A few weeks ago we posted a popular piece from Lew Rockwell entitled “Don’t Plea Bargain if You are Innocent.” It not only garnered great attention but stirred some thought-provoking comment. This feedback comes from our newly appointed “INI House Paralegal” who doesn’t want any further identification, not out of fear of reprisals because he has gone nose-to-nose with the federales for decades. Mr. X just doesn’t want your phone calls. He says that if you have some serious problems and want to discuss fees for his counsel and paper work and want to handle you own case “on your own two feet, with your own mouth,” then contact us at the INI email, and we will pass your info on to him. That way, Mr. X (when I threatened to give him the pen name of “Malcolm,” he threatened me with bodily harm) can handle each serious inquiry individually. Meanwhile, here is his input for the previously mentioned article and for those victims of same.
The Felony Conviction
by Mr. X
Scarlet Letter
Back in 1850 Nathaniel Hawthorne wrote The Scarlet Letter, the story of a woman in Puritan Boston prior to 1650 who forever had to wear the scarlet letter “A” for adulteress on her clothing.
That story, like the T.V. “Law and Order” shows of today, was crap. Hawthorne was writing about mythical events that took place over 200 years before he wrote his novel in a society he knew little or nothing about, a society supposedly inhabited by fun-squelching dour and taciturn Puritans.
The woman in the story had a child out of wedlock, supposedly the cause of her shame. If you check the birth records for Puritan Boston in the 17th century you will find that 40% of all the children born then were born “out of wedlock.”
I.e., Puritans were obviously not the prudes that writers like Nathaniel Hawthorne portrayed them to be.
Which brings us to your felony conviction, if you happen to have one. A lot of our citizens seem to think that, once you are convicted, you have permanently achieved the status of “legal negro,” always to be a second class citizen, cirea Alabama 1950’s.
Not true.
Let’s start with the remedy for someone who has done his (or her) time and is off probation or parole. It’s called a Petition for Writ of Error Coran Nobis.
The Fifth Circuit Court of Appeals (federal) in New Orleans has this to say about it:
“The writ of coram nobis is an extraordinary remedy available to a petitioner no longer in custody who seeks to vacate a criminal conviction in circumstances where the petitioner can demonstrate civil disabilities as a consequence of the conviction, and that the challenged error is of sufficient magnitude to justify the extraordinary relief.” Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir. 1996); see also United States v. Peter, 310 F.3d 709, 712 (11th Cir. 2002) (“A writ of error coram nobis is a remedy available to vacate a conviction when the petitioner has served his sentence and is no longer in custody, as is required for post conviction relief under 28 U.S.C. § 2255.”).
United States v. Esogbue, 357 F.3d 532 (5th Cir. 2004).
91 F.3d 767, 768 simply means the 91st volume of the Federal Reporters (which cover federal appeals court cases), 3rd series, case starts at page 767, the quote is found at page 768.
28 U.S.C. § 2255 means Title 28 of the United States Code (there are 50 all told, including Title 18 for crimes and criminal procedures and Title 26 for I.R.S. statutes), section 2255, which is a motion to vacate or modify a sentence. 28 U.S.C. § 2254 is federal habeas corpus for state prisoners.
The Fifth Circuit then elaborated on the procedures:
The Supreme Court has held that a movant is not “in custody” under a conviction for the purpose of § 2254 relief where the sentence imposed for that conviction has fully expired. Maleng v. Cook, 490 U.S. 488, 490-91 (1989). Maleng’s analysis applies equally when a movant is no longer in federal custody for the purpose of § 2255 relief where the sentence imposed for that conviction has expired. See Custis v. United States, 511 U.S. 485, 497 (1994); see also United States v. Truesdale, 211 F.3d 898, 903 (5th Cir. 2000) (“a § 2255 motion is made by a person in federal custody and a petition for a writ of error coram nobis is filed by a person who has been released”); United States v. Dyer, 136 F.3d 417, 422 (5th Cir. 1998) (writ of coram nobis “has been used as an avenue of collateral attack when the petitioner has completed his sentence and is no longer ‘in custody’ for purposes of seeking relief under either 28 U.S.C. § 2241 or § 2255”). Adverse collateral consequences of a conviction do not render an individual “in custody.” Maleng, 490 U.S. at 492.
United States v. Esogbue, 357 F.3d 532 (5th Cir. 2004).
There is also the common misperception that, like the scarlet letter, the waiver of the right to appeal, habeaus corpus, and the like as part of the “plea bargain” forever condemns the poor wretch to a lifetime of second-class citizenship. Not true either. There are exceptions.
Note what the Fifth Circuit Court of Appeals has to say about this issue as well:
A defendant may waive his statutory right to appeal his sentence if the waiver is knowing and voluntary. United States v. Bond,414 F.3d 542, 544 (5th Cir. 2005). The record demonstrates that Flores understood his right to appeal and knowingly and voluntarily waived that right. United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994). Therefore, the appeal waiver bars consideration of Flores’s claims. See Bond, 414 F.3d at 544.
Flores nevertheless contends that ineffective assistance of counsel rendered invalid his guilty plea and the appeal waiver provision. Although ineffective assistance of counsel claims challenging the plea and waiver themselves survive the waiver, see United States v. White, 307 F.3d 336, 343 (5th Cir. 2002), we ordinarily will not address such claims for the first time on direct appeal where they were not sufficiently developed in the trial court. United States v. Lampazianie, 251 F.3d 519, 527 (5th Cir. 2001). This is not the rare case where the record allows a fair evaluation of the claim’s merits. See United States v. Navejar, 963 F.2d 732, 735 (5th Cir. 1992). Flores is not precluded from bringing a 28 U.S.C. § 2255 motion challenging the validity of his guilty plea and appeal waiver on the basis of ineffective assistance of counsel. See White, 307 F.3d at 343.
United States v. Flores, No. 06-41527 (5th Cir. 2008)
Note that who won or lost in a particular case is irrelevant for your case. You simply use the legal principles expanded on as “building blocks” in your own case.
Coerced pleas are invalid as well. See Waley v. Johnson, 316 U.S. 101, 62 S.Ct. 964 (1942). U.S. simply means “United States Reports” and “S.Ct.” means Supreme Court. Obviously, this is a U.S. Supreme Court case.
Here is what the courts consider is not a coerced plea:
“It is well established that solemn declarations in open court carry a strong presumption of verity.” United States v. Lampaziane, 251 F.3d 519, 524 (5th Cir. 2001) (internal quotation marks and citation omitted). The only threats more specifically identified in Felice’s motion were threats that further charges would be brought against him if he did not accept his plea. Threats regarding additional charges or enhanced penalties are accepted practices in plea negotiations and are not considered the kinds of threats which undermine the voluntariness of a guilty plea. See Frank v. Blackburn, 646 F.2d 873, 878-79 (5th Cir. 1980) (en banc), modified on other grounds, 646 F.2d 902 (5th Cir. 1981).
United States v. Felice, No. 07-30391 (5th Cir. 2008)
That the “plea bargaining” process is corrupt is hardly a recent revelation.
Not too long ago plea bargaining was an officially prohibited practice. Court procedures were followed to ensure that no concessions had been given to defendants in exchange for guilty pleas. But gradually it became widely known that these procedures had become charades of perjury, shysters, and bad faith involving judges, prosecutors, defense attorneys and defendants. This was scandalous. But rather than cleaning up the practice in order to square it with the rules, the rules were changed in order to bring them in line with the practice. There was a time when it apparently seemed plain that the old rules were the right rules. One finds in the RESTATEMENT OF CONTRACTS3 “. . . even if the accused is guilty and the process valid, so that as against the State the imprisonment is lawful, it is a wrongful means of inducing the accused to enter into a transaction. To overcome the will of another for the prosecutor’s advantage is an abuse of the criminal law which was made for another purpose” (emphasis added). The authors of the RESTATEMENT do not tell us what they were thinking when they spoke of the purpose of the criminal law. Nonetheless it is instructive to conjecture and to inquire along the lines suggested by the RESTATEMENT.
Kenneth Kipnis, Criminal Justice and the Negotiated Plea, Ethics, Volume 86 (1976).
Here is an example of how courts “change the rules”:
A Louisiana state court jury convicted Jimmy Frank of armed robbery. A Louisiana state court judge sentenced him to thirty-three years in prison. In a petition for habeas corpus,*fn1 Frank attacked his conviction on the grounds that certain identification testimony was inadmissible and that the prosecutor’s argument referred to Frank’s failure to testify. He attacked the sentence on the ground that the trial judge impermissibly increased the term of confinement because Frank rejected a plea bargain offer and elected to stand trial. The federal trial court denied habeas corpus. A panel of this court reversed and remanded the case to the district court for dismissal upon resentencing by the state court, finding that Jimmy Frank was penalized by the state court because he exercised his constitutional right to stand trial. Frank v. Blackburn, 605 F.2d 910 (5th Cir. 1979). We decided to rehear the case en banc because of its potentially devastating impact upon the plea bargaining process. A majority of the en banc court now finds that no constitutional rights were violated in the conviction and sentencing of Jimmy Frank. The panel opinion is vacated, and the district court’s denial of the writ is affirmed.
That plea bargaining plays a dominant role in the American criminal justice system is evidenced by the statistics: roughly ninety percent of the criminal defendants convicted in state and federal courts plead guilty rather than exercise their right to stand trial before a court or jury. D. Newman, Conviction: The Determination of Guilt or Innocence Without Trial 3 (1966); Alschuler, Plea Bargaining and Its History, 79 Colum.L.Rev. 1, 1 (1979). Nevertheless, plea bargaining remains a controversial issue, provoking praise, criticism and extensive debate among legal scholars and practitioners. Judicial pronouncements on plea bargaining indicate that the courts are as sharply split as the commentators over the propriety of negotiating a guilty plea. While most courts have approved the use of plea bargaining, a number of judges have condemned it, maintaining that issues of guilt cannot be settled. See, e. g., Scott v. United States, 135 U.S. App. D.C. 377, 419 F.2d 264 (D.C.Cir.1969); Shelton v. United States, 242 F.2d 101 (5th Cir.), rev’d en banc, 246 F.2d 571 (5th Cir. 1957), rev’d per curiam, 356 U.S. 26, 78 S. Ct. 563, 2 L. Ed. 2d 579 (1958) (Judge Rives stating for the court in the first Shelton opinion that “(justice) and liberty are not the subjects of bargaining and barter.” 242 F.2d at 113); J. Bond, Plea Bargaining and Guilty Pleas §§ 2.01-.04 (1978); Comment, The Influence of the Defendant’s Plea on Judicial Determination of Sentence, 66 Yale L.J. 204 (1956) (discussing results of a questionnaire about guilty pleas sent to 240 federal judges).
Frank v. Blackburn, 646 F.2d 873 (5th Cir. 1980)
Note that a lot of judges and legal scholars have commented on “plea bargains” unfavorably. And here we address the nine politically appointed ambulance chasers sitting in D.C.:
Notwithstanding the diversity of opinion on the subject, the Supreme Court has repeatedly expressed approval of the plea bargaining process. In Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), the Court stated that “(t)he disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called “plea bargaining,’ is an essential component of the administration of justice. Properly administered, it is to be encouraged.” 404 U.S. at 260, 92 S. Ct. at 498. The Santobello opinion took note of some of the practicalities of plea bargaining:
If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.
Frank v. Blackburn, 646 F.2d 873 (5th Cir. 1980)
The problem with these third-rate legal minds is that none of them will acknowledge that “plea bargaining” was unknown to the legal system when the Constitution was written, “trial by jury” was inserted twice. New York State, for example, had to have a Constitutional Amendment to their state constitution to allow guilty pleas. Why didn’t the feds?
As for multiplying the numbers of judges and court facilities without plea bargaining, nonsense. The easiest way to reduce our burgeoning prison population and reduce court time would simply be to eliminate or ignore unconstitutional laws. E.g., gun laws (violate the second amendment), income tax criminal penalties (read the 16th Amendment, there is no authority for Congress to enact legislation, as there is in the 13th , 14th, and 15th), drug laws (it took a Constitutional Amendment to outlaw the drug alcohol, why not for other drugs), and so forth.
Note how recently the Supremes addressed the issue:
Supreme Court approval of plea bargaining can be traced through a series of cases beginning in 1970. In Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970).
Frank v. Blackburn, 646 F.2d 873 (5th Cir. 1980)
Now here’s the real kicker:
Fraud vitiates everything it touches. Warfield v. Marksi, 190 F.2d 178 (5th Cir. 1981).
The case law on contract law and guilty pleas is instructive.
*fn6 See, e.g., United States v. Escamilla, 975 F.2d 568, 570 (9th Cir. 1992) (“Plea bargains are contractual in nature and must be measured by contract law principles.”); United States v. Robison, 924 F.2d 612, 613 (6th Cir. 1991) (“Plea agreements are contractual in nature. In interpreting and enforcing them, we are to use traditional principles of contract law.”); United States v. Sophie, 900 F.2d 1064, 1071 (7th Cir.), cert. denied, 498 U.S. 843, 111 S. Ct. 124, 112 L. Ed. 2d 92 (1990) (“Plea agreements–and, logically, the sentence and immunity agreements that make up the alleged plea agreement in this case–are contracts, . . . and determining the existence and meaning of such contracts is governed by ordinary principles of offer and acceptance . . . .”); Stokes v. Armontrout, 851 F.2d 1085, 1089 (8th Cir. 1988), cert. denied, 488 U.S. 1019, 109 S. Ct. 823, 102 L. Ed. 2d 812 (1989) (once defendant enters guilty plea, contract principles often provide useful means by which to analyze the enforceability of plea agreement); United States v. Gonzalez-Sanchez, 825 F.2d 572, 578 (1st Cir.), cert. denied, 484 U.S. 989, 108 S. Ct. 510, 98 L. Ed. 2d 508 (1987) (when defendant enters into a plea agreement with the government, contractual principles apply insofar as they are relevant in determining what the government owes the defendant); United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986) (“In the process of determining whether disputed plea agreements have been formed or performed, courts have necessarily drawn on the most relevant body of developed rules and principles of private law, those pertaining to the formation and interpretation of commercial contracts.”); State v. Morales, 804 S.W.2d 331, 332 (Tex. Ct. App. 1991) (plea agreement is essentially a contract); Wright v. McAdory, 536 So. 2d 897, 901 (Miss. 1988) (in context of plea bargaining we rely upon contract model; where prosecution and defense reach plea-bargain agreement and defendant relies upon agreement, prosecution is bound to its bargain); State v. Nall, 379 So. 2d 731, 733 (La. 1980) (plea bargain is contract between state and one accused of crime).
United States v. Asset, 990 F.2d 208 (5th Cir. 1993)
I.e., a contract procured by fraud can be set aside. How does this work?
In many cases the prosecutors “stack” bogus charges on the indictment in order to have extra leverage to induce a guilty plea.
“We’ll dismiss counts 2,3, and 4 if you plead guilty to count 1 (count 1 being the only one they had a chance of getting a conviction on in the first plea). Defense attorneys always go along with this (more money for less work for them, trials are tedious and time-consuming).
Will a judge set your guilty plea aside when you raise this issue? No. The practice is far too wide spread. The entire system would go upside down. Millions of felony convictions would have to be overturned.
However, it’s still a good move to raise the issue. The entire system will go upside down when the families and friends of the convicted realize that they are now the largest voting bloc in the United States and that if you want to change the laws, all you have to do is change the law makers.
But that’s another article for another day.