Howard v. U.S.
| Decision Date | 31 August 1978 |
| Docket Number | No. 77-2461,77-2461 |
| Citation | 580 F.2d 716 |
| Parties | Robert M. HOWARD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Stephen M. Orr, Austin, Tex., for petitioner-appellant.
Jamie C. Boyd, U. S. Atty., LeRoy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., Frank B. Walker, Asst. U. S. Atty., El Paso, Tex., W. Ray Jahn, Asst. U. S. Atty., San Antonio, Tex., for respondent-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before COLEMAN, GEE, and RUBIN, Circuit Judges.
The appellant, no longer in prison, attempts to overturn a guilty plea by which he succeeded in erasing several counts of an indictment, 28 U.S.C. § 2255. The District Court rejected the effort and we affirm.
On March 8, 1973, in a multi-count indictment, appellant was charged with the offense of conspiracy to possess and import marijuana in violation of 21 U.S.C. §§ 952(a) and 960(a)(1). On March 13 he notified his attorney of the criminal charges against him. After several telephone conferences and office meetings between appellant and his attorney (taking place during a week's time), appellant surrendered on March 22. He was arraigned that day and his jury trial was set for April 2. On March 25 a motion for continuance was denied. Appellant remained in jail until April 2. On that day, pursuant to a plea bargain, he pleaded guilty to Count I of the indictment, with the government dismissing the remaining counts. Bond pending sentence was reduced, which the defendant made and was released.
It was nearly a year, however, before the imposition of sentence, which took place on February 5, 1974. We glean from the record that the district judge, now deceased, was quite concerned with the fact that the defendant was suffering from a malignancy and wanted to be certain that he could, and would, receive adequate treatment while in prison.
Howard was sentenced to five years imprisonment under the provisions of 18 U.S.C. § 4208(a)(2) and, additionally, to a special parole term of five years. No direct appeal was taken. Howard served part of the sentence and was granted parole, subject to the special parole terms imposed by the committing court. On May 18, 1977, then free on parole, Howard filed this 28 U.S.C. § 2255 petition, which the District Court denied without a hearing.
Appellant now argues that the very speed of the hearing in his case deprived him of an opportunity to prepare himself for a trial. This, he says, "denied him effective assistance of counsel and due process of law". He points to no specific facts demonstrating how the trial date prejudiced him or how it rendered ineffective the assistance of his counsel. Intrinsic in the appellant's situation is the fact that for a week before he was arraigned he was at large and conferred at length with counsel before he surrendered.
Indeed, the deposition taken from one of counsel, Mr. Yeakel, indicates that attorney and client discussed the case in person and by telephone on several occasions, both before and after the arraignment. Additionally, appellant's attorney had numerous personal and telephone conferences with the Assistant United States Attorney's office in charge of the case. After the motion for continuance was denied, appellant's attorney met twice with his partner, Mr. Orr, who had accompanied appellant at the arraignment (Mr. Yeakel not being able to attend that particular day) to discuss the case. Since Yeakel would not be able to be present at the trial, Mr. Orr was to take over at that point. Following the denial of the motion for continuance, appellant's attorney was immediately allowed total access to the government's file.
Considered together, these facts leave us unpersuaded that appellant's attorneys were denied adequate time and access to relevant materials to have afforded their client effective assistance. That appellant was allowed to plead guilty to one count of the indictment while four other counts were dismissed is, to say the least, a poor indication of prejudice.
Since MacKenna v. Ellis, 5 Cir. 1960, 280 F.2d 592, 599, Cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78, we have repeatedly had occasion to reaffirm the "reasonably effective assistance" standard as applied to the effectiveness of representation by counsel. 1
We have also said "While counsel must devote sufficient time to ensure an adequate defense in order to render effective assistance, it is the rule in this Circuit that '. . . time spent (in preparation) is only one of the elements to be considered and the totality of the facts may not be over-ridden by a judicial stop watch'." Herring v. Estelle, 5 Cir. 1974, 491 F.2d 125, 128, quoting Doughty v. Beto, 5 Cir. 1968, 396 F.2d 128, 130.
In Loftis v. Estelle, 5 Cir. 1975, 515 F.2d 872, in affirming the denial of a writ for habeas corpus, we did not find the representation of appellant so ineffective as to reach constitutional proportions. We said that "While Loftis's defense may have suffered somewhat when counsel was forced to trial immediately upon denial of the second motion for continuance, mere brevity of consultation Is alone insufficient to establish a Sixth Amendment violation" (emphasis added). 515 F.2d at 875.
Appellant contends that Baldwin v. United States, 4 Cir. 1958, 260 F.2d 117, is not in point but we disagree. In Baldwin the Fourth Circuit agreed with the district court that the issue of the sufficiency of time for trial preparation is not a matter to be raised in a motion to vacate sentence, "unless the circumstances were so extreme as to amount to a denial of due process". 260 F.2d at 118. The court refused to say, under the circumstances of that case, that the six hours allowed were so short as to amount to a denial of due process. 260 F.2d at 118.
Under the facts of this case, Howard's due process argument is nigh unto frivolous.
Howard argues that there was a fatal failure to comply with Rule 11, Fed.R.Crim.P. in that he was not properly informed of the possible range of punishment, that he was not adequately informed of the nature of federal parole, and that the trial judge did not himself advise the appellant of the nature of a special parole.
In Halliday v. United States, 394 U.S. 831, 832, 89 S.Ct. 1498, 1499, 23 L.Ed.2d 16 (1969) it was held that the strict rule announced in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) was based "solely upon application of Rule 11 and not upon constitutional grounds".
The District Judge did address Howard personally as to the voluntary character of the plea, as follows:
It is true that the United States Attorney, rather than the Court explained special parole, as follows:
MR. EDERER: Also included in these offenses is punishment that is what is known as special parole. Now, special parole is over and above any other type of parole which you may receive. There is a minimum of two years' special parole which attaches to this offense. There is no maximum, so conceivably you could be placed on parole for the rest of your life.
Now, as an example of special parole, if you were confined in the custody of the Attorney General for, say five years, at the end of two years you were released on parole from the prison, you would be on parole for the remainder of your sentence or for three years. At the end of that parole from the prison, the special parole comes into play. At that point, you would begin running your two years or whatever sentence under special parole.
Any violation of this special parole would cause you to be placed back in the penitentiary to serve out the remaining period of the special parole and/or of your sentence if there should be any sentence left from the parole given to you by the prison. Do you understand the special parole?
MR. HOWARD: Yes, sir.
Moreover, when the Court imposed the special parole term he asked if Howard understood and his counsel, who also represents him on this appeal, responded, "Yes, sir, I think that was explained fully". The defendant made no comment. Bear in mind, too, that when the Court asked Howard if he had any further question as to the possible penalties, the defendant responded in the negative.
The explanation with reference to special parole terms, given by the United States Attorney, in the presence of the Court, defendant, and counsel, was entirely adequate. The issue boils itself down to whether, at this late date, On collateral attack, when the defendant has been released from prison, the law requires that his guilty plea be set aside in a § 2255 proceeding and the defendant be allowed to plead anew. Since the trial judge did address the defendant personally as to the voluntary character of the plea, the case is further reduced to whether the failure...
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