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July 2, 1970

Porfirio TIRU, Petitioner,
UNITED STATES of America, Respondent

Cooper, District Judge.

The opinion of the court was delivered by: COOPER


COOPER, District Judge.

 This is an application by petitioner Tiru pursuant to 28 U.S.C. § 2255 to vacate and set aside his sentence of five years imprisonment imposed by this Court on October 4, 1968 upon his plea of guilty entered July 26, 1968 to two counts of unlawfully, wilfully and knowingly receiving, concealing and facilitating the transportion and concealment of marijuana knowing it had been imported into the United States contrary to law, in violation of 21 U.S.C. § 176a. He contends his conviction cannot stand in light of Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969).

 On April 8, 1970 we concluded that the holding of the Supreme Court in Leary declaring unconstitutional the § 176a presumption of knowledge of illegal importation from possession of marijuana must be retroactively applied; that the standard for determining when an evidentiary hearing must be had to determine the voluntariness of a guilty plea was set forth by our circuit in United States ex rel. Ross v. McMann, 409 F.2d 1016, 1019 (2d Cir. 1969); and that applying that standard here "a genuine factual issue is presented warranting a full and fair hearing to determine whether or not the existence of the evidentiary presumption of § 176a was of sufficient influence on petitioner to render his plea [of guilty] involuntary." We appointed Edward S. Cowen, Esq., to represent petitioner Tiru on this § 2255 application.

 Subsequent to our order of April 8th, Ross was reversed sub nom. by the Supreme Court in McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (May 4, 1970). Accordingly, we invited both parties to address themselves to whether an evidentiary hearing on petitioner's claim is still warranted in light of the aforementioned reversal. Briefs were submitted by both sides.

 We believe Richardson1 mandates vacation of our prior decision to grant petitioner an evidentiary hearing and denial of his motion to vacate and set aside his sentence. The issue therein was "whether and to what extent an otherwise valid guilty plea may be impeached in collateral proceedings by assertions of proof that the plea was motivated by a prior coerced confession." 397 U.S. at 760, 90 S. Ct. at 1443. The Supreme Court held:

"The core of the Court of Appeals' holding is the proposition that if in a collateral proceeding a guilty plea is shown to have been triggered by a coerced confession -- if there would have been no plea had there been no confession -- the plea is vulnerable at least in cases coming from New York where the guilty plea was taken prior to Jackson v. Denno, supra [378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908]. We are unable to agree with the Court of Appeals on this proposition." 397 U.S. at 766, 90 S. Ct. at 1446.

 In arriving at this conclusion the Supreme Court first rejects the argument that the allegedly involuntary confession could render an otherwise valid guilty plea involuntary. Thus, the Court states:

"Since we are dealing with a defendant who deems his confession crucial to the State's case against him and who would go to trial if he thought his chances of acquittal were good, his decision to plead guilty or not turns on whether he thinks the law will allow his confession to be used against him. For the defendant who considers his confession involuntary and hence unusable against him at trial, tendering a plea of guilty would seem a most improbable alternative. The sensible course would be to contest his guilt, prevail on his confession claim at trial, on appeal or, if necessary, in a collateral proceeding and win acquittal, however guilty he might be. * * * If he nevertheless pleads guilty the plea can hardly be blamed on the confession which in his view was inadmissible evidence and no proper part of the State's case." 397 U.S. at 768, 90 S. Ct. at 1447.

 Similarly, here, the evidentiary inference of knowledge permitted by § 176a and which a jury was entitled to accept or reject appears to stand on the same footing. His plea of guilty, even if based on his belief the law will allow the statutory inference to be used against him, cannot be held involuntary. As with a confession, the sensible course would be to contest his guilt, convince the jury that he had no knowledge and that the inference, while permissible, should not be applied, or prevail before the trial judge or on appeal with his claim that the inference is illegal.

 Here, as in Richardson, the proper issue is whether his guilty plea was an intelligent act:

"A more credible explanation for a plea of guilty by a defendant who would go to trial except for his prior confession is his prediction that the law will permit his admissions to be used against him by the trier of fact. At least the probability of the State's being permitted to use the confession as evidence is sufficient to convince him that the State's case is too strong to contest and that a plea of guilty is the most advantageous course. Nothing in this train of events suggests that the defendant's plea, as distinguished from his confession, is an involuntary act. His later petition for collateral relief asserting that a coerced confession induced his plea is at most a claim that the admissibility of his confession was mistakenly assessed and that since he was erroneously advised, either under the then applicable law or under the law later announced, his plea was an unintelligent and voidable act. The Constitution, however, does not render pleas of guilty so vulnerable." Id.

 As we see it, petitioner's plea of guilty was a knowing and intelligent act. The standard for this determination is expressed by the Supreme Court in Richardson :

"Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was ...

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