United States v. Stubblefield

MEMORANDUM, ORDER AND CERTIFICATE NEESE, District Judge. The defendant Mr. Ray L. Stubblefield was convicted on his plea of guilty of violating 18 U.S.C. Appendix § 1202 after a judicial finding that his plea was voluntary and understanding^ offered. The Court entered judgment thereon on August 13, 1982 after having become satisfied that there was a factual basis for the plea. The defendant gave on the same day a timely notice of appeal from such judgment of conviction and is to be treated after conviction in accordance with 18 U.S.C. § 3146, Rule 46(c), Federal Rules of Criminal Procedure, “unless the * * * judge has reason to believe * * * that an appeal is frivolous or taken for delay * * *.” 18 U.S.C. § 3148. There is such reason to believe herein: The defendant, on arraignment of May 19, 1982 herein, entered a not-guilty plea, and trial was then assigned to commence July 21, 1982. The defendant moved pretrial to suppress certain evidence which motion was assigned for hearing on July 19, 1982. He moved on July 16, 1982 for a continuance of trial, appeared July 19, 1982, withdrew his motion to suppress, and presented a petition to enter a plea of guilty, which, as stated, was accepted. “ * * * While a guilty plea does not bar an appeal that asserts that the indictment failed to state an offense, or that the charge is unconstitutional, or that the indictment showed on its face that it was barred by the statute of limitation * * *, none of these grounds for appeal are available in the instant case. * * * ” United States v. Hill, C.A.5th (1977), 564 F.(2d) 1179, 1180, later appeal (1980), 622 F.(2d) 900. There appears to be herein no ground for appeal by the defendant which has not been foreclosed; “ * * * he forfeited his right to raise * * * ” any such ground “ * * * by failing to assert it * * * ” in this Court and “ * * * could not raise” it “for the first time on appeal. * * * ” United States v. Eaddy, C.A.66th (1979), 595 F.(2d) 341, 346, cited in Hill, supra. Therefore, the undersigned judge hereby CERTIFIES his belief that the appeal of the defendant-appellant herein is both frivolous and taken for delay. 18 U.S.C. § 3148, supra. His application for release pending appeal hereby is DENIED for those reasons.