Petition — Dabeit v. United States

Office-Supreme Court, U.S.

B:t.&

MAY 5 1983

ALEXANDER 1. STEVAS,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

MAY TERM, 1983

KHAMIS KHALIL DABEIT,

Petitioner

Vs.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

KHAMIS KHALIL DABEIT, Pro Se

4120 Hulen Place

Fort Worth, Texas 76107

(817) 732-7251

i

QUESTIONS PRESENTED.

1. Whether the District Court's

Plea Colloquy fail to comply with and/or

did not satisfy the requirement of the

Federal Rules of Criminal Procedure ll,

in determining the voluntariness of

Appellant's plea?

2. Whether the District Court

failed to admonish Appellant of the

possibility of deportation as a conse-

quence of his guilty plea violated his

constitutional rights under the due

process clause as an alien in the U.S.?

3. Whether Appellant in the status

as an alien in the Lower Court's Colloquy

proceedings falls below the requirements

of the Federal Rules of Criminal Proce-

dure, Rule 11 as mandated by Congres-

sional and Legislative intent?

4. Finally, whether guilty pleas

should constitutionally extend to include

ii

notice to aliens who would later face

the consequences of being deported from

the United States prior to a Federal

Court accepting a guilty plea under

Ruie il F.R.C.P.

iii

TABLE OF CONTENTS

PAGE

Questions Presented ............ i

TERE DOIG saci ceeccucwcacn 2

EMEC CLO 6 hw eee cececwccceces 2

Statement GE Che Case ..ccccceces 3

Reasons for Granting the Writ .. 6

Ce Ue eee ewaumacen £5

iv

CASES

McCarthy v. United States, 394

es FOF ccincectemececenececee

Woodward v. United States, 426

We Me OOO CEO TET Chek ewes acéesss

Paradiso v. United States, 482

We Oe Oe CAPO S Cae ceveeescces

United States v. Cantor, 469 F.

We Ee FEM EE bigs we cecccaces

United States v. Zampitella, 416

P. Supp. 6OE (1976) ..cccccsecs

Del Vecchio v. United States, 556

Wa Me EO CETTE bike eee sevences

McRae v. United States, 540 F.

2d 943 (1976) ccccccccccccccees

Bachner v. United States, 517 F.

BG SED CASTS) cacccnccccccccese

Hamilton v. United states, 553 F.

ye ee eee

Page

Horsley v. United States, 583 F.

We is a cnc enwcenccce 15

Brown v. United States, 565 F.

We UT OPTEE coed we nawcs cece 20

Kincade v. United States, 559 F.

We PP EE ob ckcccececes 21

United States v. Crusco, 536 F.

We CBOE Coin ececcccces 21

Holland v. United States, 472 F.

We ee CUPPED Boke c ce ccccccs ai

Henderson v. Morgan, 426 U. S.

Pe PR he we cncune 21

United States v. Coronado, 554 F.

Oe eo cece uen 21

Dimattina v. Immigration &

Naturalization Service, 497

wa oe wee Ceeerer .C...... 22

Gilbert v. United States, 466 F.

ee i cccc cane 22

vi

Page

Keto v. United States, 189 F.

We CU be ewan ce ccncce

Alley v. United States, 426 F.

We CE cca ccweveencas

United States v. Brandy, 421] F.

Immigration & Naturalization

Service v. Wright, 379 F.

Noverola-Boloiana v. Immigration

& Naturalization Service,

OO ee BF ccc canmccneces

United States v. Subhi, 48 F.

uci gosprings CC on 0 ESR ame ep

District Director v. Immigration

& Naturalization Service,

Oe co kc ocace

vii

Volley v. Immigration &

Naturalization Service, 441

Lavoie v. Immigration &

Naturalization Service,

coiled: acid...) Vane Pe rena rara

Ex Parte Keizo Shibata, 30 F. 2d

OTHERS

28 United States Code, Section

R. Pound, Jurisprudence 5 (1959)

Page

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

MAY TERM, 1983

KHAMIS KHALIL DABEIT,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner, KHAMIS KHALIL DABEIT,

respectfully prays that a Writ of Certio-

rari issue to review the judgment and

opinion of the United States Court of

Appeals for the Fifth Circuit entered on

-2-

February 11, 1983. The Petitioner would

also move at this time that the instant

matter be literally construed as a Pro

Se application in accordance with the

applicable law, rules and other authori-

ties in this jurisdiction, and on this

behalf show the Court as follows:

OPINION BELOW

The opinion of the Court of Appeals

for the Fifth Circuit is reproduced in

the Appendix hereto.

JURISDICTION

The judgment of the Court of Appeals

for the Fifth Circuit was entered on

February 11, 1983. A timely petition

for Rehearing was denied on or about the

7th day of March, 1983, jurisdiction is

invoked under Title 28, United States

Code, Section 1254(1).

= 3-

STATEMENT OF THE CASE

Petitioner, KHAMIS KHALIL DABEIT,

(hereinafter referred to as the Appellant)

by an indictment filed August 28, 1980,

was charged, along with two Codefendants,

with Conspiracy Overvaluation of a Secu-

rity to a federally insured bank and

Bank Robbery. On January 5, 1981, the

petitioner appeared before Judge Sarah

T. Hughes, and entered pleas of guilty

to Counts l, 2, 6, 10 and 11 of the

Indictment previously referred to above.

Appellant was sentenced, to a term of

(4) years imprisonment on Count l, two

years on Count 2 to run consecutively to

Count 1, two (2) years on Count 6 to run

consecutively to Counts 1 and 2, two

years on Count 10 to run concurrently

with Count 6 and two (2) years on Count

11 to run concurrently with Count 2.

-4-

On February 10, 1981, the Petitioner/

Appellant by and through his retain

counsel filed a "request for the court

to extend the time for filing a Notice

of Appeal upon showing of excusable

neglect pursuant to Rule 4(b) F.R.A.P.",

which was granted (Vol. l, p. 37) The

Notice of Appeal was filed on February

40, 1981, (Vol. 1 p. 38). On March 23,

1981, the appeal was "dismissed for want

of prosecution for failure of appellant's

attorney appearing in his behalf to

order the Court Reporter's Transcripts

within the time fixed by the Rules (Vol.

i, @ 39).

On May 29, 1981, Appellant filed a

Motion for Reduction of Sentence under

1nd) references to the Record

on appeal will be made to the volume

and page as designated by the clerk.

-5—-

Rule 35, which was denied. The Appel-

lant's request that the sentencing Court

recommend against deportation filed Pro

Se was denied on September 17, 1981. On

October 22, 1981, appellant filed a Pro

Se Motion to Vacate the Sentence under

Title 28, United States Code, Section

2255. The District Court denied relief,

and appellant appealed to the United

States Court of Appeals for the Fifth

Circuit alleging as grounds as wil]

hereafter more fully appear in the in-

Stant captioned. On February 1l, 1983,

the United States Court of Appeals for

the Fifth Circuit affirmed the decision

of the District Court's judgment, and

therefore appellant has timely filed the

instant petition.

-6-

REASONS FOR GRANTING THE WRIT

ae WHETHER THE DISTRICT COURT'S PLEA

COLLOQUY FAIL TO COMPLY WITH AND/OR

DID NOT SATISFY THE REQUIREMENTS OF

THE FEDERAL RULES OF CRIMINAL PROCE-

DURE, RULE 11 IN DETERMINING THE

VOLUNTARINESS OF APPELLANT'S PLEA?

This is an appeal from the District

Court's denial of KHAMIS KHALIL DABEIT'S

Motion pursuant to 28, United States

Code, Section 2255, and it presents the

question whether the trial Judge's failure

personally to advise an accused of the

nature and elements of the offense with

which he was charged and not to which he

pleaded guilty requires that appellant's

plea be vacated, because the record

reveals that the plea colloquy did not

satisfy the requirements of the Federal

Rules of Criminal Procedure 11, resulting

in prejudice to the appellant.

i

FED. R. CRIM. P. 11 provides in perti-

nent part:

"(C) Advice to Defendant

Before accepting a plea of guilty

--..-the Court must address the

Defendant personally in open Court

and inform him of, and determine

that he understands 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....

On or about January 5, 1981, the

appellant and cne other Codefendant

appeared before Judge Hughes and entered

guilty pleas to five counts of the indict-

ment which was filed August 28, 1980.

It should be noted, the trial Court

conducted colloquy jointly, but simul-

taneous during this proceeding between

-~f-

appellant and his codefendant at the

time the plea was taken and accepted.

In doing so, it is the position of

the appellant that the trial judge com-

mitted reversiable error and prejudice

to each Defendant. (See Appellant's

trial transcripts at page 60).

This Court is hereby invited to

review the complete records in this

case. Appellant and his codefendant

were at the time of the indictment aliens

in the United States. Review of the

correctness of Rule ll proceedings begin

with McCarthy v. United States, 394 U.S.

459, 89 S. Ct. 1166, 22 L. Ed. 2d 418

(1969). The Supreme Court there con-

Cluded that "a defendant is entitled to

plead anew if a United States District

Court accepts his guilty plea without

fully adhering to the procedure provided

-9-

for Rule ll, Id. at 463-64, 89 S. Ct. at

1169.

The Court specifically stated that

the Rule requires a District Judge to

inquire personally into the Defendant's

understanding of the charge. Id. at

467, 89 S. Ct. 1166. This Court has

Similarly insisted on strict compliance

with Rule 11. In Woodward v. United

States, 426 F. 2d 959, 962-63 (3rd Cir.

1970), it stated:

"Routine questioning or a single

response by the Defendant that he

understands the (nature of the)

charge is insufficient. To satisfy

itself that the defendant actually

does comprehend the charges, the

Court must explain the meaning of

the charge and what basic acts must

be proved to establish guilt....

because Rule 1l requires that the

10-

Court address the Defendant person-

ally, questioning by the United

States Attorney or representation

of the Defendant by Counsel will

not discharge the Court's duty to

interrogate the Defendant itself."

(Footnotes omitted and emphasis

added).

Accordingly, Paradiso v. United

States, 482 F. 2d 409 (3rd Cir. 1973);

United States v. Cantor, 469 F. 2d 435

(3rd Cir. 1972); United States v. Zam-

pitella, 416 F. Supp. 604 (E. D. Pa.

1976); Fontaine v. United States, 1973,

93 S. Ct. 1461, 411 U.S. 213, 36 L. Ed.

2d 169; Johnson v. Beto, C. A. Tex.

1972, 466 F. 2d 478; Cerniglia v. United

States, D. C. Ill. 1964, 230 F. Supp.

932; United States v. Martinez, C. A.

Fla. 1973, 486 F. 2d 15; Jones v. United

States, C. A. Nev. 1967, 384 F. 2d 916;

wt

United States v. ex rel, McGrath v.

LaVallee, C. A. N. Y. 1965, 348 F. 24

373, Certiorari denied 86 S. Ct. 1214,

383 U. S. 952; and Reed v. United States,

C. A. Va. 1961, 291 F. 2d 856.

In view of the clear prescription

of these cases that the court personally

inform the defendant of the nature of

the charges and the acts which would

render Appellant and his Codefendant

guilty.

Appellant argues that the District

Court's reliance on conducting appellant's

colloquy jointly with his codefendant's

constitutes prejudice and error at page

(60) of appellant's trial transcript and

plea minutes. There it is plain that

the trial judge recognized that it had

made a mistake and it immediately attemp-

ted to correct the matter, but fail to

do so, because of this error appellant

=} =

would respectfully request this court to

reverse this matter.

Appellant do not quarrel with any

conclusions drawn that additional explana-

tion of the charge may be discretionary

and may take into account the totality

of circumstances. However, prior decisions

of this Court precludes from permitting

the District Court to abdicate to the

appellant, and his attorney responsibility

for minimal compliance with Rule ll.

Yet, while it must be recognized

that this appeal is a Section 2255 (Colla-

teral Attack) on the plea, rather than a

direct appeal from the judgment of convic-

tion. When appellant's Trial Counsel

learned that he could not "dupe" appellant

out of a $13,000 treasury check seized

by the U. S. Secret Service Agents and

other Law Enforcement authorities at the

time of appellant's initial arrest in

at en

Canada, coupled with the fact that appel-

lant's attorney was acting upon the

assumption that appellant would eventually

be deported from the United States after

parole from this sentence he received by

the Court.

It is following this activity when

appellant's attorney fail to order the

required trial] transcripts to execute a

direct appeal of appellant's conviction

and thereby causing the appellant to

seex aid and assistance from (other)

sources in an effort to litigate redress

presently before this court.

Because of the error made by appel-

lant's attorney by intentionally and

knowingly abandoning appellant's appeal

rights. Appellant had no other remedy

available accept by the instant petition.

See, Davis v. United States, 417 U.S.

333, 94 S. Ct. 2298, 41 L. Ed. 2d 109

wien

(1974); Del Vecchio v. United States,

3596 F. 24 106 (2nd Cir., 1977); McRae v.

United States, 540 F. 2d 943 (8th Cir.

1976); Bachner v. United States, 517 F.

2d 589 (7th Cir., 1975) and United States

v. Hamilton, 553 F. 2d 63 (10th it ©

1977).

Indeed, the trial court in Berry

had adopted the conclusion later to be

reached in Del Vecchio, it is hope that

this court will refuse to accept it in

this case.

"The Covrt's reasoning is based on

a false conception of "prejudice".

Whether prejudice resulted from the

entry of the guilty plea is not

measured by the severity or leniency

of the sentence imposed; prejudice

inheres when an accused pleads

guilty thus convicting himself of a

=} 5—

Criminal offense, without under-

standing the significance or "con-

sequences" of his action."

412 F. 2d at 191

At base, the difference between our

court and the Second Circuit is demon-

strated by a reference to Roscoe Pound's-

-three-step analysis of the decisional

process:

? Choosing the controlling legal

precept.

2s Interpreting the chosen precept,

and

k Applying the precept so chosen

and interpreted to the case at

hand.

See, Horsely v. United States, 583

F. 2d at 675(4) and R. Pound, Juris-

prudence 5 (1959).

But first, in an effort to clarify

what constitutes a sufficient showing of

a~lé~

prejudice to justify collateral relief.

The court will find some guidance in the

recent historical development of the law

relating to acceptance of guilty pleas.

Prior to McCarthy, Supra, review of a

guilty Plea colloquy was governed by

precisely the same precepts now applicable

under Davis on collateral review--a

prejudicial Rule 11 violation had to be

established to justify relief.

Berry v. United States, Supra,

heretofore observed, was predicated on a

showing of prejudice, and was not based

on the application of the McCarthy per

se Rule. In Berry it may be prejudiced

when a trial court fails to ascertain

that he understands the nature of the

charge and the consequences of the plea.

There it did not look to see whether the

sentence imposed exceeded the maximum

Berry was led to expect; it went on

nl Bu

further to look and see whether he fully

understood the consequences of his plea.

Because he did not, his entry of a guilty

plea, "convicting himself" was inherently

prejudicial regardless of the sentence

imposed.

Applying the Berry rationale to

this case, since the record of the col-

loquy does disclose that appellant did

not fully comprehend the nature of the

charge appellant argues that this guilty

plea, convicting himself of the offenses

as spelled out in the sentencing and

trial was inherently prejudicial. It is

noted, that Rule 11 was amended in 1975,

to eliminate the former requirement that

the "consequences" of a guilty plea be

explained to the defendant. The amend-

ment of Rule 1l(c)(1) narrows the relevant

consequences, but this does not mean to

derogate the extreme importance to the

-i§-

defendant of knowing the range of pos-

Sible consequences in cases of Aliens,

especially those who would later be

subject to deportation as a result of

entering a guilty plea.

Finally, after the decision of

McCarthy v. United States, Supra, it is

believed that Davis requires or permits

the court to abdicate its Supervisory

responsibility to the District Courts of

the Fifth Circuit. Years after the

decision in Woodward, Supra, where we

unequivocally required the court person-

ally to explore the inquires relevant to

acceptance of a guilty plea, it stated

that it believe the interest of Justice

are served by tolerating or condoning

failure to implement Rule ll. Strict

and consistent adherence to the require-

ments of Rule 11 will facilitate disposi-

tion of similar Post-Conviction assertions

=} 9-

in the future as here of error in change

of plea proceedings. Because the record

will provide a clearer answer to any

objections raised.

Although insistence upon adherence

to the inquiry may appear to some to

require compliance with an empty ritual,

it nonetheless brings us one step closer

to the elusive goal of assuring that

there has been in fact a voluntary plea.

Prior to entering this plea appellant

contends that he had a valid defense to

this indictment and at no time prior to

accepting the advice of appellant's

attorney to plea guilty was appellant

informed of deportation result from the

plea he was about to enter, or that

deportation would later be instituted

against appellant based upon his status

as a citizen here in the United States.

-20-

See, Brown v. United States, 565 F.

ed 862-863-64 (3rd Cir. 1977), to the

criticism that our decision exalts form

over substance, we respond by repeating

these words of the Supreme Court:

"It is, therefore, not too much to

require that, before sentencing

defendants to years of imprisonment,

District Judges take the few minutes

necessary to inform them of their

rights and to determine whether

they understand the action they are

taking.”

It is for these and other reasons

hereto aforementioned above that appel-

lant prays this court remand and reverse

the lower Court's opinion.

r WHETHER THE DISTRICT COURT FAILED

TO ADMONISH APPELLANT OF THE POS-

SIBILITY OF DEPORTATION AS A CONSE-

QUENCES OF HIS GUILTY PLEA UNDER

VOLUNTARINESS?

Appellant says the lower Court did

not and it was error. See, Kincade v.

United States, 559 F. 2d 906, 907 n. 1

(3rd Cir. 1977); United States v. Crusco,

536 F. 2@ 21 (3r€ Cir. 1971), ae@ Holland

v. United States, 427 F. Supp. 733 n. 11

(E.D. Pa. 1977); Henderson v. Morgan,

$26 U.S. 637, 96 S&S. Ct. 2253, 49 L. Ba.

2d 108 (1976) and United States v. Coro-

mage, 5356 F. 24 166, 172 (Sth Cir. 1977).

3. WHETHER APPELLANT AS AN ALIEN IN

THE LOWER COURT'S COLLOQUY FALLS

BELOW THE REQUIREMENTS OF THE FED-

ERAL RULES OF CRIMINAL PROCEDURE,

RULE 11 AS MANDATED BY CONGRES-

SIONAL AND LEGISLATIVE INTENT UNDER

THE FOURTEENTH AMENDMENT AND DUE

PROCESS CLAUSE OF THE U.S. CONSTI-

TUTION?

ee

Appellant again says no, and vigor-

ously asserts that the lower court deny

him the right to be informed of the

consequences of his later being deported

from the United States at the time of

accepting his guilty plea. The Constitu-

tion has been drafted to include aliens

in the same status as any other citizen

in this country. A review of my sentencing

minutes will amply convey that Appellant

did not understand the nature of the

charges to which he plead, and therefore

the plea was not made intelligently,

voluntary and knowing.

See, Dimattina v. Immigration &

Naturalization Service, 497 F. 2d 92]

(3rd Cir.) Cert. Denied, 419 U.S. 1088,

95 S. Ct. 680 (1974); United States v.

Zampitella, 416 F. Supp. 604 (1976) and

Gilbert v. United States, 466 F. 2d 533

(Sth Cir. 1972); United States v. Subhi

= 29~

Mustafa Sadi, C.C.A.N.Y. 48 F. 2a 1040;

United States v. Chandler, D.C. Md. 152

F. Supp. 169; United States v. District

Director, Immigration & Naturalization

Service, Mass. 87 S. Ct. 666, 385 U.S.

630, 17 L. Ed. 2d 656. Proceedings for

the deportation of aliens are Civil, and

not criminal, in nature, and are not

governed by the rules of trials, and it

is for this main reason that Aliens

should be told before accepting a guilty

plea that if he is found guilty ina

court of law, or pleads guilty ina

court of law, that an accused will be

deported under the Miranda Rule, See,

U.S. - Jolley v. Immigration and Naturali-

zation Service, C.A. Ga., 441 F. 2a 586;

and Lavoie v. Immigration & Naturalization

Service, 418 F. 2d 732.

4. FINALLY WHETHER CONSTITUTIONALLY AS

AN ALIEN THE TRIAL COURT HAD A DUTY

-24-

TO INFORM THE APPELLANT AS TO POSSI-

BILITY OF DEPORTATION PROCEEDINGS

DURING PRETRIAL?

Rules governing deportation pro-

ceedings, in so far consistent with the

law are themselves law, and binding on

the Courts and Government, as well as

the Aliens.

Even though a rule is fair and just

in appearance, yet if it is applied and

administered by the lower court's to

aliens unjustly-then, it should be modi-

fied in accordance with Rule 11, Ex

Parte Keizo Shibata, D. C. Cal. 30 F. 2d

942, reversed on other grounds, C.C.A.

35 F. 2d 636. In closing this argument,

appellant would like to respectfully

urge this court to literally construe

this motion as a Pro Se litigant, and

apply the existing case law and other

authorities to these questions as well

-25-

as others raised herein.

CONCLUSION

FOR THE FOREGOING REASONS, the Petition

for Writ of CERTIORARI should be granted

and the decision of the United States

Court of Appeals for the Fifth Circuit

should be REVERSED.

RESPECTFULLY SUBMITTED,

]

A 7 Sa

oo |. Wu LY

KHAMIS KHALIL DABEIT, Pro Se

4120 Hulen Place

Ft. Worth, Texas 76107

(617) 732-7251

SUBSCRIBED AND SWORN to before me

hey” C-a_ a rd I<on yu ..

Texas Notary Public (name)

on this 1%. @ey OF ivi.» 2983.

My COMMISSION EXPIRES \/2) 3 , 1954.

PROOF OF SERVICE

I, Khamis Khalil Dabeit, do hereby

certify that the original plus (39)

copies of the foregoing writ of Certiorari

have been deposited in the U.S. Mail

postage paid, to the clerk office of the

United States Supreme Court, Washington,

D.C. and additional (3) three copies

have been deposited in the U.S. Mail to

Solicitor General, Department of Justice,

Washington, D.C. 20530. With accordance

with rule 28 of this court on this 24 -

Gay of *oO“ , 1983.

RESPECTFULLY SUBMITTED,

7,

. el » .* >

ie Ae * Le le Pe ee

KHAMIS KHALIL DABEIT,

PRO SE

4120 Hulen Place

Ft. Worth, Texas 76107

APPENDIX A.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82-1318

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KHAMIS KHALIL DABEIT,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

(FEBRUARY 11, 1983)

Before CLARK, Chief Judge, and POLITZ

and HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

Khamis Khalil Dabeit, Majed Ahmad

~2=

Khamis and a colleague were indicted for

conspiracy and for multiple substantive

counts arising out of a checking and

Savings account kiting scheme. The

specifics of the criminal conduct are

set forth in detail in United States 7.

Khamis, 674 F.2d 390 (5th Cir. 1982), in

which we affirmed the conviction by a

jury of co-defendant Khamis. Dabeit

fled to Canada but ultimately returned

and pled guilty to five counts. He was

sentenced to eight years imprisonment,

and the court recommended deportation to

Jordan upon his release.

Post conviction efforts included a

motion for late appeal which was allowed

but eventually dismissed for want of

prosecution, a motion for reduction of

Sentence under Rule 35, Fed.R.Crim.P.,

and a request that the court recommend

against deportation. Finally, Dabeit

-3-

filed the instant proceeding, invoking

28 U.S.C. § 2255 and contending that the

district court failed to comply with

Rule 11, Fed.R.Crim.P., in accepting his

guilty plea. He also charged ineffective

assistance of counsel. Adopting the

magistrate's report, the district court

denied the petition. We affirm.

A defendant seeking to set aside a

guilty ple2 in a collateral attack based

on a Claim of inadequacy of the Rule ll

proceeding bears a considerable burden.

"In the absence of a fundamental defect

which inherently results in the miscar-

riage of justice, or an omission incon-

sistent with the demands of fair procedure,

relief cannot be given in a collateral

attack on a guilty plea conviction based

on failure of Rule 11 compliance when

the plea was taken." Keel v. United

-4-

ptates, $85 F.28 130, 113 (Sth Cir.

1978) (en banc).

A guilty plea must be voluntarily

and knowingly entered. The defendant

must understand the nature and conse-

quences of the criminal conduct and the

plea. Dabeit maintains that his guilty

plea did not meet these requirements.

The record of the Rule 11 allocution

does not support his challenge.

The record reflects that the indict-

ment was read to Dabeit who admitted the

unlawful conduct. The charges were

dissected into elements; each element

was outlined, as were the facts estab-

lishing the various elements. Dabeit

acknowledged that he understood the

indictment, denied the need for further

explanation, and insisted that he had no

questions. The nature and maximum range

of the penalty provisions of each statute

-5-

were fully explained. In addition to

Debeit's personal assurances, counsel

for Debeit informed the ccurt that he

had advised his client of the indict-

ment, the right to plead innocent, the

penalties, and the nature of waivers.

We perceive no inadequacies.

Dabeit complains of a breach of an

unwritten plea agreement between his

counsel and government counsel. One

asserting the existence of a previously

undisclosed plea bargain bears a heavy

burden. United States v. Ammirato, 670

F.2€ 552 (Sth Cir. 1962). That burden

has not been met. We find no evidence

of the purported outside plea bargain.

The trial judge carefully questioned

Dabeit regarding his understanding of

the plea. At no time did Dabeit indi-

cate that there was any agreement or

understanding other than the one recited

-6-

in court which obliged the government to

dismiss several counts.

Dabeit also insists that he should

have been advised that deportation might

result from the plea. The law contains

no such requirement. Under Rule 1l(c)

the judge need only inform the defendant

of "the mandatory minimum penalty...and

the maximum possible penalty provided by

law." An explication of other conse-

quences, including as in this case de-

portation, is not mandated. United

States v. Garcia, 636 F.2d 122, 123 (5th

Cir. 196i).

Finally, Dabeit asserts that he was

denied effective assistance of counsel.

To sustain this claim, Dabeit must demon-

strate that counsel did not substantially

assist him in reaching his plea decision

and was remiss in determining whether

the plea was entered into knowingly and

ape

voluntarily. Lamb v. Estelle, 667 F.2d

€92 (Sth Cir. 1982). In this case,

counsel discussed with Dabeit the indict-

ment, ramifications of a guilty plea,

and waivers. Counsel informed the court

that Dabeit was fully aware of the nature

of the indictment and his rights with

respect to the proceedings. Dabeit

confirmed this by acknowledging to the

court that he had a complete understanding

of 1l relevant aspects of his case.

Defendant recites a number of other

objections. Review of the record and

relevant law reveal all of these to be

meritless. Dabeit claims that he was

not warned by counsel of possible deporta-

tion, though this is directly contradicted

by a sworn affidavit from counsel stating

that Dabeit had been told that deportation

was "a separate battle" to be faced in

an independent proceeding. Dabeit maintains

af—

that he was denied access to information

in his presentence report, yet through-

out the proceedings leading to sentencing,

both Dabeit and his counsel revealed a

detailed familiarity with the information

contained in the presentence report. At

one point, counsel directly referred to

the presentence report. Nor is there

any merit in Dabeit's complaint that his

counsel was ineffective because he failed

to perfect an appeal. See Barrientos v.

United States, 668 F.2d 838 (5th Cir.

1982).

AFFIRMED.

-9-

APPENDIX B.

United States Court of Appeals

Fifth Circuit

Office of the Clerk

February ll, 1983

MEMORANDUM TO COUNSEL OR PARTIES LISTED

BELOW

No. 82-1318 - UNITED STATES OF

AMERICA -vs- KHAMIS KHALIL DABEIT

Enclosed is a copy of the Court's decision

this day rendered in the above case. A

judgment has this day been entered in

accordance therewith pursuant to Rule 36

of the Federal Rules of Appellate Pro-

cedure.

Rules 39, 40 and 41, F.R.A.P. and Local

Rules 22, 16 and 17 govern costs, petitions

for rehearing and mandates respectively.

A petition for rehearing must be filed

in the Clerk's Office within 14 days

=

from this date. Placing the petition in

the mail on the 14th day will not suffice.

Local Rule 17 provides that "A motion

for a stay of the issuance of a mandate

in a direct criminal appeal filed under

F.R.A.P. Rule 41 shall not be granted

simply upon request. Unless the petition

sets forth good cause for stay or clearly

demonstrates that a substantial question

is to be presented to the Supreme Court,

the motion shall be denied and the man-

date thereafter issued forthwith".

If you are court-appointed counsel, this

Court's plan under the Criminal Justice

Act provides that in the event of affir-

mance or other decision adverse to the

party represented, appointed counsel

shall promptly advise the party in writing

of the right to seek further review by

the filing of a petition for writ of

certiorari with the Supreme Court and

oj j~-

shall file such petition if requested to

do so in writing by such party. Vouchers

claiming compensation and reimbursement

of expenses should be filed as promptly

as possible and in no event later than

60 days after representation is completed.

Very truly yours,

GILBERT F. GANUCHEAU, Clerk

By /s/ Sarah L. Holmes

Deputy Clerk

Encl.

cc: Mr. Khamis Khalil Dabeit

Ms. Cheryl B. Wattley

a3 2a

APPENDIX C.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82-1318

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KHAMIS KHALIL DABEIT,

Defendant~-Appellant.

Appeal from the United States

District Court for the

Northern District of Texas

ON SUGGESTION FOR REHEARING EN BANC

(Opinion Feb. ll, 1983, 5 Cir.,

198 , F.2d a

( March 7, 1983 )

-l13-

Before CLARK, Chief Judge, POLITZ and

HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

(/x/) Treating the suggestion for re-

hearing en banc as a petition for panel

rehearing, it is ordered that the petition

for panel rehearing is DENIED. No member

of the panel nor Judge in regular active

service of this Court having requested

that the Court be polled on rehearing en

banc (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16),

the suggestion for Rehearing En Banc is

DENIED.

( ) Treating the suggestion for re-

hearing en banc as a petition for panel

rehearing, the petition for panel rehearing

is DENIED. The judges in regular active

service of this Court having been polled

at the request of one of said judges and

a majority of said judges not having

-~]4-

voted in favor of it (Rule 35, Federal

Rules of Appellate Procedure; Local

Fifth Circuit Rule 16), the suggestion

for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ Henry A. Politz

United States Circuit Judge

-~15-

APPENDIX D.

United States Court of Appeals

Piftth Circuit

Office of the Clerk

March 24, 1983

Ms. Nancy S. Hall, Clerk

United States District Court

1100 Commerce Street, Room 15022

Dallas, TK 75242

No. 82-1318 U.S.A. -vs- Khamis Khalil

Dabeit

(D.C. Docket No. CR-3-80-193-B)

Enclosed to you only is a certified

copy of the judgment of this Court in

the above case issued as and for the

mandate.

Enclosed to you only is a certified

copy of the Rule 21 Decision in the

above case issued as and for the mandate.

-~16-

_X_ The Court having denied the motion

for stay of mandate, enclosed to you

only is a certified copy of the judgment

of this Court in the above case issued

as and for the mandate.

Having received from the Clerk of

the Supreme Court a copy of the order of

that Court denying certiorari, I enclose

a certified copy of the judgment of this

Court in the above case, issued as and

for the mandate.

We have received a certified copy of

an order of the Supreme Court denying

certiorari in the above cause. This

Court's judgment as mandate having al-

ready been issued to your office, no

further order will be forthcoming.

Enclosed herewith are the following

additional documents:

X Copy of the Court's opinion.

= >

_X Original record on appeal or review.

(4 Volumes)

____‘ Original exhibits.

__—~Bill of Costs approved by this Court.

Copy enclosed to counsel.

Sincerely,

GILBERT F. GANUCHEAU,

Clerk

By: /s/ Kim H. Armato

Deputy Clerk

cc: (Letter Only)

Mr. Khamis Khalil Dabeit

Ms. Cheryl B. Wattley

APPENDIX E.

United States Court of Appeals

Fifth Circuit

Office of the Clerk

March 15, 1983

Mr. Khamis Khalil Dabeit

4120 Hulen Place

Fort Worth, TX 76107

No. 82-1318 - USA vs. Dabeit

In regards to the case identified above,

the following motion has been filed:

APPELLANT'S MOTION FOR ENLARGEMENT

OF TIME FOR STAY OF MANDATE PENDING

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT.

This motion will be presented for ruling

without oral argument on this date:

MARCH 22, 1983.

Any response to the motion must be filed

by opposing counsel on or before that

=~) 9-

date to be considered in the ruling.

Please forward a certificate of

interested persons as required by Local

Rule 10.5 within the foregoing time

period.

The date shown above indicates when the

matter will be forwarded for ruling and

does not mean that any action will be

completed by then. Counsel should allow

at least ten (10) days thereafter before

inquiring about the Court's ruling.

Very truly yours,

GILBERT F. GANUCHEAU,

Clerk

By: /s/ Betty G. Martinez

Deputy Clerk

cc: Ms. Cheryl B. Wattley

~20-

APPENDIX F.

United States Court of Appeals

Pifth Circuit

Office of the Clerk

March 15, 1983

Mr. Khamis Khalil Dabeit

4120 Hulen Place

Fort Worth, TX 76107

No. 82-1318 - USA -vs- Dabeit

Dear Mr. Dabeit:

Enclosed is a copy of your notice of

appeal to the Supreme Court of the United

States, received and filed in this office

on this date. This document should be

attached as an appendix to your juris-

dictional statement to be filed with the

Clerk of the Supreme Court pursuant to

that Court's Rule 15.1(j)(iv).

Also, under revised Rule 19.1 of the

Supreme Court effective June 30, 1981, a

oe

record is no longer required in connection

with an application for writ of certiorari

and, therefore will not be routinely

prepared by this office. However, in

the event this office is notified by the

Supreme Court that the petition for writ

of certiorari has been granted, the

records will be certified to the Supreme

Court.

Very truly yours,

GILBERT F. GANUCHEAU,

Clerk

By /s/ Susan Vaughn

Susan Vaughn

Case Manager

SV/dj

cc: Ms. Cheryl B. Wattley

Mr. Alexander Stevas

-22-

APPENDIX G.

IN THE UNITED STATES

COURT OF APPEALS FOR

THE FPIFTH CIRCUIT

KHAMIS KHALIL DABEIT, x

Appellant

Vv. 82-1318

UNITED STATES OF AMERICA,

Appellee

NOTICE OF APPEAL

Pursuant to Title 28, United States

Code, Section 2101(C), KHAMIS KHALIL

DABEIT, the above named hereby appeals

from the decision entered by the United

States Court of Appeals for the Fifth

Circuit to the Supreme Court of the

United States.

-23-

Judgment was entered by the Fifth

Circuit on Feb. 11, 1983, Affirming the

conviction.

Respectfully Submitted,

/s/ Khamis K. Dabeit

KHAMIS KHALIL DABEIT,

Pro Se

4120 Hulen Place

Ft. Worth, Texas 76107

Date:

Executed in Tarrant County Texas

a

APPENDIX H.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82-1318

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KHAMIS KHALIL DABEIT,

Defendant-Appellant.

Appeal from the United States

District Court for the

Northern District of Texas

Before GEE, RANDALL and TATE, Circuit

Judges.

BY THE COURT:

IT IS ORDERED that the appellant's

motion for stay of execution of commencement

-25-

of any deportation proceeding and temporary

restraining order pending appeal is

GRANTED pending further order of this

Court.