United States v. Robert Montell Freed, 703 F.2d 394 (9th Cir. 1983). · Go Syfert
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United States v. Robert Montell Freed, 703 F.2d 394 (9th Cir. 1983). Cases Citing This Book View Copy Cite
24 citation events across 7 distinct courts.
Strongest positive: United States v. Patten George Kauwe, Jr., 26 F.3d 134 (9th Cir. 1994) · Strongest negative: Robert G. Penrod v. State of California, 990 F.2d 1259 (9th Cir. 1993)
Treatment trajectory · 1984 → 2026 · click a year to view as-of
1984 2005 2026
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Cited for
At page 395 Determining prior felony conviction status and plea requirements18 citing cases“boykin does not require specific articulation of the rights being waived by the guilty plea.”2 citing courts quote it · 17 listed here · 1 cautionary
  • Robert G. Penrod v. State of California, 990 F.2d 1259 (9th Cir. 1993).unpublished Cited "but see" · 2 cites
    “we have held that boykin does not require specific articulation of the rights being waived by a guilty plea.”
  • United States v. Patten George Kauwe, Jr., 26 F.3d 134 (9th Cir. 1994).unpublished
    United States v. Freed, 703 F.2d 394, 395 (9th Cir.), cert. denied, 464 U.S. 839 (1983). 9 However, defendants seeking to collaterally attack state court convictions based on allegedly unconstitutional guilty pleas must overcome the "presu…
  • Joe Julian Cornejo v. J.M. Ratelle James Gomez, Dir. of California Dep't of Corr., 21 F.3d 1111 (9th Cir. 1994).unpublished
    Rodriguez, 798 F.2d at 1254 ; United States v. Freed, 703 F.2d 394, 395 (9th Cir.1983). 5 Here, Cornejo was told that he had a right to a jury trial regarding his prior convictions, the right to present evidence and call witnesses, using t…
  • United States v. Sean Robert Mulloy, 3 F.3d 1337 (9th Cir. 1993).published
    E.g., United States v. Freed, 703 F.2d 394, 395 (9th Cir.), cert. denied, 464 U.S. 839 , 104 S.Ct. 131 , 78 L.Ed.2d 126 (1983).
  • United States v. Frederick Lee Menefee, 985 F.2d 576 (9th Cir. 1993).unpublished
    When the record is silent, the district court may hear evidence of the trial court's plea-taking practice, see, e.g., Goodheim, 686 F.2d at 777-78, or of counsel's practice in advising clients, see United States v. Freed, 703 F.2d 394, 395…
  • United States of Am., Appellee/cross-Appellant v. Stanley Charles Stewart, Appellant/cross-Appellee, 977 F.2d 81 (3d Cir. 1992).published 2 cites
    See United States v. Simmons, 961 F.2d 183, 187 (11th Cir.1992); United States v. Henry, 933 F.2d 553, 559 (7th Cir.1991); Neyland v. Blackburn, 785 F.2d 1283, 1287 (5th Cir.1986); United States v. Freed, 703 F.2d 394, 395 (9th Cir.1983);…
  • Delbert Crawford v. United States, 967 F.2d 585 (9th Cir. 1992).unpublished
    Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 111-12 (1983); United States v. Freed, 703 F.2d 394, 395 (9th Cir.), cert. denied, 464 U.S. 839 (1983); cf. 18 U.S.C. app. § 1203 (repealed) (section 1202(a)(1) did not apply to ex-fel…
  • United States v. Gregory S. Brebner, 951 F.2d 1017 (9th Cir. 1991).published
    United States v. Freed, 703 F.2d 394, 395 (9th Cir.), cert. denied, 464 U.S. 839 , 104 S.Ct. 131 , 78 L.Ed.2d 126 (1983). 5 .
  • United States v. Stanley Henry, 933 F.2d 553 (7th Cir. 1991).published
    See, e.g., Neyland v. Blackburn, 785 F.2d 1283, 1287 (5th Cir.), cert. denied, 479 U.S. 930 , 107 S.Ct. 399 , 93 L.Ed.2d 352 (1986); Pitts v. United States, 763 F.2d 197, 200 (6th Cir. 1985); United States v. Freed, 703 F.2d 394, 395 (9th…
  • Clark v. State, 800 S.W.2d 500 (Tenn. Crim. App. 1990).published
    Gonzales v. Grammer, 848 F.2d 894 (8th Cir.1988); Buckley v. Butler, 825 F.2d 895, 899-900 (5th Cir.1987), cert. denied, 486 U.S. 1009 , 108 S.Ct. 1738 , 100 L.Ed.2d 201 (1988); Stacey v. Solem, 801 F.2d 1048, 1050 (8th Cir.1986); Rodrigue…
Show 7 more citing cases
  • United States v. Robert Reen Pennon, 816 F.2d 527 (10th Cir. 1987).published
    See United States v. Millender, 811 F.2d 476 (8th Cir.1987) (Illinois statute similar to Okla.Stat. tit. 22, § 991c); United States v. Crochet, 788 F.2d 1061, 1062 (5th Cir.1986) (Louisiana statute similar to section 991c); United States v…
  • United States v. Rubalcaba, 811 F.2d 491 (9th Cir. 1987).published 2 cites
    This court has stated that “Boykin does not require specific articulation of the rights being waived by the guilty plea.” United States v. Freed, 703 F.2d 394, 395 (9th Cir.), cert. denied, 464 U.S. 839 , 104 S.Ct. 131 , 78 L.Ed.2d 126 (19…
  • Roy Louis Rodriguez v. James R. Ricketts, 798 F.2d 1250 (9th Cir. 1986).published 2 cites
    United States v. Freed, 703 F.2d 394, 395 (9th Cir.), cert. denied, 464 U.S. 839 , 104 S.Ct. 181 , 78 L.Ed.2d 126 (1983).
  • United States v. Wayne Doyce McWilliams, 730 F.2d 1218 (9th Cir. 1984).published 2 cites
    See also United States v. Goodheim, 686 F.2d 776, 777 (9th Cir.1982); United States v. Freed, 703 F.2d 394, 395 (9th Cir.1983). 53 Because McWilliams claims that he was not aware of the maximum penalty he faced in pleading guilty, and the…
  • United States v. Calvin L. Robinson, 12 F.3d 1110 (9th Cir. 1993).unpublished
    See, e.g., United States v. Freed, 703 F.2d 394, 395 (9th Cir) cert. denied 464 U.S. 839 (1983) (testimony of district attorney and defense counsel that trial judge "consistently followed a practice of painstakingly probing a defendant's u…
  • United States v. Erwin Darrell Newman, 912 F.2d 1119 (9th Cir. 1990).published
    See, e.g., United States v. Freed, 703 F.2d 394, 395 (9th Cir.) (considering evidence of the trial court's plea-taking practice and of counsel’s practice in advising clients), cert. denied, 464 U.S. 839 , 104 S.Ct. 131 , 78 L.Ed.2d 126 (19…
  • Michael Alan Pitts v. United States, 763 F.2d 197 (6th Cir. 1985).published
    See, e.g., United States v. Freed, 703 F.2d 394, 395 (9th Cir.), cert. denied, — U.S. -, 104 S.Ct. 131 , 78 L.Ed.2d 126 (1983); Barksdale v. Blackburn, 670 F.2d 22, 25 (5th Cir.), cert. denied, 457 U.S. 1109 , 102 S.Ct. 2912 , 73 L.Ed.2d 1…
Other citing cases1 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Robert Montell FREED, Defendant-Appellant
82-1305.
Court of Appeals for the Ninth Circuit.
Apr 5, 1983.
Published opinion
703 F.2d 394
1983 U.S. App. LEXIS 29086
Harry L. Hellerstein, Asst. Federal Public Defender, San Francisco, Cal., for defendant-appellant., Charles B. Burch, Asst. U.S. Atty., Sandra Teters, San Francisco, Cal., for plaintiff-appellee.
Wright, Anderson, Canby.
Cited by 23 opinions  |  Published
EUGENE A. WRIGHT, Circuit Judge:

Freed challenges his conviction on six counts of possession of a firearm by a convicted felon. 18 U.S.C.App. § 1202(a)(1). Two issues are presented. First, may a conviction under that statute be based on an expunged state felony conviction? Second, was Freed’s state felony conviction unconstitutionally obtained, and therefore not a valid basis for this conviction?

I. Expunction of the State Conviction

In 1965 Freed was convicted in Texas of the felony of receiving and concealing sto[*395] len property. In 1966, after he had satisfied the conditions of his probation, his conviction was set aside by the Texas court. He was “released from all penalties and disabilities resulting” from the conviction. That was his only felony conviction prior to his conviction on these charges.

Freed argues that the 1965 conviction has been' expunged, and is not a prior felony conviction for purposes of the federal firearms laws. The government responds that the release from disabilities granted by the Texas court was not an expunction. See United States v. Padia, 584 F.2d 85 (5th Cir.1978). Regardless of whether the release constituted an expunction, Freed’s argument is meritless.

The Supreme Court held recently that expunction of a state conviction does not remove automatically the firearms disabilities imposed by the federal gun control statutes. Dickerson v. New Banner Institute, Inc., -U.S. -, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), rev’g 649 F.2d 216 (4th Cir.1981); see also United States v. Bergeman, 592 F.2d 533 (9th Cir.1979). We must reject Freed’s argument that his prior felony conviction was improperly used as the basis of the present charges.

II. Constitutionality of the State Conviction

Freed contends that his 1965 conviction was invalid, because the guilty plea underlying it was not voluntary and intelligent. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). He alleges that he was not advised of his rights, and was not aware of them when he entered his plea. He reasons that the plea cannot be the basis of this firearms conviction. [1]

This circuit has applied Boykin retroactively. E.g., United States v. Goodheim, 686 F.2d 776, 777 (9th Cir.1982). We have held that Boykin does not require specific articulation of the rights being waived by a guilty plea. Wilkins v. Erickson, 505 F.2d 761, 763 (9th Cir.1974). However, the record must “affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.” Id.

The district court held an evidentiary hearing on the issue. Evidence of the Texas, trial court’s practice in accepting guilty pleas and of Freed’s former attorney’s practice in advising clients was admitted, along with a signed jury waiver. This evidence clearly and convincingly supports the inference that the plea was constitutionally taken. Goodheim, 686 F.2d at 777-78.

The district judge found the defendant’s contradictory testimony not credible. He found that the 1965 guilty plea was voluntarily and intelligently entered. In light of the passage of 17 years and the absence of other records, the evidence was sufficient to support the trial judge’s conclusion of constitutionality, absent credible rebuttal by the defendant. Id

The judgment is AFFIRMED. The mandate will issue at once.

1

. Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), held that the constitutionality of an underlying conviction may not be challenged in a federal firearms prosecution. Lewis is not retroactive in this circuit and is not applicable to this case. United States v. Goodheim, 651 F.2d 1294 (9th Cir.1981).