Halliday v. United States (394 U.S. 831)/Concurrence Harlan

Mr. Justice HARLAN, concurring in the result.

McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, announced no new constitutional or general procedural doctrine. That decision, on a matter of first impression in this Court, merely interpreted Rule 11 of the Federal Rules of Criminal Procedure, as amended effective July 1, 1966, and held that the rule must be strictly applied according to its terms. I see no reason why other federal prisoners whose pleas were accepted in plain violation of the requirements of the amended rule should be deprived of the relief accorded McCarthy. See generally my dissent in Desist v. United States, 394 U.S. 244, at 256, 89 S.Ct. 1030, at 1037, 22 L.Ed.2d 248. I would therefore apply the per se rule enunciated in McCarthy to all pleas entered on or after July 1, 1966.

While the amended Rule 11 requires the trial judge to follow specific procedures before accepting a plea of guilty, and was promulgated for that very purpose, see Notes of Advisory Committee on Rules, the pre-1966 Rule 11 was 'substantially a restatement of existing law and practice,' ibid., and required only that the judge 'determine' that the plea is made 'voluntarily with understanding of the nature of the charge,' without, however, specifying a procedure for making this determination. Thus, in a pre-1966 proceeding, the trial judge may have relied on the circumstances surrounding a plea of guilty, without making a specific inquiry or findings, to conclude that the plea was voluntarily and understandingly given.

I agree with the court below that the absence of an explicit inquiry may sometimes entitle the defendant to a subsequent hearing, pursuant to 28 U.S.C. § 2255, to determine whether the plea was in fact made voluntarily and understandingly. In view of the wholly inexplicit directives of the old rule, however, I believe that such a hearing suffices, and that a plea made under that rule should not automatically be set aside as in the case of a plea made under the 1966 rule-the situation in McCarthy.

Petitioner's plea was accepted in 1954, without an explicit inquiry at that time whether it was voluntarily and understandingly made. Petitioner moved to vacate the plea, and after a full hearing the District Court, 274 F.Supp. 737, 738-739 (1967), affirmed by the Court of Appeals, 394 F.2d 149 (1968), determined that 'the Government has sustained its burden of showing that at the time petitioner Halliday changed his plea he in fact did understand the nature of the three charges against him and that he changed his plea voluntarily, with full awareness of the consequences of the change of plea.'

On the basis of these findings, and not on any theory as to the nonretroactivity of McCarthy, I would affirm.

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.