U.S. v. Mathews, No. 86-3867

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before WRIGHT, WALLACE and PREGERSON; PREGERSON
• Citation: 833 F.2d 161
• Docket Number: No. 86-3867
• Decision Date: 09 September 1987
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Horace Henry MATHEWS, Defendant-Appellant.

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833 F.2d 161 UNITED STATES of America, Plaintiff-Appellee,
v.
Horace Henry MATHEWS, Defendant-Appellant. No. 86-3867. United States Court of Appeals,
Ninth Circuit. Submitted Sept. 9, 1987 ^*.
Decided Nov. 27, 1987.

Alex Tandy, Grand Prairie, Tex. for defendant-appellant.

Charles H. Turner, Eugene, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT, WALLACE and PREGERSON, Circuit Judges.

PREGERSON, Circuit Judge:

Horace Henry Mathews filed a motion to vacate and set aside his sentence under Fed.R.Crim.P. 35(a). The district court treated the matter as a motion under 28 U.S.C. Sec. 2255 and denied it.

On appeal, Mathews challenges the district court's subject matter jurisdiction; he

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contends that his guilty plea to a federal charge does not conclusively establish jurisdiction. Mathews also contends that the district court erred in dismissing the motion to set aside his sentence as a successive motion under 28 U.S.C. Sec. 2255. He seeks an order remanding the case for an evidentiary hearing on the jurisdictional issue. We affirm. BACKGROUND

The procedural history of this case is complex. It involves numerous recantations, appeals, and collateral attacks. The following events are relevant to this appeal.

On January 11, 1973, a grand jury indicted Mathews for kidnapping under 18 U.S.C. Sec. 1201. ¹ The indictment charged that Mathews had "knowingly transport[ed] in interstate commerce from Portland, Oregon ... to Tacoma, Washington" one Paul Mann, a young boy whom Mathews had kidnapped.

Mathews pleaded guilty to this charge on January 31, 1973, ² stating that he had killed the victim in Washington. On March 1, 1973, he informed the district judge that he had not killed the victim in Washington, but in Oregon. He offered to show federal agents the body's location. One week later, while accompanying federal agents on a search for the body in an Oregon park, Mathews stated that he had, in fact, killed the victim in Washington and disposed of the body there. He reappeared before the district court on April 11, 1973, informed the judge that his original story--about killing the victim in Washington--was true, and again pleaded guilty to the charge.

Each time Mathews pleaded guilty, the district judge questioned Mathews extensively regarding the events of the kidnapping, his awareness of the effect of a guilty plea and of his right to a jury trial, and his satisfaction with his appointed counsel. Each time, Mathews provided detailed information regarding the kidnapping, indicated that his plea was knowing and voluntary, and expressed satisfaction with his attorney. Each time, Mathews insisted that he had killed the victim on a dock in Tacoma, Washington after transporting him from Oregon to Washington.

In September 1973, Mathews again recanted his testimony. On December 4, 1973 and January 29, 1974, he appeared before the district court, asserted that he had no recollection of his previous guilty pleas, and stated that he had neither kidnapped nor killed the alleged victim. He moved to withdraw his plea. On February 4, 1974, the district court held an evidentiary hearing on the motion. After making credibility determinations on the record, the court denied the motion. Mathews appealed. We affirmed by an unpublished memorandum disposition.

In July 1974, bones were discovered in the Oregon park to which Mathews had led federal agents in March 1973. Only a partial skull and tibial bones were recovered. Federal experts determined that the skull was that of a child, probably male, probably around 8 to 10 years old. They were unable to positively identify the skull as that of Paul Mann, Mathews' alleged victim.

The dentist who had treated Paul Mann examined the skull, and expressed the opinion that he had performed the dental work. He stated that he could not make a positive identification, but that it appeared to correspond to dental work he had performed on Paul Mann. He further stated that such dental work is common on children of that age. He stated, however, that he could not

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positively identify the skull as that of Paul Mann.

After the discovery of the bones, Mathews made a series of motions to set aside his sentence. The first was dismissed for lack of prosecution. The district court dismissed the second after adopting the magistrate's finding that it was a successive attempt to relitigate issues that had already been heard. Mathews sought reconsideration, which was denied. He filed an appeal, then moved to dismiss the appeal without prejudice. This court dismissed the appeal with prejudice as to the district court's judgment, but without prejudice as to Mathews' right to seek further relief from the district court.

Finally, Mathews filed a third motion to set aside judgment based on Fed.R.Crim.P. 35(a). In his "Traverse" to the government's response, Mathews asked for an evidentiary hearing on the issue of federal subject matter jurisdiction. The district court, construing Mathews' motion as a motion under 28 U.S.C. Sec. 2255, dismissed it as successive. This appeal followed.

STANDARD OF REVIEW

This court reviews de novo both challenges to federal jurisdiction, see United States v. Hill, 719 F.2d 1402, 1404 (9th Cir.1983), and ruling on a motion to set aside a sentence. See United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. dismissed, --- U.S. ----, 107 S.Ct. 16, 92 L.Ed.2d 770 (1986).

ANALYSIS

I. Effect of guilty plea on federal subject matter jurisdiction

Mathews contends that the district court lacked subject matter jurisdiction because there is no proof that he transported the kidnapping victim from Oregon to Washington. Although he twice pleaded guilty to the indictment, and told the court that he had transported the victim into Washington, he now seeks to present evidence to show that the remains recovered in Oregon may, in fact, be those of his victim. He argues that a guilty plea cannot form the basis for federal subject matter jurisdiction. We disagree.

The effect of a guilty plea is well established: it "is an admission of all the elements of a formal criminal charge," McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969), and "conclusively admits all factual allegations of the indictment." United States v. Benson, 579 F.2d 508, 509 (9th Cir.1978). Mathews argues, however, that a guilty plea cannot conclusively establish an allegation if that allegation forms the jurisdictional basis for prosecution. Although this court has never squarely addressed the issue, our earlier cases lead us to conclude that Mathews' contention is meritless.

In Waley v. Johnston, 139 F.2d 117 (9th Cir.1943), cert. denied, 321 U.S. 779, 64 S.Ct. 617, 88 L.Ed. 1072 (1944), we addressed this issue in the context of a petition...