George v. United States
| Citation | 421 F.2d 128 |
| Decision Date | 13 January 1970 |
| Docket Number | No. 401,Docket 33482.,401 |
| Parties | Ellis Salem GEORGE, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Baldwin Maull, Jr., New York City, for appellant.
H. Kenneth Schroeder, Jr., U. S. Atty., for the Western District of New York, and James W. Grable, Asst. U. S. Atty., for appellee.
Before LUMBARD, Chief Judge, FRIENDLY, Circuit Judge, and MANSFIELD, District Judge.*
Certiorari Denied May 18, 1970. See 90 S.Ct. 1716.
Named in four counts of a six count indictment involving the theft and passing of Treasury checks, George on May 28, 1968, chose to plead guilty to one count of the indictment, conspiracy to steal, forge, and utter Treasury checks, before Judge Henderson. He was sentenced on June 17, 1968 to four years imprisonment. Concededly, when taking the plea the trial judge did not comply with Rule 11 of the Federal Rules of Criminal Procedure in that he did not catechize George according to the terms that Rule prescribes to ascertain that the plea was knowingly and voluntarily made.
George then timely moved under 28 U.S.C. § 2255 to vacate the judgment of conviction and sentence on the grounds that the plea was involuntarily made. In his motion he alleged that he did not have an understanding of the nature of the charge and the consequences of the plea. Judge Henderson appointed experienced counsel to represent George on this motion and, after holding an exhaustive evidentiary hearing on the matter, found that the government had sustained its burden of proving that the plea was knowingly and voluntraily given.
We affirm the denial of the motion. A reading of the transcript of the Section 2255 hearing and the relevant trial minutes shows that Judge Henderson's decision on the Section 2255 motion was fully supported by the record.
George would avoid this conclusion by arguing that McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L. Ed.2d 418 (1969), holds that the failure to comply with Rule 11 cannot be cured by a post-trial hearing into the procedural safeguards actually accorded defendant but mandates vacation of any guilty plea taken not in conformity with that Rule. In Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), however, the Supreme Court held that McCarthy was not to be applied to pleas taken prior to the date of its decision, April 2, 1969. Having pleaded guilty on May 28, 1968, George cannot avail himself of the McCarthy rule.
This is not to say...
To continue reading
Request your trial
-
Bye v. United States
...16 (1969); McCarthy v. United States, 394 U.S. 459, 468-469 n. 24, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); George v. United States, 421 F.2d 128, 129 (2 Cir. 1970) (per curiam). The government's arguments based on rejection of similar claims and the belatedness of the claim do not satisfy its......
-
Manley v. United States
... ... Thus the record shows that Judge Henderson who took the plea of guilty knew that there was an ample factual basis for the charge to which Manley pleaded guilty. No purpose would be served in holding a hearing, as was done in George v. United States, 421 F.2d 128 (2d Cir. 1970), so that Judge Henderson could himself state on the record that which the record already shows was before him. 432 F.2d 1245 This case is unlike Schworak v. United States, 419 F.2d 1313 (2d Cir. 1970), where Judge Zampano vacated the plea because he ... ...
-
United States v. Delsanter, 511
...the plea. Such a procedure is not required by Section 2255, and the practice in this circuit is otherwise. See George v. United States, 421 F.2d 128 (2d Cir. 1970) (per curiam); Schworak v. United States, 419 F.2d 1313 (2d Cir. 1970) (per curiam).1 That the judge may bring to bear his perso......
-
Smith v. United States, Civ. A. No. 5994.
...only to pleas accepted after April 2, 1969. See Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16; George v. United States, 421 F.2d 128 (2d Cir. 1970). Thus, petitioner is foreclosed from the relief provided for by McCarthy, supra. We cannot automatically vacate his ple......