Gil Munzo Leano v. United States

457 F.2d 1208 Gil Munzo LEANO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 25520. United States Court of Appeals, Ninth Circuit. Feb. 29, 1972. Rehearing Denied April 4, 1972. 1 Gil M. Leano, in pro. per. 2 William D. Keller, U. S. Atty., David R. Nissen, Chief, Crim. Div., Tom G. Kontos, Asst. U. S. Atty., Los Angeles, Cal., for respondent-appellee. 3 Before ELY and KILKENNY, Circuit Judges, and LINDBERG, District Judge. * 4 LINDBERG, District Judge. 5 This is an appeal from the district court's denial without a hearing of appellant's motion to set aside a judgment and sentence under 28 U.S.C. Sec. 2255 . 6 On October 18, 1967, a seven count indictment was returned against Leano, charging him with various heroin, marihuana and related tax violations. With representation by counsel, he pleaded guilty to two counts of selling marihuana in violation of 21 U.S.C. 176a, and, pursuant to a plea bargaining agreement, the remaining five counts were dismissed by the Government. There was no direct appeal from that conviction. 7 Petitioner-appellant's briefs in support thereof present three material contentions: (1) his defense counsel was inadequate; (2)…

This is an appeal from the district court’s denial without a hearing of appellant’s motion to set aside a judgment and sentence under 28 U.S.C. § 2255 .

On October 18, 1967, a seven count indictment was returned against Leano, charging him with various heroin, marihuana and related tax violations. With representation by counsel, he pleaded guilty to two counts of selling marihuana in violation of 21 U.S.C. 176a, and, pursuant to a plea bargaining agreement, the remaining five counts were dismissed by the Government. There was no direct appeal from that conviction.

Petitioner-appellant’s briefs in support thereof present three material contentions: (1) his defense counsel was inadequate; (2) there was an abuse of discretion when he was not allowed to withdraw his guilty plea prior to imposition of sentence; and (3) his guilty plea was involuntary, in that it was induced by a presumption of knowledge of importation under the counts charging violation of 21 U.S.C. 176a.

With respect to the first contention, a conviction may not be set aside on grounds of ineffective representation of counsel unless service of counsel was of such a caliber as to amount to a farce or mockery of…

(dissenting):

I respectfully dissent. The majority’s opinion is reasoned with careful intricacy, but I find myself unable to follow, to the end, the maze through which my Brothers wind to their conclusion. As I see it, the straight path has been marked by Weber v. United States, 402 U.S. 939 , 91 S.Ct. 1633 , 29 L.Ed.2d 107 (1971), vacating and remanding 429 F.2d 148 (9th Cir. 1970), and Castro v. United States, 403 U.S. 903 , 91 S.Ct. 2215 , 29 L.Ed.2d 678 , vacating and remanding 436 F.2d 975 (9th Cir. 1971). See also Qui-jada Gaxiola v. United States, 435 F.2d 264, 266 (9th Cir. 1970) (concurring opinion). Following that path, I would vacate the conviction and remand the cause to the District Court for its reconsideration in the light of the new guidelines that I have specified and which have so recently been set.