Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 73 C 572 Abraham L. Marovitz Judge Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 72 C 3250 William J. Lynch Judge.
Hastings, Senior Circuit Judge, Swygert and Cummings, Circuit Judges.
HASTINGS, Senior Circuit Judge.
These appeals from district court orders denying petitioners' motions pursuant to 28 U.S.C. § 2255, although arising from somewhat different facts and separately briefed, were consolidated for oral argument and decision because they raise the identical issue of whether 28 U.S.C. § 2255 requires that a guilty plea be set aside if the defendant was not informed that he would be ineligible for parole and was incorrectly informed at the time of sentencing that he would have the opportunity for parole.
Arnold Gates, on February 24, 1969, pleaded guilty to a three-count indictment charging narcotics violations under 21 U.S.C. §§ 174 and 176(a) [176a], and a four-count indictment charging violations of 21 U.S.C. § 174 and 26 U.S.C. § 4705(a). Prior to accepting the plea, the court advised Gates of the maximum and minimum sentences which he could receive and of the possible fine, but Gates was not told that the sentences would be imposed without eligibility for parole. In fact, at the subsequent sentencing the district court seemed to suggest that Gates would have an opportunity for parole. The court said:
You can go down there, Mr. Arnold [Gates], and make up your mind you are going to pay your penalty and be a model prisoner and get out as quickly as you can and from here on -- and you have some nice friends here -- enjoy their companionship and just make sure that no one can get you to do something that is contrary to decency and certainly not in violation of the law. All right.
Gates was sentenced to seven years imprisonment on each of the seven counts of the two indictments, all to be served concurrently.
On March 5, 1973, Gates filed a motion in the district court pursuant to 28 U.S.C. § 2255 alleging that his sentence was invalid because he was not informed prior to his guilty plea that he would be ineligible for parole. His verified petition stated that he would not have pleaded guilty if he had known he would have no opportunity for parole. On April 4, 1973, the district court, without an evidentiary hearing, denied Gates' motion. The court gave no reasons for its decision, but stated only that "the Petitioner is entitled to no relief." Gates appeals from the denial of his § 2255 motion.
Felix Melian, on March 29, 1971, pleaded guilty to a two-count indictment charging narcotics violations under 21 U.S.C. § 174 and 26 U.S.C. § 4705(a). Prior to his plea the court advised Melian that he could receive a sentence of from five to twenty years, but Melian was not told that he would be ineligible for parole. Immediately following his plea, the district court imposed concurrent sentences of five years on each count and then went on to say:
You know, if you go and if you should be put on parole by the parole board after a period of time, that you will serve a minimum, but you still must behave yourself, and if you get in any further trouble here -- you must conduct yourself and behave, because if you don't you will again face the possibility of going to the penitentiary.
On December 27, 1972, Melian filed a motion pursuant to 28 U.S.C. § 2255. His verified petition stated that he was not informed of his ineligibility for parole prior to his plea and that if he had known he was ineligible he would not have pleaded guilty. The district court granted Melian's motion for an evidentiary hearing and appointed counsel to represent him.
A hearing was held on October 25, 1973. Dillon Hoey, counsel for Melian at the time of his guilty plea, testified on behalf of the government. Hoey testified that although he couldn't recall his conversation with Melian prior to the plea, it had been his normal operating procedure to inform a client of the total consequences of a plea. The only other witness at the hearing was Melian. Melian testified that Hoey had told him that Hoey had had a meeting with the district judge and that the judge would give Melian no more than five years. Melian further testified that Hoey had told him that if he pleaded guilty he would be eligible for parole. Three exhibits were introduced into evidence at the hearing on behalf of Melian: a transcript of the guilty plea and sentencing, the Bureau of Prisons Sentence Computation Record indicating that Melian was ineligible for parole and a letter to Melian's attorney from an official at the penitentiary, dated September 11, 1973, stating that Melian was ineligible for parole.
On October 31, 1973, the district court issued the following order:
The writ of habeas corpus is hereby discharged. The failure of this Court to advise the petitioner that he was ineligible for parole was harmless error because effective May 1, 1971, Title 26 U.S.C. Sec. 7237(d) was repealed and the petitioner having completed the required statutory period was eligible to be considered for parole by the Parole Board.
The court thereafter cited the decisions of our court in United States v. McGarr, 7 Cir., 461 F.2d 1 (1972); and Arias v. United States, 7 Cir., 484 F.2d 577 (1973). Melian appeals ...