United States v. Timmreck Petition and Briefs
Public Court Documents
January 1, 1979

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Brief Collection, LDF Court Filings. United States v. Timmreck Petition and Briefs, 1979. acf79fd6-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e9fea3f6-2099-4f96-ad52-a3aeff46ab86/united-states-v-timmreck-petition-and-briefs. Accessed July 10, 2025.
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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. 94 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. 103 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 LawReprints 37 WEST 20 STREET * NEW YORK, N. Y. 10011