Since Byrd, we have reaffirmed in a number of cases that the respondent has the burden in habeas to prove that a plea was voluntary, knowing, and intelligent, but we never have articulated any basis for that rule other than our original reasoning in Purvis. See, e.g., Tyner v. State, 289 Ga. 592, 593(2), 714 S.E.2d 577 (2011); Wilson v. Kemp, 288 Ga. 779, 779, 727 S.E.2d 90 (2011); Sentinel Offender Svcs. v. Harrelson, 286 Ga. 665, 666(1), 690 S.E.2d 831 (2010); Sanders v. Holder, 285 Ga. 760, 761, 684 S.E.2d 239 (2009); Bullard v. Thomas, 285 Ga. 545, 545(1), 678 S.E.2d 897 (2009); State v. Hemdani, 282 Ga. 511, 511 & n. 1, 651 S.E.2d 734 (2007); Arnold v. Howerton, 282 Ga. 66, 66, 646 S.E.2d 75 (2007); Hawes v. State, 281 Ga. 822, 822–823, 642 S.E.2d 92 (2007); Beckworth v. State, 281 Ga. 41, 42, 635 S.E.2d 769 (2006); Green v. State, 279 Ga. 687, 688, 620 S.E.2d 788 (2005); Baisden v. State, 279 Ga. 702, 702, 620 S.E.2d 369 (2005); State v. Futch, 279 Ga. 300, 300(1), 612 S.E.2d 796 (2005); Foskey v. Battle, 277 Ga. 480, 482(1), 591 S.E.2d 802 (2004); Britt v. Smith, 274 Ga. 611, 616–617(1), 556 S.E.2d 435 (2001); Wetherington v. Carlisle, 273 Ga. 854, 855, 547 S.E.2d 559 (2001). To be sure, Parke involved a recidivist sentencing proceeding in which an earlier judgment of conviction fell under collateral attack, and Parke does not directly address the burden of proof with respect to the voluntariness of a plea in habeas.
When the record reflects a failure to inform the defendant of each of his three Boykin rights prior to his entering a guilty plea, a judgment denying habeas relief must be reversed. Denson v. Frazier, 284 Ga. 858 ( 672 SE2d 625) (2009) (reversal required where defendant was not advised of his right against compulsory self-incrimination); Hawes v. State, supra, 281 Ga. at 824-825 (reversal required where defendant was not advised of his right against compulsory self-incrimination); Johnson v. Smith, 280 Ga. 235 ( 626 SE2d 470) (2006) (reversal required where defendant was neither advised of his right against compulsory self-incrimination nor of his right to confront witnesses); Foskey v. Battle, supra, 277 Ga. at 482-483 (reversal required where defendant was not informed of any of his Boykin rights); Baisden v. State, 279 Ga. 702 ( 620 SE2d 369) (2005) (reversal required where defendant was neither advised of his right against compulsory self-incrimination nor of his right to confront witnesses). Our careful review of the plea hearing transcript in this case, which was the only record evidence presented by the State, shows that appellant was not informed of his right against compulsory self-incrimination prior to entering his plea.
Cf. Arnold v. Howerton, 282 Ga. 66, 68 ( 646 SE2d 75) (2007); Johnson v. Smith, 280 Ga. 235, 235 ( 626 SE2d 470) (2006). See Baisden v. State, 279 Ga. 702, 703 ( 620 SE2d 369) (2005); Green v. State, 279 Ga. 687, 689 ( 620 SE2d 788) (2005).Head v. Thomason, 276 Ga. 434, 436 ( 578 SE2d 426) (2003).
Therefore, because the record does not support a finding that appellant was advised of all of his Boykin rights when he entered his plea and that he made a knowing and intelligent waiver of those rights, we conclude that the habeas court erred by finding that the plea passed constitutional scrutiny. See Johnson v. Smith, 280 Ga. 235 ( 626 SE2d 470) (2006); Baisden v. State, 279 Ga. 702 ( 620 SE2d 369) (2005). Judgment reversed.
In these Motions, Petitioner seeks to challenge his sentence under Federal Rule of Civil Procedure 60(b) and Federal Rule of Criminal Procedure 36. The factual basis for these motions is a decision by Supreme Court of Georgia granting his petition for habeas corpus relief as to certain state convictions. Baisden v. State of Georgia, 279 Ga. 702, 620 S.E.2d 369 (2005). Based on this decision, Defendant asks the Court for a reduction of his federal sentence based on the overturning of his prior state convictions.
See id. at 13-15, 287 S.E.2d 26 (citation omitted).These decisions include Nash, 271 Ga. 281, 519 S.E.2d 893, Britt, 274 Ga. 611, 556 S.E.2d 435, Arnold, 282 Ga. 66, 646 S.E.2d 75, Hawes, 281 Ga. 822, 642 S.E.2d 92, Sutton, 283 Ga. 28, 656 S.E.2d 796, Wilson, 288 Ga. 779, 727 S.E.2d 90, Tyner, 289 Ga. 592, 714 S.E.2d 577, Lejeune II, 299 Ga. 546, 789 S.E.2d 191, Foskey v. Battle. 277 Ga. 480, 591 S.E.2d 802 (2004); Pulliam v. State, 278 Ga. 354, 602 S.E.2d 833 (2004), Baisden v. Stale, 279 Ga. 702, 620 S.E.2d 369 (2005), Johnson v. Smith, 280 Ga. 235, 626 S.E.2d 470 (2006), Beckworthv.State, 281 Ga. 41, 635 S.E.2d 769 (2006), State v. Hemdani, 282 Ga. 511, (651 S.E.2d 734) (2007), Denson v. Frazier, 284 Ga. 858, 672 S.E.2d 625 (2009), and Sanders v. Holder, 285 Ga. 760, 684 S.E.2d 239 (2009).A word on harmless error.
The only apparent meaning attributable to the affidavit is that trial counsel's fixed and habitual practice was to advise his clients of all three Boykin rights, and the majority fails to suggest any other reasonable inference. Compare Baisden v. State, 279 Ga. 702 (___ SE2d ___) (2005) (where prosecutor's "affidavit merely state[d] that the trial judge would have asked questions `similar' to a list which included inquiries regarding the Boykin rights, but which also addressed other matters"). Moreover, the inference drawn by the habeas court from the affidavit is supported by "the presumption that an attorney has adequately discharged his responsibilities and duties.