Petitioners Brief — United States v. Timmreck

Teer teens

Suprome Court, Ua

EILEL

MAR 1 97S

No. 78-744

Migs RON AK In Ff 'y

Iu the Supreme Court of the United States |

OCTOBER TERM, 1978

UNITED STATES OF AMERICA, PETITIONER

Vv.

CHARLES TIMMRECK

ON WRIT OF CERTIORARI TO THE UNITED STATES

| COURT OF APPEALS FOR THE SIXTH CIRCUIT

.

BRIEF FOR THE UNITED STATES

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

KENNETH S. GELLER

Assistant to the Solicitor General

KATHERINE WINFREE

Attorney

Department of Justice

Washington, D.C. 205380

SS ——=

INDEX

II BIIIE, cacvcssnvivacesieccicevestunaueibcapeigomredecnaianin 1

IE orp inlcnerscdecevasicenetneoeomeamecnnins 1

IE II soi vckicecetieanieospeoncinncnienciooene 2

Statute and rule involved ....................cccscceeeeeees 2

4

9

Argument:

A defendant is not entitled to collateral

relief from his conviction under 28 U.S.C.

2255 merely because the district court

violated Rule 11 of the Federal Rules of

Criminal Procedure in accepting his guilty

IU. cccstisannctvejucatovedsmataiieinlaanbiabiaimmiaachaadiibien 13

A. A failure to comply with the formal

requirements of a Federal Rule of

Criminal Procedure, without more,

is not cognizable under 28 U.S.C.

PE Semten ted LOL, DLR favors SOC oae 15

B. The Rule 11 violation in this case

does not entitle respondent to relief

WRONG BR cvcccctrchccecctetensees 25

CIE is ie ee eT 38

CITATIONS

Cases:

Adams v. United States ex rel. McCann,

Be NC I sictachitronnemekenitanaskeasedhoteacieeseus 18

Il

Cases-—Continued Page

Bachner v. United States, 517 F.2d 589.... 23, 28,

30

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

denied, 124 U.S. 918 ........--.--------s00-++--+ 30

Blackledge v. Allison, 431 U.S. 68....18, 16, 34, 36

Bowen v. Johnston, 306 U.S. 19 .....----------- 12,15

Brown v. Allen, 344 U.S. 448 .........---.---- 18

Bunker v. Wise, 550 F.2d 1155 .............,.- 27

Cupp v. Naughten, 414 i: %" ) So 23

Davis v. United States, 417 U.S. 338........ 9, 11,

16, 19, 22, 25, 26

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

OE ci tenn aieteaneetiscma 26, 27, 28, 35

Estep v. United States, 327 U.S, 114 ........ 20

Fay v. Noia, 372 U.S. 391 .......... 10, 16, 18, 19, 25

Fontaine v. United States, 411 U.S. 213.. 28

Frank v. Mangum, 237 U.S. 309 -.........---- 17

Green v. United States, 365 U.S. 301....... . 21

Halliday v. United States, 394 U.S. 831... 32, 36

Harris v. Nelson, 394 U.S. 286 ............---- 34

Henderson v. Kibbe, 481 U.S. 146 ........ 14, 28, 25

Henderson v. Morgan, 426 U.S. 6387.......-.- 28

Hill v. United States, 368 U.S. 424........ 9,11, 15,

20, 21, 25, 34

Hitchcock v. United States, 580 F.2d 964.. 27

Horsley v. United States, 583 F.2d 670.... 26

House v. Mayo, 324 U.S. 42 .......-----------+-+- 18

Johnson v. Wainwright, 456 F.2d 1200... 30

Johnson v. Zerbst, 304 U.S. 458 .........---.. 17,18

Kaufman v. United States, 394 U.S. 217.. 16,19

Kearney, Ex parte, 20 U.S. (7 Wheat.)

WD sc ccsissucnciaesentsehsaidsadicaiadainiaagibantilas 17

Keel v. United States, 585 F.2d 110 ........ | 26

Machibroda vy. United States, 368 U.S.

BG oasis sxctinsdascieaseaptbigeenidonaiaavaatoniediadae 21, 28

Ill

Cases—Continued Page

Marshall v. United States, 576 F.2d 160.. 27

McCarthy v. United States, 394 U.S. 459.. 8, 13,

31, 32, 33

McNally v. Hill, 298 U.S. 181 .................. 34

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

cert. denied, 429 U.S. 1045 —....0 0... 26

Mooney v. Holohan, 294 U.S. 108 ............ 18

Moore v. Dempsey, 261 U.S. 86 ..............-. 18

Peyton v. Rowe, 391 U.S. 54 .................--- 25

Price v. Johnston, 334 U.S. 266 ................ 18

. Richardson v. United States, 577 F.2d 447,

petition for cert. pending, No. 78-5263.. 28

Sanders v. United States, 373 U.S. 1 ...... 24

Schneckloth vy. Bustamonte, 412 U.S. 218.. 24

Siebold, Ex parte, 100 U.S. 871 2.000200... 17

Stone v. Powell, 428 U.S. 4665 ........ 11, 15, 16, 19,

23, 26, 35

Sunal v. Large, 332 U.S. 174 .......... 11, 12, 15, 16,

; 19, 20, 21, 26

United States v. Adams, 566 F.2d 962...... 14, 33

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

cert. denied, 421 U.S. 1013 0.00000... 36

United States v. Boatright, 588 F.2d 471.. 33

United States v. Boone, 543 F.2d 1090.... 33-34

United States v. Broussard, 582 F.2d 10,

cert. denied, No. 78-915 (Feb. 26,

AER stone ae ee Sey ae 14

United States v. Del Prete, 567 F.2d 928.. 14

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

cert. denied, 434 U.S. 884 200. 26

United States v. Hayman, 342 U.S. 205.... 16, 17

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

cert. denied, 429 U.S. 1101-00000... 5

United States v. Journet, 544 F.2d 6383.... 34

IV

Cases—Continued Page

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

cert. denied, 430 U.S. 930 .................----- 33

United States v. MacCollom, 426 U.S.

|, GE SRR Rihana eS cnet 16

United States v. Michaelson, 552 F.2d

RSME 00) pete COR ane ENE ee 34

United States v. Palter, 575 F.2d 1050...... 33

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

IE Oe Ses I caatateriscctbatetesninecens 6

United States v. Rivera-Marquez, 519

F.2d 1227, cert. denied, 423 0.S. 949... 5-6

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

cert. denied, 434 U.S. 824 ..................---- 33

United States v. Sheppard, 588 F.2d 917.. 28

United States v. Sobell, 314 F.2d 314,

cert. denied, 374 U.S. 857 ...........----------- 35

United States v. Turner, 572 F.2d 1284... 30

United States v. Tursi, 576 F.2d 396 ...... 27

United States v. Walden, 578 F.2d 966.... 5

United States v. Watson, 548 F.2d 1058.. 32

United States v. White, 572 F.2d 1007.... 26

United States v. Wolak, 510 F.2d 164...... 8

United States v. Yazbeck, 524 F.2d 641.... 27

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

ERAS AS SRR GRGONS NP MELT hy A loc are 21

Von Moltke v. Gillies, 332 U.S. 708 -....... 18

Wainwright v. Sykes, 483 U.S. 72 ..........-- 15-16

Waley v. Johnston, 316 U.S. 101......10, 18, 25, 26

Walker v. Johnson, 312 U.S, 275 .............. 18

Watkins, Ex parte, 28 U.S. (3 Pet.) 193.. 10,17

Watkins, Ex parte, 32 U.S. (7 Pet.)

UY eas aiincestinsetca daceicneieainas ecb iamialiakanicsaninond 17

Yerger, Ex parte, 75 U.S. (8 Wall.) 85... 17

v

Statutes and rules: Page

Act of February 5, 1867, ch. 28, 14 Stat.

eee kei 18

Comprehensive Drug Abuse Prevention

and Control. Act of 1970, Pub. L. No.

91-513, 84 Stat. 1236, 21 U.S.C. 801

et seq.:

BR Weis MOM MID UR) cnccvccccemncesecosseses 4

Bee UI ED asco ccswestenserines 5

RR AR MD eaciissescsenccerascvtncitnsinse 6

Bee, We TED ec oecccccccesacesnascivoccten 4

PP MI site venchnndmesbvanacedainsinns 4

See ne MI one oer ok 8 Passim

Federal Rules of Criminal Procedure:

i SSL TL LE SIAL LI Passim

ESR aeRO AEE a 3

SIONS oi 3,13

cot: JERE (5 a aera 3-4, 37

LL | cee ed 33

E.R ES RECT Rens eer ee an 21

UN ac re 34

Nn IR Soc oo Oo Be 33

Miscellaneous:

1977 Annual Report of the Director of

the Administrative Office of the United

Ns 37

Bator, Finality in Criminal Law and Fed-

eral Habeas Corpus for State Prisoners,

76 Harv. L. Rev. 441 (1968) 00000. 16, 23

P. Bator, P. Mishkin, D. Shapiro, & H.

Wechsler, Hart & Wechsler’s The Fed-

eral Courts and the Federal System

NE TE WER eichcctichcsantdcsiscinscptnicmianueuscas 16

vi

Miscellaneous—Continued Page

Bureau of Prisons Policy Statement

7600.48 (January 18, 1978) ............. 6

A EG. | Enemas 14

Friendly, Js Innocence Irrelevant? Collat-

eral Attack on Criminal Judgments, 38

U. Chi. L. Rev. 142 (1970) .............. 17, 23, 36

Mayers, The Habeas Corpus Act of 1867:

The Supreme Court as Legal Historian,

83 U. Chi. L. Rev. 31 (1965) ................ 16

Note, Developments in the Law—Federal

Habeas Corpus, 88 Harv. L. Rev. 1038

6 RRA RS ea Se 16

Note, Rule 11 and Collateral Aétack

on Guilty Pleas, 86 Yale L. J. 1895

eR Rlaiibihoratdantilecaintcebiiasiad in rarcintinensninnanses 13

Oaks, Legal History in the High Court—

Habeas Corpus, 64 Mich. L. Rev. 451

ENGIN | siclieabiccibsshtieonscincalecniaincacsiintiintetinlpnannietionnee 16, 17

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-744

UNITED STATES OF AMERICA, PETITIONER

Vv.

CHARLES TIMMRECK

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

12a) is reported at 577 F.2d 372. The memorandum

opinion of the district court (Pet. App. 15a-23a) is

reported at 423 F. Supp. 537.

JURISDICTION

The judgment of the court of appeals (Pet. App.

13a) was entered on June 12, 1978. A petition for

rehearing was denied on Augvist 7, 1978 (Pet. App.

(1)

14a). On October 26, 1978, Mr, Justice Stewart ex-

tended the time within which to file a petition for a

writ of certiorari to and including November 16,

1978. The petition was filed on November 3, 1978,

and was granted on January 8, 1979 (App. 27). The

jurisdiction of this Court rests upon 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 Federal

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 otherwise subject to col-

lateral 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 Procedure 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 defendant

personally and determining that the plea is made

voluntarily with understanding of the nature of

the charge and the consequence of the plea.

Rule 11(¢) now provides:

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 rep-

resented by an attorney at every stage of the

proceeding against him and, if necessary,

one will be appointed to represent him; and

(3) that he has the right to plead not

guilty or to persist in that plea if it has

already 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

4

(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 on May 19, 1972, in

the United States District Court for the Eastern Dis-

trict of Michigan charged respondent and 21 co-

defendants with conspiracy to manufacture and dis-

tribute, and to possess with intent to distribute,

heroin, cocaine, LSD, and other controlled substances,

in violation of 21 U.S.C. 846, and with various sub-

stantive 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 dismissed and the government

would not prosecute him for a bail violation, respond-

ent 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 Pro-

cedure, the prosecutor disclosed the existence and

terms of the plea agreement (App. 2). The district

court then questioned respondent and determined that

he was not suffering from any physical or mental

impairment, that he was fully aware of what he was

doing, and that he understood the constitutional rights

5

that he would waive by pleading guilty (App. 3-4).

The court informed respondent that he could be sen-

tenced to a maximum of 15 years’ imprisonment and

a $25,000 fine if the plea were accepted,’ but it failed

to mention that respondent would also be subject to a

mandatory special parole term of at least three years.’

1 The pertinent colloquy was as follows (App. 4-5) :

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 imprisonment?

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

substantial 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: And I 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.

THE DEFENDANT: Yes, sir.

THE COURT: You understand that?

THE DEFENDANT: Yes, sir.

* Section 401(b) of the Comprehensive Drug Abuse Preven-

tion and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1261,

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

tion of the Act must 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 v. Rivera-Marquez, 519 F.2d 1227, 1228-1229

6

After the court outlined the nature of the charges,

respondent explained his involvement in the con-

spiracy and confessed to his guilt (App. 6-8). Re-

spondent 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 (App. 9). 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 * * *” (App. 9). The court then accepted re-

spondent’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 (App. 9-10). Thereafter, on September 19,

1974, respondent was sentenced to 10 years’ imprison-

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

to a $5,000 fine.

2. Respondent did not appeal. Approximately two

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

(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 terminates, 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 supervision 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 may be returned to prison to serve the entire special

parole term, not merely the unexpired portion. 21 U.S.C.

841(c).

7

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 (App. 20), but he did acknowledge that, before

a client pleaded guilty, it was his practice to review

with the client the possible sentences that could be

imposed (App. 20-21). 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 (App. 22-23).

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

parole provisions (Pet. App. 16a), the court con-

*Respondent’s motion was initially filed as part of the

criminal proceedings. On September 18, 1976, respondent

filed an “Amended Motion to Vacate Guilty Plea,” bearing the

civil number assigned to the case and designating himself as

plaintiff and the United States as defendant (App. 11-13).

The motion was otherwise unchanged.

8

cluded that respondent had not been prejudiced by the

omission and that he therefore was not entitled to col-

lateral relief from his conviction. The court observed

that respondent’s total sentence did not exceed the

maximum sentence that he was informed he could re-

ceive as a result of his guilty plea (id. at 18a). In

addition, the court found that respondent’s plea had

been entered voluntarily and that the technical defect

had not influenced the plea or resulted in any funda-

mental unfairness (id. at 22a). In making this de-

termination, the court expressly relied on defense

counsel’s assurance at the Rule 11 proceeding that he

had advised respondent. about the possible conse-

quences of his guilty plea and on the fact that two

years had elapsed between respondent’s sentencing,

when the Rule 11 violation should have been apparent

to him and his attorney, and the filing of the Section

2255 motion (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 164

(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

9

was to allow respondent to withdraw the plea (Pet.

App. la-12a).

The court recognized (Pet. App. 10a) that Mc-

Carthy 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 does not seem to

rise to the level” required to satisfy the Davis test

(Pet. App. 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).

SUMMARY OF ARGUMENT

A district court’s failure to observe the formal re-

quirements of Rule 11 of the Federal Rules of Crimi-

nal Procedure in accepting a defendant’s guilty plea

is a defect cognizable only on direct appeal, not on

collateral attack.

A. The writ of habeas corpus has traditionally

been available to test the legality of confinement. At

the time the Constitution was adopted, however, the

writ could be used solely to verify the jurisdiction of

10

the sentencing court. Construing the habeas corpus

provisions of the Judiciary Act of 1789 in Ex parte

Watkins, 28 U.S. (3 Pet.) 193, 203 (1830), Chief

Justice Marshall wrote that “[a]n imprisonment un-

der a judgment cannot be unlawful, unless that judg-

ment be an absolute nullity; and it is not a nullity if

the court has general jurisdiction of the subject, al-

though it should be erroneous.”

An expansion of the statutory language in 1867,

together with emerging concepts of due process in

criminal proceedings, eventually led the Court to dis-

card the concept of jurisdiction as the touchstone for

access to federal post-conviction relief and to acknowl-

edge that such relief is available for claims of “dis-

regard of the constitutional rights of the accused,

and where the writ is the only effective means of

preserving his rights.” Waley v. Johnston, 316 U.S.

101, 104-105 (1942). As the Court remarked in Fay

v. Noia, 372 U.S. 391, 409 (1963), “[t]he course of

decisions * * * makes plain that restraints contrary to

our fundamental law, the Constitution, may be chal-

lenged on federal habeas corpus even though imposed

pursuant to the conviction of a federal court of com-

petent jurisdiction.”

The present federal habeas corpus statute, 28

U.S.C. 2255, allows a prisoner to assert not only con-

stitutional and jurisdictional claims, but also claims

founded upon “the laws of the United States.” By

contrast to the steady expansion of the substantive

scope of the writ in regard to constitutional claims,

however, “there has been no change in the established

11

rule with respect to nonconstitutional claims” (Stone

v. Powell, 428 U.S. 465, 477 n.10 (1976) ), which is

that “the writ of habeas corpus is not designed for

collateral review of errors committed by the trial

court” and “will not be allowed to do service for an

appeal” (Sunal v. Large, 332 U.S. 174, 178, 179

(1947) ).

Hence, the Court has repeatedly emphasized 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.” Absent a mistake of

constitutional or jurisdictional dimensions, ‘‘the ap-

propriate inquiry [is] whether the claimed error of

law was ‘a fundamental defect which inherently re-

sults in a complete miscarriage of justice’ * * *.”

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

quoting Hill y. United States, 368 U.S. 424, 428-429

(1962).

B. Respondent’s Section 2255 motion, which is

based solely upon a technical violation of Rule 11,

does not raise the sort of claim cognizable on collateral

attack. The failure to inform respondent of the

special parole provisions at the time of his guilty plea

did not implicate any constitutional rights or juris-

dictional defects and amounted to no more than a

violation of a rule of criminal procedure. Moreover,

it is not manitestly unjust to hold respondent to his

plea. His motion to vacate sentence did not allege that

he was actually unaware of the special parole pro-

12

visions, much less that he would not have pleaded

guilty if he had been fully informed of this conse-

quence 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. In addition, respondent’s sentence,

even with the inclusion of five years’ special parole,

does not exceed the term of imprisonment that he was

advised he could receive if he pleaded guilty.

Finally, respondent’s Section 2255 motion 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

(1939). Since the trial judge’s failure to follow Rule

11 should have been immediately apparent to respond-

ent and his counsel at sentencing, this is not a case

where “the facts relied on were dehors the record and

therefore not open to consideration and review on

appeal.” Sunal v. Large, supra, 232 U.S. at 177.

The strong societal interest in the finality of judg-

ments suggests that, in this situation, respondent

should have challenged the Rule 11 error on direct

appeal or not at all. Permitting a plea of guilty to be

vacated years after it has been entered, for reasons

unrelated to guilt, would provide incentives for de-

fendants to scour the record of their Rule 11 pro-

ceeding 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 dis-

prove allegations concerning distant events surround-

ing the plea or when a reprosecution on the underly-

13

ing offense may be difficult or impossible. As the

Court recently observed in Blackledge vy. Allison, 431

U.S. 63, 71 (1977), “Tm ore often than not a prisoner

has everything to gain and nothing to lose from filing

a collateral attack upon his guilty plea.”

ARGUMENT

A DEFENDANT IS NOT ENTITLED TO COLLAT-

ERAL RELIEF FROM HIS CONVICTION UNDER 28

U.S.C. 2255 MERELY BECAUSE THE DISTRICT

COURT VIOLATED RULE 11 OF THE FEDERAL

RULES OF CRIMINAL PROCEDURE IN ACCEPT-

ING HIS GUILTY PLEA

In McCarthy v. United States, 394 U.S. 459, 472

(1969), this Court held that ‘a defendant whose plea

has been accepted in violation of Rule 11 [of the

Federal Rules of Criminal Procedure] should be aft-

forded the opportunity to plead anew * * *,.” It is

undisputed that, at the time he pleaded guilty, re-

spondent was not advised of the mandatory special

parole term, which we acknowledge to be a “conse-

quence of the plea.” * In reliance on McCarthy, the

*Respondent’s guilty plea was entered under the 1966 ver-

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

mine that the defendant under&tood “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 rec-

ord 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. See

Note, Rule 11 and Collateral Attack on Guilty Pleas, 86 Yale

L. J. 1895, 1897 n.9 (1977). As the Advisory Committee re-

14

court of appeals concluded that the omission entitled

respondent to vacate his conviction under 28 U.S.C.

2255 and to plead anew (Pet. App. 3a-4a).

The court of appeals’ decision ignores the essential

distinction between direct and collateral attacks upon

a conviction. The ruling in McCarthy was announced

in the context of a direct appeal from a conviction

entered after a guilty plea proceeding conducted in

gross disregard of the requirements of Rule 11. Re-

spondent, by contrast, did not appeal his conviction.

Instead, he raised the Rule 11 violation for the first

time years later on a motion to vacate sentence pur-

suant to Section 2255, which permits a federal prison-

er to assert a claim that his confinement is “in vio-

lation of the Constitution or the laws of the United

States.” 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

marked, “[t]he objective is to insure that a defendant knows

what minimum sentence the judge must impose 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 ad-

vice tells a defendant the shortest mandatory sentence and

also the longest possible sentence 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 special

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. Broussard, 582 F.2d 10, 12

(5th Cir. 1978), cert. denied, No. 78-915 (Feb. 26, 1979);

United States v. Adams, 566 F.2d 962, 969 (5th Cir. 1978).

15

proceeding under Section 2255 is not whether “errors

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

whether the defendant’s confinement offends the Con-

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

(1947) ) or otherwise presents “exceptional circum-

tances where the need for the remedy afforded by the

writ of habeas corpus is apparent.” Bowen v. Johns-

ton, 306 U.S. 19, 27 (1939). Thus, merely because

the district court’s failure to comply with the require-

ments 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 available in a collateral attack on the con-

viction.

A. A Failure to Comply with the Formal Requirements

of a Federal Rule of Criminal Procedure, Without

More, Is Not Cognizable under 28 U.S.C, 2255

This Court has frequently had occasion to examine

the common-law scope of the writ of habe..s corpus

and its historical development in England and the

United States.’ See, e.g., Wainwright v. Sykes, 433

’ Although the Court need not reach the issue in this case,

we question whether the technical Rule 11 defect involved

here, which resulted in no prejudice to respondent, should

require a court to set aside respondent’s guilty plea even on

direct appeal. See page 33 note 19, infra.

* As “the modern postconviction procedure available to fed-

eral prisoners” (Stone v. Powell, 428 U.S. 465, 479 (1976)),

28 U.S.C. 2255 is intended to provide a remedy “exactly com-

mensurate with that which had previously been available by

habeas corpus” (Hill v. United States; 368 U.S. 424, 427

16

U.S. 72, 77-80 (1977); Stone v. Powell, 428 U.S. 465,

474-482 (1976); Kaufman v. United States, 394 U.S.

217, 221-224 (1969); Fay v. Noia, 372 U.S. 391, 399-

415 (1963); United States v. Hayman, 342 U.S. 205,

210-213 (1952). Although the appropriate scope of

the writ in modern times has been the subject of some

dispute both within the Court ‘ and among legal com-

mentators * and cannot easily be compressed into a

rigid rule or set formula, it is apparent from even a

brief review of the Court’s decisions that the reach of

Section 2255 has never been thought to extend to

claims such as that respondent has presented in this

case.

1. At the time the Constitution was adopted, the

rule at common law was that “once a person had been

convicted by a superior court of general jurisdiction,

a court disposing of a habeas corpus petition could

not go behind the conviction for any purpose other

(1962)) “and has been construed in accordance with that

design” (Blackledge v. Allison, 431 U.S. 68, 74 n.4 (1977)).

See United States v. MacCollom, 426 U.S. 317, 322 (1976);

Davis v. United States, 417 U.S. 338, 343-344 (1974).

7 See, e.g., Davis v. United States, supra, 417 U.S. at 350-

368 (Rehnquist, J., dissenting) ; Fay v. Noia, supra, 372 U.S.

at 448-476 (Harlan, J., dissenting) ; Sunal v. Large, supra,

332 U.S. at 184-187 (Frankfurter, J., dissenting).

* See, e.g., Oaks, Legal History in the High Court—Habeas

Corpus, 64 Mich. L. Rev. 451 (1966); Bator, Finality in

Criminal Law and Federal Habeas Corpus for State Prison-

ers, 76 Harv. L. Rev. 441 (1963); Mayers, The Habeas

Corpus Act of 1867: The Supreme Court as Legal Historian,

33 U. Chi. L. Rev. 31 (1965); Note, Developments in the

Law—Federal Habeas Corpus, 83 Harv. L. Rev. 1038 (1970).

See also P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler,

Hart & Wechsler’s The Federal Courts and the Federal Sys-

tem, ch. X, at 1424-1588 (2d ed. 1978). |

17

than to certify the formal jurisdiction of the commit-

ting court.” Oaks, Legal History in the High Court—

Habeas Corpus, 64 Mich. L. Rev. 451, 468 (1966).

As the Court stated in United States v. Hayman,

supra, 342 U.S. at 210-211:

Although the objective of the Great Writ long

has been the liberation of those unlawfully im-

prisoned, at common law a judgment of convic-

tion rendered by a court of general criminal jur-

isdiction was conclusive proof that confinement

was legal. Such a judgment prevented issuance

of the writ without more.

The early decisions of this Court reflected a similar

understanding. See Ex parte Kearney, 20 U.S. (7

Wheat.) 38, 44-45 (1822); Ex parte Watkins, 28

U.S. (38 Pet.) 193, 202-203 (1830); Ex parte Wat-

kins, 32 U.S. (7 Pet.) 568, 574 (1833); Ex parte

Yerger, 75 U.S. (8 Wall.), 85, 101 (1868). See also

Frank v. Mangum, 237 U.S. 309, 329-331 (1915).°

*In Ex parte Siebold, 100 U.S. 371 (1879), the scope of

habeas corpus was broadened to include claims that the de-

fendant had been convicted under an unconstitutional statute.

However, the Court was careful, to use Judge Friendly’s

phrase, “to kiss the jurisdictional book.” Friendly, Js Inno-

cence Irrelevant? Collateral Attack on Criminal Judgments,

88 U. Chi. L. Rev. 142, 151 (1970). “[I]f the laws are un-

constitutional and void,” Justice Bradley wrote in Siebold,

“the Circuit Court acquired no jurisdiction of the causes.”

100 U.S. at 377. Indeed, as late as 1938 the Court felt the

need to justify the grant of habeas corpus relief to a defend-

ant who had been convicted without the assistance of counsel

by stating that “compliance with [the Sixth Amendment’s]

mandate is an essential jurisdictional prerequisite to a fed-

eral court’s authority to deprive an accused of his life or lib-

erty.” Johnson v. Zerbst, 304 U.S. 458, 467.

18

In 1867, Congress expanded the statutory language

so as to make the writ available to state as well as

federal prisoners. Act of February 5, 1867, ch. 28,

14 Stat. 385. Under this statute, federal courts were

authorized to grant relief in “all cases where any per-

son may be restrained of his or her liberty in violation

of the constitution, or of any treaty or law of the

United States * * *.” Although the limitation of fed-

eral habeas corpus to considerations of jurisdiction con-

tinued to persist for some time, the broadened lan-

guage of the 1867 statute, together with emerging

concepts of due process, led the Court eventually to

acknowledge that “the use of the writ in the federal

courts to test the constitutional validity of a convic-

tion for crime is not restricted to those cases where

the judgment of conviction is void for want of juris-

diction of the trial court to render it. It extends also

to those exceptional cases where the conviction has

been in disregard of the constitutional rights of the

accused, and where the writ is the only effective

means of preserving his rights.” Waley v. Johnston,

316 U.S. 101, 104-105 (1942). See Moore v. Demp-

sey, 261 U.S. 86 (1923); Mooney v. Holohan, 294

U.S. 103 (1935); Johnson v. Zerbst, 304 U.S. 458

(1938); Walker v. Johnson, 312 U.S. 275 (1941);

Adams v. United States ex rel McCann, 317 U.S. 269

(1942); House v. Mayo, 324 U.S. 42 (1945); Von

Moltke v. Gillies, 332 U.S. 708 (1948); Price v.

Johnston, 334 U.S. 266 (1948); Brown v. Allen, 344

U.S. 443 (1953). The Court reviewed this back-

ground in Fay v. Nowa, 372 U.S. 391 (1963), and

19

concluded that “[t]he course of decisions * * * makes

plain that restraints contrary to our fundamental

law, the Constitution, may be challenged on federal

habeas corpus even though imposed pursuant to the

conviction of a federal court of competent jurisdic-

tion.” Jd. at 409 (footnote omitted).

Section 2255, of course, allows a prisoner to assert

not only constitutional and jurisdictional claims, but

also claims founded upon “the laws of the United

States.” However, by contrast to the steady expan-

sion of the substantive scope of the writ in regard to

constitutional claims, ‘“‘there has been no change in

the established rule with respect to nonconstitutional

claims” (Stone v. Powell, supra, 428 U.S. at 477

n.10), which is that “[t]he writ of habeas corpus

* * * ‘will not be allowed to do service for an appeal’ ”

(ibid., quoting Sunal v. Large, supra, 332 U.S. at

178). Because “the writ is not designed for collateral

review of errors of law committed by the trial court

** *” (Sunal v. Large, supra, 332 U.S. at 179),

“not * * * every asserted error of law can be raised

on a § 2255 motion.” Davis v. United States, supra,

417 U.S. at 346. In general, “nonconstitutional claims

that could have been raised on appeal, but were not,

may not be asserted in collateral proceedings.” Stone

v. Powell, supra, 428 U.S. at 477 n.10. See also Davis

v. United States, supra, 417 U.S. at 345-846; Kawf-

man v. United States, supra, 394 U.S. at 223 n.7;

Sunal vy. Large, supra, 332 U.S. at 178-179.

In Sunal v. Large, supra, for example, two defend-

ants were found guilty of failing to submit to induc-

20 *

»

tion into the Army, but neither appealed his convic-

tion. Nine months later, this Court held in Estep v.

United States, 327 U.S. 114 (1946), that the statu-

tory defense that the district court had barred the

defendants from raising at trial should have been

allowed. Defendants immediately sought relief under

Section 2255, but the Court held that the error was

correctable only by direct appeal, not on collateral

attack.” In denying habeas corpus relief, Justice

Douglas observed for the Court (332 U.S. at 182):

Every error is potentially reversible error; and

many rulings of the trial court spell the differ-

ence between conviction and acquittal. If de-

fendants who accept the judgment of conviction

and do not appeal can later renew their attack

on the judgment by habeas corpus, litigation in

these criminal cases will be interminable. Wise

judicial administration of the federal courts

counsels against such course, at least where the

error does not trench on any constitutional rights

of defendants nor involve the jurisdiction of the

trial court.

The Court reemphasized these important principles

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

the question presented was “whether a district court’s

failure explicitly to afford a defendant an opportunity

1” Even the dissenting Justices in Sunal agreed that trial

errors ordinarily would not fall within the scope of habeas

corpus and that the writ should be reserved for instances in

which it is necessary “to prevent a complete miscarriage of

justice.” 332 U.S. at 187 (Frankfurter, J., dissenting) ; id,

at 188 (Rutledge, J., dissenting).

21

to make a statement at the time of sentencing furnish-

e[d], without more, grounds for a successful collateral

attack upon the judgment and sentence.” Jd. at 426

(footnote omitted), Although the right of allocution

was expressly guaranteed to a defendant by Rule

32(a) of the Federal Rules of Criminal Procedure

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

vacation of the sentence when raised on direct appeal

(Van Hook vy. 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 require-

ments of the Rule.” 368 U.S, at 429 (footnote omitted).

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 Machibroda y, United States, 368 U.S. 487,

489 (1962).

22

This standard was applied most recently in Davis

v. United States, supra, which involved a change in

the substantive law applicable to the defendant’s case,

rather than a procedural error. Although the Court

expressly reaffirmed the traditional limitation on the

scope of habeas corpus for nonconstitutional errors

(417 U.S. at 346), it held that “[t]here can be no

room for doubt that” the claim of an intervening

change in law, under which the act for which the

defendant had been convicted was no longer criminal,

constitutes “a circumstance [that] ‘inherently results

in a complete miscarriage of justice’ and ‘present[s|

exceptional circumstances’ that justify collateral re-

lief under § 2255.” Id. at 346-347.”

These decisions clearly indicate that while Section

2255 encompasses claims of legal, as well as juris-

dictional and constitutional, error, the applicable

standard is no less stringent than the notion of fair-

ness embodied in the Due Process Clause. Under the

test articulated in Hill, a conviction entered on the

basis of a procedural error sufficiently serious to be

characterized as “a fundamental defect which in-

herently results in a complete miscarriage of justice”

would approach or amount to a deprivation of due

process and would justify habeas corpus relief. And

or |

" Davis distinguished Sunal on the grounds that the defend-

ants in Sunal had not appealed their convictions and that

Sunal was not a case in which the law had changed after the

time for appeal had expired. 417 U.S. at 345. As we discuss

below (see pages 26, 33-36, infra), this case resembles Sunal

on both scores.

23

Davis merely applied the same “standard * * * to

substantive matters not protected by the Constitu-

tion.” Bachner v, Uniied States, 517 F.2d 589, 598-

599 (7th Cir. 1975) (Stevens, J., concurring). At all

events, the appropriate inquiry on collateral attack is

not whether an error of law may have been com-

mitted, as would be the case on direct review, but

whether the “resulting conviction violates due proc-

ess.” Cupp v. Naughten, 414 U.S. 141, 147 (1973).

See Henderson v. Kibbe, swpra, 431 U.S. at 154.

3. The policy reasons that underlie the distinction

in post-conviction remedies between constitutional and

nonconstitutional claims are not difficult to perceive.

Resort to the writ “results in serious intrusions on

values important to our system of government [in-

cluding| the most effective utilization of limited

judicial resources [and] the necessity of finality in

criminal trials * * *.” Stone v. Powell, supra, 428

U.S. at 491 n.31."" While the consideration of finality

of judgments has different force in civil and criminal

contexts, it is in basic harmony with the goals of

deterrence and rehabilitation embodied in the criminal

justice system:

No effective judicial system can afford to con-

cede the continuing theoretical possibility that

there is error in every trial and that every in-

carceration is unfounded. At some point the

See generally Friendly, Js Innocence Irrelevant? Collat-

eral Attack on Criminal Judgments, supra, 38 U. Chi. L. Rev.

at 146-151; Bator, Finality in Criminal Law and Federal

Habeas Corpus for State Prisoners, supra, 76 Harv. L. Rev.

at 444-458.

24

law must convey to those in custody that a wrong

has been committed, that consequent punishment

has been imposed, that one should no longer look

back with the view to resurrecting every imagin-

able basis for further litigation but rather should

look forward to rehabilitation and to becoming a

constructive citizen.

Schneckloth v. Bustamonte, 412 U.S. 218, 262 (1973)

(Powell, J., concurring). See Sanders v. United

States, 373 U.S. 1, 24-25 (1963) (Harlan, J., dis-

senting).

. Habeas corpus proceedings also drain scarce com-

munity legal resources, including judges, prosecutors,

appointed defense counsel and even courtrooms:

Those resources are limited but demand on

them constantly increases. There is an insistent

call on federal courts both in civil actions, many

novel and complex, which affect intimately the

lives of great numbers of people and in original

criminal triais and appeals which deserve our

most careful attention. To the extent the federal

courts are required to re-examine claims on col-

lateral attack, they deprive primary litigants of

their prompt availability and mature reflection.

After all, the resources of our system are finite:

their overextension jeopardizes the care and

quality essential to fair adjudication.

Schneckloth v. Bustamonte, supra, 412 U.S. at 260-

261 (Powell, J., concurring) (footnotes omitted).

Finally, because collateral attack may be long delayed,

it is frequently difficult to determine with reliability

the factual issue giving rise to the attack. Cf. Rule

25

9(a), Rules Governing Section 2255 Proceedings, 28

U.S.C, 2255. And although a successful attack gener-

ally entitles the defendant only to a retrial, a long de-

lay often makes another trial impossible because wit-

nesses may die, memories may fade, or evidence may

be lost or released. See Peyton v. Rowe, 391 U.S. 54,

62-63 (1968).

While society may be willing to incur these costs in

order to correct errors of constitutional magnitude

or to benefit a prisoner Who has been “grievously

wronged” (Fay v. Noia, supra, 372 U.S. at 441), where

“the writ is the only effective means of preserving his

rights” (Waley v. Johnston, supra, 316 U.S. at 104-

105), the competing considerations outlined above

surely dictate a contrary result in cases of nonconsti-

tutional violations, especially when those violations

could have been challenged on direct appeal. In sum,

“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.” Davi v. United

States, supra, 417 U.S. at 346, quoting Hill v. United

States, supra, 368 U.S. at 429.

B. The Rule 11 Violation in This Case Does Not Entitle

Respondent to Relief under 28 U.S.C. 2255

1. Viewed against the background’ of the scope of

habeas corpus, it is apparent that respondent’s Section

2255 motion, which was based solely on a technical

violation of Rule 11 without any allegation or proof

of prejudice, does not raise the sort of claim that may

—

26

be recognized on collateral attack. A claim of this

nature does not relate to rights protected by the Con-

stitution, but rather is founded in the “laws of the

United States,” here, the procedures set forth in Rule

11. See App. 11. Moreover, because “[t]he error

was of record,” it does not present “a situation where

the facts relied on were dehors the record and there-

fore not open to consideration and review on appeal.”

Sunal v. Large, supra, 332 U.S. at 177. Compare

Waley v. Johnston, supra, 316 U.S. at 104. Nor is

this a case where “the law was changed after the time

for appeal had expired.” Sunal v. Large, supra, 332

U.S. at 181. See Davis v. United States, supra, 417

U.S. at 346-347. Accordingly, respondent’s objection

amounts to no more than a “nonconstitutional claim

that could have been raised on appeal, but [was] not,”

and therefore “may not be asserted in collateral pro-

ceedings.” Stone v. Powell, supra, 428 U.S. at 477

n.10.”

‘8 This conclusion is supported by the decisions of six courts

of appeals which, in reliance on Davis and Hill, have held that

a defendant may not obtain Section 2255 relief merely be-

cause the district court violated Rule 11 in accepting his

guilty plea. See, e.g., Keel v. United States, 585 F.2d 110

(5th Cir. 1978) (en banc) ; United States v. White, 572 F.2d

1007 (4th Cir. 1978) ; United States v. Hamilton, 553 F.2d 63

(10th Cir.), cert. denied, 484 U.S. 884 (1977); Del Vecchio

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

United States, 540 F.2d 948 (8th Cir. 1976), cert. denied, 429

U.S. 1045 (1977); Bachner v. United States, 517 F.2d 589

(7th Cir. 1975). Cf. Horsley v. United States, 588 F.2d 670

(8d Cir. 1978) (adopting the Hill and Davis standard but

holding that the failure adequately to inform a defendant of

the nature of the charges against him, unlike a failure to

27

We do not suggest, of course, that contentions re-

lating to the taking of a guilty plea may never be

asserted in a Section 2255 motion. A defect in the

Rule 11 proceeding that is “fundamental” and that

“inherently results in a complete miscarriage of

justice” or presents “exceptional circumstances where

the need for the remedy afforded by the unit of habeas

corpus is apparent” would justify collateral relief.

For example, where, as here, the violation relates to

the trial judge’s failure to notify the defendant of the

mandatory special parole provisions, prejudice suf-

ficient to warrant habeas corpus relief would be

demonstrated by a showing that the defect in fact

rendered the plea involuntary (for example, if the

defendant would not have pleaded guilty had he been

mention the maximum possible punishment, is inherently

prejudicial).

Although the First and Ninth Circuits have granted Sec-

tion 2255 relief in circumstances similar to this case (see .

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

Bunker v. Wise, 550 F.2d 1155 (9th Cir. 1977) ), neither court

of appeals analyzed the issue in terms of the distinction be-

tween direct and collateral attack (see Del Vecchio v. United

States, supra, 556 F.2d at 111 n.8), and subsequent decisions

in each circuit strongly suggest that the courts might reach a

contrary result if the issue were again presented. See United

States v. Tursi, 576 F.2d 896, 899 (1st Cir. 1978) ; Marshall

v. United States, 576 F.2d 160, 162 (9th Cir. 1978) ; Hitchcock

Vv. United States, 580 F.2d 964, 966 (9th Cir. 1978). Thus, the

Sixth Circuit is the only court of appeals to have acknowl-

edged the difference between a direct and collateral attack on

a guilty plea, to have found that the defendant suffered no

prejudice as a result of a Rule 11 violation, and then to have

granted Section 2255 relief.

28

aware of the special parole term)" or that it would be

manifestly unfair, in light of the absence of an ex-

press warning about special parole, to hold him to his

plea (for example, if the sentence imposed, with the

addition of the period of special parole, exceeded the

maximum sentence that the defendant was told he

could receive).’* See Del Vecchio v. United States,

supra, 556 F.2d at 111; Bachner v. United States,

supra, 517 F.2d at 597.

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 at the Rule 11

proceedings of the consequences of his plea (see App.

11-18). Although the memorandum of law submit-

ted in support of respondent’s Section 2255 motion

stated that “[d]efendant did not know of the manda-

tory special parole term” (App. 16), this allegation,

unlike the contents of the motion, was not verified,

and respondent did not offer to submit an affidavit

1% A conviction entered upon an involuntary plea of guilty

is subject to collateral attack. See Henderson v. Morgan, 426

U.S. 637, 645 (1976) ; Fontaine v. United States, 411 U.S. 213

(1973) ; Machibroda v. United States, supra, 368 U.S. at 493.

15 In that circumstance, the proper remedy under Section

2255 would be to reduce the defendant’s sentence to comport

with the information he was given 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. Cf. United

States v. Sheppard, 588 F.2d 917, 918 (4th Cir. 1978). Sec-

tion 2255 allows a court, upon finding that “the sentence

imposed was * * * open to collateral attack,” to “correct the

sentence as may appear appropriate.”

29

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 the plea (App. 9)

and his acknowledgment at the hearing on respond-

ent’s motion to vacate sentence that, before a client

pleaded guilty, it was his practice to explain to the

client the possible sentences that could be imposed

(App. 20-21).

The district court concluded that, “under that state

of affairs,” it could “infer that [the special parole

term] was known to [respondent]” at the time of

his plea (App. 23). More important, the court ex-

pressly found that the additional information would

not have materially affected respondent’s decision to

enter into the plea agreement (Pet. App. 22a).

The court of appeals did not disturb this factual de-

termination, which is amply supported by the record.

As the Seventh Circuit has observed:

Unlike ineligibility for parole, which ‘“auto-

matically trebles the mandatory period of in-

earceration which an accused would receive un-

der normal circumstances,” the mandatory parole

term has no effect on that period of incarcera-

tion and does not ever become material unless

the defendant violates the conditions of his parole.

16 The district court remarked (App. 26): “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. * * * And what he was interested in, I’m sure,

was what the term in prison would be.”

a

30

It would be as 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 would be to assume

that he would be influenced by other contingencies

he is not advised about.

Bachner v. United States, swpra, 517 F.2d at 597

(citation omitted). See also 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 sig-

nificance”). Finally, as the district court noted (Pet.

App. 18a), respondent’s sentence of 10 years’ im-

prisonment and five years’ special parole was no

greater—indeed, was materially less, for all practical

purposes—than the term of 15 years’ imprisonment

that he was advised he could receive if he pleaded

guilty. See United States v. Turner, 572 F.2d 1284,

1285 (8th Cir. 1978); Bell v. United States, 521

F.2d 713, 715 (4th Cir. 1975), cert. denied, 424 U.S.

918 (1976).

2. In these circumstances, with no finding that

the district court’s technical noncompliance with one

aspect of Rule 11 rendered respondent’s plea either

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

riage of justice,” respondent was not entitled to re-

lief under Section 2255. Indeed, the court of appeals

conceded that the violation at issue here could not

satisfy the traditional standard for issuance of the

writ of habeas corpus (Pet. App. 9a). Nonetheless,

31

in an attempt to reconcile what it viewed as “some-

what contradictory language” in this Court’s deci-

sions restricting the scope of collateral attack for non-

constitutional errors in Davis and demanding strict

adherence to the requirements of Rule 11 in Mc-

Carthy (ibid.), the court below concluded that “a

Rule 11 violation is per se prejudicial and thus must

be a ‘fundamental defect which inherently results in

a complete miscarriage of justice’” (id. at 10a-1la).

Contrary to the court of appeals assumption, there

is no tension between the standards for Section 2255

relief articulated in Hill and Davis and the prophy-

lactie rule announced in McCarthy for noncompliance

with Rule 11.

McCarthy, it bears repeating, arose on direct ap-

peal and involved a seriously defective guilty plea

proceeding (conducted just two weeks after the effec-

tive date of the 1966 amendments to Rule 11) in

which the trial judge, in disregard of the Rule, had

not even ascertained whether the defendant under-

stood the charges against him. The “automatic re-

versal” remedy adopted by the Court was designed

in large part to ensure scrupulous adherence to the

new rule, which worked major, salutary changes in

the plea-taking process in the federal courts by re-

quiring personal interrogation of the defendant, on

the record, about the voluntariness of and factual

basis for his guilty plea.” The Court emphasized,

17 The Court observed (394 U.S. at 465; footnote omitted) :

[T]he procedure embodied in Rule 11 * * * is designed to

assist the district judge in making the constitutionally re-

quired determination that a defendant’s guilty plea is

22

however, that its decision was “based solely upon our

construction of Rule 11 and * * * our supervisory pow-

er over the lower federal courts,” rather than upon the

Constitution. McCarthy v. United States, supra, 394

U.S. at 464. See United States v. Watson, 548 F.2d

1058, 1062 n.7 (D.C. Cir. 1977). Moreover, although

the Court remarked that “prejudice inheres in a failure

to comply with Rule 11” (394 U.S. at 471), it did not

suggest that such prejudice—which was defined merely

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

cedural safeguards” (ibid.)—was of a magnitude

sufficient to warrant habeas corpus relief. Indeed,

strong evidence that the Court did not consider every

plea entered in violation of Rule 11 to be funda-

mentally unfair is supplied by its decision not to

apply McCarthy retroactively because of “the large

number of constitutionally valid convictions that may

have been obtained without full compliance with Rule

11.” Halliday v. United States, 394 U.S. 831, 833

(1969).”

truly voluntary * * * [and] is intended to produce a com-

plete record at the time the plea is entered of the factors

relevant to this voluntariness determination. Thus, the

more meticulously the Rule is adhered to, the more it

tends to discourage, or at least to enable more expeditious

disposition of, the numerous and often frivolous post-

conviction attacks on the constitutional validity of guilty

pleas.

18 In declining to hold McCarthy retroactive, the Court care-

fully drew a distinction between the remedies available for a

violation of the Rule and for an involuntary guilty plea

(Halliday v. United States, supra, 394 U.S. at 883) :

[A] defendant whose plea has been accepted without full

compliance with Rule 11 may still resort to appropriate

33

Hence, whatever the wisdom of continuing to re-

verse convictions on direct appeal, without a showing .

of prejudice, in order to encourage judges to comply

precisely. with the procedures outlined in Rule 11,”

post-conviction remedies to attack his plea’s voluntari-

ness. Thus, if his plea was accepted prior to our deci-

sion in McCarthy, he is not without a remedy to correct

constitutional defects in his conviction.

” Even on direct appeal, there is much to commend the

view that the “automatic reversal’? rule announced in Mc-

Carthy for every violation of Rule 11 has outlived its.useful-

ness and that the harmless error rule of Fed. R. Crim. P.

52(a) should be applied to inconsequential Rule 11 violations.

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. 980 (1977). But see, e.g., United States v. Palter,

575 F.2d 1050 (2d Cir. 1978) ; United States v. Adams, supra,

566 F.2d at 964-965. Trial judges are now aware of their

obligations under Rule 11, and reversals because of what are

at most isolated and inadvertent errors in accepting a guilty

plea no longer serve a substantial didactic function. What is

more, the 1975 amendments to Rule 11 have added substan-

tial baggage to a rule that previously had been limited to a

few considerations essential to the establishment of a know-

ing and intelligent plea. Rule 11(c) (5), for example, now

requires the court to inform a defendant “that if he pleads

guilty * * * the court may ask him questions about the of-

fense * * *, and if he answers these questions under oath * * *,

his answers may later be used against him in a prosecu-

tion for perjury * * *.” The Court certainly did not have this

type of requirement in mind when it stated in McCarthy that

“prejudice inheres in a failure to comply with Rule 11” (394

U.S. at 471), yet the lower courts have not hesitated to set

aside convictions in reliance on McCarthy because of noncom-

pliance with this portion of the rule. See United States v.

Boatright, 588 F.2d 471 (5th Cir. 1979); United States v.

34

violations of the Rule do not present a circumstance

in which “the need for the remedy afforded by the

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

States, supra, 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 obvious 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

special parole is announced, the defendant (if his

later allegations are in fact true) should be instantly

aware that he has been given a more severe sentence

than he anticipated could be imposed. It is not un-

reasonable 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.

Finally, even if the court: of appeals’ holding were

not wholly inconsistent with the traditional limita-

tions on the scope of collateral attack,” it would be

Boone, 548 F.2d 1090, 1092 (4th Cir. 1976). See also United

States v. Michaelson, 552 F.2d 472, 477 (2d Cir. 1977);

United States v. Journet, 544 F.2d 6338, 636-637 (2d Cir.

1976).

2° The court’s conclusion that Section 2255 relief is neces-

sary to “motivate strict compliance with Rule 11 in the fu-

ture” (Pet. App. 12a) detaches the writ of habeas corpus

from its historical moorings. The sole function of the writ is

to test “the legality of the detention of one in the custody of

another” (McNally v. Hill, 293 U.S. 181, 136 (1934) ; see also

Blackledge v. Allison, supra, 431 U.S. at 72; Harris v. Nelson,

894 U.S. 286, 290-291 (1969) ), not to establish prophylactic

35

unwise to extend the “automatic reversal” rule of

McCarthy to Section 2255 proceedings, where the

benefit of allowing review of Rule 11 errors “is

small in relation to the costs.” Stone v. Powell, supra,

428 U.S. at 493. Permitting a plea of guilty to be

vacated years after it has been entered, for reasons

unrelated to guilt, would provide incentives for de-

fendants to scour the record of their Rule 11 pro-

ceedings 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 dis-

prove allegations concerning distant events surround-

ing the plea or when a reprosecution n the under-

lying offense may be difficult or impossible. See

Henderson v. Kibbe, supra, 481 U.S. at 154 n.13;

Del Vecchio v. United States, supra, 556 F.2d at 109;

United States v. Sobell, 314 F.2d 314, 324-325 (2d

Cir.), cert. denied, 374 U.S. 857 (1963)." The gov-

ernment’s inability to retry a defendant who has ob-

tained collateral relief (see page 25, supra) is even

more likely to occur when the first conviction was

based on a guilty plea, because of the lack of a trial

rules for the sound administration of the criminal law. A

defendant, such as respondent, whose guilty plea was not in-

fluenced in any way by the district court’s technical noncom-

pliance with a rule of criminal procedure can hardly be said

to be detained unlawfully.

** The court of appeals frankly acknowledged that “our de-

cision ‘erodes the principle of finality in criminal cases and

may allow an obviously guilty defendant to go free’” (Pet.

App. lla, quoting Del Vecchio v. United States, supra, 556

F.2d at 109).

36

transcript. See Friendly, Is Innocence Irrelevant?

Collateral Attack on Criminal Judgments, supra, 38

U. Chi. L. Rev. at 147. In sum, as the Court re-

cently observed in Blackledge vy. Allison, 431 U.S. 638,

71 (1977), “[m]ore often than not a prisoner has

everything to gain and nothing to lose from filing a

collateral attack upon his guilty plea.”

Here, for example, it should have been obvious to

respondent (and his counsel) at sentencing that the

trial judge had neglected to mention the special parole

requirement during the Rule 11 proceeding. Yet re-

spondent’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 respondent’s

plea allowed him to avoid trial with his co-defendants.

See United States v. Barker, 514 F.2d 208, 222 (D.C.

Cir.) (en banc), cert. denied, 421 U.S. 10138 (1975).”

These important concerns would be seriously under-

mined if every violation of Rule 11, no matter how

inconsequential, justified Section 2255 relief.“ In-

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

including respondent, pleaded guilty; five defendants were

found guilty by a jury.

**The same concerns prompted the Court not to apply

McCarthy retroactively, even to Rule 11 errors presented on

direct appeal. See Halliday v. United States, supra, 394 U.S.

at 833.

a al ae le ae el i eR NE ae —

37

deed, as we have already noted (see page 33, note 19,

supra), 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(¢) (1)-(5). More than 80%

of all federal criminal convictions follow pleas of

guilty,” and minor deviations from Rule 11 are in-

evitable in a not insignificant number of these cases.

The strong societal interest in the finality of judg-

ments suggests that, unless a violation of the Rule

materially influenced the defendant’s decision to plead

guilty or would otherwise lead to “a complete mis-

carriage of justice,’ the technical error should be

raised on direct appeal or not at all.

“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 81.8%. Source: 1977

Annual Report of the Director of the Administrative Office

of the United States Courts, Table 38, at p. 148.

38

CONCLUSION

The judgment of the court of appeals should be

reversed.

.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

KENNETH S. GELLER

Assistant to the Solicitor General

KATHERINE WINFREE

Attorney

FEBRUARY 1979

ov. S. GOVERNMENT PRINTING OFFicE; 1979 297512 342

a