United States v. Washington, 14625.

• Decision Date: 12 February 1965
• Docket Number: No. 14625.,14625.
• Citation: 341 F.2d 277
• Parties: UNITED STATES of America v. Lanna WASHINGTON, Artemas Watts, Betty West, John Beiri, also known as John Berry, Edward Williams, Harry Stevenson, Harold Nathaniel Bryan, LeRoy DeGregory, John Callender and Charles A. Buddin, also known as Sally Buddin. LeRoy DeGregory, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

341 F.2d 277 (1965)

UNITED STATES of America v.Lanna WASHINGTON, Artemas Watts, Betty West, John Beiri, also known as John Berry, Edward Williams, Harry Stevenson, Harold Nathaniel Bryan, LeRoy DeGregory, John Callender and Charles A. Buddin, also known as Sally Buddin LeRoy DeGregory, Appellant.

No. 14625.

United States Court of Appeals Third Circuit.

Argued March 20, 1964.

Decided February 12, 1965.

COPYRIGHT MATERIAL OMITTED

Eleanor Jackson Piel, New York City, for appellant.

Joseph R. Ritchie, Jr., Asst. U. S. Atty., Philadelphia, Pa. (Drew J. T. O'Keefe, U. S. Atty., Lawrence Prattis, Asst. U. S. Atty., Philadelphia, Pa., on the brief), for appellee.

Before McLAUGHLIN, GANEY and SMITH, Circuit Judges.

GANEY, Circuit Judge.

On April 23, 1958, appellant, LeRoy DeGregory, a white male 47 years of age, was indicted under 18 U.S.C. § 371, with nine others for conspiring to violate 18 U.S.C. § 1461, which, prior to the August 28, 1958amendment, declared it a crime to knowingly deposit for mailing or delivery, or aid in the circulation or disposition, of obscene matter.On May 19, 1958, the appellant and four of the defendants were arraigned in open court.Three of the defendants plead not guilty, the other guilty.Appellant, not represented by counsel, expressed a desire to enter a plea of "non vult".¹This "plea" was accepted by the district court.The deputy clerk of court entered his plea as though he had pleaded nolo contendere.²On June 17, 1958, after a presentence investigation had been made upon appellant, the district court sentenced him to pay a fine of $50, and to be committed to the custody of the Attorney General of the United States for a period of one year.The execution of the custody portion of the sentence was suspended by the court and it placed him on probation for five years, conditioned on his paying the fine within the first three months of that period.He did not file a motion in arrest of judgment or appeal from the judgment of conviction and sentence, and paid the fine within the time set.

On August 9, 1962, in the fifth year of his probation, the appellant, then represented by counsel, filed a motion under 28 U.S.C.A. § 2255, the Federal habeas corpus section of the Judicial Code, to have his conviction and sentence set aside and to discharge him from probation and the fine repaid to him.The asserted ground for the motion was that his sentence was void because (1)he did not plead to the indictment when he answered "non vult", and (2)he was not represented by counsel at the time of arraignment, and he lacked understanding of the charge against him at that time.In the alternative, he asked that he be permitted, in order to correct manifest injustice to him, to withdraw, under Rule 32(d) of the Federal Rules of Criminal Procedure, his plea of "nolo contendere" entered for him by the deputy clerk of court after his plea of "non vult", and to enter a plea of not guilty.He was given a hearing on the motion on December 10, 1962.The same United States District Judge, C. William Kraft, Jr., who presided at this hearing, also had presided at appellant's arraignment and passed sentence upon him.

Before the district court ruled on the motion, appellant's probationary sentence expired on June 16, 1963.The district court, on July 22, 1963, dismissed the motion as being moot.However, the court, deeming "it just to determine the factual and legal issues presented", also found against the appellant on the merits.220 F.Supp. 249(E.D.Pa.1963).Appellant has appealed from the judgment of dismissal.

The Government contends that appellant's claim became moot on June 16, 1963, because he was not, on and after that date, a "prisoner * * * in custody * * * in violation of the Constitution * * * of the United States" within the meaning of § 2255.Appellant was serving his probationary sentence at the time he filed his motion in the district court.Such restraint was sufficient "custody" to enable him to seek relief under § 2255.The remedy under that section is as broad as it is under habeas corpus.United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232(1952);Sanders v. United States, 373 U.S. 1, 13, 83 S.Ct. 1068, 10 L.Ed.2d 148(1963).And if the restraint of a state court imposed probationary sentence satisfies the jurisdictional requirement for bringing habeas corpus under 28 U.S.C.A. § 2241: Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285(1963), it satisfies that requirement for filing a motion under § 2255.But when appellant completed his sentence, his claim under that section became moot.Heflin v. United States, 358 U.S. 415, 418, 79 S.Ct. 451, 3 L.Ed.2d 407(1959), and opinion of Mr. Justice Stewart at 420, 79 S.Ct. at 454;Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963(1960).

It is not moot under Rule 32(d),Fed.Rules Crim.Proc.There is no longer any time limitation within which to file a motion under that rule.United States v. McNair, 18 F.R.D. 417(D.C. D.C.1955), aff'd per curiam, 98 U.S.App. D.C. 359, 235 F.2d 856, 857(1956).Also see concurring opinion in United States v. Gallagher, 183 F.2d 342, 347(C.A.3, 1950).And if we were to treat appellant's motion as having been a request for relief pursuant to 28 U.S.C.A. § 1651, the all-writs section of the Judicial Code, his claim would not be moot.United States v. Morgan, 346 U.S. 502, 505, 74 S.Ct. 247, 98 L.Ed. 248(1954);Pollard v. United States, 352 U.S. 354, 358, 77 S.Ct. 481, 1 L.Ed.2d 393(1957)."A case cannot be said to be moot when a conviction entails collateral legal disadvantages which survive the satisfaction of the sentence.Government of the Virgin Islands v. Ferrer, 275 F.2d 497, 499(3d Cir.1960)."United States v. Cariola, 323 F.2d 180, 182(C.A.3, 1963).Also seeUnited States ex rel. Bogish v. Tees, 211 F.2d 69, 72(C.A.3, 1954);Farnsworth v. United States, 98 U.S.App. D.C. 59, 232 F.2d 59, 62 A.L.R.2d 423(1956);Kyle v. United States, 288 F.2d 440(C.A.2, 1961);United States v. Garguilo, 324 F.2d 795(C.A.2, 1963);Note, Postrelease Remedies for Wrongful Conviction, 77 Harv.L.Rev. 1615(1961).Here he claims that his conviction and sentence will prevent him from legally voting in New York where he was living at the time he filed his motion.

The first clause of Rule 32(d) expressly provides that a motion for the withdrawal of a plea of guilty or nolo contendere may be made before sentence or the suspension of the imposition of sentence.Prior to that time the allowance of the withdrawal is within the discretion of the district court.Nagelberg v. United States, 377 U.S. 266, 84 S.Ct. 1252, 12 L.Ed.2d 290(1964);Lott v. United States, 367 U.S. 421, 426-427, 81 S.Ct. 1563, 6 L.Ed.2d 940(1961);United States v. Shneer, 194 F.2d 598(C.A.3, 1952);United States v. Lester, 247 F.2d 496(C.A.2, 1957);4 Barron on Fed. Pract. & Proc. (Rules ed.)§ 2264.The denial of the motion made prior to sentence is subject to review on appeal.United States v. Colonna, 142 F.2d 210(3 Cir.1944);Kadwell v. United States, 315 F.2d 667(C.A.9, 1963).And the district court may be directed to permit the defendant to change his plea.Dandridge v. United States, 356 U.S. 259, 78 S.Ct. 714, 2 L.Ed.2d 757(1958);Gearhart v. United States, 106 U.S.App.D.C. 270, 272 F.2d 499(1959);Kadwell v. United States, supra.The second clause of Rule 32(d) conditions the allowance of the withdrawal of a plea of guilty or nolo contendere after sentence upon a showing that manifest injustice will result unless the request is granted.Sullivan v. United States, 348 U.S. 170, 174, 75 S.Ct. 182, 99 L.Ed. 210(1954).The burden of showing that manifest injustice will result is on the defendant.United States v. Shneer, supra.The reason for the difference in treatment of the motion before and after sentence is succinctly set forth in Kadwell v. United States, supra, 315 F.2d at 670.The district court's ruling on such a motion is appealable, and an appellate court will reverse a refusal to allow the withdrawal only if it can say that manifest injustice would otherwise be done.³Roland v. United States, 318 F.2d 406(C.A.4, 1963);Gilinsky v. United States, 335 F.2d 914, 917(C.A.9, 1964).The good faith, credibility and weight of a defendant's assertions and those made on his behalf in support of a motion under Rule 32(d) are preeminently issues for the hearing court to decide.United States v. Nigro, 262 F.2d 783, 787(C.A.3, 1959).

At the arraignment on May 19, 1958, the deputy clerk of court asked appellant if he were represented by counsel, and his answer was that he was not.In response to questions put to him by Mr. Joseph J. Zapitz, an assistant United States Attorney, he said that he had been served with and had read a copy of the indictment.When he was asked if he understood the nature of the charges which had been preferred against him, he answered that he believed he did.Then when he was asked whether he was ready and willing to enter a plea to the charges, he responded by stating that he wished to enter a plea of "non vult".At this point the court inquired of him if he was aware that he was entitled to counsel.He replied that he was, but was not "financially able to make a case of this, and therefore I plead non vult."In response to further questioning by the court, he admitted that he was gainfully employed as a clerk for a selling firm⁴ at $66 a week,⁵ and had a very expensive hobby of composing music and writing songs.In response to the court's intimation that appellant might suspend his hobby long enough to pay for an attorney if he felt he needed one, he stated that he did not have the money and was $200 in debt.⁶The court then made the following explanation:

"If you feel that you need counsel — we don\'t want any plea entered on the apparent representation that inferentially you might not enter such a plea if you had counsel but that you can\'t afford counsel

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