United States v. Timmreck Petition and Briefs

    The Supreme Court 
of the United States

United States of America
versus

Charles Timmreck

Petition and Briefs

Law Reprints
Criminal Law Series
Volume 10, no. 35 
1978/1979 Term



Ktt lip? &upran? (Emtrf nf %> !§>tatpa
October Term, 1978

United States of A merica, petitioner

v.

Charles Timmreck

PETITION FOR A  W R IT OF CERTIORARI TO THE  
UN ITED  STATES COURT OF APPEALS FOR 

TH E SIX T H  CIRCUIT

W ade H. M cCree, Jr.
Solicitor General

Philip B. He y m a n n  
Assistant Attorney General

Ken n eth  S. Geller

Assistant to the Solicitor General

Jerome M. Feit 
Katherine W infree

Attorneys
Department of Justice 
Washington, D.C. 20530



I N D E X

Opinions below _____________________________  1
Jurisdiction_________________________________  2
Question presented__________________________  2
Statute and rule involved___________________  2
Statement____________________________________ 4
Reasons for granting the petition___________  9
Conclusion__________________________________  22
Appendix A  ________________________________  la
Appendix B ------------------------------------------------- 13a
Appendix C ________________________________  14a
Appendix D ________________________________  15a

CITATIONS
Cases:

Buchner v. United States, 517 F.2d 589.. 15,16,
20

Bell v. United States, 521 F.2d 713, cert.
denied, 424 U.S. 918 _________________  20

Blackledge v. Allison, 431 U.S. 63 _____  17
Bunker v. Wise, 550 F.2d 1155_________  19
Canady v. United States, 554 F.2d 203 _ 21
Cupp v. Naughten, 414 U.S. 141________ 12
Davis v. United States, 417 U.S. 333____  9,13
Del Vecchio v. United States, 556 F.2d

106 ------------------------------------------------- 14-15, 20
Evers v. United States, 579 F.2d 71____  20
Ferguson v. United States, 513 F.2d

1011 _________________________________  20
Fontaine v. United States, 411 U.S. 213 13

Page



II

Green v. United States, 365 U.S. 301___ 12
Halliday v. United States, 394 U.S. 831- 14
Henderson v. Kibbe, 431 U.S. 145_______ 11,17
Hill v. United States, 368 U.S. 424„__9,12,13,16 
Horsley v. United States, No. 77-2297 (3d

Cir. Aug. 28, 1978) __________________  19
Howard v. United States, 580 F.2d 716— 21
Johnson v. United States, 542 F.2d 941,

cert, denied, 430 U.S. 934 __________  21
Johnson v. Wainwright, 456 F.2d 1200— 16
Keel v. United States, 572 F.2d 1135, re­

hearing en banc granted, 572 F.2d
1137_________________________________  21

Machibroda v. United States, 368 U.S.
487 _____________________ -____________ 13

McCarthy v. United States, 394 U.S. 459- 8,10,
14

McRae v. United States, 540 F.2d 943,
cert, denied, 429 U.S. 1045 __________  20

Richardson v. United States, 577 F.2d 
447, petition for cert, pending, No. 78-
5263 _________________________________  14

Roberts v. United States, 491 F.2d 1236 19
Sanchez v. United States, 572 F.2d 210— 19
Sassoon v. United States, 561 F.2d 1154 21
Schriever v. United States, 553 F.2d

1152 _________________________________  20
Stone v. Powell, 428 U.S. 465 ---------------  13
Sunal v. Large, 332 U.S. 174 ---------------  12,13
United States v. Adams, 566 F.2d 962- 11
United States v. Barker, 514 F.2d 208,

cert, denied, 421 U.S. 1013----------------  18
United States v. Boone, 543 F.2d 1090 18
United States v. Clark, 574 F.2d 1357 17
United States v. Del Prete, 567 F.2d 928- 11

Cases— Continued Page



in

United States v. Eaton, 579 F.2d 1181— 20
United States v. Hamilton, 553 F.2d 63,

cert, denied, 434 U.S. 834 ___________  20
United States v. Hart, 566 F.2d 977____  18
United States v. Jones, 540 F.2d 465,

cert, denied, 429 U.S. 1101 __________  6
United States v. Journet, 544 F.2d 633 ___ 18
United States v. Kattou, 548 F.2d 760___ 20
United States v. Lambros, 544 F.2d 962,

cert, denied, 430 U.S. 930 ___________ 17
United States v. Ortiz, 545 F.2d 1122___ 20
United States v. Palter, 575 F.2d 1050__ 17
United States v. Rich, 518 F.2d 980, cert.

denied, 427 U.S. 907_________________  6
United States v. Richardson, 483 F.2d

5 1 6 __________________________________  20
United States v. Rivera-Marquez, 519 F.

2d 1227, cert, denied, 423 U.S. 949___ 6
United States v. Rodrigue, 545 F.2d 75____ 20
United States v. Scharf, 551 F.2d 1124,

cert, denied, 434 U.S. 824 ____________  17
United States v. Sobell, 314 F.2d 314,

cert, denied, 374 U.S. 857 ___________  17
United States v. Tursi, 576 F.2d 396___  19
United States v. Walden, 578 F.2d 966 __ 6
United States v. Watson, 548 F.2d 1058 21
United States v. White, 572 F.2d 1007- 20
United States v. Wolak, 510 F.2d 165__  8
United States v. Yazbeck, 524 F.2d 641 19
Van Hook v. United States, 365 U.S. 609 12
Yothers v. United States, 572 F.2d 1326 19

Cases— Continued Page



IV

Statutes and rules— Continued Page
Comprehensive Drug Abuse Prevention 

and Control Act of 1970, Pub. L. 91- 
513, 84 Stat. 1260 _____    6

21 U.S.C. 841 (a )(1 ) ______________  4
21 U.S.C. 8 4 1 (b )___________________ 6
21 U.S.C. 8 4 1 (c )_______________  6
21 U.S.C. 843(b) __________________  4
21 U.S.C. 846 ______________________  4

28 U.S.C. 2255 _________________________ passim
Federal Rules of Criminal Procedure:

Rule 11 ____________________________passim
Rule 1 1 (c )(1 ) ____________________  11
Rule 11(c) ( l ) - ( 5 )  ________________  18
Rule 32(a) ________________________  12
Rule 32(d) ________________________  17,21
Rule 52(a) ______________________ -  17

Miscellaneous:
1977 Annual Report of the Director of 

the Administrative Office of the United
States Courts ________________________  19

Bureau of Prisons Policy Statement 7500-
.43 (January 18, 1973) ----------------------  6

62 F.R.D. 271 (1974) __________________  11



3n %  ©curt at iht Itttte h States
October Term, 1978

No.

United States of A merica, petitioner

v.

Charles Timmreck

PETITION FOR A  W R IT OF CERTIORARI TO THE  
UN ITED  STATES COURT OF APPEALS FOR 

THE S IX T H  CIRCUIT

The Solicitor General, on behalf of the United 
States, petitions for a writ of certiorari to review 
the judgment of the United States Court of Appeals 
for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra, 
la-12a) is reported at 577 F.2d 372. The memo­
randum opinion of the district court (App. D, infra, 
15a-23a) is reported at 423 F. Supp. 537.

(1)

1



2

JURISDICTION

The judgment of the court of appeals (App. B, 
infra, 13a) was entered on June 12, 1978. A petition 
for rehearing was denied on August 7, 1978 (App. 
C, infra, 14a). On October 26, 1978, Mr. Justice 
Stewart extended the time within which to file a 
petition for a writ of certiorari to and including 
November 16, 1978. The jurisdiction of this Court 
is invoked under 28 U.S.C. 1254(1).

QUESTION PRESEN TED

Whether a defendant may obtain collateral relief 
from his conviction under 28 U.S.C. 2255 solely be­
cause the district court violated Rule 11 of the Fed­
eral Rules of Criminal Procedure in accepting his 
guilty plea.

STATU TE AN D  RULE INVOLVED

28 U.S.C. 2255 provides in pertinent part:

A prisoner in custody under sentence of a 
court established by Act of Congress claiming 
the right to be released upon the ground that 
the sentence was imposed in violation of the 
Constitution or laws of the United States, or 
that the court was without jurisdiction to impose 
such sentence, or that the sentence was in excess 
of the maximum authorized by law, or is other­
wise subject to collateral attack, may move the 
court which imposed the sentence to vacate, set 
aside or correct the sentence.

2



3

At the time of respondent’s guilty plea, Rule 11 of 
the Federal Rules of Criminal Procedures provided:

A defendant may plead not guilty, guilty, or, 
with the consent of the court, nolo contendere. 
The court may refuse to accept a plea of guilty, 
and shall not accept such plea or a plea of nolo 
contendere without first addressing the defend­
ant personally and determining that the plea is 
made voluntarily with understanding of the na­
ture of the charge and the consequence of the 
plea.

Rule 11 now provides in pertinent part:

Advice to Defendant. Before accepting a plea 
of guilty or nolo contendere, the court must ad­
dress the defendant personally in open court and 
inform him of, and determine that he under­
stands, the following:

(1) the nature of the charge to which the 
plea is offered, the mandatory minimum 
penalty provided by law, if any, and the 
maximum possible penalty provided by law; 
and

(2) if the defendant is not represented 
by an attorney, that he has the right to be 
represented by an attorney at every stage 
of the proceeding against him and, if neces­
sary, one will be appointed to represent him ; 
and

(3) that he has the right to plead not 
guilty or to persist in that plea if it has al­
ready been made, and he has the right to 
be tried by a jury and at that trial has the 
right to the assistance of counsel, the right

3



4

to confront and cross-examine witnesses 
against him, and the right not to be com­
pelled to incriminate himself; and

(4) that if he pleads guilty or nolo con­
tendere there will not be a further trial of 
any kind, so that by pleading guilty or nolo 
contendere he waives the right to a trial; 
and

(5) that if he pleads guilty or nolo con­
tendere, the court may ask him questions 
about the offense to which he has pleaded, 
and if he answers these questions under 
oath, on the record, and in the presence of 
counsel, his answers may later be used 
against him in a prosecution for perjury or 
false statement.

STA TE M EN T

1. A 19-count indictment filed in the United States 
District Court for the Eastern District of Michigan 
charged respondent and 21 co-defendants with con­
spiracy to manufacture and distribute, and to possess 
with intent to distribute, heroin, cocaine, LSD, and 
other controlled substances, in violation of 21 U.S.C. 
846, and with various substantive narcotics offenses, 
in violation of 21 U.S.C. 841(a) (1) and 843(b). On 
May 24, 1974, pursuant to a plea bargain whereby 
the remaining charges against him would be dis­
missed and the government would not prosecute him 
for a bail violation, respondent offered to plead guilty 
to the conspiracy count of the indictment.

At the outset of the guilty plea proceeding required 
by Rule 11 of the Federal Rules of Criminal Proce­

4.



5

dure, the prosecutor disclosed the existence and terms 
of the plea agreement (Tr. 2-3).1 The district court 
then questioned respondent and determined that he 
was not suffering from any physical or mental im­
pairment, that he was fully aware of what he was 
doing, and that he understood the constitutional 
rights that he would waive by pleading guilty (Tr. 
4-7). The court informed respondent that he could 
be sentenced to a maximum of 15 years’ imprison­
ment and a $25,000 fine if the plea were accepted,2 
but it failed to mention that respondent would also

1 “ Tr.”  refers to the transcript of the May 24, 1974, Rule 
11 proceeding. “ H .” refers to the transcript of the September 
8, 1976, hearing on respondent’s motion to vacate his guilty 
plea.

2 The pertinent colloquy was as follows (Tr. 7-8) :

THE CO U R T: Now, if I accept your plea of guilty,
Mr. Timmreck, do you know what the possible conse­
quences of a plea of guilty to Count I of this Indictment 
could be in terms of punishment ?

THE D E F E N D A N T : No, sir.
THE COURT: Have you been told that you could

serve as long as 15 years in jail and be subjected to a sub­
stantial fine, and I believe the fine is $25,000. Have you 
been told that?

THE D E F E N D A N T : I have now, yes.
THE COURT: Now you know?
THE D E F E N D A N T : Yes, sir.

*  *  *  *

THE COURT: And I want you to know that while
I don’t know what the sentence will be in your case, I 
want you to know what the outer limits might be.

R E SPO N D EN T: Yes, sir.
THE COURT: You understand that?
R ESPO N D EN T: Yes, sir.

5



6

be subject to a mandatory special parole term of at 
least three years.3

After the court outlined the nature of the charges, 
respondent explained his involvement in the conspir­
acy and confessed to his guilt (Tr. 9-14). Respond­
ent acknowledged that he had not been forced or 
threatened to plead guilty and that no promises had 
been made in exchange for the plea other than those 
contained in the plea bargain (Tr. 15). Respondent’s 
counsel advised the court that he was satisfied that 
there was a factual basis for the plea and that re­
spondent knew “ full well the consequences of a guilty 
plea * * *” (Tr. 15-16). The court then accepted

3 Section 401(b) of the Comprehensive Drug Abuse Pre­
vention and Control Act of 1970, Pub. L. 91-513, 84 Stat. 1260, 
21 U.S.C. 841(b ), provides that persons convicted of a viola­
tion of the Act be given a term of “special parole,” in addition 
to any other sentence imposed. The special parole term, which 
must be at least two, three, or four years in length (depending 
on the nature of the offense) and which may be as long as life 
(see, e.g., United, States V. Walden, 578 F.2d 966, 972 (3d Cir. 
1 9 7 8 ); United States V. Jones, 540 F.2d 465, 468 (10th Cir. 
1976), cert, denied, 429 U.S. 1101 (1977) ; United States V. 
Rivera-Marquez, 519 F.2d 1227, 1228-1229 (9th Cir.), cert, 
denied, 423 U.S. 949 (1975) ; United States v. Rich, 518 F.2d 
980, 987 (8th Cir. 1975), cert, denied, 427 U.S. 907 (1 9 7 6 )), 
“ is separate from and begins after the usual sentence ter­
minates, including any period of supervision. In the event an 
individual should violate during the period of supervision 
prior to the beginning of the SPT [Special Parole Term ], he 
will be returned as a violator of the basic period of super­
vision with the SPT still to follow unaffected.” Bureau of 
Prisons Policy Statement 7500.43 at 2 (January 18, 1973). If 
a defendant violates the conditions of special parole, he is re­
turned to prison to serve the entire special parole term, not 
merely the unexpired portion. 21 U.S.C. 841(c).

6



7

respondent’s plea of guilty, finding that the plea was 
entered voluntarily with a full understanding of its 
possible consequences and was supported by a factual 
basis (Tr. 16). Thereafter, on September 19, 1974, 
respondent was sentenced to 10 years’ imprisonment, 
to be followed by five years’ special parole, and a 
$5,000 fine.

2. Respondent did not appeal. Approximately two 
years after sentencing, on August 10, 1976, respond­
ent moved to vacate his sentence under 28 U.S.C. 
2255, alleging for the first time that the district court 
had violated Rule 11, Fed. R. Crim. P., by failing to 
inform him of the mandatory special parole term at 
the time his plea was entered. The motion did not 
assert that respondent had actually been unaware of 
the special parole provision or that, if he had been 
notified of it by the trial judge, he would not have 
pleaded guilty.

The district court held a hearing on respondent’s 
Section 2255 motion on September 8, 1976. At the 
hearing, respondent’s counsel stated that he could not 
recall whether he had discussed the special parole 
term with respondent prior to entry of his guilty 
plea (H. 6-7), but he did acknowledge that, before 
a client pleaded guilty, it was his practice to review 
with the client the possible sentence that could be 
imposed (H. 7). Counsel also admitted that he had 
represented to the court at the Rule 11 proceeding 
that respondent was fully aware of the consequences 
of his plea (H. 10).

7



8

The district court denied respondent’s motion to 
vacate sentence. Although it agreed that the record 
of the guilty plea proceeding did not reflect that re­
spondent had been told of the mandatory special pa­
role provisions (App. D, infra, 16a), the court con­
cluded that respondent had not been prejudiced by 
the omission and that he therefore was not entitled 
to collateral relief from his conviction. The court 
observed that respondent’s total sentence did not ex­
ceed the maximum sentence that he was informed he 
could receive as a result of his guilty plea (id. at 
18a). In addition, the court found that respondent’s 
plea had been voluntarily entered and that the tech­
nical defect had not resulted in any fundamental un­
fairness (id. at 22a & n.3).

3. The court of appeals reversed and remanded 
with instructions to vacate the sentence entered upon 
the guilty plea and to allow respondent to plead anew. 
Finding that the district court’s ruling was “ squarely 
contrary” to United States v. Wolak, 510 F.2d 165 
(6th Cir. 1975), the court of appeals held that the 
mandatory special parole term was a direct conse­
quence of a guilty plea, that the district court had 
therefore violated Rule 11 in failing to advise re­
spondent of that consequence of his plea, and that 
(relying on McCarthy v. United States, 394 U.S. 459 
(1969)) the proper remedy for such noncompliance 
was to allow respondent to withdraw the plea (App. 
A, infra, la-2a).

The court recognized (App. A, infra, 10a) that 
McCarthy involved a direct appeal from a conviction

8



9

entered upon a guilty plea and that this Court had 
subsequently remarked in Davis v. United States, 417 
U.S. 333 (1974), that the failure to comply with the 
formal requirements of a rule of criminal procedure 
does not warrant collateral relief absent a showing of 
“ ‘a fundamental defect which inherently results in a 
complete miscarriage of justice’ ”  (417 U.S. at 346, 
quoting Hill v. United States, 368 U.S. 424, 428 
(1962)). It further acknowledged that “ at first blush 
the Rule 11 violation at issue here did not seem to 
rise to the level” required to satisfy the Davis test 
(App. A, infra, 9a). The court resolved the conflict 
by holding that prejudice inheres in every failure to 
comply with Rule 11 and that such claims are there­
fore cognizable in a Section 2255 proceeding (id. at 
10a). The court concluded (id. at lO a-lla ; footnote 
omitted):

We reconcile McCarthy and Davis by holding 
that a Rule 11 violation is per se prejudicial and 
thus must be a “ fundamental defect which in­
herently results in a complete miscarriage of 
justice.”  We feel that any other reconciling of 
the two cases which emphasizes Davis over Mc­
Carthy should come only from the Supreme 
Court.

REASONS FOR GRANTING THE PETITION

The court of appeals’ holding that a defendant may 
collaterally attack his conviction, years after the 
entry of his guilty plea, merely because the district 
court failed to comply precisely with the requirements

9



10

of Rule 11 of the Federal Rules of Criminal Proce­
dure departs significantly from this Court’s construc­
tion of the scope of relief under the federal habeas 
corpus statute (28 U.S.C. 2255) and conflicts with 
the rulings of several other circuits. Moreover, the 
decision of the court below is of great practical im­
portance because of its broad implications for the 
finality of judgments in large numbers of federal 
criminal cases. Guilty pleas form the basis for the 
substantial majority of federal convictions, and Rule 
11 requires the district courts to comply with a series 
of procedures, many of which are unnecessary to a 
determination of voluntariness, prior to accepting 
such pleas. The court of appeals’ virtual elimination 
of the requirement that there be a showing of preju­
dice before a violation of Rule 11 may lead to col­
lateral relief will invite defendants to attack pleas 
that were knowingly and voluntarily entered, in the 
hope that reprosecution would be difficult or impossi­
ble.

1. In McCarthy v. United States, 394 U.S. 459, 
472 (1969), the Court held that “ a defendant whose 
plea has been accepted in violation of Rule 11 [of the 
Federal Rules of Criminal Procedure] should be af­
forded the opportunity to plead anew * * The 
court of appeals assumed that this ruling, announced 
in the context of a direct appeal, was equally appli­
cable to collateral review and that respondent would 
therefore be entitled to vacate his conviction under 
28 U.S.C. 2255 if the record of his guilty plea pro­
ceeding substantiated his contention that the district

10



11

court had violated Rule 11. Since the court below 
found that respondent had not been informed of the 
mandatory special parole term, which unquestionably 
is a “ consequence of the plea,”  4 it concluded that he 
must be afforded the opportunity to plead anew (App. 
A, infra, 4a).

This decision ignores the essential distinction be­
tween direct and collateral attacks upon a conviction. 
Because of the “ strong interest in preserving the 
finality of judgments,”  Henderson v. Kibbe, 431 U.S. 
145, 154 n.13 (1977),. the crucial question in a pro­

resp on d ent’s guilty plea was entered under the 1966 
version of Rule 11, which required the district court to deter­
mine that the defendant understood “the consequences of the 
plea.” Effective December 1,1975, Rule 11 (c) (1) was amended 
to require the court, before accepting a plea of guilty or nolo 
contendere, to inform the defendant on the record of “the 
mandatory minimum penalty provided by law, if any, and the 
maximum possible penalty provided by law * * This 
change was intended to eliminate confusion over what is a 
direct “ consequence” of a guilty plea. As the Advisory Com­
mittee remarked, “ [t]he objective is to insure that a de­
fendant knows what minimum sentence the judge must im­
pose and what maximum sentence the judge may impose. This 
information is usually readily ascertainable from the face of 
the statute defining the crime, and thus it is feasible for the 
judge to know specifically what to tell the defendant. Giving 
this advice tells a defendant the shortest mandatory sentences 
and also the longest possible sentences for the offense to which 
he is pleading guilty.” 62 F.R.D. 271, 279 (1974). Hence, 
we do not dispute that failure to notify a defendant pleading 
guilty to a controlled substance offense of the mandatory spe­
cial parole term would constitute a violation of the new Rule 
11. See United States V. Del Prete, 567 F.2d 928, 929 (9th 
Cir. 1978). But see United States v. Adams, 566 F.2d 962, 969 
(5th Cir. 1978).

11



12

ceeding under Section 2255 is not whether an error 
may have been committed, as would be the case on 
direct review, but whether the “ resulting conviction 
violates due process.”  Cupp v. Naughten, 414 U.S. 
141, 147 (1973). Thus, merely because the district 
court’s failure to comply with the requirements of 
Rule 11 might have permitted respondent to withdraw 
his plea if the defect had been raised on direct appeal, 
it does not follow that the same relief should be avail­
able on a motion to vacate sentence. The appropriate 
inquiry at that point concerns not whether “ errors 
of law [were] committed by the trial court” but 
whether the defendant’s confinement offends the Con­
stitution. Sunal v. Large, 332 U.S. 174, 179, 181-182 
(1947).

The Court emphasized this important distinction in 
Hill v. United States, 368 U.S. 424, 426 (1962), 
which presented the question “ whether a district 
court’s failure to afford a defendant an opportunity 
to make a statement at the time of sentencing fur- 
nishe[d], without more, grounds for a successful col­
lateral attack upon the judgment and sentence.”  Al­
though the right of allocution was expressly guaran­
teed to a defendant by Rule 32(a), Fed. R. Crim. P., 
and was deemed to be an ancient and valuable one 
(Green v. United States, 365 U.S. 301, 304 (1961)), 
and although a violation of Rule 32(a) necessitated 
reversal of the conviction if raised on direct appeal 
(Van Hook v. United States, 365 U.S. 609 (1961)), 
the Court denied relief under Section 2255, holding 
that “ collateral relief is not available when all that 
is shown is a failure to comply with the formal re­

12



quirements of the Rule.” 368 U.S. at 429. The Court 
explained (id. at 428):

The failure of a trial court to ask a defendant 
represented by an attorney whether he has any­
thing to say before sentence is imposed is not of 
itself an error of the character or magnitude 
cognizable under a writ of habeas corpus. It is 
an error which is neither jurisdictional nor con­
stitutional. It is not a fundamental defect which 
inherently results in a complete miscarriage of 
justice, nor an omission inconsistent with the 
rudimentary demands of fair procedure. It does 
not present “ exceptional circumstances where the 
need for the remedy afforded by the writ of 
habeas corpus is apparent.”  Bowen v. Johnston, 
306 U.S. 19, 27.

See also Davis v. United States, 417 U.S. 333, 346 
(1974); Stone v. Powell, 428 U.S. 465, 477 n.10 
(1976); Sunal v. Large, supra, 332 U.S. at 178-179.

By the same token, the district court’s failure to 
follow the formal requirements of Rule 11 should not 
entitle a defendant to relief on collateral attack un­
less he was prejudiced by the violation. Where, as 
here, the violation relates to the trial judge’s failure 
to notify the defendant of the mandatory special 
parole provisions, prejudice could be demonstrated by 
a showing that the defect in fact rendered the guilty 
plea involuntary (for example, if the defendant would 
not have pleaded guilty had he been aware of the 
special parole term )5 or that it would be manifestly

5 A  conviction entered upon an involuntary plea of guilty is 
subject to collateral attack. See Fontaine v. United States, 411 
U.S. 213 (1973) ; Machibroda V. United States, 368 U.S. 487 
(1962).

13

13



14

unfair, in light of the absence of an express warning 
about special parole, to hold him to his plea (for ex­
ample, if the sentence imposed, with the addition of 
the period of special parole, exceeded the maximum 
sentence that the defendant was told he could be 
given).6 See Del Vecchio v. United States, 556 F.2d

6 In that circumstance, of course, the appropriate remedy 
under Section 2255 may well be to reduce the defendant’s sen­
tence to comport with the information he received at the 
time of his plea. See Richardson v. United States, 577 F.2d 
447, 452 (8th Cir. 1978), petition for cert, pending, No. 78- 
5263.

Contrary to the court of appeals’ assumption (App. A, infra, 
9a), there is no tension between the standards for collateral 
relief articulated in Hill and Davis and the prophylactic rule 
announced in McCarthy for noncompliance with Rule 11. 
McCarthy, it bears repeating, was a direct appeal, and the 
Court emphasized that its decision was “based solely upon our 
construction of Rule 11 and our supervisory power over the 
lower courts,” rather than upon the Constitution (394 U.S. at 
464). Moreover, although the Court remarked that “prejudice 
inheres in a failure to comply with Rule 11” (id. at 471), it 
did not suggest that such prejudice— which was defined merely 
as “ depriv[ing] the defendant of the Rule’s procedural safe­
guards” (ibid.)— was of a magnitude that would entitle a 
defendant to habeas corpus relief. Indeed, strong evidence 
that the Court did not consider every plea entered in violation 
of Rule 11 to be fundamentally unfair is offered by its deci­
sion not to apply McCarthy retroactively (Halliday v. United 
States, 394 U.S. 831 (1969)) and by the distinction it care­
fully drew between the remedies available for a violation of 
the Rule and for an involuntary guilty plea (id. at 833) :

A  defendant whose plea has been accepted without full 
compliance with Rule 11 may still resort to appropriate 
post-conviction remedies to attack his plea’s voluntariness. 
Thus, if his plea was accepted prior to our decision in 
McCarthy, he is not without a remedy to correct constitu­
tional defects in his conviction.

14



15

106, 111 (2d Cir. 1977); Bachner v. United States, 
517 F.2d 589, 597 (7th Cir. 1975).

Respondent’s allegations satisfied neither of these 
tests. His motion to vacate sentence did not allege 
that he was actually unaware of the special parole 
provisions, much less that he would not have pleaded 
guilty if he had been fully informed of the conse­
quences of his plea,7 and the district court expressly 
found that the additional information would not have 
materially affected respondent’s decision to enter into 
the plea bargain (App. D, infra, 22a).8 Moreover, as

7 Although the memorandum of law submitted in support of 
respondent’s Section 2255 motion stated that “ [defendant did 
not know of the mandatory special parole term” (p. 4 ) , this 
allegation, unlike the contents of the motion, was not verified, 
and respondent did not offer to submit an affidavit to support 
the assertion. The allegation was suspect, in any event, in 
light of counsel’s representation at the Rule 11 proceeding that 
he had explained to respondent the consequences of his plea 
(Tr. 16). See also H. 7.

8 The district court remarked (H. 16) : “ I am sure that it 
would not have made one bit of difference to Mr. Timmreck if 
I had said to him in this case, ‘You will be subjected to a 
parole term of at least three years,’ as far as his guilty plea 
is concerned.” The court of appeals did not disturb this fact 
finding, which is amply supported by the record. As the Sev­
enth Circuit has observed:

Unlike ineligibility for parole, which ‘automatically 
trebles the mandatory period of incarceration which an 
accused would receive under normal circumstances,’ the 
mandatory parole term has no effect on that period of 
incarceration and does not ever become material unless 
the defendant violates the conditions of his parole. It 
would be unrealistic, we think, to assume that he would 
expect to do so and be influenced by that expectation at 
the time he is considering whether to plead guilty, as it

15



16

the district court noted {id. at 18a), respondent’s 
sentence of 10 years’ imprisonment and five years’ 
special parole was no greater— indeed, was materi­
ally less, for all practical purposes— than the 15 
years’ imprisonment that he was advised he could 
receive if he pleaded guilty.

2. In these circumstances, with no finding that the 
district court’s technical noncompliance with one as­
pect of Rule 11 rendered respondent’s plea either in­
voluntary or so unfair as to be “ a complete miscar­
riage of justice,”  there are substantial reasons why 
claims such as respondent’s should not be cognizable 
on collateral attack. To begin with, this is not a case 
in which “ the need for the remedy afforded by the 
writ of habeas corpus is apparent.” Hill v. United 
States, supra, 368 U.S. at 428. A trial judge’s fail­
ure to mention the mandatory special parole term 
during the Rule 11 proceeding normally will be im­
mediately apparent to the defendant upon imposition 
of sentence, especially if his ignorance of the special 
parole requirement truly played a meaningful role in 
his decision to plead guilty. When the period of spe­
cial parole is announced, the defendant should be 
instantly aware, if it is true, that he has been given

would be to assume that he would be influenced by other
contingencies he is not advised about.

Bachner V. United States, supra, 517 F.2d at 597 (citation 
omitted). See also id. at 598-599 (Stevens, J., concurring) ; 
Johnson V. Wainwright, 456 F.2d 1200, 1201 (5th Cir. 1972) 
(likelihood that district court’s mention of parole term would 
cause a defendant to change his decision to plead guilty “is so 
improbable as to be without legal significance” ).

16



17

a more severe sentence than he anticipated could be 
imposed. It is not unreasonable to hold that the 
remedy in that situation should be a timely motion 
to withdraw the plea under Fed. R. Crim. P. 32(d) 
or a direct appeal of the conviction.8

Furthermore, allowing a plea of guilty to be va­
cated years after it has been entered, for reasons un­
related to guilt, would provide incentives for defend­
ants to scour the record of their Rule 11 proceedings 
for any colorable instance of noncompliance with the 
rule and to delay a request for relief until a time 
when the government may be unable to disprove alle­
gations concerning distant events surrounding the 
plea or when a reprosecution on the underlying of­
fenses may be difficult or impossible. See Henderson 
v. Kibbe, supra, 431 U.S. at 154 n.13. United States 
v. Sobell, 314 F.2d 314, 324-325 (2d Cir.), cert, de­
nied, 374 U.S. 857 (1963). As the Court recently 
observed in Blaekledge v. Allison, 431 U.S. 63, 71 
(1977), “ [m]ore often than not a prisoner has every­
thing to gain and nothing to lose from filing a col­
lateral attack upon his guilty plea.”

Here, for example, it should have been obvious to 
respondent (and his counsel) at sentencing that the

9 Even on direct appeal, of course, it is arguable that the 
harmless error rule of Fed. R. Crim. P. 52(a) should be ap­
plied to inconsequential Rule 11 violations. See United States 
V. Scharf, 551 F.2d 1124, 1129-1130 (8th C ir.), cert, denied, 
434 U.S. 824 (1977) ; United States V. Lambros, 544 F.2d 
962, 966 (8th Cir. 1976), cert, denied, 430 U.S. 930 (1977). 
But see, e.g., United States V. Palter, 575 F.2d 1050 (2d Cir. 
1978) ; United States v. Clark, 574 F.2d 1357 (5th Cir. 1978).

17



18

trial judge had neglected to mention the special pa­
role requirement during the Rule 11 proceeding. Yet 
respondent’s unexplained delay of almost two years 
in raising his objection will, if the court of appeals’ 
decision is not overturned, require the government 
to reprosecute a complicated conspiracy case long- 
after the occurrence of the criminal conduct, a task 
made especially burdensome by the fact that respond­
ent’s plea allowed him to avoid trial with his co­
defendants. See United States v. Barker, 514 F.2d 
208, 222 (D.C. Cir. 1974) (en banc), cert, denied, 
421 U.S. 1013 (1975).10

These important concerns would be seriously un­
dermined if every violation of Rule 11, no matter 
how inconsequential, justified Section 2255 relief. In­
deed, the problem will be exacerbated by the 1975 
amendments to the rule, which expand substantially 
the range of subjects on which a trial judge must 
advise a defendant before accepting his guilty plea. 
See Fed. R. Crim. P. 11(c) ( l ) - ( 5 ) .11 More than 
80% of all federal criminal convictions follow pleas

10 Twenty-two defendants were indicted in this case; 11, in­
cluding respondent, pleaded guilty; five defendants were found 
guilty by a jury.

11 Courts have recently found Rule 11 violations, for exam­
ple, in the trial judge’s failure to address the defendant per­
sonally (United States V. Hart, 566 F.2d 977 (5th Cir. 1978)) 
or to advise the defendant “that if he pleads guilty * * * the 
court may ask him questions about the offense * * * and if he 
answers these questions under oath * * * his answers may 
later be used against him in a prosecution for perjury” 
(United States V. Journet, 544 F.2d 638 (2d Cir. 1976) ; see 
also United States V. Boone, 543 F.2d 1090 (4th Cir. 1976)).

18



19

of guilty,12 and minor deviations from Rule 11 are 
inevitable in a not insignificant percentage of these 
cases. The strong societal interest in the finality of 
judgments suggests that, unless a violation of the rule 
materially influenced the defendant’s decision to plead 
guilty, it should be raised on direct appeal or not at 
all.

3. As the court of appeals acknowledged (App. A. 
infra, 5a-7a), the circuits have disagreed sharply over 
the availability of Section 2255 relief for mere vio­
lations of Rule 11. Along with the Sixth Circuit, 
three courts— the First,13 Third,14 15 and Ninth Cir­
cuits 10— have held that a defendant who was not in­
formed of the mandatory special parole term at the

12 In fiscal year 1977, 35,335 of the 43,248 federal convic­
tions, or 81 .7% , followed pleas of guilty. In fiscal year 1976, 
the figures were 33,327 out of 40,975, or 81 .3% . Source: 
1977 Annual Report of the Director of the Administrative 
Office of the United States Courts, Table 38 at p. 143.

13 United States v. Yazbeck, 524 F.2d 641 (1st Cir. 1975). 
But cf. United States v. Tursi, 576 F.2d 396 (1st Cir. 1978), 
denying a motion to vacate a guilty plea entered under the 
1966 version of Rule 11 because the defendant had not been 
told that the plea would waive his privilege against self­
incrimination.

14 Roberts V. United States, 491 F.2d 1236 (3d Cir. 1974). 
In Horsley v. United States, No. 77-2297 (3d Cir. Aug. 28, 
1978), the court purported to adopt the Hill and Davis stand­
ard but held that the failure adequately to inform the defend­
ant of the nature of the charges against him was “ inherently 
prejudicial” (slip op. 8 ).

15 Bunker V. Wise, 550 F.2d 1155 (9th Cir. 1977). See also 
Yothers V. United States, 572 F.2d 1326 (9th Cir. 1978) ; 
Sanchez V. United States, 572 F.2d 210, 211 (9th Cir. 1977).

19



20

time of his guilty plea is entitled to attack his con­
viction collaterally, regardless of whether the error 
actually influenced his plea or otherwise rendered its 
continued validity inequitable.

On the other hand, five courts— the Second,16 
Fourth,17 Seventh,18 Eighth,19 and Tenth Circuits20 
— have denied collateral relief in identical circum­
stances, holding that technical violations of Rule 11 
may not be raised under Section 2255 and that the 
standard announced in Hill and Davis requires a 
case-by-case determination whether the failure to ad­
vise a defendant of the special parole requirement 
has resulted in a “ complete miscarriage of justice.”

16 Del Vecchio V. United States, 556 F.2d 106 (2d Cir. 1977). 
The court of appeals initially followed an automatic reversal 
rule in Ferguson V. United States, 513 F.2d 1011 (2d Cir. 
1975), but in Del Vecchio it reconsidered its position in light 
of Davis.

17 Bell v. United States, 521 F.2d 713 (4th Cir. 1975), cert, 
denied, 424 U.S. 918 (1976). See also United States V. White, 
572 F.2d 1007 (4th Cir. 1978).

18 Bachner V. United States, 517 F.2d 589 (7th Cir. 1975).

19 McRae V. United States, 540 F.2d 943 (8th Cir. 1976), 
cert, denied, 429 U.S. 1045 (1977). See also Schriever v. 
United States, 553 F.2d 1152 (8th Cir. 1977) ; United States 
V. Kattou, 548 F.2d 760 (8th Cir. 1977) ; United States v. 
Ortiz, 545 F.2d 1122 (8th Cir. 1976) ; United States v. Rodri­
gue, 545 F.2d 75 (8th Cir. 1976). Like the Second Circuit, the 
Eighth Circuit’s current view represents a change in position. 
See United States V. Richardson, 483 F.2d 516 (8th Cir. 1973).

20 United States v. Hamilton, 553 F.2d 63 (10th Cir.), cert, 
denied, 434 U.S. 834 (1977). See also United States v. Eaton, 
579 F.2d 1181 (10th Cir. 1978) ; Evers V. United States, 579 
F.2d 71 (10th Cir. 1978).

20



21

The Fifth Circuit also has rejected a collateral at­
tack by a defendant who was not advised of the 
mandatory special parole term (Johnson v. United 
States, 542 F.2d 941 (5th Cir. 1976), cert, denied, 
430 U.S. 934 (1977)), but it has subsequently ruled 
in cases not involving the special parole provisions 
that any failure to comply with the requirements of 
Rule 11, whether or not prejudicial, warrants Section 
2255 relief.21 Finally, the District of Columbia Cir­
cuit has noted the conflict among the circuits on this 
issue but has declined to side with either group, hold­
ing instead that all attempts to withdraw a guilty 
plea, no matter how long after conviction and regard­
less of the circumstances, must be brought under Fed. 
R. Crim. P. 32(d) and judged under that rule’s 
“manifest injustice”  standard, rather than under 
Section 2255. United States v. Watson, 548 F.2d 
1058 (D.C. Cir. 1977).

In sum, we agree with the following remark of 
the court of appeals (App. A, infra, 11a n .16 ):

Given the frequency with which this issue 
arises and the severe split among the circuits, 
hopefully the Supreme Court will resolve this 
issue in the near future. Every circuit * * * 
has expressed its position on this issue which is 
at the heart of the administration of the federal

21 See Keel V. United States, 572 F.2d 1135 (5th Cir.), re­
hearing en banc granted, 572 F.2d 1137 (1978) ; Coody v. 
United States, 570 F.2d 540 (5th Cir.), rehearing en banc 
granted, 576 F.2d 106 (1978). See also Howard v. United 
States, 580 F.2d 716 (5th Cir. 1978) ; Sassoon v. United States, 
561 F.2d 1154, 1160 (5th Cir. 1977) ; Canady v. United States, 
554 F.2d 203 (5th Cir. 1977).

21



22

drug laws in particular (the effect of 21 U.S.C. 
§ 841 (b) )  and all federal criminal laws in gen­
eral (the scope of § 2255 relief after Davis).

The Court should accept this invitation to resolve an 
important and disputed question of federal criminal 
law.

CONCLUSION

The petition for a writ of certiorari should be 
granted.

Respectfully submitted.

W ade H. M cCree, Jr.
Solicitor General

Philip B. Hey m an n
Assistant Attorney General

Ken n e th  S. Geller
Assistant to the Solicitor General

Jerome M. Feit 
Katherine W infree 

Attorneys
N ovember 1978

22



IN THE

Supreme Court of the United States
OCTOBER TERM 1978

No. 78-744

UNITED STATES OF AMERICA,
Petitioner,

v.

CHARLES TIMMRECK,
Respondent.

----- »-----

BRIEF OF RESPONDENT IN OPPOSITION TO 
PETITION FOR WRIT OF CERTIORARI

KENNETH M. MOGILL 
Attorney for Respondent 
1455 Centre Street 
Detroit, Michigan 48226 
(313) 962-7210

23





TABLE OF CONTENTS

Index to A u th orities.................................................................  i

Counter-Statement of the Q u e s tio n ................................. 2

Counter-Statement of the Case ..........................................  2

Reasons for Denying the W r i t ............................................  4

Condusion .................................................................................... 8

INDEX TO AUTHORITIES

Cases:

Bell v United States, 521 F2d 713 (4th Cir 1975) . . 6

McCarthy v United States, 394 US 459, 89 SCt 
1166, 22 LEd2d 418 (1969)............................................  5,6

Paige v United States, 443 F2d 781 (4th Cir 1971). 5

United States v Carper, 116 F Supp 817 (DDC  
1953) ......................................................................................  6

United States v Schebergen, 353 F Supp 932 (ED 
Mich 1 9 7 3 ) ........................................................................... 8

Yazbeck v United States, 524 F2d 641 (1st Cir 
1975) ....................................................................................... 6

Statutes and Court Rules:

F R Crim P 1 1 ...........................................................................  2

21 USC § 8 4 1 (b )......................................................................  2,4

21 USC § 846 ...........................................................................  2

28 USC § 2255 ....................................................................  2 ,5 ,7

Page

25



. . . S | :  - , v

: '• ' '  .

i v .
v'  '



IN THE

Supreme Court of the United States
OCTOBER TERM 1978

No. 78-744

UNITED STATES OF AMERICA, 
Petitioner,

v.

CHARLES TIMMRECK, 
Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO 
PETITION FOR WRIT OF CERTIORARI

For the reasons stated below, Respondent requests 
this Court to deny a writ of certiorari in this cause.

27



2

COUNTER-STATEMENT OF THE QUESTION

W here, at the time an accused offers a guilty plea, the 
trial judge fails personally to advise him on the record 
that a custodial sentence on the charge to which he is 
pleading guilty must include a special parole term of 
not less than three (3) years in addition to whatever 
custodial sentence defendant receives, the defendant 
has not been fully or accurately advised of the 
consequences of his plea, in violation of F R Crim P 11, 
and it is error to deny his motion, brought pursuant to 
28 USC § 2255, to vacate that plea.

COUNTER-STATEMENT OF THE CASE

1. O n May 24, 1974, Respondent Charles Timmreck 
p le d ' guilty in the United States District Court for the 
Eastern District of Michigan to conspiracy to distribute 
a controlled substance in violation of 21 USC § 846. On  
September 19, 1974, Mr. Timmreck was sentenced to ten 
(10) years imprisonment, a five thousand ($5,000.00) 
dollar committed fine and a special parole term of five 
(5) years.

On September 13, 1976, pursuant to the provisions of 
28 USC § 2255, Mr. Timmreck filed an Am ended Motion  
to Vacate Guilty Plea, alleging that his plea had been 
accepted in violation of F R Crim P 11 for the reason 
that the district judge had failed to advise him of the 
mandatory special parole provisions of 21 USC § 841(b) 
accompanying any prison sentence for violation of 21 
USC § 846. After hearing and oral argument, the district 
judge on December 3, 1976, entered an Opinion and 
Order denying Mr. Timmreck's motion. After timely

28



3

appeal, the United States Court of Appeals for the Sixth 
Circuit on June 12, 1978, reversed the judgment of the 
district court and remanded the cause with instructions 
to vacate the sentence entered upon the guilty plea and 
to allow Mr. Timmreck to plead anew.

2. At the time Respondent appeared in court to offer 
his guilty plea in this case, he was questioned by the 
district judge as to his understanding of certain of the 
rights he was waiving. The judge stressed that "w hat 
I want to get at and be sure of is that you fully 
understand what you are d oin g" (T-4).* He questioned 
Mr. Timmreck and his attorney as to Mr. Timmreck s 
understanding of his rights (T-6-7), and he asked Mr. 
Timmreck about his understanding of the possible 
punishm ent, as to which the follow ing colloquy  
occurred:

THE COURT: N ow , if I accept your plea of
guilty, Mr. Timmereck [sic], do you know what 
the possible consequences of a plea of guilty to 
Court 1 of this Indictment could be in terms of 
punishment?

THE DEFENDANT: N o , sir.

THE COURT: Have you been told that you could 
serve as long as 15 years in jail and be subjected to 
a substantial fine, and I believe the fine is $25,000. 
Have you been told that?

THE DEFENDANT: I have now, yes.

Page references preceded by 'T  refer to pages of the May 24, 
1974, guilty plea transcript; page references preceded by 'H' refer to 
pages of the September 8, 1976, hearing on Respondent's Motion to 
Vacate.

29



4

THE COURT: Now you know?

THE DEFENDANT: Yes, sir.

THE COURT: I want you to be thoroughly
advised as to that, because if you w ish, knowing 
now that it's possible that if I accept your plea of 
guilty, that that's what could happen in this 
case. (T -7-8)1 (emphasis added)

At the conclusion of the hearing, without mention 
of additional plea consequences in general or the 
mandatory special parole provisions of 21 USC § 841(b) 
in particular, the court accepted Mr. Timmreck's plea 
(T-16).

REASONS FOR DENYING THE WRIT

1. The standard applied by the Court of Appeals in 
this case is more likely than that proposed by the 
government to result in fair, uniform and readily 
administrable application of Rule 11.

1 Toward the end of the plea hearing, the court asked Mr. 
Timmreck's counsel whether he was of the opinion that Mr. 
Timmreck "knows full well the consequences of a guilty plea might 
be", to which counsel replied, "That's correct." (T-15-16). At the 
September 8, 1976, hearing on Respondent's Motion to Vacate the 
court asked counsel whether he had discussed with Mr. Timmreck 
the provisons of the special parole term. Although agreeing with the 
court that it was not a part of his custom not to explain to a client 
the sentencing implications of a guilty plea, counsel stated that he 
could not recollect whether he had expressly advised Mr. Timmreck 
of the special parole requirements involved here (H-3-8).

30



5

Because the vast majority of federal indictments are 
resolved by pleas of guilty, cf. McCarthy v United States, 
394 US 459, 463, 89 SCt 1166, 22 LEd2d 418, 424 (1969) 
at n 7, the "fairness and adequacy of the procedures on 
acceptance of pleas of guilty are of vital importance in 
according equal justice to a ll" accused persons. Notes of 
the Advisory Committee on 1966 Am endm ents to F R 
Crim P. Procedures which do not insure meticulous 
compliance with Rule 11 threaten the requirement of 
thorough, knowing voluntariness and consequently 
jeopardize the integrity of the adversary process itself.

Requiring a § 2255 petitioner to show prejudice is 
unsound. W hile a strict compliance standard may 
sometimes require the granting of relief in a case where 
a plea has been "tru ly " voluntary, it is the only way of 
insuring that relief is granted in all cases where it was 
not. Moreover, a strict compliance standard guards 
against unequal application of the more subjective 
standard urged by the government. As Judge Boreman 
noted for the Fourth Circuit in Paige v United States, 443 
F2d 781, 783 (4th Cir 1971):

. . . there is no way by which the effect of the 
court's m islea d in g  statem ent upon the 
voluntariness of Paige's guilty plea could be 
determined. Whether Paige would have elected 
to plead not guilty and put the government to 
proof of his guilt had he known the full 
consequences of pleading guilty to a second 
narcotics offense is a matter of pure speculation.

31



6

See also McCarthy, supra, 394 US at 465, 22 LEd2d at 
425; Yazbeck v United States, 524 F2d 641, 643-644 (1st 
Cir 1975); Bell v United States, 521 F2d 713, 716-717 (4th 
Cir 1975) (W idener, ]., concurring and dissenting).

Carrying the burden of showing prejudice would also 
be "a n  almost impossible task". United States v Carper, 
116 F Supp 817, 820 (DDC 1953) (re violation of F R 
Crim P 6(d)). Accused persons plead guilty for many 
reasons, some of them bizarre and irrational even to 
judges and counsel regularly involved in the criminal 
process. It is not unreasonable to assume that many 
d efendants calculate their likely  sentence as a 
percentage of their total exposure. In some cases, an 
accused would in fact have decided to proceed to trial if 
he or she had known the additional possible prison 
time faced for violation of special parole, and in most of 
those cases, the accused will be unable to establish that 
lack of knowledge of that additional exposure was a 
substantial circumstance in the decision to plead guilty.

In addition, then-District Judge, now-Circuit Judge 
Tamm, noted in Carper, supra, that a requirement of 
showing prejudice would also

undermine the purpose, effectiveness and value 
of the Criminal Rules by judicial legislation 
which, in effect, would be saying that the Rules 
do not mean what they clearly and unequivocally 
state. Id., 116 F Supp at 819.

It would also make more difficult the achievement of 
uniform federal criminal procedure. Id., 116 F Supp at 
821.

32



7

The test applied here should ultimately further rather 
than hinder the objective of finality and produce less 
rather than more litigation. By adhering to an objective 
standard, lower courts will be relieved of tim e- 
consuming hearings on the question of prejudice. 
Counsel for both parties will more readily be able to 
determine whether an asserted violation is meritorious. 
Where an objective test is applied, governm ent 
attorneys will also have an incentive to be fully 
attentive at guilty plea proceedings and to advise the 
court of any failures or omissions in the guilty plea 
record. Cf. United States v Timmreck, supra, 577 F2d at 
377.

At a m inim um , resolution of this question by this 
Court should be deferred until sufficient time has 
elapsed to determine which test has had a greater effect 
in producing uniform application of the Rules and in 
reducing the number of challenges to guilty pleas.

2. The factual record in this case is inadequate to 
provide this Court with an appropriate case for 
resolving the conflicts among the circuits. N o record 
was made below of the prejudice suffered by Mr. 
Timmreck as a result of the trial judge's failure to advise 
him of the mandatory special parole term. N o record 
was made below as to the reasons for the time lapse 
between the time of sentencing and the time of filing 
the § 2255 petition. N o record was made concerning the 
likelihood or unlikelihood that Mr. Timmreck would 
have withdrawn his plea of guilty had he been advised 
of the mandatory special parole term by the trial judge.

33



8

N o record was made concerning the government's 
present ability to proceed with reprosecution in this 
case.2

CONCLUSION

For all the reasons stated above, the writ should be 
denied.

Respectfully submitted,

I si Kenneth M . Mogill 
Attorney for Respondent 
1455 Centre Street 
Detroit, M ichigan 48226 
(313) 962-7210

Dated: Novem ber 27, 1978

2 The government did not claim below that its ability to proceed 
with reprosecution would be impaired if the plea were set aside.

Much of the government's evidence against Mr. Timmreck and his 
co-defendants was obtained as a result of court-approved electronic 
surveillance, cf. United States v Schebergen, 353 F Supp 932 (ED Mich 
1973) [Mr. Schebergen was the first-named defendant in this cause], 
and it is highly unlikely they would be unable to proceed if 
certiorari is denied or the decision of the Court of Appeals is 
affirmed.

34



Jn tlje Supreme (Hour! of ttje United States

O ctober T er m , 1978

No. 78-744

U n ited  S tates of A m e r ic a , petitioner

v.

C harles T im m r e c k

O N  P E T I T I O N  F O R  A  W R I T  O F  C E R T I O R A R I  T O  
T H E  U N I T E D  S T A T E S  C O U R T  O F  A P P E A L S  F O R  

T H E  S I X T H  C I R C U I T

REPLY MEMORANDUM FOR THE UNITED STATES

1. Respondent does not dispute that the courts of 
appeals have disagreed over the proper resolution of the 
issue presented in this case or that that issue is of 
substantial practical importance. Rather, he claims only 
that “[t]he factual record in this case is inadequate to 
provide this Court with an appropriate case for resolving 
the conflicts among the circuits” (Br. in Opp. 7). Contrary 
to this contention, however, the district court conducted a 
hearing on respondent’s motion to vacate sentence 
pursuant to 28 U.S.C. 2255 and expressly found that 
respondent’s guilty plea was voluntary, that he received 
the bargained-for term of imprisonment, and that he was 
not prejudiced by the court’s failure to inform him of the 
maximum special parole term at the time of the plea (H. 
16; Pet. App. 18a, 22a & n. 3). The court of appeals did 
not disturb these findings. Hence, there is no need for 
additional factual development before this Court may 
resolve the legal issue presented.

(1)
35



2

2. Subsequent to the filing of the petition in this case, 
the United States Court of Appeals for the Fifth Circuit 
concluded, contrary to the ruling of the court below, that 
noncompliance with the requirements of Rule 11 of the 
Federal Rules of Criminal Procedure does not 
automatically entitle a defendant to collateral relief from 
his guilty plea. In K e el v. U nited  States, No. 77-2019 
(Nov. 30, 1978), the defendant had been misinformed at 
the Rule 11 proceeding that he could be sentenced to 45 
years’, instead of 25 years’, imprisonment, but he actually 
received the 12-year prison sentence for which he had 
bargained. The district court denied Section 2255 relief, 
finding that the erroneous information had not prejudiced 
the defendant or affected the voluntariness of his plea, 
and the court of appeals affirmed.

The Fifth Circuit, sitting en banc, unanimously 
“rejected] the application of a p e r  se rule, which would 
permit the defendant to withdraw his plea merely because 
the district court had not literally complied with the 
requirements of Rule 11, Fed. R. Crim. P.” (slip op. 
1226). It held, consistent with the government’s position 
in this case, that “when a collateral attack is made on a 
guilty plea for failure of the district court to literally 
comply with * * * Rule 11, the defendant must show 
prejudice in order to qualify for § 2255 relief. In the 
absence of a fundamental defect which inherently results 
in the miscarriage of justice, or an omission inconsistent 
with the demands of fair procedure, relief cannot be 
given in a collateral attack on a guilty plea conviction 
based on failure of Rule 11 compliance when the plea was 
taken” (id. at 1226-1227). These principles are controlling 
here.1

'We are lodging 10 copies of the Keel opinion with the Clerk of this 
Court.

36



3

It is therefore respectfully submitted that the petition 
for a writ of certiorari should be granted.

W ade  H. M cC ree, Jr . 
S olicitor G eneral

D ecember 1978

37





Jtt %  f>ujrratt? GJmtrt nf %  Mnxttb States
October Term, 1978

United States of A merica, petitioner

v.

Charles Timmreck

O N  W R I T  O F  C E R T I O R A R I  TO T H E  U N I T E D  S T A T E S  
C O U R T  O F  A P P E A L S  F O R  T H E  S I X T H  C I R C U I T

BRIEF FOR THE UNITED STATES

W ade H. M cCree, Jr.
Solicitor General

P hilip B. He y m a n n
Assistant Attorney General

Ken n e th  S. Geller
Assistant to the Solicitor General

K atherine W infree
Attorney
Department of Justice 
Washington, D.C. 20530

39





I N D E X
Page

Opinions below ...................................................... 1

Jurisdiction ............................................................  1

Question presented................................................ 2

Statute and rule involved ...........    2
Statement ..............................................................  4

Summary of argument .......................................  9

Argument:
A  defendant is not entitled to collateral 
relief from his conviction under 28 U.S.C. 
2255 merely because the district court 
violated Rule 11 of the Federal Rules of 
Criminal Procedure in accepting his guilty
plea ................................................................  13

A. A failure to comply with the formal 
requirements of a Federal Rule of 
Criminal Procedure, without more, 
is not cognizable under 28 U.S.C.
2255 ........................................................  15

B. The Rule 11 violation in this case
does not entitle respondent to relief 
under 28 U.S.C. 2255 ..........................  25

Conclusion ..............................................................  38

CITATIONS
Cases :

Adams v. United States ex rel. McCann,
317 U.S. 269 .............   18

41



Cases— Continued
Bachner v. United States, 517 F.2d 589-— 23, 28,

30
Bell v. United States, 521 F.2d 713, cert.

denied, 424 U.S. 918 ............................... 30
Blackledge v. Allison, 431 U.S. 63— 13,16, 34, 36
Bowen v. Johnston, 306 U.S. 1 9 ................  12,15
Brown v. Allen, 344 U.S. 443 ..................  18
Bunker v. Wise, 550 F.2d 1155 ................  27
Cupp v. Naughten, 414 U.S. 141 .............. 23
Davis v. United States, 417 U.S. 333........ 9 ,11,

16, 19, 22, 25, 26
Del Vecchio v. United States, 556 F.2d

106 .................................... ............... 26, 27, 28, 35
Estep v. United States, 327 U.S. 114 ........ 20
Fay y. Noia, 372 U.S. 3 9 1 ........._10,16,18,19, 25
Fontaine v. United States, 411 U.S. 213,. 28
Frank v. Mangum, 237 U.S. 309 ..... ........ 17
Green v. United States, 365 U.S. 301.......  21
Holliday v. United States, 394 U.S. 831— 32, 36
Harris v. Nelson, 394 U.S. 286 ................ 34
Henderson v. Kibbe, 431 U.S. 145 ....... 14, 23, 25
Henderson v. Morgan, 426 U.S. 637.......... 28
Hill v. United States, 368 U.S. 424........9,11,15,

20, 21, 25, 34
Hitchcock v. United States, 580 F.2d 964.. 27
Horsley v. United States, 583 F.2d 670.... 26
House v. Mayo, 324 U.S. 4 2 ......................  18
Johnson v. Wainwright, 456 F.2d 1200— 30
Johnson v. Zerbst, 304 U.S. 458 .... .........  17,18
Kaufman v. United States, 394 U.S. 217.. 16,19 
Kearney, Ex parte, 20 U.S. (7 Wheat.)

38 ..........................................................  17
Keel v. United States, 585 F.2d 110 ____  26
Machibroda v. United States, 368 U.S.

487

Page

21,28



Ill

Marshall v. United States, 576 F.2d 160.. 27
McCarthy v. United States, 394 U.S. 459.. 8,13,

31, 32, 33
McNally v. Hill, 293 U.S. 131 ................ . 34
McRae v. United States, 540 F.2d 943,

cert, denied, 429 U.S. 1045 ....................  26
Mooney v. Holohan, 294 U.S. 103 ............ 18
Moore v. Dempsey, 261 U.S. 86 ................  18
Peyton v. Rowe, 391 U.S. 54 ....................  25
Price v. Johnston, 334 U.S. 266 ................  18
Richardson v. United States, 577 F.2d 447,

petition for cert, pending, No. 78-5263.. 28
Sanders v. United States, 373 U.S. 1 ...... 24
Schneckloth y. Bustamonte, 412 U.S. 218.. 24
Siehold, Ex parte, 100 U.S. 371 ................  17
Stone v. Powell, 428 U.S. 465 ........11,15,16,19,

23, 26, 35
Sunal v. Large, 332 U.S. 1 7 4 ..........11,12,15,16,

19, 20,21,26
United States v. Adams, 566 F.2d 962.....  14, 33
United States v. Barker, 514 F.2d 208,

cert, denied, 421 U.S. 1013....................  36
United States v. Boatright, 588 F.2d 471.. 33
United States v. Boone, 543 F.2d 1090.... 33-34 
United States v. Broussard, 582 F.2d 10, 

cert, denied, No. 78-915 (Feb. 26,
1979) ..........................................................  14

United States v. Del Prete, 567 F.2d 928.. 14
United States v. Hamilton, 553 F.2d 63,

cert, denied, 434 U.S. 834 ......................  26
United States v. Hayman, 342 U.S. 205.... 16,17 
United States v. Jones, 540 F.2d 465,

cert, denied, 429 U.S. 1101 .......................  5
United States v. Journet, 544 F.2d 633.... 34

Cases— Continued Page

43



United States v. Lambros, 544 F.2d 962,
cert, denied, 430 U.S. 930 ................. .. 33

United States v. MacCollom, 426 U.S.
317 ..............................................................  16

United States v. Michaelson, 552 F.2d
472 ..............................................................  34

United States v. Palter, 575 F.2d 1050.....  33
United States v. Rich, 518 F.2d 980, cert.

denied, 427 U.S. 907 ...............................  6
United States v. Rivera-Marquez, 519 

F.2d 1227, cert, denied, 423 U.S. 949—. 5-6
United States v. Scharf, 551 F.2d 1124,

cert, denied, 434 U.S. 824 ..............    33
United States v. Sheppard, 588 F.2d 917.. 28
United States v. Sobell, 314 F.2d 314,

cert, denied, 374 U.S. 857 ...................... 35
United States v. Turner, 572 F.2d 1284.... 30
United States v. Tursi, 576 F.2d 396 ......  27
United States v. Walden, 578 F.2d 966.... 5
United States v. Watson, 548 F.2d 1058.. 32
United States v. White, 572 F.2d 1007.... 26
United States v. Wolak, 510 F.2d 164....... 8
United States v. Yazbeck, 524 F.2d 641.... 27
Van Hook v. United States, 365 U.S.

609 .......- .....................................................  21
Von Moltke v. Gillies, 332 U.S. 708 ........ 18
Wainwright v. Sykes, 433 U.S. 72 ............  15-16
Waley v. Johnston, 316 U.S. 101..... 10,18, 25, 26
Walker v. Johnson, 312 U.S. 275 .............. 18
Watkins, Ex parte, 28 U.S. (3 Pet.) 193.. 10,17 
Watkins, Ex parte, 32 U.S. (7 Pet.)

568 .......       17
Yerger, Ex parte, 75 U.S. (8 Wall.) 85.... 17

IV

Cases— Continued Page

44



Statutes and rules: Page
Act of February 5, 1867, ch. 28, 14 Stat.

385 ............................................................... 18
Comprehensive Drug Abuse Prevention 

and Control Act of 1970, Pub. L. No.
91-513, 84 Stat. 1236, 21 U.S.C. 801 
et seq.:

21 U.S.C. 841(a) ( 1) ....... 4
21 U.S.C. 841(b) ....    5
21 U.S.C. 841(c) ...................... 6
21 U.S.C. 843(b) ......... 4
21 U.S.C. 846 ......................................  4

28 U.S.C. 2255 ............................................ Passim
Federal Rules of Criminal Procedure:

Rule 11 ...........--------------------------------Passim
Rule 11(c) .............................    3
Rule 11(c) (1) .....................................  3,13
Rule 11(c) (1 )-(5 )  ..........................3-4, 37
Rule 11(c) (5) .....................................  33
Rule 32(a) ............      21
Rule 32(d) ...........................................  34
Rule 52(a) ...........................................  33

Miscellaneous:
1977 Annual Report of the Director of 

the Administrative Office of the United
States Courts ............................................ 37

Bator, Finality in Criminal Law and Fed­
eral Habeas Corpus for State Prisoners,
76 Harv. L. Rev. 441 (1963) ................  16,23

P. Bator, P. Mishkin, D. Shapiro, & H. 
Wechsler, Hart & Wechsler’s The Fed­
eral Courts and the Federal System 
(2d ed. 1973) .........................................  45

V

45



VI

Miscellaneous— Continued Page
Bureau of Prisons Policy Statement

7500.43 (January 18, 1973) ................ 6
62 F.R.D. 271 (1974) ............................ . 14
Friendly, Is Innocence Irrelevant? Collat­

eral Attack on Criminal Judgments, 38
U. Chi. L. Rev. 142 (1970) .................17,23,36

Mayers, The Habeas Corpus Act of 1867:
The Supreme Court as Legal Historian,
33 U. Chi. L. Rev. 31 (1965) ..................  16

Note, Developments in the Law—Federal 
Habeas Corpus, 83 Harv. L. Rev. 1038
(1970) ........................................................ 16

Note, Rule 11 and Collateral Attack 
on Guilty Pleas, 86 Yale L. J. 1395
(1977) ..................................................   13

Oaks, Legal History in the High Court—  
Habeas Corpus, 64 Mich. L. Rev. 451 
(1966) ........................................................  16,17

46



Jftt tlti' dmtrt at %  Im trfr S tairs
October Term, 1978

No. 78-744

United States of A merica, petitioner

v.

Charles Timmreck

O N  W R I T  O F  C E R T I O R A R I  TO T H E  U N I T E D  S T A T E S  
C O U R T  O F  A P P E A L S  F O R  T H E  S I X T H  C I R C U I T

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la- 
12a) is reported at 577 F.2d 372. The memorandum 
opinion of the district court (Pet. App. 15a-23a) is 
reported at 423 F. Supp. 537.

JURISDICTION

The judgment of the court of appeals (Pet. App. 
13a) was entered on June 12, 1978. A petition for 
rehearing was denied on August 7, 1978 (Pet. App.

(1)

47



2

14a). On October 26, 1978, Mr. Justice Stewart ex­
tended the time within which to file a petition for a 
writ of certiorari to and including November 16, 
1978. The petition was filed on November 3, 1978, 
and was granted on January 8, 1979 (App. 27). The 
jurisdiction of this Court rests upon 28 U.S.C. 
1254(1).

QUESTION PRESENTED

Whether a defendant may obtain collateral relief 
from his conviction under 28 U.S.C. 2255 solely be­
cause the district court violated Rule 11 of the Federal 
Rules of Criminal Procedure in accepting his guilty 
plea.

STATUTE AND RULE INVOLVED

28 U.S.C. 2255 provides in pertinent part:

A prisoner in custody under sentence of a court 
established by Act of Congress claiming the right 
to be released upon the ground that the sentence 
was imposed in violation of the Constitution or 
laws of the United States, or that the Court was 
without jurisdiction to impose such sentence, or 
that the sentence was in excess of the maximum 
authorized by law, or is otherwise subject to col­
lateral attack, may move the court which imposed 
the sentence to vacate, set aside or correct the 
sentence.

At the time of respondent’s guilty plea, Rule 11 of 
the Federal Rules of Criminal Procedure provided:

A defendant may plead not guilty, guilty, or, 
with the consent of the court, nolo contendere. 
The court may refuse to accept a plea of guilty,

48



3

and shall not accept such plea or a plea of nolo 
contendere without first addressing the defendant 
personally and determining that the plea is made 
voluntarily with understanding of the nature of 
the charge and the consequence of the plea.

Rule 11(c) now provides:

Advice to Defendant. Before accepting a plea 
of guilty or nolo contendere, the court must ad­
dress the defendant personally in open court and 
inform him of, and determine that he under­
stands, the following:

( 1 ) the nature of the charge to which the 
plea is offered, the mandatory minimum 
penalty provided by law, if any, and the 
maximum possible penalty provided by law; 
and

(2 ) if the defendant is not represented by 
an attorney, that he has the right to be rep­
resented by an attorney at every stage of the 
proceeding against him and, if necessary, 
one will be appointed to represent him; and

(3) that he has the right to plead not 
guilty or to persist in that plea if it has 
already been made, and he has the right to 
be tried by a jury and at that trial has the 
right to the assistance of counsel, the right 
to confront and cross-examine witnesses 
against him, and the right not to be com­
pelled to incriminate himself; and

(4) that if he pleads guilty or nolo con­
tendere there will not be a further trial of 
any kind, so that by pleading guilty or nolo 
contendere he waives the right to a trial; 
and

49



4

(5) that if he pleads guilty or nolo con­
tendere, the court may ask him questions 
about the offense to which he has pleaded, 
and if he answers these questions under 
oath, on the record, and in the presence of 
counsel, his answers may later be used 
against him in a prosecution for perjury or 
false statement.

STATEMENT

1. A 19-count indictment filed on May 19, 1972, in 
the United States District Court for the Eastern Dis­
trict of Michigan charged respondent and 21 co­
defendants with conspiracy to manufacture and dis­
tribute, and to possess with intent to distribute, 
heroin, cocaine, LSD, and other controlled substances, 
in violation of 21 U.S.C. 846, and with various sub­
stantive narcotics offenses, in violation of 21 U.S.C. 
841(a) (1) and 843(b). On May 24, 1974, pursuant 
to a plea bargain whereby the remaining charges 
against him would be dismissed and the government 
would not prosecute him for a bail violation, respond­
ent offered to plead guilty to the conspiracy count of 
the indictment.

At the outset of the guilty plea proceeding required 
by Rule 11 of the Federal Rules of Criminal Pro­
cedure, the prosecutor disclosed the existence and 
terms of the plea agreement (App. 2 ). The district 
court then questioned respondent and determined that 
he was not suffering from any physical or mental 
impairment, that he was fully aware of what he was 
doing, and that he understood the constitutional rights

50



5

that he would waive by pleading guilty (App. 3-4). 
The court informed respondent that he could be sen­
tenced to a maximum of 15 years’ imprisonment and 
a $25,000 fine if the plea were accepted,1 but it failed 
to mention that respondent would also be subject to a 
mandatory special parole term of at least three years.2

1 The pertinent colloquy was as follows (App. 4-5) :

THE COURT: Now, if I accept your plea of guilty,
Mr. Timmreck, do you know what the possible conse­
quences of a plea of guilty to Count I of this Indictment 
could be in terms of imprisonment?

THE D E F E N D A N T : No, sir.
THE COURT: Have you been told that you could

serve as long as 15 years in jail and be subjected to a 
substantial fine, and I believe the fine is $25,000. Have 
you been told that?

THE D E F E N D A N T : I have now, yes.
THE COURT: Now you know?
THE D E F E N D A N T : Yes, sir.

* * * * *
THE CO U R T: And I want you to know that while I

don’t know what the sentence wfill be in your case, I want 
you to know what the outer limits might be.

THE D E F E N D A N T : Yes, sir.
THE COURT: You understand that?
THE D E F E N D A N T : Yes, sir.

Section 401 (b) of the Comprehensive Drug Abuse Preven­
tion and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1261, 
21 U.S.C. 841(b ), provides that persons convicted of a viola­
tion of the Act must be given a term of “special parole,” in 
addition to any other sentence imposed. The special parole 
term, which must be at least two, three, or four years in length 
(depending on the nature of the offense) and which may be 
as long as life (see, e.g., United, States v. Walden, 578 F.2d 
966, 972 (3d Cir. 1978) ; United States V. Jones, 540 F.2d 465, 
468 (10th Cir. 1976), cert, denied, 429 U.S. 1101 (1 977); 
United States V. Rivera-Marquez, 519 F.2d 1227, 1228-1229

51



6

After the court outlined the nature of the charges, 
respondent explained his involvement in the con- 
spiracy and confessed to his guilt (App. 6-8 ). Re­
spondent acknowledged that he had not been forced 
or threatened to plead guilty and that no promises had 
been made in exchange for the plea other than those 
contained in the plea bargain (App. 9). Respondent’s 
counsel advised the court that he was satisfied that 
there was a factual basis for the plea and that re­
spondent knew “ full well the consequences of a guilty 
plea * * *” (App. 9). The court then accepted re­
spondent’s plea of guilty, finding that the plea was 
entered voluntarily with a full understanding of its 
possible consequences and was supported by a factual 
basis (App. 9-10). Thereafter, on September 19, 
1974, respondent was sentenced to 10 years’ imprison­
ment, to be followed by five years’ special parole, and 
to a $5,000 fine.

2. Respondent did not appeal. Approximately two 
years after sentencing, on August 10, 1976, respond-

(9th Cir.), cert, denied, 423 U.S. 949 (1975) ; United States 
V. Rich, 518 F.2d 980, 987 (8th Cir. 1975), cert, denied, 427 
U.S. 907 (1 9 7 6 )), “ is separate from and begins after the 
usual sentence terminates, including any period of supervision. 
In the event an individual should violate during the period 
of supervision prior to the beginning of the SPT [Special 
Parole Term], he will be returned as a violator of the basic 
period of supervision with the SPT still to follow unaffected.” 
Bureau of Prisons Policy Statement 7500.43 at 2 (January 18, 
1973). I f a defendant violates the conditions of special parole, 
he may be returned to prison to serve the entire special 
parole term, not merely the unexpired portion. 21 U.S.C. 
841(c).

52



7

ent moved to vacate his sentence under 28 IJ.S.C. 
2255, alleging for the first time that the district court 
had violated Rule 11, Fed. R. Crim. P., by failing to 
inform him of the mandatory special parole term at 
the time his plea was entered. The motion did not 
assert that respondent had actually been unaware of 
the special parole provision or that, if he had been 
notified of it by the trial judge, he would not have 
pleaded guilty.3

The district court held a hearing on respondent’s 
Section 2255 motion on September 8, 1976.. At the 
hearing, respondent’s counsel stated that he could not 
recall whether he had discussed the special parole 
term with respondent prior to entry of his guilty 
plea (App. 20), but he did acknowledge that, before 
a client pleaded guilty, it was his practice to review 
with the client the possible sentences that could be 
imposed (App. 20-21). Counsel also admitted that he 
had represented to the court at the Rule 11 proceeding 
that respondent was fully aware of the consequences 
of his plea (App. 22-23).

The district court denied respondent’s motion to 
vacate sentence. Although it agreed that the record 
of the guilty plea proceeding did not reflect that re­
spondent had been told of the mandatory special 
parole provisions (Pet. App. 16a), the court con-

3 Respondent’s motion was initially filed as part of the 
criminal proceedings. On September 13, 1976, respondent 
filed an “Amended Motion to Vacate Guilty Plea,” bearing the 
civil number assigned to the case and designating himself as 
plaintiff and the United States as defendant (App. 11-13). 
The motion was otherwise unchanged.

53



8

eluded that respondent had not been prejudiced by the 
omission and that he therefore was not entitled to col­
lateral relief from his conviction. The court observed 
that respondent’s total sentence did not exceed the 
maximum sentence that he was informed he could re­
ceive as a result of his guilty plea (id. at 18a). In 
addition, the court found that respondent’s plea had 
been entered voluntarily and that the technical defect 
had not influenced the plea or resulted in any funda­
mental unfairness (id. at 22a). In making this de­
termination, the court expressly relied on defense 
counsel’ s assurance at the Rule 11 proceeding that he 
had advised respondent about the possible conse­
quences of his guilty plea and on the fact that two 
years had elapsed between respondent’s sentencing, 
when the Rule 11 violation should have been apparent 
to him and his attorney, and the filing of the Section 
2255 motion (id. at 22a n.3).

3. The court of appeals reversed and remanded 
with instructions to vacate the sentence entered upon 
the guilty plea and to allow respondent to plead anew. 
Finding that the district court’s ruling was “ squarely 
contrary” to United States v. Wolak, 510 F.2d 164 
( 6th Cir. 1975), the court of appeals held that the 
mandatory special parole term was a direct conse­
quence of a guilty plea, that the district court had 
therefore violated Rule 11 in failing to advise re­
spondent of that consequence of his plea, and that 
(relying on McCarthy v. United States, 394 U.S. 459 
(1969)) the proper remedy for such noncompliance

54



9

was to allow respondent to withdraw the plea (Pet. 
App. la-12a).

The court recognized (Pet. App. 10a) that Mc­
Carthy involved a direct appeal from a conviction 
entered upon a guilty plea and that this Court had 
subsequently remarked in Davis v. United States, 417 
U.S. 333 (1974), that the failure to comply with the 
formal requirements of a rule of criminal procedure 
does not warrant collateral relief absent a showing of 
“ ‘a fundamental defect which inherently results in a 
complete miscarriage of justice’ ” (417 U.S. at 346, 
quoting Hill v. United States, 368 U.S. 424, 428 
(1962)). It further acknowledged that “at first blush 
the Rule 11 violation at issue here does not seem to 
rise to the level” required to satisfy the Davis test 
(Pet. App. 9a). The court resolved the conflict by 
holding that prejudice inheres in every failure to 
comply with Rule 11 and that such claims are there­
fore cognizable in a Section 2255 proceeding (id. at 
10a).

SUMMARY OF ARGUMENT

A district court’s failure to observe the formal re­
quirements of Rule 11 of the Federal Rules of Crimi­
nal Procedure in accepting a defendant’s guilty plea 
is a defect cognizable only on direct appeal, not on 
collateral attack.

A. The writ of habeas corpus has traditionally 
been available to test the legality of confinement. At 
the time the Constitution was adopted, however, the 
writ could be used solely to verify the jurisdiction of

55



10

the sentencing court. Construing the habeas corpus 
provisions of the Judiciary Act of 1789 in Ex parte 
Watkins, 28 U.S. (3 Pet.) 193, 203 (1830), Chief 
Justice Marshall wrote that “ [a]n imprisonment un­
der a judgment cannot be unlawful, unless that judg­
ment be an absolute nullity; and it is not a nullity if 
the court has general jurisdiction of the subject, al­
though it should be erroneous.”

An expansion of the statutory language in 1867, 
together with emerging concepts of due process in 
criminal proceedings, eventually led the Court to dis­
card the concept of jurisdiction as the touchstone for 
access to federal post-conviction relief and to acknowl­
edge that such relief is available for claims of “ dis­
regard of the constitutional rights of the accused, 
and where the writ is the only effective means of 
preserving his rights.” Waley v. Johnston, 316 U.S. 
101, 104-105 (1942). As the Court remarked in Fay 
v. Noia, 372 U.S. 391, 409 (1963), “ [t]he course of 
decisions * * * makes plain that restraints contrary to 
our fundamental law, the Constitution, may be chal­
lenged on federal habeas corpus even though imposed 
pursuant to the conviction of a federal court of com­
petent jurisdiction.”

The present federal habeas corpus statute, 28 
U.S.C. 2255, allows a prisoner to assert not only con­
stitutional and jurisdictional claims, but also claims 
founded upon “ the laws of the United States.”  By 
contrast to the steady expansion of the substantive 
scope of the writ in regard to constitutional claims, 
however, “ there has been no change in the established

56



11

rule with respect to nonconstitutional claims” (Stone 
v. Powell, 428 U.S. 465, 477 n.10 (1976)), which is 
that “ the writ of habeas corpus is not designed for 
collateral review of errors committed by the trial 
court”  and “will not be allowed to do service for an 
appeal” (Sunal v. Large, 332 U.S. 174, 178, 179 
(1947)).

Hence, the Court has repeatedly emphasized that 
“ ‘collateral relief is not available when all that is 
shown is a failure to comply with the formal require­
ments’ of a rule of criminal procedure in the absence 
of any indication that the defendant was prejudiced 
by the asserted technical error.”  Absent a mistake of 
constitutional or jurisdictional dimensions, “ the ap­
propriate inquiry [is] whether the claimed error of 
law was ‘a fundamental defect which inherently re­
sults in a complete miscarriage of justice’ * * 
Davis v. United States, 417 U.S. 333, 346 (1974), 
quoting Hill v. United States, 368 U.S. 424, 428-429 
(1962).

B. Respondent’s Section 2255 motion, which is 
based solely upon a technical violation of Rule 11, 
does not raise the sort of claim cognizable on collateral 
attack. The failure to inform respondent of the 
special parole provisions at the time of his guilty plea 
did not implicate any constitutional rights or juris­
dictional defects and amounted to no more than a 
violation of a rule of criminal procedure. Moreover, 
it is not manifestly unjust to hold respondent to his 
plea. His motion to vacate sentence did not allege that 
he was actually unaware of the special parole pro-

57



12

visions, much less that he would not have pleaded 
guilty if he had been fully informed of this conse­
quence of his plea, and the district court expressly 
found that the additional information would not have 
materially affected respondent’s decision to enter into 
the plea bargain. In addition, respondent’s sentence, 
even with the inclusion of five years’ special parole, 
does not exceed the term of imprisonment that he was 
advised he could receive if he pleaded guilty.

Finally, respondent’s Section 2255 motion does not 
present “ exceptional circumstances where the need for 
the remedy afforded by the writ of habeas corpus is 
apparent.” Bowen v. Johnston, 306 U.S. 19, 27 
(1939). Since the trial judge’s failure to follow Rule 
11 should have been immediately apparent to respond­
ent and his counsel at sentencing, this is not a case 
where “ the facts relied on were dehors the record and 
therefore not open to consideration and review on 
appeal.” Sunal v. Large, supra, 332 U.S. at 177.

The strong societal interest in the finality of judg­
ments suggests that, in this situation, respondent 
should have challenged the Rule 11 error on direct 
appeal or not at all. Permitting a plea of guilty to be 
vacated years after it has been entered, for reasons 
unrelated to guilt, would provide incentives for de­
fendants to scour the record of their Rule 11 pro­
ceeding for any colorable instance of noncompliance 
with the rule and to delay a request for relief until 
a time when the government may be unable to dis­
prove allegations concerning distant events surround­
ing the plea or when a reprosecution on the underly-

58



13

ing offense may be difficult or impossible. As the 
Court recently observed in Blackledge v. Allison, 431 
U.S. 63, 71 (1977), “ [m]ore often than not a prisoner 
has everything to gain and nothing to lose from filing 
a collateral attack upon his guilty plea.”

ARGUM ENT

A D EFE N D A N T IS NOT EN TITLED TO COLLAT­
ERAL RELIEF FROM HIS CONVICTION UNDER 28 
U.S.C. 2255 M ER ELY BECAUSE THE DISTRICT  
COURT VIO LATED RULE 11 OF THE FEDERAL  
RULES OF CRIM INAL PROCEDURE IN ACCEPT­
ING HIS GU ILTY PLEA

In McCarthy v. United States, 394 U.S. 459, 472 
(1969), this Court held that “ a defendant whose plea 
has been accepted in violation of Rule 11 [of the 
Federal Rules of Criminal Procedure] should be af­
forded the opportunity to plead anew * * *.”  It is 
undisputed that, at the time he pleaded guilty, re­
spondent was not advised of the mandatory special 
parole term, which we acknowledge to be a “ conse­
quence of the plea.”  4 In reliance on McCarthy, the

4 Respondent’s guilty plea was entered under the 1966 ver­
sion of Rule 11, which required the district court to deter­
mine that the defendant understood “the consequences of 
the plea.” Effective December 1, 1975, Rule 1 1 (c )(1 )  was 
amended to require the court, before accepting a plea of 
guilty or nolo contendere, to inform the defendant on the rec­
ord of “the mandatory minimum penalty provided by law, if 
any, and the maximum possible penalty provided by law 
* * This change was intended to eliminate confusion 
over what is a direct “ consequence” of a guilty plea. See 
Note, Rule 11 and Collateral Attack on Guilty Pleas, 86 Yale 
L. J. 1395, 1397 n.9 (1977). As the Advisory Committee re-

59



14

court of appeals concluded that the omission entitled 
respondent to vacate his conviction under 28 U.S.C. 
2255 and to plead anew (Pet. App. 3a-4a).

The court of appeals’ decision ignores the essential 
distinction between direct and collateral attacks upon 
a conviction. The ruling in McCarthy was announced 
in the context of a direct appeal from a conviction 
entered after a guilty plea proceeding conducted in 
gross disregard of the requirements of Rule 11. Re­
spondent, by contrast, did not appeal his conviction. 
Instead, he raised the Rule 11 violation for the first 
time years later on a motion to vacate sentence pur­
suant to Section 2255, which permits a federal prison­
er to assert a claim that his confinement is “ in vio­
lation of the Constitution or the laws of the United 
States.” Because of the “ strong interest in preserving 
the finality of judgments” (Henderson v. Kibbe, 431 
U.S. 145, 154 n.13 (1977)), the crucial question in a

marked, “ [t]he objective is to insure that a defendant knows 
what minimum sentence the judge must impose and what 
maximum sentence the judge may impose. This information 
is usually readily ascertainable from the face of the statute 
defining the crime, and thus it is feasible for the judge to 
know specifically what to tell the defendant. Giving this ad­
vice tells a defendant the shortest mandatory sentence and 
also the longest possible sentence for the offense to which he 
is pleading guilty.” 62 F.R.D. 271, 279 (1974). Hence, we do 
not dispute that failure to notify a defendant pleading guilty 
to a controlled substance offense of the mandatory special 
parole term would constitute a violation of the new Rule 11. 
See United, States V. Del Prete, 567 F.2d 928, 929 (9th Cir. 
1978). But see United States v. Broussard, 582 F.2d 10, 12 
(5th Cir. 1978), cert, denied, No. 78-915 (Feb. 26, 1979); 
United States V. Adams, 566 F.2d 962, 969 (5th Cir. 1978).

60



15

proceeding under Section 2255 is not whether “ errors 
of law [were] committed by the trial court” but 
whether the defendant’s confinement offends the Con­
stitution (Sunalv. Large, 332 U.S. 174, 179, 181-182 
(1947)) or otherwise presents “ exceptional circum- 
tances where the need for the remedy afforded by the 
writ of habeas corpus is apparent.”  Bowen v. Johns­
ton, 306 U.S. 19, 27 (1939). Thus, merely because 
the district court’s failure to comply with the require­
ments of Rule 11 might have permitted respondent to 
withdraw his plea if the defect had been raised on 
direct appeal,5 it does not follow that the same relief 
should be available in a collateral attack on the con­
viction.

A. A Failure to Comply with the Formal Requirements 
of a Federal Rule of Criminal Procedure, Without 
More, Is Not Cognizable under 28 U.S.C. 2255

This Court has frequently had occasion to examine 
the common-law scope of the writ of habeas corpus 
and its historical development in England and the 
United States.6 See, e.g., Wainwright v. Sykes, 433

5 Although the Court need not reach the issue in this case, 
we question whether the technical Rule 11 defect involved 
here, which resulted in no prejudice to respondent, should 
require a court to set aside respondent’s guilty plea even on 
direct appeal. See page 33 note 19, infra.

6 As “the modern postconviction procedure available to fed­
eral prisoners” (Stone v. Powell, 428 U.S. 465, 479 (1 9 7 6 )), 
28 U.S.C. 2255 is intended to provide a remedy “ exactly com­
mensurate with that which had previously been available by 
habeas corpus” (Hill v. United States, 368 U.S. 424, 427

61



16

U.S. 72, 77-80 (1977); Stone v. Powell, 428 U.S. 465, 
474-482 (1976); Kaufman v. United States, 394 U.S. 
217, 221-224 (1969); Fay v. Nova, 372 U.S. 391, 399- 
415 (1963); United States v. Hayman, 342 U.S. 205, 
210-213 (1952). Although the appropriate scope of 
the writ in modern times has been the subject of some 
dispute both within the Court7 and among legal com­
mentators 8 and cannot easily be compressed into a 
rigid rule or set formula, it is apparent from even a 
brief review of the Court’s decisions that the reach of 
Section 2255 has never been thought to extend to 
claims such as that respondent has presented in this 
case.

1. At the time the Constitution was adopted, the 
rule at common law was that “ once a person had been 
convicted by a superior court of general jurisdiction, 
a court disposing of a habeas corpus petition could 
not go behind the conviction for any purpose other

(1962)) “and has been construed in accordance with that 
design” (Blackledge V. Allison, 431 U.S. 63, 74 n.4 (1 977)). 
See United States V. MacCollom, 426 U.S. 317, 322 (1976) ; 
Davis V. United States, 417 U.S. 333, 343-344 (1974).

7 See, e.g., Davis V. United States, supra, 417 U.S. at 350- 
368 (Rehnquist, J., dissenting) ; Fay V. Noia, supra, 372 U.S. 
at 448-476 (Harlan, J., dissenting) ; Sunal v. Large, supra, 
332 U.S. at 184-187 (Frankfurter, J., dissenting).

8 See, e.g., Oaks, Legal History in the High Court— Habeas 
Corpus, 64 Mich. L. Rev. 451 (1966) ; Bator, Finality in 
Criminal Law and Federal Habeas Corpus for State Prison­
ers, 76 Harv. L. Rev. 441 (1963) ; Mayers, The Habeas 
Corpus Act of 1867: The Supreme Court as Legal Historian, 
33 U. Chi. L. Rev. 31 (1965) ; Note, Developments in the 
Law— Federal Habeas Corpus, 83 Harv. L. Rev. 1038 (1970). 
See also P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, 
Hart & Wechsler’s The Federal Courts and the Federal Sys-

co tem, ch. X , at 1424-1538 (2d ed. 1973).
b &



17

than to certify the formal jurisdiction of the commit­
ting court,” Oaks, Legal History in the High Court—  
Habeas Corpus, 64 Mich. L. Rev. 451, 468 (1966). 
As the Court stated in United States v. Hayman, 
supra, 342 U.S. at 210-211:

Although the objective of the Great Writ long 
has been the liberation of those unlawfully im­
prisoned, at common law a judgment of convic­
tion rendered by a court of general criminal jur­
isdiction was conclusive proof that confinement 
was legal. Such a judgment prevented issuance 
of the writ without more.

The early decisions of this Court reflected a similar 
understanding. See Ex parte Kearney, 20 U.S. (7 
Wheat.) 38, 44-45 (1822); Ex parte Watkins, 28 
U.S. (3 Pet.) 193, 202-203 (1830); Ex parte Wat­
kins, 32 U.S. (7 Pet.) 568, 574 (1833); Ex parte 
Yerger, 75 U.S. (8 Wall.), 85, 101 (1868). See also 
Frank v. Mangum, 237 U.S. 309, 329-331 (1915).9

9 In Ex parte Siebold, 100 U.S. 371 (1879), the scope of 
habeas corpus was broadened to include claims that the de­
fendant had been convicted under an unconstitutional statute. 
However, the Court was careful, to use Judge Friendly’s 
phrase, “to kiss the jurisdictional book.” Friendly, Is Inno­
cence Irrelevant? Collateral Attack on Criminal Judgments, 
38 U. Chi. L. Rev. 142, 151 (1970). “ [ I ] f  the laws are un­
constitutional and void,” Justice Bradley wrote in Siebold, 
“the Circuit Court acquired no jurisdiction of the causes.” 
100 U.S. at 377. Indeed, as late as 1938 the Court felt the 
need to justify the grant of habeas corpus relief to a defend­
ant who had been convicted without the assistance of counsel 
by stating that “ compliance with [the Sixth Amendment’s] 
mandate is an essential jurisdictional prerequisite to a fed­
eral court’s authority to deprive an accused of his life or lib­
erty.” Johnson V. Zerbst, 304 U.S. 458, 467.

63



18

In 1867, Congress expanded the statutory language 
so as to make the writ available to state as well as 
federal prisoners. Act of February 5, 1867, ch. 28, 
14 Stat. 385. Under this statute, federal courts were 
authorized to grant relief in “ all cases where any per­
son may be restrained of his or her liberty in violation 
of the constitution, or of any treaty or law of the 
United States * * Although the limitation of fed­
eral habeas corpus to considerations of jurisdiction con­
tinued to persist for some time, the broadened lan­
guage of the 1867 statute, together with emerging 
concepts of due process, led the Court eventually to 
acknowledge that “ the use of the writ in the federal 
courts to test the constitutional validity of a convic­
tion for crime is not restricted to those cases where 
the judgment of conviction is void for want of juris­
diction of the trial court to render it. It extends also 
to those exceptional cases where the conviction has 
been in disregard of the constitutional rights of the 
accused, and where the writ is the only effective 
means of preserving his rights.” Waley v. Johnston, 
316 U.S. 101, 104-105 (1942). See Moore v. Demp­
sey, 261 U.S. 86 (1923); Mooney v. Holohan, 294 
U.S. 103 (1935); Johnson v. Zerbst, 304 U.S. 458 
(1938); Walker v. Johnson, 312 U.S. 275 (1941); 
Adams v. United States ex rel McCann, 317 U.S. 269 
(1942); House v. Mayo, 324 U.S. 42 (1945); Von 
Moltke v. Gillies, 332 U.S. 708 (1948); Price v. 
Johnston, 334 U.S. 266 (1948); Brown v. Allen, 344 
U.S. 443 (1953). The Court reviewed this back­
ground in Fay v. Noia, 372 U.S. 391 (1963), and

64



19

concluded that “ [t]he course of decisions * * * makes 
plain that restraints contrary to our fundamental 
law, the Constitution, may be challenged on federal 
habeas corpus even though imposed pursuant to the 
conviction of a federal court of competent jurisdic­
tion.” Id. at 409 (footnote omitted).

Section 2255, of course, allows a prisoner to assert 
not only constitutional and jurisdictional claims, but 
also claims founded upon “ the laws of the United 
States.” However, by contrast to the steady expan­
sion of the substantive scope of the writ in regard to 
constitutional claims, “ there has been no change in 
the established rule with respect to nonconstitutional 
claims” (Stone v. Powell, supra, 428 U.S. at 477 
n.10), which is that “ [t]he writ of habeas corpus
* * * ‘will not be allowed to do service for an appeal’ ” 
(ibid., quoting Sunal v. Large, supra, 332 U.S. at 
178). Because “ the writ is not designed for collateral 
review of errors of law committed by the trial court
* * *”  (Sunal v. Large, supra, 332 U.S. at 179), 
“ not * * * every asserted error of law can be raised 
on a § 2255 motion.” Davis v. United States, supra, 
417 U.S. at 346. In general, “ nonconstitutional claims 
that could have been raised on appeal, but were not, 
may not be asserted in collateral proceedings.” Stone 
v. Powell, supra, 428 U.S. at 477 n.10. See also Davis 
v. United States, supra, 417 U.S. at 345-346; Kauf­
man v. United States, supra, 394 U.S. at 223 n.7; 
Sunal v. Large, supra, 332 U.S. at 178-179.

In Sunal v. Large, supra, for example, two defend­
ants were found guilty of failing to submit to induc-

65



20

tion into the Army, but neither appealed his convic­
tion. Nine months later, this Court held in Estep v. 
United States, 327 U.S. 114 (1946), that the statu­
tory defense that the district court had barred the 
defendants from raising at trial should have been 
allowed. Defendants immediately sought relief under 
Section 2255, but the Court held that the error was 
correctable only by direct appeal, not on collateral 
attack.10 In denying habeas corpus relief, Justice 
Douglas observed for the Court (332 U.S. at 182):

Every error is potentially reversible error; and 
many rulings of the trial court spell the differ­
ence between conviction and acquittal. If de­
fendants who accept the judgment of conviction 
and do not appeal can later renew their attack 
on the judgment by habeas corpus, litigation in 
these criminal cases will be interminable. Wise 
judicial administration of the federal courts 
counsels against such course, at least where the 
error does not trench on any constitutional rights 
of defendants nor involve the jurisdiction of the 
trial court.

The Court reemphasized these important principles 
in Hill v. United States, 368 U.S. 424 (1962). There 
the question presented was “ whether a district court’s 
failure explicitly to afford a defendant an opportunity

10 Even the dissenting Justices in Sunal agreed that trial 
errors ordinarily would not fall within the scope of habeas 
corpus and that the writ should be reserved for instances in 
which it is necessary “to prevent a complete miscarriage of 
justice.” 332 U.S. at 187 (Frankfurter, J., dissenting) ; id. 
at 188 (Rutledge, J., dissenting).

66



21

to make a statement at the time of sentencing furnish- 
e[d], without more, grounds for a successful collateral 
attack upon the judgment and sentence.” Id. at 426 
(footnote omitted). Although the right of allocution 
was expressly guaranteed to a defendant by Rule 
32(a) of the Federal Rules of Criminal Procedure 
and was deemed to be an ancient and valuable one 
(Green v. United States, 365 U.S. 301, 304 (1961)), 
and although a violation of Rule 32(a) necessitated 
vacation of the sentence when raised on direct appeal 
( Van Hook v. United States, 365 U.S. 609 (1961)), 
the Court denied relief under Section 2255, holding 
that “ collateral relief is not available when all that is 
shown is a failure to comply with the formal require­
ments of the Rule.”  368 U.S. at 429 (footnote omitted). 
The Court explained (id. at 428):

The failure of a trial court to ask a defendant 
represented by an attorney whether he has any­
thing to say before sentence is imposed is not of 
itself an error of the character or magnitude 
cognizable under a writ of habeas corpus. It is 
an error which is neither jurisdictional nor con­
stitutional. It is not a fundamental defect which 
inherently results in a complete miscarriage of 
justice, nor an omission inconsistent with the 
rudimentary demands of fair procedure. It dees 
not present “ exceptional circumstances where the 
need for the remedy afforded by the writ of 
habeas corpus is apparent.” Bowen v. Johnston, 
306 U.S. 19, 27.

See also Machibroda v. United States, 368 U.S. 487, 
489 (1962).

67



22

This standard was applied most recently in Davis 
v. United States, supra, which involved a change in 
the substantive law applicable to the defendant’s case, 
rather than a procedural error. Although the Court 
expressly reaffirmed the traditional limitation on the 
scope of habeas corpus for nonconstitutional errors 
(417 U.S. at 346), it held that “ [tjhere can be no 
room for doubt that” the claim of an intervening 
change in law, under which the act for which the 
defendant had been convicted was no longer criminal, 
constitutes “ a circumstance [that] ‘inherently results 
in a complete miscarriage of justice’ and ‘present[s] 
exceptional circumstances’ that justify collateral re­
lief under § 2255.” Id. at 346-347.11

These decisions clearly indicate that while Section 
2255 encompasses claims of legal, as well as juris­
dictional and constitutional, error, the applicable 
standard is no less stringent than the notion of fair­
ness embodied in the Due Process Clause. Under the 
test articulated in Hill, a conviction entered on the 
basis of a procedural error sufficiently serious to be 
characterized as “a fundamental defect which in­
herently results in a complete miscarriage of justice” 
would approach or amount to a deprivation of due 
process and would justify habeas corpus relief. And

11 Davis distinguished Sunal on the grounds that the defend­
ants in Sunal had not appealed their convictions and that 
Sunal was not a case in which the law had changed after the 
time for appeal had expired. 417 U.S. at 345. As we discuss 
below (see pages 26, 33-36, infra), this case resembles Sunal 
on both scores.

68



23

Davis merely applied the same “ standard * * * to 
substantive matters not protected by the Constitu­
tion.” Bachner v. United States, 517 F.2d 589, 598- 
599 (7th Cir. 1975) (Stevens, J., concurring). At all 
events, the appropriate inquiry on collateral attack is 
not whether an error of law may have been com­
mitted, as would be the case on direct review, but 
whether the “ resulting conviction violates due proc­
ess.” Cupp v. Naughten, 414 U.S. 141, 147 (1973). 
See Henderson v. Kibbe, supra, 431 U.S. at 154.

3. The policy reasons that underlie the distinction 
in post-conviction remedies between constitutional and 
nonconstitutional claims are not difficult to perceive. 
Resort to the writ “ results in serious intrusions on 
values important to our system of government [in­
cluding] the most effective utilization of limited 
judicial resources [and] the necessity of finality in 
criminal trials * * *.”  Stone v. Powell, supra, 428 
U.S. at 491 n.31.12 While the consideration of finality 
of judgments has different force in civil and criminal 
contexts, it is in basic harmony with the goals of 
deterrence and rehabilitation embodied in the criminal 
justice system:

No effective judicial system can afford to con­
cede the continuing theoretical possibility that 
there is error in every trial and that every in­
carceration is unfounded. At some point the

12 See generally Friendly, Is Innocence Irrelevant ? Collat­
eral Attack on Criminal Judgments, supra, 38 U. Chi. L. Rev. 
at 146-151; Bator, Finality in Criminal Law and Federal 
Habeas Corpus for State Prisoners, supra, 76 Harv. L. Rev. 
at 444-453.

69



24

law must convey to those in custody that a wrong 
has been committed, that consequent punishment 
has been imposed, that one should no longer look 
back with the view to resurrecting every imagin­
able basis for further litigation but rather should 
look forward to rehabilitation and to becoming a 
constructive citizen.

Schneckloth v. Bustamonte, 412 U.S. 218, 262 (1973) 
(Powell, J., concurring). See Sanders v. United 
States, 373 U.S. 1, 24-25 (1963) (Harlan, J., dis­
senting) .

Habeas corpus proceedings also drain scarce com­
munity legal resources, including judges, prosecutors, 
appointed defense counsel and even courtrooms:

Those resources are limited but demand on 
them constantly increases. There is an insistent 
call on federal courts both in civil actions, many 
novel and complex, which affect intimately the 
lives of great numbers of people and in original 
criminal trials and appeals which deserve our 
most careful attention. To the extent the federal 
courts are required to re-examine claims on col­
lateral attack, they deprive primary litigants of 
their prompt availability and mature reflection. 
After all, the resources of our system are finite: 
their overextension jeopardizes the care and 
quality essential to fair adjudication.

Schneckloth v. Bustamonte, supra, 412 U.S. at 260- 
261 (Powell, J., concurring) (footnotes omitted). 
Finally, because collateral attack may be long delayed, 
it is frequently difficult to determine with reliability 
the factual issue giving rise to the attack. Cf. Rule

70



25

9 (a ), Rules Governing Section 2255 Proceedings, 28 
U.S.C. 2255. And although a successful attack gener­
ally entitles the defendant only to a retrial, a long de­
lay often makes another trial impossible because wit­
nesses may die, memories may fade, or evidence may 
be lost or released. See Peyton v. Rowe, 391 U.S. 54, 
62-63 (1968).

While society may be willing to incur these costs in 
order to correct errors of constitutional magnitude 
or to benefit a prisoner who has been “grievously 
wronged” (Fayv. Noia, supra, 372 U.S. at 441), where 
“ the writ is the only effective means of preserving his 
rights” ( Waley v. Johnston, supra, 316 U.S. at 104- 
105), the competing considerations outlined above 
surely dictate a contrary result in cases of nonconsti­
tutional violations, especially when those violations 
could have been challenged on direct appeal. In sum, 
“ ‘collateral relief is not available when all that is 
shown is a failure to comply with the formal require­
ments’ of a rule of criminal procedure in the absence 
of any indication that the defendant was prejudiced 
by the asserted technical error.” Davis v. United 
States, supra, 417 U.S. at 346, quoting Hill v. United 
States, supra, 368 U.S. at 429.

B. The Rule 11 Violation in This Case Does Not Entitle 
Respondent to Relief under 28 U.S.C. 2255

1. Viewed against the background of the scope of 
habeas corpus, it is apparent that respondent’s Section 
2255 motion, which was based solely on a technical 
violation of Rule 11 without any allegation or proof 
of prejudice, does not raise the sort of claim that may

71



26

be recognized on collateral attack. A claim of this 
nature does not relate to rights protected by the Con­
stitution, but rather is founded in the “ laws of the 
United States,” here, the procedures set forth in Rule 
11. See App. 11. Moreover, because “ [t]he error 
was of record,” it does not present “ a situation where 
the facts relied on were dehors the record and there­
fore not open to consideration and review on appeal.” 
Sunal v. Large, supra, 332 U.S. at 177. Compare 
Waley v. Johnston, supra, 316 U.S. at 104. Nor is 
this a case where “ the law was changed after the time 
for appeal had expired.” Sunal v. Large, supra, 332 
U.S. at 181. See Davis v. United States, supra, 417
U. S. at 346-347. Accordingly, respondent’s objection 
amounts to no more than a “ nonconstitutional claim 
that could have been raised on appeal, but [was] not,” 
and therefore “may not be asserted in collateral pro­
ceedings.”  Stone v. Powell, supra, 428 U.S. at 477 
n.10.13

13 This conclusion is supported by the decisions of six courts 
of appeals which, in reliance on Davis and Hill, have held that 
a defendant may not obtain Section 2255 relief merely be­
cause the district court violated Rule 11 in accepting his 
guilty plea. See, e.g., Keel V. United States, 585 F.2d 110 
(5th Cir. 1978) (en banc) ; United States v. White, 572 F.2d 
1007 (4th Cir. 1978) ; United States v. Hamilton, 553 F.2d 63 
(10th Cir.), cert, denied, 434 U.S. 834 (1977) ; Del Vecchio
V. United States, 556 F.2d 106 (2d Cir. 1977) ; McRae v. 
United States, 540 F.2d 943 (8th Cir. 1976), cert, denied, 429 
U.S. 1045 (1977) ; Bachner V. United States, 517 F.2d 589 
(7th Cir. 1975). Cf. Horsley V. United States, 583 F.2d 670 
(3d Cir. 1978) (adopting the Hill and Davis standard but 
holding that the failure adequately to inform a defendant of 
the nature of the charges against him, unlike a failure to

72



27

We do not suggest, of course, that contentions re­
lating to the taking of a guilty plea may never be 
asserted in a Section 2255 motion. A defect in the 
Rule 11 proceeding that is “ fundamental” and that 
“ inherently results in a complete miscarriage of 
justice” or presents “ exceptional circumstances where 
the need for the remedy afforded by the unit of habeas 
corpus is apparent” would justify collateral relief. 
For example, where, as here, the violation relates to 
the trial judge’s failure to notify the defendant of the 
mandatory special parole provisions, prejudice suf­
ficient to warrant habeas corpus relief would be 
demonstrated by a showing that the defect in fact 
rendered the plea involuntary (for example, if  the 
defendant would not have pleaded guilty had he been

mention the maximum possible punishment, is inherently 
prejudicial).

Although the First and Ninth Circuits have granted Sec­
tion 2255 relief in circumstances similar to this case (see 
United, States v. Yazbeck, 524 F.2d 641 (1st Cir. 1975) ; 
Bunker v. Wise, 550 F.2d 1155 (9th Cir. 1 9 7 7 )), neither court 
of appeals analyzed the issue in terms of the distinction be­
tween direct and collateral attack (see Del Vecchio v. United 
States, supra, 556 F.2d at 111 n .8), and subsequent decisions 
in each circuit strongly suggest that the courts might reach a 
contrary result if the issue were again presented. See United 
States v. Tursi, 576 F.2d 396, 399 (1st Cir. 1978) ; Marshall 
V. United States, 576 F.2d 160, 162 (9th Cir. 1978) ; Hitchcock 
V. United States, 580 F.2d 964, 966 (9th Cir. 1978). Thus, the 
Sixth Circuit is the only court of appeals to have acknowl­
edged the difference between a direct and collateral attack on 
a guilty plea, to have found that the defendant suffered no 
prejudice as a result of a Rule 11 violation, and then to have 
granted Section 2255 relief.

73



28

aware of the special parole term )14 or that it would be 
manifestly unfair, in light of the absence of an ex­
press warning about special parole, to hold him to his 
plea (for example, if the sentence imposed, with the 
addition of the period of special parole, exceeded the 
maximum sentence that the defendant was told he 
could receive).15 See Del Vecchio v. United States, 
supra, 556 F.2d at 111; Bachner v. United States, 
supra, 517 F.2d at 597.

Respondent’s allegations satisfied neither of these 
tests. His motion to vacate sentence did not allege 
that he was actually unaware of the special parole 
provisions, much less that he would not have pleaded 
guilty if he had been fully informed at the Rule 11 
proceedings of the consequences of his plea (see App. 
11-13). Although the memorandum of law submit­
ted in support of respondent’s Section 2255 motion 
stated that “ [djefendant did not know of the manda­
tory special parole term” (App. 16), this allegation, 
unlike the contents of the motion, was not verified, 
and respondent did not offer to submit an affidavit

14 A  conviction entered upon an involuntary plea of guilty 
is subject to collateral attack. See Henderson V. Morgan, 426 
U.S. 637, 645 (1976) ; Fontaine V. United States, 411 U.S. 213 
(1973) ; Machibroda V. United States, supra, 368 U.S. at 493.

15 In that circumstance, the proper remedy under Section 
2255 would be to reduce the defendant’s sentence to comport 
with the information he was given at the time of his plea. 
See Richardson V. United States, 577 F.2d 447, 452 (8th Cir. 
1978), petition for cert, pending, No. 78-5263. Cf. United 
States v. Sheppard, 588 F.2d 917, 918 (4th Cir. 1978). Sec­
tion 2255 allows a court, upon finding that “the sentence 
imposed was * * * open to collateral attack,” to “ correct the 
sentence as may appear appropriate.”

74



29

to support the assertion. The allegation was suspect, 
in any event, in light of counsel’s representation at 
the Rule 11 proceeding that he had explained to 
respondent the consequences of the plea (App. 9) 
and his acknowledgment at the hearing on respond­
ent’s motion to vacate sentence that, before a client 
pleaded guilty, it was his practice to explain to the 
client the possible sentences that could be imposed 
(App. 20-21).

The district court concluded that, “ under that state 
of affairs,”  it could “ infer that [the special parole 
term] was known to [respondent]”  at the time of 
his plea (App. 23). More important, the court ex­
pressly found that the additional information would 
not have materially affected respondent’s decision to 
enter into the plea agreement (Pet. App. 22a).“  
The court of appeals did not disturb this factual de­
termination, which is amply supported by the record. 
As the Seventh Circuit has observed:

Unlike ineligibility for parole, which “ auto­
matically trebles the mandatory period of in­
carceration which an accused would receive un­
der normal circumstances,” the mandatory parole 
term has no effect on that period of incarcera­
tion and does not ever become material unless 
the defendant violates the conditions of his parole. 16

16 The district court remarked (App. 26) : “ I am sure that 
it would not have made one bit of difference to Mr. Timmreck 
if I had said to him in this case, ‘You will be subjected to a 
parole term of at least three years,’ as far as his guilty plea 
is concerned. * * * And what he was interested in, I’m sure, 
was what the term in prison would be.”

75



80

It would be as unrealistic, we think, to assume 
that he would expect to do so and be influenced 
by that expectation at the time he is considering 
whether to plead guilty, as it would be to assume 
that he would be influenced by other contingencies 
he is not advised about.

Bachner v. United States, supra, 517 F.2d at 597 
(citation omitted). See also Johnson v. Wainwright, 
456 F.2d 1200, 1201 (5th Cir. 1972) (likelihood 
that district court’s mention of parole term would 
cause a defendant to change his decision to plead 
guilty “ is so improbable as to be without legal sig­
nificance” ). Finally, as the district court noted (Pet. 
App. 18a), respondent’s sentence of 10 years’ im­
prisonment and five years’ special parole was no 
greater— indeed, was materially less, for all practical 
purposes— than the term of 15 years’ imprisonment 
that he was advised he could receive if he pleaded 
guilty. See United States v. Turner, 572 F.2d 1284, 
1285 (8th Cir. 1978); Bell v. United States, 521 
F.2d 713, 715 (4th Cir. 1975), cert, denied, 424 U.S. 
918 (1976).

2. In these circumstances, with no finding that 
the district court’s technical noncompliance with one 
aspect of Rule 11 rendered respondent’s plea either 
involuntary or so unfair as to be “ a complete miscar­
riage of justice,” respondent was not entitled to re­
lief under Section 2255. Indeed, the court of appeals 
conceded that the violation at issue here could not 
satisfy the traditional standard for issuance of the 
writ of habeas corpus (Pet. App. 9a). Nonetheless,

76



31

in an attempt to reconcile what it viewed as “ some­
what contradictory language” in this Court’s deci­
sions restricting the scope of collateral attack for non­
constitutional errors in Davis and demanding strict 
adherence to the requirements of Rule 11 in Mc­
Carthy (ibid.), the court below concluded that “a 
Rule 11 violation is per se prejudicial and thus must 
be a ‘fundamental defect which inherently results in 
a complete miscarriage of justice’ ” (id. at lO a-lla ). 
Contrary to the court of appeals assumption, there 
is no tension between the standards for Section 2255 
relief articulated in Hill and Davis and the prophy­
lactic rule announced in McCarthy for noncompliance 
with Rule 11.

McCarthy, it bears repeating, arose on direct ap­
peal and involved a seriously defective guilty plea 
proceeding (conducted just two weeks after the effec­
tive date of the 1966 amendments to Rule 11) in 
which the trial judge, in disregard of the Rule, had 
not even ascertained whether the defendant under­
stood the charges against him. The “ automatic re­
versal” remedy adopted by the Court was designed 
in large part to ensure scrupulous adherence to the 
new rule, which worked major, salutary changes in 
the plea-taking process in the federal courts by re­
quiring personal interrogation of the defendant, on 
the record, about the voluntariness of and factual 
basis for his guilty plea.17 The Court emphasized,

17 The Court observed (394 U.S. at 465; footnote omitted) :

[T]he procedure embodied in Rule 11 * * * is designed to 
assist the district judge in making the constitutionally re­
quired determination that a defendant’s guilty plea is

77



32

however, that its decision was “based solely upon our 
construction of Rule 11 and * * * our supervisory pow­
er over the lower federal courts,”  rather than upon the 
Constitution. McCarthy v. United States, supra, 394 
U.S. at 464. See United States v. Watson, 548 F.2d 
1058, 1062 n.7 (D.C. Cir. 1977). Moreover, although 
the Court remarked that “prejudice inheres in a failure 
to comply with Rule 11” (394 U.S. at 471), it did not 
suggest that such prejudice— which was defined merely 
as “ depriving] the defendant of the Rule’s pro­
cedural safeguards” (ibid.)—was of a magnitude 
sufficient to warrant habeas corpus relief. Indeed, 
strong evidence that the Court did not consider every 
plea entered in violation of Rule 11 to be funda­
mentally unfair is supplied by its decision not to 
apply McCarthy retroactively because of “ the large 
number of constitutionally valid convictions that may 
have been obtained without full compliance with Rule 
11.”  Halliday v. United States, 394 U.S. 831, 833 
(1969).18

truly voluntary * * * [and] is intended to produce a com­
plete record at the time the plea is entered of the factors 
relevant to this voluntariness determination. Thus, the 
more meticulously the Rule is adhered to, the more it 
tends to discourage, or at least to enable more expeditious 
disposition of, the numerous and often frivolous post­
conviction attacks on the constitutional validity of guilty 
pleas.

18 In declining to hold McCarthy retroactive, the Court care­
fully drew a distinction between the remedies available for a 
violation of the Rule and for an involuntary guilty plea 
{Halliday v. United States, supra, 394 U.S. at 833) :

[A ] defendant whose plea has been accepted without full 
compliance with Rule 11 may still resort to appropriate

77 A



33

Hence, whatever the wisdom of continuing to re­
verse convictions on direct appeal, without a showing 
of prejudice, in order to encourage judges to comply 
precisely with the procedures outlined in Rule 11,"

post-conviction remedies to attack his plea’s voluntari­
ness. Thus, if his plea was accepted prior to our deci­
sion in McCarthy, he is not without a remedy to correct 
constitutional defects in his conviction.

19 Even on direct appeal, there is much to commend the 
view that the “automatic reversal” rule announced in Mc­
Carthy for every violation of Rule 11 has outlived its useful­
ness and that the harmless error rule of Fed. R. Crim. P. 
52(a) should be applied to inconsequential Rule 11 violations. 
See United States v. Scharf, 551 F.2d 1124, 1129-1130 (8th 
Cir.), cert, denied, 434 U.S. 824 (1 9 7 7 ); United States v. 
Lambros, 544 F.2d 962, 966 (8th Cir. 1976), cert, denied, 
430 U.S. 930 (1977). But see, e.g., United States v. Palter, 
575 F.2d 1050 (2d Cir. 1978) ; United States v. Adams, supra, 
566 F.2d at 964-965. Trial judges are now aware of their 
obligations under Rule 11, and reversals because of what are 
at most isolated and inadvertent errors in accepting a guilty 
plea no longer serve a substantial didactic function. What is 
more, the 1975 amendments to Rule 11 have added substan­
tial baggage to a rule that previously had been limited to a 
few considerations essential to the establishment of a know­
ing and intelligent plea. Rule 1 1 (c ) (5 ) , for example, now 
requires the court to inform a defendant “that if he pleads 
guilty * * * the court may ask him questions about the of­
fense * * *, and if he answers these questions under oath * * *, 
his answers may later be used against him in a prosecu­
tion for perjury * * *.” The Court certainly did not have this 
type of requirement in mind when it stated in McCarthy that 
‘ prejudice inheres in a failure to comply with Rule 11” (394 
U.S. at 471), yet the lower courts have not hesitated to set 
aside convictions in reliance on McCarthy because of noncom­
pliance with this portion of the rule. See United States v 
Boatright, 588 F.2d 471 (5th Cir. 1979) ; United States v!

77 B



34

violations of the Rule do not present a circumstance 
in which “the need for the remedy afforded by the 
writ of habeas corpus is apparent.”  Hill v. United 
States, supra, 368 U.S. at 428. A  trial judge’s fail­
ure to mention the mandatory special parole term 
during the Rule 11 proceeding normally will be im­
mediately obvious to the defendant upon imposition 
of sentence, especially if his ignorance of the special 
parole requirement truly played a meaningful role in 
his decision to plead guilty. When the period of 
special parole is announced, the defendant (if  his 
later allegations are in fact true) should be instantly 
aware that he has been given a more severe sentence 
than he anticipated could be imposed. It is not un­
reasonable to hold that the remedy in that situation 
should be a timely motion to withdraw the plea under 
Fed. R. Crim. P. 32(d) or a direct appeal of the 
conviction.

Finally, even if the court of appeals’ holding were 
not wholly inconsistent with the traditional limita­
tions on the scope of collateral attack,20 it would be

Boone, 543 F.2d 1090, 1092 (4th Cir. 1976). See also United 
States v. Michaelson, 552 F.2d 472, 477 (2d Cir. 1977) ; 
United States v. Journet, 544 F.2d 633, 636-637 (2d Cir. 
1976).

20 The court’s conclusion that Section 2255 relief is neces­
sary to “ motivate strict compliance with Rule 11 in the fu­
ture” (Pet. App. 12a) detaches the writ of habeas corpus 
from its historical moorings. The sole function of the writ is 
to test “the legality of the detention of one in the custody of 
another” (McNally v. Hill, 293 U.S. 131, 136 (1934) ; see also 
Blackledge v. Allison, supra, 431 U.S. at 72 ; Harris V. Nelson, 
394 U.S. 286, 290-291 (1 9 6 9 )), not to establish prophylactic

78



35

unwise to extend the “automatic reversal” rule of 
McCarthy to Section 2255 proceedings, where the 
benefit of allowing review of Rule 11 errors “ is 
small in relation to the costs.”  Stone v. Powell, supra, 
428 U.S. at 493. Permitting a plea of guilty to be 
vacated years after it has been entered, for reasons 
unrelated to guilt, would provide incentives for de­
fendants to scour the record of their Rule 11 pro­
ceedings for any colorable instance of noncompliance 
with the rule and to delay a request for relief until 
a time when the government may be unable to dis­
prove allegations concerning distant events surround­
ing the plea or when a reprosecution on the under­
lying offense may be difficult or impossible. See 
Henderson v. Kibbe, supra, 431 U.S. at 154 n.13; 
Del Vecchio v. United States, supra, 556 F.2d at 109; 
United States v. Sobell, 314 F.2d 314, 324-325 (2d 
Cir.), cert, denied, 374 U.S. 857 (1963).21 The gov­
ernment’s inability to retry a defendant who has ob­
tained collateral relief (see page 25, supra) is even 
more likely to occur when the first conviction was 
based on a guilty plea, because of the lack of a trial

rules for the sound administration of the criminal law. A  
defendant, such as respondent, whose guilty plea was not in­
fluenced in any way by the district court’s technical noncom­
pliance with a rule of criminal procedure can hardly be said 
to be detained unlawfully.

21 The court of appeals frankly acknowledged that “ our de­
cision ‘erodes the principle of finality in criminal cases and 
may allow an obviously guilty defendant to go free’ ” (Pet. 
App. 11a, quoting Del Vecchio v. United States, supra, 556 
F.2d at 109).

79



36

transcript. See Friendly, Is Innocence Irrelevant? 
Collateral Attack on Criminal Judgments, supra, 38 
U. Chi. L. Rev. at 147. In sum, as the Court re­
cently observed in Blackledge v. Allison, 431 U.S. 63, 
71 (1977), “ [m]ore often than not a prisoner has 
everything to gain and nothing to lose from filing a 
collateral attack upon his guilty plea.”

Here, for example, it should have been obvious to 
respondent (and his counsel) at sentencing that the 
trial judge had neglected to mention the special parole 
requirement during the Rule 11 proceeding. Yet re­
spondent’s unexplained delay of almost two years in 
raising his objection will, if the court of appeals’ 
decision is not overturned, require the government to 
reprosecute a complicated conspiracy case long after 
the occurrence of the criminal conduct, a task made 
especially burdensome by the fact that respondent’s 
plea allowed him to avoid trial with his co-defendants. 
See United States v. Barker, 514 F.2d 208, 222 (D.C. 
Cir.) (en banc), cert, denied, 421 U.S. 1013 (1975).22

These important concerns would be seriously under­
mined if every violation of Rule 11, no matter how 
inconsequential, justified Section 2255 relief.23 In-

22 Twenty-two defendants were indicted in this case; 11, 
including respondent, pleaded guilty; five defendants were 
found guilty by a jury.

23 The same concerns prompted the Court not to apply 
McCarthy retroactively, even to Rule 11 errors presented on 
direct appeal. See Halliday v. United States, supra, 394 U.S. 
at 833.

80



37

deed, as we have already noted (see page 33, note 19, 
supra), the problem will be exacerbated by the 1975 
amendments to the Rule, which expand substantially 
the range of subjects on which a trial judge must 
advise a defendant before accepting his guilty plea. 
See Fed. R. Crim. P. 11(c) (1 ) - (5 ) .  More than 80% 
of all federal criminal convictions follow pleas of 
guilty,24 and minor deviations from Rule 11 are in­
evitable in a not insignificant number of these cases. 
The strong societal interest in the finality of judg­
ments suggests that, unless a violation of the Rule 
materially influenced the defendant’s decision to plead 
guilty or would otherwise lead to “ a complete mis­
carriage of justice,” the technical error should be 
raised on direct appeal or not at all.

_ 24 In .fiscal year 1977, 35,335 of the 43,248 federal convic­
tions, or 81 .7% , followed pleas of guilty. In fiscal year 1976, 
the figures were 33,327 out of 40,975, or 81 .3% . Source: 1977 
Annual Report of the Director of the Administrative Office 
of the United States Courts, Table 38, at p. 143.

81



38

CONCLUSION

The judgment of the court of appeals should be 
reversed.

Respectfully submitted.

F e b r u a r y  1979

W a d e  H .  M c C r e e , J r .

Solicitor General

P h i l i p  B .  H e y m a n n

Assistant Attorney General

K e n n e t h  S. G e l l e r

Assistant to the Solicitor General

K a t h e r i n e  W i n f r e e  
Attorney

82



IN THE

SUPREME COURT 
OF THE UNITED STATES

OCTOBER TERM 1978 

#78-744

U nited States of A merica, 
Petitioner,

-vs-
C harles T immreck,

Respondent.

ON WRIT OF CERTIORARI 
TO THE UNITED STATES 
COURT OF APPEALS FOR 

THE SIXTH CIRCUIT

BRIEF OF RESPONDENT

Kenneth M. Mogill 
1455 Centre Street 
Detroit, Michigan 48226 
(313) 962-7210 
Attorney for Respondent

Research Assistant: 
Marian Kromkowski

83



f t ' '  f t : V f t f t f t  -  f t f t - f t f t . : f t

-< fe .

• f t  -'•' f t  "  . :



Page
C O U N T E R -S T A T E M E N T  OF T H E  Q U ESTIO N  . . . .  1

C O U N T E R -S T A T E M E N T  OF T H E  C A S E .....................  2

S U M M A R Y  OF A R G U M E N T  ............................................... 4

A R G U M E N T ....................................................................................  6

C O N C L U SIO N  ................................................................................ 18

I

TABLE OF CONTENTS

85



II

Cases: Page
Bell v United States, 521 F2d 713 (4th Cir 1975).................. 13

Blackledge v Allison, 431 US 63, 97 SCt 1621, 52 LEd2d 136 
(1977)........................................................................................................... 14

Bostic v United States, 298 F 2d 678 (DC Cir 1961)......... 14

Brady v United States, 397 US 742, 90 SCt 1463, 25 LEd2d 
747 (1969)................................................................................................ 9

Brown v Alien, 344 US 443,73 SCt 397, 97 LEd 469 (1953). 14 

Banker v Wise, 550 F2d 1155 (9th Cir 1977) .....................9, 11

Davis v United States, 417 US 333, 94 SCt 2298, 41 LEd2d 
109 (1974).......................................................................... 7, 10, 11, 12

Harris v United States, 297 F2d 491 (8th Cir 1961) ......... 11

Hill v United States, 368 US 524, 82 SCt 468, 7 LEd2d 417 
(1962)...........................................................................................7, II, 12

Hitchcock v United States, 580 F2d 964 (9th Cir 1978) . . 10 

Horsley v United States, 583 F2d 670 (3d Cir 1978) . .10, 15 

Jackson v United States, 179 F2d 842 (7th Cir 1950) . . . .  11

Kyle v United States, 402 F2d 443 (5th Cir 1 9 6 8 ) .............. 11

Marshall v United States, 576 F2d 160 (9th Cir 1978) . . .  10

McCarthy v United States, 394 US 459, 89 SCt 1166, 22 
LEd2d 418 (1969)................ ! ..............................................8, 10, 12

Paige v United States, 443 F2d 781 (4th Cir 1971) . . .1 2 ,  16

Price v Johnston, 334 US 266, 78 SCt 1049, 92 LEd 1356 
(1948)............................................................................................................. 7

Sunal v Large, 332 US 174, 67 SCt 1588, 91 LEd 1982
(1947) ...............................................................................................  7, 15

United States v Atkinson, 297 US 157, 56 SCt 391, 80 LEd 
555 (1936)................................................................................................... 11

United States v Carper, 116 FSupp 817 (DDC1953) .......... 13

United States v Myers, 451 F2d 402 (9th Cir 1972).............. 9

United States v Ortiz, 545 F2d 1122 (8th Cir 1976)............ 12

United States v Rea, 532 F2d 147 (9th Cir 1976)....................9

TABLE OF AUTHORITIES

86



Ill

Page

United States v Schebergen, 353 FSupp 932 (ED Mich 1973) 17

United States v Smith, 440 F2d 521 (7th Cir 1 9 7 1 )............. 16

United States v Tarsi, 576 F2d 396 (1st Cir 1 9 7 8 )................10

United States v Yazbeck, 527 F2d 641 (1st Cir 1975) .11,  12

United States ex rel. Baker v Finkbeiner, 551 F2d 180 (7th 
Cir 1977).................................................................................................... 9

Statutes:
21 USC §841

21 USC §846

28 USC §2254

28 USC §2255

Articles and Books:
1978 Annual Report o f the Director o f  the Administrative 

Office o f  the United States C ourts ..................................... 8, 16

N o te , “ D evelop m en ts in the L aw — Federal Habeas  
Corpus,”  83 Harv L Rev 1038 (1970) .............................. 7, 15

N ote, “ Parole: A  Critique of Its Legal Foundations and 
Conditions,”  38 N Y U  L Rev 702 (1963)................................. 9

Notes of the Advisory Committee on 1966 Amendments to F 
R Crim P ..................................................................................................  8

President’s Commission on Law Enforcement and Justice, 
Task Force Report: Corrections (1967) ...................................  9

TABLE OF AUTHORITIES—Cont’d

..............3, 9

.2, 3, 10, 16

.................. 14

. . . .passim

Miscellaneous:
F R Crim P 6 . 

F R Crim P 11 

F R Crim P 32 

F R Crim P 52 

HR 6723 ...........

..............13

.. passim 
8, 13, 14

..........11

..............13 87





1

COUNTER-STATEM ENT OF THE QUESTION

Where the facts underlying a 28 USC §2255 motion to 
vacate indicate that at the time Respondent offered his guilty 
plea: (1) he indicated to the trial judge a lack of knowledge of 
the possible consequences of his plea; (2) the trial judge 
advised Respondent he “ could serve as long as 15 years in 
jail but, in violation of F R Crim P 11, failed to advise him 
that a custodial sentence on the offense to which he was 
pleading guilty must also include a special parole term of not 
less than three years in addition to whatever custodial 
sentence was imposed; and (3) because of the nature of the 
special parole term, the sentence imposed of ten years 
imprisonment and five years special parole actually  
subjected Respondent to potential combined prison and 
parole custody of virtually twenty years; where no other 
remedy is available; and where there has been no claim that: 
(1) Respondent would, in fact, have continued with his guilty 
plea had he been fully advised of its consequences; (2) 
Respondent, who was not advised of his right to appeal at 
the time of sentencing, deliberately bypassed his right to 
appeal; (3) the interval between the time of sentencing and 
the fding of the motion to vacate was for purposes of delay; 
or (4) the government’ s ability to prosecute anew has been in 
any way affected by that interval. Respondent is properly 
entitled to §2255 relief.

89



2

COUNTER-STATEMENT OF THE CASE
1. On May 24, 1974, Respondent Charles Timmreck pled 

guilty in the United States District Court for the Eastern 
District of Michigan to conspiracy to distribute a controlled 
substance in violation o f 21 U SC  §846. A t the time 
Respondent offered his guilty plea, he was questioned by the 
district judge as to his understanding of certain of the rights 
he was waiving. The judge stressed that “ what I want to get 
at and be sure of is that you fully understand what you are 
doing”  (A-3). He questioned Respondent and his counsel as 
to Respondent’ s understanding of his rights (A -4), and he 
asked Respondent about his understanding of the possible 
punishment involved. Respondent replied that he was not 
aware of the possible consequences of his plea:

T H E  C O U R T: N ow , if I accept your plea of guilty, 
Mr. Timmereck [sic], do you know what the possible 
consequences of a plea of guilty to Count 1 of this 
Indictment could be in terms of punishment?

T H E  D E F E N D A N T : No, sir.

T H E  C O U R T : Have you been told that you could 
serve as long as 15 years in jail and be subjected to a 
substantial fine, and I believe the fine is $25,000. 
Have you been told that?

T H E  D E F E N D A N T : I have now, yes.

T H E  C O U R T : Now you know?

T H E  D E F E N D A N T : Yes, sir.

(A-4-5) (emphasis added)

At no time during the hearing did the court advise 
Respondent that a custodial sentence for the offense to 
which he was pleading would also require a mandatory 
special parole term of at least three (3) years or up to life or 
that violation of the special parole term at any point during 
the term could result in imprisonment for the entire term of

90



3

the special parole and not just the unexpired portion. A t the 
conclusion of the hearing, the court accepted Respondent’s 
plea (A-9-10).

2. On September 19, 1974, Respondent was sentenced to 
ten (10) years imprisonment, a five thousand ($5,000.00) 
dollar committed fine and a special parole term of five (5) 
years. A t the time of sentencing, Respondent was not 
advised of his right to appeal.

3. On September 13, 1976, pursuant to the provisions of 
28 USC §2255, Mr. Timmreck filed an Amended Motion to 
Vacate Guilty Plea, alleging that his plea had been accepted 
in violation of F R Crim P 11 for the reason that the district 
judge had failed to advise him of the mandatory special 
parole provisions of 21 USC §841(b) accompanying any 
prison sentence for violation of 21 USC §846. Although the 
government opposed Respondent’ s Motion, it made no claim 
that Respondent would have continued with his plea had he 
been fully advised of its consequences, that Respondent 
deliberately bypassed his right to appeal, that the interval 
between the time o f sentencing and the time of filing the 
motion was for purposes of delay, or that the government's 
ability to prosecute anew was in any way affected by the 
interval.

After hearing and oral argument, on December 3, 1976, 
the district judge entered an Opinion and Order denying 
Respondent’ s motion. 423 F Supp 537.

On June 12, 1978, the Court of Appeals for the Sixth 
Circuit reversed the judgment of the district court and 
remanded the cause with instructions to vacate the sentence 
entered upon the guilty plea and allow Respondent to plead 
anew. 577 F2d 372.

On January 8, 1979, this Court granted certiorari.
US , SCt , 59 LEd2d 30.

This is the Brief of Respondent.

91



4

SUMMARY OF ARGUMENT
28 USC §2255, “ the judicial method of lifting undue 

restraints upon personal liberty,”  exists to provide a flexible 
means of providing substantive justice for persons held in 
federal custody in violation of the Constitution or laws of the 
United States. In the absence of harmless error or deliberate 
bypass of the right to appeal, its availability is not reduced 
by the non-constitutional basis of a claim for relief.

Because of the extent to which the federal system relies 
on guilty pleas to conclude criminal prosecutions, 
maintenance of the principles underlying the adversary 
system requires that the system’ s interest in finality of 
judgments be secondary to insuring the availability of relief 
for persons prejudiced by errors at their guilty plea hearings. 
While §2255 relief is only appropriate where the error 
involved is a fundamental defect, a non-harmless violation of 
F R Crim P 11 is such a defect, entitling a §2255 petitioner to 
relief.

Requiring a §2255 petitioner to show particular prejudice 
before relief will be granted would impose an almost 
impossible burden and would involve the district courts in 
subjective, highly speculative and time-consuming litigation 
unlikely to produce effective or uniform enforcement of Rule 
11.

As o f fiscal 1978, §2255 motions constituted only 1.4% of 
the civil caseload of the district courts, the number of such 
motions filed increasing only 5 .6%  over the past four years. 
During the same period, the total number of civil cases filed 
increased 34%.

Respondent, who at the time of offering his plea advised 
the district judge of his unawareness of the consequences of 
his plea, was in fact prejudiced by the district judge’ s failure 
to advise him concerning the mandatory special parole term. 
The sentence imposed subjected Respondent to a potentially 
greater term o f total custody than he was advised. 
Respondent was not advised of his right to appeal, there has

92



5

been no claim of deliberate bypass of the right to appeal or 
purposeful delay in requesting §2255 relief, and the 
government has neither claimed nor established harm to its 
ability to prosecute anew upon the granting of §2255 relief. 
Respondent is properly entitled to §2255 relief.

93



6

ARGUM ENT

W H E R E  T H E  FACTS U N D E R L Y IN G  A  28 USC §2255 
M OTION TO  V A C A T E  IN D IC A T E  T H A T  A T  T H E  
TIM E RESPO N D EN T O FFERED  HIS G U IL T Y  PLEA:
(1) H E IN D IC A T E D  T O  T H E  T R IA L  JUDG E A  L A C K  
O F  K N O W L E D G E  O F T H E  P O S S IB L E  C O N ­
S E Q U E N C E S  O F  H IS P L E A ; (2) T H E  T R IA L  
JU D G E  A D V IS E D  R E S P O N D E N T  H E  “ C O U L D  
SER VE A S LO N G  A S 15 Y E A R S  IN JA IL ”  BU T, IN  
V IO L A T IO N  O F F R C R IM  P 11, F A IL E D  TO  
A D V IS E  HIM  T H A T  A  C U ST O D IA L  S E N T E N C E  ON  
T H E  O F FE N SE  T O  W H ICH  H E W A S  PLEAD IN G  
G U I L T Y  M U S T  A L S O  IN C L U D E  A  S P E C IA L  
P A R O L E  T E R M  O F N O T  LESS T H A N  T H R E E  
Y E A R S IN AD D IT IO N  TO  W H A T E V E R  C U ST O D IA L  
SE N T E N C E  W A S  IM POSED; A N D  (3) B E C A U SE  OF  
T H E  N A T U R E  OF T H E  SPECIAL PAR O LE T E R M , 
T H E  S E N T E N C E  IM P O S E D  O F T E N  Y E A R S  
IM P R IS O N M E N T  A N D  F IV E  Y E A R S  S P E C IA L  
PAROLE A C T U A L L Y  SUBJECTED R ESPO N D EN T  
TO PO TE N TIA L  C O M B IN E D  PRISON A N D  PAROLE  
C U S T O D Y  O F V IR T U A L L Y  T W E N T Y  Y E A R S ; 
W H E R E  N O  O T H E R  R E M E D Y  IS A V A IL A B L E ; 
A N D  W H E R E  T H E R E  H A S  B E E N  N O  C L A IM  
T H A T : (1) R E SPO N D EN T W O U L D , IN F A C T , H A V E  
C O N T IN U E D  W ITH HIS G U IL T Y  PLEA H A D  HE  
BEEN F U L L Y  A D V IS E D  OF ITS C O N S E Q U E N C E S ;
(2) R E SPO N D EN T, W H O  W A S  N O T  A D V IS E D  OF  
H IS R IG H T  T O  A P P E A L  A T  T H E  T IM E  O F  
S E N T E N C IN G , D E L IB E R A T E L Y  B Y -P ASSED  HIS 
RIGHT T O  AP PE A L ; (3) T H E  IN T E R V A L  BETW EEN  
T H E  T IM E  OF SE N T E N C IN G  A N D  T H E  FILING OF  
T H E  M O TIO N  T O  V A C A T E  W A S  FOR PURPOSES  
OF D E L A Y ; OR (4) T H E  G O V E R N M E N T ’S A B IL IT Y  
T O  PR OSECUTE A N E W  H A S BEEN IN A N Y  W A Y  
AFF E C T E D  BY T H A T  IN T E R V A L , RESPO N D EN T  
IS PROPERLY EN TITLE D  T O  §2255 RELIEF.

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7

The relief available to federal prisoners pursuant to 28 
USC §2255 exists to help insure the capacity of the legal 
system to provide substantive justice. Along with its 
common law antecedent writ of habeas corpus, §2255 has 
become “ the judicial method of lifting undue restraints upon 
personal liberty.”  Price v Johnston, 334 US 266, 269, 78 SCt 
1049, 92 LEd 1356, 1361 (1948). While most frequently 
utilized to challenge the constitutionality of restraint, its uses 
are flexible.

As described by Mr. Justice Frankfurter in dissent in 
Sunal v Large, 332 US 174, 187, 67 SCt 1588, 91 LEd 1982, 
1991-1992 (1947), the writ is

“ a swift and imperative remedy in all cases of illegal 
restraint”  . . . fluid and free from the definiteness 
appropriate to ordinary jurisdictional doctrines, 
(citation omitted)

The “ well-worn formulate]”  that habeas corpus “ will not 
be allowed to do service for an appeal,”  Sunal v Large, 
supra, 332 US at 178, 91 LEd at 1986, and that not every 
asserted error of law may be raised on a §2255 motion, cf. 
Hill v United States, 368 US 424, 82 SCt 468, 7 LEd2d 417 
(1962), have generally been held to bar relief only where the 
right to appeal has been deliberately passed up, e .g ., Sunal, 
supra, or where the error was harmless to the accused, e .g ., 
Hill, supra. See also N o te , “ D evelopm en ts in the 
Law— Federal Habeas Corpus,”  83 Harv L Rev 1038, 
1067-1068 (1970). Where such circumstances are absent, 
relief may not be denied merely because the violation 
asserted is non-constitutional in origin. As this Court stated 
in Davis v United States, 417 US 333, 345, 94 SCt 2298, 41 
LEd2d 109, 118 (1974):

There is no support in the prior holdings of this Court 
for the proposition that a claim is not cognizable 
under §2255 merely because it is grounded in the 
“ laws o f the United S tates”  rather than the 
Constitution.



8

Where the error alleged is of significance to the legal 
system as a whole, there is particular reason for §2255 relief 
to be available.

Because the strength of our system of criminal law is 
directly proportional to the degree to which the presumption 
of innocence is protected at trial, the practice of concluding 
most criminal prosecutions by pleas of guilty potentially 
threatens the foundations of the adversary process. As this 
Court noted in McCarthy v United States, 394 US 459, 463, 
89 SCt 1166, 22 LEd2d 418, 424 (1969) at n7, the vast 
majority of federal prosecutions are resolved by pleas of 
guilty. In fiscal 1978, for example, 85 .2%  of all federal 
convictions were obtained by pleas of guilty or nolo 
contendere. 1978 Annual Report of the Director of the 
Administrative Office o f the United States Courts at 114; see 
also figures for fiscal 1977 and 1976, Brief for the United 
States at 37, n24.

Offering a plea of guilty relieves the government of its 
burden of proof, as the defendant expressly or impliedly 
waives all of her or his constitutional, statutory and 
court-rule-created rights and convicts himself or herself out 
of her or his own mouth. As such, the “ fairness and 
adequacy of the procedures on acceptance of pleas of guilty 
are of vital importance in according equal justice to all”  
accused persons. Notes o f  the Advisory Committee on 1966 
Amendments to F R Crim P.

In addition, because F R Crim P 32(a) (2) does not 
require the sentencing judge to advise a defendant who has 
pled guilty of the right to appeal, the likelihood of correction 
on direct appeal of errors committed at guilty plea hearings is 
reduced, and the potential threat to the system is enhanced.

For these reasons, maintenance of a forum for the 
correction of errors committed at guilty plea hearings is of 
particular significance to the legal system.

96



9

In order for a guilty plea to be voluntary, the accused 
must be “ fully aware of the direct consequences” of the 
plea, Brady v United States, 397 US 742, 755, 90 SCt 1463, 
25 LEd2d 747, 760 (1969), including not only the maximum 
sentence and fine to which he or she is exposed but also any 
applicable mandatory special parole term .1 This follows 
because the special parole term is a “  ‘ factor that necessarily 
affects the maximum term of imprisonment.’ ”  Bunker v 
Wise, 550 F2d 1155, 1158 (9th Cir 1977), citing United States 
v Myers, 451 F2d 402, 404 (9th Cir 1972).

The mandatory special parole term, whose “ nature and 
operation . . .  are very different" from traditional parole, 
Bunker v Wise, supra, 550 F2d at 1158, “ placets] a number 
of onerous burdens on the liberty of paroled individuals,”  
United States ex rel. Baker v Finkbeiner, 551 F2d 180, 184 
(7th Cir 1977), and substantially enhances the total possible 
period of incarceration faced by a plea-offering defendant. 
Depending on the nature of the offense involved, it must be 
for at least two or three years in length, 21 USC §841(b) (1) 
(A) and (B), and it may be for as long as life. C f., e.g., 
United States v Rea, 532 F2d 147 (9th Cir 1976). Violation of 
the special parole term at any point during the term 
potentially subjects the defendant to incarceration for the 
entire period of the special parole term. 21 USC §841(c). 
Moreover, the risk of further incarceration is significant: 
“ [A] substantial number of parolees . . . return to prison for 
parole violations. Many of these violations are inevitably 
technical rather than criminal.”  United States ex rel. Baker v 
Finkbeiner, supra, citing President’s Commission on Law 
Enforcement and Justice, Task Force Report: Corrections 
(1967) at 62 and Note, “ Parole: A  Critique of Its Fegal 
Foundations and Conditions.”  38 N Y U  F Rev 702 721 
(1963).

‘The government concedes the special parole term to be a 
consequence ot the plea within the meaning of Rule 11 as then in effect. 

Brief for the United States at 13.

97



10

For these reasons, failure to advise an accused o f the 
mandatory special parole term accompanying any custodial 
sentence for violation of 21 USC §846 deprives the accused 
of highly significant information relative to the potential term 
of imprisonment faced and fundamentally undercuts the 
voluntariness of his or her plea.

Similar to its argument in this case, the government 
argued in McCarthy that substantial compliance with the 
provisions of F R Crim P 11 ought to be a sufficient record of 
voluntariness in the absence of a showing of prejudice by the 
defendant. This Court rejected that argument, holding 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 o f the 
voluntariness of his plea. 394 U S at 471-472, 22 
LEd2d at 428 (emphasis added)

The Court also stressed that requiring a showing of 
prejudice would involve the courts in an after-the-fact 
fact-finding process in a “  ‘ highly subjective area’ ”  and 
would encourage unwarranted speculation as to whether the 
defendant’ s plea was otherwise truly voluntary. 394 US at 
469-471, 22 LEd2d at 427-428.

Relying on Davis v United States, supra, the government 
now argues that regardless of McCarthy, a showing of 
particular prejudice ought to be required in collateral attacks 
to federal guilty pleas. The government’ s reliance on Davis is 
misplaced.2

2in support of its argument, the government attempts to align the 
Third Circuit with those circuits supporting its position. Brief for the 
United States at 26-27, nl3. To the contrary, Horsley v United States, 583 
F2d 670 (3d Cir 1978), cited by the government, makes clear that the Third 
Circuit's interpretation of Davis is virtually identical with that of the Sixth 
Circuit in the instant case.

The government is also in error in suggesting. Id., that United States 
v Tarsi, 576 F2d 396 (1st Cir 1978), Marshall v United States, 576 F2d 160 
(9th Cir 1978), and Hitchcock v United States, 580 F2d 964 (9th Cir 1978), 
(Continued on page 11)

98



11

Davis involved a §2255 challenge to a conviction coming 
after a trial, with Davis’ claim based on an intervening 
change in the law. Echoing the language of prior cases, c f ., 
e.g ., Hill v United States, supra, 368 US at 428, 7 LEd2d at 
421, and cases cited therein, this Court held that in such a 
case, the “ appropriate inquiry”  is “ whether the claimed 
error of law was a ‘fundamental defect which inherently 
results in a complete miscarriage o f justice’ . . . ‘ and 
presents exceptional circumstances where the need for the 
remedy afforded by the writ of habeas corpus is apparent.’ ”  
417 US at 346, 41 LEd2d at 119.

Where a trial has occurred, the defendant has been 
convicted in an adversary proceeding by evidence presented 
by the government in open court. Presumably, all pre-trial 
and trial issues of law and fact have been determined after a 
full hearing at which the defendant has been represented by 
counsel competent and eager to attack, weaken and discredit 
the government’ s case. The defendant has confronted his or 
her accusers in open court and subjected them to probing 
cross-exam ination, and he or she may have offered  
exculpatory evidence as well. Because of the more thorough 
and protracted fact-finding process, less errors are likely to 
have been prejudicial.

In addition, the Davis test is substantially parallel to the 
“ plain error”  rule of F R Crim P 52(b) governing reversal on 
direct appeal in cases where no objection has been made at 
trial. C f., e .g ., United States v Atkinson, 297 US 157, 160, 56 
SCt 391, 80 LEd 555, 557 (1936); Kyle v United States, 402 
F2d 443 (5th Cir 1968); Harris v United States, 297 F2d 491 
(8th Cir 1961); Jackson v United States, 179 F2d 842 (6th Cir 
1950). Davis, therefore, does not create a new standard on 
collateral review where no objection has been made. Since 
cases involving guilty pleas almost invariably do not include

none of which involves a failure to advise a guilty-pleading defendant of 
the penal consequences of his or her plea, in any way foreshadow a change 
of position on the issue at bar by either the First or Ninth Circuit. Cf. 
United States v Yaz.beck, 526 F2d 641 (1st Cir 1975): Bunker v Wise, 550 
F2d 1155 (9th Cir 1977).



12

an objection at the trial court level, Davis cannot reasonably 
be argued as creating a new standard of review for collateral 
challenges to guilty pleas. Reevaluation of prior decisions on 
the basis of Davis is, therefore, unnecessary.

Rather, because o f the different circum stances  
surrounding a defendant who has pled guilty, and because of 
the large incidence of guilty pleas in the federal system, 
procedures which do not insure meticulous compliance with 
Rule 11 threaten the requirement of thorough, knowing 
voluntariness and consequently jeopardize the integrity of 
the adversary process itself. In the absence of a showing of 
harmlessness,3 a defect in a guilty plea is in and o f itself 
sufficiently prejudicial to require the granting of collateral 
relief.

Requiring a petitioner to show particular prejudice would 
be unsound. While an objective standard may sometimes 
require the granting of relief in a case where a plea might 
nevertheless have been offered, it is the only way of insuring 
that relief will be granted in all cases where the plea would 
not have been offered. As Judge Boreman noted for the 
Fourth Circuit in Paige v United States, 443 F2d 781, 783 
(4th Cir 1971):

. . there is no way by which the effect of the court’ s 
misleading statement upon the voluntariness of 
Paige’ s guilty plea could be determined. Whether 
Paige would have elected to plead not guilty and put 
the government to proof of his guilt had he known the 
full consequences of pleading guilty to a second 
narcotics offense is a matter of pure speculation.

See also McCarthy, supra, 394 US at 465, 22 LEd2d at 
425; United States v Yazbeck, 524 F2d 641, 643-644 (1st Cir

3Cf., e.g.. Hill v United States, supra (motion treated as Rule 35 
motion to correct sentence: violation of F R Crim P 32(a) not inherently 
prejudicial: no prejudice alleged): United States v Ortiz, 545 F2d 1122 (8th 
Cir 1976) (prosecutor advised defendant of mandatory special parole term 
in the presence of the court).

100



13

1975); Bell v United States, 521 F2d 713, 716-717 (4th Cir 
1975) Widener, J., concurring and dissenting.

Carrying the burden of showing prejudice would also be 
“ an almost impossible task” . United States v Carper, 116 F 
Supp 817, 820 (DDC 1953) (re violation of F R Crim P 6(d)). 
Accused persons plead guilty for many reasons, some of 
them bizarre and irrational to judges and counsel regularly 
involved in the criminal process. In some cases, defendants 
would, in fact, have decided to proceed to trial if they had 
known the additional possible prison time faced for violation 
of special parole, but in most of those cases, they may be 
unable to establish that that lack of knowledge was critical to 
their decision to plead guilty.

In addition, then-District Judge, now-Circuit Judge 
Tamm, noted in Carper, supra, that a requirement of 
showing prejudice would also

undermine the purpose, effectiveness and value of the 
Criminal Rules by judicial legislation which, in effect, 
would be saying that the Rules do not mean what 
they clearly and unequivocally state. Id., 116 F Supp 
at 819

It would also make more difficult the achievement of uniform 
federal criminal procedure. Id., 116 F Supp at 821.

For reasons similar to those indicated above, the time 
lapse between time of sentencing and time of filing a §2255 
petition is immaterial to the question before the Court. Any 
number of valid reasons lie behind delays in bringing §2255 
petitions, including lack of understanding of one’ s legal 
rights. Cf. F R Crim P 32(a)(2). Perhaps more importantly, 
though. Congress has expressly elected not to set a limit on 
the time within which such a petition may be filed. In the 
absence of a statutory change, this Court should not impose 
a limitation where Congress has chosen to impose none.4,5 4

4An unsuccessful effort to impose a time limit was, in fact, made by 
Representative Sumners of Texas, who introduced HR 6723 during the 
(Continued on page 14)

101



14

As Chief Justice Burger stressed while a circuit judge, dis­
senting in Bostic v United States, 298 F2d 678, 681 (DC Cir 
1961),

. . . passage of time, whether five years or twenty- 
five years, cannot affect valid claims under §2255. 
That is what Congress meant and that is as it should 
be.

See also Brown v Allen, 344 US 443, 500, 73 SCt 397, 97 
LEd 469, 511 (1953).

While the availability of §2255 relief cuts against the 
system ’ s interest in finality, "a rra y ed  against [this] 
interest . . .  is the very purpose of the writ of habeas 
corpus— to safeguard a person’ s freedom from detention in 
violation of constitutional'[or legal] guarantees." Blackledge 
v Allison, 431 U S 63, 72, 97 SCt 1621, 52 LEd2d 136, 146 
(1977). Moreover,

[a]dmirable as may be the effort toward system, this 
last resort for human liberty cannot yield when the 
choice is between tolerating its wrongful deprivation 
and maintaining the systemist’ s art.

. . . Beside executing its great object,

. . . considerations of economy of judicial time and

1946 session of Congress while consideration was pending of proposals 
eventually leading to 28 USC §§2254 and 2255. That bill would have 
imposed a filing deadline of one year after either the passage of the act, the 
discovery by the movant of the facts relied upon for reliel or a change in 
the law relied upon for relief.

The government's suggestion that a defendant who has just been 
sentenced “ should be instantly aware" that he or she has been given an 
unexpectedly severe sentence and should, therefore, be required either to 
file a Rule 32(d) motion to withdraw the plea or take a direct appeal, Brief 
for the United States at 34, is palpably unrealistic. Regardless of whether 
imprisonment is anticipated, after sentence is imposed a person sentenced 
to a lengthy term of custody cannot reasonably be expected immediately 
to focus on, comprehend and develop legal strategy concerning a special 
parole term.

102



15

procedures, important as they undoubtedly are, be­
come comparatively insignificant. Sunal, supra, 332 
US at 188-189, 91 LEd 1992-1993, Rutledge, J., dis­
senting.

See also Note, 83 Harv L Rev, supra, at 1058.

An objective test also furthers, rather than hinders, the 
objective of finality and produces less, rather than more, 
litigation. By adhering to an objective standard, lower courts 
are relieved of time-consuming hearings on the question of 
prejudice. Counsel for both parties are readily able to 
determine whether an asserted violation is meritorious. 
Where an objective test is applied, government attorneys 
also have a greater incentive to be fully attentive at guilty 
plea proceedings and to advise the court of any failures or 
omissions in the guilty plea record. Cf. United States v 
Timmreck, supra, 577 F2d at 377. Addressing itself to this 
point, the Third Circuit recently concluded,

we do not believe the interests of justice are served 
by tolerating or condoning failure to implement Rule 
11. Strict and consistent adherence to the 
requirements of Rule 11 will facilitate disposition of 
post-conviction assertions of error in the change of 
plea proceeding because the record will provide a 
clearer answer to any objections raised. Horsley v 
United States, 583 F2d 670, 675 (3d Cir 1978).

It is also significant that the number of §2255 motions 
filed is small enough not to generate administrative 
difficulties. In 1978, §2255 motions accounted for only 1.4%  
of the total civil actions commenced in the district courts. In 
the past four fiscal years the number of §2255 motions filed 
has increased only 5 .6% , 1,822 in 1974 to 1,924 in 1978.6 In 
contrast, the 138,770 civil cases filed in fiscal 1978 
represented a 34%  increase over the 103,530 cases filed in

These figures include all motions to vacate, those based upon 
convictions following trials as well as those based upon guilty pleas.

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16

1974.7 Additionally, only 343 appeals from decisions on 
§2255 motions were filed in the courts of appeals in 1978, 
2.2%  o f all cases appealed. 1978 Annual Report o f  the 
Director o f the Administrative Office o f the United States 
Courts at 46, 60, 76.

Nor is reduction of the sentence to comport with the 
advice given at the time of the plea an adequate remedy. Cf. 
Brief for the United States at 28. n l5. “ Rule 11 entitles the 
accused to know the consequences of his guilty plea prior to 
the time of entering it so that he might accurately assess such 
consequences in making his determination,”  United States 
v Smith, 440 F2d 521, 526 (7th Cir 1971), and the legal basis 
of the plea itself is vitiated by the failure fully to advise the 
accused of his or her plea's consequences. Because the 
nature and conditions of the special parole term are unique, 
their impact on the decision to plead guilty ought not be 
underestim ated. C f. Paige v United States, supra. 
Moreover, reduction of the sentence would frustrate the 
intent of Congress that a special parole term shall follow any 
custodial sentence imposed for violation of 21 USC §846.

The error involved here was neither merely technical nor 
harmless to Mr. Timmreck: the prejudice was not only 
“ inherent,”  it was actual. At the time he appeared before the 
district judge to offer his plea, Mr. Timmreck clearly did not 
know the consequences of his plea (A -4-5).8 Advised only of

7By way of further contrast, over the same period of time the 
percentage of social security cases increased 77% (3,585 to 9,950), the 
percentage of mortgage foreclosure cases increased 42% (2,938 to 4,159), 
and the percentage of labor cases increased 38% (5,400 to 7,461). 1978 
Annual Report o f the Director o f the Administrative Office o f the United 
States Courts at 60.

Toward the conclusion of the guilty plea hearing the trial judge asked 
defense counsel whether counsel was of the opinion that Mr. Timmreck 
“ knows full well the consequences of a plea might be.' to which counsel 
replied, “ That’ s correct”  (A-9). At the September 8, 1976, hearing on 
Respondent’ s motion to vacate the district judge asked counsel whether he 
had discussed with Mr. Timmreck the provisions of the special parole 
term. Although agreeing with the court that it was not a part of his custom 
(Continued on page 17)

104



17

a possible prison sentence of fifteen years plus a fine, he 
was, in fact, given a sentence exposing him to potential 
combined prison and parole custody of virtually twenty 
years9 plus a fine. His plea was offered on the basis of a 
significant misunderstanding generated by the trial judge, 
and it is mere speculation that he would have continued to 
offer his plea had he been accurately informed of its 
consequences.

A t the time of sentencing, Mr. Timmreck was not 
advised of his right to appeal, and there is no claim on this 
record that he either knew of or deliberately bypassed that 
right. Similarly, there has been no claim that the interval 
between the time of sentencing and the time of filing the 
motion to vacate was for purposes of delay.

The government has not claimed or demonstrated an 
inability to prosecute anew, and given that the bulk of its 
evidence was obtained through court-approved electronic 
surveillance, cf. United States v Schebergen, 353 FSupp 
932 (ED Mich 1973) [Mr. Schebergen was the first-named 
defendant in this c a se .] , it is highly unlikely that 
re-prosecution would be impaired.

For all these reasons, the error involved here was neither 
technical nor harmless but was a fundamental defect in the

not to explain to a client the sentencing implications of a guilty plea, 
counsel stated that he could not recollect whether he had expressly 
advised Mr. Timmreck of the special parole requirements involved here 
(A-20-21).

The government alleges that these statements establish the violation 
to have been technical. It is clear, however, that Mr. Timmreck’s counsel 
did not recall whether he had advised Mr. Timmreck of the special parole 
term. Additionally, even if counsel had so advised Mr. Timmreck, it is also 
clear that at the time Respondent appeared in court to offer his guilty plea, 
he was, in fact, unaware of the consequences of his plea (A-4-5).

9On the sentence imposed, Mr. Timmreck was, in fact, subject to ten 
years initial imprisonment, four years, eleven months and twenty-nine 
days special parole supervision and five years imprisonment for violation 
of the special parole term, a combined prison and parole custody of twenty 
years less one day.

105



18

proceedings below and Mr. Timmreck is properly entitled to 
§2255 relief.

CONCLUSION
For all the reasons stated above, the decision of the 

Court of Appeals should be affirmed or, in the alternative, 
the writ of certiorari should be dismissed as improvidently 
granted.*

Respectfully submitted,

/s / K enneth M . M ogill 
Attorney for Respondent 

1455 Centre Street 
Detroit, Michigan 48226 
(313) 962-7210

Dated: March 28, 1979

Research Assistant: 
Marian Kromkowski

*In the event the judgment of the Court of Appeals is not affirmed, 
Respondent should be entitled to an opportunity to allege and establish the 
facts necessary to warrant the granting of his motion.

106



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