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    United States v. Henry Halitzer, 455 F.2d 219, 2d Cir. (1972)

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    This document is a court case summary from the United States Court of Appeals for the Second Circuit. It summarizes a ruling on an appeal from a denial of a petition under 28 U.S.C. § 2255 to set aside a conviction following a guilty plea. The court affirmed the lower court's denial, based on an earlier ruling (Korenfeld v. United States) that the requirements established in Bye v. United States for pleas under Rule 11 do not apply retroactively to pleas taken before Bye but after McCarthy v. United States.

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    United States v. Henry Halitzer, 455 F.2d 219, 2d Cir. (1972)

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    31 views2 pages
    This document is a court case summary from the United States Court of Appeals for the Second Circuit. It summarizes a ruling on an appeal from a denial of a petition under 28 U.S.C. § 2255 to set aside a conviction following a guilty plea. The court affirmed the lower court's denial, based on an earlier ruling (Korenfeld v. United States) that the requirements established in Bye v. United States for pleas under Rule 11 do not apply retroactively to pleas taken before Bye but after McCarthy v. United States.

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    Filed: 1972-02-10 Precedential Status: Precedential Citations: 455 F.2d 219 Docket: 487

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    This document is a court case summary from the United States Court of Appeals for the Second Circuit. It summarizes a ruling on an appeal from a denial of a petition under 28 U.S.C. § 2255 to set aside a conviction following a guilty plea. The court affirmed the lower court's denial, based on an earlier ruling (Korenfeld v. United States) that the requirements established in Bye v. United States for pleas under Rule 11 do not apply retroactively to pleas taken before Bye but after McCarthy v. United States.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    31 views2 pages

    United States v. Henry Halitzer, 455 F.2d 219, 2d Cir. (1972)

    Uploaded by

    Scribd Government Docs
    This document is a court case summary from the United States Court of Appeals for the Second Circuit. It summarizes a ruling on an appeal from a denial of a petition under 28 U.S.C. § 2255 to set aside a conviction following a guilty plea. The court affirmed the lower court's denial, based on an earlier ruling (Korenfeld v. United States) that the requirements established in Bye v. United States for pleas under Rule 11 do not apply retroactively to pleas taken before Bye but after McCarthy v. United States.

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    455 F.

    2d 219

    UNITED STATES of America, Appellee,


    v.
    Henry HALITZER, Defendant-Appellant.
    No. 487, Docket 71-2071.

    United States Court of Appeals,


    Second Circuit.
    Argued Jan. 31, 1972.
    Decided Feb. 10, 1972.

    James J. McGillan, Washington, D. C. (Ira M. Lowe, New York City, of


    counsel), for defendant-appellant.
    Colleen Kollar, U. S. Department of Justice, Washington, D. C. (Robert
    A. Morse, U. S. Atty. for Eastern District of New York, Brooklyn, N. Y.,
    Sidney M. Glazer, U. S. Department of Justice, Washington, D. C., of
    counsel), for appellee.
    Before HAYS and OAKES, Circuit Judges, and CLARIE, * District Judge.
    OAKES, Circuit Judge:

    This is an appeal from a judgment of the United States District Court for the
    Eastern District of New York, John F. Dooling, Jr., Judge, entered August 23,
    1971, denying appellant's petition under 28 U.S.C. Sec. 2255 to set aside his
    conviction, following a plea of guilty of a violation of the Federal Narcotics Act
    and specifically 21 U.S.C. Sec. 174.

    The plea of guilty was entered on December 29, 1969, which was after
    McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418
    (1969) but before Bye v. United States, 435 F.2d 177 (2d Cir. 1970).

    Appellant was sentenced on March 6, 1970, to imprisonment for 15 years and


    to pay a fine of $10,000. His petition alleged that he was not advised by the
    court at the time he entered his plea of guilty that he would not be entitled to

    parole, but the trial court found after hearing "that the petitioner did know that
    he would not be eligible for parole, that his plea was in no way founded on the
    assumption that he would be entitled to parole and that he was not entering the
    plea to any extent influenced by the belief or expectation that he would be
    eligible for parole." This finding is not excepted to here. Petitioner argues that
    the plea of guilty must be vacated because McCarthy held that when Rule 11 is
    not complied with, per se, the plea is involuntary.
    4

    The judgment of the court below must be affirmed on the basis of Korenfeld v.
    United States, 451 F.2d 770 (2d Cir. 1971) (at 773) (2-1 decision), which held
    that Bye is not retroactive to McCarthy. While the author of this opinion
    dissented in Korenfeld and still is of the view that Korenfeld was erroneously
    decided, he nevertheless considers himself bound by it, especially in view of
    the fact that a petition for rehearing en banc was denied by the court, with only
    his dissent.

    Appellant seeks to distinguish Korenfeld on the basis that there the defendant
    "never even contended that his plea was involuntary because of his lack of
    knowledge of his ineligibility for parole." As the dissent in Korenfeld shows,
    however, this was not the case. See slip opinion at 646-47. As we pointed out
    above, appellant here does not quarrel with Judge Dooling's finding that
    appellant did in fact know that he would not be eligible for parole at the time of
    the plea of guilty herein.

    Accordingly, the judgment is affirmed.

    Of the District of Connecticut, sitting by designation

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