# Charles Edward Manley v. United States

> Court of Appeals for the Second Circuit · October 16, 1970 · 432 F.2d 1241

URL: https://www.frixlaw.com/law-library/cases/9456144

## Case

- **Full name:** Charles Edward MANLEY, Appellant, v. UNITED STATES of America, Appellee
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** October 16, 1970
- **Citations:** 432 F.2d 1241; 1970 U.S. App. LEXIS 6885
- **Precedential status:** Published
- **Opinion:** Concurrence by Friendly
- **Judges:** Lumbard, Waterman, Moore, Friendly, Smith, Kaufman, Hays, Anderson, Feinberg
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

FRIENDLY, Circuit Judge
(concurring in the result):
I agree that the record shows that, before taking Manley’s guilty plea, the district judge had ample grounds for being satisfied of the factual basis for it. But I cannot accept the opinion’s assumption that if the case were otherwise, we would be required to order a hearing to determine whether the judge had such grounds and to direct that a defendant must be allowed to replead unless the hearing shows that he did— with respect to a plea antedating April 2, 1969. Such a holding would fly in the face of the clear language of Halliday v. United States, 394 U.S. 831 , 89 S.Ct. 1498 , 23 L.Ed.2d 16 (1969), would continue the confusion caused by our past failure to follow that decision, and would place us in opposition to two other courts of appeals, Meyer v. United States, 424 F.2d 1181, 1189 (8 Cir. 1970); United States v. Tucker, 425 F.2d 624 (4 Cir. 1970).
F.R.Cr.P. 11 was changed, effective July 1, 1966, in several important respects. The Court was not to accept a guilty plea “without first addressing the defendant personally and determining that the plea was made voluntarily with understanding of the nature of the charge and the consequences of the plea.” Also “the court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.” In McCarthy v. United States, 394 U.S. 459 , 89 S.Ct. 1166 , 22 L.Ed.2d 418 , decided April 2, 1969, the defendant claimed on a direct appeal that the judge had accepted his guilty plea without inquiring whether he understood the nature of the charge and without determining whether there was a factual basis for the plea. The Court held that failure to address the defendant personally and determine that the plea was made voluntarily with understanding of the nature of the charge and the consequences of the plea entitled a defendant who had appealed to replead, even though the record or a subsequent hearing might show that the plea had in fact been so made. Failure to ascertain a factual basis for the plea would have similar consequences even though the existence of such a basis was shown by the record of the later hearing on sentence.
The Court’s evident concern with the practical effect of this ruling led to an early pronouncement concerning its application to pleas taken before the McCarthy decision. In Halliday v. United States, 394 U.S. 831, 833 , 89 S.Ct. 1498, 1499 , 23 L.Ed.2d 16 , decided only a month later, the Court stated in the clearest terms:
Thus, in view of the general application of Rule 11 in a manner inconsistent with our holding in McCarthy , and in view of the large number of constitutionally valid convictions that may have been obtained without full compliance with Rule 11, we decline to apply McCarthy retroactively. We hold that only those defendants whose guilty pleas were accepted after April 2, 1969, are entitled to plead anew if their pleas were accepted without full compliance with Rule 11.
The Court thus made crystal-clear what the result should be with respect to pleas antedating April 2,1969, where the judge had not satisfied himself of a factual basis. Conviction on such a plea is “constitutionally valid,” even under Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969), if the plea was voluntary and understanding. Where there is only a violation of the satisfaction-as-to-factual-basis provision of amended Rule 11, a defendant is not entitled to replead. Such was the precise and correct holding of the Fourth Circuit in United States v. Tucker, supra.
While Halliday’s attack was on the failure of the judge to make “an explicit inquiry whether it [the plea] was voluntarily and understandingly made,” 394 U.S. at 835, 89 S.Ct. at 1500 (concurring *1247 opinion of Mr. Justice Harlan), nothing in the Court’s language or in good sense would justify a different principle where the claim was the judge’s failure to satisfy himself of a factual basis. Neither can it be successfully maintained that the Court was speaking only of defendants like Halliday who had pleaded before July 1, 1966. The language is clear as can be, and the Court would hardly have bothered to say that a defendant who had pleaded before July 1, 1966, could not take advantage of a change in Rule 11 that did not become effective until then. Moreover, any such restricted view is refuted by the Court’s refusal to adopt the position expressed in the concurring opinion of Mr. Justice Harlan, who joined in affirming Halliday’s conviction because voluntariness had been determined at a § 2255 hearing but saw no reason “why other federal prisoners whose pleas were accepted in plain violation of the requirements of the amended rule should be deprived of the relief accorded McCarthy,” 394 U.S. at 834, 89 S.Ct. at 1500.
It is true that in Halliday the Court made clear that its limitation of the effect of McCarthy on pleas taken before April 2, 1969 did not deprive a defendant of “appropriate post-conviction remedies to attack his plea’s voluntariness,” 394 U.S. at 833, 89 S.Ct. at 1499 — in other words, an attack upon the plea as constitutionally defective. But it surely does not follow that in consequence a pr e-McCarthy defendant complaining merely of a violation of amended Rule 11 must be given something else — which the Supreme Court has said he should not have. Indeed, Halliday was scarcely necessary to make clear that violation of a Rule of Criminal Procedure, without more, is an insufficient basis for relief under § 2255, Hill v. United States, 368 U.S. 424 , 82 S.Ct. 468 , 7 L.Ed.2d 417 (1962). Yet the majority puts a pre McCarthy plea substantially on the same footing as a post-McCarthy one in this respect since nothing in McCarthy requires that the judge’s satisfaction with respect to factual basis be established by the pleading minutes rather than by other record material known to the judge before accepting the plea.
In George v. United States, 421 F.2d 128 (2 Cir. 1970), we followed Halliday by holding that a defendant who had pleaded guilty after July 1, 1966 and claimed that the judge had not personally determined voluntariness was entitled to a hearing with respect to the fact of voluntariness and to nothing more. That opinion, however, did not mention United States v. Steele, 413 F.2d 967 (1969), where we had earlier fallen into a misinterpretation of Halliday, and did not properly characterize Schworak v. United States, 419 F.2d 1313 (2 Cir. 1970), which had relied on Steele . Now the majority partially overrules Steele but attempts to salvage some of it along with Schworak by holding that where the pleading minutes do not disclose whether the judge satisfied himself of the factual basis for the plea, it must be determined whether he did; if he did not, presumably the plea must be vacated, even though the plea was pr e-McCarthy and attack is made under § 2255. Such a holding is in direct contravention of Halliday and Hill .
I submit, with deference, that the only course which will afford some measure of intelligibility and guidance for district judges in this circuit is for the court in banc to overrule Steele and Schworak and return to the path the Supreme Court so clearly delineated for us. Indeed, in the long period this case has been under advisement, a panel, without citation of those cases, has handled the problem here presented in the proper way. See United States v. Malcolm, 432 F.2d 809 , 812 fn. 1 (2 Cir. 1970).
While I thus join with the majority for affirmance, I would hope that Chief Judge Henderson might see fit to reconsider the five-year sentence. There may be justifying circumstances not known to us, but on the facts presented the criminal process seems to have reached an exceedingly harsh result in this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9456144. Public record. Not legal advice.