William John Wacht v. Harold J. Cardwell and the Attorney General of the State of Arizona
604 F.2d 1245
9th Cir.
1979
Check Treatment

*2 jurisdiction pursuant to 28 U.S.C. § ANDERSON, Before MERRILL and Cir upon this court’s principally relies Judges, SKOPIL,* cuit Judge. District States, decision in Munich v. United ANDERSON, J. Judge: BLAINE Munich, (9th 1964). In F.2d 356 we enters a held that when a federal defendant appeals the denial of his habeas will is not aware that he guilty plea and corpus petition. He claims that the state is not ineligible parole, then trial judge failed to inform him of his ineli- understanding of necessary made with gibility pled guilty. when he at 361. Wacht consequences. This, Wacht, according to means that his pleading has failed to his burden guilty plea was intelligently neither nor bring could him with- sufficient facts which voluntarily made. We find that Wacht has in the Munich rule. failed to make allegations sufficient factual relief, which would entitle him to any arid hearing in a To be afforded affirm the denial of petition. his habeas petitioner required to al- proceeding, the 30,1973, pled guilty sup- On October lege facts with sufficient transportation of narcotics in violation port his claim for relief.2 The “Rules Gov- Jr., Skopil, Judge support type challenge *The Honorable Otto R. Chief do not this of collateral Court, guilty plea, they for the United States District District of to a nor do afford sufficient Oregon, sitting by designation. grounds evidentiary hearing. for an See Far- States, row v. United 1361-1362 Cir., banc, 1978); 1. This included an eleven-month sentence in en Tucker v. United county jail. States, 1972); Wallace F.2d States, F.2d 1972); conclusory allegations, 2. Bald assertions Smith v. United case, such as are before the court in the Cascio Munich, supra, 337 ineligible provide that the erning 2254 Cases” does he make claim F.2d at 361. Nor petition: of the fact that he was unaware specify all the shall ineligible for Id. And would be peti- to the are available for relief which not claim importantly, more he has or and of which tioner *3 should, pled guilty had he would not have diligence of reasonable exercise ineligibility for possible his shall set forth in known about knowledge have and — Timmreck, v. each supporting parole. form the facts summary 2085, U.S.—,—, 60 L.Ed.2d specified.” (empha- thus 99 of the S.Ct. sum, allege added) he has failed to (1979). sis 634 any way show would in any facts which 2(c), Rule 28 foil. 2254. Addition- § rights any his in prejudiced or that he was ally, the Note to these Advisory Committee omission this “technical” way affected that: explains rules “ case judge. by the state sufficient, pleading is not ‘[N]otice’ distinguishable from Munich.4 is therefore expected to state facts that petition point to a ‘real of constitution- AFFIRMED. ” al error.’ 1111; 2254, Quoted approv- 28 p. U.S.C.A. § MERRILL, Allison, 63, ingly Blackledge in v. 431 U.S. of the court. I concur in the decision n.7, 1621, (1977). 75 97 52 L.Ed.2d 136 S.Ct. Timmreck,—U.S. v. In United States Wacht failed to re- 2085, (1979), —, L.Ed.2d 634 it 99 60 S.Ct. quirement pleadings to 2254 or show guilty relief from a was held that collateral possibility” that there is a “real of constitu- when all that is shown plea is not available merely tional error. In his the formal re comply is a failure to alleges that he . was not in- 11, showing quirements Rule without consequences plea. formed of the injury the violation resulted (C.R.) .” Clerk’s Record 2. In his pleader. The consequences to the harmful supporting background statement of infor- out: pointed mation, alleges judge that “the [who not inform accepted guilty plea] his did he was “Respondent argue not does be ineli- William John Wacht that he would special parole of the actually unaware gible any for release under circumstances properly that, had been if he term or years.” until he had served five calendar not judge, he would by the trial advised nothing C.R. 5. has done more than is of only claim pleaded guilty. have His claim that the trial failed to inform of the rule.” a technical violation parole ineligibility.3 his about his at—, 2087. To the 99 —U.S. S.Ct. Salas, 602 not v. claim that his at same effect is United States 215 torney explain failed to that he would be F.2d 581, argumentative assertions are no v. ties. These Meeks 881, 1970), conclusory. less denied, 881, 126, cert. 400 U.S. 91 S.Ct. applies L.Ed.2d 120. 4. whether Munich We do not decide People proceedings. state See Gilmore v. court appeal, In his brief on Wacht does make the California, of State of claim that he was never informed from denied, 1078, 1969), cert. 397 U.S. S.Ct. ineligibility source about his An 814, compare Boykin 25 L.Ed.2d allegation appellate in an brief not does substi- Alabama, 238, 89 395 U.S. S.Ct. necessary pleadings tute for the §a McCarthy (1969), with L.Ed.2d proceeding. allegation Since this was not be- 22 L.Ed.2d 89 S.Ct. 394 U.S. court, fore the district we do not it on consider whether also do not decide We any way limits or overrules Mu Timmreck in allegations appearing There are some other nich. petition by way argument in his habeas under his Memorandum of Points and Authori-

As I view the record it does

appear that did not know of his lack-

ineligibility What is still however,

ing, showing is a that had parole he ineligibility

known of his pleaded guilty.

would not have This is not Here,

implicit from the facts of this case.

contrary to statutory ineligibility, the usual probation

under Arizona law was available petitioner, following guilty his probation. His sen-

he was first imposed only

tence after he had violat- probation. This some doubt as to

ed raises

whether, pro- faced with the possibility), real (apparently

bation chosen not to

he would nevertheless have

plead guilty had he known that

not available. has not been prejudice

I conclude that require- shown to Timmreck,

ments of that we here are

faced with a mere technical violation of the

rule. al., PENETRANTE, etc., et

John Robert

Plaintiff-Appellee, America,

UNITED STATES of

Defendant-Appellant. of Appeals,

United States Court