Appeals from orders of the District Court for the Southern District of New York, Dudley B. Bonsal, Judge, denying motions under 28 U.S.C. § 2255 and to amend judgment and relieve from judgment with respect to appellant's convictions on pleas of guilty to one count of violating the federal narcotics laws and one count of evading federal income taxes, and motion to reinstate a direct appeal from such convictions. The motion to reinstate the direct appeal is denied. On the appeal in the § 2255 proceeding, so much of the order as denied the petition to vacate the conviction on the income tax count is reversed with instructions to set the conviction aside and allow repleading; so much of the order as denied the petition to vacate the conviction on the narcotics count is reversed, with instructions to conduct an evidentiary hearing.
Before Kaufman, Chief Judge, and Friendly and Smith, Circuit Judges.
This is the fourth occasion on which this court has had to deal with two indictments of appellant Virgil Alessi. In one of these indictments, filed in the District Court for the Southern District of New York on August 4, 1975, Alessi and thirteen others were charged in 23 counts with violations of the federal narcotics laws, 21 U.S.C. §§ 173 and 174, and 18 U.S.C. § 2, and 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2. In the other, filed in the District Court for the Eastern District of New York on April 14, 1975, Alessi was charged in eight counts with various tax offenses in violation of 26 U.S.C. §§ 7201 and 7203. After complicated proceedings revolving around Alessi's unsuccessful contentions that both indictments violated the terms of a plea bargain with the Strike Force in the Eastern District of New York in connection with a 1972 narcotics indictment, see United States v. Alessi, 536 F.2d 978 (2d Cir. 1976) (E.D.N.Y. tax indictment); United States v. Alessi, 544 F.2d 1139 (2 Cir.), Cert. denied, 429 U.S. 960, 97 S. Ct. 384, 50 L. Ed. 2d 327 (1976) (S.D.N.Y. narcotics indictment), and an agreed transfer of the Eastern District tax indictment to the Southern District, Alessi, represented by Nancy Rosner, an experienced and resourceful attorney who had long been acting for him in these proceedings, on November 12, 1976, withdrew his prior not guilty plea on each indictment and pleaded guilty to one count in satisfaction of all charges in that indictment. The two counts were Count XVI of the narcotics indictment which charged that Alessi had aided and abetted the distribution and possession with intent to distribute of one-quarter of a kilogram of heroin, and Count Eight of the tax indictment which charged that he had committed the felony defined in 26 U.S.C. § 7201 in that during 1971 he had received taxable income of $37,221.66 on which he owed a tax of $9,036.12; that he was required to file an income tax return and pay the tax on or before April 15, 1972; and that he willfully and knowingly attempted to evade and defeat the tax by failing to make the return and pay the tax "and by concealing and attempting to conceal from all proper officers of the United States of America his true and correct taxable income." On January 5, 1977, Alessi was sentenced to 13 years in prison followed by 6 years special parole on the narcotics count and a consecutive term of 2 years in prison on the tax count.
In the spring of 1978 Alessi moved under 28 U.S.C. § 2255 to vacate both convictions on the ground of inadequacy of the proceedings in which the guilty pleas were taken. The court denied the motions without an evidentiary hearing in an opinion rendered on July 28, 1978. Thereafter, on September 18, 1978, Alessi made a motion, pursuant to F.R.Civ.P. 59(a) and (e) and 60(b), to amend the judgment and for relief therefrom, which, as the Government says, "was in essence a request that the District Court reconsider its denial of the Section 2255 motions." The court denied this on the following day. On September 26, 1978 Alessi filed notices of appeals from both orders of denial.
Shortly before filing his brief and appendix on the appeals, Alessi, on November 17, 1978, moved this court to reinstate a direct appeal from the convictions, which had been taken on his behalf by Ms. Rosner on January 17, 1977, but had been dismissed by the Clerk on May 11, 1977, for failure to comply with a scheduling order. Chief Judge Kaufman denied the motion without prejudice to renewal at the argument of the appeal in the § 2255 proceeding.
The circumstances claimed to warrant reinstatement of the appeal are as follows: Alessi informed Ms. Rosner in January or early February 1977 of his desire to have his guilty pleas nullified. Allegedly she declined to assist him and did not notify him that she had already filed a notice of appeal. A scheduling order sent to Ms. Rosner's office set March 2, 1977 as the date for filing the record and March 21, 1977 as the date for filing the brief and appendix. Ms. Rosner wrote the Clerk that "Mr. Alessi informed us through his present counsel, Jeffrey Hoffman, Esq., that he did not wish to pursue his appeal."*fn1 Alessi claims to have been unaware of this letter. When the Clerk's office called Mr. Hoffman for confirmation, the answer was that Hoffman was not representing Alessi on the appeal. Alessi claims that he also was not informed of this. He argues that the failure to prosecute the appeal was due to neglect by Ms. Rosner and Mr. Hoffman to keep him informed.
We find it exceedingly hard to believe that Alessi, who has benefited from most vigorous representation in his brushes with the law before and since the 1975 indictments, was as bereft of "the guiding hand of counsel," Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 77 L. Ed. 158 (1932), as he claims to have been with respect to the appeal in the spring of 1977. Certainly he has had most diligent counsel since the filing of the § 2255 motion in the spring of 1978. Yet it was not until the fall of that year, after the district court had denied the § 2255 motion and its sequel, that counsel moved to reinstate the direct appeal, obviously for the purpose of gaining the more liberal standard of review prevailing in this circuit on direct appeals from that on collateral attack upon convictions after guilty pleas. See Del Vecchio v. United States, 556 F.2d 106, (2 Cir. 1977). To permit reinstatement of the appeal nearly three years after the convictions would create the very evils which the Del Vecchio distinction aimed to prevent, see 556 F.2d at 109. One reason for allowing collateral attack is to afford a limited possibility of relief to persons, such as Alessi claims to be, who have suffered from the neglect of counsel in pressing appeals. The circumstance that here an appeal was taken, although, as Alessi claims, without his knowledge, but was not prosecuted, does not entitle him to stand better than a defendant for whom no notice of appeal was filed. We therefore decline to reinstate the appeal.
As noted in Del Vecchio, supra, 556 F.2d at 111, the Seventh, Eighth and Tenth Circuits have ruled, relying on the quotation in Davis v. United States, 417 U.S. 333, 346, 94 S. Ct. 2298, 41 L. Ed. 2d 109 (1974), from Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962), that defects in taking guilty pleas warrant the grant of § 2255 relief only if there was "a fundamental defect which inherently results in a complete miscarriage of justice" and the case presents "exceptional circumstances where the need for the remedy afforded by the writ of Habeas corpus is apparent."*fn2 The statements of these circuits reflect, as Judge Feinberg said for us in Del Vecchio, supra, 556 F.2d at 111, "the requirement that a defendant must at least show prejudice affecting the fairness of the proceedings or the voluntariness of the plea in order to succeed in a collateral attack based upon a Rule 11 violation." A conflict on this subject will doubtless be resolved as a result of the grant of certiorari, -- - U.S. -- , 99 S. Ct. 830, 59 L. Ed. 2d 30 (1979), to review Timmreck v. United States, 577 F.2d 372 (6 Cir. 1978). We will continue to follow Del Vecchio unless otherwise instructed.*fn3
For purposes of disposition here it will not be necessary to consider all of Alessi's manifold criticisms of the allocution, many of which, even if well-founded, do not rise to the Hill-Davis-Del Vecchio level. We shall concentrate rather on two claims that come within that test. These are that Alessi did not understand the nature of the charges to which he was pleading guilty, McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); Henderson v. Morgan, 426 U.S. 637, 645, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976); Irizarry v. United States, 508 F.2d 960, 964-65 (2 Cir. 1974), and that there were no factual bases for the pleas, North Carolina v. Alford, 400 U.S. 25, 38 & n.10, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); U. S. ex rel. Dunn v. Casscles, 494 F.2d 397, 399-400 (2 Cir. 1974).
We shall deal first with the plea to Count Eight of the tax indictment. After having quoted the charge and elicited that Alessi understood it and had told Ms. Rosner "the whole story about that," the judge went on as follows:
Q Did you have an income of approximately ($37,000) in 1971?
A Yes, I did, your Honor.
Q Did you file a tax return?