DAVID GALLMAN, PETITIONER V. UNITED STATES OF AMERICA No. 90-6252 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A 639-645) is reported at 907 F.2d 639. JURISDICTION The judgment of the court of appeals was entered on July 5, 1990. By order dated October 1, 1990, the time within which to file a petition for a writ of certiorari was extended to and including November 12, 1990, a federal holiday. The petition was filed on November 13, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner established that his 1967 plea of guilty in state court to armed robbery was not voluntarily and intelligently rendered, so that the conviction could not be used to enhance his sentence in this federal firearms prosecution. STATEMENT After a conditional plea of guilty in the United States District Court for the Northern District of Illinois, petitioner was convicted of being a felon in possession of a firearm (18 U.S.C. 922(g)(1)) and receiving stolen firearms (18 U.S.C. 922(j)). The district court determined that petitioner had three prior convictions for violent felonies and sentenced him as an armed career criminal, pursuant to the enhancement provisions of 18 U.S.C. 924(e). Accordingly, petitioner received a total sentence of 15 years' imprisonment without possibility of parole. The court of appeals affirmed. Pet. App. A. 1. The evidence upon which petitioner's guilty plea in this case was based showed that petitioner was arrested in Park Ridge, Illinois, on June 6, 1988, after federal agents of the Bureau of Alcohol, Tobacco and Firearms (ATF) received information from a reliable informant that petitioner was trying to sell stolen firearms in his car. Petitioner showed and offered to sell several of these weapons to an undercover agent for $900. After other ATF agents determined petitioner was a convicted felon, he was arrested. A search of his car revealed a number of long firearms in the trunk, a loaded pistol under the front seat, a pistol inside an ice chest, and ammunition. Pet. App. A 640; Gov't C.A. Br. 5-7. 2. Shortly after the indictment was returned, and prior to his guilty plea, the government formally notified petitioner that it would seek a minimum 15-year prison term under 18 U.S.C. 924(e) on the possession-of-firearms charge, based upon petitioner's three prior convictions for violent felonies. Petitioner raised various objections to the enhancement, including the contention that a guilty plea he entered in 1967 was not voluntary and intelligent. The record showed that petitioner pleaded guilty to armed robbery in Indiana Superior Court on July 5, 1967. Petitioner submitted an affidavit in this case stating that he does not "remember" being informed "of the elements of the crime or what the state would prove or anything like that," and further claiming that he was ignorant and simply did what his lawyer told him at the time. Pet. App. A 643. Petitioner also submitted the transcript of the 1967 guilty-plea hearing. Pet. App. B. The transcript of the 1967 hearing shows that petitioner's counsel informed the court at the outset that he had "discussed this case with (petitioner) a number of times." Pet. App. B 3. In addition, petitioner responded affirmatively to defense counsel's question: "Have I not discussed with you fully at all times regarding all of the possible defenses?" Ibid. The court then posed a series of questions directly to petitioner, eliciting confirmation that petitioner wished to withdraw his not-guilty plea, that petitioner was not "threatened or forced by anyone to change" his plea, that the prosecutor had not promised petitioner anything in return for his plea, and that the court itself had not given any guarantees regarding sentencing. Id. at 3-4. After the court explained that petitioner's sentence could be anywhere between 10 and 20 years' imprisonment, petitioner stated that he had not initially understood this when counsel explained it, but that "I understand it now," and he confirmed that the court's statement was consistent with what counsel had said. Id. at 4. Petitioner reiterated that he wished to plead guilty to the armed robbery offense and responded affirmatively to the court's question, whether after "reviewing what (the court) just told you and all the other things which (counsel) has told you, you know what you're doing here." Id. at 5. The district court in this case rejected petitioner's various challenges to the enhancement and sentenced him under 18 U.S.C. 924(e). Petitioner received the mandatory minimum term of 15 years' imprisonment without parole on the possession charge, and a concurrent five-year term of probation on the charge of receiving stolen firearms. Pet. App. A 642; Gov't C.A. Br. 7-8. 3. The court of appeals affirmed, Pet. App. A 639-645, holding that the 1967 armed-robbery conviction in Indiana was properly considered as one of the three prior convictions on which petitioner's sentence enhancement was based. /1/ The court reasoned that because this Court's decision in Boykin v. Alabama, 395 U.S. 238 (1969), does not apply retroactively, the constitutional validity of petitioner's 1967 conviction turns on whether it was "voluntarily and intelligently entered, as those words are understood under the standard of the day." Pet. App. A 642. Thus, the court continued, "(e)vidence that the guilty plea was unfairly obtained or given through ignorance, fear or inadvertence will doom the plea," but "a lack of express evidence conclusively proving the defendant's knowledge and freedom will not." Id. at 642 n.3. The court further held that "once the government has shown that a defendant has three prior 'violent felony' convictions, the burden rests with the defendant to show that the conviction was unconstitutional." Id. at 643. Applying the foregoing standards, the court concluded that petitioner had not shown that his 1967 conviction was invalid. Pet. App. A 643-644. The court discounted the statement in petitioner's affidavit that he does not "remember" being informed of the elements of the offense or what the State would have to prove, because "a claim like his that one cannot remember being informed of one's rights is not the same thing as claiming that one was not so informed." Id. at 643. The court also rejected petitioner's contention that the transcript of the 1967 hearing showed that his plea was not voluntary and intelligent. The court found it significant that the transcript established that petitioner had discussed possible defenses a number of times with his attorney, that he understood what he was doing, that he was informed of the possible sentences, that the court could not guarantee a specific sentence, that he had not been threatened with or promised anything for pleading guilty, and that he wished to plead guilty. Ibid. Although the transcript did not "explicitly show" a waiver of specific rights, ibid., the court concluded such an express waiver was not necessary under the standards applicable at the time, "(a)s long as (petitioner's) intelligent awareness can be reasonably inferred" from the available evidence. Id. at 644. Accordingly, the court concluded that petitioner had not carried his burden of showing his 1967 conviction was unconstitutional. Ibid. ARGUMENT The courts below properly rejected petitioner's challenge to the use of his 1967 armed robbery conviction as one of three violent felony convictions that formed the basis for enhancing his sentence under 18 U.S.C. 964(e). 1. The undisputed evidence showed that in 1967, with the advice and assistance of counsel whose competence petitioner has never challenged, petitioner pleaded guilty to armed robbery in Indiana state court. Petitioner did not challenge that conviction over the course of more than two decades after it was entered. It apparently was not until the instant prosecution that petitioner claimed for the first time that the conviction based on his 1967 guilty plea was invalid, and he contended for this reason that it could not be relied upon to sentence him as a career offender under 18 U.S.C. 924(e). A conviction -- especially one based on a guilty plea entered with the advice of counsel -- that has been final for more than two decades must at least be presumptively valid. Cf. United States v. Timmreck, 441 U.S. 780, 784 (1979) ("the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas"). Indeed, petitioner apparently concedes there must be at least some presumptive validity attached to his 1967 conviction, because he "does not dispute the fact that any individual seeking to challenge the constitutionality of a conviction should come forward with some facts to demonstrate that his plea did not comport with constitutional safeguards." Pet. 19. Petitioner contends, however, that he did present sufficient evidence to overcome the presumption of validity attaching to his 1967 conviction, and thereby shifted to the government the burden of proving the constitutionality of his plea and conviction. As this Court has made clear, a guilty plea is constitutionally valid if it "represents a voluntary and intelligent choice among the alternative courses of action available to the defendant." Hill v. Lockhart, 474 U.S. 52, 56 (1985). Here, petitioner's own evidence showed that his 1967 guilty plea was voluntarily and knowingly entered. Petitioner was represented by counsel in the Indiana prosecution, and he admitted during the guilty-plea hearing that counsel had discussed fully with him all possible defenses to the armed robbery charge. Petitioner told the Indiana court he wished to plead guilty to armed robbery and the court expressly told petitioner that the charge carried a possible sentence of 10-20 years' imprisonment. Finally, in response to the court's direct questions, petitioner stated that he had not been threatened and that he knew what he was doing. Nothing in this colloguy suggests that his plea did not represent a voluntary and intelligent choice among the available alternatives. 2. To overcome this evidence, petitioner relies most heavily (Pet. 22-26, 28) upon Boykin v. Alabama, 395 U.S. 238 (1969), where the Court, on direct appeal, set aside a conviction based on the guilty plea of a defendant who ultimately had been sentenced to death. The Court observed that "(s)o far as the record shows, the judge asked no questions of (Boykin) concerning his plea, and (Boykin) did not address the court." Id. at 239. Recognizing that a guilty plea waives certain of the defendant's constitutional rights (the privilege against self-incrimination, the right to trial by jury, and the right to confront witnesses), the Court held that it could not "presume a waiver of these three important federal rights from a silent record." Id. at 243. As this Court subsequently explained, although it had long been required that a guilty plea be voluntary and intelligent, the "new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily." Brady v. United States, 397 U.S. 742, 747-748 n.4 (1970). Petitioner's reliance on Boykin is misplaced. The courts of appeals have uniformly declined to apply Boykin retroactively. /2/ Because petitioner's guilty plea was accepted more than two years prior to Boykin, the Indiana court's failure to elicit formal, on-the-record waivers of his rights is understandable and provides no basis for refusing to give effect to his conviction here. Moreover, because Boykin was decided more than 20 years ago, the manner in which guilty pleas entered prior to Boykin should be assessed presents no question of substantial importance warranting review by the Court. In any event, a defendant who cannot establish that his plea was involuntary or unknowing and who does not claim that he was innocent -- or even that he would not have pleaded guilty if there had been a more extensive on-the-record colloquy -- should not be allowed to rely solely upon Boykin in mounting a collateral attack on the prior conviction in the present context. Cf. United States v. Timmreck, 441 U.S. 780 (1979) (holding that a defendant who never claimed he otherwise would not have pleaded guilty cannot collaterally attack his plea based on the district court's technical noncompliance with Fed. R. Crim. P. 11). 3. Once his flawed reliance on Boykin is put to one side, petitioner has wholly failed to show that his 1967 guilty plea was anything other than voluntary and knowing. Petitioner's affidavit, which represented simply that he could "not remember being informed of the elements of the crime or what the state would have to prove or anything like that" (Pet. 12), does not establish that he was not in fact so informed. See United States v. Polk, 908 F.2d 212, 215 (7th Cir.) ("the simple assertion of 'I don't remember' is not enough to overcome the defendant's burden"), cert. denied, 111 S. Ct. 534 (1990); cf. United States v. Pereira, 574 F.2d 103, 105 (2d Cir.) (rejecting constitutional challenge to use of conviction based on guilty plea as basis for deportation, where defendant "allege(d) only that he cannot recall being aware of his rights at the time of his guilty plea, not that he was never advised of his rights"), cert. denied, 439 U.S. 847 (1978). What is more, petitioner's lack of recall at this time proves very little in light of his contemporaneous admission during the 1967 guilty-plea hearing that his attorney discussed all possible defenses with him. Nor is there merit to petitioner's request (Pet. 18-22) that the Court grant review to decide whether the court of appeals contravened its own standards regarding the appropriate burdens of proof on the question of the constitutional validity of a prior conviction for sentence-enhancement purposes. Given petitioner's concession that he must bear at least the initial burden of "com(ing) forward with some facts to demonstrate that his plea did not comport with constitutional safeguards" (Pet. 19), this argument is actually little more than a disagreement with the court of appeals' determination that he failed to carry even his initial burden under the circumstances of this case. That fact-bound determination does not warrant review. 4. Finally, none of the allegedly conflicting lower-court decisions upon which petitioner relies (Pet. 18, 20-21) would entitle petitioner to avoid having his 1967 conviction counted for enhancement purposes. Most of those cases involve prior uncounseled convictions, and they simply hold that the prosecution bears the burden of overcoming a record that is silent on the specific question of whether the defendant had access to counsel at the time of the prior conviction. See Luna v. Black, 772 F.2d 448, 450 (8th Cir. 1985); Crovedi v. United States, 517 F.2d 541, 543 (7th Cir. 1975); United States v. Gantt, 659 F. Supp. 73, 79 (W.D. Pa. 1987). Here, of course, there is no suggestion that petitioner was denied his fundamental right to the assistance of counsel in the 1967 prosecution. Moreover, far from being inconsistent with these decisions, the decision below cited Gantt with approval in explaining that "where the certified record of conviction indicates on its face that the conviction was unconstitutional, the defendant's burden is automatically met and the defendant need introduce no evidence at all." Pet. App. 643 n.4. Petitioner's reliance (Pet. 21-22) on Lonberger v. Jago, 651 F.2d 447 (6th Cir. 1981), is particularly misplaced, since that decision was subsequently reversed by this Court in Marshall v. Lonberger, 459 U.S. 422 (1983). The Court there rejected the Sixth Circuit's holding, upon which petitioner relies, that a defendant's prior guilty-plea conviction could not be used to enhance his sentence on a later conviction because the record did not affirmatively indicate that he understood the charge to which he had earlier pleaded guilty. The Court held that a defendant "must be presumed to have been informed, either by his lawyer or at one of the presentencing proceedings, of the charges on which he was indicted." Id. at 437 (citing Henderson v. Morgan, 426 U.S. 637 (1976)). The presumption of regularity applied in Marshall v. Lonberger is buttressed here by the on-the-record statements by petitioner and defense counsel that they had discussed all possible defenses to the armed robbery charge and by petitioner's on-the-record acknowledgements to the court that his plea was voluntarily given and that he knew what he was doing. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General SEAN CONNELLY Attorney FEBRUARY 1991 /1/ The court also rejected petitioner's Eighth Amendment challenge to 18 U.S.C. 924(e) (Pet. App. A 642); his claim that a 1979 burglary conviction did not qualify as a "violent felony" within the meaning of Section 924(e) (Pet. App. A 644-645 (citing Taylor v. United States, 110 S. Ct. 2143 (1990)); and his challenge to the search of his car, which led to the guilty plea in this case (Pet. App. A 641-642). /2/ See, e.g., Horace v. Wainwright, 781 F.2d 1558, 1564 (11th Cir.), cert. denied, 479 U.S. 869 (1986); Berry v. Mintzes, 726 F.2d 1142, 1146 (6th Cir.), cert. denied, 467 U.S. 1245 (1984); Barbee v. Ruth, 678 F.2d 634, 635 n.1 (5th Cir.), cert. denied, 459 U.S. 867 (1982); Reeves v. Mabry, 615 F.2d 489, 492 (8th Cir. 1980); Kibert v. Blankenship, 611 F.2d 520, 525 (4th Cir. 1979), cert. denied, 446 U.S. 911 (1980); United States v. Pereira, 574 F.2d 103, 105 n.5 (2d Cir.), cert. denied, 439 U.S. 847 (1978); Mathis v. Hocker, 459 F.2d 988, 989 (9th Cir. 1972). Cf. Halliday v. United States, 394 U.S. 831, 833 (1969) (denying retroactive effect to McCarthy v. United States, 394 U.S. 459 (1969), which interpreted Fed. R. Crim. P. 11 to require certain express waivers by the defendant during a guilty plea hearing).