Hulsey v. United States

• Decision Date: 02 December 1966
• Docket Number: No. 23686.,23686.
• Citation: 369 F.2d 284
• Parties: William Ireland HULSEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

369 F.2d 284 (1966)

William Ireland HULSEY, Appellant, v. UNITED STATES of America, Appellee.

No. 23686.

United States Court of Appeals Fifth Circuit.

December 2, 1966.

William Ireland Hulsey, pro se.

R. Macey Taylor, Asst. U. S. Atty., Macon L. Weaver, U. S. Atty., Birmingham, Ala., for appellee.

Before RIVES, BELL and THORNBERRY, Circuit Judges.

THORNBERRY, Circuit Judge:

This is an appeal from an order entered by the district court without a hearing, denying appellant's § 2255¹ motion to vacate his sentence. While appellant was in Alabama state custody, a complaint was filed before the United States Commissioner and a warrant issued charging appellant with the interstate transportation of forged securities with fraudulent intent in violation of 18 U.S.C. § 2314. On February 26, 1965, appellant was brought before the district court for the purpose of ascertaining whether he desired to waive indictment and dispose of the pending federal charge. At this proceeding appellant waived appointment of counsel, executed a written waiver of indictment, and entered a plea of guilty to the information. Appellant received a ten-year suspended sentence and was placed on probation for a period of five years, effective upon his release from state custody. On June 29, 1965, probation was revoked and appellant was committed to the custody of the attorney general for a period of five years. On April 15, 1966, appellant filed this § 2255 motion to vacate his sentence, raising numerous grounds of error. On the same day the district court entered an order denying appellant's motion without a hearing, but granted leave to appeal to this Court in forma pauperis.

A careful review of the record convinces us that appellant's sole meritorious claim is that the district court erred in accepting his plea of guilty because it was "qualified," and thus did not represent a clear, definite, and unconditional admission of the offense as set forth in the information. The record of the arraignment proceedings before the district court contains the following pertinent colloquy:

MR. TAYLOR: Judge, would you like for me to explain the charges and then I have to get him to sign a waiver of indictment?

THE COURT: Yes.

MR. TAYLOR: Mr. Hulsey, Count One of the Information states that on or about the 16th day of October, 1964, at or near Birmingham, Alabama, within the Southern Division of the Northern District of Alabama, you did unlawfully and with fraudulent intent transport in interstate commerce from Birmingham in the State of Alabama to Vine Grove, in the State of Kentucky, a falsely made and forged security, to-wit: a check dated at Birmingham, on the 16th day of October, 1964, drawn on Farmer\'s Bank at Vine Grove, Kentucky, in the amount of $78.40, payable to William Hulsey and signed Thurmond Balfe as Drawer, the signature of said Drawer being falsely made, forged and fictitious, as you then and there well knew.

The Court could in the event of a guilty plea in this case fine you in the amount of $10,000 or ten years, or both.

If you prefer you have the right to have this matter investigated by a Grand Jury before any further action is taken, however, you have the right to state to the Court this morning that you want to go ahead with this and execute a waiver of indictment.

THE DEFENDANT: I want to go ahead this morning.

MR. TAYLOR: All right, sign this waiver here. If the Court please, this defendant executed written waiver of indictment which is herewith filed with the Clerk of the Court, together with the information, copy of which has been served on the defendant in open court.

THE COURT: You understand the charges made against you and the maximum limits of punishment?

DEFENDANT HULSEY: Yes, sir.

THE COURT: And how do you plead?

DEFENDANT HULSEY: I plead guilty, Your Honor, to endorsing the check. I don\'t remember anything about whether it was forged or not. At that time I had been drinking very heavily and I can\'t account too well for my behavior at that time. However, I did recognize the endorsement as mine and I plead guilty to it.

THE COURT: Mr. Hulsey, let me ask you this: It is my information that you have had other similar charges brought against you in Federal Court and you have had sentences imposed on you in those cases.

DEFENDANT HULSEY: That is true, Your Honor. Up until this point I didn\'t really know where I was going. I was just sort of lost but I found a little help in the people I am working with in Bessemer and they seem to think there is a little good left in me and are willing to work along with me towards that end. I realize there has been a tremendous change in myself.

THE COURT: I will talk the case over at recess and I won\'t impose sentence until after recess. I will read the presentence report first.

Upon the basis of the foregoing, we conclude that the record affirmatively demonstrates that the district court erred in accepting appellant's response as an unconditional plea of guilty.

Rule 11 of the Federal Rules of Criminal Procedure provides that the court "may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge." While no particular ritual need be observed by the trial court, such as a formal finding or recitation that the plea was entered with understanding,² an affirmative duty nonetheless exists on the part of the trial court to advise the accused fully and not merely perfunctorily as to what acts are necessary to establish guilt, and to do all it can to make reasonably certain that a plea of guilty represents the free and voluntary act of one who fully understands the nature of the charge against him and the consequences of his plea. Bartlett v. United States, supra; Munich v. United States, supra; ...