U.S. v. Patterson, 83-4001

Citation739 F.2d 191
Decision Date13 August 1984
Docket NumberNo. 83-4001,83-4001
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Paul E. PATTERSON, a/k/a "Pep" Patterson, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Paul E. Patterson, pro se.

Thomas C. Collier, Jr., Washington, D.C., (court-appointed), for defendant-appellant.

Glen H. Davidson, U.S. Atty., Alfred E. Moreton, III, Asst. U.S. Atty., Orford, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before CLARK, Chief Judge, JOLLY and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The petitioner Patterson, a federal prisoner, appeals from the denial of his application for post-conviction relief pursuant to 28 U.S.C. Sec. 2255. He contends: (1) his plea was involuntary and unintelligently made because he was not informed of the nature and essential elements of the offense to which he pled; (2) the conspiracy count's indictment was fatally defective, so therefore the plea of guilty to the indictment admitted guilt of no crime; and (3) his sentence was grossly and unfairly disproportionate to that received by his more culpable co-conspirators and associates. We affirm.

In 1981, as part of a plea bargain, Patterson pled guilty to three counts of a six-count indictment that had alleged various counterfeiting offenses--one conspiracy count that alleged eighteen overt acts, and two substantive counterfeiting counts (possession and concealment, with intent to defraud; transfer and delivery, with intent that same be passed). He was sentenced to consecutive sentences totalling twelve and one-half years. The defendant then filed a timely motion under Fed.R.Crim.P. 35(b) to reduce his sentence. This motion was denied, and he did not appeal (allegedly through ignorance of his appellate rights). The present application for post-conviction relief was filed in 1982, some seven months after Patterson's motion for reduction of sentence was denied.

The district court dismissed his petition without an evidentiary hearing. It found that the transcript of the plea proceedings negated the contention that the plea was involuntary, and that the indictment defects were waived by the plea of guilty. The district court did not address Patterson's third contention that his sentence was grossly and unfairly disproportionate.

I.

The district court's conclusion that the transcript of the guilty plea proceeding conclusively showed that Patterson's guilty plea was intelligently made was not error. For reasons to be shown, we conclude that the district court adequately determined that Patterson understood "the nature of the charges to which the plea" was offered, and failure to comply literally with Fed.R.Crim.P. 11(c)(1) does not require vacating the sentence. 1

Although it is clear that the district judge's failure to comply with the letter of Rule 11(c)(1) would have entitled Patterson to reversal on direct appeal, United States v. Dayton, 604 F.2d 931 (5th Cir.1979) (en banc), this appeal arises from a post-conviction collateral attack. Section 2255 relief can be obtained on this issue only upon a showing of prejudice by the defendant. Keel v. United States, 585 F.2d 110, 113 (5th Cir.1978) (en banc). We hold that the defendant has not shown prejudice by the trial judge's noncompliance with Rule 11(c).

Patterson claims that his plea was unintelligently entered, and hence involuntary, because the district court failed to explain the nature of the charges to him. In this Rule 11 proceeding, 2 the district court questioned Patterson's attorney about his client's understanding of the indictment, the charges and the penalties. The court then questioned Patterson personally under oath. He received assurances that Patterson had read and discussed the indictment with his attorney, that he understood the charges and possible penalties, and that he believed his attorney was fully advised and informed as to the matters mentioned in the indictment. The defendant indicated that he understood the rights he was waiving, and that he entered the plea freely and voluntarily with "full knowledge and understanding of every charge and accusation in counts 1, 3, and 6." The Assistant United States Attorney then read the factual basis for the charges. Thus, based on the transcript of the plea hearing, the trial court did not comply with Rule 11(c) in two respects. First, the reading of the factual basis followed the court's questioning of the defendant, when it should either have preceded it or have been followed by additional questions as to the defendant's understanding of the charges against him. Second, the court's acceptance of the defendant's and his attorney's assurances that Patterson understood the charges against him violated the Rule's requirement that "the court ... address the defendant personally in open court ... and determine that he understands ... the nature of the charge to which the plea is offered." Fed.R.Crim.P. 11(c).

As we have earlier indicated, were this challenge to Patterson's guilty plea brought on direct appeal, these errors would require automatic reversal. Under United States v. Dayton, 604 F.2d at 939 and United States v. Punch, 709 F.2d 889, 894 (5th Cir.1983), the judge's reliance on the testimony of Patterson and his attorney, rather than personally reading or explaining, inquiring, and satisfying himself of the defendant's appreciation of the nature of the charges, would constitute an "entire failure to address a core concern." 3 Punch, 709 F.2d at 894.

However, this is an appeal from a section 2255 proceeding and this court applies a "less stringent standard of reviewing guilty pleas challenged collaterally pursuant to section 2255." United States v. Dabdoub-Diaz, 599 F.2d 96, 99 (5th Cir.1979). In fact, this court has expressly rejected a per se rule invalidating guilty pleas in collateral proceedings for failure to comply precisely with Rule 11(c) procedures. Keel v. United States, 585 F.2d at 113. In Keel, we held that, in order for a defendant challenging his sentence pursuant to section 2255 to qualify for relief, he must show prejudice. Id. This court in United States v. Saldana, 731 F.2d 1192 at 1193 (5th Cir.1984), set out the four classes of violations of Rule 11(c)(1) which will warrant section 2255 relief, which the Supreme Court announced in United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). Relief is warranted only if the Rule 11 violation is "(1) jurisdictional or unconstitutional, (2) a fundamental defect resulting in a complete miscarriage of justice, (3) an omission that is not consistent with the rudimentary demands of fair procedure, or (4) presents exceptional circumstances." United States v. Saldana, at 1193. In Saldana, this court held that the petitioner was not entitled to section 2255 relief "absent pleading and proof that he would not have pled guilty if the district court had fully explained the nature and consequences of the special parol term." Id. Similarly, Patterson has not pled and proved he would not have pled guilty had Rule 11 been complied with, nor has he satisfied any of the Timmreck criteria for prejudice.

Patterson's claim that he did not understand the nature of the charges against him is refuted by the record. As the transcript indicates, Patterson answered affirmatively under oath to a series of questions from the district judge concerning his understanding of the charges to which he was pleading guilty. He was accompanied by his attorney at the plea hearing. No objections were made at that hearing to the reading of the factual basis for the charge by the defendant or his attorney. The "representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as the findings made by the trial judge accepting the plea, constitute a formidable barrier to any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1628-1629, 52 L.Ed.2d 136 (1977). See Moya v. Estelle, 696 F.2d 329, 332 (5th Cir.1983).

Patterson makes no showing that he would have pled any differently had Rule 11 been complied with. The reading of the factual basis for the indictment set forth the acts which formed the basis for the charges to which he was pleading guilty. No objection was made at that time to the statement. Patterson was fifty-three-years old at the time. He had a number of years of business experience and apparently managed substantial property that he owned. He pled guilty pursuant to a written agreement which resulted in a reduction in the total maximum sentence from sixty-five to thirty years. Again we repeat, he was represented by an attorney. 4 Thus, under the facts and background present here, Patterson has not met his burden of showing prejudice. See United States v. Crook, 607 F.2d 670, 672 (5th Cir.1979). Nor is he entitled to an evidentiary hearing on the voluntariness issue, where Patterson's allegations are "affirmatively contradicted by the record," United States v. Guerra, 588 F.2d 519, 521 (5th Cir.1979), cert. denied, 450 U.S. 934, 101 S.Ct. 1398, 67 L.Ed.2d 369 (1981), and "directly contradicted by his testimony." Moya, 696 F.2d at 332.

II.

Patterson's attack upon the validity of the conspiracy count to which he pled guilty seems to be of a two-fold nature: (1) that the indictment was fatally defective because it charged no statutory conspiracy violation, and that his plea therefore did not admit guilt of any offense; and (2) that the acts alleged in the factual basis read by the government at the Rule 11 hearing simply do not establish the conspiracy offense charged in count one. Both of these contentions seem, essentially, to rest upon the petitioner's misapprehension that a conspirator must himself knowingly participate in each of the overt acts alleged. Patterson contends,...

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