Holmes v. U.S.

• Decision Date: 12 July 1989
• Docket Number: No. 88-8555,88-8555
• Parties: Henry Edsel HOLMES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1545

876 F.2d 1545

Henry Edsel HOLMES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 88-8555.

United States Court of Appeals, Eleventh Circuit.

July 12, 1989.

John W. Stokes, Lawrenceville, Ga., for petitioner-appellant.

Wilmer Parker, III, Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH and COX, Circuit Judges, and MORGAN, Senior Circuit Judge.

MORGAN, Senior Circuit Judge:

Henry Edsel Holmes was convicted of engaging in a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. Sec. 848, and filing of a false income tax return, in violation of 26 U.S.C. Sec. 7206(1), after pleading guilty to these offenses. In this appeal, Holmes complains that the trial court failed to inform him of the mandatory minimum sentence and the unavailability of parole under the CCE statute, contrary to the letter of Rule 11, Federal Rules of Criminal Procedure, and contends that he was denied effective assistance of counsel because his attorney misinformed him that he would be eligible for parole under the plea agreement. We reverse and remand the lower court's order denying appellant's ineffective assistance of counsel claim, and otherwise affirm.

BACKGROUND

In 1986, the appellant, Henry Edsel Holmes, was charged by superseding indictment with numerous narcotic and tax At his Rule 11 hearing, Holmes acknowledged that he managed and supervised five or more individuals in a continuing criminal enterprise involving the smuggling of large quantities of cocaine. Appellant also acknowledged that he received substantial income from his smuggling activities and therefore filed a false and fraudulent tax return for 1984 which he signed under penalties of perjury. The plea agreement stated, and Holmes acknowledged in open court, that Count Four carried the possible maximum sentence of life without parole. During the plea proceedings, however, the trial court did not advise appellant of the minimum sentence under the continuing criminal enterprise statute of ten years without parole. Pursuant to the negotiated plea agreement, the government recommended to the court that a "substantial" sentence should be imposed on Count Four not to exceed twenty-two (22) years.

violations. Holmes initially pleaded not guilty to these criminal charges. On the day of his trial, appellant pleaded guilty before United States District Judge Robert H. Hall, Northern District of Georgia, to two counts of a multi-count indictment: Count Four, which charged participation in a continuing criminal enterprise, and Count Twenty-Seven, which charged filing of a false income tax return. The plea was the result of a negotiated plea agreement. ¹

On April 22, 1984, appellant was sentenced to twenty-two years imprisonment on Count Four and three years imprisonment on County Twenty-Seven, together with a $1,000 fine. The sentence on Count Twenty-Seven was to run concurrent with the sentence on Count Four. On motion of the government, the court dismissed the remaining counts. No direct appeal of the sentence was taken by the appellant.

On March 4, 1988, Holmes petitioned the lower court pursuant to 28 U.S.C. Sec. 2255 to vacate and set aside his sentence. By order of June 2, 1988, the district court denied Holmes' petition. Notice of appeal to this court was filed on July 27, 1988. The appellant is presently serving the twenty-two year sentence imposed by the court.

Holmes argues on appeal that the lower court erred in denying his collateral attack on his sentence. Specifically, appellant alleges that his plea of guilty was not made voluntarily and with the understanding of the consequences because the lower court failed to inform him of the mandatory minimum sentence and the non-parole feature of the continuing criminal enterprise statute, 21 U.S.C. Sec. 848, ² contrary to the requirements of Rule 11, Fed.R.Crim.P. Furthermore, appellant argues that he was provided ineffective assistance of counsel because his attorney misinformed him of

his parole eligibility under the CCE statute. Appellant contends that he would not have pleaded guilty and would have insisted on going to trial had he been correctly advised by his attorney or the court. According to appellant, these errors have resulted in a miscarriage of justice and constitute a violation of his rights sufficient to set aside the guilty plea.

DISCUSSION

1. Alleged Rule 11 Violations of Court

Appellant's first contention is that his plea agreement must be set aside because the lower court did not comply with the letter of Rule 11, Fed.R.Crim.P. Rule 11 governs pleas and provides that a court, before accepting a plea of guilty, must determine that a defendant personally understands "the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole term...." Fed.R.Crim.P. 11(c). When accepting a guilty plea, a district court must address three core concerns which underlie Rule 11: "(1) the guilty plea must be free of coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant must know the consequences of his plea." United States v. Bell, 776 F.2d 965, 968 (11th Cir.1985).

The focus of Holmes' contention is on the court's failure to address the latter core concern--the defendant's knowledge of the consequences of his plea. Rule 11 does not require a sentencing court to inform a defendant of every possible consequence of his plea. This court has previously held that Rule 11, which establishes a procedure designed to insure that a guilty plea is entered voluntarily, requires only that the court inform a defendant of the direct consequences of a guilty plea; the court need not explain the possible collateral consequences of a guilty plea. United States v. Campbell, 778 F.2d 764, 766-67 (11th Cir.1985); See United States v. Russell, 686 F.2d 35, 38-39 (D.C.Cir.1982); United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir.1988).

In Trujillo v. United States, 377 F.2d 266, 268 (5th Cir.), cert. denied, 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221 (1967), the former Fifth Circuit held that a district court is not required to inform a defendant of his ineligibility for parole before accepting a guilty plea. The court reasoned that since eligibility for parole is a matter of legislative grace, then ineligibility for parole "is not a 'consequence' of a plea of guilty ..., rather, it is a consequence of the withholding of legislative grace." Id. at 269 (quoting Smith v. United States, 324 F.2d 436, 441 (D.C.Cir.1963). Neither the former Fifth Circuit nor the Eleventh Circuit has reversed the holding in Trujillo. ³ Thus, the ruling remains binding precedent on this court.

The Supreme Court has recently made clear that a trial court's failure to inform the defendant of his parole eligibility is not a basis for invalidating a guilty plea on voluntariness grounds. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). ⁴ In Hill, the Supreme Court affirmed Although parole eligibility is a collateral consequence of a guilty plea under Rule 11, the imposed sentence is a direct consequence. The record is clear that before accepting his guilty plea, the court asked Holmes if he knew what the maximum sentence could be for his conviction under the continuing criminal enterprise statute. Holmes responded that he could get "life without parole." The court did not, however, inform Holmes of the mandatory minimum penalty under the law. Appellant argues that his guilty plea should be set aside because the lower court failed to advise him of the mandatory minimum sentence, in violation of Rule 11, Fed.R.Crim.P.

an Eighth Circuit decision holding that parole eligibility is a collateral rather than a direct consequence of a guilty plea, of which a defendant need not be informed before pleading guilty. Hill v. Lockhart, 731 F.2d 568 (8th Cir.1984), aff'd, 764 F.2d 1279 (1984) (en banc ), aff'd, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). We conclude that the district court properly found that the requirements of Rule 11 do not encompass the court's failure to inform a defendant of his ineligibility for parole since parole eligibility is a collateral rather than a direct consequence of a guilty plea. ⁵

Our analysis of Holmes' argument begins by recognizing that this case involves a collateral attack on appellant's sentence based on a Rule 11 violation. Collateral relief under section 2255 is not available to a defendant who can show only a court's failure to comply with the formal requirements of Rule 11. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). In an en banc decision, the former Fifth Circuit held:

[W]hen a collateral attack is made on a guilty plea for failure of the district court to literally comply with new Rule 11, the defendant must show prejudice in order to qualify for a Section 2255 relief. In the absence of a fundamental defect which inherently results in the miscarriage of justice, or an omission inconsistent with the demands of fair procedure, relief cannot be given in a collateral attack on a guilty plea conviction based on failure of Rule 11 compliance when the plea was taken.

Keel v. United States, 585 F.2d 110, 113 (5th Cir.1978).

This court in Lilly v. United States, 792 F.2d 1541 (11th Cir.1986), specifically adopted the rule enunciated in Keel. In Lilly, the court affirmed a district court's denial of relief under section 2255 where the district court's formal violation of Rule 11 "did not result in a miscarriage of justice or a proceeding inconsistent with the rudimentary demands of fair procedure." 792 F.2d at 1544. Accordingly, we held that collateral relief under section 2255 was not available to a defendant who has not shown that he was...