Gomez v. United States, 22033.

• Decision Date: 13 June 1968
• Docket Number: No. 22033.,22033.
• Citation: 396 F.2d 323
• Parties: Frank GOMEZ, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

396 F.2d 323 (1968)

Frank GOMEZ, Appellant, v. UNITED STATES of America, Appellee.

No. 22033.

United States Court of Appeals Ninth Circuit.

June 13, 1968.

Frank Gomez, in pro per., for appellant.

William M. Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee.

Before HAMLEY, and CARTER, Circuit Judges, and SMITH,^* District Judge.

HAMLEY, Circuit Judge:

Frank R. Gomez, in federal custody under a judgment of conviction and sentence for violation of the narcotic laws, applied to the district court, pursuant to 28 U.S.C. § 2255 (1964), to vacate the judgment of conviction and the plea of guilty, and afford him a new opportunity to plead to the indictment. The district court denied the application without granting Gomez a hearing and he took this appeal.

On March 25, 1959, Gomez was charged, in counts 2 and 3 of a three-count indictment, with the sale of narcotics in violation of 68A Stat. 551 (1954), 26 U.S.C. § 4705(a) (1958). On April 6, 1959, represented by retained counsel, Gomez pleaded not guilty to these counts. On April 27, 1959, again represented by retained counsel, Gomez changed his plea on count 3 to guilty. On May 15, 1959, he was sentenced to imprisonment for twenty years, a showing having been made that Gomez had been convicted in 1949, on a plea of guilty, to a previous narcotics law violation. Count 2 of the 1959 indictment was thereupon dismissed.

Early in 1961, Gomez filed in the district court an application for relief under section 2255, together with a motion to proceed in forma pauperis and a motion for appointment of counsel. In his application Gomez alleged that he had entered a plea of guilty under the impression that he "would get the minimum sentence." He also alleged that he had been denied "adequate assistance of counsel." After examining the records and files in the criminal proceeding, including the file of the probation department, the district court concluded that the allegations of inadequate representation by counsel and involuntary change of plea from not guilty to guilty were without foundation in fact.

On this ground, the district court, without granting Gomez a hearing, entered an order on February 6, 1961, denying that section 2255 application. In the same order, the court denied the motions to proceed in forma pauperis and for appointment of counsel. Gomez initially sought, but did not perfect, an appeal to this court.

In early April, 1967, Gomez tendered for filing in the district court the section 2255 application now before us, together with his motion to proceed in forma pauperis. On April 12, 1967, the district court entered an order granting the motion to proceed in forma pauperis and on that day the application was filed.

In this application Gomez advanced two grounds for relief: (1) his plea of guilty was not voluntary because he did not understand the nature of the charge and also because he was then under the erroneous belief that he could not be imprisoned for more than a period of ten years; and (2) at the time of accepting Gomez' plea of guilty, the district court did not comply with the requirement of Rule 11, Federal Rules of Criminal Procedure, as that rule stood in 1959, that the court not accept a plea of guilty without first determining that the plea is made voluntarily with understanding of the nature of the charge.

In support of the latter ground for relief, Gomez cited, in his application, Munich v. United States, 9 Cir., 337 F.2d 356; Heiden v. United States, 9 Cir., 353 F.2d 53, and other court decisions. He also attached to his application, as an exhibit, what purports to be a complete and official, but uncertified, copy of the reporter's transcript of the proceedings wherein Gomez changed his plea on count 3 from not guilty to guilty. According to this transcript the only inquiry the court directed to Gomez was whether it was the latter's desire to change his plea. Gomez answered that it was. The transcript does not show that any Rule 11 inquiry was made of Gomez or his counsel as to whether the plea of guilty was made voluntarily with understanding of the nature of the charge.

Two weeks after this section 2255 application was filed, the district court, without granting Gomez a hearing, entered an order denying the application. In its order denying relief the court indicated that the first ground for relief urged by Gomez — that his plea of guilty was not voluntary — was being rejected because the court's order of February 6, 1961, denying Gomez' 1961 application, is res judicata. The district court indicated that Gomez' second ground for relief — failure to comply with Rule 11 — was being rejected for the following reasons:

"Frank Gomez was at all times represented by counsel of his own selection. If a duty rests upon anyone to advise a defendant of range of punishment if a guilty plea is entered, that duty is (with rare exceptions not pertinent in Frank Gomez\' criminal prosecution) upon defendant\'s counsel; hence this new `ground\' mentioned in the current pleading is without merit."

This appeal followed.

Neither of the grounds relied upon by the district court warranted denial of Gomez' application without a hearing.

Res judicata has no application in section 2255 proceedings. In such proceedings the district court is under no compulsion to decline to entertain a successive application. The court, however, is permitted to decline to entertain a successive application, providing: (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148.

The first and third...