Ruiz v. United States, 18897.
| Decision Date | 16 January 1964 |
| Docket Number | No. 18897.,18897. |
| Citation | 328 F.2d 56 |
| Parties | Joseph RUIZ, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joseph Ruiz, in pro. per.
Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief of the Criminal Section, and George C. McCarthy, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before HAMLEY and DUNIWAY, Circuit Judges, and THOMPSON, District Judge.
Joseph Andy Ruiz appeals from an order denying what purported to be an application for a writ of habeas corpus.
Ruiz is a federal prisoner and has not alleged facts establishing that the remedy by motion under 28 U.S.C. § 2255 is inadequate or ineffective to test the legality of his detention. Under these circumstances, and as provided in the last paragraph of section 2255, the district court was without jurisdiction to entertain an application, on behalf of Ruiz, for a writ of habeas corpus. But since the application was filed in the court which imposed the sentence upon Ruiz, and which was therefore authorized to entertain a motion under section 2255, we will regard his application as such a motion.
On June 21, 1961, Ruiz pleaded guilty to a count of an indictment charging that, on or about April 12, 1961, he sold to Manuel Diaz a quantity of marihuana, in violation of 21 U.S.C. § 176a.1 On July 17, 1961, a judgment of conviction was entered on the plea of guilty, and a sentence of five years' imprisonment was imposed.
On July 11, 1963, the motion now before us was filed. It was denied on the court's own motion and without hearing. Under section 2255, a district court is entitled to take such action if the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.
The principal ground for relief advanced in the motion was that section 176a is unconstitutional because in order to avoid violating that section a person charged thereunder would have had to incriminate himself in contravention of the Fifth Amendment. More specifically, Ruiz argues, in effect, that had he complied with certain other statutory provisions, the marihuana would have been lawfully imported; that compliance with these provisions would have been self-incriminating; and that therefore he was actually convicted of failing to incriminate himself.
Assuming that Ruiz could have assured lawful importation of the marihuana, the steps necessary to do this would not be incriminating because they would disclose only lawful conduct. In effect, then, he was not convicted for failing to report unlawful conduct. Russell v. United States, 9 Cir., 306 F.2d 402, relied upon by Ruiz is not in point for Russell was convicted for failure to make known to authorities that he was in unlawful possession of a firearm. Ruiz has not been convicted for failure to supply information concerning past unlawful acts.
Ruiz bases some argument upon that part of section 176a which provides that proof of possession of the narcotics shall be deemed prima facie evidence of a violation of the section. While we fail to see how this provision can have any significance with regard to the self-incrimination argument, it is...
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