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United States v. Horsley

argued: January 9, 1979; May 17, 1979, Reargued.

UNITED STATES OF AMERICA APPELLEE,
v.
HOWARD HORSLEY, RONALD MILLER A/K/A BUGS, HOWARD HORSLEY APPELLANT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA D.C. Crim. No. 75-182

Before Hunter and Garth, Circuit Judges, and Layton,*fn* District Judge. Before Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis, Garth, and Higginbotham, Circuit Judges.

Author: Hunter

Opinion OF THE COURT

Howard Horsley appeals from the denial of his habeas corpus petition, which was brought under 28 U.S.C. § 2255 (1976). He contends that at his guilty plea colloquy, he was not advised personally by the district court judge of the nature of the charges against him, or of the consequences of the imposition of a special parole term.*fn1 Thus, he asserts that his rights under Rule 11 of the Federal Rules of Criminal Procedure were violated, and that he should be entitled to withdraw his original plea and plead anew. We believe that this case is controlled by United States v. Timmreck, 441 U.S. 780, 99 S. Ct. 2085, 60 L. Ed. 2d 634 (1979). Therefore, we affirm the denial of his petition.

I

FACTS

On June 12, 1975 a two count indictment was returned against Horsley, charging him with conspiracy to distribute heroin and with distribution of heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1) (1976). Horsley pleaded guilty to the conspiracy count on April 29, 1976, at which time the district court judge conducted the guilty plea colloquy here challenged. Horsley was sentenced to six years imprisonment, plus a mandatory three year special parole term. He did not appeal from his judgment of conviction.

Fifteen months later, Horsley filed a habeas corpus petition, contending that he was entitled to withdraw his guilty plea because the judge who accepted the plea committed errors in the Rule 11 colloquy. The district court denied him relief.

Horsley's first contention on appeal is that he was not informed by the judge of the nature of the charges against him. His challenge arises out of the following exchanges during the guilty plea colloquy:

By MR. ATKINS (Assistant U.S. Attorney):

Q. Mr. Horsley, have you received a copy of the indictment?

A. Yeah.

Q. Okay. And have you read it?

A. Yes, I have.

Q. And have you discussed it with your attorney?

A. Yes, I have.

Q. Okay. And do you understand what you are being charged with?

A. Uh-huh.

Q. Okay. Do you want the indictment read to you, or do you waive a formal reading of the indictment?

MR. GAITENS (Defense Counsel): We will waive the formal reading, your Honor. We have had an ...


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