Robert Melvin Mayes v. George W. Pickett, Warden

537 F.2d 1080 Robert Melvin MAYES, Appellant, v. George W. PICKETT, Warden, Appellee. No. 74--2526. United States Court of Appeals, Ninth Circuit. July 9, 1976. Howard J. DeNike (argued), San Francisco, Cal., for appellant. Theodore Wu, Asst. U.S. Atty. (argued), Los Angeles, Cal., for appellee. OPINION Before WRIGHT, KILKENNY and TRASK, Circuit Judges. KILKENNY, Circuit Judge: 1 Mayes appeals from a district court order denying, without a hearing, his motion for relief under 28 U.S.C. § 2255 . 2 On May 28, 1969, appellant pleaded guilty under one count of bank robbery. Two additional counts of bank robbery were dismissed. He was then sentenced to fifteen years in prison. No direct appeal was taken. Two previous § 2255 motions were filed and both denied without hearing. No appeal was taken from the denial of the first motion. After the second denial, an appeal was taken, but dismissed under Rule 12(c), FRAP, for failure to prosecute. CI ISSUES Appellant raises the following issues: 3 (1) The plea of guilty was induced by a confession unconstitutionally obtained. 4 (2) The plea was involuntary because appellant lacked the required mental capacity to enter a voluntary plea…

Mayes appeals from a district court order denying, without a hearing, his motion for relief under 28 U.S.C. § 2255 .

On May 28,1969, appellant pleaded guilty under one count of bank robbery. Two additional counts of bank robbery were dismissed. He was then sentenced to fifteen years in prison. No direct appeal was taken. Two previous § 2255 motions were filed and both denied without hearing. No appeal was taken from the denial of the first motion. After- the second denial, an appeal was taken, but dismissed under Rule 12(c), FRAP, for failure to prosecute.

ISSUES

Appellant raises the following issues:

(1) The plea of guilty was induced by a confession unconstitutionally obtained.

(2) The plea was involuntary because appellant lacked the required mental capacity to enter a voluntary plea and the court erred in failing to order sua sponte a determination of mental competency since it had been advised that appellant was a drug addict.

(3) The plea of guilty was induced by threats and promises and, therefore, not knowingly and voluntarily made.

I.

Appellant’s first contention, although it relates to his plea, necessarily attacks the validity of his confession which…

(concurring and dissenting):

I concur in Parts I and II of the majority opinion and dissent from the third and sixth paragraphs of Part III. I would affirm the district court’s denial of the petition without hearing.

The law of this circuit on the issue presented in the majority’s Part III is far from clear. Yet I do not believe that Jones v. United States, 384 F.2d 916 (9th Cir. 1967), and its progeny compel the result reached by the majority here. The rule of law announced in Jones is a good one, but is simply inapplicable to the facts before us. If I misinterpret Jones and, if its rule does apply to these facts, then I agree with the majority that it is a “strange legal concept” in need of reevaluation.

Title 28 U.S.C. § 2255 states in relevant part:

See Fontaine v. United States, 411 U.S. 213, 215 , 93 S.Ct. 1461, 1462 , 36 L.Ed.2d 169 (1973); Sanders v. United States, 373 U.S. 1, 15-16 , 83 S.Ct. 1068 , 10 L.Ed.2d 148 (1963).

In remanding for an evidentiary hearing on the voluntariness of petitioner’s guilty plea, the Fontaine Court stated, 411 U.S. at 215 , 93 S.Ct. at 1462 :

The Court was simply unable to conclude on the facts before it 1 “that under no circum *1087…