Petition — United States v. Mayes

| MICHAEL RODAK, JR., CLERK |

Iu the Supreme Court of the United States

‘ OCTOBER TERM, 1976

UNITED STATES OF AMERICA, PETITIONER

Vv.

ROBERT MELVIN MAYES

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

RoBERT H. Bork,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

KENNETH S. GELLER,

Assistant to the Solicitor General,

SIDNEY M. GLAZER,

FREDERICK EISENBUD,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

Page

UE Seana 1

Jurisdiction seliaadeikdeiestideliedandvcnseshiniaplapbiailiai 2

Question presented __ a 2

Statutory provision involved _...._-»»_-=_»_ 2

Statement _ 3

Reasons for granting the petition _....___ 11

Conclusion _______ , 19

PE ae RE a la

Appendix B ___. 29a

| EE Ao ee OL 30a

EE SP. satieibiiccnnbiiabeliancshiiaiainlendiitiobiabapidacbicnit 3la

CITATIONS

Cases:

Allison v. Blackledge, 533 F. 2d 894, cer-

tiorari granted, No. 75-1693, October

ROR SEN ican wee ae 17, 18, 19

Brady v. United States, 397 U.S. 742. 12

Castro v. United States, 396 F. 2d 345__. 9

Crawford v. United States, 519 F. 2d 347,

certiorari denied, 423 U.S. 1057. 16

Drake v. United States, 439 F. 2d 1319. 15

Dugan v. United States, 521 F. 2d 231__. 16

Faulisi v. Daggett, 527 F. 2d 305... 15

Fontaine vy. United States, 411 U.S. 213_ 16

Hedman v. United States, 527 F. 2d 20... 16

Jones v. United States, 384 F. 2d 916. 9

Cases—Continued _ Page

Machibroda v. United States, 368 U.S.

Sead _ 17,19

Matthews v. United States, 533 F. 2d

900, pending on petition for a writ of

certiorari, No. 76-629 bela 16

McCarthy v. United States, 394 U.S. 459 12,17

McMann v. Richardson, 397 U.S. 759___ 9

Micklus v. United States, 5387 F. 2d 381_ 15

Moody v. United States, 497 F. 2d 359__ 15

Paradiso v. United States, 482 F. 2d 409_ 15

Reed v. United States, 441 F. 2d 569. 9

Sanders v. United States, 372 U.S. 1 16, 17

Trotter v. United States, 359 F. 2d 419_ 15

United States v. Hawthorne, 502 F. 2d

REECE eat ie PSR Rs Riot 15

United States v. Hayman, 342 U.S. 205_ 14

United States v. McCarthy, 433 F. 2d

RSE PEr y Srens Ae REDE Se 15

United States v. Simpson, 436 F. 2d 162_ 15

United States v. Valenciano, 495 F. 2d

ROLE Sade rater aera ree tn nae eee 15

United States v. Williams, 536 F. 2d

a a 16

Statutes and rules:

a ns 15

ee * ae ee 3

18 U.S.C. 4208(a)(2). 7

I ai 18

28 U.S.C. 2255 _._____- aE Sor, 1, 2, 7, 8-9, 10, 11, 13

Federal Rules of Criminal Procedure:

gg errr oer passim

Il

Statutes and rules—Continued

Rule 11(c) (5)

Rule 11(d)

a

Rules Governing 28 U.S.C. § 2255 Pro-

ceedings for the United States District

Courts:

Rule 2(b)

Miscellaneous:

Preliminary Annual Report of the Direc-

tor, Administrative Office of the United

States Courts (1976)...

Semi-Annual Report of the Director, Ad-

ministrative Office of the United States

Courts (1976)...

14

13

13

§u the Supreme Court of the United States

OCTOBER TERM, 1976

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

ROBERT MELVIN MAYES

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Ninth Circuit in this case.’

OPINIONS BELOW

The opinion of the court of appeals (App. A,

infra) is reported at 537 F. 2d 1080. The order of

the district court (App. D, infra) is not reported.

1This case was styled Mayes v. Pickett, Warden in the

lower courts. We have restyled the caption, substituting the

United States for the warden, since a proceeding under 28

U.S.C. 2255 is properly brought against the United States.

(1)

2

JURISDICTION

The judgment of the court of appeals (App. B,

infra) was entered on July 9, 1976, and a petition

for rehearing was denied on September 8, 1976 (App.

C, infra). On November 29, 1976, Mr. Justice Rehn-

quist extended the time for filing a petition for a

writ of certiorari to and including January 7, 1977,

and on December 30, 1976, the time was further

extended to and including January 17, 1977. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTION PRESENTED

Whether a federal prisoner who has pleaded guilty

and who then moves to vacate his sentence under 28

U.S.C. 2255 on the ground that his plea was not

knowingly and voluntarily made must be given an

evidentiary hearing on claims in the motion that are

expressly rebutted by the prisoner’s statements at

his guilty plea proceeding.

STATUTORY PROVISION INVOLVED

28 U.S.C. 2255 states in pertinent part:

A prisoner in custody under sentence of a court

established by Act of Congress claiming the right

to be released upon the ground that the sentence

was imposed in violation of the Constitution or

laws of the United States, or that the court was

without jurisdiction to impose such sentence, or

that the sentence was in excess of the maximum

authorized by law, or is otherwise subject to col-

lateral attack, may move the court which im-

posed the sentence to vacate, set aside or correct

the sentence.

A motion for such relief may be made at any

time.

Unless the motion and the files and records

of the case conclusively show that the prisoner

is entitled to no relief, the court shall cause no-

tice thereof to be served upon the United States

attorney, grant a prompt hearing thereon, de-

termine the issues and make findings of fact and

conclusions of law with respect thereto.

STATEMENT

1. An indictment returned in 1969 by a grand

jury of the United States District Court for the

Central District of California charged respondent

with three counts of bank robbery, in violation of 18

U.S.C. 2113(a). On May 28, 1969, pursuant to a

plea bargain whereby two of the counts would be

dismissed, respondent agreed to plead guilty to one

count of bank robbery.

Prior to accepting the plea of guilty, the district

court conducted an inquiry that, as the court of ap-

peals later observed, “went far beyond the require-

ments of then existing Rule 11” of the Federal Rules

of Criminal Procedure (App. A, infra, p. 5a).? The

? The entire proceeding is reprinted in the opinion of the

court of appeals (App. A, infra, pp. 7a-14a, n. 1).

At the time of respondent’s plea, Rule 11 provided that a

court should not accept a plea of guilty “without first address-

ing the defendant personally and determining that the plea is

&

court explained to respondent the constitutional rights

that he would waive by pleading guilty, informed

him of the nature of the charge against him and the

penalties provided by law, and ascertained that there

was a factual basis for the guilty plea (App. A,

infra, pp. 8a-12a, n. 1). The court thereafter in-

quired into the voluntariness of the plea (id. at Qa,

12a-13a, n. 1):

THE COURT: Have there been any threats

made against you or any member of your family

now that compel you to offer your plea of guilty

at this time?

THE DEFENDANT: No, sir.

THE COURT: Has anyone made any prom-

ises of leniency, any particular sentence, proba-

tion or any other inducement of any kind for

you to plead guilty?

THE DEFENDANT: No, sir.

made voluntarily with understanding of the nature of the

charge and the consequences of the plea. * * * 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.” Effective December

1, 1975, Rule 11 has been amended to make more specific the

inquiry that the court must conduct prior to accepting a plea

of guilty. Amended Rule 11(d) states:

The court shall not accept a plea of guilty or nolo con-

tendere without first, by addressing the defendant per-

sonally in open court, determining that the plea is vol-

untary and not the result of force or threats or of

promises apart from a plea agreement. The court shall

also inquire as to whether the defendant’s willingness

to plead guilty or nolo contendere results from prior

discussions between the attorney for the government and

the defendant or his attorney.

5

THE COURT: Has your lawyer told you

what sentence the Court would impose upon a

plea of guilty to this charge?

THE DEFENDANT: No, sir.

THE COURT: Is your plea of guilty entirely

free and voluntary?

THE DEFENDANT: Yes, sir.

* a od e =

MR. SIROTA [defense counsel]: * * * I

should inform the Court that Mr. Mayes is an

addict of heroin, and I did inform him of the

fact that there is a possibility of hospitalization

for his cure of narcotic addiction.

THE COURT: When was the last time you

had heroin, Mr. Mayes? |

THE DEFENDANT: April.

THE COURT: April of this year?

THE DEFENDANT: Yes, sir.

THE COURT: All right.

Mr. Mayes, you understand the statement of

your counsel that that is not any promise made

to you for pleading guilty, that it is no promise

of any kind by your counsel? Do you under-

stand that?

THE DEFENDANT: Yes, sir.

THE COURT: The determination of what

the sentence may be or what the disposition of

the case might be in terms of any possible addic-

tion that you might have is up to the Court after

a probation report.

THE DEFENDANT: Yes, sir.

THE COURT: And there is no promise made

to you by anyone, and if there has been any

promise made to you, I am telling you now that

there can be no promise made to you concerning

a plea of guilty. Do you understand that?

THE DEFENDANT: Yes, sir, I understand.

THE COURT: Do you want your plea of

guilty to stand?

THE DEFENDANT: Yes, sir.

THE COURT: Mr. Sirota, have you made

any indication to the defendant what sentence

the Court might impose?

MR. SIROTA: No, sir. I said that the maxi-

mum sentence was twenty years, and I informed

him of the possibility of the hospitalization and

informed him of the possibility of the various

sections of Section 4208 all the way down the

line. .-

e * e > a

THE COURT: Are you pleading guilty to

Count Three because you have been promised dis-

position on the other counts?

THE DEFENDANT: Yes, sir.

THE COURT: Is that why you are pleading

guilty?

THE DEFENDANT: Yes, sir.

THE COURT: Why are you pleading guilty

to Count Three?

THE DEFENDANT: Iam guilty of it.

The court then accepted the plea, finding that it

was “free of any coercive influence of any kind, is

voluntarily made with full knowledge of the charge

against him, that there have been no promises of any

kind made to him by anyone and no threats or coer-

cion have been exerted upon him in any manner”

(App. A, infra, p. 14a, n. 1). On June 23, 1969,

respondent was sentenced to fifteen years’ imprison-

7

ment, subject to the parole eligibility provisions of

18 U.S.C. 4208(a) (2). On the government’s motion,

the remaining counts of the indictment were dis-

missed (Tr. 31).

2. One month after sentencing, respondent moved

to reduce his sentence under Fed. R. Crim. P. 35.

The motion failed to mention any promises or coer-

cion in connection with respondent’s plea and con-

tended solely that respondent was in need of treat-

ment for his narcotics addiction rather than punish-

ment. The district court denied the motion on Au-

gust 1, 1969.

More than a year later, on September 25, 1970,

respondent moved to vacate his sentence under 28

U.S.C. 2255, alleging for the first time that his guilty

plea had been induced by the threat that he would

receive the maximum sentence on each count if he

went to trial and by his attorney’s representation

that he had arranged a “deal” regarding the sen-

tence that would be imposed if he pleaded guilty

(i.e., seven years at a drug treatment center). The

district court denied the motion without an eviden-

tiary hearing, finding that “[t]he colloquy at the

time of acceptance of the plea make clear it was

voluntary and made after full inquiry,” and the

court of appeals denied respondent leave to appeal

in forma pauperis and dismissed the appeal. Mayes

v. United States, C.A. 9, No. 70-2169-R, decided

March 29, 1971.

On September 15, 1971, respondent moved once

more to vacate his sentence, raising the same claim

3

of promises in connection with his plea that had been

rejected in the earlier motion, Again the district

court denied relief without an evidentiary hearing

and again the court of appeals dismissed the appeal.

Mayes v. United States, C.A. 9, No. 71-2887, decided

December 13, 1971.

After another unsuccessful attempt to upset his

conviction by challenging the selection of the grand

jury that indicted him, respondent filed a third mo-

tion for Section 2255 relief on June 13, 1973. In

addition to alleging that his plea had been induced

by an illegally obtained confession and by the incom-

petence of his counsel and that he had lacked the

mental capacity to plead guilty because of his drug

addiction, respondent claimed once more that his plea

had been the product of threats and promises. Spe-

cifically, respondent asserted that he had been co-

erced into pleading guilty “as a result of threats of

and by the Los Angeles City Police and the F.B.I.

agents who interrogated him . . . by stating that if

he did not sign a confession and plead guilty, his

wife would be arrested and would have her baby in

the penitentiary” (R. 10-11)* and that his counsel

had stated that if respondent “would plead guilty,

two counts of the three count indictment would be

dropped, and he would receive a small sentence to

Fort Worth, Texas, drug center where he could be

cured” (R. 11).

The district court denied the motion without an

evidentiary hearing on June 19, 1973, noting that

respondent had filed two previous motions under Sec-

*“R.” refers to the record in the court of appeals.

SS

9

tion 2255 and that “[e]ach time piecemeal he

adopts the theory of cases as they are decided by the

appellate courts and makes them a factual basis for

his contention” (App. D, infra, p. 31a). The court

added that it had “observed the [respondent] at the

time of his Rule 11 colloquy and at the time of sen-

tence. No evidence of drug stupor or withdrawal

symptoms was evident. [Respondent] was coherent,

rational and questioned concerning his plea and [the

court] was satisfied it was a voluntary, intelligent

and rational plea” (ibid.).

2. A divided court of appeals vacated and re-

manded for an evidentiary hearing on respondent’s

claim that his plea was involuntary.’ The panel ma-

jority held that since the claim that respondent’s

plea had been induced by threats and promises was

“based on alleged occurrences outside the record”

(App. A, infra, p. 5a), it was compelled to conclude

that a hearing was required under controlling Ninth

Circuit precedents.° The court acknowledged, how-

‘The court of appeals agreed with the district court that

respondent’s claim of an illegally obtained confession was

foreclosed by his guilty plea (see McMann Vv. Richardson,

397 U.S. 759) and that the record of respondent’s Rule 11

proceeding conclusively showed that he was competent to plead

despite his narcotics addiction (App. A, infra, pp. 2a-4a).

The court had initially affirmed the district court’s order

in its entirety on March 26, 1976. On July 9, 1976, however,

the court of appeals granted rehearing sua sponte, withdrew

its earlier opinion, and issued a revised decision.

’ E.g., Jones V. United States, 384 F. 2d 916, 917; Castro v.

United States, 396 F. 2d 345, 348 (en banc) ; Reed v. United

States, 441 F. 2d 569, 572-573.

10

ever, that the evidentiary hearing to be held on re-

mand would be a “meaningless waste of time” (id.

at 14a), and it candidly admitted that, if it had been

free to so do, it would have followed the decisions

of other circuits that have held that “the accuracy

and truth of an accused’s statements in a Rule 11

proceeding in which his guilty plea is accepted are

‘conclusively’ established by the proceeding, unless

and until he makes some reasonable allegation why

this should not be so” (id. at 6a). As the court re-

marked (id. at 7a, 14a):

It is a strange legal concept which permits a

convict to escape the consequences of his sentence

by alleging an illegal conspiracy between himself

and his lawyer, which brazenly contradicts the

solemn and commemorative record made by the

judge, counsel and the convict at the time of the

Rule 11 hearing. Perhaps this case presents a

record which will attract the attention of the

Supreme Court. The conrlict between the cir-

cuits should be settled.

Judge Wright dissented. Finding the decisions re-

lied on by the majority to be distinguishable, he con-

cluded that a prisoner’s allegation in a Section 2255

motion cannot be considered to raise issues “outside

this record” when “it is simply a contradiction of the

representation made at the Rule 11 proceeding,” and

that reference to the files and records in this case

conclusively resolved all of respondent’s allegations

against him (id. at 25a, 28a).

il

REASONS FOR GRANTING THE PETITION

The court of appeals did not order an evidentiary

hearing in this case because it believed that respond-

ent’s cl ims were credible or that a hearing was re-

quired in the interest of justice. Rather, despite its

awareness that each of respondent’s present allega-

tions was wholly inconsistent with prior statements

he had made at his guilty plea proceeding, the court

remanded because it was unable to conclude that “the

files and records of the case conclusively show that

the prisoner is entitled to no relief.” 28 U.S.C. 2255.

It did so “[w]ith great reluctance” and with the ex-

pressed expectation that the hearing on remand

would be “a meaningless waste of time” (App. A,

infra, p. 14a).

The court of appeals’ reading of Section 2255

squares neither with the plain language of that stat-

ute nor with common sense. Moreover, the question

whether an evidentiary hearing must be held when

the claims in a motion to vacate sentence do nothing

more than contradict statements the prisoner has

previously made in court at the time of-his guilty

plea is an important one. The number of collateral

attacks on such convictions is large, and evidentiary

hearings on prisoner claims have occupied an in-

creasingly larger share of the scarce time and re-

sources of the district courts and United States At-

torneys. The circuits are in disarray as to the proper

standards to be applied in assessing the need for an

evidentiary hearing in such circumstances, and this

12

Court should accept the invitation of the court of

appeals to resolve the problem.

1. A guilty plea is “a grave and solemn act’ that

is “accepted only with care and discernment” (Brady

v. United States, 397 U.S. 742, 748); it is not a trifle

to be offered and revoked on the basis of momentary

appraisals of tactical advantage. With due recogni-

tion of the importance and solemnity of a plea of

guilty to a crime, Rule 11 of the Federal Rules of

Criminal Procedure mandates a procedure that must

be followed in order to assure that a defendant’s plea

is voluntary and not the product of threats or prom-

ises, and the Court in McCarthy v. United States,

394 U.S. 459, has ruled that any deviation from these

requirements (at least as they read prior to the 1975

amendments to Rule 11) allows the defendant to

withdraw his plea and to plead anew.

One of the prime motivations behind the provisions

of Rule 11 and the prophylatic rule announced in

McCarthy was to require the compilation of a de-

tailed record at the time of the plea in order to pre-

clude collateral attacks upon the conviction. As the

Court noted in McCarthy (394 U.S. at 472):

Our holding that a defendant whose plea has

been accepted in violation of Rule 11 should be

afforded the opportunity to plead anew not only

will insure that every accused is afferded these

procedural safeguards, but also will help reduce

the great waste of judicial resources required to

process the frivolous attacks on guilty plea con-

victions that are encouraged, and are more dif-

13

ficult to dispose of, when the original record is

inadequate.

The court of appeals’ interpretation of Section

2255 ignores these considerations. The transcript

of the Rule 11 proceeding unquestionably is part of

the files and records in a case. If a defendant’s own

remarks at that proceeding unambiguously rebut the

claims subsequently made in his motion to vacate his

sentence, we submit that the “files and records * * *

conclusively show” that he is entitled to no relief

and that his motion may therefore be summarily

denied. Before a hearing must be scheduled on such

claims, a prisoner should at least be obliged to fur-

nish a plausible explanation for his contrary repre-

sentations at the time that his plea was accepted.

2. The problem illustrated by this case is not

merely of academic importance. With the enormous

rise in the number of criminal prosecutions and guilty

pleas in the federal courts in recent years, there has

been a corresponding annual increase in the volume

of collateral attacks. In 1966, only 863 motions to

vacate sentence were filed by federal prisoners. By

1974 this number had jumped to 1,822; in 1975,

1,690 motions were submitted under Section 2255;

and in the first half of 1976, 839 such motions were

filed. Semi-Annual Report of the Director, Adminis-

trative Office of the United States Courts 16 (1976).°

* All figures are for the fiscal year. Preliminary data indi-

cate that 1,693 motions were filed in fiscal year 1976. Prelim-

inary Annual Report of the Director, Administrative Office

of the United States Courts 94 (1976).

14

An evidentiary hearing in these cases imposes a

substantial burden on the district courts as well as on

the United States Attorneys—a burden that is wholly

disproportionate to the number of meritorious claims.

Such hearings frequently require the government to

investigate events that occurred, as in this case, many

years earlier and involve allegations of private com-

munications that are often difficult to disprove.

When a defendant has previously denied the exist-

ence of threats or promises in court, it is not un-

reasonable to require him to do more than repudiate

such statements before this legal machinery is set in

motion. Moreover, while the decision to produce the

prisoner at an evidentiary hearing rests in the sound

discretion of the district court, production will be the

rule rather than the exception in these cases, because

the disputed issues of fact will invariably relate

to incidents in which he personally participated.

United States v. Hayman, 342 U.S. 205, 223. By con-

ferring a temporary furlough from behind the prison

walls upon any prisoner who alleges, without regard

to his prior statements on the matter, that his plea

was induced by “threats” or “promises,” the decision

below has created a major ‘ncentive for such spur-

ious claims.’

* This problem may be mitigated to some extent by the re-

quirement in the new Rules Governing 28 U.S.C. § 2255 Pro-

ceedings for the United States District Courts, effective Feb-

ruary 1, 1977, that all future motions to vacate sentence be

under oath (Rule 2(b)), and by the recent amendments to

Rule 11, Fed. R. Crim. P., which provide that a defendant’s

answers at his guilty plea proceeding may also be taken under

re

15

8. As the court of appeals acknowledged (App. A,

infra, p. 6a), the circuits have disagreed sharply over

the need for an evidentiary hearing on allegations in

a motion to vacate sentence that are nothing more

than bare contradictions of the prisoner’s statements

at his Rule 11 proceeding. Some, like the court below,

hold that a hearing is always required in such cir-

cumstances if the motion states a claim on which re-

lief may be granted.* Others have held that a hearing

is not required.’ And still others have articulated an

intermediate approach, mandating an evidentiary

hearing on the prisoner’s claims if he provides a rea-

sonable explanation why he should be allowed to de-

part from the apparent truth of his earlier state-

oath (Rule 11(c) (5)). Although some prisoners may hesitate

before swearing to a false statement, especially one that con-

tradicts a prior remark they made under oath (see 18 U.S.C.

1623(c)), the deterrent effect of these changes is speculative

and is unlikely to be substantial in the case of prisoners who

are serving long prison terms.

® United States v. Simpson, 436 F. 2d 162, 165-166 (C.A:

D.C.) ; United States v. McCarthy, 433 F. 2d 591, 592-594

(C.A. 1); Trotter v. United States, 359 F. 2d 419, 420 (C.A.

2); Micklus v. United States, 537 F. 2d 381, 382-383 (C.A. 9) ;

see also cases cited n. 5, supra. The Third Circuit agrees,

except perhaps if the Rule 11 proceeding expressly rebuts

the possibility that the defendant was told to respond nega-

tively to the district court’s inquiry as to whether threats or

promises had been made to induce his plea. United States v.

Valenciano, 495 F. 2d 585, 587 (C.A. 3); Paradiso v. United

States, 482 F. 2d 409, 413 (C.A. 3). See also United States v.

Hawthorne, 502 F. 2d 1183 (C.A. 3).

* Drake v. United States, 439 F. 2d 1319, 1320-1321 (C.A.

6); Moody v. United States, 497 F. 2d 359, 362 (C.A. 7);

Faulisi v. Daggett, 527 F. 2d 305, 310 (C.A. 7).

16

ments ” or if the allegations in his motion go beyond

matters covered in the Rule 11 proceeding or are

supported by credible affidavits of other persons.”

Our review of these disparate decisions indicates

that respondent would have been accorded an eviden-

tiary hearing on his motion to vacate sentence in five

circuits and would have been denied a hearing in

six circuits. Theve is no justification for such di-

versity on so basic and recurring a problem in the

administration of the criminal laws, and this Court

should resolve the conflict.”

” Crawford Vv. United States, 519 F. 2d 347, 350 (C.A. 4),

certiorari denied, 423 U.S. 1057; Hedman v. United States,

527 F. 2d 20, 22 (C.A. 10).

™ Matthews Vv. United States, 533 F. 2d 900, 902-903 (C.A.

5), pending on petition for a writ of certiorari, No. 76-629;

Dugan Vv. United States, 521 F. 2d 231, 233 (C.A. 5); United

States v. Williams, 536 F. 2d 247, 250 (C.A. 8).

% As the conflict among the lower courts evidences, this

Court has never explicitly addressed the question presented

here. Although the court of appeals found support for its view

in Fontaine v. United States, 411 U.S. 213, Fontaine involved

a claim that the defendant’s guilty plea had been the product

of, inter alia, a severe physical and mental illness, and the

claim was documented by medical records tendered in support

of the motion. As the Court had previously held in Sanders v.

United States, 373 U.S. 1, 19, a defendant’s assertion that he

was mentally incompetent at the time of his guilty plea can

never be conclusively refuted by his prior statements at the

Rule 11 proceeding, “[{h]Jowever regular the proceedings at

which he * * * pleaded guilty might appear from the tran-

script.” Although remanding for a hearing on the prisoner’s

claims, the Court in Fontaine remarked that “[w]e need not

take issue with the Government’s generalization that when a

defendant expressly represents in open court, without counsel,

oT gee —

17

4. The Court has recently granted certiorari in

a proceeding involving a collateral attack on a state

conviction raising issues closely related to those pre-

sented here. Allison v. Blackledge, 533 F.2d 894

(C.A. 4), certiorari granted, No. 75-1693, October

4, 1976, involves a state defendant who alleged in

a petition for federal habeas corpus relief that his

plea of guilty to robbery was involuntary because it

had been induced by his attorney’s false representa-

tions that he would only receive a ten-year prison

sentence. Although the allegations in the petition

were contradicted by the defendant’s sworn state-

ments at his guilty plea proceeding, he contended

that he “ ‘had been instructed [by his attorney] to

answer the questions [falsely] so that the Court

would accept the guilty plea.’” 533 F. 2d at 896.

The district court summarily dismissed the petition,

but the court of appeals reversed and remanded with

instructions to hold an evidentiary hearing on the

defendant’s claims (id. at 897):

that his plea is voluntary and that he waived counsel volun-

tarily, he ‘may not ordinarily’ repudiate his statements to the

sentencing judge.” 411 U.S. at 215.

Similarly, in two cases involving pre-McCarthy guilty pleas,

Machibroda v. United States, 368 U.S. 487, and Sanders Vv.

United States, supra, the prisoners either set forth detailed

factual allegations in support of their motions (Machibroda

v. United States, supra, 368 U.S. at 489-490) or claimed

mental incompetence that was supported by evidence in the

record (Sanders v. United States, supra, 373 U.S. at 20).

Neither decision discussed the statements that the defendant

had made at the time that his plea of guilty was accepted by

the district court.

Although Allison alleged an unkept promise or

representation of his attorney, at the time he

pleaded he represented that his attorney had

made no promises or inducements to get him to

plead and that his plea was voluntary. Ordi-

narily Allison would be held to his statement at

the time he entered his plea unless he advanced

a reasonable explanation for his inconsistent al-

legations. Crawford v. United States, 519 F. 2d

347 (4 Cir. 1975). Such an explanation is ad-

vaneed here. Allison alleges that he answered as

he did when he entered his plea because he had

been instructed so to answer in order for the

trial court to accept his guilty plea. Allison is

therefore not foreclosed by the statements he

made in order to effect acceptance of his plea

from subsequently attacking its voluntariness.

While the Court’s decision in Allison may resolve

the question presented here, it may rest on other

grounds—e.g., the adequacy of the state procedure

for accepting a guilty plea; the degree of deference

that a federal court must pay to a state court’s find-

ing of fact under 28 U.S.C. 2254(d); the prisoner’s

allegation that he denied the existence of a promise

under questioning by the court only because he had

been instructed to do so by his counsel; the fact that

the prisoner was questioned under oath—or the issue

may be dealt with in such a fashion as to leave un-

resolved important aspects thereof, such as the appli-

cation of the pertinent principles to motions to vacate

by federal prisoners whose pleas have been accepted

in full compliance with Fed. R. Crim. P. 11. In ei-

ther event, this case will likely afford the Court an

19

excellent vehicle for considering this important ques-

tion to the extent it remains unsettled after Allison.

In sum, while a plea of guilty that is in fact in-

voluntary because induced by threats or promises is,

of course, subject to collateral attack (Machibroda

v. United States, supra, 368 U.S. at 493), a prisoner

who has once denied such influences in a solemn judi-

cial proceeding should be required to do more than

merely contradict those allegations in a Section 2255

motion. The rule announced by the court of appeals

threatens to inundate the district courts with evi-

dentiary hearings that are, to borrow the appellate

court’s own words, a “meaningless waste of time.”

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ROBERT H. BORK,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

KENNETH S. GELLER,

Assistant to the Solicitor General.

SIDNEY M. GLAZER,

FREDERICK EISENBUD,

Attorneys.

JANUARY 1977.

la.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 74-2526

ROBERT MELVIN MAYES, APPELLANT

v8.

GEORGE W. PICKETT, Warden, APPELLEE

[July 9, 1976]

Appeal from the United States District Court

Central District of California

OPINION

Before: WRIGHT, KILKENNY and TRASK, Cir-

cuit Judges.

KILKENNY, Circuit Judge:

Mayes appeals from a district court order denying,

without a hearing, his motion for relief under 28

U.S.C. § 2255.

On May 28, 1969, appellant pleaded guilty under

one count of bank robbery. Two additional counts of

bank robbery were dismissed. He was then sentenced

to fifteen years in prison. No direct appeal was

taken. Two previous § 2255 motions were filed and

both denied without hearing. No appeal was taken

2a

from the denial of the first motion. After the second

denial, an appeal was taken, but dismissed under Rule

12(c), FRAP, for failure to prosecute.

Issues

Appellant raises the following issues:

(1) The plea of guilty was induced by a confession

unconstitutionally obtained.

(2) The plea was involuntary because appellant

lacked the required mental capacity to enter a volun-

tary plea and the court erred in failing to order sua

sponte a determination of mental competency since

it had been advised that appellant was a drug addict.

(3) The plea of guilty was induced by threats and

promises and, therefore, not knowingly and volun-

tarily made.

I.

Appellant’s first contention, although it relates to

his plea, necessarily attacks the validity of his con-

fession which was made prior to the hearing at which

he entered his guilty plea. The Supreme Court has

said:

“, . . [A] guilty plea represents a break in the

chain of events which has preceded it in the

criminal process. When a criminal defendant

has solemnly admitted in open court that he is

in fact guilty of the offense with which he is

charged, he may not thereafter raise independent

claims relating to the deprivation of constitu-

tional rights that occurred prior to the entry of

the guilty plea.” Tollett v. Henderson, 411 U.S.

3a

258, 267 (1973) ; See Mann v. Smith, 488 F.2d

245 (CA 9 1973).

Appellant may not circumvent this rule by an op-

eration that converts a collateral attack on a pro-

ceeding prior to the entry of his plea into a claim that

a plea has been involuntarily coerced. In passing, it

may be noted that in this case, at the Rule 11 hear-

ing, appellant’s counsel told the court that there was

no illegally obtained evidence which might have in-

duced a plea.

II.

Counsel advised the court that appellant was a

heroin addict. At the Rule 11 hearing, the court made

detailed inquiry concerning appellant’s addiction. In

the course of its examination, the court ascertained

that for more than a month prior to the time of hear-

ing, appellant had taken no drugs, and then said:

“ _ . the Court having observed . . . that the de-

fendant . . . [did] not appear to be under the

influence of any medicine, drugs or other sub-

stances which might affect his judgment in any

manner, the Court . . . [found] that the offer

of the plea of guilty . . . [was] voluntary. .. .”

This case is distinguished from Hansford v. United

States, 365 F.2d 920 (CA DC 1966), relied upon by

appellant. Hansford only holds that a competency

hearing is constitutionally required “. . . if it appears

that defendant may be suffering from withdrawal

symptoms during trial.” Jd. at 923. In that case,

the appellant had taken drugs during the lunch break

4a.

on the day of the trial. Here the trial judge care-

fully questioned and closely observed appellant, after

which he made a specific finding that appellant was

not under the influence of drugs and that his plea

was voluntary. Appellant is entitled to no presump-

tion that he was under the influence. For that mat-

ter, in Ybarra v. United States, 461 F.2d 1195 (CA9

1972), we cited with approval Edwards v. United

States, 256 F.2d 707 (CA DC 1958), in which it

seems taken for granted that narcotic withdrawal

symptoms do not affect competency even five days

after the last taking of narcotics.

Since the effect of drug addiction upon competency

was inquired into thoroughly at the Rule 11 hearing

and specific findings were made on the subject we

hold that the record conclusively shows that appellant

was competent and that he is not entitled to another

hearing on the matter. In these circumstances the

court was under no duty to order sua sponte a formal

hearing to determine competency. Certainly, it was

not a failing of counsel not to seek such a hearing.

Ill.

Appellant claims that his plea was not knowingly

and voluntarily made. He bases this claim upon gen-

eral allegations of threats and allegations that his

lawyer told him that not only would two of the three

counts against him be dismissed in exchange for his

plea, but he would also receive a sentence of seven

years and be able to go to the drug center at Forth

Worth, Texas, where he would be cured of his ad-

5a

diction. He also claims that his lawyer told him that

he was very close to the judge and could fix things

up for him.

These claims were raised in appellant’s two pre-

vious motions, both denied. Whether the instant dis-

missal is proper depends upon whether at least one

of the prior adjudications was on the merits. Ac-

cording to Sanders v. United States, 373 U.S. 1

(1963), controlling weight will be given to a denial

of a prior § 2255 motion if (1) the same ground

presented in the subsequent petition was determined

adversely to the applicant on the prior application,

(2) the prior determination was on the merits, and

(3) the ends of justice would not be served by reach-

ing the merits of the subsequent application. Here,

the issues are the same as those raised in previous

motions. Denials of those motions did not rest upon

evidentiary hearings; therefore these denials were

upon the merits only if the files and records con-

clusively show that the prisoner was entitled to no

relief. Sanders, supra at 16.

Unfortunately, we are unable to say that the rec-

ords and files in this case conclusively show that

appellant is entitled to no relief. This is true, even

though the district judge in his interrogation of ap-

pellant and his counsel, went far beyond the require-

ments of then existing Rule 11, FRCrimP. Appel-

lant’s allegations for relief are based on alleged oc-

currences entirely outside the record. In these cir-

cumstances, Jones v. United States, 384 F.2d 916,

917 (CA9 1967), and its progeny such as Reed v.

6a

United States, 441 F.2d 569, 572-573 (CA9 1971);

Lopez v. United States, 439 F.2d 997, 1000 (CA9

1971); the second appeal in Diamond v. United

States, 432 F.2d 35 (CA 9 1970) ; the second appeal in

Jones, 423 F.2d 252, 257 (C.A. 9 1970), cert. denied

400 U.S. 839; Diamond v. United States, 422 F.2d

1313, 1314 (CA 9 1970), cert. denied 397 U.S. 1079;

and Castro v. United States, 396 F.2d 345, 348 (CA9

1968) (in banc), control and require a hearing on

the appellant’s claims.

If we were not acting under the compulsion of

Jones and the other Ninth Circuit authorities just

cited, we would follow Crawford v. United States,

519 F.2d 347, 350 (CA4 1975), and hold that one

of the principal purposes of Rule 11 is to permit

determination with some degree of finality, whether

a plea is voluntarily made and that the accuracy and

truth of an accused’s statements in a Rule 11 pro-

ceeding in which his guilty plea is accepted are “con-

clusively” established by the proceeding, unless and

until he makes some reasonable allegation why this

should not be so. See also Johnson v. Massey, 516

F.2d 1001 (CA5 1975).

Fontaine v. United States, 411 U.S. 213 (1973),

supports our view rather than that of the minority.

There, as here, the petitioner acknowledged that his

plea was given knowingly and voluntarily, that he

understood the nature of the charge and the conse-

quences of the plea, and that he was, in fact, guilty.

Later, he filed a motion to vacate under 28 U.S.C.

§ 2255 on the ground that his plea of guilty had been

Ta

induced by a combination of fear, coercive police

tactics and mental illness. The district judge rea-

soned that since the requirements of Rule 11 had been

met, the collateral attack was per se unavailable say-

ing “. . . The petitioner cannot now be heard to

collaterally attack the record and deny what was

said in open court.” Id. at 214. The court of appeals

affirmed and the Supreme Court reversed saying: “On

this record, we cannot conclude with the assurance

required by the statutory standard ‘conclusively

show’ that under no circumstances could peticioner

establish facts warranting relief under § 2255... .”

It is a strange legal concept which permits a con-

vict to escape the consequences of his sentence by al-

leging an illegal conspiracy between himself and his

lawyer, which brazenly contradicts the solemn and

commemorative record made by the judge, counsel

and the convict at the time of the Rule 11 hearing.’

1 Los Angeles, California; Tuesday, May 27, 1969; 9:30 A.M.

THE CLERK: Item 3, 3747-R-Criminal, United States of

America v. Robert Melvin Mayes, for jury trial.

MR. SIROTA: Alan Sirota appearing for Mr. Mayes. Mr.

Mayes is present in court, your Honor.

MR. REGARDIE: Good morning, your Honor, Arnold

Regardie appearing for the government.

MR. SIROTA: Your Honor, at this time on motion of

the defendant we would like to move to have our former

_ vacated for the purpose of entering a new and different

plea.

THE COURT: All right. I wili take that matter up in

just a moment, Mr. Sirota.

MR. SIROTA: Thank you, your Honor.

[Footnote continued on page 8a]

8a

+ [Continued]

(The Court gave attention to other matters on the call,

after which the following further proceedings were had

herein :)

THE COURT: Aill right, Mr. Sirota.

MR. SIROTA: Yes, your Honor, we would like to change

our plea to Count Three of the present indictment.

THE COURT: You have heard your counsel, Mr. Mayes.

Is that your desire?

THE DEFENDANT: Yes, sir.

THE COURT: Before doing that, I want to go over some

matters with you, and I do now want to again advise you that

you have a constitutional right to a speedy and public trial

by jury, to see and hear the evidence and cross examine wit-

nesses against you, to the process of this court to compel

the attendance of witnesses in your favor and the assistance

of counsel at al] stages of the proceedings. Do you understand

that?

THE DEFENDANT: Yes, sir.

THE COURT: That you are not required to prove your

innocence but it is the duty of the government to prove by

competent evidence your guilt beyond a reasonable doubt.

Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: And you understand that by pleading

guilty you are in fact waiving those rights?

THE DEFENDANT: Yes, sir.

THE COURT: Is it your desire to waive those rights?

THE DEFENDANT: Yes, sir.

THE COURT: Have you told your counsel the whole story

concerning the events surrounding the facts which are set

forth in the indictment without concealing any facts from him

at all?

THE DEFENDANT: Yes, sir.

THE COURT: And have you told your attorney all of

the facts and circumstances surrounding any statements, con-

fession or other evidence obtained by you from anyone?

THE DEFENDANT: Yes, sir.

[Footnote continued on page 9a]

9a

THE COURT: Has your attorney advised you of the

nature of the charges against you and any possible defenses

that you might have?

THE DEFENDANT: Yes, sir.

THE COURT: Have you been advised of the maximum

penalty?

THE DEFENDANT: Yes, sir.

THE COURT: What is it?

THE DEFENDANT: Twenty years, I believe.

THE COURT: All right, do you want to state it to him,

Mr. Regardie?

MR. REGARDIE: Yes, your Honor. It is twenty years

and/or a fine of $5,000.

THE COURT: Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Do you want your plea to stand?

THE DEFENDANT: Yes, sir.

THE COURT: Have there been any threats made against

you or any member of your family now that compel you to

offer your piea of guilty at this time?

THE DEFENDANT: No, sir.

THE COURT: Has anyone made any promises of len-

iency, any particular sentence, probation or any other in-

ducement of any kind for you to plead guilty?

THE DEFENDANT: No, sir.

THE COURT: Has your lawyer told you what sentence

the Court would impose upon a plea of guilty to this charge?

THE DEFENDANT: No, sir.

THE COURT: Is yuur plea of guilty entirely free and

voluntary?

THE DEFENDANT: Yes, sir.

THE COURT: Mr. Mayes, it is charged in the indictment

that on or about January 10 ——.

MR. SIROTA: Excuse me, your Honor. It is Count Three,

sir.

THE COURT: Count Three?

MR.SIROTA: Yes, sir.

THE COURT: Itis charged that:

“On or about April 3, 1969, in Los Angeles County,

within the Central District of California, defendant Rob-

[Footnote continued on page 10a]

* [Continued]

ert Melvin Mayes, by force and violence and by intimida-

tion, knowingly and willfully took from teller Julia

Clauser, $612, belonging to, and in the care, custody,

control, management and possession of Security Pacific

National Bank, Wilton-Hollywood Branch, 5701 Holly-

wood Boulevard, Los Angeles, California, a national bank,

a member bank of the Federal Reserve System and a bank

whose deposits were insured by the Federal Deposit In-

suranee Corporation.”

Mr. Mayes, are you pleading guilty to that charge because

you are in fact guilty of those events in the indictment?

THE DEFENDANT: Yes.

THE COURT: On April 3, 1969 were you in the Security

Pacific Bank at 5701 Hollywood Boulevard?

THE DEFENDANT: No, sir.

THE COURT: You were not there?

THE DEFENDANT: I was there but I was not in the

bank.

THE COURT: Well, did you take from Julia Clauser

$612?

MR. SIROTA: May I explain, your Honor?

THE COURT: All right.

MR. SIROTA: There is another defendant who has al-

ready been prosecuted and taken care of. Mr. Mayes, drove

the getaway car of this robbery.

THE COURT: Who is the co-defendant—who is the other

man?

MR.REGARDIE: Armando Achoa.

THE COURT: Were you there with Mr. Achoa when he

entered the bank at 5701 Hollywood Boulevard, Los Angeles,

California?

MR. SIROTA: Can we have a minute, your Honor?

THECOURT: Allright.

(Brief pause.)

MR. SIROTA: Fine, your Honor. We have cleared up the

situation with regard to the name. I don’t believe—as we

reviewed the statement, Mr. Mayes didn’t know his name. This

[Footnote continued on page 11a]

lla

1 [Continued]

is the first time that we have really understood what his

name was. There was another individual involved.

THE COURT: On April 3, 1969 were you with some other

individual?

THE DEFENDANT: Yes, sir.

THE COURT: At the Security Pacific National Bank,

Wilton-Hollywood Branch, 5701 Hollywood Boulevard?

THE DEFENDANT: Yes, sir.

THE COURT: At the time that you went there, did you

know that the individual who entered the bank was going

to rob the bank?

THE DEFENDANT: Yes, sir.

THE COURT: Did you go with that purpose in mind to

that bank?

THE DEFENDANT: Yes, sir.

THE COURT: Who was that other individual?

THE DEFENDANT: I don’t know who it was, sir.

THE COURT: What name do you know him by?

THE DEFENDANT: Mike.

THE COURT: Mike?

THE DEFENDANT: Yes, sir.

THE COURT: All right.

Mr. Mayes, do you know of any reason why the Court should

not accept your plea of guilty?

THE DEFENDANT: Nosir.

THE COURT: Are you presently under a doctor’s care?

THE DEFENDANT: No, sir.

THE COURT: Have you been taking any medicines or

drugs regularly?

THE DEFENDANT: No, sir.

THE COURT: Have you taken any medicines, drugs, pills

or any alcoholic beverages today ?

THE DEFENDANT: No, sir.

THE COURT: Have you ever been under psychiatric care

of any kind?

THE DEFENDANT: No, sir.

[Footnote continued on page 12a]

i223

* [Continued]

THE COURT: Do you understand that all that is left

in your case is the imposition of sentence, which may include

imprisonment?

THE DEFENDANT: Yes, sir.

THE COURT: Counsel, have you advised the defendant of

any evidence, statement or confession the government may

have?

MR. SIROTA: May I inform the Court? There are state-

ments as to all three counts. They were obtained by the FBI

after signed waivers and the defendant is aware of those

waivers and the statements.

THE COURT: Is the defendant pleading guilty because

of any illegally obtained evidence in the possession of the

government?

MR. SIROTA: No illegally obtained evidence in the pos-

session of the government, your Honor.

THE COURT: Has the defendant told you anything about

medications, drugs or other actions?

MR. SIROTA: Nothing to that extent, your Honor. How-

ever, I should inform the Court that Mr. Mayes is an addict of

heroin, and I did inform him of the fact that there is a possi-

bility of hospitalization for his cure of narcotic addiction.

THE COURT: When was the last time you had heroin,

Mr. Mayes?

THE DEFENDANT: April.

THE COURT: April of this year?

THE DEFENDANT: Yes, sir.

THE COURT: All right.

Mr. Mayes, you understand the statement of your counsel

that that is not any promise made to you for pleading guilty,

that it is no promise of any kind by your counsel? Do you

understand that?

THE DEFENDANT: Yes, sir.

THE COURT: The determination of what the sentence

may be or what the disposition of the case might be in terms

of any possible addiction that you might have is up to the

Court after a probation report.

THE DEFENDANT: Yes, sir.

THE COURT: And there is no promise made to you by

anyone, and if there has been any promise made to you, I

13a

am telling you now that there can be no promise made to you

concerning a plea of guilty. Do you understand that?

THE DEFENDANT: Yes, sir, I understand.

THE COURT: Do you want your plea of guilty to stand?

THE DEFENDANT: Yes, sir.

THE COURT: Mr. Sirota, have you made any indication

to the defendant what sentence the Court might impose?

MR. SIROTA: No, sir. I said that the maximum sentence

was twenty years, and I informed him of the possibility of

the hospitalization and informed him of the possibility of the

various sections of Section 4208 all the way down the line.

THE COURT: Do you know of any reason why the Court

should not accept this plea of guilty from your client?

MR. SIROTA: No, sir.

THE COURT: Mr. Mayes, do you feel you have had

sufficient time to discuss this matter with Mr. Sirota before

entering your plea of guilty today?

THE DEFENDANT: Yes, sir.

THE COURT: Are you satisfied with the representation

of Mr. Sirota in this case?

THE DEFENDANT: Yes, sir.

THE COURT: Are you pleading guilty to Count Three

because you have been promised disposition of the other

counts?

THE DEFENDANT: Yes, sir.

THE COURT: Is that why you are pleading guilty?

THE DEFENDANT: Yes, sir.

THE COURT: Why are you pleading guilty to Count

Three?

THE DEFENDANT: Iam guilty of it.

THE COURT: The Court, having questioned the defend-

ant and his counsel on the offer of his plea of guilty, the de-

fendant and his counsel having advised the Court that they

have conferred on all aspects of the charge against the de-

fendant, and any defenses that he may have, and the Court

having observed the defendant in making his answers, his

demeanor and manner while answering questions, his intelli-

gence and attitude, and the Court having observed that the de-

fendant does not appear to be under the influence of any

medicine, drugs or other substances which might affect his

l4a

Perhaps this case presents a record which will attract

the attention of the Supreme Court. The conflict be-

tween the circuits should be settled.

With great reluctance, we vacate the judgment be-

low and remand for what is obviously a meaningless

waste of time hearing. Our previous opinion dated

March 26, 1976, is withdrawn.

However, if the district court should conclude that

the judgment of conviction and sentence be set aside,

it should also consider the reinstatement of the two

counts of the indictment which were dismissed.

judgment in any manner, the Court finds that the offer of the

plea of guilty of the defendant Robert Melvin Mayes to Count

Three of the indictment has a factual basis, is free of any

coercive influence of any kind, is voluntarily made with full

knowledge of the charge against him, that there have been

no promises of any kind made to him by anyone and no

threats or coercion have been exerted upon him in any manner.

It is ordered that the plea of the defendant Robert Melvin

Mayes to Count Three of the indictment be accepted and

entered. The matter is referred to the probation officer for

presentence investigation and report and continued to June

23, 1969.

MR. SIROTA: May it please the Court—

THE COURT: Yes.

MR. SIROTA: On that day, that is the day that I am on

the panel, and I also have two other sentencing matters on

that day. It is going to be very hectic.

THE COURT: That is all right. We will wait for you,

Mr. Sirota.

MR. SIROTA: Thank you, your Honor.

THE COURT: June 23, 1969 at 2:00 P.M. You are to

return at that time, Mr. Mayes. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: All right, thank you.

MR.SIROTA: Thank you, your Honor.

?

l5a

WRIGHT, Circuit Judge, concurring and dissenting:

I concur in Parts I and II of the majority opinion

and dissent from the third and sixth paragraphs of

Part III. I would affirm the district court’s denial of

the petition without hearing. .

The law of this circuit on the issue presented in

the majority’s Part III is far from clear. Yet I do

not believe that Jones v. United States, 384 F.2d

916 (9th Cir. 1967), and its progeny compel the re-

sult reached by the majority here. The rule of law

announced in Jones is a good one, but is simply inap-

plicable to the facts before us. If I misinterpret Jones

and, if its rule does apply to these facts, then I agree

with the majority that it is a “strange legal concept”

in need of reevaiuation.

Title 28 U.S.C. § 2255 states in relevant part:

Unless the motion and the files and records of

the case conclusively show that the prisoner is

entitled to no relief, the court shall cause notice

fof the petition] to be served upon the United

States attorney, grant a prompt hearing there-

on, determine the issues and make findings of/

fact and conclusions of law with respect thereto.

See Fontaine v. United States, 411 U.S. 2138, 215

(1973); Sanders v. United States, 373 U.S. 1, 15-

16 (1963).

In remanding for an evidentiary hearing on the

voluntariness of petitioner’s plea, the Fontaine Court

stated, 411 U.S. at 215:

164

We need not take issue with the Government’s

generalization that when a defendant expressly

represents in open court . . . that his plea is

voluntary ... he “may not ordinarily” repudi-

ate his statements to the sentencing judge.

The Court was simply unable to conclude on the facts

before it* “that under no circumstances could the

petitioner establish facts warranting relief under

§ 2255. .. .” Id.

I read Fontaine as instructing district judges to

give full consideration, including an evidentiary hear-

ing, to any petition which has any discernible merit.’

However, while district judges should be receptive to

Section 2255 petitions, the plain language of that

section admonishes them not to waste valuable time

and energy holding meaningless hearings on merit-

less claims. See Austin v. United States, 408 F.2d

808, 812 (9th Cir. 1969).

The “conclusively shows” clause of Section 2255

cannot be reasonably interpreted in a vacuum, but

must be interpreted in light of the requirements of

Rule 11. In McCarthy v. United States, 394 U.S.

1In Fontaine, 411 U.S. at 214-15, petitioner described

alleged physical abuse and illness caused by a recent gun-

shot wound. The record tended to support, rather than con-

tradict, his allegations.

2“TT]}here must be a hearing when[ever] the allegations

of the petition make out a possibly fatal infection of the

plea... .” Smith v. Wainwright, 373 F.2d 506, 507 (5th Cir.

1967), quoting Carpenter Vv. Wainwright, 372 F.2d 940, 942

(5th Cir. 1967).

17a

459, 472 (1969), the Supreme Court required that

“district judges take the few minutes necessary to

inform [defendants] of their rights and to determine

whether they understand the action they are taking.”

By this procedure it sought, inter alia, to

reduce the great waste of judicial resources re-

quired to process the frivolous attacks on guilty

plea convictions that are encouraged . . . when

the original record is inadequate.

Id. The Court in other decisions mandated additional

safeguards for similar reasons. See Santobello v. New

York, 404 U.S. 257 (1971); Brady v. United Siates,

397 U.S. 742 (1970); Boykin v. Alabama, 395 U.S.

238 (1969). The requirements specified in those cases

are now included in the present Rule 11.

In order to give some effect to the painstaking in-

quiry conducted under Rule 11, the record made of

it should be presumed correct unless there are specific

reasons for not doing so. Cf. 28 U.S.C. § 2254(d);

McMann v. Richardson, 397 U.S. 759, 767-74 (1970) ;

United States ex rel. Rays v. Rundle, 428 F.2d 1401,

1403 (3rd Cir. 1970).

If a petitioner’s allegations are completely outside

the record,’ or are merely rebutted by recorded state-

ments of the judge* or counsel,’ the facts are in

issue and a hearing is ordinarily required. This is so

’ Jones VY. United States, 384 F.2d 916 (9th Cir. 1967).

* Diamond Vv. United States, 482 F.2d 35 (9th Cir. 1976).

5’ Reed v. United States, 441 F.2d 569 (9th Cir. 1971).

18a

because, even though a petitioner’s allegations con-

cerning “the voluntariness of his confession may be

baseless . . . we are obliged to treat them as true”

if we are to dismiss the petition without calling for a

return and without a hearing. Bell v. Alabama, 367

F.2d 243, 246 (5th Cir. 1966).

We need not always treat those allegations as true.

There is a presumption that the petitioner personally

spoke truthfully at the Rule 11 proceeding. Thus,

no evidentiary hearing is required “when [peti-

tioner’s] allegations merely [contradict] his earlier

statements.” Hedman v. United States, 527 F.2d 20,

22 (10th Cir. 1975). See Fontaine v. United States,

411 U.S. 213, 215 (1973) (implication); Jones v.

United States, 423 F.2d 252, 255-56 (9th Cir. 1970)

(dictum) ;* Crawford v. United States, 519 F.2d 347,

350 (4th Cir. 1975); Bryan v. United States, 492

F.2d 775, 780 (5th Cir. 1974) (en banc); United

States v. Huffman, 490 F.2d 412, 413 (8th Cir.

1973). Cf. Cancino v. Craven, 467 F.2d 1243, 1246

(9th Cir. 1972) (implication) .’

*In Jones II, 423 F.2d at 255-56, we said:

“Full disclosure makes direct appellate review mean-

ingful. It also reduces the number and difficulty of subse-

quent collateral attacks. A full record of the [plea]

agreement, and of the defendant’s understanding of it,

limits the matters subject to challenge.”

(Footnote omitted.)

*In Cancino, involving a petition by a state prisoner, we

remanded for an evidentiary hearing because

[Footnote continued on page 19a]

19a

There can, of course, be no mechanical application

of these principles. “Each case must be determined

on its own facts.” Huffman, supra, 490 F.2d at 414,

citing Fontaine and Machibroda v. United States, 368

U.S. 487, 494-95 (1962). Comparing the facts of

Jones and its progeny with the facts before us, I am

convinced that Mayes’ petition does no more than

contradict his solemn statements at the Rule 11 pro-

ceeding, and that an evidentiary hearing on the mat-

ters raised in his petition would be an exercise in

futility. If ever there were a case to breathe life into

the “conclusively shows” clause of Section 2255, this

is it. If a hearing is required in this case, the “con-

clusively shows” language may just as well be ignored

in this circuit.

In Jones v. United States (Jones I), 384 F.2d 916,

917 (9th Cir. 1967), petitioner

alleged that his guilty plea was induced by co-

ercive in-custody interrogation without counsel,

threats to himself and his family, and a promise

of leniency.

The district court in Jones I “conducted the inquiry

contemplated by [then] Rule 11... .” Jd. This court

ordered that an evidentiary hearing be held since the

petition “contained factual matters outside the record

. .. which cannot be conclusively resolved by reference

* [Continued]

“t]he record consisted of the brief exchange between

the prosecutor and the defense attorney, and Cancino’s

ten words. It did not contradict Cancino’s averments.”

467 F.2d at 1246.

to that record.” Id. The Rule 11 record was only

“ ‘evidential on the issue of voluntariness . . . not

conclusive.’ ” Id., quoting United States ex rel. Mc-

Grath v. LaVallee, 319 F.2d 308, 314 (2nd Cir.

1963).

The court in Jones I did not indicate what matters

were discussed at the Rule 11 proceeding. The law

of the case then is simply that a hearing must be

held if the petition sets forth factual matters outside

the record. Jones I does not help us decide when fact-

ual allegations should be regarded as “outside the

record,” and when not,

Upon remand of Jones I, the district court held a

hearing and denied relief. We affirmed. Jones v.

United States (Jones II), 423 F.2d 252 (9th Cir.

1970). In Jones II we quoted relevant portions of

the record of the Rule 11 proceeding, 423 F.2d at

254. From that it appeared that Jones raised at least

two factual matters not specifically covered during

the Rule 11 proceeding. First, he alleged that threats

were made against his family. The record shows his

denial that “any force or threats of any sort” had

induced his guilty plea, but there is no specific ref-

erence in the record to threats made against his

family.

Second, Jones alleged the nondisclosure of a plea

agreement. The record shows that both Jones and his

counsel denied the existence of any “deal” with the

United States Attorney. However, the Jones II court

correctly characterized the Rule 11 proceeding as

“ritualistic.” While the stock questions were asked,

the district court made no significant attempt to in-

21a

quire into the defendant’s state of mind. The court

did not inform the defendant that a disclosed or un-

disclosed plea agreement was not binding upon the

court. There is no indication that Jones was inde-

pendently aware of its nonbinding nature.

While the Jones I court did not make it clear why

an evidentiary hearing would be required, it is ap-

parent from Jones II that the record failed to demon-

strate conclusively the lack of merit of either of the

two allegations mentioned above.

In Castro v. United States, 396 F.2d 345 (9th Cir.

1968) (en banc), petitioner alleged that: (1) the

court failed to inform him of the allowable range of

punishment, and (2) he believed he could not be

imprisoned for more than six years. Attached to his

petition was an affidavit from trial counsel stating

he had erroneously advised Castro that he would be

sentenced for no more than six years. (He received

an eight year sentence. )

At the Rule 11 proceeding, the district court merely

determined from defense counsel that he had “fully

explained to his client all the consequences of plead-

ing guilty.” Id. at 347. We properly concluded that

counsel’s general assurance did not even “touch upon

the question of whether counsel misadvised his client,

much less ‘conclusively resolve’ that issue.” Jd. at

348. Therefore, a hearing was required under Joves.

The petitioner in Diamond v. United States, 432

F.2d 35 (9th Cir. 1970), described in great detail

how he had been starved, beaten and abused while

in the custody of the County Sheriff and alleged that,

22a

for “fear of his life,” he was thereby coerced into

pleading guilty. No consideration was given to these

allegations at the Rule 11 hearing. In denying the

petition without hearing, the district court simply

relied on its “observation” of Diamond at arraign-

ment. This court properly remanded for evidentiary

hearing. The court’s general observations in Dia-

mond, like defense counsel’s general assurances in

Castro, did not “touch upon the question” specifically

raised by petitioner, “much less ‘conclusively resolve’

that issue.” 396 F.2d at 348.

In Lopez v. United States, 439 F.2d 997 (9th Cir.

1971), petitioner alleged that defense counsel prom-

ised him a 5-10 year sentence (he received 20 years),

and admonished him not to disclose any “deal” to the

court at the Rule 11 hearing. Lopez also alleged that

shortly before pleading guilty he ::ad been mistreated

in the ‘Psycho Ward’ of the County jail, and had been

given certain drugs.

While certain evidence introduced at the Rule 11

proceeding contradicted his assertions, the record con-

tained nothing which specifically contradicted peti-

tioner’s allegation of an undisclosed promise by the

defense attorney. For this reason alone the remand

was appropriate. Further, petitioner’s allegation that

his counsel had prompted him to lie about the ex-

istence of a plea agreement was not contradicted by

the record.

The petitioner in Reed v. United States, 441 F.2d

569 (9th Cir. 1971), alleged that defense counsel

promised him a lenient sentence under the Youth

23a

Corrections Act. The district court, relying on an

affidavit from defense counsel denying the communi-

cation of any promise to Reed prior to the entry of

his plea, denied the petition without a hearing. We

reversed. While it is unclear from the opinion, there

was apparently no admission by Reed at the Rule

11 proceeding of the absence of a promise by defense

counsel.

It is hazardous to attempt to distill from these cases

a controlling rule or rules but there does seem to be

at least one common thread: In each of the cases dis-

cussed the motions, files and records failed to show

that petitioner’s allegations were svecifically contra-

dicted by statements or admissions made by the de-

fendant personally during or after the Rule 11 pro-

ceeding. Since such specific contradiction is present

in this case, a remand for hearing is unnecessary.

A review of the Rule 11 record, detailed in the

majority’s note 1, shows that the district court an-

ticipated and complied with the requirements of Rule

11 as amended in 1975, even though this proceeding

occurred in 1969. Since, as the majority and I agree,

Mayes was competent to plead at that proceeding,

we must assume that the specific statements, rep-

resentations and admissions made by him at that

hearing were correct.

Mayes’ petition includes the following relevant al-

legations:

Petitioner further alleges that his plea of

guilty was unconstitutionally induced by threats

and promises. Petitioner was coerced into en-

24a

tering a plea of guilty as a result of threats of

and by the Los Angeles city police and the F.B.I.

agents who interrogated him .. . by stating

that if he did not sign a confession and plead

guilty, his wife would be arrested and would

have her baby in the penitentiary... .

In addition to the threats, counsel had stated,

that if Petitioner would plead guilty, two counts

of the three count indictment would be dropped,

and he would receive a small sentence to Fort

Worth, Texas, drug center where he could be

cured.

These allegations can be characterized as follows:

(1) Defense counsel’s promise that upon a plea of

guilty two of the three counts would be dismissed;

(2) Threats by law enforcement officers against his

pregnant wife; and (3) Defense counsel’s promise

that upon a guilty plea petitioner would receive a

“small sentence to Fort Worth, Texas, drug center

where he could be cured.”

The first factual allegation constitutes no ground

for an evidentiary hearing. The agreement was spe-

cifically disclosed at the Rule 11 hearing.* Moreover,

®*THE COURT: Are you pleading guilty to count Three

because you have been promised disposition of the other

counts?

THE DEFENDANT: Yes, sir.

THE COURT: Is that why you are pleading guilty?

THE DEFENDANT: Yes, sir.

THE COURT: Why are you pleading guilty to Count

Three?

THE DEFENDANT: Iam guilty of it.”

25a

as Mayes concedes in his appellate brief, the agree-

ment as made was honored. It is difficult to imagine

how the existence of a plea agreement, fully dis-

closed to the court and honored by the government,

can raise the issue of voluntariness. See Santobello

v. New York, 404 U.S. 257, 260-262 (1971); Benn

v. Eyman, 436 F.2d 1074, 1075 (9th Cir. 1971), and

cases cited; Buckles v. United States District Court,

488 F.2d 85, 86 (5th Cir. 1973).

Petitioner’s second factual allegation, regarding

threats against his wife, is specifically contradicted

by this portion of the Rule 11 record:

THE COURT: Have there been any threats

made against you or any member of your family

now that compel you to offer your plea of guilty

at this time?

THE DEFENDANT: No, sir.

(Emphasis added.) I do not see how Mayes’ allega-

tion can be deemed outside this record when it is

simply a contradiction of the representation made at

the Rule 11 proceeding. As such, it does not con-

stitute a springboard for hearing.

The third allegation, the promise of lenient sentence

and treatment,’ flies in the face of the following por-

tion of Rule 11 record:

*Contrary to the majority’s statement, nowhere in the

petition under review has Mayes alleged either (1) that his

defense counsel told him “he would also receive a sentence of

seven years,” or (2) that “he [the defense attorney] told him

[Mayes] that he was very close to the judge and could fix

things up for him.” (Majority op. 4a-5a.)

[Footnote continued on page 26a]

26a

THE COURT: Has anyone made any prom-

ises of leniency, any particular sentence, proba-

tion or other inducement of any kind for you

to plead guilty.

THE DEFENDANT: No, sir.

THE COURT: Has your lawyer told you

what sentence the Court would impose upon a

plea of guilty to this charge?

THE DEFENDANT: No, sir.

MR. SIROTA [Defense counsel]: ... I

should inform the Court that Mr. Mayes is an

addict of heroin, and I did inform him of the

fact that there is a possibility of hospitalization

for his cure of narcotic addiction.

THE COURT: ... Mr. Mayes, you under-

stand the statement of your counsel that that is

not any promise made to you for pleading guilty,

® [Continued]

According to representations in appellant’s brief, these

allegations were made in earlier petitions but those are not in

the record before us, and should therefore not be considered

by us.

Even if they were considered, I do not see how Mayes could

benefit. The “seven year” allegation is not substantially dif-

ferent from the third allegation made in the petition which

we find in the record. Either version is specifically contra-

dicted by the record of the Rule 11 hearing.

The allegation that defense counsel promised to “fix things

up for him” is the sort of bare allegation which is insufficient

to compel an evidentiary hearing. Diamond v. United States,

432 F.2d 35 (9th Cir. 1970); Meeks v. United States, 427

F.2d 881 (9th Cir. 1970).

27a

that it is no promise of any kind by your coun-

sel? Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: The determination of what

the sentence may be or what the disposition of

the case might be in terms of any possible ad-

diction that you might have is up to the Court

after a probation report.

THE DEFENDANT: Yes, sir.

THE COURT: And there is no promise

made to you by anyone, and if there has been

any promise made to you, I am telling you now

that there can be no promise made to you con-

cerning a plea of guilty. Do you understand

that?

THE DEFENDANT: Yes, sir, I under-

stand.

THE COURT: Mr. Sirota, have you made

any indication to the defendant what sentence

the Court might impose?

MR. SIROTA: No, sir. I said that the maxi-

mum sentence was twenty years, and I informed

him of the possibility of hospitalization and

informed him of the possibility of the various

sections of Section 4208 all the way down the

line.

The district court, to the point of redundancy,

made the defendant aware that sentencing, including

the option of curative treatment, was solely a matter

for the court. Mayes twice represented that he un-

derstood this. He now claims that he did not under-

stand, an obvious example of self-contradiction.

28a

I conclude that “under no circumstances could the

petitioner establish facts warranting relief under

§ 2255. . . .” Fontaine v. United States, 411 US.

213, 215 (1973). All of Mayes’ allegations are “con-

clusively resolved” against him by reference to the

Rule 11 record. Jones I, 384 F.2d at 317. Therefore,

I would affirm.

29a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 74-2526

ROBERT MELVIN MAYES, APPELLANT

v.

GEORGE W. PICKETT, Warden, APPELLEE

Appeal from the United States District Court

Central District of California

JUDGMENT

This cause came on to be heard on the Transcript

of the Record from the United States District Court

for the Central District of California and was duly

submitted.

On consideration whereof, It is now here ordered

and adjudged by this Court, that the judgment of the

said District Court in this Cause be, and the same

hereby is, vacated and remanded. However, if the

district court should conclude that the judgment of

conviction and sentence be set aside, it should also

consider the reinstatement of the two counts of the

indictment which were dismissed.

Filed and entered July 9, 1976.

30a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed Sep. 8, 1976, Emil E. Melfi, Jr., Clerk,

U. S. Court of Appeals]

No. 74-2526

ROBERT MELVIN MAYES, APPELLANT

v.

GEORGE W. PICKETT, Warden, APPELLEE

Appeal from the United States District Court

Central District of California

ORDER

Before: WRIGHT, KILKENNY and TRASK, Cir-

cuit Judges.

Appellee’s petition for rehearing is denied.

3la

APPENDIX D

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

[Filed Jul. 18, 1974, Entered Jul. 23, 1974, Clerk,

U. S. District Court, Central District of California]

No. 73-1332-R

ROBERT MELVIN MAYES, #33668, PETITIONER

v8.

GEORGE W. PICKETT, Warden, RESPONDENT

JUDGMENT AND ORDER DENYING MOTION

Defendant presents for the first time matters

which, if true, were available to him on two previous

occasions in filing motions pursuant to 28 U.S.C.

§ 2255.

Each time piecemeal he adopts the theory of cases

as they are decided by the appellate courts and makes

them a factual basis for his contention.

This Court observed the defendant at the time of

his Rule 11 colloquy and at the time of sentence. No

evidence of drug stupor or withdrawal symptons

was evident. Defendant was coherent, rational and

questioned concerning his plea and was satisfied it

was a voluntary, intelligent and rational plea.

The motion is denied.

The Clerk of the Court is directed to serve a copy

of this order by United States mail upon defendant.

DATED: June 19, 1973

/s/ Manuel L. Real

MANUEL L. REAL

United States District Judge

W 6. 6. sovermmear reierine orrice; 1976 225923 35