Aрpellant appeals from the order of the District Court denying him a Writ of Error Coram Nobis and dismissing his action. This Court has jurisdiction under 28 U.S.C. §§ 1291 and 1294(1).
*1197 Appellant moved in the District Court to vacate the sentence imposed on him on December 7, 1944, after his plea of guilty to an indictment charging violation of 21 U.S.C. § 174 on that date in the District Court. His sentence of three years having long since been served, relief under 28 U.S.C. § 2255 as requested by him in his petition does not lie. He is entitled to relief only if he is entitled to a Writ of Error Coram Nobis under 28 U.S.C. § 1651(а). The asserted prejudice he claimed below he suffered as a result of the sentence of December 7, 1944, was that subsequently he was sentenced as a recidivist in the California state court and was at that time serving such sentence. However, at oral argument before this Court his counsel stated that the recidivist sentence had been vacated and appellant has now been sentenced by the California court solely under the penalty provisions of the statute, the violation of which he had been convicted in the state court, so that he now suffers no prejudice from the state sentence because of the December 7, 1944 conviction.
There are two questions on appeal. The first is whether the questions рresented by appellant are moot; the second is whether the District Court erred in not granting an evidentiary hearing on the question of the voluntariness of appellant’s guilty plea.
Appellant on appeal does not advance other contentions made in the District Court with respect to claimed illegal search and seizure and violation of Fifth Amendment rights at the time of his arrest. Such contentions properly have not been advanced for the reason that a voluntary plea of guilty waives all nónjurisdictional defenses. Thomas v. United States,
We first discuss the question as to whether or not the District Court erred in failing to grant an evidentiary hearing on the question of voluntariness of the plea. We hold that the District Court did not err for the follоwing reasons.
The record of the sentencing court clearly establishes that appellant was asked whether he desired counsel assigned by the court without cost to him and that appellant stated that he did not desire counsel and stated thаt he desired to proceed without counsel. At no time does he claim that the record is in error. In determining whether there was an intelligent waiver of the right to counsel, particular facts and circumstances surrounding the ease including the backgrоund, experience and conduct of the accused may be considered. Johnson v. Zerbst,
It seems that appellant’s claim of a non-voluntary plea is based upon non-retroactive decisions occurring long after 1944. Thus, at page 3 of his petition he states that the records do not show that aрpellant was advised of his inherent right to a jury trial. Again in his argument in support of his traverse he states that the record does not show that appellant was “constitutionally advised of his right to the privilege against self-incrimination.” Thus it appears that appellant below labored under the mistaken impression that the rule of McCarthy v. United States,
Counsel for appellant is in error in his contention. Rule 11 in 1944 merely required that the trial court not accept a plea unless the plea was voluntarily made with understanding of the nature of the charge. In this case the record establishes that the sentencing court, after being told by appellant that appellant did not want a lawyer assigned to him without cost and that appellant desirеd to proceed without counsel, and after appellant pleaded guilty, did question appellant before sentencing him. There is a presumption of regularity when a criminal judgment is assailed in a Coram Nobis proceeding. As the Supreme Court has stated, “The absence of a showing of waiver from the record does not of itself invalidate the judgment. It is presumed the proceedings were correct and the burden rests on the accused to show otherwise.” United States v. Morgan,
It is thus presumed that questions put to appellant by the sentencing judge prior to sentence concerned themselves with appellant’s knowledge and understanding of the nature of the charge and the consequences of his plea of guilty.
There was nо requirement at the time of the plea in question that there be an entry of a formal finding or recitation to the effect that the plea is made voluntarily with understanding of the nature of the charge. It was, at the time of appellant’s sentence, implicit in the act of the court in accepting a plea of guilty that the required determination had been made. Munich v. United States,
The rule of this Circuit is that the vacation of a judgment for failure of the court to make a determination on the record that a guilty plea was voluntarily made is not applicable to cases wherein the plea was made prior to November 2, 1965. See Gomez v. United States,
Moreovеr, it appears from appellant’s own statements that an evidentiary hearing would not serve to elicit further *1199 the circumstances surrounding appellant’s plea. Appellant by his own sworn statements in his petition and sworn responses to interrogatories posed to him, particularly in his response to Interrogatory No. 10, states “I actually don’t recall much of anything that occurred in court on the date I entered my plea- of guilty.” Also, his response to Interrogatory No. 9, while it is inconclusive, stаtes in answer to the question as to who gave him information as to the maximum sentence which could be imposed and at what time such information was given, “As so stated above, the judge; with regard to the time I can only assume, it was during the sentencing proceeding. As my mind is hazy, and I don’t recall much, if anything.”
While it is true that he alleges in his petition that at the time of his plea his mind was yet hazy and he was still suffering from drug addiction withdrawal symptoms, he does not state that he did not at the time of his plea understand the nature of the prоceedings or that he did not understand what he was doing when he waived counsel or that he did not understand what he was doing when he pleaded guilty. Another Circuit has in effect taken judicial notice of the fact that narcotics withdrawal symptoms don’t affeсt competency five days after the last taking of narcotics. Edwards v. United States,
From all of the record it appears that appellant does not make any factual allegation that he was not advised of the nature of the сharge or that he did not understand the nature of the charge or the consequences of his plea of guilty. As far as his understanding of the nature of the charge is concerned, he had just served two and one-half years in the Federal Narcotics Hоspital and his petition and the entire record disclose that he knew that he was arrested in December 1944 on the same charge involved in the 1941 convictions. Where he does not set forth any facts to show that he was not properly advised сoncerning the crime and its consequences, then the presumption that he was properly advised is sufficient to support his conviction where he has, as here, voluntarily and understandingly waived counsel.
With respect to the question of mootnеss, it would seem that there are now no circumstances which compel the granting of Coram Nobis relief even if appellant could otherwise successfully attack the sentence which he has long since served. Coram Nobis relief should be allowed only under circumstances compelling such action to achieve justice. United States v. Morgan,
The denial of an evidentiary hearing was proper in this case. Even in considering relief under 28 U.S.C. § 2255, District Courts are not stripped of all discretion to exercise their common sense. Machibroda v. United States, 368
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U.S. 487, 495,
The judgment is affirmed.
Notes
. Appellant by Ms sworn statements shows that he сannot dispute the record and the presumption of regularity. The court reporter’s notes have long since been destroyed ; the sentencing judge is dead; and there is no other evidence to dispute the record and the presumption of regularity.