Riscard v. United States

• Decision Date: 06 November 1972
• Docket Number: Civ. No. 644-71.
• Parties: Tomas Luis RISCARD, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Puerto Rico

355 F. Supp. 671

Tomas Luis RISCARD, Petitioner, v. UNITED STATES of America, Respondent.

Civ. No. 644-71.

United States District Court, D. Puerto Rico.

November 6, 1972.

Tomas Luis Riscard, pro se.

Julio Morales Sanchez, U. S. Atty., for respondent.

MEMORANDUM OPINION AND ORDER

TOLEDO, District Judge.

Petitioner herein filed a motion pursuant to Title 28, United States Code, Section 2255, requesting this Court to vacate and set aside the judgment of conviction had against him upon his plea of guilty to Count One of a Three Count Indictment. His request to proceed in forma pauperis was granted.

The petitioner was originally accused on a Three Count Indictment, in Criminal No. 9-67, charging that he had purchased approximately 0.5 grams of cocaine, not in or from the original stamped package in violation of Title 26, United States Code, Sections 4704(a), 7237(a), as amended, and 7701(c) (Count One); that he knowingly, willfully and unlawfully, did receive, conceal and facilitate the transportation and concealment of approximately 0.5 grams of illegally imported cocaine in violation of Title 21, United States Code, Sections 171, 173, 174, as amended, and 7701(c) (Count Two); and that he sold approximately 0.5 grams of cocaine not in pursuance of a written order on a form to be issued in blank for that purpose by the Secretary of the Treasury, as provided by law, in violation of Title 26, United States Code, Sections 4705(a), 7237(a), as amended, and 7701(c).

The petitioner entered on April 2, 1967, a plea of not guilty on each and every count in the indictment, after waiving its reading. On December 11, 1967, he withdrew his plea of not guilty on Count One of the Indictment and entered a plea of guilty as to said Count. Pursuant to his plea of guilty, the petitioner was sentenced on December 20, 1967, to a period of five years of imprisonment, to run consecutively to a sentence he was serving at said time on account of a previous conviction in the Courts of the Commonwealth of Puerto Rico. On the same day of sentence, a motion to dismiss Counts Two and Three of the Indictment made by the United States Attorney, was granted by the sentencing court.

It is petitioner's contention that, the sentence imposed upon him, upon pleading guilty as to Count One of the Indictment, is a violation of his rights to due process guaranteed to him by the Constitution of the United States. He bases his contention in that subsequent to the imposition of sentence upon him, the Supreme Court of the United States entered the decision of Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L. Ed.2d 610, where said Court deemed a violation of constitutional due process to incarcerate a person who possesses a small amount of cocaine "not in or from the original stamped package" — Title 26, United States Code, Section 4704(a), when there is no proof that the cocaine did not come from the "original stamped package". Petitioner further contends that Section 2255 of Title 28, United States Code, is available to him for a collateral attack to his conviction, citing Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), and United States v. Scott, 425 F.2d 55 (9 Cir. 1970).

This Court ordered the United States Attorney to file an answer to petitioner's motion with a memorandum of law supporting it. The United States Attorney filed a motion in opposition to movant's petition asserting that the case of Turner v. United States, supra, is not applicable to the situation at bar and that for such a reason, petitioner's motion is without merit and should be denied. The government's assertion is predicated upon its contention that the petitioner's case is distinguishable from the case of Turner v. United States, supra, for in that case, the petitioner was found guilty after a trial in which the government relied in the presumption established by Title 26, United States Code, Section 4704(a), to the effect that the absence of appropriate tax paid stamps from narcotic drugs shall be prima facie evidence of a violation of that subsection by the person in whose possession the same may be found; while in this case, the petitioner pleaded guilty to Count One of the Indictment, thereby relieving the government of the burden of proving each and every element of the offense. The government further contends that the petitioner by pleading guilty admitted all material facts alleged in Count One of the Indictment. The government also alleges that under said circumstances, no further proof of the crime was required since a plea of guilty constitutes a waiver of trial and defenses, leaving the Court nothing to do but to impose sentence and enter judgment. The government also contends that in the case at bar, they in no way relied in the statutory presumption relied upon in Turner v. United States, supra, and the petitioner cannot assume that the government would have relied on it had he pleaded not guilty. They finally contend that by his guilty plea, the petitioner admitted full culpability for the crime charged and in so doing, totally admitted that respondent had evidence to convict without the need to rely on the presumption.

Petitioner filed a traverse to the government's opposition, wherein he again contends that Turner v. United States, supra, is fully applicable to the facts at bar for when "certain provisions of a criminal statute are unconstitutional they are void and no conviction based upon them can stand regardless of the moment in time at which the unconstitutionality¹ was first articulated, and regardless of whether the conviction was obtained by plea or by a jury's verdict." He further asserts that the offense punishes him for failing to know that the Supreme Court would subsequently declare the statute unconstitutional. As to government's contention that this case is distinguishable from Turner v. United States, supra, for in that case the petitioner was found guilty after a trial on which the government relied in the presumption established by Section 4704(a) of Title 26, United States Code, while in this case he pleaded guilty, with the consequences such a plea entails, petitioner asserts such an argument means nothing, for the Supreme Court, when it struck down the offense² herein complained of, was telling Congress that it had passed a law directly in conflict with the dictates of the Constitution. Petitioner also asserts in its traverse that the compelling reasons that have moved the Circuit Court of Appeals and lower District Courts for applying Leary v. United States, 395 U. S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1968)³ and Turner v. United States,⁴ supra, retroactively are just as applicable and just as compelling for not finding waiver or untimely assertion of constitutional rights on the facts of this case. Lastly, petitioner asserts that since the Supreme Court declared the infirmity of the statute, this Court did not have jurisdiction to indict, convict and/or sentence him and, therefore, he is presently serving an infirm conviction, on an infirm sentence stemming from an infirm statute.

Petitioner has also filed a supplementary motion stating that the case of Martone v. United States (1 Cir. 1970), 435 F.2d 609, is applicable to the present petition,⁵ as well as the Turner case, on which he relies.

The Court, after full consideration of petitioner's motion under Section 2255 of Title 28, United States Code, and of the motion in opposition filed by the government, as well as of the authorities cited by both parties and those found by the Court on its own research, and after an examination of the transcript of proceedings of December 11, 1967, the day on which the petitioner pleaded guilty to Count One of the Indictment, and of December 20, 1967, the day in which sentence was imposed upon the petitioner, is of the opinion that petitioner's motion must be denied for lack of merit.

Although Title 28, United States Code, Section 2255, requires this Court to make findings of fact and conclusions of law in relation to the issues presented, since the present case does not involve any questions of fact, but only questions of law, the following memorandum opinion and order shall be entered in substitution of such findings. See United States v. Nickerson (7 Cir. 1954), 211 F.2d 909.

Whether or not to allow a defendant who has pleaded guilty to withdraw such a plea rests within the sound discretion of the Court, depending upon the pertinent facts and circumstances of the case. Dorton v. United States (10 Cir. 1971), 447 F.2d 401, United States v. Searle (7 Cir. 1950), 180 F.2d 209; United States ex rel. Russell v. La Valle (D.C.N.Y.1971), 322 F.Supp. 579; United States ex rel. Culbreath v. Rundle (D. C.Pa.1970), 320 F.Supp. 1052.

It is the law that a plea of guilty, voluntarily and intelligently made by a competent defendant, with the advice of a competent counsel, is conclusive as to guilt and judicially admits all the averments of fact charged in the information or the indictment;⁶ waives and cures all nonjurisdictional and formal defects in prior proceedings;⁷ waives all defenses other than the information or indictment charges no offense;⁸ and relieves the prosecution of the duty of proving any facts.⁹ The effect is the same as if a defendant had been tried before a jury and had been found guilty on evidence concerning all the material facts.¹⁰ It is in itself a conviction and conclusive as a verdict and once a court accepts a plea, it has nothing to do but to give judgment and sentence;¹¹ which judgment and sentence is based solely on the plea entered and not on any evidence which may have been acquired by the prosecuting authorities.¹²

This Court in the cause herein is not confronted with a situation wherein a defendant was subject to a defective indictment or was induced to plead guilty by subsequently unfulfilled promises or...