George Willard Shaffer v. United States

On June 28, 1965, Shaffer entered a plea of guilty to a charge of acquiring marihuana without paying the transfer tax, in violation of 26 U.S.C. § 4744 (a). Thereafter, he commenced this proceeding under 28 U.S.C. § 2255 , to vacate the judgment of conviction. The keystone of his contention was and is that “the incriminatory portion of § 4744(a) was declared unconstitutional in Leary * * Leary v. United States, 395 U.S. 6 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 (1969). The district court denied relief and Shaffer has appealed. We affirm.

Shaffer apparently recognizes that the Supreme Court did not in Leary strike down the marihuana tax statute [ 26 USC § 4741 (a)] as unconstitutional on its face, but he fails to realize that, having entered a plea of guilty to a charge of violating the statute, he cannot now assert that the statute was unconstitutional as applied to him. A fortiori, where as here, his plea was counseled. See Brady v. United States, 397 U.S. 742 , 90 S.Ct. 1463 , 25 L.Ed.2d 747 (1970).