Gates v. U.S.

• Decision Date: 08 April 1975
• Docket Number: Nos. 73-1565,74-1102,s. 73-1565
• Citation: 515 F.2d 73
• Parties: Arnold GATES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Felix MELIAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 73

515 F.2d 73

Arnold GATES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Felix MELIAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Nos. 73-1565, 74-1102.

United States Court of Appeals Seventh Circuit.

Argued Jan. 10, 1975.

Decided April 8, 1975.

Frederic J. Artwick, Lance Haddix, Ronald Goldberg, Chicago, Ill., for appellants.

James R. Thompson, U. S. Atty., Gary L. Starkman and Ann C. Tighe, Asst. U. S. Attys., Chicago, Ill., for appellee.

Before HASTINGS, Senior Circuit Judge, SWYGERT and CUMMINGS, Circuit Judges.

HASTINGS, Senior Circuit Judge.

These appeals from district court orders denying petitioners' motions pursuant to 28 U.S.C. § 2255, although arising from somewhat different facts and separately briefed, were consolidated for oral argument and decision because they raise the identical issue of whether 28 U.S.C. § 2255 requires that a guilty plea be set aside if the defendant was not informed that he would be ineligible for parole and was incorrectly informed at the time of sentencing that he would have the opportunity for parole.

Arnold Gates, on February 24, 1969, pleaded guilty to a three-count indictment charging narcotics violations under 21 U.S.C. §§ 174 and 176(a)(176a), and a four-count indictment charging violations of 21 U.S.C. § 174 and 26 U.S.C. § 4705(a). Prior to accepting the plea, the court advised Gates of the maximum and minimum sentences which he could receive and of the possible fine, but Gates was not told that the sentences would be imposed without eligibility for parole. In fact, at the subsequent sentencing the district court seemed to suggest that Gates would have an opportunity for parole. The court said:

You can go down there, Mr. Arnold (Gates), and make up your mind you are going to pay your penalty and be a model prisoner and get out as quickly as you can and from here on and you have some nice friends here enjoy their companionship and just make sure that no one can get you to do something that is contrary to decency and certainly not in violation of the law. All right.

Gates was sentenced to seven years imprisonment on each of the seven counts of the two indictments, all to be served concurrently.

On March 5, 1973, Gates filed a motion in the district court pursuant to 28 U.S.C. § 2255 alleging that his sentence was invalid because he was not informed prior to his guilty plea that he would be ineligible for parole. His verified petition stated that he would not have pleaded guilty if he had known he would have no opportunity for parole. On April 4, 1973, the district court, without an evidentiary hearing, denied Gates' motion. The court gave no reasons for its decision, but stated only that "the Petitioner is entitled to no relief." Gates appeals from the denial of his § 2255 motion.

Felix Melian, on March 29, 1971, pleaded guilty to a two-count indictment charging narcotics violations under 21 U.S.C. § 174 and 26 U.S.C. § 4705(a). Prior to his plea the court advised Melian that he could receive a sentence of from five to twenty years, but Melian was not told that he would be ineligible for parole. Immediately following his plea, the district court imposed concurrent sentences of five years on each count and then went on to say:

You know, if you go and if you should be put on parole by the parole board after a period of time, that you will serve a minimum, but you still must behave yourself, and if you get in any further trouble here you must conduct yourself and behave, because if you don't you will again face the possibility of going to the penitentiary.

On December 27, 1972, Melian filed a motion pursuant to 28 U.S.C. § 2255. His verified petition stated that he was not informed of his ineligibility for parole prior to his plea and that if he had known he was ineligible he would not have pleaded guilty. The district court granted Melian's motion for an evidentiary hearing and appointed counsel to represent him.

A hearing was held on October 25, 1973. Dillon Hoey, counsel for Melian at the time of his guilty plea, testified on behalf of the government. Hoey testified that although he couldn't recall his conversation with Melian prior to the plea, it had been his normal operating procedure to inform a client of the total consequences of a plea. The only other witness at the hearing was Melian. Melian testified that Hoey had told him that Hoey had had a meeting with the district judge and that the judge would give Melian no more than five years. Melian further testified that Hoey had told him that if he pleaded guilty he would be eligible for parole. Three exhibits were introduced into evidence at the hearing on behalf of Melian: a transcript of the guilty plea and sentencing, the Bureau of Prisons Sentence Computation Record indicating that Melian was ineligible for parole and a letter to Melian's attorney from an official at the penitentiary, dated September 11, 1973, stating that Melian was ineligible for parole.

On October 31, 1973, the district court issued the following order:

The writ of habeas corpus is hereby discharged. The failure of this Court to advise the petitioner that he was ineligible for parole was harmless error because effective May 1, 1971, Title 26 U.S.C. Sec. 7237(d) was repealed and the petitioner having completed the required statutory period was eligible to be considered for parole by the Parole Board.

The court thereafter cited the decisions of our court in United States v. McGarr, 7 Cir., 461 F.2d 1 (1972); and Arias v. United States, 7 Cir., 484 F.2d 577 (1973). Melian appeals from the "discharge" of his § 2255 motion. ¹

STANDARD OF REVIEW

Petitioners in their briefs argue that they are entitled to have their guilty pleas automatically vacated because they were accepted in violation of Rule 11 of the Federal Rules of Criminal Procedure. Rule 11 requires that before the court accept a plea of guilty it must address the defendant personally and determine "that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea." Our court has held that ineligibility for parole is a consequence of a plea of guilty about which a defendant must be informed in order to satisfy Rule 11. United States v. Smith, 7 Cir., 440 F.2d 521, 526 (1971). The United States Supreme Court held on a direct appeal that "a defendant is entitled to plead anew if a United States district court accepts his guilty plea without fully adhering to the procedure provided for in Rule 11." McCarthy v. United States, 394 U.S. 459, 463-464, 89 S.Ct. 1166, 1169, 22 L.Ed.2d 418 (1969).

Since the instant appeals are brought from denials of § 2255 motions and are not direct appeals, petitioners may not rely on McCarthy to have their guilty pleas vacated. Under § 2255 the scope of the court's review is more narrow. As the Supreme Court recently explained, " 'collateral relief is not available when all that is shown is a failure to comply with the formal requirements' of a rule of criminal procedure in the absence of any indication that the defendant was prejudiced by the asserted technical error." Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974). Relief is available under § 2255 only if the petitioner demonstrates that the error of the trial court is jurisdictional or constitutional, Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), or an error of law which is "a fundamental defect which inherently results in a complete miscarriage of justice" and which presents "exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." Davis, supra, 417 U.S. at 346, 94 S.Ct. at 2305.

Thus, to determine whether petitioners here are entitled to relief we must consider, first, whether the court erred in failing to state that petitioners would be ineligible for parole, and second, if it was error, whether the error is jurisdictional, constitutional, or an error of law which results in a "complete miscarriage of justice."

PAROLE ELIGIBILITY

It is elementary that the failure to state that petitioners were ineligible for parole is error only if they were in fact ineligible, but answering the question of parole eligibility requires traversing a tortuous path of statutory changes and court decisions.

Gates pleaded guilty to narcotics violations under 21 U.S.C. §§ 174 and 176(a) (176a) and 26 U.S.C. § 4705(a). Melian pleaded guilty to narcotics violations under 21 U.S.C. § 174 and 26 U.S.C. § 4705(a). All of these statutes have since been repealed. Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L.No. 91-513, 84 Stat. 1236. These repealed statutes required that sentences for violations thereof be made pursuant to 26 U.S.C. § 7237(d) which stated that 18 U.S.C. § 4202, permitting parole after service of one-third of a sentence, would not apply. The Comprehensive Drug Abuse Prevention and Control Act of 1970, effective May 1, 1971, also repealed 26 U.S.C. § 7237(d). The question thus arose whether those who committed offenses prior to the effective date of the repealing statute should continue to be ineligible for parole.

Our court joined several other courts of appeals ² in holding that the repeal of 26 U.S.C. § 7237(d) made parole available for prosecutions for offenses committed prior to May 1, 1971. United States v. McGarr, 7 Cir., 461 F.2d 1 (1972).

However, the United States Supreme Court ultimately held that narcotics offenders sentenced under the parole ineligibility provisions of 26 U.S.C. § 7237(d) remained ineligible for parole despite the repeal of that statute. Warden v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). ³

The Supreme Court's opinion was not the last word on the question. On October 26, 1974, a statute was approved which provided that the parole provisions of 18 U.S.C. § 4202, supra, would apply to any...