that the window of his vehicle was not broken. The second page, however, also asks for the license plate number and whether or not a key came with the vehicle; these spaces are blank as well. Mr. Cooke's reliance on the form as determinative of the truck's condition is not appropriate. The Court made its credibility determination on the testimony of three officers who saw Mr. Cooke's vehicle and a partially filled out form will not and can not alter that determination.
3. The Rule 11 claim
Finally, Mr. Cooke contends that this Court committed error under Rule 11(c)(1) of the Federal Rules of Criminal Procedure. During the plea colloquy, the Court failed to inform Mr. Cooke that his sentence included a statutory term of supervised release. Mr. Cooke now wants to withdraw his plea due to the trial court's error. While the Court recognizes its mistake, it also recognizes that a technical violation of the rule is not a proper subject of collateral relief. Moreover, the court's mistake was not so fundamental as to warrant a withdrawal of the plea.
According to Rule 32(e), a plea may be set aside after sentencing only on direct appeal or by motion under 28 U.S.C. § 2255. FED. R. CRIM. P. 32(e). To collaterally attack a plea, the plea must be subject to a constitutional or jurisdictional infirmity. If no such infirmity exists then the Court must ask whether the plea was subject to a "fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424 428, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962); United States v. Farley, 315 U.S. App. D.C. 240, 72 F.3d 158, 162 (D.C. Cir. 1995).
Here, petitioner requests that his plea be set aside due to a violation of Rule 11(c)(1). Rule 11(c)(1) states that the court must inform the defendant of "the nature of the charge to which the plea is offered, the mandatory minimum provided by law if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term." FED. R. CRIM. P. 11(c)(1). The Supreme Court has held, however, that a violation of the formal requirements of Rule 11 is not the proper subject of collateral relief. In United States v. Timmreck, 441 U.S. 780, 60 L. Ed. 2d 634, 99 S. Ct. 2085 (1979), the petitioner brought a motion under § 2255 because the district judge failed to explain a statutory three year term of special parole at the petitioner's plea colloquy. The petitioner did not claim he was unaware of the special term or that he would not have pled guilty had he been properly informed of the term, rather he brought the claim simply because of the Court's procedural error. The Supreme Court held that a formal violation of Rule 11 was neither a constitutional or jurisdictional violation nor did petitioner's claim amount to a "complete miscarriage of justice." 441 U.S. at 783-84. The Court stated that "collateral relief is not available when all that is shown is a failure to comply with the formal requirements of the Rule." Id. at 785 (quoting Hill, 368 U.S. 424 at 429. Timmreck supports the policy behind Rule 11(h) which states "any variance from the procedures required by this ruling which does not affect substantial rights shall be disregarded." FED. R. CRIM. P. 11(h).
In this instance, after consulting with the attorneys in the case, the Court informed Mr. Cooke that he was subject to a mandatory sentence of five years, failing to mention a mandatory two-three year term of supervised release. As in Timmreck, the petitioner's motion relies solely on an error in the formal requirements of Rule 11 and is not the proper subject of collateral relief. Mr. Cooke does not argue that he was unaware of the supervised release term nor does he submit that he would not have pled to § 924 had he known of the term. He bases his claim strictly on a procedural rule violation which he cannot do under § 2255.
Even if the Court's error is a proper subject of collateral relief, the error did not affect Mr. Cooke's substantial rights. The Presentence Investigation Report noted the mandatory term of supervised release; in addition, the Court informed Mr. Cooke of the mandatory term at his sentencing hearing. Mr. Cooke failed to object to that information either in the report or at sentencing. Mr. Cooke's own conduct, or lack thereof, proves that his substantial rights were not affected by the Court's error. See United States v. Carey, 884 F.2d 547 (11th Cir. 1989), cert. denied. 494 U.S. 1067, 108 L. Ed. 2d 787, 110 S. Ct. 1786 (1990) (holding that where trial court did not inform defendant of supervised release term during plea colloquy but did advise defendant of term in presentence report and at sentencing, defendant's sentence stands). Since Mr. Cooke's substantial rights were not affected by the court's mistake, the Court determines that its failure to mention the term of supervised release at Mr. Cooke's plea colloquy was harmless error.
Accordingly, defendant's motion to vacate, set aside, or correct sentence is hereby DENIED.
Royce C. Lamberth
United States District Judge
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