The opinion of the court was delivered by: LASKER
Petitioner Vitaya Isaraphanich moves pursuant to 28 U.S.C. § 2255 to vacate a judgment of conviction entered on March 22, 1979 following his plea of guilty to two counts of heroin distribution. Insaraphanich also requests a hearing on his claims and discovery of various Drug Enforcement Administration ("DEA") records. In addition, Isaraphanich has moved pursuant to 18 U.S.C. § 3000A(g) for the appointment of legal counsel. The motions are denied.
From March through September 1978 the DEA employed undercover agents and informers in an investigation that resulted in Isaraphanich's indictment on September 15, 1978 on charges of distribution of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). Isaraphanich thereafter agreed to cooperate with the government in its prosecution of another defendant indicted as a result of the same investigation. The government agreed to accept his plea of guilty to two of the four counts in his indictment -- which together carried a maximum sentence of 30 years imprisonment, $50,000 in fines, and a lifetime special parole term -- in full satisfaction of all pending or potential charges growing out of the activities upon which the indictment was based.
On October 20, 1978 Isaraphanich pleaded guilty before this court to two counts in his indictment charging him with distribution of 55.5 and 55.61 grams of heroin was sent-respectively.
On March 22, 1979 Isaraphanich was sentenced by this court to concurrent prison terms of ten years on each count as well as a special parole term. The execution of the sentence was thereupon suspended and the defendant placed on probation for a period of five years on each count, the probation periods to run concurrently.
Subsequently in an unrelated matter, according to Isaraphanich, he was sentenced in December 1982 in New York Supreme Court to a prison term of three to six years on his plea of guilty to a charge of Forgery in the Second De-gree.
Isaraphanich moves to vacate his conviction on virtually every constitutional ground suggested by the motion form made available to pro se litigants seeking to proceed under 28 U.S.C. § 2255. Isaraphanich contends that his conviction was obtained by the use of evidence obtained pursuant to an unconstitutional search and seizure of his person and residence, by the use of evidence obtained pursuant to his unlawful arrest, by a violation of his privilege against self-incrimination, and by the use of his coerced confession. Isaraphanich also claims that his plea of guilty was not made voluntarily, that the government failed to disclose evidence favorable to him, and that he was denied the effective assistance of counsel. Finally, Isaraphanich contends.that he has been denied his right to appeal his conviction and that his subsequent sentence on unrelated charges in New York State court constitutes a violation of the protection against double jeopardy.
At the heart of Isaraphanich's claims is his contention that he was entrapped by the government into committing the crimes to which he ultimately pleaded guilty. However, even were Isaraphanich to assert a sufficient factual basis for an entrapment defense --a question not reached in deciding this motion -- he still would not be entitled on that ground to have his conviction vacated. This is so because Isaraphanich's plea of guilty "was an admission of all the elements of a formal criminal charge" and by pleading guilty he "waived all ... non-jurisdictional defenses and cannot raise them now by collateral attack." LaMagna v. United States, 646 F.2d 775, 778 (2d Cir.), cert. denied, 454 U.S. 898, 102 S. Ct. 399, 70 L. Ed. 2d 214 (1981). Entrapment is a non-jurisdictional defense on the merits, Eaton v. United States, 458 F.2d 704, 707 (7th Cir.), cert. denied, 409 U.S. 880, 34 L. Ed. 2d 135, 93 S. Ct. 208 (1972), not a defense that goes to the power of the court to force the defendant to stand trial. Therefore, so long as Isaraphanich's guilty plea represented a voluntary and intelligent choice, United States v. Muench, 694 F.2d 28, 34 (2d Cir. 1982), cert. denied, 461 U.S. 908, 103 S. Ct. 1881, 76 L. Ed. 2d 811 (1983), he has waived the right to assert an entrapment defense.
For the same reasons Isaraphanich is not entitled to the vacating of his conviction on the basis of claimed antecedent constitutional infirmities such as unconstitutional search and seizure, unlawful arrest, coerced confession, and violation of the privilege against self-incrimination -- even assuming there is some factual basis for these allegations. The Supreme Court has held that
a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.
Tollett v. Henderson, 411 U.S. 258, 267, 36 L. Ed. 2d 235, 93 S. Ct. 1602 (1973). The only proper focus of a federal habeas inquiry in such a situation is the voluntary and intelligent character of the guilty plea. Id. at 266.
The question that must be addressed directly in deciding this motion, therefore, is whether Isaraphanich's plea of guilty "represent[ed] a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970). Three of petitioner's scattered claims challenge the validity of his plea in this regard. Isaraphanich contends (1) that his plea of guilty "was unlawfully induced, and not made voluntarily, and without understanding of the nature of the charge and the consequences of the plea"; (2) that the government "failed to disclose the unlawful conduct and operational schemes by the Government's agents and informers that were known to the prosecutors"; and (3) that the attorney who advised him with respect to his guilty plea failed to provide him with effective assistance of counsel.
Isaraphanich's claim that his plea was unlawfully induced and involuntary in the sense that it was made without an understanding of the charges or their consequences is belied by the plea minutes. On the morning this court took his plea, Isaraphanich had a choice of two interpreters -- one his friend, the other (whom he selected) provided by the government. Isaraphanich was represented by counsel, who was questioned about the extent of his involvement in petitioner's case as well as his estimation of petitioner's knowledge and understanding of the nature of the charges and the consequences of pleading guilty. Isaraphanich himself was then questioned about his understanding of the case and the extent of his lawyer's involvement, and he proceeded to recount the factual circumstances of each of the two counts to which he was prepared to plead guilty. Isaraphanich was also informed that by pleading guilty he was foregoing a jury trial, that a guilty plea was equivalent to a guilty verdict by a jury, that there was no right to appeal a lawful sentence based on such a plea, and he was told what the maximum sentence could be. The petitioner's cooperation with the government and its effect on his sentence was also ...