The opinion of the court was delivered by: MANSFIELD
MANSFIELD, District Judge.
Petitioner, who is presently serving a 10-year sentence as a second narcotics offender, 26 U.S.C. § 7237(c), moves pursuant to 28 U.S.C. § 2255 to set aside his earlier narcotics conviction and sentence on the grounds (1) that his guilty plea was involuntary and made without an understanding of the charge or knowledge of its consequences; and (2) that the statutes under which he was convicted, 21 U.S.C. § 176a, 26 U.S.C. §§ 4742(a) and 4744(a), are unconstitutional.
On March 13, 1957, petitioner, who was represented by Samuel Altman, Esq., since deceased, pleaded guilty to all seven counts of an indictment filed in this court (No. 151-287/1956), charging unlawful sale, transfer and possession of marijuana under 21 U.S.C. § 176a, 26 U.S.C. §§ 4742(a) and 4744(a), and conspiracy, 18 U.S.C. § 371. He was thereupon sentenced by the late Judge Noonan to a mandatory minimum term of five years in prison, which he subsequently served.
On September 14, 1964, after having been found guilty by a jury on two counts of unlawful sales of heroin, petitioner was sentenced as a second narcotics offender, 26 U.S.C. § 7237(c), by Judge McLean of this court to a mandatory minimum term of 10 years on each count to run concurrently. On April 22, 1965, the latter conviction was affirmed by the Second Circuit Court of Appeals and on October 11, 1965, certiorari was denied by the Supreme Court. From time to time thereafter petitioner unsuccessfully attempted to obtain a new trial or to set aside his 1964 conviction. See memoranda opinions of Judge McLean dated October 29, 1965, December 15, 1966, January 20, 1967, January 16, 1969, and January 31, 1969.
Having thus apparently exhausted his attempts to upset the later conviction, petitioner, in October, 1969, filed his present petition pursuant to § 2255 seeking an order vacating and annulling his earlier conviction or in the alternative allowing him pursuant to Rule 32(d), F.R.C.P., to withdraw his plea to the earlier indictment. Although more than 12 years has elapsed since the earlier conviction and he has served in full the mandatory five-year sentence thereupon imposed, he now apparently hopes that if he is successful in annulling that conviction he will be able to vacate the sentence presently being served as a second narcotics offender and be eligible for resentencing as a first narcotics offender. Since he thus indirectly seeks to attack a sentence presently being served, he appears to have standing to invoke this court's jurisdiction pursuant to § 2255 and the petition may not be dismissed as a collateral attack upon a sentence already served. Heflin v. United States, 358 U.S. 415, 79 S. Ct. 451, 3 L. Ed. 2d 407 (1958).
Turning to the first ground urged by petitioner -- that his 1957 guilty plea was involuntary and made without an understanding of the charges asserted against him and the consequences of pleading guilty -- his guilty plea would be valid and binding only if the court complied with Rule 11, F.R.C.P., as it existed at the time of the 1957 sentencing. In 1957 that rule provided in pertinent part that "The Court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge."
No particular pattern or ritual was prescribed to make the determination prescribed by Rule 11 as it then stood, United States v. Lester, 247 F.2d 496, 499 (2d Cir. 1957), but a certain minimum inquiry was essential. The district court was at least required to ascertain whether the defendant desired to plead guilty, did so voluntarily, and understood the nature of the charges and the range of possible punishment that could be imposed. United States v. Lester, 247 F.2d at 500 (and cases cited); United States v. Mack, 249 F.2d 421, 423 (7th Cir. 1957). Although the usual method of ascertaining the defendant's awareness of these matters has been through personal interrogation, the court was permitted in 1957 to satisfy itself through other sources, Halliday v. United States, 274 F. Supp. 737 (D. Mass. 1967); (cf. the changes in the provisions of Rule 11 to require personal interrogation of the defendant, supra n. 1). However, the fact that defendant had counsel, as petitioner did when he made his plea, did not minimize the court's obligation to inquire. As was said in Fultz v. United States, 365 F.2d 404, 408 (6th Cir. 1966):
"The representation of a defendant by counsel when he entered a plea of guilty would not, in itself, fulfill the requirements of the rule that a guilty plea shall not be accepted without first determining that it is made voluntarily with an understanding of the nature of the charge. United States v. Diggs, 304 F.2d 929 (C.A. 6). It is the duty of a federal judge before accepting a plea of guilty to thoroughly investigate the circumstances under which it is made. United States v. Lester, 247 F.2d 496 (C.A. 2)."
See also United States v. Lester, 247 F.2d 496 (2d Cir. 1957).
In the present case the stenographic transcript of the proceedings before Judge Noonan up to the point when petitioner's guilty plea was entered reveals the following:
MR. WALSH [Ass't U.S. Att'y]: The Government is ready, your Honor.
MR. SOLOMON [Counsel for other defendants]: Ready for disposition, sir.
MR. ALTMAN [Petitioner's counsel]: If your Honor please, I represent the defendant Paul Banks, the first defendant named in the indictment, and the defendant asks leave to withdraw his plea of not ...