911 F2d 740 Wood v. United States

911 F.2d 740

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Michael Allen WOOD, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 89-35457.

United States Court of Appeals, Ninth Circuit.

Submitted July 9, 1990.*
Decided Aug. 13, 1990.

Before HUG, NELSON and BRUNETTI, Circuit Judges.

1

MEMORANDUM**

2

Michael Allen Wood, a federal prisoner, appeals pro se the district court's denial, without a hearing, of his petition for relief under 28 U.S.C. Sec. 2255.1 Wood pled guilty to importing opium, in violation of 21 U.S.C. Secs. 952, 960(a)(1) and 960(b)(1).

3

A district court may deny a section 2255 motion without an evidentiary hearing only if the petitioner's "allegations, viewed against the record, either fail to state a claim for relief or are 'so palpably incredible or patently frivolous as to warrant summary dismissal.' " Marrow v. United States, 772 F.2d 525, 526 (9th Cir.1985) (citations omitted).

4

The district court denied Wood's petition without an evidentiary hearing and without making any findings of fact or conclusions of law. Although such findings would have assisted our review of this case, we nevertheless affirm the district court's summary dismissal of Wood's petition because, as shown below, Wood's allegations are "patently frivolous." Id.

5

Generally, a person who voluntarily and knowingly pleads guilty to a criminal charge waives all nonjurisdictional defects in the criminal proceeding, including constitutional rights. Tollett v. Henderson, 411 U.S. 258, 266-67 (1973); Marrow, 772 F.2d at 527.

1. Knowing and Voluntary Plea

6

A guilty plea will not preclude section 2255 relief if it was not knowingly and intelligently made with competent advice of counsel. See Mitchell v. Superior Court for the County of Santa Clara, 632 F.2d 767, 769 (9th Cir.1980), cert. denied, 451 U.S. 940 (1981). Wood attacks the knowing and voluntary nature of his plea.

7

a. Rule 11

8

Wood first maintains that the district judge violated Fed.R.Crim.P. 11(c)(1) because the judge did not address Wood personally and did not make Wood aware of the maximum sentence for his crimes.

9

A violation of Rule 11, absent other aggravating circumstances, does not entitle a section 2255 petitioner to relief. United States v. Timmreck, 441 U.S. 780, 783-85 (1979) (Section 2255 relief is "not available when all that is shown is a failure to comply with the formal requirements of the Rule."). In order to successfully challenge a guilty plea based upon a violation of Rule 11, a petitioner "must also establish that he was prejudiced in that he was unaware of the consequences of his plea, and, if properly advised, would not have pleaded guilty." United States v. Grewal, 825 F.2d 220, 222 (9th Cir.1987).

10

Wood has failed to make this requisite showing. Wood asserts that when the judge asked him if he was aware of the maximum penalty for his crime, that Wood stood "mute." When the judge repeated the question, Wood claims that he "was incapable of speaking, so [his attorney] transacted the plea agreement." However, Wood does not claim that he was unaware of the consequences of his plea. At the most, Wood alleges only a technical violation of the Rule. Under these facts, Wood cannot successfully challenge his conviction based on violations of Rule 11. See Timmreck, 441 U.S. at 783-85; Grewal, 825 F.2d at 222.

11

b. Due Process

12

Wood also implies that his guilty plea was constitutionally infirm. However, aside from the alleged Rule 11 violation noted above, Wood does not state why his plea should be found unknowing or involuntary. Cf. Marchibroda v. United States, 368 U.S. 487, 488 (1962) (petitioner alleged plea involuntary because coerced by prosecuting attorney). Vague and conclusory allegations alone do not entitle a section 2255 petitioner to relief. Id. at 495.

2. Sixth Amendment Right to a Speedy Trial

13

Wood next claims that his Sixth Amendment right to a speedy trial was violated when the Government failed to seek his extradition from Australia after the indictment was issued in 1977. Instead, the Government waited for Wood's release from an Australian prison, and arrested Wood in 1983.

14

We do not address this issue. Because Wood's plea was knowing and voluntary, his Sixth Amendment challenge is foreclosed. See Tollett, 411 U.S. at 266-67 (a person who voluntarily and knowingly pleads guilty waives all nonjurisdictional defects, including constitutional rights); United States v. Montilla, 870 F.2d 549, 552 (9th Cir.1989) (same).

3. Speedy Trial Act

15

Wood also claims that his conviction violates the Speedy Trial Act, 18 U.S.C. Secs. 3161-74 (1988). Specifically, Wood maintains that his conviction violated the Act because the Government did not seek his extradition from Australia. The Government asserts that the Act only applies to persons in "any penal institution" located in the United States, not a foreign country. 18 U.S.C. Sec. 3161(j)(1).

16

We need not decide whether this provision of the Speedy Trial Act applies when a person is in prison in a foreign country. Even if the Act applies to Wood's case, a violation of this provision does not entitle Wood to section 2255 relief.

17

In United States v. Valentine, 783 F.2d 1413 (9th Cir.1986), we rejected a defendant's contention that his conviction should be reversed because the Government failed to comply with section 3161(j)(1). We found that the dismissal of an indictment was not a remedy for a violation of section 3161(j)(1) and that the defendant's challenge to his conviction on this ground was therefore fruitless. Id. at 1415. Similarly, Wood's section 2255 challenge to his conviction on this basis is fruitless.

4. Due Process

18

Wood also maintains that the district court lacked jurisdiction over him because of his forcible return from Australia to Hawaii. Once in Hawaii, Wood was arrested and then tried and sentenced in Washington. A guilty plea does not foreclose jurisdictional challenges to a defendant's conviction. Montilla, 870 F.2d at 552.

19

We have previously addressed and rejected a claim similar to Wood's in United States v. Valot, 625 F.2d 308, 309 (9th Cir.1980). Wood questions the continuing vitality of our holding in Valot. However, Valot has not been overruled. Therefore, under existing precedent, the district court had jurisdiction over Wood's case even if he were forcibly returned from Australia as alleged. See Montana v. Johnson, 738 F.2d 1074, 1077 (9th Cir.1984) (only Supreme Court decisions, en banc decisions or subsequent legislation constitute a change in the law).

5. Treaty

20

Finally, Wood maintains that the United States' failure to extradite him from Australia violated the Extradition Treaty between Australia and the United States. Australia Extradition Treaty, May 14, 1974, United States-Australia, T.I.A.S. No. 8234, at 957.

21

The Treaty does not require extradition prior to or while a defendant is serving his sentence in Australia. Article IX of the Treaty expressly provides that:

22

[w]hen the person whose extradition is requested is being proceeded against or is serving a sentence in the territory of the requested State for an offense other than that for which extradition has been requested, his surrender may be deferred until the conclusion of the proceedings and the full execution of any punishment that may be or may have been imposed on him.

23

Moreover, the Treaty only provides procedures for extradition when a request for extradition is made. Here, the United States Attorney in Washington originally indicated that he would request extradition, but later changed his mind. Wood admits that the United States Attorney's decision not to extradite him from Australia was communicated to the Australian Consulate in 1977, the same year Wood was sentenced in Australia. Thus, any alleged demand for extradition was clearly revoked and Wood's ultimate return to the United States was not an extradition, but a deportation. When a

24

defendant is deported by the authorities of the other country which is a party to the treaty, no "extradition" has occurred and failure to comply with the extradition treaty does not bar prosecution.

25

Valot, 625 F.2d at 310.

26

The remainder of Wood's contentions do not merit separate treatment. Suffice to say that they do not entitle Wood to section 2255 relief.

27

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Wood did not directly appeal prior to bringing this section 2255 petition. The Government does not take issue with Wood's failure to directly appeal prior to filing a section 2255 petition. Thus, this issue will not be addressed here