Scranton v. Whealon, 74-2068
Citation | 514 F.2d 99 |
Decision Date | 18 March 1975 |
Docket Number | No. 74-2068,74-2068 |
Parties | Ronald G. SCRANTON, Petitioner-Appellant, v. W. J. WHEALON, Superintendent, Respondent-Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Mancino, Mancino & Mancino by Paul Mancino, Cleveland, Ohio (court appointed CJA), for petitioner-appellant.
William J. Brown, Atty. Gen. of Ohio, Leo J. Conway, Robert D. Doane, Columbus, Ohio, for respondent-appellee.
Before PHILLIPS, Chief Judge, EDWARDS, Circuit Judge, and HERMANSDORFER, * District Judge.
Appellant appeals from denial of a writ of habeas corpus in the United States District Court for the Northern District of Ohio, Eastern Division. On consideration of the briefs, oral arguments and record (particularly the record at the time appellant pled guilty to second degree murder in response to the dropping of a first degree murder charge) 1 this court feels that the record disclosed that a plea of guilty was voluntarily made for the reasons carefully spelled out by the District Judge in his Memorandum Opinion and Order, dated June 17, 1974.
Appellant also contends, however, that the record does not disclose his personal waiver of his right to a jury trial in a colloquy with the trial judge who took the plea, and therefore, contends that this was a silent waiver condemned by Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
Appellant's plea of guilty was presented before the Boykin case was decided.
This court in 1970 decided that Boykin should be applied prospectively, reasoning as follows:
"The petitioner further contends that Rule 11 of the Federal Rules of Criminal Procedure as applied to the states by the Fourteenth Amendment was not complied with."
Since the filing of appellant's petition, the Supreme Court has decided McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), holding that Rule 11 of the Federal Rules of Criminal Procedure should be strictly enforced and Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), holding that the McCarthy decision applied only prospectively. Both of these decisions, however, concerned the interpretation and application of a federal rule of criminal procedure and neither purport to control state court criminal procedure.
In Halliday (still talking, of course, about federal criminal cases) the Court said:
Halliday v. United States, supra at 833, 89 S.Ct. at 1499.
Appellant's counsel now points to Boykin, supra ( ) as making Rule 11 fully applicable to state court criminal proceedings. We do not find language in Boykin to support this view and if we did, we believe that the prospective rule adopted in relation to federal cases in Halliday, supra, would apply a fortiori to state court cases.
Lawrence v. Russell, 430 F.2d 718, 720-21 (6th Cir. 1970), cert. denied, 401 U.S. 920, 91 S.Ct. 907, 27 L.Ed.2d 823 (1971).
Other circuits have decided the same question the same way. United States ex rel. Hughes v. Rundle, 419 F.2d 116, 118 (3d Cir. 1969); Moss v. Craven, 427 F.2d 139, 140 (9th Cir. 1970); Meller v. State of Missouri, 431 F.2d 120, 124 (8th Cir. 1970), cert. denied, 400 U.S. 996, 91 S.Ct. 469, 27 L.Ed.2d 445 (1971); United States ex rel. Rogers v. Adams, 435 F.2d 1372, 1374 (2d Cir. 1970), cert. denied, 404 U.S. 834, 92 S.Ct. 569, 30 L.Ed.2d 554 (1971); Freeman v. Page, 443 F.2d 493, 496 (10th Cir.), cert. denied, 404 U.S. 1001, 92 S.Ct. 115, 30 L.Ed.2d 64 (1971).
The Fourth, Fifth and Tenth Circuits have likewise held (in post-Boykin cases) that Boykin does not require the specific judicial colloquy mandated by Rule 11 of the Federal Rules of Criminal...
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