The opinion of the court was delivered by: COOPER
Petitioner, Pablo Prado, pled guilty to illegal possession and sale of heroin in violation of 21 U.S.C. § 173 on May 2, 1968. On July 2, 1968 petitioner was sentenced as a second offender under 26 U.S.C. § 7237. Petitioner, pursuant to 28 U.S.C. § 2255, now seeks to set aside his prior conviction for illegally selling marihuana in July 1943, the conviction which served as the basis for his recidivist status.
Petitioner alleges two basic arguments in support of his request: (1) his plea of guilty was constitutionally defective, (2) the statute he was sentenced under has been held unconstitutional.
On July 6, 1943, Prado was arrested for selling marihuana in violation of § 2591(a) of the Internal Revenue Code. He alleges that he was released on $500 bail the next day and informed that subsequent proceedings "were postponed to a later date;"
that while out on bail he was arrested on August 20, 1943 for assault; and that he was immediately "lodged in the 'tombs'" (the New York City jail) until sentencing (date not furnished); whereupon he was confined at Riker's Island for a term of 1 to 3 years "without being relinquished or returned for arraignments and pleadings * * *." Upon his release from Riker's Island on September 18, 1945, petitioner alleges that he appeared for the first time in federal court
where the following colloquy occurred:
MR. TAYLOR (Government): This man was brought from the penitentiary on Riker's Island having served 22 months.
THE COURT: Have you a lawyer?
THE COURT: Has there been a plea entered?
THE CLERK: He had an attorney in 1943, on September 8, 1943, and a bench warrant was issued, but I suppose he was in jail.
MR. TAYLOR: He has already pleaded guilty.
This exchange in 1945, at the time of petitioner's sentence, is the heart of his first claim. He insists that in fact he had never plead guilty and that the Government misrepresented this fact in an effort to "enter a guilty plea for the record." He further asserts that this plea entered for him without his knowledge or consent consequently was not voluntary, was without the assistance of counsel and understanding on his part of the nature and consequences thereof.
We note at the outset the substantial delay of 25 years in petitioner's assertion of this claim and the fact that it is pressed only after a second conviction with the consequent motive of avoiding his more recent sentence as a multiple offender. United States v. Forlano, 319 F.2d 617, 620 (2d Cir. 1963); Pasley v. Overholser, 108 U.S. App. D.C. 332, 282 F.2d 494 (1960); United States v. Deutsch, 151 F. Supp. 160 (E.D.N.Y.), aff'd sub nom. United States v. Embarrato, 253 F.2d 947 (2d Cir. 1958).
The records of this Court belie the merits of petitioner's claim. While there was no stenographic recording of the minutes of criminal motion term in 1943 - a fact recently learned by petitioner and on which he relies heavily - it was our practice to duly record all that transpired there on the cover sheet of each indictment. On the ...