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MULLINS v. UNITED STATES

August 2, 1996

JAMES H. MULLINS, a/k/a Frederick H. Moore, Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: POLLACK

 Milton Pollack, Senior District Court Judge:

 In the last 20 years, after an extensive juvenile history of lawlessness, followed by a significant adult arrest and conviction record, the petitioner, James H. Mullins (sometimes also known as Frederick H. Moore, or Robert R. Haas) engaged in the manufacture and distribution of dangerous narcotics known as PCP (Phencyclidine). He is quite literate, having been a high school graduate followed by some years of attendance at college where he accumulated credits as a medical technician major. He did not matriculate.

 The petitioner was indicted on felony narcotics offenses three times in the last 20 years; once in 1976, again in 1979 and again in 1991. His convictions on those indictments were in each case on pleas of guilty as charged. No appeal was taken from any of the convictions. He is presently imprisoned on the last of the convictions, which occurred on March 30, 1995 on his plea of guilty to the 1991 indictment. The Parole Commission has lodged a detainer against release from the present imprisonment. Petitioner's jail times meted out on the three convictions were respectively: (i) four and a half years; (ii) nine years consecutive to the first sentence; and (iii) 188 months. Each of the sentences of imprisonment was to be followed by Special Parole terms.

 The instant petition relates to the earliest of those three convictions.

 I.

 On July 19, 1976, Mullins pleaded guilty to manufacturing, distributing and possessing with intent to distribute approximately fourteen pounds of PCP. He fled following his guilty plea prior to the scheduled sentencing date. He was rearrested by Drug Enforcement agents more than three years later in the course of a new narcotics violation and was charged with another drug conspiracy.

 Mullins was brought to Court on January 7, 1980 and this Court sentenced him on his 1976 guilty plea to a term of four and one-half years, a $ 10,000 fine and a special parole term of two years following his release from confinement. Mullins now moves pursuant to 28 U.S.C. § 2255 to vacate that 1980 conviction, purporting to claim, pro se, that: (i) his guilty plea proceeding in 1976 did not satisfy the requirements of Rule 11, Fed. R. Crim. P.; and (ii) he was denied effective assistance of counsel.

 II.

 Rule 11 Claims

 Mullins' claims concerning the supposed inadequacies of the Rule 11 proceedings are, at the threshold, barred by his failure to raise those issues on direct appeal. Apart from the impediment to his claims, it is beyond cavil that no "constitutional or jurisdictional" error was involved in the plea proceedings; certainly there was no "complete miscarriage of justice" therein; nor were the proceedings "inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck, 441 U.S. 780, 783-84, 60 L. Ed. 2d 634, 99 S. Ct. 2085 (1979) (citing Hill v. United States, 368 U.S. 424, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962)). The petitioner does not and cannot demonstrate that he was prejudiced by any alleged inadequacy in the allocution on the notion that he did not understand the consequences of the plea, or that, if he had been orally further advised, he would not have pled guilty. See Lucas v. United States, 963 F.2d 8, 13 (2d Cir.), cert denied, 506 U.S. 895, 113 S. Ct. 270, 121 L. Ed. 2d 199 (1992). Collateral relief under § 2255 will not be available "when all that is shown is a failure to comply with the formal requirements of the Rule." Timmreck, 441 U.S. at 785.

 To head off claims such as Mullins', a written statement of the essentials to be covered under Rule 11 was created by the Court which the pleader was required to read in the Court's presence and then to aver that he understood its contents and the pleader would then be further questioned by the Court, as was done in this case. In that way the essentials were covered orally as expected under Rule 11. This procedure precluded any later attempt as is made here to suggest that constitutional rights were not enumerated verbally at the allocution.

 The pleader was also so told, and acknowledged to the Court, that a plea of guilty, if accepted, was a surrender of those rights and the Court would have the same power to impose ...


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