Edward Lee Wright v. United StatesEdward Lee Wright v. United States
- Reporters:
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- Before:
- Vance
Edward Lee Wright filed a
On October 23, 1964, Wright was indicted and charged with four counts of illegally selling heroin under the statutory predecessor of
On March 1, 1974, Wright was again convicted under
On October 14, 1977, Wright moved to vacate his sentence under the 1965 conviction arguing that when it accepted his plea, the court did not satisfy
On appeal Wright again argues that the court which accepted his 1965 guilty plea did not comply with
In a
In
United States v. Timmreck,
441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), the Supreme Court recently held
Such a violation [ofRule 11 ] is neither constitutional nor jurisdictional: the 1966 amendment toRule 11 obviously could not amend the Constitution or limit the jurisdiction of the federal courts. Nor can any claim reasonably be made that the error here resulted in a “complete miscarriage of justice” or in a proceeding “inconsistent with the rudimentary demands of fair procedure.” Respondent does not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. His only claim is of a technical violation of the rule. That claim could have been raised on direct appeal, see McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 [1969], but was not. And there is no basis here for allowing collateral attack “to do service for an appeal.” Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590, 91 L.Ed. 1982.
Id.
at 783-84, 99 S.Ct. at 2087 (quoting
Hill v. United States,
368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)).
Cf. Sunal v. Large,
332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947) (trial error that was not constitutional violation.) Although the trial court in
Timmreck
had failed to warn the petitioner of a mandatory special parole term before accepting his guilty plea, thus had violated
This court, sitting en banc in
Keel v. United States,
585 F.2d 110 (5th Cir. 1978), anticipated
Timmreck
and established the following standard for collateral review of
Regardless of what principle of law is applied in direct appeals, we hold that when a collateral attack is made on a guilty plea for failure of the district court to literally comply with newRule 11 , the defendant must show prejudice in order to qualify for§ 2255 relief. In the absence of a fundamental defect which inherently results in the miscarriage of justice, or an omission inconsistent with the demands of fair procedure, relief cannot be given in a collateral attack on a guilty plea conviction based on failure ofRule 11 compliance when the plea was taken.
Id.
at 113 (after 1975 amendments to Rule ll).
3
Accord, United States v. Johnson,
615 F.2d 1125, 1127 (5th Cir. 1980);
Tallent v. United States,
604 F.2d 370, 372 (5th Cir. 1979);
Howard v. United States,
580 F.2d 716, 720 (5th Cir. 1978);
see United States v. King,
604 F.2d 411, 414 (5th Cir. 1979) (factual basis requirement). Lee Jackson Keel contended that he was entitled to
Before it was amended in 1966 and in 1975,
shall not accept the plea [of guilty] without first determining that the plea is made [1] voluntarily [2] with understanding of the nature of the charge.
The court was also required to determine [3] that the defendant entered the plea with comprehension of its consequences.
Kercheval v. United States,
274 U.S. 220, 223-24, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927).
See United States v. Dayton,
604 F.2d 931, 934-35 (5th Cir. 1979) (en banc),
cert. denied,
445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). A 1966 amendment required the court to address the defendant personally in making these determinations.
4
Three years later, the Supreme Court ruled in
McCarthy
v.
United States,
394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), that on direct review the court must reverse a defendant’s guilty plea and accord the defendant another opportunity to plead if the trial court did not personally ask the defendant whether these three requirements were met.
Id.
at 463-64, 89 S.Ct. at 1169.
McCarthy
was based on the application of
Wright pleaded guilty in 1965 to count 5 of the indictment against him. He now asserts that the court did not determine whether he entered his plea voluntarily. Before
McCarthy
and the amendments to
Similarly, Wright argues that the court did not determine whether he understood the nature of the charge to which he pleaded guilty. In 1965 the court was not required to follow a prescribed formula in determining that a defendant understood the nature of the charge. Kennedy v. United States, 249 F.2d 257, 258 (5th Cir. 1957); see Hulsey v. United States, 369 F.2d 284, 286 (5th Cir. 1966). Before the court accepted his plea, Wright, who had been sworn by the clerk and was represented by counsel, affirmed to the court that he actually was guilty of the crime charged. A government agent then testified,
As to the defendant Wright, as set out in Count 5, he was arrested on June 5, 1964, in New Orleans, for selling . heroin hydrochloride, to an informant in the amount of 1.419 grams, which was contained in 18 capsules, and that quantity of drugs . . . was not sold from the original stamped package or authorized under any of the exceptions to the United States Code.
Because this sequence shows that Wright comprehended the charge to which he
Finally, Wright contends that the court did not ascertain whether he understood the consequences of his guilty plea. He claims that his sentence must be vacated because the court failed to tell him the maximum sentence for the offense, to notify him of the plea’s possible enhancing effect on a subsequent sentence, and to warn him of the constitutional rights waived. Before it was amended in 1975, “
This Court is aware of no precedent, from the Supreme Court or elsewhere, for the proposition that due process requires that a defendant be informed of each and every right which is waived by a guilty plea .
Id.
at 415.
6
Accord, McChesney v. Henderson,
482 F.2d 1101, 1106-07 (5th Cir. 1973),
cert. denied,
414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974). In 1965,
The proceedings during which Wright entered his guilty plea satisfied the “ ‘rudimentary demands of fair procedure’ ” and did not result in a “ ‘complete miscarriage of justice.’ ” United States v. Timmreck, 441 U.S. at 783-84, 99 S.Ct. at 2087-88 (quoting Hill v. United States, 368 U.S. at 428, 82 S.Ct. at 471). The record conclusively demonstrates that Wright entered his guilty plea voluntarily with an understanding of the nature of the charge and the direct consequences of his act. The district court did not err in dismissing Wright’s section 2255 motion without an evidentiary hearing.
AFFIRMED.
Notes
. One form of prejudice warranting section 2255 relief is a dispositive change in a circuit’s law after the time for appeal has expired. Davis v. United States, 417 U.S. 333, 345-47, 94 S.Ct. 2298, 2304-5, 41 L.Ed.2d 109 (1974).
. Timmreck and other decisions reflect the Court’s concern with preserving the finality of judgments after appeal. See United States v. Timmreck, 441 U.S. at 784 & n. 4, 99 S.Ct. at 2087 & n. 4; Henderson v. Kibbe, 431 U.S. 145, 154 n. 13, 97 S.Ct. 1730, 1736 n. 13, 52 L.Ed.2d 203 (1977).
. In
Keel,
we rejected a per se rule that a technical violation of
.
shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. . . . The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.
. The Supreme Court, in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), said that courts “cannot presume a waiver of these three important federal rights [ — the privilege against compulsory self-incrimination, the right to a jury trial, and the right to confrontation — ] from a silent record.” Id. at 243, 89 S.Ct. at 1712. A year later, the court in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), said that “[t]he new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.” Id. at 747-48 n. 4, 90 S.Ct. at 1468 n. 4. See also North Carolina v. Alford, 400 U.S. 25, 29 n. 3, 31, 91 S.Ct. 160, 163, n. 3, 164, 27 L.Ed.2d 162 (1970). This circuit delineated the scope of Boykin’s requirement and fifth circuit precedent in McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974):
[Tjhere is no requirement that there be express articulation and waiver of the three constitutional rights referred to in Boykin, by the defendant at the time of acceptance of his guilty plea, if it appears from the record that the accused’s plea was intelligently and voluntarily made, with knowledge of its consequences.
Id. at 1110. Accord, United States v. Caston, 615 F.2d at 116 n. 4; United States v. Frontero, 452 F.2d 406, 415 (5th Cir. 1971).
.