Full opinion text
ORDER . SCOTT O. WRIGHT, Senior District Judge. This is a petition for writ of habeas corpus under 28 U.S.C. § 2254 by Heath A. Wilkins (petitioner), an inmate in custody at Potosí Correctional Center, Potosí, Missouri. The petitioner seeks to vacate his conviction for first degree murder and sentence of death entered by the Circuit Court of Clay County, Missouri after petitioner waived counsel and entered a guilty plea. Background In the summer of 1985, Petitioner, who was then sixteen years old, lived in a public park in Kansas City with three other teenagers, Marjorie Fihpiak, Patrick Stevens and Ray Thompson. The four of them planned and carried out the robbery of a liquor store in Avondale, Missouri, on July 27, 1985. According to the plan, Marjorie Filipiak went to the nearby North Kansas City Hospital and called a cab while the three boys went to the liquor store. Ray Thompson stayed outside the store to act as lookout, and Petitioner and Patrick Stevens went inside the store to rob it. ■ During the robbery, Petitioner fatally stabbed the proprietor of the store, Nancy Allen, as Stevens held her. Acting on an anonymous tip, Kansas City police arrested Petitioner and his associates in the park on August 10, 1985. After questioning by the police, Petitioner confessed to the murder and robbery. Because of his age, a hearing was conducted to determine whether he would be tried as an adult. Fred Duchardt, the Clay County Public Defender, was appointed to represent Petitioner at the hearing. After denying counsel’s request for a mental examination, the juvenile court on August 15, 1985, entered an order allowing Petitioner to be tried as an adult. Petitioner was charged as an adult with the offenses of unlawful use of a weapon, first degree murder and armed criminal action. At arraignment in the Clay County Circuit Court, counsel entered the alternative pleas of not guilty and not guilty by reason of mental disease or defect on Petitioner’s behalf. Pursuant to that plea, the court ordered a mental examination of Wilkins. Steven A Mandracchia, Ph.D., a psychologist at Western Missouri Mental Health Center, examined Wilkins in November, 1985. In January, 1986, Mr. Duchardt visited petitioner in the Clay County jail. At that time, petitioner told Mr. Duchardt that he wished to be executed. A second examination was performed in March, 1986 by William A. Logan, M.D., a psychiatrist with the Menninger Foundation. A competency hearing was held on Wednesday, April 16, 1986. Dr. Mandracchia testified that he did not believe petitioner had a mental disease or defect “as defined by” Missouri statute. He gave no opinion whether petitioner had a mental disease or disorder outside of the statutory definition, except that he “agree[d] with the past treatment records and past psychiatric and psychological diagnoses.” Dr. Mandracchia concluded that petitioner was “competent to proceed”. Although Dr. Mandracchia was not aware of petitioner’s desire to be executed when he conducted his examination, he testified at the hearing that this fact did not alter his conclusion regarding petitioner’s competency to proceed. Dr. Logan testified that petitioner was “psychiatrieally ill” with a “plethora of mental difficulties”. However, he did not give an opinion on petitioner’s competency to proceed because he interpreted Missouri law to require a psychotic disorder. Dr. Logan stated that although petitioner had no cognitive deficits, his emotional disabilities “could interfere with his decision-making process at certain critical points.” Mr. Duchardt insisted that there was “considerable question” about petitioner’s competency. Over Mr. Duchardt’s protests, the court found him competent to proceed. Mr. Wilkins then informed the court that he wanted to be sentenced to death. He also stated that he wanted to waive counsel because Mr. Duchardt would not help him get the death penalty. Counsel again reiterated his belief that petitioner was not acting competently. The court deferred action on Petitioner’s request until a hearing the following week. On April 23, 1986, the court accepted the waiver of counsel. Petitioner immediately asked to plead guilty to all charges and be executed. After a brief hearing two weeks later, the court accepted petitioner’s pro se guilty plea on May 9, 1986 and a sentencing hearing was held on June 27, 1986. The State presented evidence of the crime and testimony by Dr. Mandracchia and Dr. Logan. Petitioner objected to any evidence of his mental disorders that could be construed as mitigating and joined in the State’s request for the death penalty. The court found that the murder was wantonly vile, horrible or inhuman because it involved depravity of mind, and that the murder was committed in the course of a robbery. Then the court sentenced petitioner to death. The sentence was reviewed by the Missouri Supreme Court pursuant to Mo.Rev. Stat. § 565.035 (1986). The Office of the Public Defender was appointed to act as amicus curiae for petitioner on the “appeal”. At oral argument, Mr. Wilkins appeared personally before the Missouri Supreme Court, repeated his wish to be executed and requested that amicus counsel be discharged. The court ordered Sam Parwatikar, M.D., a psychiatrist with the Missouri Department of Mental Health, to examine petitioner to determine his “competence to waive counsel” on appeal. Dr. Parwatikar concluded that Petitioner “was not capable of waiving his constitutional right to counsel.” Amicus counsel then moved to remand the matter to the Circuit Court for an evidentia-ry hearing on Wilkins’ mental competence and waiver in light of Dr. Parwatikar’s findings. The State objected, arguing that the review was limited to the statutory criteria in § 565.035. The Missouri Supreme Court denied the motion for remand and appointed the Public Defender to act as counsel for Petitioner. The Missouri Supreme Court affirmed Petitioner’s conviction and sentence on direct statutory review, State v. Wilkins, 736 S.W.2d 409 (Mo. banc 1987), with Justices Blackmar, Donnelly and Welliver dissenting on proportionality grounds. Judge Donnelly also wrote separately that proportionality was the only issue properly before the court. On June 30, 1988, the United States Supreme Court granted certiorari to decide whether the execution of a sixteen-year-old offender per se violates the eruél and unusual punishment clause of the Eighth Amendment, and eventually held that it did not. Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989). On the same day that the Supreme Court granted certiorari, petitioner filed a motion in the sentencing court pursuant to Mo. R.Crim.P. 24.035 to set aside his convictions and sentences. By that time, petitioner was nineteen years old and did not aspire to be executed. Counsel was appointed to represent Petitioner and a hearing on Wilkins’ motion was held May 22-26, 1989. Dorothy Lewis, M.D., Jonathan Pincus, M.D., and William O’Connor, Ph.D., conducted testing and clinical interviews and concluded that Wilkins suffers from schizoaffective disorder, a mental disease which rendered him incompetent to proceed at the time of his plea. Dr. Logan also testified that had he been asked to respond to the question posed in the Missouri Supreme Court’s order to Dr. Par-watikar, he would have concurred with Dr. Parwatikar-that Wilkins was not “competent” to proceed as his own attorney. The State called Mr. Duehardt and Dr. Mandracehia. Mr. Duehardt again stated that he believed that Wilkins was not competent at the time of his plea and sentencing hearing. Dr. Mandracehia testified that he would need to perform an additional examination of Petitioner to respond to the State’s question about Wilkins’ “competence to waive” counsel. Claiming surprise at Dr. Mandracchia’s testimony, the State requested a mental evaluation by Dr. Mandracehia to determine whether petitioner was “competent to waive” his constitutional rights and plead guilty and whether petitioner’s waiver of counsel and guilty plea were in fact knowing, intelligent and voluntary. After conducting the court-ordered supplemental examination, Dr. Mandracehia testified that the waiver of counsel, guilty plea and waivers of other constitutional rights were not intelligent and voluntary. Nevertheless, the hearing court denied the motion and the Missouri Supreme Court affirmed. Wilkins v. State, 802 S.W.2d 491 (Mo.) cert. denied, Wilkins v. Missouri, 502 U.S. 841, 112 S.Ct. 131, 116 L.Ed.2d 98 (1991). Petitioner then filed the Petition for Writ of Habeas Corpus currently before this Court. The First Amended Petition alleged thirteen grounds of constitutional error. On May 16, 1995, this Court entered an Order conditionally granting the Writ on one of Petitioner’s claims on the basis of the state court record, without an evidentiary hearing. The Court also considered and denied one other claim, but did not address the eleven remaining claims. After filing a timely notice of appeal, the State requested the Court of Appeals for the Eighth Circuit to remand the case to this Court for resolution of all remaining claims. The motion was granted on October 3,1995. After remand, Petitioner renewed his previous request for an evidentiary hearing. Over the State’s objections, this Court heard testimony on January 5 and 30, 1996. Petitioner then voluntarily dismissed several claims. On April 23, 1996, this Court set aside the previous Order of May 16, 1995 pursuant to Fed.R.Civ.P. 60(b)(6). The six claims remaining in the Amended Petition will now be considered. The facts relevant to each will be outlined as necessary. For the reasons set forth below, the petition will be granted. Evidentiary Hearing After the remand from the Court of Appeals, this Court exercised its power to hold an evidentiary hearing on dispositive factual issues in thé amended petition. The Court’s broad authority to do so is well-established under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). In Townsend, the Supreme Court held that district courts always have the discretion to hold evidentiary hearings on dispositive factual issues in habeas litigation: “In every case, [the district court] has the power, constrained only by his sound discretion, to receive evidence bearing upon the applicant’s constitutional claim.” Id., 372 U.S. at 318, 83 S.Ct. at 760. In reliance on Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), the State asserts that the hearing was not authorized. The standard adopted in Keeney to limit mandatory hearings in certain situations, however, does not purport in any way to limit a habeas court’s prerogative to hear additional evidence if there is a factual dispute on nonfrivolous claims. E.g. Jamison v. Lockhart, 975 F.2d 1377, 1381 (8th Cir.1992) (“we do not read Tamayo-Reyes as altering our discretionary power to order this hearing”); Pagan v. Keane, 984 F.2d 61, 64 (2d Cir.1993); Burden v. Zant, 975 F.2d 771, 775 (11th Cir.1992) rev’d on other grounds 510 U.S. 132, 114 S.Ct. 654, 126 L.Ed.2d 611 (1994); Sims v. Livesay, 970 F.2d 1575 (6th Cir.1992). See Yohn v. Love, 76 F.3d 508, 516 (3d Cir.1996). The Court also believes that a hearing may have been mandatory. Under Townsend, a federal district court must hold an evidentiary hearing in six situations, including some circumstances in which the state courts previously held a hearing and made factfindings. Townsend, 372 U.S. at 313, 83 S.Ct. at 757. Although it is not necessary to thoroughly examine the Townsend requirements now because there was a discretionary hearing, the Court notes that the first two circumstances in Tovmsend may have compelled it in this case: (1) the merits of many dispositive facts were not resolved in the state court hearing; and (2) the state courts’ determinations on some facts are not supported by the record as a whole. Again, the State’s objection based on Keeney v. Tamayo-Reyes is not persuasive. The limitation on mandatory hearings imposed by Keeney has no relevance here. Keeney overruled Townsend only in part. It held that a hearing is not mandatory under Townsend’s fifth circumstance (“the material facts were not adequately developed at the state court hearing”) unless the petitioner can show cause for failing to develop the material facts in the state court and prejudice resulting therefrom or actual innocence. Keeney, 504 U.S. at 7-9, 112 S.Ct. at 1719. Petitioner did not fail to develop the material facts in this ease. The determinative evidence was presented to the state courts. After an exhaustive review of the entire file, this Court found that many disputed factual issues were not settled and some findings by the state courts were perplexing. The state record contains ambiguous or contradictory support for certain findings and conclusions, particularly those related to the claims challenging the waiver of counsel and guilty plea. Thus, this Court determined that an evidentiary hearing would be at least prudent and valuable, if not required. Given these concerns, with the prospect of a remand later for a hearing, the Court elected to hear additional evidence. See e.g., Blalock v. Lockhart, 898 F.2d 1367 (8th Cir.1990). The facts left unresolved by the state courts and the disputable findings will be set forth as necessary in the section of the Order addressing the individual claims for relief. Presumption of Correctness of State Court Findings An issue distinct from the power to hold an evidentiary hearing is whether this Court is bound by the state courts’ findings on dispos-itive factual questions. Under 28 U.S.C. § 2254(d), a state court’s factual finding is entitled to a presumption of correctness unless one of seven factors listed in § 2254(d)(l)-(7) is present or unless the factual finding “is not fairly supported by the record”. This Court is also aware of the changes in the presumption of correctness standard set out in the amendment to § 2254 which was signed into law on April 24, 1996. However, the new statute does not govern the determination of any factual issues in this ease. “[C]ongressional enactments ... will not be construed to have retroactive application unless their language requires this re-suit.” Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988). At least one district court has already rejected the state’s position: Although certain provisions of Title I of the Antiterrorism and Effective Death Penalty Act of 1996 contain specific effective dates, neither the Act as a whole nor the amendments to § 2254 contains such a date. See, Chapter 154, 28 U.S.C. § 266(c). In contrast to Congress’ silence with respect to the effective dates of the amendments to § 2254, Chapter 154, which applies only to capital cases, contains a specific effective date provision. See, 28 U.S.C. § 2266(c) (stating that “Chapter 154 of title 28, United States Code (as amended by subsection (a)) shall apply to cases pending on or after the date of enactment of this Act.”) The relevant legislation contains no language indicating that Congress intended the amendments to § 2254 to apply to eases such as Petitioner’s. The inclusion of language in Chapter 154 to the effect that the provisions in Chapter 154 “apply to cases pending on or after the date of enactment of this Act” indicates that Congress knows how to indicate that new legislation applies to pending cases when it intends to do so. The absence of similar language in the amendments to § 2254 indicates that Congress only intended for such amendments to apply prospectively. Schlup v. Bowersox, No. 4:92CV443, slip op. at 16-17 (E.D.Mo. May 2, 1996). This Court agrees with this sound analysis regarding the retroactivity of this portion of the new legislation. Moreover, even if the revised provision § 2254(e)(1) did apply, there are certain relevant legal doctrines preliminary to § 2254(d) or § 2254(e)(1) which are not affected by the new statute. The threshold question is what constitutes a “factual” finding, as opposed to a “mixed” question or a purely legal question. Further, common sense dictates that the first exception to the presumption of correctness under § 2254(d)-that the “merits of the factual dispute were not resolved in the state court hearing”-would continue under the new statute. Here, this Court decides questions of law and decides factual issues not resolved by the state courts even though the evidence had been developed there. The( end result thus is the same, regardless of which statute applies. Where factual determinations were made in the state court here, this Court affords a “high measure of deference.” Sumner v. Mata, 455 U.S. 591, 598, 102 S.Ct. 1303, 1307, 71 L.Ed.2d 480 (1982). “This deference requires that a federal habeas court more than simply disagree with the state court before rejecting its factual determinations. Instead, it must conclude that the state court’s findings lacked even fair support in the record.” Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983). Further, § 2254(d) provides that even if the presumption applies, a habeas petitioner may rebut the presumption by establishing “by convincing evidence that the factual determination by the state court was erroneous”. Such convincing evidence includes proof presented “at an evidentiary hearing ... in the federal court.” See Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223, 2225, 109 L.Ed.2d 762 (1990); Lahay v. Armontrout, 923 F.2d 578 (8th Cir.1991). Under the new § 2254(e)(1), the standard for rebuttal is essentially the same: by “clear and convincing evidence”. Section 2254(d) applies only to the state courts’ findings of historical facts. Legal conclusions are not entitled to deference on federal habeas corpus review. Wright v. West, 505 U.S. 277, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992); Sumner, 455 U.S. at 597, 102 S.Ct. at 1306-07; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953). This Court is also free to conduct an independent review of “so called mixed questions of fact and law which require the application of a legal standard to the historical fact determinations.” Thompson v. Keohane, - U.S. -, -, 116 S.Ct. 457, 459, 133 L.Ed.2d 383 (1995); Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980); Jones v. Jones, 938 F.2d 838, 842 (8th Cir.1991). For each allegation of constitutional error, the court will employ these legal standards in reference to the state courts’ findings. Analysis I. Waiver of Counsel Petitioner contends that he was denied his constitutional rights under the Sixth and Fourteenth Amendments because the waiver of his right to counsel was not made knowingly, intelligently and voluntarily. The State argues that the record supports the state courts’ conclusion that the waiver was knowing, intelligent and voluntary. The State also asserts that the abuse-of-the-writ defense bars this Court’s consideration of the claim after the remand from the Court of Appeals. A. Abuse of the Writ The abuse-of-the-writ doctrine generally prohibits a petitioner from raising claims in a subsequent habeas petition that could have been, but were not, raised in the first federal habeas proceeding. McCleskey v. Zant, 499 U.S. 467, 490, 111 S.Ct. 1454, 1468, 113 L.Ed.2d 517 (1991). The general bar against abusive claims also extends to successive claims which raise grounds identical to those heard and decided on the merits in a previous petition. Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). This Court did determine that petitioner had not validly waived his right to counsel and granted the writ of habeas corpus on that basis in an Order dated May 16, 1995. However, under the procedural circumstances in this case, this is not a successive claim and the abuse-of-the-writ defense is not applicable. In the previous Order, this Court declined to address eleven of the thirteen allegations of constitutional error raised in the amended petition. The Court of Appeals thus remanded the case, before briefing or arguments on appeal, for resolution of the remaining issues. Petitioner raised the waiver of counsel issue again after remand, perhaps fearing that the failure to do so would be taken as a default. He also voluntarily dismissed with prejudice several other claims, paring down to six the number of remaining claims for relief. This Court then set aside the previous order and judgment under Fed.R.Civ.P. 60(b) so that all six issues would be decided in a single order, for the sake of clarity and judicial economy. Order dated April 23, 1996. Under no tenable theory is the claim barred from this Court’s review. See Murray v. Delo, 34 F.3d 1367, 1374 (8th Cir.1994). This is a first habeas corpus petition to which the doctrine of abuse of the writ does not apply. Lonchar v. Thomas, - U.S. -, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996). B. Merits The Sixth and Fourteenth Amendments of the United States Constitution guarantee a criminal defendant in a state proceeding the right to counsel. Gideon v. Wainwright, 372 U.S. 335, 342-44, 83 S.Ct. 792, 795-97, 9 L.Ed.2d 799 (1963). The accused person does have a corollary right to waive counsel and proceed pro se, but only if the waiver is knowing, intelligent and voluntary. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The constitution “imposes the serious and weighty responsibility upon the trial judge [to determine] whether there is an intelligent and competent waiver by the accused.” Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). In doing so, the court must “indulge every reasonable presumption against waiver” because the purpose of the right to counsel is “to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights”. Id., at 464, 465, 58 S.Ct. at 1023, 1023 (1938) (citing Aetna Insurance Co. v. Kennedy, 301, U.S. 389, 393, 57 S.Ct. 809, 811-12, 81 L.Ed. 1177 (1937)). “The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson, 304 U.S. at 464, 58 S.Ct. at 1023. “To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the ease before him demand.” von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948). The trial court must make a meaningful inquiry to determine whether a particular defendant’s waiver of these rights is, a “voluntary and intelligent choice among the alternative courses of action”. Schone v. Purkett, 15 F.3d 785, 788-89 (8th Cir.1994). “To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.” von Moltke, 332 U.S. at 724, 68 S.Ct. at 323. Because Johnson commands that the unique characteristics and background of each individual defendant must be examined, the fact that an accused person tells the trial court that “he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility.... A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” von Moltke, 332 U.S. at 724, 68 S.Ct. at 323. “[T]he ultimate test for whether there has been a valid waiver of the right to counsel is not the trial court’s express advice, but rather the defendant’s understanding”. United States v. Cash, 47 F.3d 1083, 1088 (11th Cir.1995). A finding that a criminal defendant is “competent to proceed” does not resolve the issue whether his waiver of counsel is knowing, intelligent and voluntary. These are two separate questions. Both must be answered in the affirmative before there can be an effective waiver of the constitutional right to counsel. Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). In Godinez, the United States Supreme Court explained that “when a defendant seeks to waive his right to counsel, a determination that he is competent to stand trial is not enough; the waiver must also be intelligent and voluntary before it can be accepted”. Id. at 402, 113 S.Ct. at 2688. The Godinez Court finally explained the distinction between these two requirements, which has caused much confusion in this and other cases. The “focus of the-competency inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings. The purpose of the ‘knowing and voluntary inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced.” Id. at 401, n. 12, 113 S.Ct. at 2687, n. 12 (emphasis in original) (citations omitted). Thus, “a finding that a defendant is competent to stand trial ... is not all that is necessary before he may be permitted to plead guilty or waive his right to counsel. In addition to determining that a defendant who seeks to plead guilty or waive counsel is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary.” Id. at 400, 113 S.Ct. at 2687 citing Parke v. Raley, 506 U.S. 20, 28-30, 113 S.Ct. 517, 523, 121 L.Ed.2d 391 (1992) (The test is whether the waiver represents a voluntary and intelligent choice among the alternative courses of action open to the defendant), and Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (accused must “knowingly and intelligently’ forego benefits of right to counsel). In this case, as in others throughout the circuits before Godinez, the courts and the parties have repeatedly confounded and often interchanged the terms “competency to proceed” with “competency to waive the right to counsel” and “knowing, intelligent and voluntary waiver of counsel”. The misunderstanding may stem from Westbrook v. Arizona, 384 U.S. 150, 150, 86 S.Ct. 1320, 1320, 16 L.Ed.2d 429 (1966), where the Supreme Court stated that a state trial court’s finding that a defendant was “competent to stand trial” did not resolve the separate issue of his “competence to waive his constitutional right to the assistance of counsel” and proceed pro se. After Westbrook, it was unclear whether there was a different’ more stringent test for “competency’ required to waive certain rights, such as the right to counsel, than the test for competency to stand trial. The law within this circuit alone was conflicting. Compare Blackmon v. Armontrout, 875 F.2d 164, 166 (8th Cir.) cert. denied, 493 U.S. 939, 110 S.Ct. 337, 107 L.Ed.2d 326 (1989) and White Hawk v. Solem, 693 F.2d 825, 829-30, n. 7 (8th Cir.1982) cert. denied 460 U.S. 1054, 103 S.Ct. 1505, 75 L.Ed.2d 934 (1983). In Godinez, the Supreme Court finally settled the matter by explaining what it “had in mind in Westbrook When we distinguished between “competence to stand trial” and “competence to waive the constitutional right to the assistance of counsel”, we were using “competence to waive” as a shorthand for the “intelligent and competent waiver” requirement of Johnson v. Zerbst. Godinez, 509 U.S. at 401, 113 S.Ct. at 2688. The Court held that, “[i]n this sense this is a ‘heightened’ standard for pleading guilty and waiving the right to counsel, but it is not a heightened standard of competence.” Id. at 401, 113 S.Ct. at 2687 (emphasis in original). Godinez also reaffirmed the trial court’s “serious and weighty responsibility ... to determine whether there is an intelligent and competent waiver by the accused”. Id. at 401, 113 S.Ct. at 2688. The semantic chaos after West-brook has additional relevance in this habeas corpus proceeding because a state court's determination of competency is a factual finding entitled to a presumption of correctness under § 2254(d). Thompson, - U.S. at -, 116 S.Ct. at 459 citing Maggio v. Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 2264, 76 L.Ed.2d 794 (1983). However, a “waiver of the Sixth Amendment right to assistance of counsel is not a question of historical fact, but rather requires application of constitutional principles to facts.” Thompson - U.S. at -, 116 S.Ct. at 459 Citing Brewer v. Williams, 430 U.S. 387, 404 and n. 4, 97 S.Ct. 1232, 1242 and n. 4, 51 L.Ed.2d 424 (1977). Although subsidiary factual findings must be presumed correct, the ultimate question requires an assessment of the totality of circumstances. See Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). This is a matter for independent federal determination. Cuyler, 446 U.S. at 342, 100 S.Ct. at 1714-15; Miller, 474 U.S. at 112, 106 S.Ct. at 460-51 (voluntariness of confession context). The initial question here then, is whether the trial court or the Missouri Supreme Court made the sort of factual findings, evidenced by a written record, which this Court must accept in maMng the ultimate decision on the waiver of counsel. Sumner, 449 U.S. 539, 101 S.Ct. 764. A state court’s resolution of an issue does not always include a finding of historical fact. “There is a fundamental difference between a ruling on a motion, essentially a legal determination, and a finding of fact.” Elem v. Purkett, 64 F.3d 1195, 1200 (8th Cir.1995) quoting Jones, 938 F.2d at 842. If there áre such factual findings in the record, then the Court must examine whether one of the exceptions in § 2254(d) negates the presumption of correctness. Finally, this Court will determine the legal conclusion supported by the relevant facts. The record in this ease shows that the trial court made no factual findings when it consented to Petitioner’s waiver of counsel. (Cir.Ct.Tr. at 42-90). Rather, the trial judge expressed the mistaken belief that he was obliged to accept the waiver of counsel because Mr. Wilkins had been found competent to proceed. When notified that petitioner sought to waive counsel, the court stated: I suppose as long as this court finds that he is competent and able to conduct himself in a competent manner then he will, I guess, be permitted to pursue that avenue that he chooses. But, on the other hand, at his age and with his lack of legal training and schooling and considering the seriousness of the offense, this court feels that the availability of legal counsel is essential so that he can rely upon it, at least if he wants to, you see? (Cir.Ct.Tr. at 45-46). See also Cir.Ct.Tr. at 62. The trial court had just found that petitioner was competent to proceed when defense counsel Fred Duchardt and Mr. Wilkins announced that he wanted to waive counsel, plead guilty and seek the death penalty. (Cir.Ct.Tr. at 42-45). The court told petitioner many times that he had the right to counsel and the right to waive counsel. Acknowledging that petitioner was sixteen years old with only a ninth grade education and no legal knowledge or experience, the court stated that the circumstances of the ease cautioned against the waiver of counsel. (Cir.Ct.Tr. at 43-44). The trial judge urged Mr. Wilkins to accept counsel and instructed him to think about his decision for a few days. The court ordered Mr. Du-chardt to remain available to answer any questions petitioner might have. (Cir.Ct.Tr. at 59, 67.) The next hearing on the motion to waive counsel was held one week later. The court again cautioned petitioner about the dangers of proceeding pro se, and informed him about other constitutional rights, reciting a list including the right to confrontation, compulsory process, appeal and so forth. (Cir.Ct.Tr. at 69-79). The court explained that counsel could help protect those rights and expressly told Mr. Wilkins that he-faced two possibilities for punishment upon conviction: the death penalty or life in prison without parole. (Cir.Ct.Tr. at 69-79). Petitioner continued to assert that he wanted to waive counsel. (Cir. Ct.Tr. at 70-79). Mr. Duchardt continued to assert that he did not believe Mr. Wilkins was “competent to make those decisions.” (Cir.Ct.Tr. at 41, 81). The court then provided petitioner with waiver of counsel forms and accepted the waiver, but again advised petitioner to reconsider. (Cir.Ct.Tr. at 83-88, 94-95). Although the trial court strongly encouraged petitioner to accept the services of counsel, the circumstances of this case demanded more. The Constitution required the trial court to consider the “background and experience” of Mr. Wilkins, who at the time was a juvenile with a long history of institutionalization for mental disorders and suicide attempts. Here, as in von Moltke, the judge did not make a “penetrating and comprehensive” examination of all the circumstances or “investigate as long and thoroughly” as the circumstances of this case demanded to determine if Mr. Wilkins actually made a knowing, intelligent and voluntary waiver, von Moltke, 332 U.S. at 723-24, 68 S.Ct. at 323-24. The omission is significant in this case. Petitioner was a sixteen year-old boy with less than a ninth grade education when he waived his right to counsel, entered the guilty plea and was sentenced to death. He had lived in mental institutions since he was ten. His background before being institutionalized included severe beatings and abuse by his mother and her live-in boyfriends. Child care frequently consisted of being locked alone in a room for hours without toilet facilities. (Cir.Ct.Tr. at 66, 357, 528-534, 358). The mother regularly used illegal drugs. An uncle, with her . permission, gave petitioner marijuana and other drugs since he was only six years old “as a joke”. (Cir. Ct.Tr. at 523-532). At Tri-County Mental Health Center in 1979, Psychologist Robert Urie, Ph.D. described petitioner, then age ten, as “a severely depressed boy with homicidal and suicidal ideation”, “borderline thought disorder” and “emotional neglect.” (Exhibit 7). Robert Walker, M.D., a psychiatrist, also reported then that he was at “serious risk” of becoming “homicidal and suicidal”. (Exhibit 7). The state court record included accounts from Butterfield Youth Ranch from 1980-1983, where petitioner was institutionalized from age eleven to fourteen. Those records documented bizarre behavior, depression, hallucinations and the mother’s lack of interest. (Exhibit 8). In 1982, psychiatrist James Chappel, M.D., reported that petitioner showed “bizarre behaviors, especially when stressed” and possible schizophrenia. (Exhibit 8). Dr. Chappel feared that with stress, petitioner “would decompensate”. (Exhibit 8 at 42, 539-545, 793-794). In 1983 at Crittenton Psychiatric Center, Michael Harty, Ph.D., a psychologist, and Huseni Poonawala, M.D., the treating psychiatrist, predicted that petitioner would have a “psychotic breakdown” and become “violent or self-destructive”. (Exhibit 5). By age 16 and at the time of this homicide, petitioner was living in a public park with other troubled teenagers, taking drugs and drinking excessively. (Cir.Ct.Tr. at 540-542). Immediately before petitioner announced his waiver, psychiatrist Dr. William Logan had testified at the competency hearing that Mr. Wilkins had emotional impairments that caused him to act against his own best interests and “could interfere with his decision making process at certain critical points.” (Cir.Ct.Tr. at 22). Dr. Logan had explained that petitioner was very impulsive, had not learned “how to use his mind to make rational common sense decisions”, and that “when it comes to making critical decisions, he’s very easily frustrated and prone to give out and just take the quick, easy solution primarily based on how he feels and not on what he thinks or what might be the wisest course of action”. (Cir.Ct.Tr. at 23-25). Instead of further exploring the circumstances in light of this background, the trial court’s inquiry here consisted almost entirely of leading questions, recited in a manner directed more toward making a record than meaningfully probing whether the waiver was a ‘Voluntary and intelligent choice among the alternative courses of action.” Schone, 15 F.3d at 788-789. Most of Mr. Wilkins’ responses are simply “yes” or “no” answers, as if on cross:examination, (Cir.Ct. Tr. at 75 — 89). The court’s extensive use of leading questions on the record and the lack of any reference to his mental disorders provides no fair support for the conclusion that the waiver was intelligent and voluntary. Mental illness is a factor the trial court must consider when ruling on the validity of a waiver. E.g., Cooper v. Griffin, 455 F.2d 1142 (5th Cir.1972). The Missouri Supreme Court also erroneously equated “competency to proceed” with the requirements for a waiver of the constitutional right to counsel. In the opinion on the mandatory statutory direct review of the conviction and sentence of death under Mo.Rev. Stat. § 565.035, the court states that “any finding of competency necessarily entails the ability to waive certain rights beginning with the very first strains of Miranda ” and that “juveniles may validly waive the right to counsel”. State v. Wilkins, 736 S.W.2d 409, 415 (Mo.1987). This legal conclusion sets forth no finding of fact entitled to a presumption of correctness. Thompson, — U.S. at -, 116 S.Ct. at 459; Brewer, 430 U.S. at 404, 97 S.Ct. at 1242; Cuyler, 446 U.S. at 342, 100 S.Ct. at 1714-15. The Missouri Supreme Court did make some factual findings on the statutory direct review which are entitled to a presumption of correctness under § 2254(d). None of those findings, however, require the legal conclusion that Mr. Wilkins’ waiver of counsel was knowing, intelligent and voluntary. The court found that the trial judge tried to dissuade petitioner from waiving counsel and had “admonished” petitioner to “talk to those whom he trusted and who could advise him about his chosen course” and stated that the judge had urged petitioner to change his mind. Wilkins, 736 S.W.2d at 411-13. This finding, however, relates only to the trial court’s recommendation. It does not compel the conclusion that Mr. Wilkins intelligently and voluntarily waived his rights. “The ultimate test for whether there has been a valid waiver of the right to counsel is not the trial court’s advice, but rather the defendant’s understanding.” Cash, 47 F.3d at 1088. A detailed admonition by the trial court on the record does not necessarily mean that the defendant acted knowingly, intelligently and voluntarily. Moreover, the Missouri Supreme Court’s appointment of counsel for Mr. Wilkins on the direct review and order for additional briefing and oral argument is consistent only with a finding that Petitioner validly did not intelligently and voluntarily waive his right to counsel. As outlined above, that court had initially appointed amicus counsel to brief issues and appear at arguments. However, when petitioner asked to waive amicus counsel on appeal, the court ordered Dr. Sam Parwatikar to examine him regarding his “competence to waive his right to counsel”. (Exhibit 32). After Dr. Parwatikar’s evaluation, which included a review of all prior records and an extensive personal interview, he reported back to the court that Mr. Wilkins had mental disorders that “affect his rational reasoning and impair his behavior”. Dr. Parwatikar concluded that petitioner was “not competent to waive his constitutional right to counsel.” (Exhibit 18 at 16). After receiving Dr. Parwatikar’s report, the Missouri Supreme Court appointed counsel to represent Mr. Wilkins on appeal and ordered supplemental briefs and argument. (Order of Mo.Sup.Ct., Jan. 26, 1987)- The court’s opinion on direct appeal refers to Mr. Wilkins request to waive counsel, its order for the evaluation from the Department of Mental Health and their subsequent appointment of counsel, but neglects to set forth the findings of Dr. Parwatikar that prompted the court to refuse petitioner’s request and to appoint counsel. Wilkins, 736 S.W.2d at 411. The court’s actions, however, constitute a finding in accord with Dr. Parwatikar’s report: that the waiver of counsel was not intelligent and voluntary. See e.g., Parker v. Dugger, 498 U.S. 308, 316, 111 S.Ct. 731, 736-37, 112 L.Ed.2d 812 (1991). On the collateral review under Mo. R.Crim.P. 24.035, the state postconvietion court did not make any findings binding on this Court. The postconviction court listed several factual findings that support petitioner’s competency to proceed, but that issue is not before this Court. The court’s conclusion that the waiver of counsel was valid was again based on the erroneous legal view that a determination of competency necessarily includes a valid waiver of the right to counsel. R.24.035 Order at 5-9. The only part of the court’s order that addresses the waiver of counsel states: The court concludes that the finding of competency of movant to proceed entailed the ability to waive certain rights and to make decision necessary for the disposition of the case including the decision to enter plea of guilty and under the circumstances of this case to waive counsel and proceed pro se. The court also concludes a review of all the evidence shows that movant knowingly, voluntarily, and intelligently, and competently waived his right to counsel. The court further concludes that mov-ant suffered no deprivation under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 18(a) of the Missouri Constitution. Court further concludes that no prejudice resulted to movant because of his waiver of counsel. The court concludes that movant is not entitled to relief because of his change of feeling regarding the death penalty. Court concludes movant was mentally competent to proceed as his own counsel. R.24.035 Order at 9-10. This ruling is a legal determination not compelled by any findings of historical fact, and thus is not entitled to a presumption of correctness. See Elem, 64 F.3d at 1200; Jones, 938 F.2d at 842. The state postconviction court made no reference to extensive evidence regarding the background of petitioner, a necessary consideration in determining whether his waiver of counsel was knowing, intelligent and voluntary, von Moltke, 332 U.S. at 723-24, 68 S.Ct. at 323-24; Johnson, 304 U.S. at 464, 58 S.Ct. at 1023. In addition to the mental health professionals who examined and treated petitioner before the crime, other mental health experts examined him and testified in the state court that he was “severely disturbed”. Dr. Logan testified at the state'evidentiary hearing that petitioner’s lifetime without affection and nurturance had caused a “profound developmental arrest”, severe mental disturbances and that he had attempted suicide several times. (Exhibit 14 and Cir.Ct. Tr. at 467-472, 511). Dr. Logan affirmed at this Court’s hearing that petitioner was extremely disturbed and immature at age sixteen. His opinion is that petitioner did not voluntarily or intelligently waive his right to counsel and that he was strongly affected by “internal coercion”. (§ 2254 Hrg.Tr. at 21-23). Dr. Dorothy Lewis, a psychiatrist,-testified in the state court that Mr. Wilkins had a strong family histoiy of psychotic illnesses, had hallucinations and was paranoid. This was consistent with an earlier diagnosis of “childhood psychosis”. (Cir.Ct.Tr. at 24-26, 32-75). Dr. Lewis stated that petitioner’s “paranoid orientation ... played a major role in his dismissing his attorney.” (Cir.Ct.Tr. at 28). Dr. William O’Connor, a clinical psychologist, agreed that petitioner was “probably psychotic”. (Cir.Ct.Tr. at 139-170). Dr. Jonathan Pincus, a neurologist, confirmed an earlier 1982 diagnosis of schizoaffective disorder. (Cir.Ct.Tr. at 319-327). It is puzzling and inexplicable why the state court did not make any findings or address whether petitioner’s disturbing background of mental serious disorders had any bearing on his waiver of counsel and guilty plea. The state court’s only reference to the hearing was the conclusion that “the court further finds the testimony of the doctors relied upon by movant to be unpersuasive and can find no basis for disturbing the eoürt’s- prior findings of movant’s competency.” R.24.035 Order at 9. After a careful examination of the record as a whole, this Court concludes that the finding is not entitled to a presumption of correctness because it does not resolve the factual dispute and is not fairly supported by the record. § 2254(d). The trial court does not explain which doctors it found to be “unpersuasive” or why. The judge does not set out whether he believed that any or all of the doctors were mistaken, lying or whether he just believed their testimony was irrele7 vant in light of his mistaken view of the law. The court did not make any credibility determination and did not refer to the substance of any expert’s testimony. Even more important, the trial court failed to even mention that Dr. Mandracchia, a witness for the state, testified that petitioner did not voluntarily and intelligently waive his right to counsel or plead guilty. (Exhibit 33 and Cir.Ct.Tr. 891-904). Although the court made findings that Dr. Mandracchia believed petitioner was competent to stand trial, it did not refer to his testimony about the waiver of counsel and guilty , plea. (R.24.035 Order at 12-13). The exclusion is conspicuous because the trial court, at the state’s request, had expressly ordered Dr. Mandracchia to conduct an additional examination to determine whether petitioner’s waiver of counsel, guilty plea and waiver of mitigation were made “knowingly, voluntarily and intelligently”. (Exhibit 35). After examining petitioner as directed, Dr. Mandracchia reported: 1. In the opinion of this examiner, the Movant’s waiver of counsel was made knowingly but not voluntarily or intelligently. 2. In the opinion of the examiner, the Movant’s plea of guilty and waiver of trial by jury was made knowingly but not voluntarily or intelligently; therefore, the Mov-ant is not viewed as having been competent to make such a decision. •3. In the opinion of the examiner, the Movant’s waiver of his right to offer evidence in mitigation of punishment was made knowingly but not voluntarily or intelligently; therefore,' the movant is viewed as not having been competent to have made such a decision. (Exhibit 33 at 5). Dr. Mandracchia further explained the reasons for his opinions at the Rule 24.035 hearing, stating that petitioner’s reasoning in making the decision was seriously defective, that he did not consider alternative options and did not reach his decision in a logical fashion. (Cir.Ct.Tr. at 891-904). The Missouri Supreme Court did not address Dr. Mahdracehia’s report. State court findings are not supported by the record as a whole if the court simply ignores or omits crucial evidence. See e.g., Walker v. Solem, 648 F.2d 1188, 1191 (8th Cir.1981). In this Court’s hearing, Dr. Mandracchia credibly and confidently testified to his belief that petitioner’s, waiver of counsel and guilty plea were not voluntary or intelligent. (§ 2254 Hrg.Tr. on 1-5-96 at 50, 70-77). He explained that he reached his conclusion after consulting with other professionals and considering several factors, psychiatric records, interviews with petitioner, review of all court transcripts and discussions with Mr. Duchardt. (Id. at 74). Dr. Mandracchia testified that it was petitioner’s process in making the decision, rather than , the decision itself, that was not intelligent and voluntary. Petitioner was obsessed with getting the death penalty and did not explore or consider any other options. (Id. at 51). Dr. Mandracchia explained that although some sixteen year old boys might be able to voluntarily and intelligently waive such rights, petitioner did not. Id. at 73, 76-77. The record indicates that the state courts gave inadequate weight in this case to petitioner’s young age at the time of the waiver. Dr. Mandracchia’s findings are credible and relevant to the law. See von Moltke, 332 U.S. at 723-24, 68 S.Ct. at 323-24; Young, 892 F.2d at 1351. The Missouri Supreme Court’s did not base its ruling on the appeal of the postconviction motion on any facts which are entitled to deference. As on the statutory proportionality review, the court did make some factual findings entitled to a presumption of correctness, but none that support its conclusion. The Missouri Supreme Court again stated that the trial judge had discouraged petitioner from waiving counsel and that petitioner himself had told' the court that he was competent. Wilkins v. State, 802 S.W.2d 491, 494-496 (Mo.1991). The court found that petitioner had a ninth grade education and “average intelligence”, and had “demonstrated a credible level of competence in handling his case”. Id. at 501. The court also noted that “considerable portions of defendant’s juvenile records offered by the State were kept out by the sustained objections of the defendant himself.” Id. at 496. While there is a presumption of correctness to historical facts such as the court’s finding, that petitioner had only a ninth grade education and average intelligence, it is hard to appreciate how this shows his waiver was knowing, intelligent and voluntary. The finding regarding his “competence in handling his case” is not fairly supported by the record. Petitioner never really “handled his case”. He waived counsel, entered a guilty plea, asked for the death penalty, waived evidence in mitigation, and was sentenced to death. The excluded evidence from the juvenile records mentioned by the court was proof of Petitioner’s serious psychiatric history as a child. (Cir.Ct.Tr. at 237). Other findings are not fairly supported in the record. Contrary to the Missouri Supreme Court’s description, Wilkins, 802 S.W.2d at 501, the hearing court did not make any credibility determinations or state that Dr. Mandracchia’s testimony was “unpersuasive”. The motion court only referred to the “doctors relied on” by petitioner. (R.24.035 Order at 9). Dr. Mandracchia was the state’s witness. Even though the trial court made no factual findings, the Missouri Supreme Court assumed the trial judge’s conclusion could not be wrong: In the protracted proceedings hereinbefore discussed, Judge McFarland perhaps more than any person was favorably positioned to understand defendant and evaluate the evidence. He had ample opportunity to observe the defendant and learn the innermost reason for his decision to waive counsel. This observation and oral examination of the defendant could not be ignored and was necessarily taken into account when assessing the competency of a defendant to waive counsel. Wilkins, 802 S.W.2d at 501. The court’s account of the trial judge’s “many hours of counseling and conversations” is contradicted by the record and does not resolve the waiver of counsel issue. The trial court asked very few questions that- could not be answered with a “yes” or “no”. Neither state court considered petitioner’s background or the unanimous opinion of ail mental health professionals that the waiver was not intelligent and voluntary. Further, the Missouri Supreme Court’s resolution of the issue repeatedly refers back to Judge McFarland’s determination that petitioner was competent to proceed. However, at the time that the trial court made that decision, petitioner had uttered only two words in the court’s presence. The Missouri Supreme Court’s most tenuous statement is that “though defendant did not renounce his waiver of counsel, he manifested his cunning, availing himself of the services of “standby” counsel when it met his purpose.” Id. at 502. Although the trial court had insisted that Mr. Duchardt remain available as “standby counsel”, he did not provide any legal advice or assistance to petitioner. (Cir.Ct.Tr. at 60-69, 81, 161). The designation was artificial. Mr. Duchardt objected in the state court and testified in this Court that he was no more than a reference book that remained on the shelf. (§ 2254 Hrg.Tr. at 87). The ultimate question of waiver is an issue of federal law. For these reasons, and based on the record as a whole, this Court concludes that petitioner did not knowingly, voluntarily and intelligently waive his right to counsel. II. Guilty Plea and Waiver of Mitigation Analogous to the waiver of counsel claim, Petitioner also asserts that his guilty plea and. waiver of mitigation evidence were not knowing,' intelligent and voluntary. The State argues that the claim-is procedurally barred and that 'the state court’s finding is entitled to a presumption of correctness. A. Procedural Bar Petitioner fairly presented this claim to the state postconviction court and to the Missouri Supreme Court with factual support and extensive briefs citing to Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320 and von Mottke, 332 U.S. 708, 68 S.Ct. 316, as outlined above, and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (voluntariness of guilty plea), as well as Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (mitigating evidence). There is no procedural bar to this Court’s review of the merits. Further, the state courts’ conclusion is not entitled to a presumption of correctness under § 2254(d). This is a mixed question of federal law and fact. Cuyler v. Sullivan, 446 U.S. at 342, 100 S.Ct. at 1714-15. B. Merits The United States Supreme Court has repeatedly pronounced that in order to satisfy the dictates of due process, a plea of guilty must be a knowing, intelligent and voluntary act. E.g. Brady v. United States, 397 U.S. at 748, 90 S.Ct. at 1468-69. As with a waiver of counsel, the resolution whether the plea was intelligently made depends on the particular facts and circumstances of each case. See Johnson, 304 U.S. at 463, 58 S.Ct. at 1022-23. If petitioner’s waiver of counsel was not knowing and intelligent, then the guilty plea entered without counsel also must be invalid. Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968). However, the court will address this claim independently. Under Boykin v. Alabama, 395 U.S. at 243-44, 89 S.Ct. at 1712-13, the trial court must undertake a factual inquiry to determine if the plea is voluntary and made with an understanding of the nature of the charge and consequences of the plea. The Boykin Court admonished state trial courts that the prerequisites of a valid waiver of constitutional rights must be “spread on the record.” A federal court will not presume from an incomplete or silent record that there has been a valid waiver of constitutional rights: Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Second, is the right to trial by jury.' Third, is the right to confront one’s accusers. We cannot assume a waiver of these three important rights from a silent record. Id. at 243, 89 S.Ct. at 1712 (footnote and citations omitted). The test for determining the validity of a guilty plea is “whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). The trial court must establish on the record that the defendant -understands all elements of the charges, including the required mental state, and the possible ranges of punishment. Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); Nash v. Israel, 707 F.2d 298 (7th Cir.1983). “[B]eeause a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” Boykin, 395 U.S. at 243, n. 5, 89 S.Ct. at 1712, n. 5. A guilty plea can be involuntary not only because' the defendant doesn’t understand the 'nature of the right he is surrendering, Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, but also because he has an incomplete understanding of the charge. Smith v. O’Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859 (1941). “Evidence of guilt establishes a factual basis for the plea, not that the defendant understand the law in relation to the facts.” Gregory v. Solem, 774 F.2d 309, 314 (8th Cir.1985) quoting Nash, 707 F.2d at 303, n. 8. The record does not show that petitioner knew or understood the specific elements of the charges he faeed or all his “alternative courses of action”. There was no discussion of the lesser included offenses of second degree murder or manslaughter. The trial court never explained the different degrees of homicide under Missouri law and the differences in punishment. Mo.Rev.Stat. § 565.020 (1984) provides that a person commits the crimes of murder in the first degree if he “knowingly causes the death of another person after deliberation on the matter.” The only possible punishments are death and life in prison without the possibility of parole. Mo.Rev. Stat. § 565.032. Second degree murder, which carries a parolable sentence, does not include “deliberation”. § 565.021; State v. Jackson, 511 S.W.2d 771 (Mo.1974). Under Missouri law, deliberation means that the defendant acted after reflection, “in a cool frame of mind.” State v. Shaw, 569 S.W.2d 375, 377 (Mo.App.1978). If premeditation and malice are shown, but not deliberation, the offense is murder in the second degree. State v. Ayers, 470 S.W.2d 534 (Mo.1971). The record here does not show that Petitioner understood the mental element of the crime charged or the defenses he would relinquish by pleading guilty. The word “deliberation” or its legal equivalent was never used when he entered his guilty plea. (Cir.Ct.Tr. at 104-167). The only words used in relation to mental states were “premeditated” and “knowingly”-terms that describe the mental state for second degree murder under Missouri law. (Cir.Ct.Tr. at 125). Yet Mr. Wilkins entered a plea of guilty to first degree murder. Moreover, the trial court expressly told Mr. Wilkins that there were only two potential punishment options: the death penalty and life in prison without parole. (Cir. Ct.Tr. at 77). The record does not establish that petitioner knew, or was ever told, that at a trial, an attorney could present a “diminished responsibility” defense that might result in a conviction on the lesser included offense of second degree murder and receive a parolable sentence. “The trial judge’s constitutional duty to establish on the record the defendant’s understanding of a charge with a guilty plea does not depend on whether the charge is complex or simple. However, the trial judge must be even more solicitous in fulfilling this duty when the charge is not readily understandable by a layman.” Nash, 707 F.2d at 303, n. 6. Respondent argues .that petitioner must have understood about the lesser included option of second degree murder and the diminished responsibility defense because in the hearing on the waiver of counsel Mr. Duchardt told the court that he had “attempted” to tell petitioner his options. This