No. 71-1304.United States Court of Appeals, Tenth Circuit.
March 13, 1972. Rehearing Denied April 3, 1972.
Robert B. Booz, Lakewood, Colo., for petitioner-appellant.
Floy E. Dawson, Asst. U.S. Atty., Oklahoma City, Okl. (William R. Burkett, U.S. Atty., Oklahoma City, Okl., on the brief), for respondent-appellee.
Appeal from the United States District Court for the Western District of Oklahoma.
Before LEWIS, Chief Judge, HOLLOWAY and BARRETT, Circuit Judges.
BARRETT, Circuit Judge.
[1] Robert Barber appeals from denial of his application under 28 U.S.C. § 2255 to set aside his judgment of conviction following his guilty plea on May 11, 1959, to five counts of conspiracy, possession of narcotic drugs and sale of narcotic drugs. [2] This court considered a similar application filed by Barber and there heldPage 165
that his plea was made voluntarily and with understanding of the nature of the charge. Barber v. United States, 427 F.2d 70
(10th Cir. 1970), cert. denied 400 U.S. 867, 91 S.Ct. 108, 27 L.Ed.2d 106 (1970). Barber did not raise the contention there, as he does here, that failure on the part of the trial judge or of his counsel to inform him of his ineligibility for parole prior to his guilty plea rendered that plea involuntary.
retroactively, holding that it applied only to guilty pleas accepted after April 2, 1969, the date that McCarthy was decided. [6] We accordingly hold that Jenkins, supra shall not be applied retroactively. This determination requires rejection of Barber’s motion to set aside his conviction based solely on his complaint that the district court failed to inform him of his ineligibility for parole. Considering all of the circumstances, we adhere to the rule laid down in Stephens v. United States, 376 F.2d 23
(10th Cir. 1967), cert. denied 389 U.S. 881, 88 S.Ct. 124, 19 L.Ed.2d 176 (1967), that failure by the sentencing judge to fully comply with the strict requirements of Rule 11 is not fatal to the entry of the plea. Jenkins applies only to those guilty pleas made after April 2, 1969. [7] Affirmed.
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