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CONCEPCION v. UNITED STATES

June 2, 1983

SABINO CONCEPCION, a/k/a/ Roberto Valdez, Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: BRIEANT

MEMORANDUM AND ORDER

Brieant, J.

 On August 6, 1981, Sabino Concepcion, a/k/a/ Roberto Valdez, formerly a federal prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. On February 23, 1982, the United States Attorney filed an affidavit and a memorandum of law in opposition to the petition. On April 12, 1982, petitioner filed a "Traverse to Answer", in which he requested, alternatively, a writ of coram nobis. This Court has also received and considered the relevant papers and transcripts in petitioner's federal criminal case.

 In this action, petitioner challenges a 1966 federal narcotics conviction in this district because of a claimed failure to comply with the requirements of Rule 11, F.R.Cr.P. Petitioner pleaded guilty and has served his sentence. Petitioner was subsequently arrested and convicted by the State of New York on charges of robbery and assault. Because of his prior federal conviction, petitioner was given an enhanced sentence by the State of New York as a predicate felony offender. Petitioner now challenges his federal conviction, seeking to eliminate his recidivist status. He now claims that his plea did not comply with Rule 11 because a factual basis for the plea was not established. Petitioner also makes the conclusory claim that he did not knowingly and voluntarily plead guilty.

 I.

 The undisputed facts are as follows.In 1961 petitioner was arrested on federal narcotics charges and subsequently pleaded guilty. He was sentenced, and was released from federal custody.

 A year and a half later, petitioner was again arrested on federal narcotics charges. On November 9, 1966, a petitioner appeared before then Judge Tyler of this Court with the aid of a Spanish Interpreter. The Court appointed counsel to represent petitioner and then entertained petitioner's plea of guilty to the entire indictment. The transcript of the hearing reads, in relevant part as follows:

 "THE CLERK: Mr. Concepcion, do you understand the three charges in this indictment?

 THE DEFENDANT: Yes, sir.

 THE CLERK: An how do you plead?

 THE DEFENDANT: I would like to plead guilty.

 THE CLERK: To all three counts?

 THE DEFENDANT: Yes, sir.

 BY THE COURT:

 Mr. Concepcion, I understand from Mr. Moldow, [defense counsel] who is a very capable and experienced lawyer that he has gone through this rather carefully and in detail with you, but nevertheless I would like to ask you some questions which will be in effect repetitive, but I think I must: First of all, do you understand that if I accept your plea of guilty to these three counts, this means that you would be sentenced under the law to a term of at least ten years, because the Judge who will sentence you will have no other choice. The minimum would be ten years, and the maximum could be forty years.

 Now, theoretically that could be true on each of these three counts. I am not saying that it will be true, but it could be true. And I want you to understand that as carefully as you can.

 THE DEFENDANT: I understand, sir.

 THE COURT: You understand that?

 THE DEFENDANT: Yes, sir.

 Q Do you understand also that no one can make you any promises today as to what will happen to you in the form of a sentence; no one can do that, and no one, I assume, has tried to do that -- but even if they tried to, no one could make you any promises as to what the sentence might be. Specifically, for example, for instance, no one can assure you now that the sentence will be the minimum of ten years. It might very well be more; do you understand that?

 A Yes, sir.

 Q And nevertheless you are willing to plead guilty to each of these three counts?

 A Yes, sir.

 Q Has anybody made any threats against you in order to force you to come in here today and plead guilty to these counts?

 No, sir, I told him I was an addict. I was in the hospital and I couldn't help myself, and I have recommendations from the hospital.

 Q As I understand it then, you are coming in here of your own free ...


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