Alaway v. United States, 70-1167.

• Decision Date: 25 June 1971
• Docket Number: No. 70-1167.,70-1167.
• Court: U.S. District Court — Central District of California
• Parties: James Raymond ALAWAY, Petitioner, v. UNITED STATES of America, Respondent.

329 F. Supp. 78

James Raymond ALAWAY, Petitioner, v. UNITED STATES of America, Respondent.

No. 70-1167.

United States District Court, C. D. California.

June 25, 1971.

Robert L. Meyer, U. S. Atty., David R. Nissen, Asst. U. S. Atty., Chief, Crim. Div., Robert P. Scheinblum, Asst. U. S. Atty., for respondent.

James Raymond Alaway, in pro. per.

HAUK, District Judge.

Petitioner, a prisoner at the United States Penitentiary at McNeil Island, presents here a Motion to Vacate his judgment of conviction for violation of 21 U.S.C. § 176a (sale of marijuana, knowing it to have been imported or brought into the United States contrary to law). He appears in propria persona.

Allowed to proceed in forma pauperis, Alaway bases his attack on the claim that the Statute which he is alleged to have violated is unconstitutional, and that he would not have pleaded guilty had he known of this unconstitutionality. A Supplemental Motion also alleges that his guilty plea was not voluntary since it was not made with the knowledge that the sentence would not begin running at the time it was pronounced, but only when he was delivered into the custody of the Attorney General.

On January 11, 1967, Alaway was charged in a seven count indictment with concealment, transportation and sale of marijuana in violation of 21 U. S.C. § 176a, and with illegal transfers of marijuana in violation of 26 U.S.C. § 4742(a). His original not guilty plea was withdrawn, and he entered a plea of guilty to Count 2, violation of § 176a, as indicated above. He was also found guilty of a previous narcotics violation and sentenced to prison for 20 years, to be eligible for parole after serving one-third of the term. The Judgment was entered May 1, 1967, Case No. 180-CD, United States District Court, Central District of California.

A complete statement of the facts and proceedings shown in the original case is set forth in the Order denying a previous § 2255 Motion and need not be repeated here. That Order denied the Motion in which 12 different grounds were raised in attempting to set aside the Judgment. It is reported in Alaway v. United States, 280 F.Supp. 326 (C.D. Cal.1968), and was affirmed by the United States Court of Appeals, Ninth Circuit, June 9, 1969. Petition for Rehearing was denied on October 29, 1969, and the United States Supreme Court denied certiorari March 6, 1970. 397 U.S. 1028, 90 S.Ct. 1277, 25 L.Ed.2d 540.

In the instant Motion, Alaway contends that subsequent to his conviction and to the previous § 2255 Motion, Section 176a of Title 21 United States Code was declared unconstitutional on May 19, 1969, in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, which is retroactive. United States v. Scott, 425 F.2d 55 (9 Cir. 1970). He states that he would not have pleaded guilty if he had had any way of proving to the satisfaction of a jury that his possession prior to sale was not "in consequence of illegal importation" (Motion p. 2), but that he could not overcome the statutory presumption. Therefore, he argues, his guilty plea was caused by the invalid presumption in violation of due process and thus was not voluntary.

At the outset, Alaway errs in declaring that § 176a has been completely invalidated. The Statute originally authorized two inferences to be drawn from the fact of possession of marijuana: (1) that the marijuana was imported or brought into the United States illegally, and (2) that the defendant knew of the illegal importation or bringing in. Because the Fifth Amendment would be a complete defense to the charge, the presumption of knowledge was held to be unconstitutional, the Court specifically holding that it did not reach the question of the validity of the "illegal importation" inference. Leary v. United States, supra, 395 U.S. at 37, 89 S.Ct. 1532.

The Statute, § 176a, forbidding certain actions in connection with marijuana, has been held to be constitutional. United States v. Avey, 428 F.2d 1159 (9th Cir. 1970). And without the use of the presumption invalidated by Leary, the Statute does not violate the privilege against self-incrimination. United States v. Cordova, 421 F.2d 471 (9th Cir. 1970). Nor did Leary invalidate sections of Title 26, United States Code, relating to transfers of marijuana, similar to other counts in the indictment against Alaway. Shaffer v. United States, 435 F.2d 168 (9th Cir. 1970).

It is particularly important to note that Alaway was convicted on his plea of guilty and was not, therefore, subjected to the peril of the Leary case where the jury might have relied on the invalid presumption of knowledge from mere possession. A plea of guilty is an admission of all the elements of the crime, and the conviction is based upon that plea alone. Knowles v. Gladden, 378 F.2d 761 (9th Cir. 1967). All non-jurisdictional defects are waived. Witt v. United States, 413 F.2d 303 (9th Cir. 1969), cert. denied, 396 U.S. 932, 90 S. Ct. 272, 24 L.Ed.2d 230; Corwin v. United States, 423 F.2d 33 (9th Cir. 1970).

Moreover, a guilty plea is an affirmative waiver of the Fifth Amendment. United States v. Weber, 429 F.2d 148 (9th Cir. 1970). It has been held in another Circuit that a guilty plea is not rendered invalid because of the unconstitutionality of the presumption in § 176a as decided by Leary, since the presumption was not used against the defendant in accepting the plea of guilty. Hillaire v. United States, 438 F.2d 128 (5th Cir. 1971). We agree with this holding.

The very nature of the guilty plea and the waivers thus established prevent a collateral attack under 28 U. S.C. § 2255. Boykin v. Alabama, 395 U. S. 238, 242-244, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Therefore, we need only determine here whether the guilty plea was in fact voluntarily and knowingly made, and not entered solely in reliance on the unconstitutional statutory presumption as Alaway claims.

The proceedings at the time of entering the guilty plea, and part of the presentence report are set forth in Alaway v. United States, supra, 280 F.Supp. at 329-331. It is clear that Alaway personally freely acknowledged his guilt. The recent trilogy concerning guilty pleas of counselled defendants, as Alaway was, shows that such a contention as raised here is not a ground for setting aside the conviction. Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

The fact that an unconstitutional statute may have caused the plea (the "but for" test) does not necessarily mean that the plea was coerced and invalid as involuntary, nor was the plea rendered invalid because of the certainty or probability of a lesser sentence. Brady v. United States, supra, at 751, 90 S.Ct. 1463. The fact that a Statute is later held to be unconstitutional does not of itself render it necessary to set aside the guilty plea. Brady v. United States, supra, at 756, 90 S.Ct. 1463. Nor does the Constitution require that a defendant be permitted to disavow a solemn admission made in open court that an act has been committed, simply because it is later shown that the State would have had a weaker case. Brady v. United States, supra, at 757, 90 S.Ct. 1463. Finally, absent misrepresentation or other impermissible conduct by State agencies, a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. Brady v. United States, supra, at 757, 90 S.Ct. 1463. All of these principles apply to the instant Motion and negate the contention of an involuntary guilty plea.

It is clear that Alaway was motivated to plead guilty by a desire to limit the possible penalty, since six additional counts against him were dismissed on motion of the Prosecution when he was sentenced May 1, 1967. This motivation is sufficient proof of the voluntariness of the plea, in spite of the later invalidity of the Statute. Parker v. North Carolina, supra, 397 U.S. 796-797, 90 S.Ct. 1458. Obviously Alaway knew that he was threatened with many years of prison because of the multiple counts (Motion p. 2), but the fact that a plea was the result of plea bargaining does not invalidate it nor make it involuntary. Benn v. Eyman, 436 F.2d 1074 (9th Cir. 1971); Jones v. United States, 423 F.2d 252 (9th Cir. 1970).

A change in the law does not necessitate setting aside a voluntary plea of guilty. As said in McMann v. Richardson, supra, 397 U.S. at 774, 90 S.Ct. at 1450:

"It is no denigration of the right to trial to hold that when the defendant waives his state court remedies and admits his guilt, he does so under the law then existing; * * * Although he might have pleaded differently had later cases then been the law, he is bound by his plea and his conviction unless he can allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act."

No showing or claim of counsel's derelictions are present here.

In the Traverse, Alaway claims that the issues raised in his previous § 2255 Motion may now be reconsidered, since reference was made to them in the Response. We are not required to do so under 28 U.S.C. § 2255 which specifically says: "The sentencing court shall not be...