United States v. Darrell James Brown
413 F.2d 878
9th Cir.
1969
Check Treatment

*2 14, petitioner BARNES, Before JERTBERG “On March Judges. DUNIWAY, accepting guilty. pleaded Circuit Before indictment, Judge plea, Mathes read the provisions and the of 2114. 18 U.S.C. § Judge: BARNES, Circuit or not A discussion ensued whether persona propria Appellant in mandatory twenty-five years re- was appeal a district court takes this from Judge positive quired. most Mathes was denying pro in a relief decision collateral pe- accept plea until that he ceeding, designated “Motion Va as fully matter titioner advised. The or for a Writ of Coram cate Sentence day in was then over later Appellant his has mislabeled Nobis.” provide more consultation between petition. relief un He not entitled to petitioner attorney. and his der of Criminal Procedure Federal Rule subsequently “When the cause was is not itself ille his sentence because again again, pleaded petitioner States, called gal. Hill 368 U.S. v. United Judge carefully ques- (1962). Mathes 430, 82 7 L.Ed.2d 417 S.Ct. petitioner tioned to determine available, since Coram Nobis intentionally plea custody. or not whether his is 60(b). Cf. Fed.R.Civ.P. still voluntarily complete petition made Hence, treat we consequences of the awareness of the filed below as a motion under U.S.C. Judge course, plea. Mathes ‘Of states district 2255. It was denied § you giving understand that court, and affirm. we you guilty hope of have no of leni- quote dis- from the order of the We ency? compels the Court law judge (Judge.Ferguson): trict court twenty- punishment mete out the 7, 1951, petitioner March “On year prison of five Do each sentence. for codefendants dicted with three other you petitioner understand that?’ The Robbery violation U.S.C. § 2114— replied that he did. alleged indictment from Mails.1 This Ange- “Judge January accepted in Los that on Mathes County, robbed les the four defendants and sentenced California, years. mandatory twenty-five Pacoima, the Postmaster at order) States, shall, Ferguson’s erty (not Judge of the United for offense, imprisoned Mail, money or other first not more § U.S.C. States, years; effecting property than and if in or Whoever ten robbery having charge, .attempting person any effect such lawful assaults person custody control, custody any having mail matter or wounds money property mail, money, property any such or other or other or puts rob, or his the United with intent the United matter, purloin steal, the use of mail mon or such weapon, subsequent offense, property ey or the United or other imprisoned years. twenty-five or of mail shall robs such matter, any money, prop- or other September petition- pellant’s completely “On contentions are friv- er, 67-1389-FW, proceeding number olous. pursuant motion filed in court a filing appellant’s After *3 Judge contending 28 that U.S.C. § brief, opening brief, the Government’s comply 11 did not with of Mathes Rule sought appellant’s reply, appellant and Proce- the Rules of Civil [Sic] Federal court, received, permis from this and prior accepting plea to the of dure supplemental pleading. sion to file a Judge by “The motion heard was cited We have considered the cases court, on Frances C. Whelan of this and nothing therein, and therein to find January 18, 1968, filed his Memoran- us to cause conclusion other come denying dum the Decision and Order sentence, than affirm it based as Judge 2255 decided motion. Whelan upon clearly uncoereed of was a voluntary, that was made was guilty, understanding a made full with understanding consequences with of its appellant’s consequences part on of the petitioner and the an erro- did have plea. of such regard mandatory neous belief McCarthy Appellant’s v. reliance sentence.2 States, 89 United 394 S.Ct. U.S. Judge appeal “There was no from (1969), relating 22 L.Ed.2d 418 binding Order it is Whelan’s and compliance of with Federal Rule Crim- proceeding. addition, however, In an in- misplaced, it inal for Procedure dependent requires review of record was in Halli- held retroactive this court did conclude same as States, day v. United 394 U.S. Judge Whelan. (1969). S.Ct. L.Ed.2d 16 petitioner proceeding “The in this question aside We of Judge now claims that the sentence of person’s or can whether not a illegal. Mathes was The sentence was dangerous jeopardy by into of use a legal. reading A 2114 is of U.S.C. § revolver, weapon, wit, a .32 whether wording clear under that gun Many loaded has unloaded. a by petitioner dictment which dangerous weapon been used as a with charged jeopardy by ‘life in the use being out its fired. mandatory weapon’ requires a Appellant question as to raises imprisonment twenty-five years. the hold- whether or not the used in Judge Mathes was not error. fired; not, up had could be and if regard petitioner’s “In that claim jeopardy. placed the life in Postmaster’s understanding he was in error in not mitigation point This raised in Judge required that to im- Mathes was punishment prior to The trial sentence. pose mandatory twenty-five year sen- judge immediately appellant, invited the tence, Judge the record de- Whelan’s codefendants, his to consider lay cision in the 2255 motion to rest por- possibility pleading “to argument petitioner claim. The in his charge. might deny They tion of this ” complaint attached to * * his that * concedes putting jeopardy. the life in Judge extremely Mathes was cautious (C.T. 39.) Two codefendants accepting guilty plea. no There it, delay, obtained asked for further question that that knew appellant for, received asked twenty-five years the sentence of Wagner v. immediate sentence. cf. mandatory.” C.T. 28-30. (9th States, United 264 F.2d 524 Cir. 1959); Our own the tran- examination 241 F. LaClair United v. script had before Supp. (N.D.Ind.1965), and cases sentencing judge ap- that shows most cited. (not Judge Judge Ferguson’s order) petitioner’s motion and whatsoever regard: ap- petition.” Whelan stated in this “It C.T. therefore, pears, that there is no basis sentencing hearing transcript 309 F.2d United v. Smith inquired whether the court on its that (9th 1962), similar shows is not Cir. including defendants, Brown, unrep- understood petitioner was There facts. guilty to they plead “partially trial, mis- that could his counsel at resented might They portion charge? Com- counsel. Government advised deny putting life in pare, 290 F. Alexander dangerous weapon.” 1961). (5th [sic] POWER 2d 252 Cir. Nevertheless, plea, his stood on Affirmed. understanding fully required the Judge: 25-year DUNIWAY, And impose sentence. court to Circuit *4 nothing transcript indicat- the contains conten- Most of Brown’s I dissent. ing gave government the counsel that merit, my clearly as without tions are charge. any If of the court definition opinion demonstrates. Barnes’ brother all, disposed af- I to this were would be to Brown as which is one But there firm. and, amend, permitted if he to should be facts, allege to have a The court’s sufficient But there is more. can did hearing. quiry just quoted that he claim occurred That is his that I have person sentencing, in of the robbed hav- the life at the time of the not weap- dangerous by ing days It use of a the taken few before. been guilty that, following colloquy not prompted he is Unless he did the on. aggravated of which he the offense and Brown’s counsel: between the court already served has convicted, he and please, your “MR. If Honor PRATT: ten-year maxi- years the more than six legal why any ground sen- there isn’t prescribed offense for the lesser mum pronounced I be tence should not but admittedly guilty. Thus is which your to would like call Honor’s [sic] in which rare cases is one of those this the indictment to the fact that may not be appears the it that charges they post- that the assaulted some guilty, than that there was rather mistress, technically true, is which may re- that in defect they actually any physical do didn’t though be quire even new trial her; whol- violence assault was advanced, claim is such a When ly by aof WHICH means revolver summarily not that should I think it ( ?) NOT BE FIRED COULD hearing, unless disposed of, without question THE There is no COURT: “conclusively indeed record does guilty they pleading are but what to no prisoner is entitled show that charge, is there ? 2255; emphasis (28 relief.” U.S.C. § No, isn’t, your MR. there PRATT: added). Here, record not find the I do just your Honor. I wanted to call conclusive. Honor’s attention to the fact he did have that asserts charge ‘assault,’ that there wasn’t understanding” “intelligent because: language ‘physical assault.’ “(a) case The evidence THE affect COURT: That wouldn’t simple only of the a violation showed any, it situation ? robbery by and force offense of No, MR. I don’t think PRATT: putting life aggravated offense of would. danger, or, assault. They pleading THE COURT: are 14, 1951, (b) on March Defendant guilty charge putting her misun- entered a jeopardy by dan- USE of- derstanding nature of of the gerous weapon. defini- the erroneous on fense founded Yes, right, your MR. that PRATT: given is the defendants tion Honor. for the Government.” counsel Court support por- THE COURT: And are stated No facts whatever charge Moreover, tion of the makes man- allegations. which these datory imprison- year I sentence would vacate the order and remand a 25 (1) ment. with directions to the trial court permit allege, in un- Brown to detail and I understand that. MR. PRATT: oath, subject der so that he would be They too, your do, Honor.” penalties exactly perjury, what up transcript from the The written happened robbery, at the so far as use reporter’s notes, apparently someone concerned, and, (2) of the if such entirely else, may not be accu- well allegations sufficient, are hold a hear- language capitalized rate. grant ing relief, any, may such if as question part doubt on the mark indicate proper. Naturally, express opin- I no writing up transcript. veracity ion toas of Brown’s claims. Nevertheless, colloquy does indicate may been confu- me that there have parties sion in all as minds meaning “puts phrase his life in weap- jeopardy by the use

on.” opinion careful As is in the shown *5 Ind.,

LaClair 1965, N.D. v. United 819, 824-826, F.Supp. HANSEN, May the law 241 Neta Executrix of the Hansen, Deceased, Estate of Otto H. meaning of some as to its a state Appellant, Brown, 1951, pleaded confusion in when judge’s v. comment The trial any, “That VINAL, Appellee. wouldn’t affect situation Richard P. meaning that would it?” read as can be No. 19352. danger” objective “an re state Appeals United States Court quired. 1951, it has Yet become since Eighth Circuit. settled in this other circuits an objective danger must exist. state of 23, July Cir., Wagner 1959, 9 v. United 530; 524, 264 F.2d Donovan, United States v. 1957, 63; 61, Cir., 242 F.2d 2 Dorrough States, Cir., 5 United v. 893-894; 385 v. United F.2d Smith States, Cir., 1960, 5 284 F.2d 791- following cases See also construing language in 18 similar U.S.C. 2113(d), dealing robbery: with bank § Cir., Wilcox v. 9 United 451;

381 F.2d v. United Smith 164; States, Cir., 1962, 9 309 F.2d Unit Cir., 1963, Roach, ed F. States v. 1, 5; States, Cir., Meyers

2d (predecessor F.2d 588b(b) (a));

section Wheeler v. United

States, Cir., 1963, 615, 618. 317 F.2d fired,

If in not be fact could

either not loaded because it was reason, some if in fact it was other though manner,

not used in such a even fired, as to the life of could not be objective postmistress state

danger, then aggravated offense.