Quibell v. United States

• Decision Date: 23 May 1966
• Docket Number: Civ. No. 3432,Ancillary to CR 30051.
• Citation: 265 F. Supp. 474
• Parties: James Lamar QUIBELL, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of California

265 F. Supp. 474

James Lamar QUIBELL, Petitioner, v. UNITED STATES of America, Respondent.

Civ. No. 3432, Ancillary to CR 30051.

United States District Court S. D. California, S. D.

May 23, 1966.

Shelby Gott, Asst. U. S. Atty., San Diego, Cal., for the United States.

John R. Schell, San Diego, Cal., for petitioner.

OPINION ON MOTION TO VACATE SENTENCE

WEINBERGER, District Judge.

An indictment was returned in criminal case No. 30051 charging petitioner with having violated Section 2312 Title 18 U.S.C.A. (Dyer Act) and on April 24, 1961 he appeared in Court for arrraignment. He was 18 years of age. Counsel was appointed for him, he entered a plea of guilty; the matter was continued for sentence and referred to the probation officer.

On May 15, 1961 petitioner appeared with his counsel and the Court sentenced petitioner as a youth offender under Title 18 U.S.C.A. § 5010(b), and committed him to the custody of the Attorney General for treatment and supervision until discharged by the Youth Correction Division of the Board of Parole as provided in Title 18 U.S.C.A. § 5017(c).

While at the time petitioner was arrested under the Dyer Act indictment he was an escapee from the Federal Youth Camp at Tucson, Arizona where he was serving a minority sentence under the Federal Juvenile Delinquency Act, he was not prosecuted for any offense other than that charged in the indictment.

On May 14, 1965, petitioner was paroled from the sentence this Court imposed, but was recommitted to the penitentiary on September 17, 1965 for violation of parole, and, at the time of his petition herein was confined in the Federal Penitentiary at Steilacoom under such sentence.

Petitioner's motion, brought under Section 2255 of Title 28 U.S.C.A. alleged that when he entered a plea of guilty he did so without understanding of the possible consequences of his plea in that he did not know prior to plea and sentence the nature and circumstances of receiving a sentence under the Youth Corrections Act, — that under the said Act he could be incarcerated for a period of six years, rather than for the maximum period provided by the statute for a violation of the Dyer Act, to-wit, five years. The motion further requested that a hearing be had, that the sentence be vacated and that petitioner be re-sentenced, with credit for time served.

Counsel was appointed for petitioner, and on April 20, 1966 a hearing was had, petitioner being present with such counsel.

At the hearing, petitioner was questioned by his counsel as to whether, prior to his plea of guilty he was aware that upon such plea he could be sentenced under the Youth Authority Act and that under such Act there was a possibility that he could be incarcerated for a term longer than the five years provided as a maximum penalty for a violation of the Dyer Act; cross-examination was had; respondent introduced testimony of petitioner's counsel in the criminal proceeding, of the Assistant United States Attorney who prosecuted the criminal case, of the Probation Officer who made the report in such case, and of an F.B.I. Agent who had interviewed the petitioner prior to his appearance in Court.

The reporter's transcript of the proceedings had in Court at time of arraignment, plea and sentence of petitioner are before us. The briefs of counsel for the respective parties are on file. Transcript of the hearing on petitioner's motion has been prepared, and the matter submitted for decision.

Petitioner's counsel made it clear in his opening statement and in his brief that petitioner admits his guilt of the offense charged; that he is not attempting to avoid the consequences of his crime; that if his sentence is vacated and his plea withdrawn, he will again plead guilty; that he wishes to be re-sentenced, with the time he has spent incarcerated under the allegedly invalid sentence credited.

Further, petitioner's counsel emphasizes that there is no contention that the Court, or anyone, misled the petitioner defendant with reference to any matter; counsel's contention is that it does not appear of record that, prior to petitioner's plea, he was aware of the possible consequences of such plea—the possible penalties which might be imposed upon him, and that this fact, alone, is sufficient to entitle him to relief.

Petitioner relies upon two decisions of the Court of Appeals of the Ninth Circuit, Freeman v. United States (opinion dated September 13, 1965, Supplemental Order dated November 26, 1965) reported at 350 F.2d 940, and Heiden v. United States (Nov. 2, 1965) 353 F.2d 53.

In Heiden v. United States (Nov. 2, 1965, 9 Cir.) 353 F.2d 53 the petitioner moved to vacate his sentence on the grounds that he had not intelligently waived counsel at the time of his arraignment, and that his plea was not voluntarily made within the meaning of Rule 11, F.R.Crim.P. which provides in part:

"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 the understanding of the nature of the charge."

At the hearing petitioner was interrogated at length, the testimony of an agent of the Federal Bureau of Investigation, and of an Assistant United States Attorney was heard. The District Court found, after the hearing as follows, in part (quoting from page 54 of the Heiden v. United States opinion, 353 F.2d 53):

"`that petitioner's waiver of counsel at the time of his arraignment was made intelligently and with full knowledge of his rights * * * that petitioner's plea of guilty entered at the time of his arraignment was made voluntarily and with full knowledge of the nature of the charge against him and of the maximum penalty to be imposed.'"

The Court of Appeals said, at page 54:

"There is no question but that the record amply supports the court's findings and supplies basis for disbelief of the appellant. The question is whether such findings can suffice to eliminate the prejudice resulting from failure of the court, at the time of arraignment and waiver of counsel, to make the necessary ascertainment of understanding. In our judgment, they do not."

The opinion then cited Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461, with reference to proper waiver of counsel.

Had the opinion of our Court of Appeals concluded at this point, it might be contended that the rule it laid down applied only to waiver of counsel. But the opinion continues, and we quote:

"Rule 11 is mandatory. Munich v. United States, 337 F.2d 356 (9th Cir. 1964). It is contemplated by that Rule, and is the holding in Johnson v. Zerbst, that the fact that a plea was intelligently entered and that counsel was intelligently waived must be ascertained at the time of arraignment or of waiver and not after the fact. When this is done the facts can be made to appear of record; the understanding of the defendant can actually be accomplished and its accomplishment demonstrated beyond dispute. When the ascertainment is subsequently made after disputes have arisen, a degree of uncertainty is bound to creep in since, in the resolution of disputed facts, problems of credibility and reliability of memory cannot be avoided.

"The Rule thus contemplates that disputes as to the understanding of the defendant and the voluntariness of his action are to be eliminated at the outset, and that courts thereby are to be freed from the troublesome task of searching at a later date for the truth as to the defendant's then state of mind."

The Court then said that Rule 11 is a salutary one, "whose aims might well justify sua sponte enforcement in the interests of judicial administration. But more, it is a rule of which the defendant himself can claim protection. If, by its disregard, issues of fact are permitted to arise the defendant has suffered prejudice in being required to resort to the relatively uncertain business of their resolution."

The gist of the decision appears to be: (P. 55)

"Prejudice, then, is established when lack of understanding in a specific and material respect is sufficiently alleged and such asserted lack, if it existed, would have been disclosed by a proper examination by the trial judge. Such is the case here.

"We conclude that appellant was prejudiced by failure of the sentencing court to make the required ascertainment of understanding and that this prejudice was not eliminated by the findings of fact made by the court below."

The District Court was directed to vacate the judgment of conviction, the sentence and the plea of guilty upon which the conviction was based, and to afford the petitioner an opportunity to plead to the indictment. (The Heiden appeal was heard before Circuit Judges Chambers, Barnes, Hamley, Jertberg, Merrill, Koelsch, Browning, Duniway and Ely, with Circuit Judge Merrill speaking for the majority. The dissenting opinion was by Chief Circuit Judge Chambers, p. 55 of 353 F.2d 53 and is as follows:

"Heiden was deprived of no constitutional right here. Nothing shocking happened. Heiden was not hurt. We deal here only with the supervisory power of this court.

"The inadvertence that happened could prejudice another. Therefore, Rule 11 should be carefully observed, but when no damage is done, I cannot find the error either substantial or prejudicial. Thus, I dissent.")

The opinion in the Freeman case (350 F.2d 940, 9 Cir.1965) was written September 13, 1965, prior to the decision in the Heiden case; the Court of Appeals stated that from the record it could not be determined whether the petitioner, prior to the entry of his plea, might have had explained to him the provisions of the Youth Corrections Act by his attorney, or by the trial Judge, or by someone else, and remanded the matter to the District Court with the following language, at page 943 of the opinion:

"* * * for a hearing to determine whether or not appellant was aware of the range of possible punishments under the Youth Corrections Act at the time of

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