Gano v. United States

705 F.2d 1136, 1983 U.S. App. LEXIS 28118

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 10, 1983
• Docket: No. 82-5058
• Status: Published

Opinions

SKOPIL, Circuit Judge:

Appellant Gano pleaded guilty to four counts of bank robbery. United States District Judge Ferguson sentenced him to concurrent terms of fifteen years imprisonment on each count. Gano moved to set aside or correct the sentence pursuant to 28 U.S.C. § 2255. He contended that Judge Ferguson at sentencing relied upon a presentence report that referred to prior uncounseled convictions and allegedly erroneous information. Gano later filed a supplemental motion in which he contended that a statement by Judge Ferguson at arraignment had coerced him to plead guilty.

Before Gano filed his section 2255 motion Judge Ferguson was appointed to the Ninth Circuit and left the district court. Accordingly, the case was assigned to United States District Judge Pfaelzer. The motion was then sent to a magistrate for an evidentiary hearing. The magistrate recommended that Gano’s claims be denied. The recommendation was adopted by Judge Pfaelzer. Gano contends on appeal that (1) his section 2255 motion should have been referred to the original sentencing judge, and (2) his guilty pleas were coerced.

DISCUSSION

(1) Should Gano’s section 2255 motion have been presented to Judge Ferguson?

Ordinarily section 2255 motions should be presented to the original sentencing judge because “the original sentencing judge has unique knowledge of how much weight was given to the allegedly invalid priors in passing sentence.” Farrow v. United States, 580 F.2d 1339, 1349-50 (9th Cir.1978). Rule 4(a) of the Rules Governing Section 2255 Proceedings provides, however, that:

“If the appropriate judge is unavailable to consider the motion, it shall be presented to another judge of the district court in accordance with the procedure of the court for the assignment of its business.”

The question here is whether Judge Ferguson became “unavailable,” within the meaning of the rule, upon his appointment to the Ninth Circuit Court of Appeals.

The plain meaning of Rule 4(a) is that a judge is unavailable when he or she is no longer on the district court. Any other interpretation would render Rule 4(a) meaningless. While it might have been possible for Judge Ferguson to, be specially appointed to hear Gano’s motion, we find this an unnecessary requirement under section 2255. Accordingly, we hold that Judge Ferguson was unavailable to hear Gano’s section 2255 motion.

(2) Were Gano’s guilty pleas coerced?

At arraignment Judge Ferguson suggested that Gano would be found guilty of at least two of the twenty-two counts. Gano later claimed that Judge Ferguson’s remark rendered the pleas involuntary. Judge Pfaelzer, adopting the magistrate’s findings, concluded that Gano’s pleas were the result of a calculated decision to avoid conviction on all counts.

The findings of the district court cannot be set aside unless clearly erroneous. Steinsvik v. Vinzant, 640 F.2d 949, 951 (9th Cir.1981). The court found that any emotional effect from the remark was attenuated by the passage of 5 weeks between arraignment and plea. Further, Gano testified that he understood that the jury would make the ultimate determination of guilt or innocence. Finally, Gano consented to transfer the indictment to the Central District of California in order to enter a plea before Judge Ferguson. This decision was made after Judge Ferguson’s remark and negates Gano’s claim of coercion. The record amply supports the finding that Gano’s pleas were voluntary.

The district court is AFFIRMED.