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July 16, 1968

Raymond S. BERRY

The opinion of the court was delivered by: LORD, III

 Petitioner seeks relief under 28 U.S.C. ยง 2255. *fn1" I appointed counsel and held a plenary hearing, as a result of which I find the following facts:

 On March 13, 1962, petitioner was arrested and charged with the illegal sale of narcotics. He was arraigned before the United States Commissioner, and later before Judge John W. Lord, Jr., when he entered a plea of not guilty. On September 4, 1962, Martin Heller, Esquire, was appointed to represent Berry. Between September 4 and September 11, Mr. Heller visited the petitioner in prison and spoke to him at length for about an hour, asking him questions and receiving relevant answers. Mr. Heller also examined the Government's files and evidence.

 On September 11, Berry changed his plea before me to guilty. He was sentenced on October 19 to fifteen years imprisonment on the narcotics charge and to three years for violation of probation, the sentences to run consecutively. From the time of his arrest until sentence, Berry was incarcerated.

 Petitioner had been a narcotics addict for twenty-five years and was under the influence of narcotics at the time of his arrest. However, from March until September, 1962, he had had no narcotics.

 Petitioner's first claim is that he was incompetent to enter a plea. He asserts that evidence of his twenty-five year addiction, together with his testimony that he was suffering from withdrawal symptoms "clean up until around October or November" shifts to the Government the burden of proving petitioner's competence. He concludes that since the Government has produced no evidence to rebut petitioner's testimony of incompetence, relief must be granted. I do not agree.

 It is true that in a criminal prosecution, "when some evidence of mental disorder is introduced, the prevailing rule in most jurisdictions is that sanity, like any other fact, must be proved as a part of the prosecution's case beyond a reasonable doubt." United States v. Currens, 290 F.2d 751, 761 (C.A.3, 1961). This rule, however, stems from the fact that guilt cannot attach in the absence of mens rea, and since mental capacity is a necessary element of the crime, it, like all other necessary elements, must be proved when it emerges as an issue. Ibid. Where, however, guilt has already been established by verdict or plea, the only avenue of attack other than appeal is by a collateral proceeding. In such proceeding, "the only possible way to determine the question of competence to stand trial * * * is by retrospective hearing." Hansford v. United States, 124 U.S.App.D.C. 387, 365 F.2d 920 (1966), fn. 16, at page 926. And the burden of proof of incompetence is on the movant. Bishop v. United States, 96 U.S.App.D.C. 117, 223 F.2d 582 (1955); Heard v. United States, 263 F. Supp. 613, 616 (D.C.1967).

 The mere fact that Berry's testimony was uncontradicted does not require its acceptance, for credibility is for the trier of the facts. Hawk v. Olson, 326 U.S. 271, 279, 66 S. Ct. 116, 90 L. Ed. 61 (1945); Tyler v. Beto, 391 F.2d 993, 995 (C.A.5, 1968). I find that petitioner was not suffering from withdrawal symptoms at the time of his plea and I reject his testimony to the contrary.

 Although as an addict he was familiar with the manifestations of withdrawal symptoms, he had neither requested nor received any medical treatment in prison. Indeed, while petitioner testified to withdrawal symptoms at the time of his arrest and alleged interrogation (N.T. 9, 12), his only testimony relating to the time of the guilty plea was the naked assertion that he was "suffering from withdrawals clean up until around October or November" (N.T. 47). He tells us nothing of the effect of these alleged "withdrawals". The test of incompetence in this situation is whether defendant had the ability to consult with his lawyer with a reasonable degree of rational understanding and whether he had a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). Berry nowhere said he was unable to consult with counsel. In fact, the evidence is to the contrary. He did meet with counsel; he discussed with him his alleged confession; he gave him the names of witnesses; he discussed the possibility of a jury trial; and he gave relevant answers to counsel's questions.

 Furthermore, petitioner had been away from narcotics for six months. "Investigations conducted at the hospital [Lexington] have revealed that addicts do not regain physiological normalcy for some six months after withdrawal from drugs." WINICK, NARCOTICS ADDICTION AND ITS TREATMENT, 22 Law and Contemp. Prob. 9, 24 (1957). See also, PRESIDENT'S CRIME COMMISSION TASK FORCE REPORT ON NARCOTICS AND DRUG ADDICTION, 157 and n. 103 (1967). Berry had had six months to recover.

 Finally, there is no evidence anywhere in this record that Berry told his lawyer or anyone else that he was suffering from withdrawal symptoms at the time of his plea. He did not even mention it at the time of sentence, over one month after the plea. I find that petitioner was competent to enter his guilty plea on September 11, 1962.

 I find further, that although petitioner claims to have signed a confession which in part induced his plea, there was in fact no confession signed, either voluntary or involuntary. I must therefore reject petitioner's claim that his plea was the result of an involuntary confession.

 Petitioner next contends that his appointed counsel was incompetent. I cannot agree.

 I. Failure to Request a Psychiatric Examination

 Mr. Heller visited Berry and spoke with him for approximately one hour. He questioned him and at no time did he receive an answer that was not both relevant and responsive. There is no evidence that Berry complained at that time or at any other time of withdrawal symptoms, although he was obviously familiar with their manifestations. Counsel had no reason to suspect that a psychiatric examination was indicated.

  The cases relied upon by petitioner are clearly distinguishable from this one. In Brooks v. State of Texas, 381 F.2d 619, 622 (C.A.5, 1967), the court pointed out that "* * * thorough and timely interview with his client would have disclosed commitments to at least three different mental institutions during 1962 and 1963 and two attempts to commit suicide. Instead, counsel waited until the Friday before the Monday on which the case was set for trial to interview Brooks for between 15 and 25 minutes." In Owsley v. Peyton, 368 F.2d 1002, 1003 (C.A.4, 1966), the "attorney must have been aware that proof of the uncertainty [as to defendant's mental condition] was at hand." And in Kibert v. Peyton, 383 F.2d 566, 568 (C.A.4, 1967), the "attorney prior to trial had serious doubts as to Kibert's mental condition. * * *"

 None of these factors obtain here. Mr. Heller interviewed petitioner at length. He had no doubt of and no reason to doubt petitioner's mental competence. He did know, of course, of petitioner's addiction, but when he saw Berry there was nothing to indicate that the addiction had impaired his competence to stand trial or to enter a plea.

 Nor was there anything other than addiction on which to base a defense to the charge itself, and this is no defense. In United States v. Freeman, 357 F.2d 606 ...

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