William John Wacht v. Harold J. Cardwell and the Attorney General of the State of Arizona

604 F.2d 1245 William John WACHT, Petitioner-Appellant, v. Harold J. CARDWELL and the Attorney General of the State of Arizona, Respondent-Appellee. No. 78-2258. United States Court of Appeals, Ninth Circuit. Sept. 24, 1979. Thomas G. Martin, Tucson, Ariz., on brief, for petitioner-appellant. Robert S. Golden, Asst. Atty. Gen., Phoenix, Ariz., on brief, for respondent-appellee. On Appeal from Denial of Writ of Habeas Corpus in the United States District Court for the District of Arizona. Before MERRILL and ANDERSON, Circuit Judges, and SKOPIL, * District Judge. J. BLAINE ANDERSON, Circuit Judge: 1 Wacht appeals the denial of his habeas corpus petition. He claims that the state trial judge failed to inform him of his ineligibility for parole when he pled guilty. This, according to Wacht, means that his guilty plea was neither intelligently nor voluntarily made. We find that Wacht has failed to make sufficient factual allegations which would entitle him to any relief, and affirm the denial of his habeas petition. 2 On October 30, 1973, Wacht pled guilty to transportation of narcotics in violation of Ar.Rev.Stat. § 36-1002.02. The penalty provisions of this statute provided for…

Wacht appeals the denial of his habeas corpus petition. He claims that the state trial judge failed to inform him of his ineligibility for parole when he pled guilty. This, according to Wacht, means that his guilty plea was neither intelligently nor voluntarily made. We find that Wacht has failed to make sufficient factual allegations which would entitle him to any relief, arid affirm the denial of his habeas petition.

On October 30,1973, Wacht pled guilty to transportation of narcotics in violation of Ar.Rev.Stat. § 36-1002.02. The penalty provisions of this statute provided for imprisonment for a term of five years to life. In addition, the statute provided that parole eligibility or other release had to await service of five full calendar years in prison.

It is undisputed that the state trial judge did not inform Wacht of his ineligibility for parole when he entered his guilty plea. Nonetheless, Wacht was informed that he could be sentenced from five years to life.

Initially, Wacht was not sentenced to a term of imprisonment, but instead was placed on probation. 1 On May 31,1974, this probation was revoked because of Wacht’s violation of a condition of his release. Wacht was…

concurring:

I concur in the decision of the court.

In United States v. Timmreck,—U.S.—, 99 S.Ct. 2085 , 60 L.Ed.2d 634 (1979), it was held that collateral relief from a guilty plea is not available when all that is shown is a failure to comply with the formal requirements of Rule 11, without a showing that the violation resulted in injury or harmful consequences to the pleader. The Court pointed out:

—U.S. at—, 99 S.Ct. at 2087 . To the same effect is United States v. Salas, 602 F.2d 215 (9th Cir. 1979).

*1248 As I view the record it does sufficiently appear that Wacht did not know of his ineligibility for parole. What is still lacking, however, is a showing that had he known of his ineligibility for parole he would not have pleaded guilty. This is not implicit from the facts of this case. Here, contrary to the usual statutory ineligibility, under Arizona law probation was available to petitioner, and following his guilty plea he was first placed on probation. His sentence was imposed only after he had violated probation. This raises some doubt as to whether, faced with the possibility of probation (apparently a very real possibility), he would nevertheless have chosen not to…