# Petition — Dabeit v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 463 U.S. 1209

## Text

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
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1029%3A1. Public record. Not legal advice.