193 F.3d 1107 (9th Cir. 1999), 98-16625, United States v. Dawson

Docket Nº:98-16625
Citation:193 F.3d 1107
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RIDGE HARVEY DAWSON, Defendant-Appellant.
Case Date:October 06, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1107

193 F.3d 1107 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

RIDGE HARVEY DAWSON, Defendant-Appellant.

No. 98-16625

United States Court of Appeals, Ninth Circuit

October 6, 1999

Argued and Submitted May 12, 1999--San Francisco, California

Page 1108

Timothy O'Toole and John C. Lambrose, Assistant Federal Public Defenders, Las Vegas, Nevada, for the defendant appellant.

Walter L. Ayers, Assistant United States Attorney, Las Vegas, Nevada, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada; Lloyd D. George, District Judge, Presiding. D.C. No. CV-96-00255-LDG.

Before: Betty B. Fletcher and Barry G. Silverman, Circuit Judges, and Donald E. Walter, District Judge.[*]

Opinion by Judge Silverman; Dissent by Judge B. Fletcher

SILVERMAN, Circuit Judge:

In 1977, in the course of accepting a guilty plea to robbery of a federal credit union, a district judge neglected to inform petitioner of his right to confrontation and his privilege against self-incrimination. Petitioner was sentenced to prison and long since served his time. Twenty years later, because the 1977 conviction was being used to enhance petitioner's sentence on new charges, petitioner sought to have the conviction set aside on the ground that the judge's error rendered the guilty plea invalid perse. We hold that defects in a guilty plea proceeding are evaluated like other errors of constitutional dimension. They merit relief only if they are not harmless. In this case, the record adequately supports the conclusion that petitioner was not prejudiced by the error. We affirm.

OVERVIEW

Ridge Harvey Dawson appeals the district court's denial of his 28 U.S.C. S 22551 1 motion to vacate, set aside, or correct his 1977 robbery conviction and his 1993 sentence as an armed career criminal under 18 U.S.C. S 924(e). On direct appeal of the 1993 sentence, we held, pursuant to Custis v. United States, 511 U.S. 485 (1994), that section 924(e) did not permit Dawson to collaterally attack his 1977 prior conviction in the 1993 case. Dawson subsequently filed a section 2255 motion challenging the prior conviction and later enhancement. The district court denied his motion.

We have jurisdiction pursuant to 28 U.S.C. S 1291, and we review the denial of a section 2255 motion de novo and a district court's factual findings for clear error. United States v. Benboe, 157 F.3d 1181, 1183 (9th Cir. 1998). We affirm.

Page 1109

FACTUAL AND PROCEDURAL BACKGROUND

In 1977, Dawson pled guilty to robbing a federal credit union. He was sentenced to ten years' imprisonment, but was paroled in 1981. In 1986, prior to the expiration of his parole, the state of Nevada convicted him of possession of a controlled substance with intent to distribute, and he served time in prison until 1991.

In 1993, the federal government convicted him of possession of a controlled substance and being a felon in possession of a firearm. The district court sentenced him to 240 months' imprisonment pursuant to the Armed Career Criminal Act, 18 U.S.C. S 924(e). On appeal, a panel of this court affirmed the sentence in an unpublished memorandum, holding that Dawson could not collaterally attack his 1977 conviction in the 1993 prosecution so long as he had been apprised of his right to counsel in the 1977 matter. See United States v. Dawson, 39 F.3d 1189, 1994 WL 594644 (9th Cir. Oct. 31, 1994).

Dawson subsequently brought a section 2255 action to set aside his 1993 sentence by collaterally attacking his 1977 robbery conviction. He argued that the court in 1977 had failed to ensure that he knowingly waived his constitutional rights when he pled guilty. The transcript of Dawson's change of plea shows that Judge Foley had not informed him of his privilege against self-incrimination and his right to confront and cross-examine witnesses. However, with the permission of Dawson's counsel, the judge permitted Dawson's arraignment before a United States magistrate judge to be incorporated by reference into the change of plea proceedings. However, the transcript of the arraignment before the magistrate judge is unavailable; due to the passage of time, it has been purged.

In 1998...

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