Bowen was an opinion by Chief Justice Hughes holding habeas corpus available to test the jurisdiction of the court in which the petitioner was convicted. Before Davis, a majority of the circuits, including ours (United States v. Smith, 440 F.2d 521 (7th Cir. 1971)), granted section 2255 relief to petitioners who were not informed of their ineligibility for parole when they pleaded guilty. Gates v. United States, supra, 515 F.2d at 79, n. 7. These cases, while viewing the error as affecting the defendant's understanding of the consequences of the plea and hence voluntariness, generally relied on Rule 11, as pointed out in Gates, and did not reach the constitutional question. This rule has been extended by two courts to failure to advise of a mandatory special parole term (United States v. Richardson, 483 F.2d 516 (8th Cir. 1973); Roberts v. United States, 491 F.2d 1236 (3rd Cir. 1974)), and by one to advice of a greater maximum sentence than the statute actually provides (Kelsey v. United States, 484 F.2d 1198 (3rd Cir. 1973)).
Petitioners in their briefs argue that they are entitled to have their guilty pleas automatically vacated because they were accepted in violation of Rule 11 of the Federal Rules of Criminal Procedure. Rule 11 requires that before the court accept a plea of guilty it must address the defendant personally and determine "that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea." Our court has held that ineligibility for parole is a consequence of a plea of guilty about which a defendant must be informed in order to satisfy Rule 11. United States v. Smith, 7 Cir., 440 F.2d 521, 526 (1971). The United States Supreme Court held on a direct appeal that "a defendant is entitled to plead anew if a United States district court accepts his guilty plea without fully adhering to the procedure provided for in Rule 11."
The bar to parole eligibility has now been removed by the adoption of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236. See United States v. Smith, 440 F.2d 521 (7th Cir. 1971). Our attention has not been called to any decision which applies this repeal of § 7237(d) retroactively to a case similar to Moody's in which the sentence antedated the effective date of the new law.
Put another way, the argument is that petitioner only need be told of the range of punishment and not his actual sentence. See Ruiz v. United States, 494 F.2d 1 (5th Cir. 1974), certiorari denied, 419 U.S. 899, 95 S.Ct. 181, 42 L.Ed.2d 144; United States v. Smith, 440 F.2d 521, 533 (7th Cir. 1971) (Stevens, J., dissenting). As a practical matter, however, the state's argument ignores the fact that in Illinois the minimum sentence term was an accepted determinant of parole eligibility.
Additionally, the driving motivation for the defendant to accept the plea was that he received probation for 47 felonies, not the potential maximum sentence if he violated his probation. If we were not constrained by the Leroux framework and were writing on a blank slate, we would adopt the analysis of Justice John Paul Stevens' dissent in United States v. Smith, 440 F.2d 521, 528-29 (7th Cir. 1971), written when the justice was on the seventh circuit. The dissent argued that a guilty plea should not be subject to collateral attack unless the error is constitutional or jurisdictional in nature.
Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea.'" Id., at 784 (quoting United States v. Smith, 440 F.2d 521, 528-529 (CA7 1971) (Stevens, J., dissenting)). We hold, therefore, that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.
Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea." United States v. Smith, 440 F.2d 521, 528-529 (Stevens, J., dissenting). As in Hill, we find it unnecessary to consider whether § 2255 relief would be available if a violation of Rule 11 occurred in the context of other aggravating circumstances.
With respect, we are "convinced the parade is marching in the wrong direction." United States v. Smith , 440 F.2d 521, 527 (7th Cir. 1971) (Stevens, J., dissenting). The core proposition in United —that, apart from any breach of contract, an employer is liable for a union’s breach of duty "if it acts in collusion with the union," 756 F.2d at 1283 —is unmoored from the RLA.
The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas.Id. at 784, 99 S.Ct. 2085 (quoting United States v. Smith, 440 F.2d 521, 528–29 (7th Cir.1971) (Stevens, J., dissenting)) (internal quotation mark omitted). The prosecution tries to avoid our conclusion by saying both parties and the court contemplated there would be follow-on proceedings and its hands are now being unfairly tied.
The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas.Id. (quoting United States v. Smith, 440 F.2d 521, 528–29 (7th Cir.1971) (Stevens, J., dissenting)). In addition to emphasizing the sheer volume of guilty pleas, the Supreme Court has located independent value in the fact that such a plea “usually rest[s] ... on a defendant's profession of guilt in open court,” United States v. Dominguez Benitez, 542 U.S. 74, 82–83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004), and allows him to demonstrate “that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary,” Brady v. United States, 397 U.S. 742, 753, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).