Alaway v. United States

• Decision Date: 21 February 1968
• Docket Number: No. 67-1466.,67-1466.
• Citation: 280 F. Supp. 326
• Court: U.S. District Court — Central District of California
• Parties: James Raymond ALAWAY, Petitioner, v. UNITED STATES of America, Respondent.

280 F. Supp. 326

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

No. 67-1466.

United States District Court C. D. California.

February 21, 1968.

James Raymond Alaway, in pro. per.

Wm. Matthew Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief of Criminal Div., and Gerald F. Uelmen, Asst. U. S. Atty., Los Angeles, Cal., for respondent.

ORDER DENYING MOTION TO VACATE AND SET ASIDE SENTENCE PURSUANT TO 28 U.S.C. § 2255.

HAUK, District Judge.

Petitioner, James Raymond Alaway, a prisoner at the United States Penitentiary at McNeil Island, is here upon motion to vacate his judgment of conviction for selling marihuana, pursuant to Section 2255 of Title 28, United States Code.¹ He appears in propria persona.

Allowed to proceed in forma pauperis, Alaway seeks to vacate the judgment of conviction upon the following grounds: (1) that the defense of entrapment is available to him; (2) that his arrest was illegal; (3) that the search made incident to his arrest was illegal; (4) that the indictment was defective; (5) that he was denied the effective assistance of counsel; (6) that his plea of guilty was made under duress and coercion; (7) that the use of a prior conviction in determining the sentence was improper; (8) that he was not informed of his right to produce character witnesses or letters of reference at the time of sentence; (9) that federal agents made false statements to the probation officer; (10) that he was not informed that statements made to the probation officer would be used against him; (11) that he was denied access to the probation report; and (12) that he was not informed of his right to appeal.

FACTS AND PROCEEDINGS CONCLUSIVELY SHOWN BY FILES AND RECORDS

A complaint filed with the United States Commissioner on December 12, 1966 by the Federal Bureau of Narcotics charged that on or about October 5, 1966 petitioner Alaway, with the intent to defraud the United States, knowingly sold to Lawrence L. Lusardi, Agent of the Federal Bureau of Narcotics, 4,239.20 grams of marihuana which had been imported and brought into the United States contrary to law. On the day the complaint was filed, the Commissioner issued a warrant of arrest, which was executed by Alaway's arrest on December 13, 1966. Alaway was immediately brought before the Commissioner and committed to the Los Angeles County Jail where he remained until he posted bond in the amount of $5,000 on January 11, 1967.

On the same day that he posted bond, a seven count Indictment was returned by the Federal Grand Jury² charging Alaway with the concealment, transportation and sale of marihuana, in violation of 21 U.S.C. § 176a,³ and with the illegal transfer of marihuana, in violation of 26 U.S.C. § 4742(a).⁴

Following arraignment before this Court on January 30, 1967, petitioner appeared on February 6, 1967 and, after conferring with his retained counsel, B. Allen Millstone, he entered a plea of not guilty to all Counts of the Indictment. Subsequently, on February 27, 1967, the Court heard Alaway's motion to suppress certain evidence, which was continued to the date of trial, and his motion for a bill of particulars, which was granted in part and denied in part.

Petitioner again appeared before this Court on April 10, 1967, and, through his counsel, moved for a change of plea:

"THE CLERK: No. 2 on the calendar. Case No. 180-Criminal, United States v. James Allaway.

"MR. UELMAN: Gerald Uelman appearing for the Government.

"MR. MILLSTONE: There is a change of plea in that matter, your Honor.

"THE COURT: All right.

"In this case there has been a plea of not guilty as to a seven-count indictment, No. 180.

"MR. MILLSTONE: Change of plea as to Count 2, your Honor.

"THE COURT: All right.

"Let me ask the defendant, your true name is James Alaway?

"THE DEFENDANT: Yes, sir.

"THE CLERK: Spelled with one "l"?

"THE DEFENDANT: One "l".

"THE CLERK: A-l-a-w-a-y.

"You are charged in Count 2 of Indictment No. 180 under the name James Allaway, with two "l's", A-l-l-a-w-a-y. Your true name is James Alaway, with one "l"; is that correct?

"THE DEFENDANT: Yes, sir.

"THE COURT: Do I understand that you desire to enter a new and different plea to Count 2?

"THE DEFENDANT: Yes, sir.

"THE COURT: You are charged in Count 2 with violation of 21 U.S.Code, Section 176a, that on or about October 5, 1966, in Los Angeles County, Central District of California, with intent to defraud the United States you knowingly sold to Agent Lawrence Lusardi of the Federal Bureau of Narcotics, and an undercover assistant of the Federal Bureau of Narcotics 4,424.350 grams of marihuana, which marijuana you knew had theretofore been imported and brought into the United States contrary to law. Do you understand that?

"THE DEFENDANT: Yes, Sir.

"THE COURT: Does the defendant have a copy of the Indictment?

"THE DEFENDANT: Yes.

"THE CLERK: Does he desire a reading of the charge again at this time?

"MR. MILLSTONE: No.

"THE COURT: The charge in Count 2, are you ready to enter your plea as to Count 2, Mr. Alaway?

"THE DEFENDANT: Yes, sir.

"THE COURT: To Count 2 of this Indictment No. 180, the charge which I just read to you, how do you at this time plead, guilty or not guilty?

"THE DEFENDANT: Guilty.

"THE COURT: Have you discussed the facts and circumstances of the offense with your attorney?

"THE DEFENDANT: Yes.

"THE COURT: Has he explained to you the maximum sentence the court may impose?

"THE DEFENDANT: Yes, sir.

"THE COURT: What is it?

"THE DEFENDANT: 40 years.

"MR. UELMAN: There is a prior conviction which will be filed with the court prior to sentencing.

"THE COURT: Is this 20 or 25 —

"MR. UELMAN: It is 10 to 40, your Honor, on the second conviction.

"THE COURT: What section?

"MR. UELMAN: 176a.

"THE COURT: All right.

"10 to 40 years or $20,000 fine, or both.

"THE DEFENDANT: Yes, sir.

"THE COURT: Have you been given any promise of reward or special treatment?

"THE DEFENDANT: No.

"THE COURT: Any threat of coercion used against you in connection with this plea?

"THE DEFENDANT: No.

"THE COURT: Then this plea is your free and voluntary act?

"THE DEFENDANT: It is.

"THE COURT: You are pleading guilty because you committed the offense and for no other reason?

"THE DEFENDANT: That's right.

"THE COURT: Do you feel all right today?

"THE DEFENDANT: Yes.

"THE COURT: You are not under the influence of any drugs or narcotics?

"THE DEFENDANT: No.

"THE COURT: The court will find you convicted upon your plea of guilty and set probation hearing and sentencing." (Rep.Tr., Apr. 10, 1967, pp. 4-7.)

When the petitioner appeared for sentencing on May 1, 1967, the Court questioned him about the information regarding a prior conviction which had been filed:

"THE COURT: Are you the same James Alaway that is named in this Indictment?

"THE DEFENDANT: Yes, sir, your Honor.

"THE COURT: There has been filed before this court an Information Re Prior Conviction of Defendant James Alaway, which alleges that on or about — by the way, you have an attorney, do you not?

"MR. MILLSTONE: Alan Millstone for the defendant.

"THE COURT: Mr. Millstone.

"Is he your retained attorney?

"THE DEFENDANT: Yes, sir.

"THE COURT: Is it true that on or about the 3rd day of February, 1954, you appeared as defendant in Case No. 23367, wherein you had theretofore entered a plea of guilty to Counts 1 and 5, the importation, concealment and transportation and concealment of a certain narcotic drug, namely, heroin, and at that time, on February 3, 1954, you, having, as I said, pled guilty to Counts 1 and 5 of that Indictment, were duly sentenced by the United States District Court for the then Southern District of California for a period of five years and ordered to pay a fine of $100 in Count 1 and the sentence to run concurrently with the sentence in Count 5.

"Are you the same James Alaway?

"THE DEFENDANT: Yes, sir.

"THE COURT: You are. All right.

"The court, upon your admission, will find that you have previously been convicted of the same crime for which you are now before this court. (Rep. Tr., May 1, 1967, pp. 5-7)

Before passing sentence, the Court inquired of the petitioner:

"THE COURT: Upon conviction upon your plea of guilty as to Count 2 in Case No. 180-CD, this is the time for sentencing. Is there anything you desire to say before the court passes sentence?

"I have read the probation report and considered it.

"Do you have anything to say, you or your counsel?

"MR. MILLSTONE: Mr. Alaway has been a victim of unfortunate circumstances beginning at a very young age, which has led him on a path of getting involved in one minor offense after another, leading to the prior and the present offense.

"Certainly Mr. Alaway after his apprehension was permitted out on bond. He completely cooperated with the federal authorities and the revenue agents, completely cooperating in any and every way possible.

"Certainly it is one of those situations where he wished he could reverse time and change the situation as it exists, but he is presently before the court and we respectfully request the court's consideration in this matter.

"THE COURT: Is there anything by the defendant? Do you desire to say anything?

"THE DEFENDANT: No, your Honor. (Rep.Tr., May 1, 1967, pp. 7-8)

In the Presentence Report the Probation Officer gave the petitioner's "Version of Offense":

"The defendant admits his guilt in the offense charged against him, and relates that `I was asked several times to do this friend a favor and get him some marihuana. At this time he was under a sales charge to a Federal Narcotics Agent and was working as an undercover informant for the purpose, I believe, of receiving a lesser charge on his offense. Regardless of the circumstances, I did in fact obtain this drug for the informant and was arrested for this offense two months later. I realize this offense carries a minimum sentence of ten years without the benefit of parole. I am a second offender. I also blame no one but myself for this present trouble I

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