Timmreck v. U.S., 77-1572

Decision Date12 June 1978
Docket NumberNo. 77-1572,77-1572
Citation577 F.2d 372
CourtU.S. Court of Appeals — Sixth Circuit
PartiesCharles TIMMRECK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Kenneth M. Mogill, Mogill, Bush, Posner & Weiss, Detroit, Mich., for petitioner-appellant.

James K. Robinson, U. S. Atty., Detroit, Mich., Mervyn Hamburg, Sidney M. Glazer, Appellate Section, Crim. Div., Dept. of Justice, Washington, D. C., for respondent-appellee.

Before CELEBREZZE, LIVELY and ENGEL, Circuit Judges.

CELEBREZZE, Circuit Judge.

This is yet another case involving a 28 U.S.C. § 2255 motion to vacate a sentence entered upon a guilty plea taken in violation of Federal Rule of Criminal Procedure 11. We reaffirm this circuit's position requiring strict adherence to Rule 11 and allowing deviation therefrom to be challenged in a § 2255 proceeding. We reverse the district court's denial of relief.

Charles Timmreck entered a plea of guilty to conspiracy to distribute a controlled substance, 21 U.S.C. § 846, on May 24, 1974, pursuant to a plea bargain which resulted in the dismissal of other charges pending against him. The district court inquired as to the voluntariness of the plea and informed Timmreck that he could be sentenced to as much as fifteen years confinement and a $25,000 fine, which he acknowledged understanding. The record does not reflect, however, that the court informed Timmreck, or that he otherwise knew, about the three year minimum mandatory special parole term that 21 U.S.C. § 841(b)(1)(A) requires to be added to any other sentence meted out for the offense charged. 1 The court accepted the guilty plea and, on September 19, 1974, sentenced Timmreck to ten years in prison, a $5000 fine, and an additional special parole term of five years. No appeal followed.

On August 11, 1976, Timmreck moved pursuant to 28 U.S.C. § 2255 to vacate the sentence entered upon his guilty plea. The sole ground for the motion was that his plea had been accepted in violation of Rule 11 since he was not informed of the three year minimum mandatory special parole term that had to be added to whatever sentence he otherwise received. The district court agreed that such advice had not been given. It noted, however, that Timmreck had been sentenced to ten years confinement plus five years special parole, the total of which was within the fifteen years he had been told was possible, and that the $5000 fine was within the $25,000 limit explained to him. Because Timmreck's total actual sentence did not exceed the maximum outlined to him at the plea hearing, the district court found no fundamental unfairness and denied § 2255 relief on that basis. 423 F.Supp. 537 (E.D.Mich.1976).

The holding of the district court is squarely contrary to United States v. Wolak, 510 F.2d 164 (6th Cir. 1975). See also United States v. Cunningham, 529 F.2d 884, 888 n. 2 (6th Cir. 1976). Wolak, legally indistinguishable from this cause, also involved a § 2255 motion to vacate a sentence after a plea of guilty to a violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq. 2 The district court in Wolak failed to explain to the defendant that a consequence of his guilty plea would be the imposition of at least a three year special parole term in addition to any custodial sentence. 3 We held that the district court erred both in not explaining the mandatory nature of the special parole and in misstating the required three year minimum term. 510 F.2d at 166. It was "our determination that, in order to comply with Rule 11, the district judge must inform a defendant of the minimum sentence, either custodial or parole where there is a mandatory minimum, and of any special limitations on parole or probation." Id. We reversed the denial of the § 2255 motion and instructed the district court to vacate the sentence and permit the defendant to plead anew. The same result must obtain here.

The district court was aware of our decision in Wolak but did not deem it controlling. 4 Instead, the court relied heavily upon several recent cases from other circuits, discussed infra, which have held that Rule 11 violations do not entitle one to § 2255 relief unless the error was a "fundamental defect which inherently results in a complete miscarriage of justice." 5 We decline to follow these cases which we consider contrary both to Wolak and relevant Supreme Court authority. 6

The starting point for any Rule 11 case must be McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). In McCarthy, the Supreme Court mandated strict compliance with Rule 11 before a district court can accept a guilty plea. The Court held "that prejudice inheres in a failure to comply with Rule 11, for noncompliance deprives the defendant of the Rule's procedural safeguards that are designed to facilitate a more accurate determination of the voluntariness of his plea." Id. at 471-72, 89 S.Ct. at 1173. The remedy required for a Rule 11 violation was allowing the defendant to plead anew.

In the wake of McCarthy's strict language, every circuit to address the issue through 1974 held that the very factual pattern presented here (i. e., failure to inform the defendant of the mandatory special parole term of § 841(b)) was a violation of Rule 11 which required vacation of the sentence entered upon the guilty plea. The cases also held this issue could be raised in a § 2255 proceeding. Michel v. United States, 507 F.2d 461 (2d Cir. 1974); 7 Roberts v. United States, 491 F.2d 1236 (3d Cir. 1974); United States v. Richardson, 483 F.2d 516 (8th Cir. 1973).

After 1974, however, the results began to diverge. All circuits addressing the issue presented here continued to hold that failure to inform a defendant of the special parole term constitutes a violation of Rule 11, making vacation of sentence necessary if challenged on direct appeal. But the circuits have split on whether such a Rule 11 violation can be successfully challenged in a § 2255 proceeding. Three circuits still allow a § 2255 movant to vacate his sentence and plead anew. Bunker v. Wise, 550 F.2d 1155 (9th Cir. 1977); 8 United States v. Yazbeck, 524 F.2d 641 (1st Cir. 1975); 9 United States v. Wolak, 510 F.2d 164 (6th Cir. 1975). Five other circuits, including the second and eighth which had ruled otherwise before 1974, have opted for a different result. These courts have held that a § 2255 movant is entitled to vacation of his sentence only if he can demonstrate prejudice from the Rule 11 violation. 10 Del Vecchio v. United States, 556 F.2d 106 (2d Cir. 1977); United States v. Hamilton, 553 F.2d 63 (10th Cir.), cert. den. 434 U.S. 834, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); 11 McRae v. United States, 540 F.2d 943 (8th Cir. 1976), cert. den. 429 U.S. 1045, 97 S.Ct. 750, 50 L.Ed.2d 759 (1977); 12 Bell v. United States, 521 F.2d 713 (4th Cir. 1975), cert. den. 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976); Bachner v. United States, 517 F.2d 589 (7th Cir. 1975). Section 2255 relief was denied in each of these cases since no prejudice was thought to exist when, like here, the defendant's actual sentence, including the special parole term, was within the maximum possible sentence specified at his plea hearing.

The reason for this sudden shift after 1974 was the decision that year of Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298 41 L.Ed.2d 109 (1974). Davis did not involve a guilty plea but rather dealt with § 2255 relief after a jury conviction. The Supreme Court held that a change in the law after conviction, and not just constitutional errors at trial, could serve as the basis for a § 2255 proceeding. The Court added a paragraph of dicta, however, which we reproduce here in full:

This is not to say, however, that every asserted error of law can be raised on a § 2255 motion. In Hill v. United States, 368 U.S. 424, 429, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962), for example, we held that "collateral relief is not available when all that is shown is a failure to comply with the formal requirements" of a rule of criminal procedure in the absence of any indication that the defendant was prejudiced by the asserted technical error. We suggested that the appropriate inquiry was whether the claimed error of law was "a fundamental defect which inherently results in a complete miscarriage of justice," and whether "(i)t . . . present(s) exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." Id., at 428, 82 S.Ct. (468) at 471 (internal quotation marks omitted). The Court did not suggest that any line could be drawn on the basis of whether the claim had its source in the Constitution or in the "laws of the United States." 417 U.S. at 346, 94 S.Ct. at 2305.

This paragraph has been seized upon by four of the five circuits requiring a § 2255 movant to show prejudice in order to vacate a sentence entered upon a plea of guilty taken in violation of Rule 11. 13 Del Vecchio, 556 F.2d at 110; Hamilton, 553 F.2d at 65; McRae, 540 F.2d at 945; Bachner, 517 F.2d at 591. It was also relied upon by the district court here. 423 F.Supp. at 539. These courts have held that the conceded Rule 11 error is not cognizable in a § 2255 proceeding when the defendant's total actual sentence is within that specified at the plea hearing. This is justified by reference to Davis, concluding that "the claimed error of law was (not) 'a fundamental defect which inherently results in a complete miscarriage of justice.' " See Del Vecchio, 556 F.2d at 110-11; Hamilton, 553 F.2d at 66; McRae, 540 F.2d at 945; Bachner, 517 F.2d at 592-93. See also Bell, 521 F.2d at 714-15 (harmless error analysis).

We are thus faced with the difficult task of reconciling the somewhat contradictory language of the Supreme Court in McCarthy and Davis. On the one hand, the Court said in its unanimous 14 decision in McCarthy that "prejudice inheres in a...

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