Herron v. U.S., 74-1427
| Decision Date | 06 March 1975 |
| Docket Number | No. 74-1427,74-1427 |
| Citation | 512 F.2d 439 |
| Parties | Johnnie Glenn HERRON, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Johnnie Glenn Herron, pro se.
Keith S. Snyder, U. S. Atty., for appellee.
Before WINTER, CRAVEN and BUTZNER, Circuit Judges.
Defendant, a federal prisoner, was indicted for unlawful transportation in interstate commerce of a stolen motor vehicle. On April 14, 1972, upon a plea of guilty, he received a suspended sentence of thirty months and five years' probation. Prior to pleading, he waived his right to counsel. Probation was later revoked, and the sentence of thirty months reduced to twenty months. Defendant now has filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255.
Defendant alleges that he pleaded guilty without benefit of counsel and without actual knowledge that the automobile he transported in interstate commerce was stolen. He claims that it has since been established that the vehicle in question was not stolen, and that therefore he could not be guilty of the offense charged. Defendant's allegation is thus that, although he pleaded guilty to the offense, he was not in fact guilty because he had no knowledge that the vehicle was stolen when he transported it in interstate commerce.
Rule 11, F.R.Crim.P. specifically states that, in addition to ascertaining by direct personal inquiry of a defendant that a guilty plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea, "(t)he court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea." Rule 11 is implemented by 28 U.S.C. § 753(b) which requires a court reporter to be present, inter alia, at "all proceedings in criminal cases had in open court," to report such proceedings and to file his transcript, original shorthand notes or electronic sound recording on arraignment, plea and sentence with the clerk of the district court. The clerk is required to preserve them for ten years. If Rule 11 and 28 U.S.C. § 753(b) had been complied with, manifestly defendant's case would admit of an easy solution. Either the proceedings would show that there was a factual basis for his plea, in which event he would not be permitted to relitigate whether he had knowledge that the vehicle was stolen; or the proceedings would show that a factual basis for his plea was not established, in which event the guilty plea would be stricken and he would be permitted to plead anew.
Unfortunately, in the instant case there is no record of the proceedings at which the plea of guilty was tendered and accepted. Despite inquiry and search, both the United States magistrate and the clerk of the district court certify that there is no record of these proceedings. The court reporter states that she has no independent recollection of the proceedings but that the notes of any proceedings that she reported would be filed in the...
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