Houser v. United States, 20053.
| Decision Date | 27 May 1970 |
| Docket Number | No. 20053.,20053. |
| Parties | Tyrone Delnore HOUSER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Tyrone Delnore Houser, in pro per.
Charles H. Anderson, U. S. Atty., Ames Davis, Asst. U. S. Atty., Nashville, Tenn., for appellee.
Before EDWARDS and CELEBREZZE, Circuit Judges, and CECIL, Senior Circuit Judge.
The sole question on this appeal is whether the rule of Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L. Ed.2d 57, should be retroactively applied to the case of Tyrone Delnore Houser, the petitioner-appellant. On December 10, 1968, the appellant pleaded guilty to one count of a four count indictment charging him with knowingly transporting, concealing and facilitating the transportation and concealment of approximately four pounds of marijuana without having paid the transfer tax, in violation of Section 4744(a) (2), Title 26, United States Code. The other three counts of the indictment were dismissed.
The opinion of the Supreme Court in Leary v. United States, supra, was announced in May, 1969. There, the Court held that a timely and proper assertion of the Fifth Amendment privilege against self incrimination was a complete defense to a prosecution under Section 4744(a) (2). Assuming that the appellant can be excused for not claiming the privilege, the Leary case not having been decided at the time he entered his plea, the rule in the Leary case is concededly applicable to him.
The district judge in denying the appellant's petition for a writ of habeas corpus said:
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United States v. Houssein, Crim. No. 27315.
...The Sixth Circuit alone has flatly held that Leary and Covington should not be accorded retroactive application. Houser v. United States, 426 F.2d 817 (6th Cir. 1970); Ramsuer v. United States, 425 F.2d 413 (6th Cir. 1970); Decker v. United States, 423 F.2d 726 (6th Cir. 1970). These cases ......
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Jackson v. United States
...F.2d 1289 (10th Cir.1972). On the other hand, the Sixth Circuit has held that Leary should be applied prospectively. Houser v. United States, 426 F. 2d 817 (6th Cir.1970); Ramseur v. United States, 425 F.2d 413 (6th Cir. 1970); Miller v. United States, 437 F.2d 1199 (6th Cir.1971), vacated ......
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Flores v. United States, 72-1843.
...this court has held that it is not to be applied retroactively. Miller v. United States, 437 F.2d 1199 (1971); Houser v. United States, 426 F.2d 817 (6 Cir., 1970); Ramseur v. United States, 425 F.2d 413 (6 Cir., 1970). These cases, however, were decided prior to the Supreme Court decision ......
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Miller v. United States, 20522.
...that time have the benefit of the specific retroactivity holdings of this court in relation to the Leary problem in Houser v. United States, 426 F.2d 817 (6th Cir. 1970), and Ramseur v. United States, 425 F.2d 413 (6th Cir. 1970). In these two cases different panels of this court decided th......