250 F.2d 842 - Smith v. United States — 250 F.2d 842

¶1William B. Moore, Montgomery, Ala., for appellant.

¶2Hartwell Davis, U. S. Atty., Robert E. Varner, Asst. U. S. Atty., Montgomery, Ala., for appellee.

¶3Before RIVES, JONES and BROWN, Circuit Judges.

¶4PER CURIAM.

¶5Here twice before under a Section 2255 (28 U.S.C.A. § 2255) proceeding, Smith *843v United States, 5 Cir., 223 F.2d 750; Smith v. United States, 5 Cir., 238 F.2d 925, rehearing 240 F.2d 347, Smith, by this third appeal, presents for the first time an appeal1 from the criminal conviction and sentence entered after our last remand.

¶6On the hearing, the District Court set aside the sentence of conviction adjudging a thirty-year prison term and then imposed a sentence of ten years. But the Court denied the successive motions made by Smith to withdraw his (a) plea of guilty, (b) waiver of venue, (c) waiver of counsel and (d) waiver of indictment.2

¶7By suitable language in the opinion itself and by similar precise terms in the mandate, we sought on rehearing, 3 240 F.2d 347, to make plain that the sentence of conviction of thirty-years imprisonment was alone mandatorily to be set aside, and that as to the plea of guilty and waivers, the District Court was free to allow such of these as the interests of justice might require. The District Court, finding expressly that the interests of justice did not so require, paid scrupulous heed to, and carried out, the precise terms of our mandate. Whether the interests of justice required further action was of the very nature calling for the exercise of the highest order of reasoned judicial discretion. Nowhere does-Smith succeed in demonstrating that this conclusion lacks substantial basis.

¶8All relief sought must therefore be denied; the judgment appealed from is affirmed, the denial of application for ha-beas corpus is affirmed and the alternative writ of mandamus is denied.

¶9Affirmed and denied.

¶13RIVES, Circuit Judge

¶14(dissenting).

¶15I think that the offense charged in the information might be punished by death, and that the information did not confer jurisdiction on the Court for the reasons stated in my dissenting opinion in Smith v. United States, 238 F.2d 925, 931, et seq. Assuming jurisdiction, as ruled by the majority, I had thought, and still think, that the earlier judgment of conviction should have been affirmed, and that the reasons for reversal assigned by the majority were not sound, 240 F.2d 347, et seq.

¶16As I understand, the majority held that the defendant was denied due process in the taking of waivers and plea and the imposition of sentence.1 Nevertheless, *844the last paragraph of the opinion was amended to read as set forth in the margin.2

¶17If in the taking of the plea of guilty the defendant was denied due process, as this Court’s opinion stated, then necessarily, it seems to me, the district judge had no discretion to entertain an opinion that the ends of justice permitted him to decline the defendant’s request to withdraw such plea. The district court was directed to proceed “not inconsistently herewith,” meaning with the majority opinion of this Court. Yet the district court refused the defendant permission to withdraw a plea of guilty which the majority of this Court in that opinion held was taken without due process of law. That is beyond my comprehension.

¶18Further, it is deceptive and a sheer formality to set aside a judgment of conviction and at the same time hold valid the plea of guilty upon which that judgment was based. The two are inseparable. The setting aside of the judgment of conviction necessarily required the vacation of the plea of guilty.2 3 Upon each of the foregoing grounds, I respectfully dissent.

¶19. “When it comes to the controlling question, however, which the motion presents, whether under the undisputed facts the defendant was denied due process in the taking of waivers and plea, and the imposition of sentence the matter stands quite differently, and because it is clear that it was not accorded to him, the judgment appealed from must be reversed.

¶20“This is so, because, considering the-inordinate speed, the incontinent haste, with which the defendants were brought up for hearing and the trial moved on apace, the fact that the government prosecuting agent and the district j'udgo, before the defendant had made any waivers. *844or pleaded in the cause, conferred privately in chambers with regard to defendants’ guilt and the punishment to be imposed therefor, in connection with both what was said and done and what was left unsaid and undone by the judge in taking the waivers and the plea and sentencing the defendant, we are left in no doubt that the movant was not accorded, but was denied, due process, and that the judgment against, and sentence imposed upon him may not stand.” Smith v. United States, 5 Cir., 1956, 238 F.2d 925, 930.

¶22. “A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.” Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009.

¶23“His plea, therefore, is not a mere admission of guilt or extra-judicial confession of guilt; it is, itself, a conviction, and as conclusive as the verdict of a jury.” Joyner v. Parkinson, 7 Cir., 1955, 227 F.2d 505, 508.

¶24“Appellant’s voluntary and deliberate plea of guilty to the charge was a confession of guilt, and constituted a waiver of his right to a jury trial and a consent to the imposition of any sentence authorized by law.” Donnelly v. United States, 10 Cir., 1950, 185 F.2d 559, 560.

¶25See also concurring opinion of Chief Judge Hutcheson in Shelton v. United States, 5 Cir., 1957, 246 F.2d 571, at page 574.