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United States v. Ackerman

decided: April 21, 1980.



Before Adams, Hunter and Higginbotham, Circuit Judges.

Author: Per Curiam


This is an appeal from the denial of a pro se motion to vacate, set aside, or correct the sentence of a federal prisoner pursuant to 28 U.S.C. § 2255 (1976). The appellant, Herbert Ackerman, has raised two grounds for relief: (1) that in accepting his guilty plea, the trial judge did not fully and completely discharge his duty under Fed.R.Crim.P. 11; and (2) that he was denied his Sixth Amendment right to effective assistance of counsel. We affirm the judgment of the district court denying the Rule 11 claim, but vacate and remand for a hearing on the question whether Ackerman received effective assistance of counsel.

A federal grand jury returned a two-count indictment against Ackerman that charged him with knowingly or intentionally distributing metamphetamine, a nonnarcotic Schedule II controlled substance,*fn1 in violation of 21 U.S.C. § 841(a)(1) (1976). Ackerman pleaded guilty to both counts. The district judge sentenced him to five years imprisonment on each count to run concurrently, and to two years of special parole on each count to run consecutively.*fn2


Ackerman's first ground for relief under § 2255 is that the sentencing judge failed to discharge fully his obligations under Rule 11.*fn3 He claims that, although the judge correctly apprised him of the minimum four-year mandatory special parole term applicable if a consecutive sentence were imposed, the judge did not adequately inform him that, even if he received concurrent prison sentences, he nevertheless could be sentenced to four-year special parole. Ackerman also contends that the judge violated Rule 11 by failing to state that a lifetime special parole term could be imposed and by not telling him that the special parole term would be in addition to any other parole he might receive.

Before accepting the guilty plea, the district judge, as required by Rule 11, formally addressed Ackerman, and determined that there was a factual basis for the plea and that Ackerman was acting voluntarily. The judge informed him of the special parole terms by means of the following colloquy:

THE COURT: You do understand, therefore, that in entering this plea, that you are subjecting yourself to a possible maximum penalty of $15,000, five years imprisonment or both on each count or on both counts a possible ten year imprisonment and $30,000 fine.

THE DEFENDANT: Yes, sir, I understand that.

THE COURT: And also if there is imprisonment there would be what is known as a special parole term of at least two years and that would be as to each count. If the imprisonment, for example, was imprisonment that was not concurrent but consecutive so, therefore, there could be the possible special parole term of two years on each count or four years. Do you understand that as well?

Although Ackerman claims that this colloquy inadequately advised him of the nature of special parole, he does not contend that he would have pleaded not guilty had the trial judge complied fully with Rule 11.

In United States v. Timmreck, 441 U.S. 780, 99 S. Ct. 2085, 60 L. Ed. 2d 634 (1979), the Supreme Court held that the sentencing judge's failure to apprise a defendant who was entering a guilty plea of the existence of the mandatory special parole term was not grounds for collateral relief from the sentence under § 2255. Emphasizing the strong public interest in the finality of criminal convictions based on guilty pleas, the Court stated that the district court's mistake was "neither constitutional nor jurisdictional," and that no claim "reasonably (could) be made that the error here resulted in a "complete miscarriage of justice' or in a proceeding "inconsistent with the rudimentary demands of fair procedure.' " Id. at 783-84, 99 S. Ct. at 2087 (quoting Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471, 7 L. Ed. 2d 417 (1962)).

Ackerman does not assert that he was unaware of the existence of the provision for mandatory special parole. Rather, he premises his aspect of the § 2255 motion on his alleged misunderstanding of the precise ramifications of the special parole term. If a complete lack of knowledge about special parole was insufficient to support the petitioner's § 2255 motion in Timmreck, Ackerman's more limited claims cannot afford him relief in this case. Accordingly, we hold that the district court did not err ...

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