# Petition for Writ of Certiorari — Feltmann v. Sieben, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1410%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 522 U.S. 1075 ## Text 0 Supreme Court, U.S. FILED 927 ° 46 6 SEP 1 1 1997 No. et OFFICE OF JHE CLERK IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 ROBERT DONNELL JONES, Petitioner, STATE OF MARYLAND, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF SPECIAL APPEALS OF MARYLAND WILLIAM H. Murpny, JR. 1007 North Calvert Street Baltimore, Maryland 21202 (410) 539-6500 September 11, 1997 Counsel for Petitioner. Washington, D.C. © THIEL PRESS ¢ (202) 228-3286 a (1) QUESTION PRESENTED FOR REVIEW WAS MR. JONES' GUILTY PLEA INVOLUNTARY UNDER STATE AND FEDERAL CONSTITUTIONS BECAUSE THE RECORD SHOWS THAT BECAUSE HE WAS UNDER THE INFLUENCE OF HEROIN WHEN HE ENTERED THE PLEA, HE COULD NOT VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHTS? (it) PARTIES TO THE PROCEEDING Petitioner: Robert Donnell Jones Respondent: State of Maryland (tit) TABLE OF CONTENTS Page se ER Os ys ee eee nee i PARTIES TO THE PROCEEDING....................ss0000 ii py 8 Me A Sy ys 8 4 yg |.) Sa aaa iv UY CMP inch ccddcabarcdeivassnessscsacbecesesenesces l Sic ah es Sic Usvu ch dsWdausdsbvdbbedsrvecendesoseoses 2 RELEVANT STATUTES AND CONSTITUTIONAL CI vind dvd dancvinnbeseviceseseeeese 2 RPRERIEEEU ER GH TEBE, CASE....0..cccccccccssccevsesccesees 3 A. Evidence Supporting the Involuntariness of dn sch leceekessdbbionmieshtseeessscereess 3 B. Decision of the Court of Special Appeals of ere Riau cat dueisheehvenehscosesse 7 oat Stage of Proceedings Where Federal EE, ics bidnsnisabdbide thtusdsenecnsonves 8 REASONS FOR GRANTING THE PETITION............. 1] Mr. Jones’ guilty plea was involuntary under State and Federal constitutions because the record shows that because he was under the influence of heroin when he entered the plea, he could not voluntarily, knowingly and intelligently waive his rights....................0 1] eer cccckebesiasstianershontchovesnenssescesces 22 APPENDICES: Appendix A - Relevant Constitutional Provisions case sah anche Ghekdahiabecsisisorsnbaescendes la (iv) Appendix B - Entry declining review, Court of Appeals of Maryland, dated June 11, 1997.......... eee 3a Appendix C - Opinion, Court of Special Appeals of Maryland, COee POD, Dir ssceiscdatsicesdescctiinreceses 4a Appendix D - Final Judgment Entry, Baltimore City, Maryland, Circuit Court, dated March 3, 1994....... 14a TABLE OF AUTHORITIES Page Cases: Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, Ro es By, , Sperm 19 Fairbanks v. State, 331 Md. 482 (1993)................008. 13,14 Flippins v. United States, 747 F.2d 1089, 1091 I Se. ike cies tonstas bac uaesitilidin cintlasinaeiinabniaennsn 12 Hirabayeshi v. United States, 627 F.Supp. 1445 a FR ee eee 12 Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 5) ee A ORs) Se error eee 19 Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 be ee ee re Schick 19 Mathis v. United States, 369 F.2d 43 (4th Cir. 1966)..... 12 McCarthy v. United States, 294 U.S. 459, 89 S.Ct. 1166 Ta De ee TR CR xnrctiesscinccecabbishteecsdbaibass 19 (v) Page Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, Br as OU 0 I iis dove bc cicacscesi caves Sect cecsec: 20 United States v. Loschiavo, 531 F.2d 659 (2d Cir. 1976) 12 United States v. Malcolm, 432 F.2d 809 Re I = Raced 18,19,20 United States v. Morgan, 346 U.S. 502, 511, Fe ee EG Re I asincidicstiticstnisecacerascenee 12 United States v. Travers, 514 F.2d 1171 (2d Cir. 1974)... 12 No. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 ROBERT DONNELL JONES, Petitioner v. STATE OF MARYLAND Respondent PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF SPECIAL APPEALS OF MARYLAND Petitioner, Robert Donnell Jones, respectfully petitions this Court for a writ of certiorari to review the judgment of the Court of Special Appeals of Maryland entered in this case on March 26, 1997, which affirmed the decision of the Circuit Court of Maryland for Baltimore City denying Mr. Jones’ petition for writ of error coram nobis. OPINIONS BELOW The published opinion of the Court of Special Appeals of Maryland, for which review is sought is Jones v. State, (cite) (1997). The slip opinion in Case No. 585 was dated March 26, 1997 [Appendix C, pp. 4a-11a]. An appeal to that court was taken by Petitioner on April 9, 1997, in the Court of Appeals of Maryland which declined review. [Appendix B, pp. 3a] JURISDICTION Jurisdiction of this court is conferred in this case pursuant to 28 U.S.C. §1257(a). The Court of Special Appeals affirmed the denial of Mr. Jones' petition for writ of error coram nobis by the Circuit Court for Baltimore City on March 26, 1997; and the judgment of the Court of Appeals of Maryland declining review of the judgment of the Court of Special Appeals was entered on June 11, 1997. PERTINENT CONSTITUTIONAL PROVISIONS The questions presented in this case are legal issues concerning the voluntariness of petitioner's guilty plea which has been obtained in violation of petitioner's Fifth Amendment right against self-incrimination, Sixth Amendment right to testify and right to confront the witnesses against him and the due process clause of the Fifth and Fourteenth Amendments as to which this Court possesses a plenary power of review. Set forth in Appendix A, pp. la-2a, are U.S. Consti. Amendment V, Vi and XIV. STATEMENT OF THE CASE Mr. Jones pled guilty to one count of assault with intent to murder on July 16, 1975, before Judge Basil A. Thomas in the Criminal Court of Baltimore and was sentenced on July 31, 1975, to five (5) years to the Department of Corrections. This sentence has expired. Petitioner's federal claims were asserted based upon violations of his rights under the Fifth, Sixth and Fourteenth Amendments to the Constitution. A. Evidence Supporting the Involuntariness of the 1975 Plea At the coram nobis hearing before Judge Joseph McCurdy of the Circuit Court of Maryland for Baltimore City, Petitioner presented testimony of four witnesses as well as the presentence investigation (PSI) prepared for sentencing by probation officer John J. Ralston to show that his 1975 plea was involuntary because he was not able to intelligently and knowingly waive his rights. Thomas Merrick, the victim in the case in which Mr. Jones had pled guilty to assault with intent to murder, testified that he was a street heroin dealer who sold heroin to support his own habit; that he was Mr. Jones’ friend and daily heroin supplier; that because he and Mr. Jones were friends, he was well acquainted with the nature and extent of Mr. Jones’ heroin addiction; that Mr. Jones was physically and psychologically addicted to heroin; that at the time of the alleged offense Mr. Jones was a heroin addict who used from seven to thirteen bags of heroin per day; that Mr. Jones had been addicted to this amount of heroin for quite some time; that at the time of the alleged assault with intent to murder, Mr. Jones had either refused or had been unable to pay the money he owed Mr. Merrick for previously supplying him with heroin; that as a result of Mr. Jones’ non-payment, Mr. Merrick severely beat Mr. Jones with a stick; and that the alleged assault with intent to murder took place later in the day. Richard H. Lane, the prestigious director of Man Alive, a prominent and highly regarded drug treatment program in Baltimore City, was qualified as an expert on how addicts under the influence of heroin relate to others. He testified that based on his dealings with literally thousands of heroin addicts and his successful battle against his own heroin addiction, it was common for heroin addicts to mask their symptoms even when high to conceal their addiction from others; that he had seen defendants plead guilty in court while high under the influence of heroin without detection by the court or the prosecutor, that he had himself done this, that because of the effects of heroin, heroin addicts exhibit poor judgment while under the influence of heroin. However, despite his extensive experience and work with heroin addicts and his own successful battle with a long period of heroin addiction, Judge McCurdy would not permit him to render an opinion that heroin addicts while psychologically and physically addicted to heroin to the extent of Mr. Jones’ addiction, could not understand or validly waive the numerous rights involved in a guilty plea litany. Notwithstanding Mr. Jones’ proffer that 5 Mr. Lane had a vantage point superior to that of any psychiatrist and would have rendered an opinion that a heroin addict who was addicted to Mr. Jones’ extent and who had injected as much heroin as Mr. Jones had injected on the morning of his guilty plea could not understand or validly waive the numerous rights involved in a guilty plea litany, Judge McCurdy ruled that only a psychiatrist expert in the field of drug addiction could so testify. In response to Judge McCurdy’s refusal to permit such expert testimony from Mr. Lane, Mr. Jones called Patricia A. Newton, M.D., M.P.H., M.A., a psychiatrist who was qualified as an expert in treating heroin addiction and in understanding the physiological and psychological impact of the use of heroin on cognitive functioning, as an expert. Dr. Newton, who had been Chief of Psychiatry at Provident Hospital and who had treated petitioner for his heroin addiction in the 1980's, testified that if petitioner were under the influence of heroin at the time he pled guilty, he would not have been able to enter a voluntary and knowing guilty plea because his cognitive ability would at best be minimal. Dr. Newton further testified that by giving short answers to leading questions, addicts are able to conceal their symptoms of heroin addiction and intoxication from those who are inexpert in detecting the symptoms. Petitioner testified that at the time of his guilty plea, he was psychologically and physically addicted to heroin; that at the time of the alleged offense he regularly used from seven to thirteen bags of heroin per day; that he had been addicted to this amount of heroin for quite some time; that when he arrived at court on the day of his guilty plea, he was already under the influence of heroin; that believing that he was going io jail later that day, he had used heroin that morning to ward off excruciatingly painful withdrawal symptoms and because he would not be able to continue regularly to use heroin while in jail; that during a brief delay before his guilty plea, he went to the courthouse men’s room to inject himself again with heroin; that he injected himself approximately fifteen to twenty minutes before pleading guilty; that he was intoxicated from this injection when he pled guilty, that he attempted to conceal his intoxication from the court and counsel by feigning sleepiness, and that because of his intoxication, he did not understand or validly waive the numerous rights involved in his guilty plea. Indeed, Probation Agent John J. Ralston, who was present at the time petitioner’s guilty plea was entered, wrote in his presentence report that he observed that petitioner was under the influence of drugs when he entered his plea of guilty and that immediately after the plea that morning, Mr. Ralston interviewed petitioner, had his urine tested, and the test results were positive for opiates. In his presentence report, Mr. Ralston said: [Defendant] states he occasionally consumes wine and beer, but never to any great extent. He admits to a drug history dating from 1970 in which he has used - heroin, barbiturates, L.S.D., marijuana, and cough syrup. The defendant claims he’s been spitting up blood for the past several weeks, but does not know what is causing this. Mrs. Jones told this Agent her son has an appointment at the West Baltimore Community Health Care Clinic on August 1, 1975 to attempt to determine his physical ailment. The defendant has a rather serious heroin addiction dating back about 5 years. He was “high” when he was in Court for his trial and when he accompanied me over to my office for the initial interview of this investigation. A urinalysis sample was requested and given at that time by Mr. Jones. The result was an opiate positive afier testing by the C.R.A.T. Laboratory. * * * Mr. Jones impressed this Agent as a man who is physically and psychologically dependent on heroin. He can not even do without drugs long enough to make a sober appearance in Court! He then attempted to lie about his condition by saying he was “drowsy” because he had taken some Tylenol that morning. He is a man who obviously possesses little self-control and whose self-concept may have deteriorated from prolonged abuse of heroin. (emphasis added) Agent Ralston was not called to testify after Judge McCurdy indicated that he would accept his probation report as being true in lieu of his testimony. Notwithstanding the inherent liability of this evidence, Judge McCurdy denied the petition on March 3, 1994 [Appendix D, pp. 14a-18a]. B. Decision of the Court of Special Appeals of Maryland Following the denial of Mr. Jones’ petition by Judge McCurdy, petitioner filed a timely appeal to the Count of Special Appeals of Maryland on April 1, 1994, and properly sent a copy of his notice to the State. However, although the prosecutor received a timely appeal, the clerk's office had no record of the filing. Two years later, petitioner made a motion to the Circuit Court of Baltimore City to grant a belated appeal and by order, dated January 16, 1996, Judge McCurdy "ORDERED that a belated appeal be granted in this case; and that beginning the date of this order, Petitioner has 30 days to file said appeal." Accordingly, Petitioner's Notice of Appeal was filed January 17, 1996. Both parties properly filed their briefs in the Court of Special Appeals where the State's contention that the lower court did not have the authority to grant the belated appeal was rejected and the judgment of the Circuit Court for Baltimore City (Joseph McCurdy, Judge) in denying the 1993 petition for writ of error coram nobis was affirmed (a copy of the Opinion is attached as Appendix C). Petitioner filed a Petition for Writ of Certiorari seeking review by the Court of Appeals of Maryland and on June 11, 1997, the Court of Appeals issued an Order denying further review. C. Stage of Proceedings Where Federal Questions Raised 1. On October 15, 1992, before the Circuit Court of Maryland for Baltimore City, petitioner first asserted his Fifth, Sixth and Fourteenth Amendment claims in his original petition for writ of error coram nobis to vacate the 1975 conviction. In that petition, Mr. Jones first challenged the 9 voluntariness of his 1975 guilty plea and alleged that he was denied his state and federal constitutional rights to be properly advised before the acceptance of a guilty plea. Judge Edward J. Angeletti summarily denied that petition without a hearing. 2. On November 4, 1993, before the Circuit Court of Maryland for Baltimore City, Petitioner again asserted the same claims in a second petition for writ of error coram nobis to vacate the 1975 conviction; and after hearings were held on December 20, 1993, and February 14, 15, 16, and 17, 1994, before Judge Joseph P. McCurdy in the Circuit Court for Baltimore City, Judge McCurdy denied the petition on March 3, 1994. 3. From this judgment. Mr. Jones filed a timely appeal to the Court of Special Appeals of Maryland on April 1, 1994, and properly sent a copy of his notice to the State. However, although the prosecutor received a timely appeal, the clerk's office had no record of the filing. Two years later, petitioner made a motion to the Circuit Court of Baltimore City to grant a belated appeal and by order, dated January 16, 1996, Judge McCurdy "ORDERED that a belated appeal be granted in this case; and that beginning the date of this order, Petitioner has 30 days to file said appeal." Accordingly, Petitioner's Notice of Appeal was filed January 17, 1996. 4. Before the Court of Special Appeals, Petitioner pursued his claim against the State by presenting the following issues: I. Was Mr. Jones’ guilty plea involuntary under the State and federal constitutions, the laws of Maryland 10 and the Rules because the record shows that because he was under the influence of heroin when he entered the plea, he could not voluntarily, knowingly and intelligently waive his rights? II. Is this appeal barred by Article 27, Section 645A(e) and did Judge McCurdy have the power under the law of coram nobis to grant a belated appeal from his denial of Mr. Jones’ petition for writ of error coram nobis? The State's contention that the lower court did not have the authority to grant the belated appeal was rejected and the judgment of the Circuit Court for Baltimore City (Joseph McCurdy, Judge) in denying the 1993 petition for writ of error coram nobis was affirmed. 5. Before the Court of Appeals of Maryland, Petitioner pursued his claim against the State by presenting the following issue: Mr. Jones’s guilty plea was involuntary under the State and federal constitutions, the laws of Maryland and the Rules because the record shows that he was under the influence of heroin when he entered the plea. The Court of Appeals declined review of the issue. 11 REASON FOR GRANTING THE PETITION MR. JONES' GUILTY PLEA WAS INVOLUNTARY UNDER STATE AND FEDERAL CONSTITUTIONS BECAUSE THE RECORD SHOWS THAT BECAUSE HE WAS UNDER THE INFLUENCE OF HEROIN WHEN HE ENTERED THE PLEA, HE COULD NOT VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHTS. The safeguards of fundamental fairness entitle Mr. Jones to vacate his guilty plea through a writ of error coram nobis since he has demonstrated that his mental faculties were so impaired by drugs when he entered his plea that he was incapable of a full understanding and an appreciation of the charges against him, of comprehending his constitutional rights and of realizing the consequences of his plea. Writs of error coram nobis developed at common law and have been used in modern practice to right a judicial wrong where no other remedy is available. The historical background of the writ is summarized in 38 ALR Fed. 617: To relieve litigants from judicial wrongs for which there was no remedy, writs of error coram nobis .. . were developed at common law as early as the sixteenth century . . . .During the seventeenth and eighteenth centuries such writs received scant attention but appear to have been revived by the mid nineteenth century in both state and federal jurisdictions in the United States .... In relatively recent years . . . as evidenced by the many case citations . . . and as noted by legal commentators, there has been a rapid 12 expansion or widespread revival of the use of the writ of coram nobis in criminal cases. 38 ALR Fed at 622. Now it is clear that: The writ of error coram nobis is available to a convicted criminal at any time following the entry of judgment against him or her. A writ of error coram nobis may be sought where, as here, the challenged sentence has been completely served. Flippins v. United States, 747 F.2d 1089, 1091 (6th Cir. 1984). As this Court has said, "continuation of litigation after final judgment and exhaustion .. . of any statutory right of review" is allowed "to achieve justice." United States v. Morgan, 346 U.S. 502. 511, 74 S.Ct. 247, 252 (1954). In the recent case of United States v. Travers, 514 F.2d 1171 (2d Cir. 1974), Judge Friendly, speaking for a unanimous court, issued a writ of error coram nobis vacating mail fraud convictions entered against a defendant after his sentence, including parole and probation, had expired. [Judge Friendly was eulogized in 99 Harv. L. Rev. 1709 (1986) and in 806 F.2d as a legal scholar. His reputation as a judge is virtually unparalleled.] Indeed, Travers is hardly an aberration. Relief by coram nobis in a proper case is a well recognized judicial prerogative. See, e.g., United States v. Loschiavo, 531 F.2d 659, 652 (2d Cir. 1976); Mathis v. United States, 369 F.2d 43, 49 (4th Cir. 1966); and Hirabayeshi v. United States, 627 F.Supp. 1445 (W.D. Wash. 1986). 13 Likewise, the courts of the state of Maryland have recognized the common law writ of error coram nobis. On August 20, 1993, the Court of Appeals of Maryland ruled that constitutionally infirm convictions where sentences have expired may be set aside by writ of error coram nobis. Fairbanks v. State, 331 Md. 482, 629 A.2d 63 (1993). In Fairbanks, the Court of Appeals said: [T]here exists a statutory procedure for the orderly bringing of a collateral challenge against prior convictions resulting in continued confinement, parole, or probation. Maryland Uniform Post Conviction Procedure Act, Md. Code (1957, 1992 Repl. Vol.) Art. 27, Sections 645A through 645J, with supplementary rules of procedure, Maryland Rules 4- 401 through 4-408. Common law actions, including the writ of error coram nobis, may be available for collateral attacks on prior convictions that no longer impose restraints on a defendant. Article 27, Section 645A; Gluckstern v. Sutton, 319 Md. 634, 662, 574 A.2d 898, cert. denied, 498 U.S. 950 (1990); Brady v. State, 222 Md. 442, 447, 160 A.2d 912 (1960). Cf. United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954); U.S. v. Canales, 960 F.2d 1311, 1316 (Sth Cir. 1992). * * * A defendant who is prevented from challenging the constitutionality of a prior conviction at trial or during a sentencing proceeding is not thereby divested of an opportunity for relief. That defendant may thereafter mount a collateral challenge by any means that remain available, including post-conviction procedures, habeas corpus, error coram nobis, or other statutory or common law remedies. If successful, the defendant may possibly then challenge the conviction or sentence affected by the use of the constitutionality infirm conviction. (Slip opinion at 3, 11) 14 Apropos of this case, the Court of Appeals said in Fairbanks that: The spectrum of challenges that might be made is necessarily broad; constitutionally based challenges range from obvious and direct infirmities, such as denial of the right to counsel, to more general concepts. Thus, in addition to denial of right to counsel claims, we can expect to see constitutionally based challenges mounted on grounds of denial of effective representation by counsel, denial of right to jury trial, coerced confession, double jeopardy, self incrimination, uninformed or involuntary guilty plea, lack of due process, and the like. A single challenge to a prior conviction may involve multiple claims of constitutional infirmity. See, e.g., U.S. v. Custis, 988 F.2d 1355, 1358 (4th Cir. 1993) (involving claims of ineffective assistance of counsel, uninformed guilty plea, and violation of due process, with respect to a single predicate conviction). In the instant case, during the petitioner's hearing for his petition for writ of error coram nobis relief, the trial court erroneously concluded that "petitioner has not affirmatively proven that he was intoxicated at the time of his plea." During the hearing, the trial court stated that it would accept Agent Ralston’s essentially self-verifying report as true in lieu of his live testimony and Agent Ralston contemporaneously observed that “[Mr. Jones] was ‘high’ when he was in Court for his trial and when he accompanied me over to my office for the initial interview of this investigation.” The lower court's erroneous conclusion was based on the arbitrary decision to discount Agent Ralston's report which was unreasonable for several reasons. 15 First, Agent Ralston was an officer of the court who had no reason either to lie or to exaggerate what he saw. Second, what he saw was that Mr. Jones “was ‘high’ when he was in Court for his trial and when he accompanied me over to my office for the initial interview of this investigation,” which was what Mr. Jones was trying to prove at the hearing. Third, because Agent Ralston was an experienced probation officer, there was no reason for Judge McCurdy to disbelieve that Agent Ralston had no doubt taken personal histories from hundreds of heroin-addicted defendants and was therefore familiar with the symptoms of heroin intoxication and addiction. Fourth, Agent Ralston was prudent enough to verify his observation that petitioner was intoxicated from heroin at the time of his guilty plea and during the interview by giving him an immediate urine test which was positive for opiates and by getting a reluctant Mr. Jones to admit to a lengthy history of heroin addiction, an admission which at that time Mr. Jones was reluctant to make because it appeared to him to be against his interest. Fifth, Mr. Merrick, the victim of the crime, testified against his interests that he was Mr. Jones’ drug supplier and that he was therefore in a position to know the nature and extent of Mr. Jones’ addiction to heroin. Sixth, in testimony which verified and explained the objective evidence that he was high when he entered his guilty plea, Mr. Jones said that-he was a long-term heroin addict who injected himself with heroin that morning, both because he was addicted and to ward off the inevitable withdrawal symptoms 16 he would experience in anticipation that while in jail, he would no longer have regular and reliable access to heroin. Finally, the State did not dispute either that petitioner was high from his heroin use and addiction at the time of his guilty plea or that Mr. Jones was therefore incapable of knowingly and intelligently waiving the rights explained during the guilty plea litany. Thus, all this testimony verified and explained Agent Ralston’s unimpeached and reliable observations that “{Mr. Jones] was ‘high’ when he was in Court for his trial and when he accompanied me over to my office for the initial interview of this investigation.” Therefore, the trial court’s conclusion that “petitioner has not affirmatively proven that he was intoxicated at the time of his plea“ was erroneous and indeed, clearly so. Concerning the trial court’s conclusion that “ petitioner has not affirmatively proven that . . .assuming that he was intoxicated, that his decision to take the plea or his ability to comprehend the proceedings was affected,” this finding is likewise clearly erroneous in part because it is based on the astonishing presumption that being high from heroin intoxication during a guilty plea would not affect a person’s ability to comprehend the proceedings. Indeed, as both Mr. Lane’s and Dr. Newton’s testimony affirmatively demonstrated, such heroin intoxication would go far beyond merely affecting a person’s ability to comprehend the proceedings: it would, according to Mr. Lane, at least cause “heroin addicts [to] exhibit poor judgment while under the 17 influence of heroin” and according to Dr. Newton, if Mr. Jones were under the influence of heroin at the time he pled guilty, he would not have been able to enter a voluntary and knowing guilty plea because his cognitive ability would at best be minimal. Likewise, the trial court’s conclusion that “[nJone of the petitioner’s witnesses with the exception of himself, could testify that . . .his ability to take the plea was compromised” was Clearly erroneous because among other reasons, Mr. Lane and Dr. Newton both testified to the contrary; and trial judge himself said during the hearing that day a psychiatrist could so testify. Moreover, concerning the trial court's conclusions that the presentence report “did not suggest that the Petitioner’s ability to understand and take the guilty plea was compromised,” only a psychiatrist or a person of Mr. Lane’s or Agent Ralston’s expertise could draw this conclusion - and they did! Agent Ralston put it this way: “Mr. Jones impressed this Agent as a man who is physically and psychologically dependent on heroin. He can not even do without drugs long enough to make a sober appearance in Court! He then attempted to lie about his condition by saying he was “drowsy” because he had taken some Tylenol that morning. He is a man who obviously possesses little self-control and whose self-concept may have deteriorated from prolonged abuse of heroin.” This statement would certainly suggest to a person of prudence and caution that “Petitioner’s ability to understand and take the 18 guilty plea was compromised.” Thus, the court’s conclusion to the contrary was clearly erroneous. Concerning the trial court’s conclusion that the presentence report “reflects an intelligent discourse between the investigator and the Petitioner,” the court read the report much too broadly. First, he ignores the fact that Mr. Jones lied to Agent Ralston to conceal his addiction and that Mr. Ralston saw through his lie. Second, he ignores that providing someone with historical data does not necessarily require the level of rational thinking required to understand a guilty plea litany. Thus, the conclusion to the contrary is clearly erroneous, completely arbitrary and without any basis in the record. In fact, the words chosen by the trial court were lifted from United States v. Malcolm, 432 F.2d 809 (2d Cir. 1970), a case Mr. Jones cited in support of the opposite proposition. Malcolm, “then eighteen years old, was convicted upon his plea of guilty to the crime of bank robbery (18 U.S.C. §2113(a)) and sentenced to a term of fifteen years on March 22, 1968.” Malcolm then “moved the district court in September 1969 for vacation, correction or reduction of sentence or, in the alternative, to vacate his plea of guilty under Rule 35, Fed.R.Crim.P., and 28 U.S.C. §2255” and “[t]he motion was denied without a hearing.” Malcolm then “appeal[ed] from the order of denial, asserting error in the district court's dismissal of his petition without an evidentiary hearing on his claims that: (1) he was mentally incompetent to 19 plead guilty because he was then addicted and under the influence of drugs . . .” 432 F.2d at 811. The safeguards of fundamental fairness entitle Mr. Jones to vacate his guilty plea since he has demonstrated that his mental faculties were so impaired by drugs when he entered his plea that he was incapable of a full understanding and an appreciation of the charges against him, of comprehending his constitutional rights and of realizing the consequences of his plea. United States v. Malcolm, 432 F.2d 809 (2d Cir. 1970). In Malcolm, the United States Court of Appeals for the Second Circuit said: These safeguards of fundamental fairness make plain that Malcolm would be entitled to vacation of his plea and conviction if he proved that his mental faculties were so impaired by drugs when he pleaded that he was incapable of full understanding and appreciation of the charges against him, of comprehending his constitutional rights and of realizing the consequences of his plea. Sanders v. United States, 373 U.S. 1, 5- 6, 19-20, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). A plea in such circumstances is not a knowing, free and rational choice of the alternatives open to an accused and cannot be an intelligent waiver of constitutional rights. It would, therefore, offend due process. Boykin v. Alabama, supra; McCarthy v. United States, supra; Sanders v. United States, supra, 373 U.S. at 19-20, 83 S. Ct. 1068; Machibroda v. United States, 368 U.S. 487, 493, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962); Kercheval v. United States, 274 U:S. 220, 223, 47 S. Ct. 582, 71 L. Ed. 1009 (1927). * * * There is nothing in the form or content of the entire interrogation to suggest that Malcolm was under the influence of drugs or otherwise not in full possession 20 of his mental faculties. On the contrary, he appears to have acted with intelligence and understanding. The arraignment proceedings, thus, appear regular on their face. Id. at 812. However, the Second Circuit observed: Nevertheless, Malcolm might have been under the influence of drugs and his condition would not necessarily be revealed by the record or be apparent to the judge who sees him only briefly. Regularity of the arraignment, therefore, cannot "conclusively show" that Malcolm's present claim is without merit, for the facts upon which such a claim is based are usually outside the record. Sanders v. United States, supra, 373 U.S. at 19-20, 83 S. Ct. 1068. Here, however, there is more to the record than the mere transcript of the arraignment.’ (Emphasis added) Id. at 813. Significantly, the Second Circuit based its determination that Malcolm had not pled guilty while under the influence of drugs on the fact that the presentence report ‘conclusively refute[d] Malcolm's claim.' The court said: The presentence report, part of the files and records upon which the court below relied both in imposing sentence and in denying Malcolm's application for collateral relief, conclusively refutes Malcolm's claim. That report shows that Malcolm was interviewed on January 25, 1968 immediately following his plea. He informed the probation officer that he had started using heroin about four months earlier, in September 1967, that he had gone to a Dr. Samuel Grubin for help in stopping his habit, and that he "had not taken a shot" in about three weeks. He also gave a detailed and coherent statement, in writing, admitting his crime from the planning to the division of the stolen money. 21 Later, but before sentence, he produced a letter from Samuel Grubin, M.D., dated January 27, 1968 (two days after his plea), certifying that he "has been examined by me and found to be in good physical condition and free from any addiction. Thus, the files and records conclusively show that immediately following his plea Malcolm admitted his guilt, denied the recent use of drugs, and confirmed his freedom from narcotics by certification of his own physician. In light of these immutable facts, there was no error in denying collateral relief on this claim without a hearing for, as Judge Abruzzo found, the files and records of the district court “conclusively show" that it is without merit. Id. Obviously, the Second Circuit would have reached a different conclusion had the presentence report contained facts similar to those in the presentence report in the instant case. Mr. Jones is entitled to relief based on the trial court’s erroneous conclusions of law and fact since he has shown that his guilty plea was involuntarily and unknowingly taken in violation of the Fifth, Sixth and Fourteenth Amendments of the United States Constitution. 22 CONCLUSION For the reasons cited above, Petitioner prays that his Petition for Writ of Certiorari be granted. Respectfully submitted, William H. Murphy, Jr., Esq. 1007 North Calvert Street Baltimore, Maryland 21202 (410) 539-6500 Attorney for Petitioner Robert Donnell Jones September 11, 1997 la APPENDIX A RELEVANT CONSTITUTIONAL PROVISIONS AND STATUTES U.S. Const. Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of Ware or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. U.S. Const. Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. 2a U.S. Const. Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. APPENDIX B IN THE COURT OF APPEALS OF MARYLAND September Term 1997 Appeal No. 585 ROBERT JONES Appellant, Vv. STATE OF MARYLAND Appellees. ORDER Upon consideration of the petition for a writ of certiorari to the Court of Special Appeals, the answer, and conditional cross-petition filed thereto in the above entitled case, it is ORDERED, by the Court of Appeals of Maryland, that the petition and condition cross-petition be, and they are hereby, denied as there has been no showing that review by certiorari is desirable and in the public interest. /s/ Robert Bell Chief Judge [Filed June 11, 1997] 4a APPENDIX C IN THE COUR” OF SPECIAL APPEALS OFMARYLAND No. 585 ROBERTDONNELL JONES Appellants, VS. STATEOF MARYLAND Appellees. OPINION [Filed March 26, 1997] GETTY, J. This coram nobis case presents issues relating to whether a circuit court judge may auhorize a belated appeal from the denial of a petition for a vrit of error coram nobis, and whether the chancellor errd in denying the petition for coram nobis relief. The underlying facts ad statutory background are as follows: In 1975, before lidge Basil A. Thomas in the Circuit Court for Baltimore City,