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    Paul Handy Nunley v. United States, 294 F.2d 579, 10th Cir. (1961)

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    Paul Handy Nunley appealed the denial of his second motion seeking relief under 28 U.S.C. 2255, arguing that the trial court failed to determine that his guilty plea was voluntary as required by Rule 11. The appeals court affirmed, finding that although no express determination of voluntariness was made, the record and evidence from a hearing on the motion indicated Nunley knew the charges, was not coerced, understood penalties, and entered the plea voluntarily with counsel. The court concluded Rule 11 does not require a specific ritual for determining voluntariness if the record shows the plea was properly made.

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    Paul Handy Nunley v. United States, 294 F.2d 579, 10th Cir. (1961)

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    Paul Handy Nunley appealed the denial of his second motion seeking relief under 28 U.S.C. 2255, arguing that the trial court failed to determine that his guilty plea was voluntary as required by Rule 11. The appeals court affirmed, finding that although no express determination of voluntariness was made, the record and evidence from a hearing on the motion indicated Nunley knew the charges, was not coerced, understood penalties, and entered the plea voluntarily with counsel. The court concluded Rule 11 does not require a specific ritual for determining voluntariness if the record shows the plea was properly made.

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    Filed: 1961-08-11 Precedential Status: Precedential Citations: 294 F.2d 579 Docket: 6771_1

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    Paul Handy Nunley appealed the denial of his second motion seeking relief under 28 U.S.C. 2255, arguing that the trial court failed to determine that his guilty plea was voluntary as required by Rule 11. The appeals court affirmed, finding that although no express determination of voluntariness was made, the record and evidence from a hearing on the motion indicated Nunley knew the charges, was not coerced, understood penalties, and entered the plea voluntarily with counsel. The court concluded Rule 11 does not require a specific ritual for determining voluntariness if the record shows the plea was properly made.

    Copyright:

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    25 views3 pages

    Paul Handy Nunley v. United States, 294 F.2d 579, 10th Cir. (1961)

    Uploaded by

    Scribd Government Docs
    Paul Handy Nunley appealed the denial of his second motion seeking relief under 28 U.S.C. 2255, arguing that the trial court failed to determine that his guilty plea was voluntary as required by Rule 11. The appeals court affirmed, finding that although no express determination of voluntariness was made, the record and evidence from a hearing on the motion indicated Nunley knew the charges, was not coerced, understood penalties, and entered the plea voluntarily with counsel. The court concluded Rule 11 does not require a specific ritual for determining voluntariness if the record shows the plea was properly made.

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    of 3

    294 F.

    2d 579

    Paul Handy NUNLEY, Appellant,


    v.
    UNITED STATES of America, Appellee.
    No. 6771.

    United States Court of Appeals Tenth Circuit.


    Aug. 11, 1961.

    Marilyn L. Wilde, Denver, Colo. (John E. Wagner, Oklahoma City, Okl.,


    was on the brief), for appellant.
    Jack R. Parr, Asst. U.S. Atty., Oklahoma City, Okl. (B. Andrew Potter,
    U.S. Atty., Oklahoma City, Okl., was on the brief), for appellee.
    Before PICKETT, LEWIS and BREITENSTEIN, Circuit Judges.
    PER CURIAM.

    On his plea of guilty appellant Nunley was sentenced to consecutive terms


    totaling 30 years for various narcotic offenses. For the second time he seeks
    relief under 28 U.S.C. 2255. On his first application he contended that he was
    not mentally competent at the time of the entry of the guilty plea and that he
    was not represented by competent and effective counsel. This court affirmed
    the trial court's denial of relief and held that the conviction could not be
    collaterally attacked on the ground of insanity at the time of the commission of
    the offense or at the time of conviction; that he was represented by competent
    counsel at the time of arraignment; and that he competently and intelligently
    waived counsel at the time of the sentence.1

    Nunley now seeks relief on the ground that the trial court failed to make a
    determination that the guilty plea was made voluntarily and, hence, violated
    Rule 11, F.R.Crim.P., 18 U.S.C.A. As the sentencing judge died prior to the
    filing of the second 2255 motion, it was heard by another judge who appointed
    an attorney for Nunley and who conducted a hearing at which Nunley testified.
    The court entered comprehensive findings of fact specifically stating that the
    guilty plea was made voluntarily, intelligently, and with understanding of the

    nature of the charges. These findings are supported by substantial evidence and
    are not clearly erroneous.
    3

    Nunley, who had four prior felony convictions, consulted with four attorneys
    before entering his plea. Over 30 days intervened between the entry of the plea
    and the sentence. During that period Nunley made no effort to change his plea.
    The transcript of the arraignment and sentencing proceedings shows that
    Nunley was advised of the nature of the charges and of the possible penalties.
    In response to a question of the court as to whether he wanted to plead guilty he
    replied, 'Plead guilty.' His court-appointed counsel, whom this court has
    previously held to have represented him competently and effectively, said that
    Nunley wanted to plead guilty. While the sentencing court made no express
    determination that the guilty plea was entered voluntarily, it adequately appears
    that Nunley knew the nature of the charges, did not act under any coercion,
    promises or threats, understood the possible penalties, and was well aware of
    the entire situation in which he was placed.

    Rule 11 does not require any ritualistic ceremonial.2 A sentencing court does
    not have to conduct a hearing and make a finding showing compliance with the
    rule before accepting any guilty plea. If there is any aspect of the situation
    which suggests that the requirements of the rule are not satisfied, appropriate
    inquiry must be made. That is not the case here. The accused, experienced in
    the ways of criminal proceedings and represented by able counsel, was properly
    advised of the charges and the consequent possibilities. This is not a case like
    United States v. Lester, 2 Cir., 247 F.2d 496, where the accused was not
    represented by counsel and where the judge to whom application for relief was
    made failed to ascertain whether the guilty plea was entered in compliance with
    the rule. Here the trial court held 'a thorough hearing in which it was
    abundantly proved that the defendant's plea was made with knowledge and
    volition.'3

    Affirmed.

    Nunley v. United States, 10 Cir., 283 F.2d 651

    Cf. United States v. Davis, 7 Cir., 212 F.2d 264, 267

    Gundlach v. United States, 4 Cir., 262 F.2d 72, 76, certiorari denied 360 U.S.
    904, 79 S.Ct. 1283, 3 L.Ed.2d 1255. See also Edwards v. United States, 103
    U.S.App.D.C. 152, 256 F.2d 707, certiorari denied 358 U.S. 847, 79 S.Ct. 74, 3
    L.Ed.2d 82, and United States v. Swaggerty, 7 Cir., 218 F.2d 875, certiorari

    denied 349 U.S. 959, 75 S.Ct. 889, 99 L.Ed. 1282

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