Nunley v. United States
| Decision Date | 15 July 1968 |
| Docket Number | Civ. No. 68-219. |
| Parties | Paul Handy NUNLEY, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Western District of Oklahoma |
Paul Handy Nunley, pro se.
B. Andrew Potter, U. S. Atty., John W. Raley, Jr., Asst. U. S. Atty., Oklahoma City, Okl., for respondent.
On February 23, 1968,1 the Petitioner, Paul Handy Nunley, entered a plea of guilty before this Court to the charge of selling narcotics prohibited by § 4705 (a), Title 26 U.S.Code,2 and on March 7, 1968, he was sentenced to imprisonment for a term of 18 years. The Petitioner now attempts to vacate the conviction and sentence under the provisions of § 2255, Title 28, United States Code, claiming that § 4722, Title 26, United States Code is unconstitutional and citing the cases of Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), as holding that § 4722, Title 26, United States Code compels him to incriminate himself.
The conviction and sentence imposed herein against the Petitioner is pursuant to Section 4705(a), Title 26, United States Code. This Section requires no registration by the Petitioner, relies on no Section that does, and conviction thereunder is not predicated on a requirement that the Petitioner register in any manner. It provides that it shall be unlawful for any person to sell narcotics except in pursuance of a written order from the person to whom the same is sold. If there is any registration, it is not required by the Petitioner but only the person who obtains the required written order. Had Petitioner sold the narcotics involved pursuant to such a written order, all he would need to do is produce the same to provide himself with a defense to the charge involved. Otherwise, it is unlawful for one to sell narcotics except pursuant to such a written order. Therefore, the above cases which are centered on a conviction based on a failure of one to register as required by law do not apply in this case.
Moreover, if the above cases should apply in this case, they cannot be utilized by the Petitioner herein for the reason that he failed to timely assert his privilege against self-incrimination. The record is quite clear that the Petitioner did not at any time before conviction and sentence, by motion or otherwise, place himself under the protection of the Fifth Amendment. This privilege may not be properly asserted for the first time after conviction and sentencing. Marchetti v. United States, supra; Whaley v. United States, (10 Cir.-1968), 394 F.2d. 399; United States v. Rodgers Flanery, (W.D.Okla.-1968), 288 F.Supp. 57.
The Petitioner freely and voluntarily entered a plea of guilty. The Section of the United States Code under which he was...
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Baughman v. United States
...1969); United States v. Minor, 398 F.2d 511 (2d Cir. 1968); Walker v. United States, 176 F.2d 796 (9th Cir. 1949); Nunley v. United States, 288 F.Supp. 58 (W.D.Okla.1968). During the pendency of the petition herein, the Supreme Court reversed the conviction of Timothy Leary, 383 F.2d 851 (1......
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