George Willard Shaffer, Appellant, v. United States of America, Appellee, 435 F.2d 168 (9th Cir. 1970)

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US Court of Appeals for the Ninth Circuit - 435 F.2d 168 (9th Cir. 1970)

December 4, 1970

Joseph C. Raineri, Sr., Scottsdale, Ariz., for appellant.

Richard K. Burke, U. S. Atty., Stanley L. Patchell, Asst. U. S. Atty., Tucson, Ariz, for appellee.

Before BARNES, KOELSCH and HUFSTEDLER, Circuit Judges.


On June 28, 1965, Shaffer entered a plea of guilty to a charge of acquiring marihuana without paying the transfer tax, in violation of 26 U.S.C. § 4744(a). Thereafter, he commenced this proceeding under 28 U.S.C. § 2255, to vacate the judgment of conviction. The keystone of his contention was and is that "the incriminatory portion of § 4744(a) was declared unconstitutional in Leary * * *." Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969). The district court denied relief and Shaffer has appealed. We affirm.

Shaffer apparently recognizes that the Supreme Court did not in Leary strike down the marihuana tax statute [26 USC § 4741(a)] as unconstitutional on its face, but he fails to realize that, having entered a plea of guilty to a charge of violating the statute, he cannot now assert that the statute was unconstitutional as applied to him. A fortiori, where as here, his plea was counseled. See Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970).