Petition — United States v. Timmreck

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n@8-744

—

RORAEL RODAK, JR, CLERK

In the Supremw Court of the United States

OCTOBER TERM, 1978

UNITED STATES OF AMERICA, PETITIONER

Vv.

CHARLES TIMMRECK

PETITION FOR A WRIT OF CERTIORARI TO THE

aa aa STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

KENNETH S. GELLER

Assistant to the Solicitor General

JEROME M. FEIT

KATHERINE WINFREE

Attorneys

Department of Justice

Washington, D.C. 205380

gat.

Page

I cs car ca cascceeddeacoltecaeeiymsdninnesooes 1

Jurisdiction satiate Dhiatnaiomiiaons oi 2

Question presented Dee ee ne 2

Statute and rule involved _...--____ 2

cise co 4

Reasons for granting the petition —...-__»________ 9

Ee EEA ee ET - 22

SIRE ete Yr Sonne a ane eS la

I a Na cece nda atin oe 13a

I cceeccnad . 14a

ETI RE A A Se ee 15a

CITATIONS

Cases:

Bachner v. United States, 517 F.2d 589. 15, ye

Bell v. United States, 521 F.2d 713, cert.

denied, 424 U.S. 918 _.... ee 20

Blackledge v. Allison, 431 U.S. 63 17

Bunker v. Wise, 550 F.2d 1155 _. 19

Canady v. United States, 554 F.2d 203. . 21

Cupp v. Naughten, 414 U.S. 141 12

Davis v. United States, 417 U.S. 333... 9,13

Del Vecchio v. United States, 556 F.2d

SBIR SERRE te Sere ae tae _..... 14-15, 20

Evers v. United States, 579 F.2d 71... 20

Ferguson v. United States, 513 F.2d

ARSE a See NE eer 20

Fontaine v. United States, 411 U.S. 213 13

Cases—Continued Page

Green v. United States, 365 U.S. 301__. 12

Halliday v. United States, 394 U.S. 831 14

Henderson v. Kibbe, 431 U.S. 145 —--- ee

Hill v. United States, 368 U.S. 424 9, 12, 13, 16

Horsley v. United States, No. 77-2297 (3d

Cir. Aug. 28, 1978) nee 19

Howard v. United States, 580 F. 2d 716. 21

Johnson v. United States, 542 F.2d 941,

cert. denied, 430 U.S. 984 — 21

Johnson v. Wainwright, 456 F.2d 1200. 16

Keel v. United States, 572 F.2d 1135, re-

hearing en bane granted, 572 F.2d

1137 .. 21

Machibroda. \ v. United ‘States, 368 US.

487 _ 13

McCarthy v V. _ United States, 394 U. S. ‘459. 8, 10,

McRae v. United States, 540 F.2d 943,

cert. denied, 429 U.S. 1045 staae 20

Richardson v. United States, 577 F. 2d

447, Siesmeiy for cert. pending, No. 78-

5263 . 14

Roberts v. United States, 491 F. 2d 1236 19

Sanchez v. United States, 572 F.2d 210... 19

Sassoon v. United States, 561 F.2d 1154 21

Schriever v. United States, 553 ~=F.2d

1152 | 20

Stone v. Powell, 428 US. 465 | 13

Sunal v. Large, 332 U.S. 174 - 12, 18

United States v. Adams, 566 F, 2d 962 11

United States v. Barker, 514 F.2d 208,

cert. denied, 421 U.S. 1013 —_........ 18

United States v. Boone, 543 F.2d 1090 18

United States v. Clark, 574 F.2d 1357 17

United States v. Del Prete, 567 F.2d 928. 11

Cases—Continued

United States v. Eaton, 579 F.2d 1181...

United States v. Hamilton, 553 F.2d 63,

cert. denied, 434 U.S. 834 0.

United States v. Hart, 566 F.2d 977.

United States v. Jones, 540 F.2d 465,

cert. denied, 429 U.S. 1101 ..

United States v. Journet, 544 F.2d 633.

United States v. Kattou, 548 F.2d 760 _.

United States v. Lambros, 544 F.2d 962,

cert. denied, 430 U.S. 930

United States v. Ortiz, 545 F. 2d 1122 -

United States v. Palter, 575 F.2d 1050...

United States v. Rich, 518 F.2d 980, cert.

denied, 427 U.S. 907... :

United States v. Richardson, 483° F.2d

516 | Yn

United States v. - Rivera-Marquez, 519 F,

2d 1227, cert. denied, 423 U.S. 949 .

United States v. Rodrigue, 545 F.2d 15...

United States v. Scharf, 551 F.2d 1124,

cert. denied, 434 U.S. 824

— States v. Sobell, 314 F.2d 314,

rt. denied, 374 U.S. 857

athe States v. Tursi, 576 F.2d 396

United States v. Walden, 578 F.2d 966.

United States v. Watson, 548 F.2d 1058

United States v. White, 572 F.2d 1007.

United States v. Wolak, 510 F.2d 165.

United States v. Yazbeck, 524 F.2d 641

Van Hook v. United States, 365 U.S. 609

Yothers v. United States, 572 F.2d 1326

Page

Statutes and rules—Continued Page

Comprehensive Drug Abuse Prevention

and Control Act of 1970, Pub. L. 91-

SES, He Be ns tend. 6

Bh Ua eee) 5 4

Be TI te NO newer cecs 6

Sh Ta Been) ee 6

Si Use. See oa 4

i Ve eee 4

SB UBM. TI annie

Federal Rules of Criminal Procedure:

| DS | er eereerenm ee MS

Rae 6h)... aoe 11

Rule 13(¢){1)-(6) a 18

ND en ee ee 12

| | EET re

PD GORY hn osetia 17

Miscellaneous:

1977: Annual Report of the Director of

the Administrative Office of the United

pe , ee ere eS ee 19

Bureau of Prisons Policy Statement 7500-

.48 (January 18, 1978) -................... 6

63 F.RD.S7i CSTE) ...8e 11

In the Supreme Court of the United States

OCTOBER TERM, 1978

No.

UNITED STATES OF AMERICA, PETITIONER

CHARLES TIMMRECK

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH 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 Sixth Circuit in this case.

OPINIONS BELOW

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

la-12a) is reported at 577 F.2d 372. The memo-

randum opinion of the district court (App. D, infra,

15a-23a) is reported at 423 F. Supp. 537.

(1)

JURISDICTION

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

infra, 18a) was entered on June 12, 1978. A petition

for rehearing was denied on August 7, 1978 (App.

C, infra, 14a). On October 26, 1978, Mr. Justice

Stewart extended the time within which to file a

petition for a writ of certiorari to and including

November 16, 1978. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether a defendant may obtain collateral relief

from his conviction under 28 U.S.C. 2255 solely be-

cause the district court violated Rule 11 of the Fed-

eral Rules of Criminal Procedure in accepting his

guilty plea.

STATUTE AND RULE INVOLVED

28 U.S.C. 2255 provides 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 other-

wise subject to collateral attack, may move the

court which imposed the sentence to vacate, set

aside or correct the sentence.

At the time of respondent’s guilty plea, Rule 11 of

the Federal Rules of Criminal Procedures provided:

A defendant may plead not guilty, guilty, or,

with the consent of the court, nolo contendere.

The court may refuse to accept a plea of guilty,

and shall not accept such plea or a plea of nolo

contendere without first addressing the defend-

ant personally and determining that the plea is

made voluntarily with understanding of the na-

ture of the charge and the consequence of the

plea.

Rule 11 now provides in pertinent part:

Advice to Defendant. Before accepting a plea

of guilty or nolo contendere, the court must ad-

dress the defendant personally in open court and

inform him of, and determine that he under-

stands, the following:

(1) the nature of the charge to which the

plea is offered, the mandatory minimum

penalty provided by law, if any, and the

maximum possible penalty provided by law;

and

(2) if the defendant is not represented

by an attorney, that he has the right to be

represented by an attorney at every stage

of the proceeding against him and, if neces-

— one will be appointed to represent him;

(3) that he has the right to plead not

guilty or to persist in that plea if it has al-

ready been made, and he has the right to

be tried by a jury and at that trial has the

right to the assistance of counsel, the right

to confront and cross-examine witnesses

against him, and the right not to be com-

pelled to incriminate himself; and

(4) that if he pleads guilty or nolo con-

tendere there will not be a further trial of

any kind, so that by pleading guilty or nolo

contendere he waives the right to a trial;

and

(5) that if he pleads guilty or nolo con-

tendere, the court may ask him questions

about the offense to which he has pleaded,

and if he answers these questions under

oath, on the record, and in the presence of

counsel, his answers may later be used

against him in a prosecution for perjury or

false statement.

STATEMENT

1. A 19-count indictment filed in the United States

District Court for the Eastern District of Michigan

charged respondent and 21 co-defendants with con-

spiracy to manufacture and distribute, and to possess

with intent to distribute, heroin, cocaine, LSD, and

uther controlled substances, in violation of 21 U.S.C.

846, and with various substantive narcotics offenses,

in violation of 21 U.S.C. 841(a) (1) and 843(b). On

May 24, 1974, pursuant to a plea bargain whereby

the remaining charges against him would be dis-

missed and the government would not prosecute him

for a bail violation, respondent offered to plead guilty

to the conspiracy count of the indictment.

At the outset of the guilty plea proceeding required

by Rule 11 of the Federal Rules of Criminal Proce-

dure, the prosecutor disclosed the existence and terms

of the plea agreement (Tr. 2-3).' The district court

then questioned respondent and determined that he

was not suffering from any physical or mental im-

pairment, that he was fully aware of what he was

doing, and that he understood the constitutional

rights that he would waive by pleading guilty (Tr.

4-7). The court informed respondent that he could

be sentenced to a maximum of 15 years’ imprison-

ment and a $25,000 fine if the plea were accepted,’

but it failed to mention that respondent would also

1“Tr,” refers to the transcript of the May 24, 1974, Rule

11 proceeding. “H.” refers to the transcript of the September

8, 1976, hearing on respondent’s motion to vacate his guilty

plea.

* The pertinent colloquy was as follows (Tr. 7-8) :

THE COURT: Now, if I accept your plea of guilty,

Mr. Timmreck, do you know what the possible conse-

quences of a plea of guilty to Count I of this Indictment

could be in terms of punishment?

THE DEFENDANT: No, sir.

THE COURT: Have you been told that you could

serve as long as 15 years in jail and be subjected to a sub-

stantial fine, and I believe the fine is $25,000. Have you

been told that?

THE DEFENDANT: I have now, yes.

THE COURT: Now you know?

THE DEFENDANT: Yes, sir.

THE COURT: AndI want you to know that while

I don’t know what the sentence will be in your case, I

want you to know what the outer limits might be.

RESPONDENT: Yes, sir.

THE COURT: You understand that?

RESPONDENT: Yes, sir.

be subject to a mandatory special parole term of at

least three years.’

After the court outlined the nature of the charges,

respondent explained his involvement in the conspir-

acy and confessed to his guilt (Tr. 9-14). Respond-

ent acknowledged that he had not been forced or

threatened to plead guilty and that no promises had

been made in exchange for the plea other than those

contained in the plea bargain (Tr. 15). Respondent’s

counsel advised the court that he was satisfied that

there was a factual basis for the plea and that re-

spondent knew “full well the consequences of a guilty

plea * * *” (Tr. 15-16). The court then accepted

8 Section 401(b) of the Comprehensive Drug Abuse Pre-

vention and Control Act of 1970, Pub. L. 91-513, 84 Stat. 1260,

21 U.S.C. 841(b), provides that persons convicted of a viola-

tion of the Act be given a term of “special parole,” in addition

to any other sentence imposed. The special parole term, which

must be at least two, three, or four years in length (depending

on the nature of the offense) and which may be as long as life

(see, e.g., United States v. Walden, 578 F.2d 966, 972 (3d Cir.

1978) ; United States v. Jones, 540 F.2d 465, 468 (10th Cir.

1976), cert. denied, 429 U.S. 1101 (1977); United States vy.

Rivera-Marquez, 519 F.2d 1227, 1228-1229 (9th Cir.), cert.

denied, 423 U.S. 949 (1975) ; United States v. Rich, 518 F.2d

980, 987 (8th Cir. 1975), cert, denied, 427 U.S. 907 (1976) ),

“is separate from and begins after the usual sentence ter-

minates, including any period of supervision. In the event an

individual should violate during the period of supervision

prior to the beginning of the SPT [Special Parole Term], he

will be returned as a violator of the basic period of super-

vision with the SPT still to follow unaffected.” Bureau of

Prisons Policy Statement 7500.43 at 2 (January 18, 1973). If

a defendant violates the conditions of special parole, he is re-

turned to prison to serve the entire special parole term, not

merely the unexpired portion. 21 U.S.C. 841(c).

respondent’s plea of guilty, finding that the plea was

entered voluntarily with a full understanding of its

possible consequences and was supported by a factual

basis (Tr. 16). Thereafter, on September 19, 1974,

respondent was sentenced to 10 years’ imprisonment,

to be followed by five years’ special parole, and a

$5,000 fine.

2. Respondent did not appeal. Approximately two

years after sentencing, on August 10, 1976, respond-

ent moved to vacate his sentence under 28 U.S.C.

2255, alleging for the first time that the district court

had violated Rule 11, Fed. R. Crim. P., by failing to

inform him of the mandatory special parole term at

the time his plea was entered. The motion did not

assert that respondent had actually been unaware of

the special parole provision or that, if he had been

notified of it by the trial judge, he would not have

pleaded guilty.

The district court held a hearing on respondent’s

Section 2255 motion on September 8, 1976. At the

hearing, respondent’s counsel stated that he could not

recall whether he had discussed the special parole

term with respondent prior to entry of his guilty

plea (H. 6-7), but he did acknowledge that, before

a client pleaded guilty, it was his practice to review

with the client the possible sentence that could be

imposed (H. 7). Counsel also admitted that he had

represented to the court at the Rule 11 proceeding

that respondent was fully aware of the consequences

of his plea (H. 10).

The district court denied respondent’s motion to

vacate sentence. Although it agreed that the -record

of the guilty plea proceeding did not reflect that re-

spondent had been told of the mandatory special pa-

role provisions (App. D, infra, 16a), the court con-

cluded that respondent had not been prejudiced by

the omission and that he therefore was not entitled

to collateral relief from his conviction. The court

observed that respondent’s total sentence did not ex-

ceed the maximum sentence that he was informed he

could receive as a result of his guilty plea (id. at

18a). In addition, the court found that respondent’s

plea had been voluntarily entered and that the tech-

nical defect had not resulted in any fundamental un-

fairness (id. at 22a & n.3).

3. The court of appeals reversed and remanded

with instructions to vacate the sentence entered upon

the guilty plea and to allow respondent to plead anew.

Finding that the district court’s ruling was “squarely

contrary” to United States v. Wolak, 510 F.2d 165

(6th Cir. 1975), the court of appeals held that the

mandatory special parole term was a direct conse-

quence of a guilty plea, that the district court had

therefore violated Rule 11 in failing to advise re-

spondent of that consequence of his plea, and that

(relying on McCarthy v. United States, 394 U.S. 459

(1969)) the proper remedy for such noncompliance

was to allow respondent to withdraw the plea (App.

A, infra, la-2a).

The court recognized (App. A, infra, 10a) that

McCarthy involved a direct appeal from a conviction

entered upon a guilty plea and that this Court had

subsequently remarked in Davis v. United States, 417

U.S. 333 (1974), that the failure to comply with the

formal requirements of a rule of criminal procedure

does not warrant collateral relief absent a showing of

‘a fundamental defect which inherently results in a

complete miscarriage of justice’” (417 U.S. at 346,

quoting Hill v. United States, 368 U.S. 424, 428

(1962) ). It further acknowledged that “at first blush

the Rule 11 violation at issue here did not seem to

rise to the level” required to satisfy the Davis test

(App. A, infra, 9a). The court resolved the conflict

by holding that prejudice inheres in every failure to

comply with Rule 11 and that such claims are there-

fore cognizable in a Section 2255 proceeding (id. at

10a). The court concluded (id. at 10a-11a; footnote

omitted) :

We reconcile McCarthy and Davis by holding

that a Rule 11 violation is per se prejudicial and

thus must be a “fundamental defect which in-

herently results in a complete miscarriage of

justice.” We feel that any other reconciling of

the two cases which emphasizes Davis over Mc-

Carthy should come only from the Supreme

Court.

REASONS FOR GRANTING THE PETITION

The court of appeals’ holding that a defendant may

collaterally attack his conviction, years after the

entry of his guilty plea, merely because the district

court failed to comply precisely with the requirements

of Rule 11 of the Federal Rules of Criminal Proce-

dure departs significantly from this Court’s construc-

tion of the scope of relief under the federal habeas

corpus statute (28 U.S.C. 2255) and conflicts with

the rulings of several other circuits. Moreover, the

decision of the court below is of great practical im-

portance because of its broad implications for the

finality of judgments in large numbers of federal

criminal cases. Guilty pleas form the basis for the

substantial majority of federal convictions, and Rule

11 requires the district courts to comply with a series

of procedures, many of which are unnecessary to a

determination of voluntariness, prior to accepting

such pleas. The court of appeals’ virtual elimination

of the requirement that there be a showing of preju-

dice before a violation of Rule 11 may lead to col-

lateral relief will invite defendants to attack pleas

that were knowingly and voluntarily entered, in the

hope that reprosecution would be difficult or impossi-

ble.

1. In McCarthy v. United States, 394 U.S. 459,

472 (1969), the Court held that “a defendant whose

plea has been accepted in violation of Rule 11 [of the

Federal Rules of Criminal Procedure] should be af-

forded the opportunity to plead anew * * *.” The

court of appeals assumed that this ruling, announced

in the context of a direct appeal, was equally appli-

cable to collateral review and that respondent would

therefore be entitled to vacate his conviction under

28 U.S.C. 2255 if the record of his guilty plea pro-

ceeding substantiated his contention that the district

court had violated Rule 11. Since the court below

found that respondent had not been informed of the

mandatory special parole term, which unquestionably

is a “consequence of the plea,” * it concluded that he

must be afforded the opportunity to plead anew (App.

A, infra, 4a).

This decision ignores the essential distinction be-

tween direct and collateral attacks upon a conviction.

Because of the “strong interest in preserving the

finality of judgments,” Henderson v. Kibbe, 431 U.S.

145, 154 n.13 (1977), the crucial question in a pro-

*Respondent’s guilty plea was entered under the 1966

version of Rule 11, which required the district court to deter-

mine that the defendant understood “the consequences of the

plea.” Effective December 1, 1975, Rule 11(c) (1) was amended

to require the court, before accepting a plea of guilty or nolo

contendere, to inform the defendant on the record of “the

mandatory minimum penalty provided by law, if any, and the

maximum possible penalty provided by law * * *.” This

change was intended to eliminate confusion over what is a

direct “consequence” of a guilty plea. As the Advisory Com-

mittee remarked, “[t]he objective is to insure that a de-

fendant knows what minimum sentence the judge must im-

pose and what maximum sentence the judge may impose. This

information is usually readily ascertainable from the face of

the statute defining the crime, and thus it is feasible for the

judge to know specifically what to tell the defendant. Giving

this advice tells a defendant the shortest mandatory sentences

and also the longest possible sentences for the offense to which

he is pleading guilty.” 62 F.R.D. 271, 279 (1974). Hence,

we do not dispute that failure to notify a defendant pleading

guilty to a controlled substance offense of the mandatory spe-

cial parole term would constitute a violation of the new Rule

11. See United States v. Del Prete, 567 F.2d 928, 929 (9th

Cir. 1978). But see United States v. Adams, 566 F.2d 962, 969

(5th Cir. 1978).

ceeding under Section 2255 is not whether an error

may have been committed, as would be the case on

direct review, but whether the “resulting conviction

violates due process.” Cupp v. Naughten, 414 U.S.

141, 147 (1973). Thus, merely because the district

court’s failure to comply with the requirements of

Rule 11 might have permitted respondent to withdraw

his plea if the defect had been raised on direct appeal,

it does not follow that the same relief should be avail-

able on a motion to vacate sentence. The appropriate

inquiry at that point concerns not whether “errors

of law [were] committed by the trial court” but

whether the defendant’s confinement offends the Con-

stitution. Sunal v. Large, 332 U.S. 174, 179, 181-182

(1947).

The Court emphasized this important distinction in

Hill v. United States, 368 U.S. 424, 426 (1962),

which presented the question “whether a district

court’s failure to afford a defendant an opportunity

to make a statement at the time of sentencing fur-

nishe[d], without more, grounds for a successful col-

lateral attack upon the judgment and sentence.” Al-

though the right of allocution was expressly guaran-

teed to a defendant by Rule 32(a), Fed. R. Crim. P.,

and was deemed to be an ancient and valuable one

(Green v. United States, 365 U.S. 301, 304 (1961) ),

and although a violation of Rule 32(a) necessitated

reversal of the conviction if raised on direct appeal

(Van Hook v. United States, 365 U.S. 609 (1961)),

the Court denied relief under Section 2255, holding

that “collateral relief is not available when all that

is shown is a failure to comply with the formal re-

quirements of the Rule.” 368 U.S. at 429. The Court

explained (id. at 428):

The failure of a trial court to ask a defendant

represented by an attorney whether he has any-

thing to say before sentence is imposed is not of

itself an error of the character or magnitude

cognizable under a writ of habeas corpus. It is

an error which is neither jurisdictional nor con-

stitutional. It is not a fundamental! defect which

inherently results in a complete miscarriage of

justice, nor an omission inconsistent with the

rudimentary demands of fair procedure. It does

not present “exceptional circumstances where the

need for the remedy afforded by the writ of

habeas corpus is apparent.” Bowen v. Johnston,

306 U.S. 19, 27.

See also Davis v. United States, 417 U.S. 333, 346

(1974); Stone v. Powell, 428 U.S. 465, 477 n.10

(1976); Sunal v. Large, supra, 332 U.S. at 178-179.

By the same token, the district court’s failure to

follow the formal requirements of Rule 11 should not

entitle a defendant to relief on collateral attack un-

less he was prejudiced by the violation. Where, as

here, the violation relates to the trial judge’s failure

to notify the defendant of the mandatory special

parole provisions, prejudice could be demonstrated by

a showing that the defect in fact rendered the guilty

plea involuntary (for example, if the defendant would

not have pleaded guilty had he been aware of the

special parole term)° or that it would be manifestly

° A conviction entered upon an involuntary plea of guilty is

subject to collateral attack. See Fontaine v. United States, 411

U.S. 218 (1973) ; Machibroda v. United States, 368 U.S. 487

(1962).

unfair, in light of the absence of an express warning

about special parole, to hold him to his plea‘ (for ex-

ample, if the sentence imposed, with the addition of

the period of special parole, exceeded the maximum

sentence that the defendant was told he could be

given).° See Del Vecchio v. United States, 556 F.2d

®*In that circumstance, of course, the appropriate remedy

under Section 2255 may well be to reduce the defendant’s sen-

tence to comport with the information he received at the

time of his plea. See Richardson v. United States, 577 F.2d

447, 452 (8th Cir. 1978), petition for cert. pending, No. 78-

5263.

Contrary to the court of appeals’ assumption (App. A, infra,

9a), there is no tension between the standards for collateral

relief articulated in Hill and Davis and the prophylactic rule

announced in McCarthy for noncompliance with Rule 11.

McCarthy, it bears repeating, was a direct appeal, and the

Court emphasized that its decision was “based solely upon our

construction of Rule 11 and our supervisory power over the

lower courts,” rather than upon the Constitution (394 U.S. at

464). Moreover, although the Court remarked that “prejudice

inheres in a failure to comply with Rule 11” (id. at 471), it

did not suggest that such prejudice—which was defined merely

as “depriv[ing] the defendant of the Rule’s procedural safe-

guards” (ibid.)—was of a magnitude that would entitle a

defendant to habeas corpus relief. Indeed, strong evidence

that the Court did not consider every plea entered in violation

of Rule 11 to be fundamentally unfair is offered by its deci-

sion not to apply McCarthy retroactively (Halliday vy. United

States, 394 U.S. 831 (1969)) and by the distinction it care-

fully drew between the remedies available for a violation of

the Rule and for an involuntary guilty plea (id. at 833):

A defendant whose plea has been accepted without full

compliance with Rule 11 may still resort to appropriate

post-conviction remedies to attack his plea’s voluntariness.

Thus, if his plea was accepted prior to our decision in

McCarthy, he is not without a remedy to correct constitu-

tional defects in his conviction.

106, 111 (2d Cir. 1977); Bachner v. United States,

517 F.2d 589, 597 (7th Cir. 1975).

Respondent’s allegations satisfied neither of these

tests. His motion to vacate sentence did not allege

that he was actually unaware of the special parole

provisions, much less that he would not have pleaded

guilty if he had been fully informed of the conse-

quences of his plea,’ and the district court expressly

found that the additional information would not have

materially affected respondent’s decision to enter into

the plea bargain (App. D, infra, 22a).* Moreover, as

* Although the memorandum of law submitted in support of

respondent’s Section 2255 motion stated that “[d]efendant did

not know of the mandatory special parole term” (p. 4), this

allegation, unlike the contents of the motion, was not verified,

and respondent did not offer to submit an affidavit to support

the assertion. The allegation was suspect, in any event, in

light of counsel’s representation at the Rule 11 proceeding that

he had explained to respondent the consequences of his plea

(Tr. 16). See also H. 7.

®* The district court remarked (H. 16): “I am sure that it

would not have made one bit of difference to Mr. Timmreck if

I had said to him in this case, ‘You will be subjected to a

parole term of at least three years,’ as far as his guilty plea

is concerned.” The court of appeals did not disturb this fact

finding, which is amply supported by the record. As the Sev-

enth Circuit has observed:

Unlike ineligibility for parole, which ‘automatically

trebles the mandatory period of incarceration which an

accused would receive under normal ¢ircumstances,’ the

mandatory parole term has no effect on that period of

incarceration and does not ever become material unless

the defendant violates the conditions of his parole. It

would be unrealistic, we think, to assume that he would

expect to do so and be influenced by that expectation at

the time he is considering whether to plead guilty, as it

the district court noted (id. at 18a), trespondent’s

sentence of 10 years’ imprisonment and five years’

special parole was no greater—indeed, was materi-

ally less, for all practical purposes—than the 15

years’ imprisonment that he was advised he could

receive if he pleaded guilty.

2. In these circumstances, with no finding that the

district court’s technical noncompliance with one as-

pect of Rule 11 rendered respondent’s plea either in-

voluntary or so unfair as to be “a complete miscar-

riage of justice,” there are substantial reasons why

claims such as respondent’s should not be cognizable

on collateral attack. To begin with, this is not a case

in which “the need for the remedy afforded by the

writ of habeas corpus is apparent.” Hill v. United

States, swpra, 368 U.S. at 428. A trial judge’s fail-

ure to mention the mandatory special parole term

during the Rule 11 proceeding normally will be im-

mediately apparent to the defendant upon imposition

of sentence, especially if his ignorance of the special

parole requirement truly played a meaningful role in

his decision to plead guilty. When the period of spe-

cial parole is announced, the defendant should be

instantly aware, if it is true, that he has been given

would be to assume that he would be influenced by other

contingencies he is not advised about.

Bachner v. United States, supra, 517 F.2d at 597 (citation

omitted). See also id. at 598-599 (Stevens, J., concurring) ;

Johnson V. Wainwright, 456 F.2d 1200, 1201 (5th Cir. 1972)

(likelihood that district court’s mention of parole term would

cause a defendant to change his decision to plead guilty “is so

improbable as to be without legal significance’).

a more severe sentence than he anticipated could be

imposed. It is not unreasonable to hold that the

remedy in that situation should be a timely motion

to withdraw the plea under Fed. R. Crim. P. 32(d)

or a direct appeal of the conviction.”

Furthermore, allowing a plea of guilty to be va-

cated years after it has been entered, for reasons un-

related to guilt, would provide incentives for defend-

ants to scour the record of their Rule 11 proceedings

for any colorable instance of noncompliance with the

rule and to delay a request for relief until a time

when the government may be unable to disprove alle-

gations concerning distant events surrounding the

plea or when a reprosecution on the underlying of-

fenses may be difficult or impossible. See Henderson

v. Kibbe, supra, 431 U.S. at 154 n.13. United States

v. Sobell, 314 F.2d 314, 324-325 (2d Cir.), cert. de-

nied, 374 U.S. 857 (1963). As the Court recently

observed in Blackledge v. Allison, 431 U.S. 63, 71

(1977), ‘“[m]ore often than not a prisoner has every-

thing to gain and nothing to lose from filing a col-

lateral attack upon his guilty plea.”

Here, for example, it should have been obvious to

respondent (and his counsel) at sentencing that the

* Even on direct appeal, of course, it is arguable that vhe

harmless error rule of Fed. R. Crim. P. 52(a) should be ap-

plied to inconsequential Rule 11 viclations. See United States

v. Scharf, 551 F.2d 1124, 1129-1130 (8th Cir.), cert. denied,

484 U.S. 824 (1977); United States v. Lambros, 544 F.2d

962, 966 (8th Cir. 1976), cert. denied, 430 U.S. 930 (1977).

But see, e.g., United States v. Palter, 575 F.2d 1050 (2d Cir.

1978) ; United States v. Clark, 574 F.2d 1857 (5th Cir. 1978).

trial judge had neglected to mention the special pa-

role requirement during the Rule 11 proceeding. Yet

respondent’s unexplained delay of almost two years

in raising his objection will, if the court of appeals’

decision is not overturned, require the government

to reprosecute a complicated conspiracy case long

after the occurrence of the criminal conduct, a task

made especially burdensome by the fact that respond-

ent’s plea allowed him to avoid trial with his co-

defendants. See United States v. Barker, 514 F.2d

208, 222 (D.C. Cir. 1974) (en banc), cert. denied,

421 U.S. 1013 (1975).”

These important concerns would be seriously un-

dermined if every violation of Rule 11, no matter

how inconsequential, justified Section 2255 relief. In-

deed, the problem will be exacerbated by the 1975

amendments to the rule, which expand substantially

the range of subjects on which a trial judge must

advise a defendant before accepting his guilty plea.

See Fed. R. Crim. P. 11(c)(1)-(5)." More than

80% of all federal criminal convictions follow pleas

” Twenty-two defendants were indicted in this case; 11, in-

cluding respondent, pleaded guilty ; five defendants were found

guilty by a jury. :

"' Courts have recently found Rule 11 violations, for exam-

ple, in the trial judge’s failure to address the defendant per-

sonally (United States v. Hart, 566 F.2d 977 (5th Cir. 1978) )

or to advise the defendant “that if he pleads guilty * * * the

court may ask him questions about the offense * * * and if he

answers these questions under oath * * * his answers may

later be used against him in a prosecution for perjury”

(United States v. Journet, 544 F.2d 633 (2d Cir. 1976); see

also United States v. Boone, 543 F.2d 1090 (4th Cir. 1976) ).

of guilty,“ and minor deviations from Rule 11 are

inevitable in a not insignificant percentage of these

cases. The strong societal interest in the finality of

judgments suggests that, unless a violation of the rule

materially influenced the defendant’s decision to plead

guilty, it should be raised on direct appeal or not at

all.

3. As the court of appeals acknowledged (App. A.

infra, 5a-7a), the circuits have disagreed sharply over

the availability of Section 2255 relief for mere vio-

lations of Rule 11. Along with the Sixth Circuit,

three courts—the First,“ Third,“ and Ninth Cir-

cuits °—have held that a defendant who was not in-

formed of the mandatory special parole term at the

12 In fiscal year 1977, 35,335 of the 43,248 federal convic-

tions, or 81.7%, followed pleas of guilty. In fiscal year 1976,

the figures were 33,327 out of 40,975, or 81.3%. Source:

1977 Annual Report of the Director of the Administrative

Office of the United States Courts, Table 38 at p. 143.

18 United States v. Yazbeck, 524 F.2d 641 (1st Cir. 1975).

But cf. United States v. Tursi, 576 F.2d 396 (1st Cir. 1978),

denying a motion to vacate a guilty plea entered under the

1966 version of Rule 11 because the defendant had not been

told that the plea would waive his privilege against self-

incrimination.

14 Roberts v. United States, 491 F.2d 1286 (3d Cir. 1974).

In Horsley v. United States, No. 77-2297 (3d Cir. Aug. 28,

1978), the court purported to adopt the Hill and Davis stand-

ard but held that the failure adequately to inform the defend-

ant of the nature of the charges against him was “inherently

prejudicial” (slip op. 8).

’ Bunker v. Wise, 550 F.2d 1155 (9th Cir. 1977). See also

Yothers v. United States, 572 F.2d 1326 (9th Cir. 1978) ;

Sanchez v. United States, 572 F.2d 210, 211 (9th Cir. 1977).

time of his guilty plea is entitled to attack his con-

viction collaterally, regardless of whether the error

actually influenced his plea or otherwise rendered its

continued validity inequitable.

On the other hand, five courts—the Second,"

Fourth,” Seventh,“ Eighth,” and Tenth Circuits ”

—have denied collateral relief in identical circum-

stances, holding that technical violations of Rule 11

may not be raised under Section 2255 and that the

standard announced in Hill and Davis requires a

case-by-case determination whether the failure to ad-

vise a defendant of the special parole requirement

has resulted in a “complete miscarriage of justice.”

16 Del Vecchio v. United States, 556 F.2d 106 (2d Cir. 1977).

The court of appeals initially followed an automatic reversal

rule in Ferguson v. United States, 513 F.2d 1011 (2d Cir.

1975), but in Del Vecchio it reconsidered its position in light

of Davis.

17 Bell v. United States, 521 F.2d 713 (4th Cir. 1975), cert.

denied, 424 U.S. 918 (1976). See also United States v. White,

572 F.2d 1007 (4th Cir. 1978).

18 Bachner V. United States, 517 F.2d 589 (7th Cir. 1975).

1 McRae v. United States, 540 F.2d 943 (8th Cir. 1976),

cert. denied, 429 U.S. 1045 (1977). See also Schriever v.

United States, 553 F.2d 1152 (8th Cir. 1977) ; United States

v. Kattou, 548 F.2d 760 (8th Cir. 1977); United States v.

Ortiz, 545 F.2d 1122 (8th Cir. 1976) ; United States v. Rodri-

gue, 545 F.2d 75 (8th Cir. 1976). Like the Second Circuit, the

Eighth Circuit’s current view represents a change in position.

See United States v. Richardson, 483 F.2d 516 (8th Cir. 1973).

2° United States v. Hamilton, 553 F.2d 63 (10th Cir.), cert.

denied, 434 U.S. 834 (1977). See also United States v. Eaton,

579 F.2d 1181 (10th Cir. 1978) ; Evers v. United States, 579

F.2d 71 (10th Cir. 1978).

The Fifth Circuit also has rejected a collateral at-

tack by a defendant who was not advised of the

mandatory special parole term (Johnson v. United

States, 542 F.2d 941 (5th Cir. 1976), cert. denied,

430 U.S. 934 (1977)), but it has subsequently ruled

in cases not involving the special parole provisions

that any failure to comply with the requirements of

Rule 11, whether or not prejudicial, warrants Section

2255 relief.” Finally, the District of Columbia Cir-

cuit has noted the conflict among the circuits on this

issue but has declined to side with either group, hold-

ing instead that all attempts to withdraw a guilty

plea, no matter how long after conviction and regard-

less of the circumstances, must be brought under Fed.

R. Crim. P. 32(d) and judged under that rule’s

“manifest injustice” standard, rather than under

Section 2255. United States v. Watson, 548 F.2d

1058 (D.C. Cir. 1977).

In sum, we agree with the following remark of

the court of appeals (App. A, infra, 1la n.16):

Given the frequency with which this issue

arises and the severe split among the circuits,

hopefully the Supreme Court will resolve this

issue in the near future. Every circuit * * *

has expressed its position on this issue which is

at the heart of the administration of the federal

21 See Keel v. United States, 572 F.2d 1135 (5th Cir.), re-

hearing en banc granted,.572 F.2d 1137 (1978); Coody v.

United States, 570 F.2d 540 (5th Cir.), rehearing en banc

granted, 576 F.2d 106 (1978). See also Howard v. United

States, 580 F.2d 716 (5th Cir. 1978) ; Sassoon v. United States,

561 F.2d 1154, 1160 (5th Cir. 1977) ; Canady v. United States,

564 F.2d 208 (5th Cir. 1977).

drug laws in particular (the effect of 21 U.S.C.

§ 841 (b)) and all federal criminal laws in gen-

eral (the scope of § 2255 relief after Davis).

The Court should accept this invitation to resolve an

important and disputed question of federal criminal

law.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

KENNETH §S. GELLER

Assistant to the Solicitor General

JEROME M. FEIT

KATHERINE WINFREE

Attorneys

NOVEMBER 1978

APPENDIX A

No. 77-1572

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CHARLES TIMMRECK, Petitioner-Appellant,

UNITED STATES OF AMERICA, Respondent-A ppellee.

APPEAL from the United States District Court

for the Eastern District of Michigan.

Decided and Filed June 12, 1978.

Before: CELEBREZZE, LIVELY and ENGEL, Circuit

Judges.

CELEBREZZE, Circuit Judge. This is yet another

case involving a 28 U.S.C. § 2255 motion to vacate a

sentence entered upon a guilty plea taken in violation

of Federal Rule of Criminal Procedure 11. We re-

affirm this circuit’s position requiring strict adher-

énce to Rule 11 and allowing deviation therefrom to

be challenged in a § 2255 proceeding. We reverse the

district court’s denial of relief.

Charles Timmreck entered a plea of guilty to con-

spiracy to distribute a controlled substance, 21 U.S.C.

§ 846, on May 24, 1974, pursuant to a plea bargain

which resulted in the dismissal of other charges pend-

ing against him. The district court inquired as to the

voluntariness of the plea and informed Timmreck

that he could be sentenced to as much as fifteen years

confinement and a $25,000 fine, which he acknowl-

edged understanding. The record does not reflect,

however, that the court informed Timmreck, or that

he otherwise knew, about the three year minimum

mandatory special parole term that 21 U.S.C. § 841

(b) (1) (A) requires to be added to any other sentence

meted out for the offense charged.’ The court ac-

cepted the guilty plea and, on September 19, 1974,

sentenced Timmreck to ten years in prison, a $5000

fine, and an additional special parole term of five

years. No appeal followed.

On August 11, 1976, Timmreck moved pursuant to

28 U.S.C. § 2255 to vacate the sentence entered upon

his guilty plea. The sole ground for the motion was

that his plea had been accepted in violation of Rule 11

since he was not informed of the three year minimum

mandatory special parole term that had to be added

to whatever sentence he otherwise received. The dis-

trict court agreed that such advice had not been

given. If noted, however, that Timmreck had been

‘The three year minimum mandatory special parole term

mandated by 21 U.S.C. § 841(b) (1) (A) is unlike ordinary

parole in that it must be tacked onto the end of any other

sentence and does not take effect until the expiration of the

primary sentence, including ordinary parole. See Roberts v.

United States, 491 F.2d 1236, 1287-88 (3d Cir. 1974); United

States v. Richardson, 483 F.2d 516, 518 (8th Cir. 1973).

sentenced to ten years confinement plus five years

special parole, the total of which was within the fif-

teen years he had been told was possible, and that

the $5000 fine was within the $25,000 limit explained

to him. Because Timmreck’s total actual sentence did

not exceed the maximum outlined to him at the plea

hearing, the district court found no fundamental

unfairness and denied § 2255 relief on that basis.

423 F. Supp. 537 (E.D. Mich. 1976).

The holding of the district court is squarely con-

trary to United States v. Wolak, 510 F.2d 164 (6th

Cir. 1975). See also United States v. Cunningham,

529 F.2d 884, 888 n.2 (6th Cir. 1976). Wolak, legally

indistinguishable from this cause, also involved a

§ 2255 motion to vacate a sentence after a plea of

guilty to a violation of the Comprehensive Drug

Abuse Prevention and Control Act of 1970, 21 U.S.C.

§$ 801 et seg. The district court in Wolak failed to

explain to the defendant that a consequence of his

guilty plea would be the imposition of at least a three

2 Wolak also involved the pre-1975 amendment version of

Rule 11, which required only that the defendant plead “volun-

tarily with understanding of the nature of the charge and the

consequences of the plea.” The result we reach here and that

reached in Wolak are compelled a fortiori by new Rule 11,

which specifically requires that the defendant understand “the

nature of the charge to which the plea is offered, the manda-

tory minimum penalty provided by law, if any, and the maxi-

mum possible penalty provided by law.” The three year

minimum mandatory special parole term woyld affect both the

mandatory minimum and maximum possible penalties. See

United States v. Yazbeck, 524 F.2d 641, 643 n. 1 (1st Cir.

1975).

year special parole term in addition to any custodial

sentence. We held that the district court erred both

in not explaining the mandatory nature of the special

parole and in misstating the required three year mini-

mum term. 510 F.2d at 166. It was “our determina-

tion that, in order to comply with Rule 11, the district

judge must inform a defendant of the minimum sen-

tence, either custodial or parole where there is a

mandatory minimum, and of any special limitations

on parole or probation.” Jd. We reversed the denial

of the § 2255 motion and instructed the district court

to vacate the sentence and permit the defendant to

plead anew. The same result must obtain here.

The district court was aware of our decision in

Wolak but did not deem it controlling.* Instead, the

court relied heavily upon several recent cases from

other circuits, discussed infra, which have held that

Rule 11 violations do not entitle one to § 2255 relief

unless the error was a “fundamental defect which

inherently results in a complete miscarriage of jus-

’ As noted by the district court here, the district court in

Wolak did mention the special parole term to the defendant

at the plea hearing but incorrectly explained it when the de-

fendant indicated he did not understand it. There can be no

reasoned distinction, however, between an affirmative mis-

statement of the provisions of the special parole term and fail-

ure to disclose that it exists at all.

*The district court apparently felt Wolak was distinguish-

able from this cause. The district court gave no explanation,

however, for ignoring similar language found in United States

v. Cunningham, 529 F.2d 884, 888 n. 2 (6th Cir. 1976), even

while quoting the relevant language in its entirety, 423 F.

Supp. at 539 n. 2.

tice.” ° We decline to follow these cases which we

consider contrary both to Wolak and relevant Su-

preme Court authority.°

The starting point for any Rule 11 cases must be

McCarthy v. United States, 394 U.S. 459 (1969). In

McCarthy, the Supreme Court mandated strict com-

pliance with Rule 11 before a district court can

accept a guilty plea. The Court held “that prejudice

inheres in a failure to comply with Rule 11, for non-

compliance deprives the defendant of the Rule’s pro-

cedural safeguards that are designed to facilitate a

more accurate determination of the voluntariness of

his plea.” Jd. at 471-72. The remedy required for a

Rule 11 violation was allowing the defendant to plead

anew.

In the wake of McCarthy’s strict language, every

circuit to address the issue through 1974 held that the

very factual pattern presented here (i.e., failure to

inform the defendant of the mandatory special parole

term of § 841(b)) was a violation of Rule 11 which

required vacation of the sentence entered upon the

guilty plea. The cases ilso held this issue could be

° This language, adopted by other circuits, comes from Davis

v. United States, 417 U.S. 333, 346 (1974), quoting in turn

from Hill v. United States, 368 U.S. 424, 428 (1962), discussed

infra.

* The district courts in this circuit are, of course, bound hy

pertinent decisions of this Court even if they find what they

consider more persuasive authority in other circuits. See

Doe Vv. Charleston Area Medical Center, Inc., 529 F.2d 638, 642

(4th Cir. 1975); Union Carbide Corp. v. Graver Tank & Mfg.

Co., 345 F.2d 409, 411 (7th Cir. 1965).

raised in a § 2255 proceeding. Michel v. United

States, 507 F.2d 461 (2d Cir. 1974);* Roberts v.

United States, 491 F.2d 1236 (3d Cir. 1974) ; United

States v. Richardson, 483 F.2d 516 (8th Cir. 1973).

After 1974, however, the results began to diverge.

All circuits addressing the issue presented here con-

tinued to hold that failure to inform a defendant of

the special parole term constitutes a violation of Rule

11, making vacation of sentence necessary if chal-

lenged on direct appeal. But the circuits have split

on whether such a Rule 11 violation can be success-

fully challenged in a § 2255 proceeding. Three cir-

cuits still allow § 2255 movant to vacate his sentence

and plead anew. Bunker v. Wise, 550 F.2d 1155 (9th

Cir. 1977) ;* United States v. Yazbeck, 524 F.2d 641

(1st Cir. 1975);° United States v. Wolak, 510 F.2d

164 (6th Cir. 1975). Five other circuits, including

the second and eighth which had ruled otherwise

before 1974, have opted for a different result. These

courts have held that a § 2255 movant is entitled to

7In Michel the defendant could not take advantage of this

holding since he had been informed of the required special

parole term, but the holding in Michel was held to apply retro-

actively in Ferguson Vv. United States, 513 F.2d 1011 (2d Cir.

1975).

8 See also United States v. Harris, 534 F.2d 141 (9th Cir.

1976) allowing withdrawal of a guilty plea for this Rule 11

violation pursuant to Federal Rule of Criminal Procedure

32(d).

® It is not clear whether Yazbeck was a § 2255 or Rule 32(d)

case. In any event, the motion to vacate the sentence was made

eight months after the guilty plea was accepted.

vacation of his sentence only if he can demonstrate

prejudice from the Rule 11 violation.” Del Vecchio

v. United States, 556 F.2d 106 (2d Cir. 1977) ; United

States v. Hamilton, 553 F.2d 63 (10th Cir.), cert.

den. 434 U.S. 834 (1977);“ McRae v. United States,

540 F.2d 943 (8th Cir. 1976), cert. den. 429 U.S.

1045 (1977); Bell v. United States, 521 F.2d 713

(4th Cir. 1975), cert. den. 424 U.S. 918 (1976);

Bachner v. United States, 517 F.2d 589 (7th Cir.

1975). Section 2255 relief was denied in each of these

cases since no prejudice was thought to exist when,

like here, the defendant’s actual sentence, including

the special parole term, was within the maximum pos-

sible sentence specified at his plea hearing.

The reason for this sudden shift after 1974 was the

decision that year of Davis v. United States, 417 U.S.

333 (1974). Davis did not involve a guilty plea but

rather dealt with § 2255 relief after a jury convic-

tion. The Supreme Court held that a change in the

law after conviction, and not just constitutional er-

” The position of the District of Columbia circuit is am-

biguous. When presented with the issue, it remanded the cause

to the district court with directions to treat the § 2255 motion

to vacate as a Rule 32(d) motion. United States v. Watson,

548 F.2d 1058 (D.C. Cir. 1977).

1 See also United States v. Eaton, 579 F.2d 1181 (10th Cir.

1978), 23 Crim. L. Rptr. 2092, following Hamilton, and noting

that the special parole term could be for life.

'2 See also, United States vy. Kattou, 548 F.2d 760 (8th Cir.

1977), United States v. Rodrique, 545 F.2d 75 (8th Cir. 1976),

and United States v. Ortiz, 545 F.2d 1122 (8th Cir. 1976),

following McRae.

rors at trial, could serve as the basis for a § 2255

proceeding. The Court added a paragraph of dicta,

however, which we reproduce here in full:

This not to.say, however, that every asserted

error of law can be raised on a § 2255 motion.

In Hill v. United States, 368 U.S. 424, 429

(1962), for example, we held that “collateral

relief is not available when all that is shown is

a failure to comply with the formal require-

ments” of a rule of criminal procedure in the

absence of any indication that the defendant was

prejudiced by the asserted technical error. We

suggested that the appropriate inquiry was

whether the claimed error of law was “a funda-

mental defect which inherent!y results in a com-

plete miscarriage of justice,” and whether “[i]t

. .» present[s] exceptional circumstances where

the need for the remedy afforded by the writ of

habeas corpus is apparent.” Jd., at 428 (internal

quotation marks omitted). The Court did not

suggest that any line could be drawn on the

basis of whether the claim had its source in the

Constitution or in the “laws of the United

States.” 417 U.S. at 346

This paragraph has been seized upon by four of the

five circuits requiring a § 2255 movant to show preju-

dice in order to vacate a sentence entered upon a

plea of guilty taken in violation of Rule 11." Del

18 Bell, 521 F.2d at 715, reached this result without citation

of Davis.

The Fourth Circuit did, however, rely upon Davis (and,

inter alia, Del Vecchio, Hamilton and McRae) in reaching the

Vecchio, 556 F.2d at 110; Hamilton, 553 F.2d at 65;

McRae, 540 F.2d at 945; Bachner, 517 F.2d at 591.

It was also relied upon by the district court here.

423 F.Supp. at 539. These courts have held that the

conceded Rule 11 error is not cognizable in a § 2255

proceeding when the defendant’s total actual sentence

is within that specified at the plea hearing. This is

justified by reference to Davis, concluding that “the

claimed error of law was [not] ‘a fundamental defect

which inherently results in a complete miscarriage of

justice.’”’ See Del Vecchio, 556 F.2d at 110-11;

Hamilton, 553 F.2d at 66; McRae, 540 F.2d at 945;

Bachner, 517 F.2d at 592-93. See also Bell, 521 F.2d

at 714-15 (harmless error analysis).

We are thus faced with the difficult task of recon-

ciling the somewhat contradictory language of the

Supreme Court in McCarthy and Davis. On the one

hand, the Court said in its unanimous” decision in

McCarthy that “prejudice inheres in a failure to com-

ply with Rule 11.” 394 U.S. at 471. On the other

hand, at first blush the Rule 11 violation at issue here

does not seem to rise to the level of a “fundamental

defect which inherently results in a coraplete mis-

carriage of justice.” 417 U.S. at 346.

same result in a case involving a different Rule 11 violation.

United States v. White, 572 F.2d 1007 (4th Cir. 1978), 23

Crim. L. Rptr. 2137. The court in White did not even cite Bell

for support.

Justice Black filed a separate concurring opinion.

10a

Our decision is controlled, however, by our prior

post-Davis decision in Wolak.” Moreover, between

McCarthy and Davis we consider McCarthy more ap-

posite to this cause. McCarthy was, as this, a Rule 11

case and the Supreme Court hinted at no exceptions to

its policy of strict enforcement of Rule 11. The rele-

vant paragraph in Davis was dicta which relied on

Hill vy. United States, 368 U.S. 424 (1962), which in-

volved a violation of Federal Rule of Criminal Pro-

cedure 32(a) allowing a defendant to speak on his

behalf before imposition of sentence. Admittedly

McCarthy involved a direct appeal but if “prejudice

inheres in a failure to comply with Rule 11,” then it

must be cognizable in a § 2255 proceeding. We recon-

cile McCarthy and Davis by holding that a Rule 11

violation is per se prejudicial and thus must be a

1 One panel of this Court cannot overrule the decision of

another panel; only the Court sitting en banc can overrule a

prior decision. See Doraiswamy Vv. Secretary of Labor, 555

F.2d 832, 847-48 n. 119 (D.C. Cir. 1976), and cases cited

therein; Doe v. Charleston Area Medical Center, Inc., 529 F.2d

638, 642 (4th Cir. 1975); McClure v. First Nat'l Bank, 497

F.2d 490, 492 (5th Cir. 1974), cert. den. 420 U.S. 930 (1975).

We recognize that neither Wolak nor any of the other cases

reaching the same result after Davis mention Davis. This is

probably because the holding of Davis is irrelevant to the issue

presented; only the paragraph of dicta quoted earlier is rele-

vant. Nevertheless, we do not believe that Wolak’s failure to

cite Davis serves as a basis for distinguishing it. We believe the

courts which contend that the quoted paragraph of Davis

represented a new development in the law are incorrect since

the paragraph at issue consists almost entirely of a quotation

and paraphrase of a case decided in 1962. See, Del Vecchio and

McRae, supra, modifying Michel (and Ferguson) and Rich-

ardson, supra, respectively.

lla

“fundamental defect which inherently results in a

complete miscarriage of justice.’ We feel that any

other reconciling of the two cases which emphasizes

Davis over McCarthy should come only from the Su-

preme Court.”

We recognize that our decision “erodes the principle

of finality in criminal cases and may al’ow an obvi-

ously guilty defendant to go free because it is impos-

sible, a8 a practical matter, to retry him,” Del

Vecchio, 556 F.2d at 109 (footnote omitted), since

memories fade and witnesses become unavailable over

time. Finality is a salutary principle which should be

furthered by the courts. Blackledge v. Allison, 431

U.S. 638, 71-72 & 83-84 (Powel], J. concurring)

(1977) ; Henderson v. Kibbe, 431 U.S. 145, 154 n. 13

(1977). Finality is best served, however, by insisting

that guilty pleas be accepted properly initially rather

than by narrowing the scope of collateral relief. The

failure to preserve finality in this and similar cases

must be laid squarely at the feet of the United States

Attorneys and their assistants who fail to exercise the

rather small degree of care necessary to comply with

16 Given the frequency with which this issue arises and the

severe spl’'t among the circuits, hopefully the Supreme Court

will resolve this issue in the near future. Every circuit except

the fifth, uf. Johnson Vv. United States, 542 F.2d 941 (5th Cir.

1976), cert. den. 480 U.S. 9384 (1977) (§ 2255 relief denied

for other Rule 11 violation), has expressed its position on this

issue which is at the heart of the administration of the federal

drug laws in particular (the effect of 21 U.S.C. § 841(b)) and

all federai criminal laws in general (the scope of § 2255 relief

after Davis.)

12a

Rule 11."° The Supreme Court said in McCarthy that

one purpose of requiring strict adherence to Rule 11

was to “reduce the great waste of judicial resources

required to process the frivolous attacks on guilty plea

convictions that are encouraged, and are more difficult

to dispose of, when the record is inadequate.” 394

U.S. at 472. The large number of Rule 11 errors in

the reported cases suggests that this admonition is not

being heeded."* We hope that our ruling herein will

motivate strict eempliance with Rule 11 in the future.

The judgment of the district court is reversed and

the cause is remanded with instructions to vacate the

sentence entered upon the guilty plea and to allow

Timmreck to plead anew.

17 The district courts, of course, are also responsible for

Rule 11 errors since Rule 11 is directly addressed to the court

accepting the guilty plea. If the district court does not fully

comply with Rule 11, the government attorney should realize

this and take steps to insure the necessary colloquy is placed

in the record.

18 “The case is another of the many we have had that attack

a conviction on a guilty plea because the district judge alleg-

edly failed to follow the directions of Fed. R. Crim. P. 11.”

Del Vecchio, 556 F.2d at 107.

“These appeals challenging two guilty pleas and sentences

thereon arise, like many others, from omissions by trial judges

to advise a defendant at a hearing on a plea of guilty of spe-

cial provisions of the federal narcotics laws relating to sen-

tencing....” Bachner, 517 F.2d at 590-91 (footnote omitted).

The above quoted sentences are the very first sentences in

each of the above cases, suggesting the courts’ frustration

with this problem.

13a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 77-1572

[Filed June 12, 1978]

CHARLES TIMMRECK, PETITIONER-APPELLANT,

Vv.

UNITED STATES OF AMERICA,

RESPONDENT-APPELLEE.

Before CELEBREZZE, LIVELY and ENGEL, Circuit

Judges.

J UDGMENT

APPEAL from the United States District Court

for the Eastern District of Michigan.

THIS CAUSE came on to be heard on the record

from the United United States District Court for the

Eastern District of Michigan and was argued by

counsel.

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 is hereby reversed and the cause re-

manded with instructions to vacate the sentence

entered upon the guilty plea and to allow Timmreck

to plead anew.

It is further ordered that Petitioner-Appellant re-

cover from Respondent-Appellee the costs on appeal,

as itemized below, and that execution therefor issue

out of said District Court if necessary.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

Clerk

l4a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 77-1572

[Filed August 7, 1978]

CHARLES TIMMRECK, PETITIONER-APPELLANT,

UNITED STATES OF AMERICA,

RESPONDENT-APPELLEE.

ORDER

Before: CELEBREZZE, LIVELY and ENGEL, Circuit

Judges. ‘

Appellee filed a petition for rehearing with a re-

quest for rehearing en banc. No judge of this court

having moved for a rehearing en banc, the petition

to rehear has been referred to the hearing panel.

Upon consideration, the court being advised, it is

ORDERED that the petition for rehearing be denied.

ENTERED BY ORDER OF THE COURT

JOHN P. HEHMAN, Clerk

By /s/ Grace Keller

GRACE KELLER, Chief

Deputy

l5a

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Civil Action No: 6-71867

CHARLES TIMMRECK, PLAINTIFF,

Uv.

UNITED STATES OF AMERICA, DEFENDANT.

MEMORANDUM OPINION

Petitioner, Charles Timmreck, pleaded guilty to a

violation of 21 U.S.C. § 846 (conspiracy to distribute

a controlled substance) on May 24, 1974. On Sep-

tember 19, 1974, he was sentenced to a prison term

of ten years, a five thousand dollar committed ‘fine,

and a special parole term of five years. Timmreck

now brings a motion to vacate this sentence (28

U.S.C. § 2255) claiming that the trial court failed

to inform him of the mandatory special parole term

prescribed by 21 U.S.C. § 841(b). Timmreck claims

that he was not made fully aware of the possible

consequences of his plea and asks that the plea and

sentence be vacated.

Upon careful review of the transcript of the plea

proceedings, it appears that the court informed Timm-

reck that he could serve as long as fifteen years in

jail and be subjected to a fine of $25,000. (Tran-

léa

script at '7, 8). No mention was made of the manda-

tory special parole term.

When a guilty plea is taken the court must address

the defendant personally in open court in order to

determine “that the plea is made voluntarily with

understanding of the nature of the charge and the

consequences of the plea.” Rule 11, Federal Rules of

Criminal Procedure (1966 version) .’

The United States Supreme Court has construed

Rule 11 to “hold that a defendant is entitled to plea

anew if a United States District Court accepts his

guilty plea without fully adhering to the procedure

provided for in Rule 11.” McCarthy v. United States,

394 U.S. 459, 463 (1969). The Court in McCarthy

held that the defendant should have been permitted

to withdraw his plea when the district judge had

neither examined the defendant personally to deter-

mine the voluntariness of his plea and his awareness

of the nature of the charge nor made a record of the

factual basis for the plea.

1The Rule 11 referred to in this opinion is the rule in effect

when Timmreck made his plea. The rule now in effect requires

the court to address the defendant personally to inform him

of and to determine that he understands

“the nature of the charge to which the plea is offered,

the mandatory minimum penalty provided by law, if any,

and the maximum possible penalty provided by law.”

Rule 11(c) (1), Federal Rules of Criminal Procedure (1975

version).

The court would reach the same decision in this case if the

1975 version had been in effect when Timmreck’s plea was

taken.

17a

Although McCarthy was not a § 2255 case, the

United States Court of Appeals for the Sixth Circuit

has made reference to its holding in reviewing mo-

tions made pursuant to 28 U.S.C. § 2255. In Harris

v. United States, 426 F.2d 99 (6th Cir. 1970), for

example, the defendant had not been informed that

he was ineligible for parole. The court remanded

for a hearing to determine whether the defendant

had known of his parole ineligibility, but had the

plea been made after the effective date of McCarthy,

the court would have vacated the sentence. Harris,

at 101. In Harris, the United States Court of Appeals

approved “. .. [A]n interpretation of Rule 11 which

requires a personal explanation of anything which

affects the length of detention. .. .” [original empha-

sis]. Spradley v. United States, 421 F.2d 1045, 1046

(5th Cir. 1970), quoted in Harris at 101. See also

United States v. Wolak, 510 F.2d 164, 166 (6th Cir.

1975) (The trial judge must personally “inform a

defendant of the minimum sentence, either custodial

or parole where there is a mandatory minimum, and

of any special limitation on parole or probation.’’) ;

Phillips v. United States, 519 F.2d 488, 485 (6th

Cir. 1975) (“The requirement [is] that the judge

personally discuss the consequences of the plea with

a defendant at the time the plea is offered.’’).

The United States Court of Appeals for the Sixth

Circuit has never directly addressed the situation

presented in this cases Wolak dealt with a situation

2In United States v. Cunningham, 529 F.2d 884 (6th Cir.

1976), the court did address a similar situation indirectly. In

that case the trial judge permitted defendants to withdraw

18a

in which the trial judge had informed the defendant

of the existence of a special parole term but had neg-

lected to explain its meaning when the defendant indi-

cated his lack of understanding. In Phillips, the trial

judge had not addressed the defendant about any of

the consequences of his plea but had relied on assur-

ances of defense counsel that defendant had been

fully advised by him.

Here the court told Timmreck that he could be

imprisoned for fifteen years; Timmreck was then

sentenced to ten years in jail plus a five-year special

parole term. Since the jail sentence and the parole

term together equal the term of imprisonment which

Timmreck was informed he could receive, he was not

prejudiced by the court’s failure to inform him of the

mandatory special parole term. Absent some indi-

cation of prejudice to the defendant or a complete

miscarriage of justice, Section 2255 is unavailable to

correct mere technical errors.

their pleas after imposition of sentence solely because he had

failed to inform them of the special parole term. Defend-

ants were tried and convicted. On appeal, the Sixth Circuit

found occasion to remark:

“.,.. [D]Jefendants were entitled to withdraw their pleas

in this case beeause the district court did not comply

with Rule 11, Federal Rules of Criminal Procedure, in

failing to inform defendants of the possibility of special

parole terms as provided by Sec. 841(b) . .. [citations

omitted]. If the error had not been corrected at this point

in the proceedings, it could have been raised through mo-

tion under 28 U.S.C. Sec. 2255.”

Cunningham at n. 2.

19a

This is not to say, however, that every as-

serted error of law can be raised on a § 2255

motion. In Hill v. United States, 368 U.S. 424,

429 (1962), for example, we held that “collateral

relief is not available to comply with the formal

requirements” of a rule of criminal procedure

in the absence of any indication that the defend-

ant was prejudiced by the asserted technical

error. We suggested that the appropriate in-

quiry was whether the claimed error of law was

“a fundamental defect which inherently results

in a complete miscarriage of justice,” and

whether “[i]t... present[s] exceptional circum-

stances where the need for the remedy afforded

by the writ of habeas corpus is apparent.” Id.

at 428. [internal quotation marks omitted].

Davis v. United States, 417 U.S. 333, 346 (1974).

The United States Courts of Appeals for the

Fourth, Seventh and Eighth Circuits have applied the

Davis reasoning in cases similar'to this one. In Bell

v. United States, 521 F.2d 713 (4th Cir. 1975), cert.

denied, 96 S.Ct. 1121 (1976), the trial judge had

informed the defendant that he could receive a prison

sentence of fifteen years if he pleaded guilty. The

defendant was later sentenced to six years’ imprison-

ment and a three-year special parole term. The court

held that where the prison sentence together with the

special parole term were no more than the maximum

prison term of which the defendant had been advised,

vacation of the plea was not required either to insure

its voluntariness or to create an adequate record

under Rule 11. In Bell, the court decided that the

20a

requirements of McCarthy were satisfied since the

defendant had been informed of those consequences

of his plea which would have an effect on the range

of his punishment. Bell at 715.

Similarly, in McRae v. United States, 540 F.2d

943 (8th Cir. 1976), the United States Court of

Appeals for the Eighth Circuit stated:

[U]nder Davis the ultimate question to be de-

termined is this: was there a fundamental de-

fect in the proceedings which inherently resulted

in a complete miscarriage of justice and pre-

sented exceptional circumstances that justify

collateral relief?

McRae at 947. ,

In McRae, the court answered in the negative where

the defendant had made a Rule 11 bargain for a

seven year maximum prison term and his prison sen-

tence and special parole term together equaled six

years. See also Sappington v. United States, 523 F.2d

858 (8th Cir. 1975) (Webster, J., concurring).

The United States Court of Appeals for the Sev-

enth Circuit upheld a ten year sentence and a three-

year special parole term where the defendant had

~been advised that he could receive a sentence of fif-

teen years. Bachner v. United States, 517 F.2d 589

(7th Cir. 1975). Particularly instructive is the

analysis of Judge Stevens:

In this case I am satisfied that the trial judge’s

failure to advise the petitioner that he would

have to serve a special parole term of at least

three years after his release from prison did not

a et

2la

make his plea involuntary. If there had been

a material difference between the punishment

which the judge had the power to impose and

the punishment which the judge advised the de-

fendant he could receive, the advice might be

sufficiently deceptive to make the plea involun-

tary. That conclusion would follow regardless of

what sentence the judge might impose; for, as

I previously suggested the voluntariness of the

defendant’s choice is unaffected by an event oc-

curring after his choice is made, In this case, I

agree that the mandatory parole term, though

a matter of importance, is a comparatively minor

factor when considered in connection with the

judge’s advice to the defendant that he might be

imprisoned for as long as 15 years. The omis-

sion, in my judgment, did not make the advice

which was actually given materially misleading;

accordingly, the plea was voluntary.

On the fairness issue, I think the advice should

be compared with the actual sentence rather than

with a correct statement of the sentence that

might properly have been imposed. As long as

the actual sentence was less than the maximum

as described in the judge’s advice, I would find

no unfairness—and certainly not any unfairness

sufficiently grave to qualify as constitutional

error.

Bachner at 599 (Stevens, J., concurring). See also

United States v. Dorszynski, 524 F.2d 190 (7th Cir.

1975), cert. denied, 96 S.Ct. 1483 (1976); Gates v.

United States, 515 F.2d 73 (7th Cir. 1975).

In none of the recent decisions which do indicate

that a sentence should be vacated simply because the

22a

trial judge neglected to inform the defendant of a

special parole term does it appear whether the prison

sentence together with the special parole term ex-

ceeded the maximum prison term of which the de-

fendant had been advised. See Roberts v. United

States, 491 F.2d 1236 (3rd Cir. 1974); Ferguson v.

United States, 513 F.2d 1011 (2d Cir. 1975) ; United

States v. Harris, 584 F.2d 141 (9th Cir. 1976);

~ United Staves v. Jones, 540 F.2d 465 (10th Cir.

1976).

This is crucial. If the prison sentence together

with the special parole term did exceed the maximum

which the court had advised the defendant he could

receive, that would amount to fundamental unfair-

ness and would be reason to vacate or modify the

sentence. However, that is not the situation in Timm-

reck’s case. Timmreck’s plea was voluntary; there

was no fundamental unfairness in the proceeding.’

*In Timmreck’s case the court notes also two additional

factors: (1) defense counsel’s assurance that he had told

Timmreck about the possible consequences of his plea (Tran-

script at 16) and (2) the two years between sentence and

motion to vacate. Both factors were viewed by the court in

McRae as further indications of the voluntariness of the plea

and the essential fairness of the proceeding. McRue at 947.

23a

Accordingly, Timmreck’s motion to vacate sentence

- is denied. An order is entered herewith.

/s/ John Feikens

JOHN FEIKENS

United States District Judge

DATE: December 3, 1976,

Detroit, Michigan.

A TRUE Copy

HENRY R. HANSSEN

Clerk

By /s/ Bonnie Humm

Deputy Clerk

WW ov. 6. GOVERNMENT PRINTING Ofrrice; 1978 27¢s31 172

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