The opinion of the court was delivered by: PALMIERI
PALMIERI, District Judge.
Jaime Aviles moves pursuant to 28 U.S.C. § 2255 to vacate a plea of guilty entered before this Court on February 15, 1973. The basis for his motion is that decisions of the Second Circuit handed down subsequent to his plea and retroactively applied, permit him to claim an infirmity in his plea due to the failure of the Court to advise him of special parole.
Aviles, a seller of heroin with previous federal and state convictions for violations of the narcotics laws, pleaded guilty on February 15, 1973, to a one count indictment charging him with the distribution and possession with intent to distribute a Schedule I narcotic drug in violation of 21 U.S.C. § 841(a)(1). He was represented at all relevant steps in these proceedings, including this petition, by the same experienced counsel. He signed a formal waiver of constitutional rights and represented to the Court, through this form,
through his counsel, and independently, that he was aware of the possible penalty and had been fully advised on the subject by his attorney.
Immediately after the entry of this plea he pleaded guilty to an information charging him with a previous conviction for a narcotics offense under the federal narcotics laws and admitted to having been sentenced to a term of four years in prison by the United States District Court for the Eastern District of New York. The maximum sentence to which it was represented that he was exposed by his plea of guilty was 25 years in prison
and Aviles' counsel agreed that this was the case.
Petitioner now urges that his sentence be vacated and that he be permitted to plead anew to the indictment on the ground that his plea would subject him to a term of special parole. A previous petition pursuant to 28 U.S.C. § 2255, based on wholly different grounds, was denied by this Court without a hearing on January 31, 1975 (Docket No. 74 Civ. 4905, see opinion of this Court dated January 31, 1975.)
The minutes of the plea proceedings here in issue disclose that the Court did not inform Aviles of the requirement of special parole prior to the acceptance of his plea. Although there was no requirement at that time that such information be directly imparted to him by the Court, the contention is made that the plea was invalid and should be set aside by virtue of the retroactive application of a subsequently adopted rule. There is no affidavit by Aviles alleging that he was not aware of mandatory special parole or that such awareness would have changed his plea. There is no affidavit by his attorney to the effect that he did not inform Aviles of special parole or that, to the best of his knowledge, Aviles was unaware of it. At a conference called by the Court, Aviles' attorney said that he informed Aviles only of the maximum prison sentence
and declined an opportunity to present evidence on these matters saying that an evidentiary hearing would serve no purpose since he based the petition solely on the minutes of the plea proceedings.
The Recent Court of Appeals Decisions
In Michel v. United States, 507 F.2d 461 (2d Cir. 1974), the court stated that a defendant "not only should be advised that [special parole] will be imposed, but also should be asked by the court if he understands that fact." 507 F.2d at 463. In a later case, Ferguson v. United States, 513 F.2d 1011 (2d Cir. 1975), the court held that the rule announced in Michel should be applied retroactively. The court rejected the Government's contentions, stressed in its brief, that such an application of the Michel rule would bring about the disruption of a number of previous guilty pleas.
The Present Case Distinguished
What has been said would seem to impel the Court to permit the withdrawal of the plea in this case.
However, the Court is unable to take this step in view of important factual distinctions that can be drawn between the facts underlying the petition presently before the Court and the different factual situations confronted by the Second Circuit in reaching its decisions in the Michel and Ferguson cases. In Michel the denial of the petition was upheld on different grounds and the special parole rule was there announced as dictum. It was later adopted in the Ferguson decision. But the sentence imposed in the Ferguson case -- the number of years in prison added to the number of years of special parole -- exceeded the maximum sentence of which the defendant was advised.
In addition, Ferguson alleged that he was not aware of the special parole requirement and would not have pleaded guilty if he had been.
In the case presently before the Court, Aviles was told, so far as the sentencing minutes indicate, that he could receive a maximum term of 25 years, while the sentence actually imposed was 12 years in prison and 6 years special parole. In short, the penalty imposed on Aviles, in contrast with the penalty imposed in the Ferguson case, was actually less than the maximum of which he was advised. In addition, Aviles has not alleged that he was unaware of special parole or that he would have pleaded differently if he had been informed of it.
There is, therefore, no compelling precedent in the Second Circuit to indicate that the rule announced in Michel must apply retroactively notwithstanding the fact that the defendant received less than what he was led to believe he might receive as punishment. In first announcing the rule, by way of explication, the court said in Michel v. United States, supra:
. . .. Since special parole adds time to a regular sentence, it is within the Bye rationale. In Bye we said:
[the] unavailability of parole directly affects the length of time an accused will have to serve in prison. . . . It would seem that such a major effect on the length of possible incarceration would have great importance to an accused in considering whether to plead guilty."
435 F.2d at 180. We believe that the special parole here imposed is comparable and that the defendant not only should be advised that it will be imposed, but also should be asked by the court if he understands that fact. 507 F.2d at 463. (Footnote omitted)
In Aviles' plea which is here the subject of controversy, there could have been no "major effect on the length of possible incarceration" since Aviles was told he could possibly receive a substantially longer sentence than the one imposed.
While no Second Circuit case has dealt with the particular factual pattern here involved, at least three
other circuits have decided cases squarely on point. The Seventh Circuit held in Bachner v. United States, 517 F.2d 589 (1975), that the petitioner should not be allowed to replead when his prison term plus special parole was less than the maximum imprisonment of which he was advised because, on these facts
[failure] to advise a defendant of the mandatory parole term does not inherently result in a complete miscarriage of justice. 517 F.2d at 597.
The Fourth Circuit in Bell v. United States, 521 F.2d 713 (1975) held that, while the court should determine that a narcotics defendant understands that his guilty plea subjects him to a special parole term, failure to do so
is, however, harmless error when the sentence imposed on the defendant and the special parole term do not together exceed the maximum sentence specified at arraignment. 521 F.2d at 714.
This opinion carries the authority of an en banc decision because it was circulated to all members of the court and a majority concurred in it. 521 F.2d at 715 n. 3.
Bachner and Bell and their underlying theories are discussed below and found to be dispositive of the present case. The one case to the contrary, United States v. Richardson, 483 F.2d 516 (8th Cir. 1973) is not followed here because its authority has been weakened by the subsequent Supreme Court decision, Davis v. United ...