LANE v. WILLIAMS

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ORAL ARGUMENT OF MICHAEL B. WEINSTEIN, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments next in Lane against Williams and Southall.

Mr. Weinstein, I think you may proceed whenever you are ready.

Mr. Weinstein: Thank you, Mr. Chief Justice, and may it please the Court, this case is here on a petition for certiorari to the United States Court of Appeals for the Seventh Circuit.

The issue presented is whether the court of appeals decision conflicts with this Court's 1979 decision in United States versus Timmreck, and thereby goes beyond those due process requirements required for a knowing and voluntary guilty plea.

In other words, does Timmreck mandate a contrary result?

It is our position that the court of appeals decision does indeed conflict with Timmreck.

We believe that if any error occurred, it was only a failure to comply with the formal requirements of Illinois Supreme Court Rule 402.

That is the Illinois rule which pertains to the entry of guilty pleas, and it is the state counterpart to Rule 11 of the Federal Rules of Criminal Procedure, which was the issue, or which was the rule involved in Timmreck.

We also submit that Rule 402 is very similar in content to the Federal Rule of Civil Procedure, Rule 11... Criminal Procedure.

Therefore, we believe--

Unidentified Justice: Mr. Weinstein, before you get into your argument, may I ask you a question about the facts?

As I understand it, the relief granted by Judge Marshall, was it, in this case, was to cancel the three-year mandatory parole term, to modify the sentence.

Mr. Weinstein: --That is correct, Your Honor.

Unidentified Justice: And as I also understand it, these two Respondents have actually served their sentences.

Mr. Weinstein: That is correct.

Unidentified Justice: Why isn't the case moot?

Mr. Weinstein: The question arose in the Seventh Circuit the first time it was before the Seventh Circuit, and that court ruled and, we believe, correctly, that there were certain collateral consequences that would attach to the Petitioners... at that time there were three, actually four... if the use of their parole term or the fact that they had violated parole and had started to serve a parole term could later be used if they committed another crime in that regard.

However, more importantly, perhaps, we perceive a situation of, because the parole terms are so short... at that time they were five, three, and two years, and now they have been modified by statute to three, two, and one... we have a situation where we have a problem which is capable of repetition yet evading review.

Unidentified Justice: Well, but all the judge has to do is order... I mean, if he had granted relief in the form of requiring that the man be allowed to plead again, to enter a new plea, then it wouldn't be moot, because you would set aside the judgment of guilt, which would seem to me to be the correct relief on habeas corpus.

I don't understand the relief on habeas corpus where you modify a sentence.

Where does the judge get the power to do that?

Mr. Weinstein: I assume that... and far be it from me to assume what Judge Marshall felt, but I assume that his feeling was that it would be unfair to allow the individuals to replead because in fact they had already started serving their time, that is, the mandatory parole.

If they were allowed to replead, the state could then prosecute them all over again, and who knows--

Unidentified Justice: Well, maybe they are unwise to seek that relief, but isn't that the only relief the statute offered them?

Mr. Weinstein: --Well, the Seventh Circuit didn't allow that type of relief in Baker versus Finkbeiner, which was the first case, and Judge Marshall was obviously applying the Baker case to these particular facts.

Unidentified Justice: Mr. Weinstein, certainly this Court has virtually bent itself into a corkscrew on mootness on behalf of habeas plaintiffs in cases like Sedbaum versus New York and Carafas versus Lavalay, talking about the future consequences, denial of job opportunities, and that sort of thing, as to mootness, hasn't it?

Mr. Weinstein: Yes, Justice Rehnquist.

The point that I want to make is that Judge Marshall has before him a class action involving the same issue.

He has certified the class already.

I assume that if this Court were to determine that this case were moot, and from our particular standpoint, of course, the decision would be vacated and we would technically win, nevertheless Judge Marshall will probably go ahead and still make the same ruling with regard to the class, and we would be back... well, we may not be back here--

Unidentified Justice: Yes, but the question is--

Mr. Weinstein: --but we would be back arguing the case once again.

Unidentified Justice: --Well, maybe it would be unfortunate, but if it is moot, we don't have any power to do anything about it.

Mr. Weinstein: I understand.

Unidentified Justice: And the cases Justice Rehnquist referred to were cases where there were collateral consequences of the conviction which was set aside.

Here the conviction stands, as I understand it.

Mr. Weinstein: I understand that.

Unidentified Justice: Well--

Mr. Weinstein: Yes, Justice White?

Unidentified Justice: --When they asked for habeas corpus, where were they?

Mr. Weinstein: Where were they at the time?

At the time that they initially filed their petitions, they were incarcerated at... I believe both of then were at Stateville.

Unidentified Justice: Where were then when the very latest petition, habeas corpus--

Mr. Weinstein: Well, their initial petitions were filed in 1977, and this case has been up and down to the Seventh Circuit twice.

Today, in 1981, they are out of custody of the Department of Corrections.

They... as far as I know, the Department of Corrections has no control over them.

Unidentified Justice: --Their relief was denied?

Mr. Weinstein: Excuse me, Your Honor.

Unidentified Justice: Was their relief denied or not?

Mr. Weinstein: Was their relief denied?

No, their relief was granted originally.

Unidentified Justice: All right.

Now, when was it granted?

Mr. Weinstein: Initially it was granted in January of 1978.

Unidentified Justice: And they were in prison then?

Mr. Weinstein: They were.

One of them was not actually in prison, but he was still in custody because he was serving out the remainder of his sentence on a new parole.

Unidentified Justice: Was there any question about their having exhausted state remedies?

Mr. Weinstein: Yes.

In the first case Williams won, when we went to the Seventh Circuit the first time, we argued the substantive issues, but we also argued the question of exhaustion of state court remedies.

Unidentified Justice: Well, why had they exhausted state remedies?

You still don't know, do you?

Mr. Weinstein: Well, Your Honor, the Seventh Circuit ruled that they had to exhaust state remedies.

The case was returned to Judge Marshall.

Judge Marshall placed it on what he called his past case calendar.

Actually, he held it in abeyance.

There was another case which did not involve these Petitioners that was pending before the Illinois Supreme Court on a petition for leave to appeal, which is the same as petition for certiorari.

The Illinois Supreme Court denied that petition.

Judge Marshall then felt that taking that into--

Unidentified Justice: That it would be futile.

Mr. Weinstein: --That it would be futile.

That is correct.

Unidentified Justice: And is that the rule around in Illinois, that you don't need to exhaust state remedies in those--

Mr. Weinstein: Well, I don't believe it is, Your Honor.

We did not... We did not subsequently re-raise the exhaustion issue when we went back to the Seventh Circuit for two reasons.

The first was that the Post-Conviction Hearing Act, which is our belief what these Respondents should have exhausted, the Post-Conviction Hearing Act in Illinois specifies they must be in prison, and at that time they were no longer in prison.

Unidentified Justice: --I see.

Mr. Weinstein: Secondly, there was and still is another case pending in the Seventh Circuit, Norman versus Scott, in which the exhaustion once again--

Unidentified Justice: So there is no collateral relief... there was no... at least there is no collateral relief available now in Illinois for these people?

Mr. Weinstein: --For these particular people, I do not believe so.

Unidentified Justice: I don't understand, Mr. Weinstein, getting back to my brother Stevens' question to you, what happens to them if you prevail?

Are they now released, did I understand you to say?

Mr. Weinstein: If we were to prevail?

Unidentified Justice: Yes.

Mr. Weinstein: If we were to prevail, the decision of the Seventh Circuit as well as Judge Marshall's decision that the mandatory parole term admonishments should have been given, and that there was a constitutional deprivation.

Those decisions obviously--

Unidentified Justice: No, my question is, what happens to these Petitioners?

Mr. Weinstein: --To these... to these--

Unidentified Justice: Williams and Southall.

What happens to them?

Mr. Weinstein: --If we prevail?

Unidentified Justice: Yes.

Mr. Weinstein: Specifically to them I do not believe that anything will happen, except that their records will now be reflected... their records that are with the Department of Corrections shows that the district court entered a writ of... granting habeas corpus relief and--

Unidentified Justice: I know, but habeas ordinarily ends up, if the habeas petitioner prevails, in a release, doesn't it?

Mr. Weinstein: --That's correct, Your Honor.

Unidentified Justice: But if you prevail here, you can't put them back in prison, as I understand you.

Mr. Weinstein: No, we cannot.

Unidentified Justice: Do you want to?

Mr. Weinstein: Do we want to?

Well--

Unidentified Justice: You just want to restore their mandatory parole, don't you?

Mr. Weinstein: --That is correct, Your Honor, and--

Unidentified Justice: Will there then be, if you prevail, will they from now on be on mandatory parole?

Mr. Weinstein: --The individuals were both... or one of them was released on bail pending the first Seventh Circuit decision, and the Department of Corrections let their time run out.

They then subsequently released them.

They would not have revoked them had they done something else.

Unidentified Justice: Well, your answer to me then is, they do not... if you prevail, they will not be restored to mandatory parole.

Mr. Weinstein: No, Your Honor.

I do not believe that they will be.

Unidentified Justice: Then why isn't it moot?

Mr. Weinstein: Excuse me?

Unidentified Justice: Why isn't the case moot?

Mr. Weinstein: Again, Your Honor, we believe it is not moot because of the possible collateral consequences to these individuals as well as the--

Unidentified Justice: If they commit crimes in the future.

Mr. Weinstein: --If they commit crimes in the future.

Unidentified Justice: No matter what you do, the records are going to be the same.

Certainly the recidivist statute... this would be a conviction of a crime with a mandatory parole sentence on their record that if we reversed and it would not be if we affirmed.

Mr. Weinstein: That is my point exactly, Justice Rehnquist.

Unidentified Justice: You have to explain that to me.

As I understand it, the conviction of the crime will remain, no matter what happens in this case.

Mr. Weinstein: The conviction of the crime will remain.

Unidentified Justice: And the records that show that they violated their parole will remain there.

Mr. Weinstein: The records show at the present time that the district court entered a writ of habeas corpus, that their mandatory parole terms could not continue to be served, and if in fact we were to prevail, that would be expunged from the records.

There would be no indication that they ever prevailed at all in the district court and in the Seventh Circuit.

Unidentified Justice: All you want to do is get rid of the opinion.

Well, the significance of the--

--Isn't that right?

Mr. Weinstein: No, Justice Marshal.

We have this class--

Unidentified Justice: Well, what would the judgment--

Mr. Weinstein: --We have this class pending in the Northern District of Illinois.

The issue is there.

We have a case pending in the Seventh Circuit.

The issue is there.

Unidentified Justice: --Yes, but it is not here.

Mr. Weinstein: We are talking about... we are talking about many, many prisoners who were involved from January 1st of 1973 until May... I think it was May 19th of 1975, who were subject to the admonishments of the mandatory parole and may not have received those admonishments.

Unidentified Justice: Do you think the state need only show that a writ of habeas corpus was granted on the record if you lose this case?

Didn't the writ of habeas corpus, as Justice Stevens suggested, really mean that the plea was invalid?

Mr. Weinstein: Justice White, I believe you are correct.

I believe--

Unidentified Justice: Well, then, there has been no conviction.

Mr. Weinstein: --I believe you are correct that in any case that the plea was invalid, but that the--

Unidentified Justice: In which event if you lose this case--

Mr. Weinstein: --but that the relief--

Unidentified Justice: --he would be entitled to have his record show that he was never properly convicted.

Mr. Weinstein: --That is correct.

Unidentified Justice: And have a new trial.

Mr. Weinstein: Excuse me, Your Honor?

Unidentified Justice: And have a new trial.

Mr. Weinstein: And have a new trial.

The key is that the relief... the relief that was granted was simply the expungement of the parole term.

It was not--

Unidentified Justice: That may be the relief, but the rationale was that he was never convicted.

Mr. Weinstein: --That's correct.

That is correct.

Unidentified Justice: And you don't want that kind of a record to... you want the record to show he was properly convicted.

Mr. Weinstein: Absolutely, Justice White.

Unidentified Justice: And you surely, I take it, do not want it sent back if Judge Marshall, District Judge Marshall was in error.

You don't want it sent back and have a new trial.

Mr. Weinstein: No, Your Honor.

Unidentified Justice: Although... the potential sentence was up to 20 years here, wasn't it?

Mr. Weinstein: The potential sentence, both of the individuals plead guilty to the crime of burglary.

At that time burglary carried a potential sentence of anywhere from one to 20 years incarceration.

Unidentified Justice: In a new trial, in your view, could they be given a sentence exceeding the one that was originally given, even though it would have then been declared to be a nullity?

Mr. Weinstein: I hesitate to go that far, Mr. Chief Justice.

Unidentified Justice: But, Mr. Weinstein, I thought you answered me earlier that if you win, nothing can happen to these fellows.

You can't get them back to prison.

How can they retry them?

Mr. Weinstein: As Justice White has pointed out, while the relief that was ordered was that they would expunge the mandatory parole term, the rationale is that the underlying plea was invalid because they had never been admonished--

Unidentified Justice: Well, is there any judgment setting aside the conviction?

Judge Marshall certainly entered no such judgment.

Mr. Weinstein: --I don't believe he actually entered that judgment.

Unidentified Justice: They didn't ask for any such judgment, did they?

Mr. Weinstein: Not to my knowledge.

Unidentified Justice: They didn't ask to have the judgment set aside, as I remember the record.

Mr. Weinstein: I suspect that the--

Unidentified Justice: They didn't even allege they wouldn't have pleaded guilty.

Mr. Weinstein: --I suspect that they probably wouldn't have, because both of these petitions were filed just after the Seventh Circuit decided the Baker versus Finkbeiner case.

In fact, one of the petitions quite frankly refers right to that Baker case, and I think it is very clear that they saw the Baker case and they said, aha, we are home free.

Unidentified Justice: Well, they didn't want the plea set aside because they might be retried.

Mr. Weinstein: That's correct.

Unidentified Justice: Whereas, if they just expunge their mandatory parole, they are home free.

Mr. Weinstein: They simply felt that they were home free, they would be out right then and there.

Unidentified Justice: And if retried, they might get a sentence conceivably ten years, and then you would have another case to test whether they could have an increased sentence the second time around.

Mr. Weinstein: Well, that is possible.

Unidentified Justice: Mr. Weinstein, how can you retry them without setting aside the judgment of convictions?

Yes.

How can you treat this as if it were an invalid plea, which meant that the conviction was improper?

Mr. Weinstein: Well, unfortunately--

Unidentified Justice: That is not the way the case comes to us.

Mr. Weinstein: --Unfortunately, that is the rationale that Judge Marshall used.

Unidentified Justice: The rationale that the district court used.

Well, it was one of the questions from the bench that raised the question whether Judge Marshall had authority to do what he did, that is, to modify the sentence by striking the mandatory parole.

He either had to grant full relief, which meant a new trial, or nothing.

Mr. Weinstein: Judge Marshall was relying upon the Baker disposition.

I believe Baker was relying, perchance, on the Santobello disposition.

Unidentified Justice: Did Baker come here, Mr. Weinstein?

Mr. Weinstein: Baker did not come here.

The companion case, Ferris, there was a petition for certiorari and that was denied by this Court.

Unidentified Justice: But Santobello was a very different case.

Santobello was a case where there was deliberate misrepresentation and withholding information from the court.

Mr. Weinstein: That is correct, Mr. Chief Justice.

Unidentified Justice: That is not present here.

Mr. Weinstein: That is our belief.

That is not present in this case.

In Timmreck, the Solicitor General's office stated the question as being whether a defendant may obtain collateral relief from his conviction under Section 2255 solely because the district court violated Rule 11 in accepting his guilty plea.

We submit that if one substitutes Section 2254 for 2255, and Illinois Supreme Court Rule 402 for Rule 11, our case raises the same issue.

We believe that Timmreck held that the failure to admonish as to a mandatory parole term, in Timmreck's case the mandatory special parole term, merely constitutes a failure to comply with the formal requirements of a rule governing the entry of guilty pleas, and does not constitute a constitutional defect so as to give rise to habeas corpus relief.

Indeed, habeas corpus relief should not be allowed to do service for an appeal.

In this particular case, neither of the Petitioners ever took a direct appeal, nor did they file an Illinois Post-Conviction Hearing Act.

Indeed, they have not filed any type of petition, sought any type of appeal in the Illinois courts.

We believe the cases are similar in that both this case and Timmreck involved a plea bargain.

Neither in Timmreck nor here was a direct appeal taken.

Indeed, as we indicated, this issue was not raised at all until after the Baker decision of... in response to that decision making the rounds of Stateville.

And most importantly, neither respondent has ever alleged or argued that he would not have plead guilty had he known of the mandatory parole term.

The Illinois Supreme Court in the People versus Wills decision found that the mandatory parole term admonishment is required under Supreme Court Rule 402.

However, it also found that the failure to admonish, while error, is not of constitutional significance.

It is simply one factor to be taken into account when determining whether or not the plea was voluntary.

Unidentified Justice: Would that be particularly so if there is no allegation that the man was... had not been informed by his counsel, for example, of the three-year mandatory sentence... mandatory parole provision?

Mr. Weinstein: Excuse me.

I don't--

Unidentified Justice: If the Petitioner seeking habeas corpus failed to allege that he was misled, that is, that his lawyer didn't tell him that there was a three-year mandatory parole, and that the court didn't tell him, are you suggesting that that is a prerequisite to any relief in a case like this, under the Illinois rules?

Mr. Weinstein: --Well, I don't know for sure under the Illinois rules, but as I have stated under the Illinois rules, the court will take... will look at each case on a case by case basis and decide whether or not the failure to admonish was of sufficient importance as to indicate that the plea itself was not knowing and voluntary.

We believe that the... by the way, the Wills decision is not specifically applicable to these cases because Wills was decided in May of 1975.

Both of the Respondents in this case were... plead guilty in March of 1975, and Wills was specifically made prospective only.

Indeed, at the time that these individuals plead guilty, there existed in Illinois a decision entitled People versus Krantz, which had been decided approximately ten months prior to Wills, and in the Krantz opinion, the Illinois Supreme Court indicta indicated that no admonishment as to the mandatory parole term was required at all.

The Wills decision overrules Krantz to that extent.

We believe that the appropriate inquiry on collateral attack is not whether an error of law occurred, but rather whether the resulting conviction violated due process.

We submit that in this case it did not.

We believe that the mandatory parole term is not a direct consequence of the plea, since reincarceration comes into play only if a defendant violates the terms of parole.

As Judge Tone noted in the Bachner case, the Seventh Circuit decision in Bachner versus United States... here we are...

"The failure to advise a defendant of the mandatory parole term does not inherently result in a complete miscarriage of justice."

"Unlike ineligibility for parole, the mandatory parole term has no effect on the period of incarceration, and does not ever become material unless the defendant violates the conditions of his parole."

"It would be as unrealistic, we think, to assume that he would expect to do so and be influenced by that expectation at the time he is considering whether to plead guilty as it would be to assume that he would be influenced by other contingencies he is not advised about."

Unidentified Justice: Mr. Weinstein, I would like to get back to the mootness point for a minute, since several of my colleagues as well as I seem to be interested in it.

The decision we are reviewing is that of the Seventh Circuit set forth... which begins on Page 45 of the Joint Appendix?

Mr. Weinstein: I believe that is correct, Your Honor.

Unidentified Justice: And in that case, in Judge Cummings' opinion, he referred on Page 46--

Mr. Weinstein: Footnote 1.

Unidentified Justice: --to an earlier case in which the Seventh Circuit had held the petitions were not moot because of the surviving consequences.

Mr. Weinstein: That is correct, Your Honor.

Unidentified Justice: So at least that obviously doesn't bind this Court, but the Seventh Circuit did not feel that the case was moot.

Mr. Weinstein: Yes, Justice Rehnquist.

It does not bind this Court, but the issue was raised in the Seventh Circuit and the Seventh Circuit felt it was not moot.

Unidentified Justice: And it is no more moot now than it was then.

Mr. Weinstein: I do not believe it is any more moot now than it was then.

In conclusion--

Unidentified Justice: What is the cite on the case on the Illinois Supreme Court case that--

Mr. Weinstein: --People versus Wills, Your Honor?

Unidentified Justice: --Wills.

Mr. Weinstein: The Wills decision is at 330 Northeast Second 505, 61 Illinois Second 105, May 19th, 1975.

I believe we have cited it in our brief.

I am sure we have.

In conclusion, we believe that if the federal courts are not to grant Section 2255 relief due to a failure to admonish as to the mandatory special parole term, since the error is 2254 relief against a state court prisoner for the very same problem.

Thank you very much.

Chief Justice Burger: Very well.

Ms. Mills?

ORAL ARGUMENT OF MARTHA A. MILLS, ESQ., ON BEHALF OF THE RESPONDENTS

Mr. Mills: Mr. Chief Justice, and may it please the Court, we are talking about a... just one issue in this case, and that is the fairness of a negotiated plea agreement where one of the sides to the agreement did not live up to its bargain.

The Timmreck case, I think, is not applicable to this case at all.

In the first place, it was not the same kind of plea bargain, and to the extent that there was a plea bargain, the bargain in that case was kept.

Timmreck plead guilty to one charge, with an agreement with the prosecutor to drop certain other charges.

There was no agreement with the court at all.

The charges were dropped that the prosecutor agreed to drop.

So in that sense his plea agreement was kept.

The court was not a party to that agreement.

The court merely informed him of the sentence, later sentenced him to a term which included mandatory parole, which he had not told him about, but that was not highly relevant in his case as the maximum sentence he got was well within the range that he was informed in the first place, i.e., 15 years.

Unidentified Justice: Now, is there any representation on behalf of the Respondents that in fact they were not aware of the mandatory--

Mr. Mills: No, sir.

There is no such allegation.

Unidentified Justice: --Let me move from there to a hypothetical.

Suppose hypothetically that a lawyer representing him felt that as an officer of the court, confronted with this, he had an obligation to the court to inform the court that before going in on the plea he had in fact advised that there was a mandatory... three-year mandatory parole provision.

Mr. Mills: I think that might change the situation, but that is not the case here.

In this case, both--

Unidentified Justice: Why doesn't that--

Mr. Mills: --Pardon?

Unidentified Justice: --Why doesn't it logically follow that to get any relief at all, there must be a representation that counsel did not advise, that he was not informed by anyone, and that the judge at the time of sentencing did not inform him, all three of these things?

Mr. Mills: In a sense, Mr. Justice, it is a practical question.

These two petitioners came in pro se.

I was appointed to represent them by Judge Marshall at a time at which he had already rendered an opinion in the petitioners' favor.

And therefore there was no necessity at that time to amend or supplement the petitions.

Should the case be remanded on that sole point, presumably I could go talk to these people and ask them, can you make that kind of a representation.

So I think it is a practical pleading problem, really.

Unidentified Justice: When they were tried and sentenced originally, did they have counsel?

Mr. Mills: I think they had public defenders.

Unidentified Justice: They had--

Mr. Mills: Public defenders.

Unidentified Justice: --Well, that is counsel.

I suppose if the state wanted to create an issue, they could have a trial on whether or not, A, they were told, or whether their lawyers knew or should have known.

Mr. Mills: The record below... well, I am trying to remember.

It has been a long time since the first petition.

I believe they--

Unidentified Justice: Well, you wouldn't think... would you think there was a breach of the plea bargain if it were tried out and it was found or they admitted that, yes, we knew of the special parole term, but the judge didn't advise us of it?

Mr. Mills: --No, I think that would put it in a Timmreck class where it is more of a technical violation.

Here they don't know.

If I recall, and I hesitate to say this because I don't want to misrepresent anything to the Court, and I mixed up the four petitioners we had originally... there are affidavits from both counsel and judge, I believe, saying that this was a negotiated plea agreement that they all entered into, and looking at the record, and there was no mention of mandatory parole here.

Unidentified Justice: I as sure there wasn't a mention of it, but how about knowledge that there was on the part of at least the attorneys?

Mr. Mills: That is not in the record.

Unidentified Justice: I think your brief says... I haven't checked the appendix... that the Respondent alleged that he didn't appeal because he didn't know about the imposition... that he would be subject to mandatory parole, which I thought fairly alleged that he did not know.

I thought the record did... and then I thought also the record showed that he found out just about a month before he was to be released.

Mr. Mills: Mr. Williams found out two months before he was released, when the parole board gave him the terms of his release, and Mr. Southall said that... he didn't say what date he found out, but he did say he found out after the date to appeal had expired.

Unidentified Justice: I thought therefore, it seemed to me, the record did establish that at the time of the plea they did not know about the mandatory parole.

Mr. Mills: I agree.

At any rate, in Timmreck--

Unidentified Justice: That, I take it, would go only to themselves, and not their attorneys.

Mr. Mills: --Their attorneys may have known, but according to their own statements in the petition, they did not know.

Unidentified Justice: They might have a malpractice problem.

Mr. Mills: In Timmreck--

Unidentified Justice: May I ask this question?

Mr. Mills: --Yes, sir.

Unidentified Justice: I have lost track of your answer to the query whether or not the public defender had a duty to inform his client of the provision of Illinois law that provided for this term.

Mr. Mills: I assume the public defender had a duty, the judge had a duty, and the prosecutor had a duty, and obviously this is a case in which nobody did it.

Unidentified Justice: They all neglected it.

Mr. Mills: In Timmreck, when Timmreck was sentenced, he was told that there would be a provision of mandatory parole attached to his incarceration.

He did not say anything at that time about that.

He did not appeal.

He sat on his rights.

That was not true in this case.

These defendants, petitioners, habeas petitioners, did not know until long after their pleas, plea changes, long after the time to appeal had gone, that there would be a provision of mandatory parole, and they did not sit on their rights, and that therefore changes or makes less compelling the good policy that one would prefer errors to come by direct appeal rather than belatedly by habeas corpus.

Collateral attack is these petitioners' only remedy.

The state argues that this is a technical, procedural sort of defect.

It very definitely is not.

In the case of Mr. Williams, he agreed to change his plea from not guilty to guilty.

He agreed to waive his panoply of rights in connection with the criminal trial in exchange for an agreement entered into by himself, the prosecutor, and the court of a sentence of one to two years.

The court--

Unidentified Justice: Where did the district judge... from what source did his power come to strike the mandatory sentence as distinguished from ordering the total relief, that is, set aside the judgment of conviction?

Mr. Mills: --That is an issue that we did not directly confront at any stage in these many cases.

Judge Marshall, of course, was following the Baker decision.

Baker relied in part on Santobello.

It was thought that since these people had served all or portions of their sentence, that it would not be an appropriate form of relief to actually set aside the conviction, because they had performed their part of the bargain they made with the state.

It was the state that had not performed its, and therefore the appropriate relief was to strike the mandatory parole so that the state would then have been compelled to perform its part of the bargain for plea agreements.

In Mr. Williams' case, when he agreed to one to two years, he actually was in custody either by incarceration or parole for three years and four months.

In the case of Mr. Southall, who had agreed to one to three years, he was actually in the custody of the state of Illinois for four years and seven months.

Unidentified Justice: Ms. Mills, if you lose today, what happens to your clients?

Mr. Mills: The only thing that will happen to my clients is that the mandatory parole term in the record of violations and revocations that occurred during that term which--

Unidentified Justice: You mean--

Mr. Mills: --they shouldn't have had--

Unidentified Justice: --that there would be a change in the prison record?

That is all?

Mr. Mills: --Yes.

Unidentified Justice: They couldn't be retried?

They can't go back to prison or anything else?

Mr. Mills: I don't believe so.

Unidentified Justice: Will the judgment of conviction be expunged?

Mr. Mills: No.

They didn't ask for that, and that was not the relief that was given.

The relief was--

Unidentified Justice: They haven't asked for it yet.

I would think they might.

Mr. Mills: --The relief was solely to make the state enforce their portion of the bargain that these defendants had made, and the effect that their record will have will only be apparent if they are engaged in some other criminal activity and it might enhance their sentence or the way the parole board treats them, or something like that.

Unidentified Justice: But you would agree, would you not, that the theory on which your clients would get relief is that the plea was not voluntarily entered into?

Mr. Mills: The plea was an invalid plea because it was not voluntarily entered into, but I don't think it follows that the relief has to be going back to the beginning and letting them re-enter the whole new plea, because in this case they have made an agreement, they have lived up to it, they have served the time.

Unidentified Justice: Even if the judge under Illinois state law was required to provide for mandatory parole, you don't think that the remedy and the only remedy is to set aside the plea agreement entirely and start over?

Mr. Mills: I don't think you can do that when you are at a point where they have served the entire sentence they agreed to serve.

They have done it.

Unidentified Justice: Well, it has happened in other states and other circumstances, and not infrequently.

Now, that would have the effect, would it not, of expunging the parole violation?

You would set it aside and start over.

Right?

Mr. Mills: Yes.

You would set aside the entire portion of mandatory parole so that if--

Unidentified Justice: Well, the entire sentence.

Let them start over.

Either with a new trial or a new plea.

Right?

Mr. Mills: --I think that has other constitutional problems.

We have not directly addressed that before, but I don't think--

Unidentified Justice: Well, in addition, Ms. Mills, certainly we can't order that the conviction be set aside.

Mr. Mills: --No, sir.

You are only being asked to affirm the Seventh Circuit judgment, which I would ask you to affirm or to dismiss this writ as improvidently granted.

Unidentified Justice: Perhaps it is not relevant, but if, as you suggest, this judgment and the sentence was invalid, and I take it that that is what you have told us, do these people have some kind of a tort claim action against the state of Illinois for unlawful confinement for whatever number of years they were confined?

Mr. Mills: I think that is a wonderful subject for a law review article, but I doubt it would get very far in court.

Unidentified Justice: It wouldn't be surprising if such a claim were made these days, would it?

Mr. Mills: Many claims are made these days that are surprising.

Unidentified Justice: That is a good answer.

Mr. Mills: Going back to the state's argument that this is just a technical error, the Illinois courts, while paying lip service to the McCoy case, or to the Baker case in their McCoy opinion have never enforced the Baker case, and have refused consistently to allow any kind of relief either by appeal or any of the post-conviction statutes for people whose negotiated guilty pleas fell within the one period of time from January, 1973--

Unidentified Justice: Well, the Illinois courts aren't bound by the Baker case, are they?

Mr. Mills: --The Illinois courts are bound to follow federal constitutional constructions, which I think Baker is, and they have consistently refused to follow that, and I could refer this Court--

Unidentified Justice: But hasn't this Court held... didn't it hold back in the early seventies that the Supreme Court of Illinois was not bound to follow a case of the Seventh Circuit?

Mr. Mills: --It may be a case of the Seventh Circuit, but this is not new law, that guilty pleas must be voluntary and only made with full knowledge of the consequences.

It goes back to Kercheval and many cases in between through Boykin and Bradey and Santobello and others.

It is not... the Baker decision did not announce a brand new and surprising rule of law, and I think the Illinois Supreme Court in making their decision in McCoy wilfully ignored both Baker and the prior law on which it was based when they were presented, as Mr. Weinstein said, with an identical case.

At the invitation of the Seventh Circuit from the first Williams opinion, it said, we think the language in McCoy indicates that the Supreme Court in understanding comity in federalism has decided that Baker is good law.

We invite you to solve these problems, so we are not fighting, and the Illinois Supreme Court refused to take the case directly on point with the Williams language and with the invitation from the Seventh Circuit.

I think as a matter of comity, comity is a two-way street, and I think in this case it is Illinois that has not gone along the route of comity and the federal courts have been more than generous in giving then guidance, both from the Seventh Circuit and from old Supreme Court decisions.

Again, we are not talking about... well, I won't address myself to that.

Thank you very much.

Chief Justice Burger: Do you have anything further?

You have a little time left.

ORAL ARGUMENT OF MICHAEL B. WEINSTEIN, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Weinstein: Very shortly, Your Honor.

With regard to Mr. Justice Rehnquist's comment that the Illinois courts are not bound by the Seventh Circuit decisions, that is correct.

They are not bound by the Seventh Circuit decision.

They are only bound by the decisions of the U. S. Supreme Court.

However, we have a practical problem.

If the Seventh Circuit is going to hold that mandatory parole term admonishments must be given as a matter of constitutional law, the Illinois courts consistently say, no, you are out of the ball park, each petitioner is simply going to file a federal habeas corpus petition, and presumably he will win in the Northern District of Illinois, because the Northern District of Illinois is required to follow the Seventh Circuit.

Ms. Mills has talked a great deal about the bargain that was involved in this case, and we don't see a bargain having been involved.

We don't see the prosecutor having made any kind of promise or agreement that would be part of the inducement or consideration, in the language of Santobello.

The mandatory parole term in Illinois attached automatically to every sentence involving incarceration, every felony sentence involving incarceration, whether these individuals had received a one-year sentence or a 20-year sentence.

There was nothing the prosecutor could have done.

There was nothing the judge could have done.

It was going to be in there, no matter what.

With regard to whether or not the public defender had a duty to inform his client and that type of questioning, it is quite possible he did, but keep in mind that at the time that these pleas were entered, this Krantz decision was... appeared to be the law in Illinois, and presuming that the individuals were aware of the Krantz decision, and I am sure that they were, they could only have read into that decision that in fact no admonishment need be given at all.

Krantz subsequently was overturned, at least in that portion, by the Illinois Supreme Court.

But we can't really fault the prosecutor and the defense counsel and, for that matter, the Judge for not giving the mandatory parole term admonishment when Illinois law appeared to say you didn't have to give it.

Unless there is anything further, I thank you very much.

Chief Justice Burger: Thank you, counsel.

The case is submitted.