United States v. Timmreck

PETITIONER:United States
RESPONDENT:Timmreck
LOCATION:Butler Residence

DOCKET NO.: 78-744
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 441 US 780 (1979)
ARGUED: Apr 16, 1979
DECIDED: May 21, 1979

ADVOCATES:
Kenneth Steven Geller – for petitioner
Kenneth M. Mogill – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – April 16, 1979 in United States v. Timmreck

Warren E. Burger:

We’ll hear arguments next in United States against Timmreck.

Mr. Geller, I think you may proceed when you’re ready.

Kenneth Steven Geller:

Thank you, Mr. Chief Justice and may it please the Court.

This case is here on a writ of certiorari to the United States Court of Appeals for the Sixth Circuit.

The issue is whether a defendant is entitled to collateral relief from his conviction under 28 U.S.C. 2255 merely because the district judge failed to follow the formal requirements of Rule 11 of the Federal Rules of Criminal Procedure in accepting his guilty plea.

We believe that under this Court’s consistent interpretation of the scope of habeas corpus for non-constitutional errors, respondent was not entitled to Section 2255 relief as a result of this violation of the rule and that the Court of Appeals therefore erred in reversing the District Court’s order denying the writ.

The facts may be briefly summarized as follows.Respondent was one of 22 defendants named in a narcotics conspiracy indictment filed in the Eastern District of Michigan in May 1972.

After extensive plea bargaining, respondent agreed to plead guilty to the conspiracy count of the indictment.

In return, the Government agreed to drop the remaining 17 substantive counts and also agreed not to pursue an unrelated bail jumping charge against him.

The District Court then conducted a Rule 11 proceeding at which it questioned respondent prior to determining whether to accept his plea.

There’s no dispute that the Court’s inquiry at this proceeding fully complied with Rule 11 in every respect except one.

Although the court mentioned that if respondent pleaded guilty he could be sentenced to 15 years imprisonment and a 5 — and $25,000 fine.

The court neglected to add that responded could all — would also be subject to a mandatory special parole term of at least three years.

Four months later, respondent was sentenced to 10 years in prison, 5 years special parole, and to a $5,000 fine.

Now, respondent did not appeal his conviction nor during the following two years did he signal his displeasure with any other aspect of his plea in any way.

In August 1976 however, respondent moved to vacate his sentence under Section 2255, alleging for the first time that the District Court had violated Rule 11 in it — by failing to mention the special parole term at the time of his plea.

Motion is set out at page 11 of the joint appendix.

It alleges only that Rule 11 was violated.

It doesn’t expressly state that respondent was actually unaware of the special parole provisions when he pleaded guilty and more important, it doesn’t claim that respondent wouldn’t have entered the exact same guilty plea if the judge had notified him on the record of the special parole requirement.

In fact, the motion doesn’t allege that respondent was prejudiced in any way by a violation of the rule.

And the same can be said for respondent’s allegations in his memorandum in support of his motion which is set out beginning at page 14 of the appendix and the oral argument that the hearing on that motion which begins at page 18 of the joint appendix.

No allegation of actual prejudice.

Now, the District Court denied respondent’s 2255 motion.

The court acknowledged that it hadn’t complied fully with Rule 11 in taking respondent’s plea but it concluded that respondent had — respondent hadn’t been harmed in any way by the technical error and that he therefore was entitled to Section 2255 relief.

The court noted that there were strong indications in the record that respondent had been informed by his attorney of the consequences of his plea prior to pleading guilty.

But that even if he hadn’t in light of all the factors involved in the plea bargain, knowledge of the special parole provisions wouldn’t have influenced respondent’s decision to plea guilty.

The Sixth Circuit reversed and remanded with instructions to vacate respondent’s conviction and to allow him to plead anew.

The Court of Appeals didn’t dispute any of the District Court’s fact findings but it held relying primarily on this Court’s decision in McCarthy against the United States that since Rule 11 had been violated, respondent was automatically entitled to withdraw his plea without regard to whether he was actually prejudiced by the defect or whether he had raised the Rule 11 violation on direct appeal or on collateral attack.

Now, I think it would be helpful for me to begin my discussion by explaining the limits of the Government’s submission in this case.

We certainly don’t contend that a defendant who pleads guilty is there ever foreclosed from ever attacking his guilty plea.

Kenneth Steven Geller:

Defendant has a number of adequate remedies.

He can move to withdraw his plea before sentencing and under Rule 32 (d), withdrawal for virtually any reason is to be freely allowed at that stage.

And after sentence has been imposed, the defendant may appeal his conviction and may of course raise any objections he may have to the plea taking procedure or to the plea itself.

And even after the time for appeal has run and the conviction has become final, a defendant unquestionably may always attack his conviction collaterally under Section 2255 if the plea was involuntary or otherwise constitutionally defective.

Our contention here is simply that a defendant who foregoes all of these remedies is not entitled to collateral relief from his conviction.

Often as in this case, years after his guilty plea when all that he can show is that some portion of Rule 11 was not complied with when his plea was accepted.

We believe that on collateral attack there must also be some showing of substantial prejudice to the defendant either in the sense that the Rule 11 error materially affected the defendant’s decision to plead guilty or because for any other reason it would be manifestly unjust to hold him to his plea.

This standard of collateral review of non-constitutional errors is one that this Court has frequently applied.

And perhaps the case closest in point is Hill against the United States in 368 U.S.

That case like this one involved a motion to vacate sentence under Section 2255 by a defendant who claimed that his conviction had been entered in violation of a rule of criminal procedure.

The rule involved there was Rule 32 (a) which gives a defendant an absolute right to make a statement prior to sentencing.

Although the court acknowledged in Hill that the right guaranteed to defendant by Rule 32 (a) was an important one and that the defect would’ve required vacation of the defendant’s sentence if it had been raised on direct appeal, the court denied collateral relief, saying that the error was not a fundamental defect that inherently results in a complete miscarriage of justice.

William H. Rehnquist:

Mr. Geller, was there anything said in Hill about prejudice?

I had read Hill to simply mean this is not the kind of thing for which you can have collateral relief, period.

Kenneth Steven Geller:

Well, the court could have decided Hill, I think, on the ground that, not having appealed, Hill was foreclosed from getting collateral relief.

But it went on.

It didn’t go off on that ground.

It went on to discuss what the requirements are for getting collateral relief for a non-constitutional plea and it set forth the standard that we rely on here which is that there must be a fundamental defect that inherently results in a substantial miscarriage of justice.

William H. Rehnquist:

But it — is it because the nature of the fundamental defect is such that the defect will inevitably in every case result in a denial of justice or is it a question of prejudice case by case?

Kenneth Steven Geller:

I think that there must be a case by case determination.

William H. Rehnquist:

Is that the way you read Hill?

Kenneth Steven Geller:

Well, Hill says that on the — for a Rule 32 error, the only remedy is a direct appeal.

William H. Rehnquist:

You just can’t have collateral review on it for a Rule 32 violation no matter how badly you are prejudiced by it.

Kenneth Steven Geller:

Well, except, I suppose, in the situation of a change in law such as in the Davis situation.

That made that to limited exception but otherwise I would agree with Your Honor.

The court added in Hill that collateral relief as I said, is not available in that type of situation.

And the same statements that the court made in Hill were repeated even more recently in the Davis case in 417 U.S. and again in Stone against Powell.

In light of these decisions, we think it’s rather clear that respondent’s claim which as the District Court noted amounts to nothing more than the assertion that Rule 11 was violated when he pleaded guilty is not cognizable under Section 2255.

William H. Rehnquist:

But when you include Stone against Powell along with Hill and Davis, in Stone against Powell there was a clear claim of a constitutional violation that would, except for some other rule be cognizable on 2255, wouldn’t it?

Kenneth Steven Geller:

That’s right.

Kenneth Steven Geller:

There were other reasons aside from the scope of habeas corpus which led the court — Stone against Powell not to grant the writ — reasons that related to the exclusionary rule.

Byron R. White:

I take it then if the claim was inadequate assistance of counsel, you’d have a different view.

Kenneth Steven Geller:

Yes, that would be a constitutional error that — assuming there was no procedural default which would prevent its being raised on collateral attack, we concede would be — Section 2255 relief would be available.

Byron R. White:

Is there a procedural default?

Certainly, pleading guilty doesn’t waive inadequate —

Kenneth Steven Geller:

No.

Byron R. White:

— can it — inadequate counsel claim, is it?

Kenneth Steven Geller:

I would assume not.

Inadequacy of counsel claim has never been raised in this case.

Byron R. White:

So, what procedural default would bar a –inadequate?

Kenneth Steven Geller:

Well, I assume if the new counsel handled an appeal and decided not — for whatever reason, decided not to raise inadequacy of counsel at trial on the direct appeal that might preclude habeas corpus relief later on.

But that again —

Byron R. White:

Not until they — not if they took it back to the state courts and exhaust it?

Kenneth Steven Geller:

Well, when you’re dealing with 2254 relief, there may be questions of comity but I think in Section 2255 that absence of —

Byron R. White:

Well, if you’ve exhausted it in the state courts, you’ve exhausted it.

Kenneth Steven Geller:

That’s right, but if there is cause for not raising the issue on direct appeal then there may be — that may be allowable to raise the Section on 22 — raise the claim on Section 2254 or 2255.

But that of course is the rule in cases of constitutional errors and the court has always drawn a distinction between a constitutional and non-constitutional error as far as the availability of collateral attack.

Warren E. Burger:

What about the failure to inform?

Assume a failure to inform the client before the Rule 11 hearing that the minimum mandatory was three years before parole could be considered, would the failure to inform the client of that be ineffective assistance of counsel?

Kenneth Steven Geller:

Well, I hesitate to answer that —

Warren E. Burger:

On a whole record of this kind of (Voice Overlap) —

Kenneth Steven Geller:

I would think not.

Not as — that’s our argument here, essentially that what’s important is whether the defendant would have pleaded guilty nonetheless.

If he would have, even if he had been given this advice which he says he was not given, then we don’t see how he has been prejudiced and in the absence of prejudice he’s not entitled to collateral relief.

Warren E. Burger:

Well, the representation at least as the district judge construed it was that the represent — that the defense counsel had represented that he had informed his client with all these elements, was that not so?

Kenneth Steven Geller:

That’s correct.

The District Court —

Warren E. Burger:

And the — is there in effect a fact finding that was so?

Kenneth Steven Geller:

That’s one of the grounds we rely on.

Byron R. White:

But if — he didn’t testified that he informed him specifically in this —

Kenneth Steven Geller:

No, that’s correct.

There are — they —

Byron R. White:

He just said, generally, his practice is to —

Kenneth Steven Geller:

Well, there are two things that petitioner of course rely on.

Byron R. White:

But he had no specific recollection of advising this person of this particular issue.

Kenneth Steven Geller:

That’s correct but although the District Court relied on two separate statements by defense counsel.

One was a statement at the Rule 11 proceeding itself that he had advised his — that he was — of the view that his client was aware of the consequences of his plea.

And then the second statement is the one that you just referred to Justice White, which is at the Section 2255 hearing a few years later when counsel said that it was his practice before allowing a client to plead guilty to advice that client of the consequences of the plea although he couldn’t say whether in this particular case, two years or so having past, he had actually done so.

But there were two separate statements by counsel that the District Court relied on in inferring that respondent actually knew of the special parole term.

But that wasn’t the only string to the District Court’s bow and it’s not ours.

We also alleged that respondent would not have changed his plea from not — from guilty to not guilty if he had been informed of the special parole term.

The District Court make that finding also and we think that that finding which respondent has never challenged is amply supported by the record in this case.

Warren E. Burger:

Are there not a line of civil cases with respect to wills and to some extent, some of them notarial acknowledgments that years after the event where the notary or the witness to a will cannot have any — and he says he does not have any personal recollection of the event but that his practice was never to sign a will unless he saw the testator sign it or never to take an acknowledgment unless the person personally appeared before him.

That line of cases is that the testimony as to general practice is sufficient to carry the day.

Kenneth Steven Geller:

Well, I agree that —

Warren E. Burger:

How do you apply that?

Do you think that’s equally applicable to a criminal?

Kenneth Steven Geller:

I think that it is of probative value that defense counsel stated at the Section 2255 hearing that it was his practice not to allow a client to plead guilty before making certain that that client was aware of the consequences of the plea.

And I think it was certainly open to the District Court to take that into account than making the fact finding which we rely on here.

Now, as I mentioned —

John Paul Stevens:

Mr. Geller, before you go on, if I understand the Government’s position correctly the District Court should not even have had a hearing because the allegations really weren’t sufficient to raise it.

Kenneth Steven Geller:

That’s correct.

John Paul Stevens:

Of course they did have the hearing here.

And you’ve — you attach weight to whether he would’ve pleaded guilty or not.

There were a group of cases about 10 years ago on the question when there is no eligibility for parole in a failure — I’m sure you’ve read some of those cases, failure to advice the defendant of ineligibility.

Under your view, would that be ground for collateral damage?

Kenneth Steven Geller:

I think you’d have to engage in the same sort of inquiry we suggest here which is, that if the defendant had not been told of his ineligibility for parole.

John Paul Stevens:

Assume that, violation of Rule 11 (Voice Overlap) —

Kenneth Steven Geller:

No, I don’t say that there — there would not be a per se rule.

You would have to make a determination whether — oh, excuse me, I am to assume that he wouldn’t have pleaded guilty if he had —

John Paul Stevens:

No, I just say, assume that he was not advised.

Kenneth Steven Geller:

Oh, assuming that he had —

John Paul Stevens:

And therefore a violation of Rule 11.

Kenneth Steven Geller:

Yes, the Rule — we — you would still have to engage in the case by case analysis that we suggest here on collateral attack to determine whether that defendant if he had been told that he was ineligible for parole would’ve changed this plea from guilty to not guilty.

I think that arose in a number of Seventh Circuit cases.

Byron R. White:

And if you say —

John Paul Stevens:

So, we never put it off on that ground though.

We didn’t —

Kenneth Steven Geller:

Excuse me?

John Paul Stevens:

And would you say that anything counsel tells him the judge needn’t tell him even though Rule 11 requires it?

Kenneth Steven Geller:

Not when the question is — has Rule 11 been violated.

Certainly, Rule 11 requires the District Court to tell the defendant certain things, but —

John Paul Stevens:

Yes, yes I agree there’d — that’d be a violation but how about —

Kenneth Steven Geller:

That would be a violation of Rule 11.

John Paul Stevens:

— how about collateral attacks?

Kenneth Steven Geller:

On collateral attack, certainly it’s exceedingly important what the defendant knew and not who told him in determining whether or not there has been prejudice in holding him to his guilty plea.

Certainly it would be exceedingly relevant if — although the District Court violated Rule 11 in not telling the defendant certain things his attorney told him that information, certainly.

But, as I mentioned here respondent has never alleged that he wouldn’t have pleaded guilty if he had known about the special parole term.

And the District Court expressly found that the Rule 11 error had no effect on its decision to enter his plea.

And this fact finding certainly supported by the evidence, respondent obtained the dismissal of 17 serious narcotics counts and a bail jumping charge by pleading guilty to the one count in this case and he unquestionably knew that his guilty plea could result in a sentence to about 15 years in prison and a $25,000 fine.

I might also add in this regard that at the time the respondent pleaded guilty several of his codefendants were undergoing a trial in the eastern district of Michigan at which the Government was presenting devastating evidence against them, evidence that would’ve been, I think, equally probative of respondent’s guilt.

That also, I’m sure, entered into respondent’s decision —

Byron R. White:

Is that in the record?

Kenneth Steven Geller:

— to plead — yes, it is, during the Section 2255 hearing.

Byron R. White:

The devastating evidence?

Kenneth Steven Geller:

Yes.

Well, actually, the court does make certain statements during the Rule 11 proceeding about how the trial was going on at the moment and either in that proceeding or in the Section 2255 hearing he does make certain statements about the overwhelming weight of the evidence that was being introduced at that trial.

Thurgood Marshall:

How did he know about —

Kenneth Steven Geller:

Excuse me?

Thurgood Marshall:

How did the judge know about what’s going on in somebody else’s trial?

Kenneth Steven Geller:

The judge was trying that case.

Thurgood Marshall:

Oh.

Kenneth Steven Geller:

So, like the District Court in light of these factors, we think it’s exceedingly improbable that that respondent would’ve changed his mind about the plea bargain if he had been informed that he could also be sentenced to a term of special parole which would not have any appreciable effects upon him unless he were years later to violate the conditions of the parole.

Moreover, there’s no manifest in justice in holding respondent to this guilty plea.

As I just mentioned, respondent knew he — when he pleaded guilty that he could be sentenced up to 15 years imprisonment.

And his eventual sentence of 10 years imprisonment plus 5 years special parole is therefore no greater for practical purposes.

It’s substantially less than he was told he could receive.

Even if respondent violates the conditions of the special parole and the parole commission determines to send him back to prison for that 5-year period he can’t serve more than the 15 years in prison that he knew was his exposure when he pleaded guilty.

Now, perhaps the most important reason in our view why respondent isn’t entitled to Section 2255 relief as a result of this non-constitutional violation is that this is hardly a situation where as the court said in Hill, the need for the remedy afforded by the writ of habeas corpus is apparent.

There’s no reason why this Rule 11 defect couldn’t have been raised on direct appeal.

All the relevant facts relating to the violation are apparent on the face of the record.

And respondent who had the advice of counsel should’ve been aware at the time of sentencing that the trial judge had neglected to mention the special parole term when the plea was taken.

This is especially true I would think when a — if a defendant’s ignorance of the special parole term truly played a meaningful role in his decision to enter the guilty plea.

There’s no reason why a defendant such as respondent should be allowed to forego direct appeal and to wait several years to raise a claim such as this.

Potter Stewart:

It was a guilty plea?

Kenneth Steven Geller:

Yes.

Potter Stewart:

On a conviction basically.

Kenneth Steven Geller:

Now —

Potter Stewart:

It used to be considered a little odd for somebody who had pleaded guilty and been found — and had been convicted on the basis of his plea of guilty immediately to take an appeal.

I guess it’s — there’s no problem about that anymore, is there?

Kenneth Steven Geller:

Well, McCarthy was a case just like that.

Guilt — it was a direct appeal after a guilty plea.

There’s no bar to doing it if the violation relates to the plea taking procedures itself rather than some antecedent —

Potter Stewart:

Well, is there any bar anyway?

Kenneth Steven Geller:

Excuse me?

Potter Stewart:

There’s no bar anyway, I guess, anymore, is there?

Kenneth Steven Geller:

Well, a guilty plea waives any antecedent constitutional violations.

Potter Stewart:

But nonetheless, you can take an appeal.

Kenneth Steven Geller:

You can take an appeal although you won’t be very successful, I would assume.

Potter Stewart:

And — on many grounds.

John Paul Stevens:

There’s a time problem too, he’d do it promptly.

But, what — does the record show when the defendant here first became aware of the special parole term?

Kenneth Steven Geller:

No, it doesn’t.

John Paul Stevens:

So, we don’t know whether he knew it before the time of appeal had run.

Kenneth Steven Geller:

Well, the fact is he was sentenced to a special parole term.

So, he knew —

John Paul Stevens:

I understand, but if it’s in writing he may — you know, he said documents are rather complicated to read in some ways.

Kenneth Steven Geller:

Well, he had the advice of counting — assistance of counsel this time.

If in fact he pleaded guilty because he didn’t know anything about a special parole term and he never thought he would be exposed to one, it seems to me that he should’ve been curious about what it was when he was sentenced to it.

John Paul Stevens:

Well, but he didn’t start to serve it right away.

Kenneth Steven Geller:

No, but he should’ve been aware of it at that point and if he thought he got sentenced to something greater than he had bargained for, I want to assume he would’ve raised it.

John Paul Stevens:

But you just said the record doesn’t show whether he became aware of it until after the appeal time it ran.

Kenneth Steven Geller:

That’s true, but he — if he was aware of it at that point, presumably he would–

John Paul Stevens:

But if he was, we don’t know whether he was or not.

Kenneth Steven Geller:

That’s correct.

William H. Rehnquist:

I suppose if one were sentenced to 10 consecutive terms in open court, he wouldn’t start actually serving the 10th consecutive term, say of 5 years for 45 years.

Kenneth Steven Geller:

That’s right but, presumably he should be aware at that moment if he’s been given a greater sentence than he thought he was exposing himself to by pleading guilty.

Now, the Court of Appeals didn’t necessarily disagree with any of the ar — many of the arguments that I’ve just made about the scope of collateral attack.

In fact, the Sixth Circuit candidly remarked that the Rule 11 violation at this case — in this case did not seem to rise to the level of a ?fundamental defect which inherently results in a complete miscarriage of justice.?

Nonetheless, the court felt that respondent was entitled to relief because of the presumptive prejudice rule of McCarthy.

The court read McCarthy as holding that a Rule 11 violation is per se prejudicial to the defendant and thus satisfies the Hill and Davis test.

Now, we’ve explained in our brief why we think that the automatic reversal rule of McCarthy which was announced in the exercise of this Court’s supervisory powers rather than as a rule of constitutional law may have outlived its usefulness especially since there’s now a new version of Rule 11 in effect.

But, whether or not some of the premises of McCarthy should now be reexamined and I don’t think the court has to reach that issue in this case.

We believe that the automatic reversal rule has no place in a motion to vacate sentence under Section 2255 where the sole relevant inquiry is whether the particular defendant’s detention is unlawful.

McCarthy, of course, was a direct a appeal and there’s nothing in the court’s opinion to suggest that every violation of Rule 11 constitutes the sort of substantial prejudice or a complete miscarriage of justice that would entitle a defendant to habeas corpus relief.

In fact —

Thurgood Marshall:

Mr. Geller, couldn’t we maintain your position by merely saying the two findings that the District Court were enough and not get into the general rule of how far 2255 goes?

Kenneth Steven Geller:

I think you can but I think what you have to confront is what the Sixth Circuit held in this case which is that the automatic reversal rule that this Court promulgated in McCarthy has no application on collateral attack.

I think you’d have to say, which is what we suggest the correct rule is, that on collateral attack, there is no such thing as presumptive prejudice.

The defendant has to show that he has actually been prejudiced.

Kenneth Steven Geller:

Now, I think if the court adopts that —

Thurgood Marshall:

That’s alright but as I understand this party himself in the District Court said in so many words that he hadn’t been prejudiced.

Kenneth Steven Geller:

He’s never alleged that he has been.

That’s correct.

Thurgood Marshall:

He didn’t.

Well, isn’t that enough?

Kenneth Steven Geller:

Well, except as I say, if he doesn’t have to prove prejudice to be entitled to relief because of a Rule 11 violation, which is what the Sixth Circuit said.

We think this Court should reject the notion that on collateral attack a presumptive prejudice rule should apply and that it should be up to the defendant on a 2255 motion to show actual prejudice which, as I agree with Your Honor, he can’t do in this case.

Now, this Court is well aware of the strong societal interest in the finality of judgments in criminal cases and while society may be willing to incur the substantial costs associated with collateral attacks in order to correct or — errors of constitutional magnitude or cases where a prisoner has been grievously harmed and the writ is the only effective means of preserving his rights.

We believe that a contrary result is clearly dictated in cases involving non-constitutional violations especially where those violations could’ve been raised on direct appeal.

Since the Rule 11 error in this case didn’t influence respondent’s decision to plead guilty or otherwise lead to a complete miscarriage of justice we believe that respondent should’ve raised the technical violation on direct appeal or not at all.

The interest of justice is certainly not served by allowing defendants such as respondent’s unlimited time and a free option to undo their convictions by establishing a non-prejudicial omission on their Rule 11 inquiry.

The Court of Appeals in our view therefore, erred in holding that respondent was automatically entitled to vacate his conviction under Section 2255.

We submit that accordingly, this Court should reverse the judgment below.

Thank you.

Warren E. Burger:

Very well, Mr. Geller.

Mr. Mogill.

Kenneth M. Mogill:

Mr. Chief Justice and if it please the Court.

At issue in this case is the continuing availability of Section 2255 relief to persons who have no other remedy available to them and were in custody in consequence of police taken without advice of the full penal consequences of their pleas.

Also at issue is the standard of review to be applied in cases raising such claims.

I think it’s important initially to make clear that the statement of facts offered by the Government is inadequate and it does not fully represent the facts of this case.

Warren E. Burger:

Well, are we free to rely on the colloquy that’s in the record, the (Voice Overlap) –?

Kenneth M. Mogill:

Certainly, and I would like briefly however, to point out to the court where the facts offered by the Government are insufficient.

It is —

Warren E. Burger:

But you don’t contend that this transcript is inaccurate in any respect?

Kenneth M. Mogill:

Certainly not.

In fact I’m relying on the transcript in pointing out to the court that at the time Mr. Timmreck offered his plea he specifically affirmatively stated to the district judge that he was not aware of the consequences of his plea.

The district judge advised Mr. Timmreck that he was subject to a potential 15 years maximum incarceration.

The district judge did not advice Mr. Timmreck that a mandatory special parole term of three years must be applied, if a custodial sentence were imposed, and the —

Warren E. Burger:

Do you suggest that the district judge’s finding that he was informed — was not permissible under your representation that that was your practice to inform the client and — but that you didn’t have any independent recollection at the time?

Kenneth M. Mogill:

I don’t think the district judge made a finding that Mr. Timmreck was informed.

Warren E. Burger:

Well, he in effect made a — such a finding.

Kenneth M. Mogill:

I think he concluded that — well, I think the report —

Warren E. Burger:

He concluded that the — that your — that you had adequately informed your client.

Kenneth M. Mogill:

The important points here are two.

One, regardless of whether I informed Mr. Timmreck of the mandatory special parole term, it is clear that at the time he offered his plea, he was not aware of it.

He so indicated to the judge.

And the second point that is important, and its part of the reasoning underlying the particular requirements of Rule 11 is that Rule 11 is designed to ensure that the adequacy of the record of voluntary plea appears from the four corners of the record of the plea and it does not require any fact finding outside that record in it.

Warren E. Burger:

When as you say he responded that he did not understand fully and the judge told him he was subject to a 15 year imprisonment, what was your obligation to the court at that time —

Kenneth M. Mogill:

I think my obligation —

Warren E. Burger:

— to your client?

Kenneth M. Mogill:

I’m sorry, I didn’t mean —

Warren E. Burger:

What was your obligation to the court and to your client?

Kenneth M. Mogill:

My obligation was the same as that of the Assistant United States Attorney and both of us candidly apparently missed the fact that the district judge failed to advice him.

Had I caught it, it would’ve been my obligation to advice the court that it failed to mention that a mandatory special parole term of at least three years and possibly up to life was to be imposed in the event of a custodial sentence.

It would also have been the Assistant United States Attorney’s obligation.

I think that it’s important for the court to note that both parties — counsel for both parties inadvertently for the same reasons as the district judge inadvertently neglected to advice respondent of the mandatory special parole term but that in fact, that did occur and that respondent had indicated that he was not aware of the consequences.

Thurgood Marshall:

Didn’t you have several days talking to your client?

Kenneth M. Mogill:

There were no problems in terms of communication with my client.

Thurgood Marshall:

What I mean — you mean he forgot it for a whole lot of days?

How long were you talking to him before he pleaded guilty?

Kenneth M. Mogill:

There is nothing in the record of this case indicating the time period involved in communication between counsel —

Thurgood Marshall:

It was before he walked into the corridor.

Kenneth M. Mogill:

Certainly.

Thurgood Marshall:

And before you walked in the courtroom, you entirely advised yourself as to the law involved, didn’t you?

Kenneth M. Mogill:

I have no present recollection.

Thurgood Marshall:

Didn’t you?

Kenneth M. Mogill:

But the record indicates that —

Thurgood Marshall:

Oh, well, don’t you usually —

Kenneth M. Mogill:

As the record reflects —

Thurgood Marshall:

— find out what the law is?

Kenneth M. Mogill:

— that I indicated to the district judge that I do —

Thurgood Marshall:

And that this time you didn’t?

Kenneth M. Mogill:

I have no recollection whether I did.

The important point is —

Thurgood Marshall:

And if you did have a recollection, your client would be out of court.

Kenneth M. Mogill:

Not if my client didn’t know regardless of whether he was advised by counsel.

Thurgood Marshall:

I said if you happen to recollect that you did tell him, your client would be out of court?

Kenneth M. Mogill:

Not necessarily.

Thurgood Marshall:

Why?

Kenneth M. Mogill:

Justice Marshall, I think the important point here is that regardless of whether he is advised by counsel the important cons — the important inquiry is whether he was advised on the record at the time of the plea and whether he knew on the record at the time of the plea.

The fact is he didn’t know on the record at the time of the plea.

He indicated as much to the district judge.

The Government has never alleged and I don’t take it to be alleging now that anyone’s memory is conveniently, you know lapsed or anything like that and I — as an officer of the court, I suggest that —

John Paul Stevens:

Mr. Mogill, your statement or your conclusion that he did not know about the mandatory special parole term is based on his statement that when he was told of it — it could be as much as 15 years in jail, he said I know it now.

Kenneth M. Mogill:

That’s — and immediately prior to that when the judge asked him, ?Are you aware of the consequences of your plea??

He affirmatively said, No.

John Paul Stevens:

Well, and you think that necessarily forecloses the possibility that he did know about the mandatory special parole term?

Kenneth M. Mogill:

I think it indicates to anyone reading that record that he was not aware of the consequences of his plea.

John Paul Stevens:

Of all the consequences?

Kenneth M. Mogill:

And the mandatory special parole term is a direct consequence.

In fact, the Government concedes it to be a direct consequence of the plea.

John Paul Stevens:

Yes, but no, it doesn’t mean he didn’t know about any of the consequences of the plea.

Kenneth M. Mogill:

It — I think it speaks for itself and whatever interpretations of the reader.

John Paul Stevens:

Alright, but anyway, that’s what your —

William H. Rehnquist:

Well, it’s a strange colloquy to say for the — this is — for the District Court to say, Are you aware of the consequences of your guilty plea?

And for the defendant to say, No.

And neither the judge nor any of the two lawyers present say anything.

Is that what happened?

Kenneth M. Mogill:

Again the record speaks for itself in that regard.

William H. Rehnquist:

Well, but is that all we have to go on?

Kenneth M. Mogill:

I believe that it is — hopefully what the court will be doing in part in this case is addressing itself to the standard of review to the part —

William H. Rehnquist:

Well, what I’m concerned of is not what this Court was doing but what the District Court was doing, what you were doing, and what the Assistant U.S. Attorney was doing.

Kenneth M. Mogill:

I think all the parties were interested in seeing that the Rule 11 proceeding was adequate.

The district judge, I assume inadvertently neglected to advice Mr. Timmreck that a mandatory special parole term of at least three years and as much as life was involved.

Counsel for the Government neglected to catch the error.

William H. Rehnquist:

Well, i can —

Kenneth M. Mogill:

Defense counsel neglected to catch the error.

William H. Rehnquist:

Well, I can see that, but I gather from what you say that somewhere in the record there is a Q and an A.

And the Q is from the district judge’s, he says, Are you aware of the consequences of your plea?

And the A is, No, I am not.

Kenneth M. Mogill:

The — that’s correct.

William H. Rehnquist:

And nothing further was said by either of the judge or the —

Kenneth M. Mogill:

No.

The next thing that happened was the judge informed Mr. Timmreck that he was subject up to 15 years.

The judge did not say that if a custodial sentence was imposed for the violation to which he was pleading guilty, there must also be a mandatory special parole term of at least three years —

William H. Rehnquist:

So this judge didn’t look at —

Kenneth M. Mogill:

— and possibly up to life.

William H. Rehnquist:

The judge just didn’t leave it hanging after your — the client responded “no.”

Kenneth M. Mogill:

No, but he did not fully inform Mr. Timmreck and in fact he misled him by failing to advice him of the mandatory special parole term.

Potter Stewart:

Well, Mr. Mogill, if the trial judge had asked a convicted defendant, “Are you aware of the consequences of — Or a guilty pleading defendant?”

Are you aware of the consequences of your guilty plea?”

And defendant had said, “Yes, I am.”

That wouldn’t have proved — been any indication or any proof that he was in fact, was it?

Kenneth M. Mogill:

That’s correct and again it goes to the underlying purpose of the rule to make a record at the time of the plea.

Potter Stewart:

And the rule imposes a duty upon the trial judge to —

Kenneth M. Mogill:

That’s correct.

Potter Stewart:

— advice him whatever the response is, doesn’t it?

Kenneth M. Mogill:

And regardless of whether counsel has advised him or not.

Potter Stewart:

Alright.

Potter Stewart:

He — cause even if the defendant says, “Yes, I am.”

He might be quite misinformed about the consequences.

Kenneth M. Mogill:

That’s correct or if he was — even if he was accurately informed, the district judge has the same obligation.

In fact —

Warren E. Burger:

Have you ever raised at any stage or has it been suggested at any stage that there was ineffective assistance of counsel on your part?

Kenneth M. Mogill:

It has not been.

Warren E. Burger:

Did you recommend to your client that that was one issue that could be raised?

Kenneth M. Mogill:

I don’t —

Warren E. Burger:

Constitutional issue?

Kenneth M. Mogill:

I do not believe that that issue came up.

I might point out to the court however that at the time the petition — the 2255 petition was initially filed in this case, the Government conceded the applicability of a Sixth Circuit case, Wolak, and virtually conceded the merit of the 2255 petition.

The argument the Government is raising today was filed in a supplemental — it was first raised in a supplemental memorandum filed the day before or rather the day of the hearing.

John Paul Stevens:

Yes but Mr. Mogill, they conceded the applicability of that rule in the Sixth Circuit.

It was not the rule on other circuits in the United States.

Kenneth M. Mogill:

No, this case —

John Paul Stevens:

For example, it wasn’t the rule in the Seventh Circuit.

Kenneth M. Mogill:

The — of course.

Thurgood Marshall:

The Rule 11 doesn’t put any requirement on the defense counsel at all.

Kenneth M. Mogill:

That’s correct.

The —

Warren E. Burger:

Well, where does that obligation arise from?

Kenneth M. Mogill:

I’m sorry, which obligation?

Warren E. Burger:

The obligation of counsel to give the client full advice.

Kenneth M. Mogill:

I think as a part of counsel’s general obligation to render effective assistance.

Warren E. Burger:

Is it a constitutional issue, effective assistance of counsel?

Kenneth M. Mogill:

Certainly.

Warren E. Burger:

So, it arises out of the relationship of client and counsel and linked with the constitutional Sixth Amendment right, does it not?

Kenneth M. Mogill:

Yes, the purpose of Rule 11, one of the purposes of Rule 11 though is to avoid this kind of inquiries, is to ensure that the record at the time of the plea reflects the defendant was fully advised and fully — and made a fully knowing waiver.

So, the kind of collateral inquiries that became involved in this case are unnecessary.

John Paul Stevens:

But–

Kenneth M. Mogill:

If —

John Paul Stevens:

— one other feature, Mr. Mogill, just so we have it.

Kenneth M. Mogill:

Yes.

John Paul Stevens:

It — in page 9 of the abstract, you were asked by the court at the plea hearing, “Are you of the opinion there’s a factual basis for the plea?”

And you said, “Yes.”

And then, “And that your client knows full well the consequences of the guilty plea might be?”

“That’s correct.”

So, you were of the opinion then that he was fully advised?

Kenneth M. Mogill:

Clearly, I had missed the fact that the judge had missed advising Mr .Timmreck of the mandatory special parole term.

John Paul Stevens:

Well, not necessarily because you could have advised him and you’re statement would still have been 100% accurate.

Kenneth M. Mogill:

Right, but even if it was, it was clear that Mr. Timmreck had forgotten that or didn’t know or hadn’t paid any attention at the time he offered his plea.

John Paul Stevens:

Well, that’s a matter of what we’ve talked about before.

Kenneth M. Mogill:

Yes.

The sentence that was imposed in this case subjected Mr. Timmreck to a potential combined custodial and parole — incarceration and parole custody of ex — of an excess of 15 years.

In fact, the combined sentence here subjected him to a possible combined custody of 20 years less 1 day and it — that is so because of the unique nature of the mandatory special parole term.

Mr. Timmreck was sentenced to 10 years in custody on his initial sentence and five years mandatory special parole.

Because of the unique provisions of the mandatory special parole term, he could serve 4 years, 11 months and 29 days and if he violated on the last day, still be sentenced to 5 years — the full 5 years in custody.

Warren E. Burger:

And you represented at page 9 when the court said to you, “Mr. Mogill, are you of the opinion there’s a factual basis for this plea?”

And you answered “Yes, I am.”

“And that your client knows full well the consequences of a guilty plea might be?”

“That’s correct.”

You were surely representing to the court there affirmatively, not by inference but affirmatively, that you had fully — full well informed your client of the consequences of the plea.

Kenneth M. Mogill:

Oh, the record speaks for itself in that regard.

Byron R. White:

On the next page — on that couple of pages, you took that back.

You said that if you failed — that you really didn’t mean to represent that you remembered that he had — that you had —

Kenneth M. Mogill:

That’s — the statement to which you’re referring to Mr. Justice White was from the hearing on the 2255 and yes, I would agree —

Warren E. Burger:

That’s two years later?

Kenneth M. Mogill:

That’s correct.

Warren E. Burger:

At the time of the Rule 11 hearing, which is the fulcrum there, you — it’s perfectly clear that you represented to the courts that your client had been fully informed.

And it does not do for me, individually, as a member of the court to have you say the record speaks for itself.

Kenneth M. Mogill:

Well, the only point I wish to make, Mr. Chief Justice, is that I have no specific recollection at this point in time what my conversations were with my client.

Potter Stewart:

Well, in any event, the Government, as I understand it, concedes that there was a Rule 11 violation in this case.

Kenneth M. Mogill:

Yes, it does.

Yes it does.

With —

Warren E. Burger:

But this colloquy that I’m referring to conceivably might have at least raised the question in your mind whether you could appropriately continue to represent this man without letting some other counsel come in and raise the question of ineffective assistance of counsel which might or might not be a stronger case being a constitutional violation?

Kenneth M. Mogill:

That was certainly Mr. Timmreck’s choice and he chose to retain me on the 2255 petition.

At the time Mr. Timmreck was sentenced in this case he was not advised that he had a right to direct appeal.

And it is also important to note in terms of this Court being fully advised of the facts that the Government below, not only initially conceded that the Sixth Circuit case, Wolak, controlled in the Eastern District of Michigan at that time.

But also, the Government didn’t allege that Mr. Timmreck would have continued with his plea had he been advised of the mandatory special parole term.

The Government didn’t allege that he deliberately bypassed his right to appeal.

The Government didn’t allege that there was an intentional delay, and the Government didn’t allege that its ability to re-prosecute was in any way impaired by the passage of time involved here.

William H. Rehnquist:

Well, as of the time your client was sentenced, was there an obligation on the District Court in taking a guilty plea to advice the defendant that he had the right to appeal?

Kenneth M. Mogill:

No, rule — Federal Rule of Criminal Procedure 32 (a) (2), to this day does not require a district judge to advice a guilty pleading defendant of a right to appeal.

William H. Rehnquist:

I would hope not.

Kenneth M. Mogill:

At the same time however, for the Government to argue that a direct appeal is an adequate remedy is somewhat undercut by the fact that there was no record — that there was no likelihood that a guilty plea in person is in fact going to know of that remedy in time to make use of it.

And it’s that– it’s for that reason that it’s significant to remind the court that 32 (a) (2) —

Byron R. White:

Well, unless the defendant is entitled to it, unless his attorney advises him.

Kenneth M. Mogill:

That’s correct.

Byron R. White:

Isn’t it reasonable to infer that if there had been a dramatic difference between the actual sentence and the anticipated sentence, that that proposition would’ve been considered?

Kenneth M. Mogill:

Not necessarily.

I don’t like being in the position of suggesting that certain inferences should or should not be drawn.

However, if the purpose of Rule 11 is what it plainly is to avoid extra — to avoid colloquy outside of the record, I think that those kind of inferences have to avoided because they require speculation as to facts outside the record.

There is nothing on the record to indicate whether or not Mr. Timmreck was advised of his right to appeal and whether or not he was advised of collateral relief, whether or not he was surprised at the length of the sentence.

The fact is I think that if we’re going to engage in inferences, I think there is a very inference that a person who had no criminal record before and who has just been sentenced to a very lengthy prison term is going to be very much taken aback by that and may not be in a position to think clearly about whether or not to request advice from counsel as to remedies until the initial shock wears off.

And by that time, the time for appeal may well have passed.

Byron R. White:

Have there been cases holding that the failure to advice about this particular special parole provision is a violation of Rule 11?

Kenneth M. Mogill:

I think it’s conceded by the Government.

Byron R. White:

That isn’t what I asked you.

Kenneth M. Mogill:

The Sixth Circuit, the Ninth Circuit —

Byron R. White:

The Government doesn’t — can’t concede what the rule means.

Kenneth M. Mogill:

I’m sorry, Justice White.

The Ninth Circuit, the Sixth Circuit, obviously, the First Circuit, and the Third Circuit, and I believe the circuits not only hold that but also find collateral relief available.

John Paul Stevens:

The Seventh Circuit agrees with you on this point.

Kenneth M. Mogill:

That’s right, the point I was — the finish to the answer was that the circuits which do not find collateral relief available also, I believe, unanimously agreed that this is a direct consequence of the plea to — and that failure to advice would be a violation.

They disagree —

Byron R. White:

Of Rule 11.

Kenneth M. Mogill:

Of Rule 11.

They disagree as to whether or not collateral review would be available.

Lewis F. Powell, Jr.:

Counsel, when the judge announced the sentence, exactly what did he say?

Kenneth M. Mogill:

He pronounced sentence of 10 years incarceration, 5 years mandatory special parole, and a $5,000 committed fine.

Lewis F. Powell, Jr.:

So at that point, your client knew about the mandatory parole.

Kenneth M. Mogill:

At that time those words had been uttered, yes.

Lewis F. Powell, Jr.:

Yes.

Potter Stewart:

Or whether or not he knew it was mandatory.

Kenneth M. Mogill:

Whether or not he understood the significance of it and —

Lewis F. Powell, Jr.:

The judge said it was mandatory.

Kenneth M. Mogill:

That’s correct.

Lewis F. Powell, Jr.:

Yes.

Kenneth M. Mogill:

I think the keyword to somewhat who is being sentenced his parole and the fact that this is a different kind of parole that applies only in drug cases and only since 1970 and does not apply in other circumstances in the federal system might easily escape the person who’s being sentenced in terms of the significance and in terms of the differences between the mandatory special parole and traditional parole.

Section 2255 exists to ensure the capacity of our legal system to provide substantive justice and to ensure a forum for releasing all cases of illegal restraint.

It is a flexible remedy and as this Court indicated in language in its opinion in Davis there is nothing in the holdings of — in the prior holdings of this Court to indicate that the availability of 2255 is in any way reduced where the allegation of illegal custody is one grounded in laws as opposed to the Constitution of the United States.

I think that’s an — by way of background, that undercuts the Government’s argument with respect to the non-constitutional nature of the argument here.

Additionally, I think that it is important for the court to consider the role of Rule 11 in protecting the adversary system.

That in contrast to a trial situation and a collateral attack after a trial, such as occurred in Davis, where there is adversary litigation as to numerous questions of law and where there is a full fact finding process, the likelihood of any one error being prejudicial or being fundamentally prejudicial is reduced.

In a guilty plea proceeding however, where the charges are not disputed and where a person is convicting himself or herself out of his or her own mouth, an indi — an error that fails to advice the defendant of an important consequence of the guilty plea assumes much more fundamental dimensions.

When the additional fact that approximately 85% of the convictions in the federal system are the result of guilty pleas is taken into account, I think that the significance to the importance — to maintaining the principles underlying the adversary system is enhanced.

And it’s for that — taking those matters into account, I think that the Government’s argument with regard to restricting the scope of collateral review has to be unpersuasive.

I think that the Government’s argument with regard to direct appeal being a sufficient remedy is further undercut by the fact that the Rule 32 (a) (2) does not require an accused to be advised of the right to appeal and in point of fact, Mr. Timmreck here was not advised of his right to appeal.

And it is also important to note that the mandatory special parole term is a unique provision which operates very differently from traditional parole and can result in incarceration for the entire period of the mandatory special parole term even if the violation occurs on the last day.

Kenneth M. Mogill:

Also, that the risk of re-incarceration is not minimal.

The statistics would indicate that between 35% and 45% of persons placed on parole are subsequently returned to prison for violations and that approximately 2/3 of those violations are technical and rather than being for commission of additional felonies.

The Government’s argument in this case that particular prejudice ought to be shown is similar to its argument in McCarthy that substantial compliance with Rule 11 was sufficient for purposes of direct appeal.

The rejection of that argument in McCarthy, I think, applies with equal force here because as this Court noted in McCarthy, a violation of Rule 11 inherently prejudices the accused because it deprives him or her of the rule’s procedural safeguards that are designed to facilitate the ac — an accurate determination of the voluntariness of the plea.

Similarly, the Government’s argument that particular prejudice ought to be shown, I think would create a standard which is more difficult to administer than the objective standard applied by the Sixth Circuit here.

It would involve the District Courts in hearings on the question of particular prejudice.

It would involve the courts in — it would be more time consuming in terms of judicial time.

It would be more difficult to achieve uniform results and it would make it difficult to any defendant regardless of whether the defendant would in fact have continued with the guilty plea to meet the burden of proof.

I think it would be con — I would hope that the Government would concede that persons plead guilty for numbers of — any number of reasons, some of which are beyond the comprehension of experienced counsel and judges.

And that in these — some circumstances, persons would not have continued to offer their pleas.

The standard that the Government proposes is one which would make it difficult for all persons including them to sustain their burden of proof.

An objective test would promote judicial economy by results being determined on the basis of the pleadings and it would provide an additional incentive not only to defense counsel and to government counsel on the basis of their general ethical responsibility, but by an additional incentive because of the standard —

Thurgood Marshall:

If I understand you correctly, you just filed a piece of paper and say, “Judge Jones didn’t advice me of the special parole,” and automatically out.

Kenneth M. Mogill:

That’s more —

Thurgood Marshall:

Automatically, you get out.

Kenneth M. Mogill:

More or le — well, more or less.

Thurgood Marshall:

Don’t you need a little more than that?

Kenneth M. Mogill:

Prejudice is inherent a violation of Rule 11 for the reasons I’ve indicated and —

Thurgood Marshall:

Well, you had a hearing here, didn’t you?

Kenneth M. Mogill:

In District Court?

Thurgood Marshall:

Yes.

Kenneth M. Mogill:

Yes.

Thurgood Marshall:

Well, what are you saying that they’re asking for more than that?

Kenneth M. Mogill:

No, what I’m suggesting is —

Thurgood Marshall:

He didn’t even ask for that one.

Kenneth M. Mogill:

There shouldn’t have been — had an objective standard been applied by the district judge, there would’ve been no need for a hearing.

The pleadings — the record of the case below would have entitled Mr. Timmreck to relief in a —

Thurgood Marshall:

Your irony of a 2255 is you file of piece of paper and that’s it.

Kenneth M. Mogill:

Depending on the circumstances.

Where this has been a violation, that should be sufficient because the violation is one that is so fundamental to the dis — to the defendants offering of a knowing and voluntary guilty plea.

Thurgood Marshall:

Well, don’t you think the Government is not entitled to a hearing?

Kenneth M. Mogill:

If a rule — if an objective standard were adopted, the Government would have an incentive to ensure that there would be no need for further litigation because the Government would have an additional incentive, as the Sixth Circuit noted in its opinion here to ensure that mistakes such as the judge and both counsels failed to catch here did not occur.

Harry A. Blackmun:

Mr. Mogill.

Kenneth M. Mogill:

Yes?

Harry A. Blackmun:

You don’t cite Stone against Powell at all, do you?

Kenneth M. Mogill:

I do not.

Harry A. Blackmun:

Do you just dismiss the Government’s reliance on that case?

Kenneth M. Mogill:

I think that I — I read Stone v. Powell carefully and I don’t think that the Government other than mentioning it in passing, is really relying on it in this case.

I think their primary reliance is on Davis and on Hill.

I think that —

Harry A. Blackmun:

Well, they rely — they mentioned more than once in passing.

They cite it about six times.

Kenneth M. Mogill:

I think the facts and the issue involved in Stone v. Powell are sufficiently different dealing as they do with questions of state federal relations, dealing with the question of the exclusionary rule, dealing with the question and ultimately turning on the opportunity for full hearing in the state courts that in my preparation of my presentation, it did not strike me as a case that would involve itself in this Court’s decision here.

To the extent however, Justice Blackmun, that the question does arise, I think that the question of opportunity for hearing as being critical in Stone v. Powell is in some respect similar to the fact that here, there was no opportunity — there was no advice of the right to appeal and therefore, there was no assurance that the defendant knew of his opportunity to have an immediate hearing on direct appeal.

Byron R. White:

Well, if the Government wins this case, wouldn’t it also win the case where the defendant wasn’t advised at all of the sentence and pleaded guilty, no appeal, collateral attack saying he wasn’t advised of the sentence at all in violation of Rule 11?

Kenneth M. Mogill:

Obviously, that would depend in part on the grounds that the court — you know, states in support of its decision.

I think that if the — depending on grounds that this Court were to chose for rendering its decision in this case, that if an — if a subjective standard were adopted, such as the Government is suggesting, it is entirely possible that a person who was not advised of their penal consequences who for whatever reasons did not take an appeal and later challenged the — their conviction but who in fact would not have offered a guilty plea maybe out the door even though as a gut matter, they should be entitled to relief.

And assert one — that is one of the reasons why the Government’s position is —

John Paul Stevens:

Mr. Mogill, Mr. Geller gave precisely the ac — the opposite answer to that question when I asked it about the mandatory failure to advice about ineligibility for parole.

He said there’d be a different case because there might be prejudice.

At least that’s what I understood him to say.

Kenneth M. Mogill:

There are obviously cases that —

John Paul Stevens:

I think Mr. Justice White’s example is even farther removed than that one.

Kenneth M. Mogill:

I think —

John Paul Stevens:

So, I may be right that the court would rule that way, probably not the argument.

Kenneth M. Mogill:

The point is I think the Government’s — regardless of what the Government is saying here today, if this Court adopts the Government’s proposed test, it is entirely possible that a person who is not advised of a mandatory —

John Paul Stevens:

Just as I understand, is either — if the plea is either involuntary or if it’s fundamentally unfair, whatever the violation was, it was fundamentally unfair, then collateral attack is appropriate.

And if you say there’s no advice whatsoever about sentence and he gets put away for 20 years, that strikes me as being pretty unfair.

Warren E. Burger:

But —

Kenneth M. Mogill:

I agree with that.

John Paul Stevens:

I think, well, you do.

Kenneth M. Mogill:

I also would urge on this Court that failure to advice a guilty pleading person that a direct consequence of his or her plea is a mandatory special parole year — special parole term of three years to life also is a fundamental defect.

Warren E. Burger:

Mr. Mogill.

Kenneth M. Mogill:

Yes?

Warren E. Burger:

On the other hand, if the court said that based upon your representations at the bottom of page 9 to the court notwithstanding any other views that the Solicitor General might have about it, based on that there was a finding.

The judge said, “I find on this record.”

There was a finding and that that finding is not clearly erroneous.

Then, you wouldn’t have any open door to the kind that you’ve been suggesting.

Kenneth M. Mogill:

If I understand the court’s question, I believe that Judge Feikens’ language is somewhat inappropriate for the reason that anybody —

Warren E. Burger:

Well, he just said that he —

Kenneth M. Mogill:

— whether it’s a judge or anybody else, is only speculating what the defendant has done.

Warren E. Burger:

He said on the basis of what you told him, “I find on this record.”

Kenneth M. Mogill:

I understand that that was his language.

I — what I’m suggesting and I think that, in a concurring opinion in the Page case, Judge Borman from the Fourth Circuit says that — he says, as it point out, I want to make known, that is that it’s pure speculation what the defendant would’ve done.

And for the judge to conclude that Mr. Timmreck would have continued to offer his plea is in fact a matter of opinion.

It can’t be construed as a finding of fact.

And —

Warren E. Burger:

Can the clearly erroneous rule apply to this situation?

Kenneth M. Mogill:

I don’t believe that the nature of that statement by the judge is a finding of fact so that I don’t believe that the clearly erroneous rule would come into play.

Thank you very much.

Warren E. Burger:

Very well, Mr. Mogill.

Mr. Geller, do you have anything further?

Kenneth Steven Geller:

Just a few things, Mr. Chief Justice.

First of all, I didn’t mean to mislead you Justice Stevens, in regard to my answer concerning your ineligibility for parole hypothetical.

Our approach would be exactly the same.

There would have to be an inquiry on col — if it were raised on collateral attack into whether the defendant was actually prejudiced.

Our approach would be exactly the same as the approach the Seventh — you took as the member of the Seventh Circuit.

John Paul Stevens:

Right, but you concede, I understand — at least I understood you to say that if he on such a collateral attack prove that he would not have made or enter the plea had he understood it, then you would agree that was fundamentally unfair —

Kenneth Steven Geller:

Yes.

John Paul Stevens:

— and the collateral attack would be —

Kenneth Steven Geller:

That’s right, but we’re — I didn’t mean to —

John Paul Stevens:

You didn’t mean automatic, I understand.

Kenneth Steven Geller:

I didn’t mean to suggest that it would be automatic.

Secondly, I think that the notion that it’s either not feasible or not seemly to inquire into prejudice when there’s been a defect in a guilty plea proceeding and it’s raised on collateral attack is rebutted by this Court’s decision in Henderson against Morgan in 426 U.S. which was a case of a defective guilty plea proceeding.

Everyone agreed that the defendant in that case had not been told about one of the elements of the crime to which he pleaded guilty but the court didn’t stop there.

It didn’t inquire to see whether he might have had that information from somewhere else.

Byron R. White:

Oh, Mr. Geller, is that — when you’re talking about prejudice and whether he would’ve pleaded guilty anyway, are you talking about the time he was in court before the judge?

Kenneth Steven Geller:

Yes.

Byron R. White:

And so, its still automatic answer to you — for you against the defendant if a week ago he was told about the parole term?

Kenneth Steven Geller:

No, that’s correct.

And you have to measure voluntariness by what he knew at the time he pleaded guilty or what he would’ve done at the time he pleaded guilty if he had been told what he now claims he should’ve been told.

And subsequent events are only relevant, I think, in determining whether it’s fair to hold him to his plea which is a separate sort of an inquiry although an equal ground for allowing collateral attack.

The final thing I want to say is that Mr. Mogill made the statement a moment ago, I think in an attempt to show prejudice for the first time since this motion never alleged prejudice that his client could be in prison for longer than he was told or at least subject to supervision for longer than he was told.

He can’t serve more than 15 years because he got a 10-year prison sentence and a 5-year special parole term.

Even if he began to serve his special parole term and after two or three years he violated it, he couldn’t be returned to prison for more than 5 years of this special parole term.

That’s not unusual.

Almost every defendant could make the same claim.

John Paul Stevens:

Let me be sure I understand you.

If after four years of special parole he violates the parole, can he not then go to jail for five years?

Kenneth Steven Geller:

That’s right, but he would only be in prison —

John Paul Stevens:

So, he could serve more than a total of 15.

Kenneth Steven Geller:

No, he couldn’t serve more.

He could —

John Paul Stevens:

Well, alright.

Kenneth Steven Geller:

— under supervision for it, but I —

John Paul Stevens:

But he could have 15 years of prison time —

Kenneth Steven Geller:

Plus four years.

John Paul Stevens:

— plus four years of parole.

Kenneth Steven Geller:

That’s right, but that could happen to any defendant.

Let’s assume a defendant who pleads guilty to a 15-year felony, it’s not a drug case.

Kenneth Steven Geller:

Let’s assume we don’t have a special parole problem and he gets 15 years and he’s told he could get 15 years.

He gets 15 years presumably no Rule 11 violation.

After 10 years, he’s paroled.

He then begins to serve his 5-year parole term.

After three years, let’s assume he violates the conditions of his parole.

The Parole Commission could send him back to prison for five years.

So, that defendant also would serve 15 years in prison and be under supervision for a couple of extra years.

No one’s ever suggested that those sorts of nuances have to be explained to the defendant.

Byron R. White:

What you’re saying is there’s no obligation to advice about the consequences of violating a parole.

Kenneth Steven Geller:

No one has suggested that that’s the case.

Thank you.

Byron R. White:

Yet.

Kenneth Steven Geller:

Yet.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.