Mayes v. Pickett, 74--2526

• Decision Date: 09 July 1976
• Docket Number: No. 74--2526,74--2526
• Citation: 537 F.2d 1080
• Parties: Robert Melvin MAYES, Appellant, v. George W. PICKETT, Warden, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1080

537 F.2d 1080

Robert Melvin MAYES, Appellant, v. George W. PICKETT, Warden, Appellee.

No. 74--2526.

United States Court of Appeals, Ninth Circuit.

July 9, 1976.

Howard J. DeNike (argued), San Francisco, Cal., for appellant.

Theodore Wu, Asst. U.S. Atty. (argued), Los Angeles, Cal., for appellee.

OPINION

Before WRIGHT, KILKENNY and TRASK, Circuit Judges.

KILKENNY, Circuit Judge:

Mayes appeals from a district court order denying, without a hearing, his motion for relief under 28 U.S.C. § 2255.

On May 28, 1969, appellant pleaded guilty under one count of bank robbery. Two additional counts of bank robbery were dismissed. He was then sentenced to fifteen years in prison. No direct appeal was taken. Two previous § 2255 motions were filed and both denied without hearing. No appeal was taken from the denial of the first motion. After the second denial, an appeal was taken, but dismissed under Rule 12(c), FRAP, for failure to prosecute. CI ISSUES

Appellant raises the following issues:

(1) The plea of guilty was induced by a confession unconstitutionally obtained.

(2) The plea was involuntary because appellant lacked the required mental capacity to enter a voluntary plea and the court erred in failing to order sua sponte a determination of mental competency since it had been advised that appellant was a drug addict.

(3) The plea of guilty was induced by threats and promises and, therefore, not knowingly and voluntarily made.

I.

Appellant's first contention, although it relates to his plea, necessarily attacks the validity of his confession which was made prior to the hearing at which he entered his guilty plea. The Supreme Court has said:

'. . . (A) guilty plea represents a break in the chain of events which has preceded it in the criminal process.

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to entry of the guilty plea.' Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235, 243 (1973); See Mann v. Smith, 488 F.2d 245 (CA9 1973).

Appellant may not circumvent this rule by an operation that converts a collateral attack on a proceeding prior to the entry of his plea into a claim that a plea has been involuntarily coerced. In passing, it may be noted that in this case, at the Rule 11 hearing, appellant's counsel told the court that there was no illegally obtained evidence which might have induced a plea.

II.

Counsel advised the court that appellant was a heroin addict. At the Rule 11 hearing, the court made detailed inquiry concerning appellant's addiction. In the course of its examination, the court ascertained that for more than a month prior to the time of hearing, appellant had taken no drugs, and then said:

'. . . the Court having observed . . . that the defendant . . . (did) not appear to be under the influence of any medicine, drugs or other substances which might affect his judgment in any manner, the Court . . . (found) that the offer of the plea of guilty . . . (was) voluntary. . . .'

This case is distinguishable from Hansford v. United States, 124 U.S.App.D.C. 387, 365 F.2d 920 (CA DC 1966), relied upon by appellant. Hansford only holds that a competency hearing is constitutionally required '. . . if it appears that defendant may be suffering from withdrawal symptoms during trial.' Id. at 923. In that case, the appellant had taken drugs during the lunch break on the day of the trial. Here the trial judge carefully questioned and closely observed appellant, after which he made a specific finding that appellant was not under the influence of drugs and that his plea was voluntary. Appellant is entitled to no presumption that he was under the influence. For that matter, in Ybarra v. United States, 461 F.2d 1195 (CA9 1972), we cited with approval Edwards v. United States, 103 U.S.App.D.C. 152, 256 F.2d 707 (CADC 1958), in which it seems taken for granted that narcotic withdrawal symptoms do not affect competency even five days after the last taking of narcotics.

Since the effect of drug addition upon competency was inquired into thoroughly at the Rule 11 hearing and specific findings were made on the subject we hold that the record conclusively shows that appellant was competent and that he is not entitled to another hearing on the matter. In these circumstances the court was under no duty to order sua sponte a formal hearing to determine competency. Certainly, it was not a failing of counsel not to seek such a hearing.

III.

Appellant claims that his plea was not knowingly and voluntarily made. He bases this claim upon general allegations of threats and allegations that his lawyer told him that not only would two of the three counts against him be dismissed in exchange for his plea, but he would also receive a sentence of seven years and be able to go to the drug center at Fort Worth, Texas, where he would be cured of his addiction. He also claims that his lawyer told him that he was very close to the judge and could fix things up for him.

These claims were raised in appellant's two previous motions, both denied. Whether the instant dismissal is proper depends upon whether at least one of the prior adjudications of the issue was on the merits. According to Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), controlling weight will be given to a denial of a prior § 2255 motion if (1) the same ground presented in the subsequent petition 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. Here, the issues are the same as those raised in previous motions. Denials of those motions did not rest upon evidentiary hearings; therefore, these denials were upon the merits only if the files and records conclusively show that the prisoner was entitled to no relief. Sanders, supra, at 16, 83 S.Ct. at 1077, 10 L.Ed.2d at 161.

Unfortunately, we are unable to say that the records and files in this case conclusively show that appellant is entitled to no relief. This is true, even though the district judge in his interrogation of appellant and his counsel, went far beyond the requirements of then existing Rule 11, F.R.Crim.P. Appellant's allegations for relief are based on alleged occurrences entirely outside the record. In these circumstances, Jones v. United States, 384 F.2d .16, 917 (CA9 1967), and its progeny such as Reed v. United States, 441 F.2d 569, 572--573 (CA9 1971); Lopez v. United States, 439 F.2d 997, 1000 (CA9 1971); the second appeal in Diamond v. United States, 432 F.2d 35 (CA9 1970); the second appeal in Jones, 423 F.2d 252, 257 (CA.9 1970), cert. denied 400 U.S. 839; Diamond v. United States, 422 F.2d 1313, 1314 (CA9 1970), cert. denied 397 U.S. 1079, 90 S.Ct. 1531, 25 L.Ed.2d 815 and Castro v. United States, 396 F.2d 345, 348 (CA9 1968) (in banc), control and require a hearing on the appellant's claims.

If we were not acting under the compulsion of Jones and the other Ninth Circuit authorities just cited, we would follow Crawford v. United States, 519 F.2d 347, 350 (CA4 1975), and hold that one of the principal purposes of Rule 11 is to permit determination with some degree of finality, whether a plea is voluntarily made and that the accuracy and truth of an accused's statements in a Rule 11 proceeding in which his guilty plea is accepted are 'conclusively' established by the proceeding, unless and until he makes some reasonable allegation why this should not be so. See also Johnson v. Massey, 516 F.2d 1001 (CA5 1975).

Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973), supports our view rather than that of the minority. There, as here, the petitioner acknowledged that his plea was given knowingly and voluntarily, that he understood the nature of the charge and the consequences of the plea, and that he was, in fact, guilty. Later, he filed a motion to vacate under 28 U.S.C. § 2255 on the ground that his plea of guilty had been induced by a combination of fear, coercive police tactics and mental illness. The district judge reasoned that since the requirements of Rule 11 had been met, the collateral attack was per se unavailable saying '. . . (T)he petitioner cannot now be heard to collaterally attack the record and deny what was said in open court.' Id. at 214, 93 S.Ct. at 1462. The court of appeals affirmed and the Supreme Court reversed saying: 'On this record, we cannot conclude with the assurance required by the statutory standard 'conclusively show' that under no circumstances could petitioner establish facts warranting relief under § 2255 . . .'

It is a strange legal concept which permits a convict to escape the consequences of his sentence by alleging an illegal conspiracy between himself and his lawyer, which brazenly contradicts the solemn and commemorative record made by the judge, counsel and the convict at the time of the Rule 11 hearing. ¹ Perhaps this case presents a record which will attract the attention of the Supreme Court. The conflict between the circuits should be settled.

With great reluctance, we vacate the judgment below and remand for what is obviously a meaningless waste of time hearing. Our previous opinion dated March 26, 1976, is withdrawn.

However, if the district court should conclude that the judgment of conviction and sentence be set aside, it should also consider the reinstatement of the two counts of the indictment which were dismissed.

EUGENE A. WRIGHT, Circuit Judge (concurring and dissenting):

I concur in Parts I and II of the majority opinion and dissent from the third and sixth paragraphs of Part III. I would affirm the district court's denial of the petition without hearing.

The law of this...