U.S. v. Fulford

• Decision Date: 04 August 1987
• Docket Number: No. 86-3615,86-3615
• Citation: 825 F.2d 3
• Parties: The UNITED STATES v. Emmett Earl FULFORD, Anthony J. Sanner. Appeal of Emmett Earl FULFORD, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 3

825 F.2d 3

The UNITED STATES v. Emmett Earl FULFORD, Anthony J. Sanner.

Appeal of Emmett Earl FULFORD, Appellant.

No. 86-3615.

United States Court of Appeals, Third Circuit.

Argued April 29, 1987.

Decided Aug. 4, 1987.

Joel B. Johnston (argued), George E. Schumacher, Federal Public Defender, Pittsburgh, Pa., for appellant.

Bonnie R. Schlueter (argued), Asst. U.S. Atty., J. Alan Johnson, U.S. Atty., Pittsburgh, Pa., for appellee.

Before WEIS and STAPLETON, Circuit Judges, and SAROKIN, ^* District Judge.

WEIS, Circuit Judge.

In this habeas corpus proceeding, we conclude that petitioner has failed to establish his numerous claims for relief. We decide that certain omissions from the Rule 11 colloquy on the petitioner's guilty plea were not serious enough to require vacation of sentence. Similarly, his charges of ineffective assistance of counsel do not demonstrate prejudice. We further determine that the Interstate Agreement on Detainers Act was not violated when federal authorities took petitioner from the county jail, where he was being held as a probation violator, to the district court for arraignment, plea and sentencing.

Petitioner seeks to vacate his sentence through this 28 U.S.C. Sec. 2255 action. In addition to alleging violations arising from the federal conviction, petitioner also presents complaints based on his state convictions. This appeal follows the district court's denial of the habeas corpus petition.

While serving a term of imprisonment in Texas, petitioner was brought to Pittsburgh on March 9, 1984 for trial on charges of violating probation imposed by the Court of Common Pleas of Allegheny County Petitioner was transported to federal court from the county jail on three occasions, pursuant to writs of habeas corpus ad prosequendum for arraignment, entry of a guilty plea and sentencing. The court accepted the plea on March 29, 1984 and imposed sentence on July 9, 1984. Petitioner was sentenced to a term of imprisonment beginning at the conclusion of his Texas term.

Pennsylvania, as well as on other pending state charges. A federal grand jury, sitting in Pittsburgh, indicted petitioner on March 29, 1984, while he was awaiting disposition of the state matters. The indictment alleged conspiracy in violation of 18 U.S.C. Sec. 371 and substantive violations under 18 U.S.C. Sec. 473, both arising out of the passing of counterfeit money in 1979.

In October, 1984, after pleading guilty to the state offenses, petitioner was sentenced in the state court. The court later revoked the probation on his previous Pennsylvania conviction and ordered him to serve a term on those earlier charges.

Petitioner now alleges numerous deficiencies in both the federal and state proceedings. Because he has not exhausted state remedies with respect to the Pennsylvania convictions, the district court properly dismissed those matters, and we will not review them.

On appeal, petitioner contends that (1) the district judge omitted from the colloquy significant areas of inquiry under Fed.R.Crim.P. 11; (2) counsel's inadequate performance violated the sixth amendment; (3) a factually incorrect presentence report deprived him of due process; and (4) his transfer from Texas to Pennsylvania violated the Interstate Agreement on Detainers Act.

I. THE RULE 11 COLLOQUY

In his brief, petitioner enumerates ten instances where he contends the colloquy failed to comply with Rule 11. ¹ Some of these references are patently frivolous. For example, he complains the judge did not advise him that the maximum sentence included a mandatory special parole term. In fact, the pertinent statute contains no such provision, nor was he sentenced to a special parole term. Similarly, he asserts that he was not told his guilty plea exposed him to a special assessment of $50, yet none was actually imposed.

Petitioner cites other instances in which the district judge allegedly departed from the provisions of the rule; nevertheless, the language used by the judge in his colloquy implicitly conveyed the information required The government concedes, however, that the colloquy failed to cover three matters listed in Rule 11: petitioner was not advised of the right to persist in the plea of not guilty; he was not told of the right to assistance of counsel at every stage of the trial; and he was not informed that his answers could be used in a prosecution for perjury or false statement.

by the rule, although not tracking the text. Moreover, the record demonstrates that some of the alleged omissions did not occur, despite the petitioner's complaints to the contrary.

Petitioner relies on United States v. Carter, 619 F.2d 293 (3d Cir.1980); however, that case is not controlling. There we held that the failure of the district judge to advise the defendant of his right to assistance of counsel at trial was inherently prejudicial, and not harmless error. In that case, we concluded that the error mandated resentencing.

When Carter was decided, whether a harmless error standard would be applied to failures of compliance with the notice requirements of Rule 11 was an open question in this circuit. See United States v. De Le Puente, 755 F.2d 313, 314 (3d Cir.), cert. denied, 474 U.S. 1005, 106 S.Ct. 524, 88 L.Ed.2d 456 (1985). In 1983, however, the rule was amended to include subsection (h), which provides that "[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded." Id.

Furthermore, Carter was a direct appeal. The case before us, a collateral attack under 28 U.S.C. Sec. 2255, is governed by a different standard. In United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), concern with the need for finality of convictions based on guilty pleas prompted the Court to hold that a formal violation of Rule 11 does not constitute ground for relief if the error did not result in a "miscarriage of justice" or was not inconsistent with the "rudimentary demands of fair procedure." Id. at 783, 99 S.Ct. at 2087. In Timmreck, the petitioner was not advised that a special parole term could be added to the sentence. The Court concluded that this omission was not reversible error because the petitioner did not "argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty." Id. at 784, 99 S.Ct. at 2087.

The government acknowledges that petitioner was not advised of his right to assistance of counsel at every stage of the trial, as specified in Rule 11(c)(3). The record shows, however, that he was represented by counsel at both the plea colloquy and sentencing.

When asked if he had been given a full opportunity to talk with his attorney and whether he was satisfied with the services he had received from counsel, petitioner answered, "yes." After advising petitioner of his right to stand trial, the judge further commented, "in case of an adverse verdict, you would have a right of appeal, and if you couldn't afford counsel, counsel would be appointed." The judge asked, "You understand that?" Petitioner replied, "Yes Sir." In other parts of the colloquy, the judge outlined trial procedures and defined the prosecution's burden to prove its case.

The record establishes that this was not the first time petitioner had contact with the criminal law system; in fact, he had been convicted of offenses in the state courts of Texas and Pennsylvania. Notably absent from the record here is any allegation by petitioner that he did not know of his right to counsel at every stage of the proceeding or that he would not have entered a guilty plea had he been so advised. As we said in United States v. Horsley, 599 F.2d 1265 (3d Cir.) (en banc ), cert. denied, 444 U.S. 865, 100 S.Ct. 135, 62 L.Ed.2d 88 (1979), the petitioner in a collateral proceeding must demonstrate prejudice from an alleged violation of Rule 11. Petitioner here has not even asserted prejudice, let alone produced evidence of its existence.

In view of all the circumstances here, we conclude petitioner has not made an adequate showing that the failure to advise him in haec verba of his continued right to Petitioner contends that the trial judge neglected to tell him of the right to persist in a not guilty plea under Rule 11(c)(3). Although the judge did not use those precise words, he inquired whether petitioner knew he had "a right to stand trial." In addition, the judge asked if petitioner understood that "the government must prove all of the elements of the charge against you to the satisfaction of all twelve members of the jury if you ask for a jury trial." Petitioner responded affirmatively to each of the questions. Implicit in those answers is an acknowledgement that petitioner knew he had the right to persist in a plea of not guilty and proceed to trial. We find no cause for relief on this phase of the colloquy.

counsel during trial had any effect on his decision to plead guilty.

We dismiss the petitioner's contention that the court violated Rule 11 by failing to advise him that he would be subject to prosecution for perjury or false swearing. This complaint is meritless because no such prosecution has been initiated or is contemplated. Although the admonition should have been given, its omission has no significance at this juncture.

Undoubtedly, the trial judge was convinced that petitioner freely and voluntarily entered his plea with full knowledge of the possible consequences. We recognize the concern of conscientious district judges that the plea colloquy be used to make relevant findings and that it not be reduced to a meaningless oral questionnaire. Nevertheless, the issues raised here demonstrate once again that faithful adherence to the text of Rule 11 or the standard colloquy contained in the Bench Book can forestall needless appeals. Plodding through the litany, which may not be immediately necessary for the...