Willie Charles MacOn v. United States

(dissenting):

I respectfully dissent. Since the sentencing judge accepted the plea of guilty without personally communicating any advice whatsoever to the accused, there was, as the majority recognizes, manifest failure to comply with the requirements of Rule 11, Fed.R.Crim.P. Notwithstanding, the majority affirms upon its conclusion that Macon did not, in his petition, allege that he was unaware, before he entered his plea, of all the possible consequences which might follow that plea. This approach, so narrowly technical, is an avenue which I cannot take, especially since, as the majority also recognizes, Macon would not have been required to prove the allegation had it been made. Heiden v. United States, 353 F.2d 53 (9th Cir. 1965). Moreover, I believe that the petition did, in effect, contain the allegation. It clearly alleged the court’s failure to comply with Rule 11. The thrust of other portions of the petition is that Macon, when he entered his plea, expected that he would be sentenced for an offense carrying a lesser punishment than that which was imposed. Macon is a layman, and he apparently prepared his petition without the assistance of a lawyer trained in the refined…

414 F.2d 1290 Willie Charles MACON, Appellant, v. UNITED STATES of America, Appellee. No. 23201. United States Court of Appeals Ninth Circuit. Aug. 7, 1969. Willie Charles Macon, pro. per., for appellant. Edward E. Davis, U.S. Atty., Lawrence Turoff, Asst. U.S. Atty., Phoenix, Ariz., for appellee. Before HAMLIN, MERRILL and ELY, Circuit Judges. MERRILL, Circuit Judge: 1 For acts committed upon an Indian Reservation, located in Arizona, appellant was charged with burglary under the Assimilative Crimes Act, 18 U.S.C. 1152. He pleaded guilty and was sentenced to five years imprisonment. In these proceedings, for the second time, he seeks relief under 28 U.S.C. 2255. The District Court denied his motion without evidentiary hearing on the ground that it simply presented again the claims advanced by him on his first motion. 2 Appellant's first 2255 motion also was denied without evidentiary hearing. By that motion appellant claimed that his guilty plea had been induced by promises of leniency. The allegations were, however, in general and conclusionary terms. There was no factual allegation respecting the substance of any promise nor the circumstances under which it had been made. 3 In…

For acts committed upon an Indian Reservation, located in Arizona, appellant was charged with burglary under the Assimilative Crimes Act, 18 U.S.C. § 1152 . He pleaded guilty and was sentenced to five years imprisonment. In these proceedings, for the second time, he seeks relief under 28 U.S.C. § 2255 . The District Court denied his motion without evidentiary hearing on the ground that it simply presented again the claims advanced by him on his first motion.

Appellant’s first 2255 motion also was denied without evidentiary hearing. By that motion appellant claimed that his guilty plea had been induced by promises of leniency. The allegations were, however, in general and conclusionary terms. There was no factual allegation respecting the substance of any promise nor the circumstances under which it had been made.

In these proceedings appellant again advances this claim. Again, it is wholly lacking in factual allegations sufficient to warrant either hearing or response by the Government.

One new claim is advanced: that the trial court did not ascertain whether the guilty plea was intelligently entered as required by Rule 11, F.R.Cr.P. Relying upon McCarthy v. United States, 394…