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UNITED STATES AMERICA v. COLE (03/06/87)

filed: March 6, 1987.

UNITED STATES OF AMERICA
v.
COLE, REGINALD, REGINALD COLE, APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal No. 84-00063-01.

Author: Farnan

SLOVITER and STAPLETON, Circuit Judges and FARNAN, District Judge*fn*

Opinion OF THE COURT

FARNAN, District Judge.

Appellant Reginald Cole ("Cole") appeals from an order entered in the United States District Court for the Eastern District of Pennsylvania, which denied Cole's petition under 28 U.S.C. § 2255 to vacate, set aside or correct a judgment of sentence. We have jurisdiction of this appeal under 28 U.S.C. § 1291.

I.

On February 21, 1984, a federal grand jury returned an eight count indictment charging Reginald Cole and two co-defendants with various drug offenses. Specifically, the indictment charged Cole with six counts of distributing heroin, a violation of 21 U.S.C. § 841(a)(1), and two counts of conspiracy to distribute heroin, a violation of 21 U.S.C. § 846.

On April 24, 1984, the district court held a change of plea hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure ("Rule 11"). At the hearing, Cole pled guilty to one count of conspiracy to distribute heroin, and five counts of distribution. In exchange for Cole's guilty plea, the Government agreed to move for dismissal of the remaining counts at the time of sentencing.

The district court accepted the plea after engaging Cole in a lengthy plea colloquy. During the colloquy, the court advised Cole of the charges against him, and of the evidence the government would offer to prove those charges. The district court informed Cole of his right to a trial by jury, and instructed him that his guilty plea, if accepted, would result in a waiver of his right to a jury trial. Cole was also advised of the mandatory minimum as well as the possible maximum penalties he could receive under the terms of his plea agreement. The record further reflects the district court's willingness to answer questions posed by Cole, and indicates that Cole took advantage of the opportunity to question the court about matters he did not understand. During the Rule 11 colloquy, the court asked Cole whether he was presently under the influence of any medication or substances. In response, Cole admitted that he had "had some drugs last night." The colloquy then continued with no further reference to nor inquiry on the part of the court into Cole's statement of recent drug usage.

The district court accepted Cole's guilty plea and ultimately sentenced him to fifty-five years imprisonment and a life term of special parole. Following an unsuccessful appeal, Cole filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 on the ground that his plea was accepted in violation of Federal Rule of Criminal Procedure 11(c)(1). Specifically, Cole claims he was not competent to enter a plea of guilty because he had ingested approximately four hundred dollars worth of heroin and two hundred fifty dollars worth of cocaine during the evening prior to and up until five or six a.m. on the morning of his change of plea hearing. Cole argues that because he was under the influence of illicit drugs at the Rule 11 hearing, his guilty plea was neither knowingly nor voluntarily entered.

In considering Cole's § 2255 petition, the district court failed to credit Cole's version of the change of plea hearing. In its order denying Cole's habeas corpus petition, the court noted in an unpublished memorandum and order that "On April 24, 1984, on the record in open court, defendant averred that he was no under the influence of drugs." United States v. Cole, No. 84-00063, slip op. at 1 (E.D. Pa. July 9, 1985) (unpublished memorandum and order denying petitioner's motion to vacate, set aside, or correct a sentence). The record of the Rule 11 hearing reflects otherwise, as evidence by the following exchange between Cole and the court:

THE COURT: All right.

Are you under the influence of any medication or ...


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