U.S. v. Moore, 77-3627

• Decision Date: 25 June 1979
• Docket Number: No. 77-3627,77-3627
• Citation: 599 F.2d 310
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sara Jane MOORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 310

599 F.2d 310

UNITED STATES of America, Plaintiff-Appellee, v. Sara Jane MOORE, Defendant-Appellant.

No. 77-3627.

United States Court of Appeals Ninth Circuit.

June 25, 1979.

Sara Jane Moore in pro. per.

Linda C. Jamieson, U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before SNEED and TANG, Circuit Judges, and SMITH, ^* District Judge.

TANG, Circuit Judge.

On December 16, 1975, the appellant, Sara Jane Moore, entered a plea of guilty to attempting to murder Gerald R. Ford, President of the United States. She was sentenced to life imprisonment. On April 15, 1977, Moore petitioned the district court to set aside her plea and vacate her sentence pursuant to 28 U.S.C. § 2255 and Rule 11, Fed.R.Crim.Pro. The court denied relief whereupon Moore filed this appeal. Moore argues that her plea was involuntarily made; that she was incompetent to plead guilty; that her counsel was ineffective; and, that the court abused its discretion in accepting her plea and in sentencing her to life imprisonment. We have carefully reviewed the entire record on appeal and, for the reasons stated below, we reject Moore's arguments.

Sara Jane Moore was arrested on September 22, 1975, for attempting to murder President Ford. Shortly after Moore's arrest the court ordered Moore to be examined in order to determine her competency to stand trial. On November 17, 1975, the court, after hearing, ruled that Moore was competent to stand trial. The trial date was set for December 15, 1975. Defense counsel objected to the early trial date but the date was left at December 15, 1975. ¹ On November 26, 1975, defense counsel informed the court that efforts were being made to meet the trial schedule, but he reserved the right to move for a continuance.

On December 12, 1975, a pre-trial conference was held. At that hearing defense counsel informed the court that Moore, against his advice, desired to change her plea to guilty. The court instructed her as to her constitutional rights and the effects of a guilty plea. The court, however, refused to accept her plea and ordered another hearing on December 15, 1975, in order to give her some time to think over her decision.

At the December 15th hearing, Moore again stated her desire to plead guilty. The court once again informed her of her rights and of the effects of a guilty plea. A court-appointed psychiatrist, who had examined Moore the previous day, testified that she was competent to change her plea. The court determined she was competent to change her plea but refused to accept the guilty plea, ordering another hearing the following day, December 16th, to receive independent government evidence to establish a Prima facie case against her.

On December 16, 1975, Moore presented a detailed factual basis for her guilty plea and the government presented independent evidence establishing her guilt. Further testimony was received as to her sanity at the time of the offense. After finding that Moore's plea was voluntarily, knowingly and intelligently given, the court accepted her plea of guilty. Some sixteen months later, on April 15, 1977, Moore petitioned the sentencing district court to set aside her plea of guilty and to vacate her sentence. The court considered and denied the motions whereupon a timely notice of appeal was filed. ²

In denying Moore's § 2255 petition, the district court based its decision upon the records, affidavits and papers filed with the court and on oral argument. The court did not hold a full evidentiary hearing. Under 28 U.S.C. § 2255, a § 2255 motion may be denied without an evidentiary hearing if the motion, files and record in the case conclusively show that the prisoner is entitled to no relief. Jack v. United States, 435 F.2d 317 (9th Cir. 1970). We think the district court did not err in so disposing of Moore's motion.

Voluntariness of Plea:

Moore claims her plea of guilty was not entered voluntarily nor with an understanding of the consequences thereof. She claims her plea was the result of fear of going hastily into trial with an attorney who she believed could not be prepared for trial.

A plea entered because counsel is unprepared for trial is involuntary. See Colson v. Smith, 438 F.2d 1075, (5th Cir. 1971). The record shows that when time settings for a competency hearing and trial were first made on October 28, 1975, defense counsel did object to trying the case within ninety days on the ground that he could not prepare for trial. Shortly thereafter, he petitioned this court concerning pretrial proceedings ³ and, on November 18th, defense counsel moved to have the trial date changed from December 15th to January 15th. However, defense counsel's subsequent statements contradict Moore's assertion that her attorney was unprepared. On November 26th, the attorney told the court that every effort was being made to meet the trial schedule and, if he were unable to meet the schedule, he would again move for a continuance. At that time defense counsel indicated he did not anticipate having any particular discovery problems as he had no motions of substance and all that remained were certain "housekeeping" motions. Defense counsel also filed his voir dire questions on time and, on December 9, filed a notice of a mental condition defense. No continuance was thereafter requested. The record does not anywhere suggest Moore's counsel was unprepared prior to her plea.

Nor does the record suggest anywhere that Moore entered her plea out of fear or that her plea was involuntarily made. The record reveals that the trial judge was very careful in taking Moore's plea. He continued the plea taking process twice, he thoroughly advised her twice of the rights waived by plea and he called for an independent hearing to establish a factual basis for the plea.

Moore's statement that the plea was involuntary is conclusory and contradicted by the record.

Competency to Plead Guilty:

On November 17, 1975, the district court found Moore competent to stand trial, based on the testimony and reports of six psychiatrists and psychologists. This finding of competency is not contested; however, Moore claims she was not competent at the time she changed her plea. In support of this claim she submitted an affidavit by a psychiatrist who averred Moore was "not in a state of mind consistent with good judgment" at the time she changed her plea, and that her plea was an "impulse" arising out of fear and panic. These conclusions were based on two consultations with Moore in May 1977, one of one hour and the other of three hours length.

The standard for competency to plead guilty was dealt with in Sieling v. Eyman, 478 F.2d 211, 215 (9th Cir. 1973):

A defendant is not competent to plead guilty if a mental illness has substantially impaired his ability to make a reasoned choice among the alternatives presented to him and to understand the nature of the consequences of his plea.

Moore's claim of incompetency is not supported by the record, nor does her affidavit support a finding of incompetence under the test stated in Sieling.

When Moore notified the court of her desire to change her plea on December 12, the court refused to accept it in order to give her the weekend to think it over. The following Monday, Moore again stated she wanted to plead guilty. That day the court held a hearing on whether Moore was competent to plead guilty. Dr. Robert Jack Eardley, who had testified as to Moore's competency to stand trial, testified that he had spent some five or six hours discussing the plea with her and thought she was competent to plead. During the hearings on the 12th and 15th Moore made statements indicating she thought she was competent. The fact that Moore was given a weekend to think over her desire to plead guilty contradicts the assertion that her plea was an "impulse." Further, the record shows no mention of fear of a hasty trial or panic.

Nevertheless, Moore also asks now that she be allowed to withdraw her plea due to the "quality and quantity" of her competency hearing. She notes that evidence from six psychiatrists and psychologists was used to find her competent to stand trial on November 17; yet, only one psychiatrist testified as to her competency to plead guilty on December 15. She further notes that the trial judge referred to testimony from the November 17th hearing when determining she was competent to plead guilty. Moore's argument is without merit. We find no error. Testimony as to a defendant's competency to stand trial may be relevant to determine competency to plead guilty where there is a relatively short time span between the hearing on competency to stand trial and the plea proceedings. Makal v. Arizona, 544 F.2d 1030, 1035 (9th Cir. 1976); See also Seiling v. Eyman, supra. Appellant has not met her burden of establishing mental incompetence.

Effective Assistance of Counsel:

Moore next contends she was denied effective assistance of counsel at the time she entered a plea of guilty. In her first affidavit, Moore states primarily that she did not think her attorney was acting in her best interests; that he repeatedly refused to discuss the merits of her case; that he told her he was the only attorney she could have; that an assistant to her attorney passed on a confidential piece of information; and that the psychiatrist discussed the legal aspect of her case with her more than did her attorney. In her second affidavit, she elaborates on these earlier charges and indicated that her attorney prevented several persons from...