sentence could

be tolled during his state incarceration, and that his state plea

bargain for state and federal sentence concurrency was meaningless

because it depended on federal compliance when the government had

not been a party to the plea bargain. Whatever risk Monroe may

have understood was involved with the concurrent sentence provision

of the plea bargain, the focus of the decisions denying habeas
relief by the state and federal habeas courts, he admittedly failed

to communicate this concern or any disclaimer regarding federal

compliance to Finch, who needed accurate sentencing advice to enter

an informed guilty plea. Defense counsel has a constitutional duty

to "know or learn about the relevant law and evaluate its

application to his or her client.... [p]articularly when a plea

bargain is discussed, and hence sentencing becomes the client's

preeminent concern." Correale, 479 F.2d at 949. Because the

record supports Finch's contention throughout his state and federal

habeas proceedings that he was induced to plead guilty by his

counsel's erroneous advice that the plea bargain would enable him

to serve his federal and state sentences concurrently, we conclude

that Monroe provided ineffective assistance of counsel by

misinforming Finch concerning the essence of his decision to plead

guilty on a basic principle of dual sovereignty and established

federal policy.

III. CONCLUSION

In this habeas case, Finch argues that his guilty plea was not

knowing, intelligent and voluntary, and that his counsel's

representation regarding the guilty plea was ineffective. The

district court used the wrong legal standards in denying habeas

relief. Accordingly, we REVERSE and REMAND with instructions to

grant Finch's petition for habeas relief and to allow him to

withdraw his plea and to proceed to trial.