Roy Edward Raines v. United States of America, Michael Pasterchik v. United States

423 F.2d 526, 1970 U.S. App. LEXIS 10182

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 23, 1970
• Docket: 13028_1
• Status: Published

Opinions

CRAVEN, Circuit Judge:

Roy Edward Raines and Michael Pasterchik appeal from the orders of two district courts denying them, without hearings, relief under 28 U.S.C. § 2255.¹ Each appellant’s case presents the question of whether, despite strict compliance with Rule 11, Federal Rules of Criminal Procedure, an evidentiary hearing is required in a Section 2255 proceeding where the movant alleges facts outside the record going to the voluntariness of his guilty plea. Because of this common issue, the two cases were consolidated on appeal. The motions and the files and records in each of these cases conclusively show that neither appellant is entitled to relief. It was, therefore, not error for the district courts to refuse hearings and act summarily, and the orders of dismissal will be affirmed.

PASTERCHIK

On December 18, 1959, Michael Pasterchik was arrested by FBI agents in Florence County, South Carolina, while in possession of an automobile stolen in Missouri. Shortly after his arrest, he expressed to a probation officer his desire to plead guilty to a violation of 18 U.S.C. § 2312. He waived preliminary hearing and was held pending trial without bail. Before trial Pasterchik wrote two letters, on January 25, 1959, and on January 29, 1959, to the United States Attorney’s office stating his intention to plead guilty but threatening to change his plea unless he be tried immediately. The Assistant United States Attorney responded by letter on January 29, 1959, saying that the government had “no interest whatever in whether or not you intend to plead guilty or not guilty. As a matter of fact we do not want you to plead guilty if in fact you are not guilty * * Pasterchik now alleges, without corroboration, that just prior to his arraignment on February 9, 1959, the same Assistant United States Attorney promised him a sentence of “two years probation” if he agreed to plead guilty.

At his arraignment Pasterchik waived his right to counsel and entered a plea of guilty. The trial court inquired into the voluntariness of this waiver and plea in the manner then required by Rule 11, Federal Rules of Criminal Procedure. See Gundlach v. United States, 262 F.2d 72 (4th Cir. 1958). Pasterchik now contends that his waiver and plea were the result of explicit instructions given him by the Assistant United States Attorney. He does not attack the facial propriety of his arraignment, but alleges that his answers to the court’s-questions were given in accordance with those instructions.

The trial judge imposed an active four-year sentence; whereupon, Pasterchik informed the court that he had been in jail two months awaiting trial and requested that he be given credit for that time. The trial judge then reduced the sentence to three years. The appellant made no comment concerning the alleged bargain with the Assistant United States Attorney. Nine years later he claims that his plea of guilty was involuntary.

RAINES

On December 23, 1965, Roy Edward Raines was arraigned in the federal district court for the Western District of Virginia on charges of violating 18 U.S.C. § 2312. During the colloquy between the trial judge and the appellant required by Rule 11, Raines waived, orally and in writing, his right to counsel and entered a plea of guilty. In response to the questions of the court, the appellant stated that the waiver and plea were voluntarily and understandingly made without threat or promise. Rain-es was sentenced pursuant to the Federal Youth Corrections Act, 18 U.S.C. § 4209. He now asserts that he rejected assistance of counsel and entered a guilty plea because a probation officer “influenced” him to do so at an interview held to inform him about the sentencing provisions of the Youth Corrections Act. No other facts, details or circumstances are set forth by Raines in support of his allegation.

A plea of guilty is void when induced by promises or threats which deprive it of its voluntariness. A judgment and sentence entered thereon is subject to collateral attack by a Section 2255 motion. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).

The appellants assert that, under 28 U.S.C. § 2255, the allegation of extrajudicial occurrences that would render their pleas involuntary makes mandatory a full evidentiary hearing even though there was full compliance with Rule 11 at arraignment. We think the rule is not so broad. Machibroda v. United States, supra; United States v. Carlino, 400 F.2d 56 (2nd Cir. 1968); Norman v. United States, 368 F.2d 645 (3rd Cir. 1966); Olive v. United States, 327 F.2d 646 (6th Cir. 1964); Anderson v. United States, 318 F.2d 815 (5th Cir. 1963).

Machibroda distinguishes between a "full hearing” and an investigation "without requiring the personal presence of the prisoner.” The district courts are left "diseretibn to exercise their common sense.” Machibroda, supra at 495, 496, 82 S.Ct. at 514.

Title 28 U.S.C. § 2255 provides, in pertinent part, that “unless the motion [for relief] and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall * * * grant a prompt hearing thereon * * We think the statute and the decision in Machibroda make available to the district courts three possible methods, depending upon the facts, of disposition of motions under Section 2255:

SUMMARY DISPOSITION

Where the files and records conclusively show that the prisoner is entitled to no relief, summary dismissal is appropriate. If the petition be frivolous or patently absurd on its face, entry of dismissal may be made on the court’s own motion without even the necessity of requiring a responsive pleading from the government. Compare, Conway v. California Adult Authority, 396 U.S. 107, 90 S.Ct. 312, 24 L.Ed.2d 295 (Decided Per Curiam, December 8, 1969.) In most cases, however, the better practice would be to require, at the very least, a responsive pleading so that United States attorneys may be afforded the opportunity to state the government’s position and sometimes, as not infrequently occurs, to admit the merit or veracity of some or all of the petitioner’s assertions.

DISPOSITION ON AN EXPANDED RECORD

Unless it is clear from the pleadings and the files and records that the prisoner is entitled to no relief, the statute makes a hearing mandatory. We think there is a permissible intermediate step that may avoid the necessity for an expensive and time consuming evidentiary hearing in every Section 2255 case. It may instead be perfectly appropriate, depending upon the nature of the allegations, for the district court to proceed by requiring that the record be expanded to include letters, documentary evidence,² and, in an appropriate case, even affidavits. United States v. Carlino, 400 F.2d 56 (2nd Cir. 1968); Mirra v. United States, 379 F.2d 782 (2nd Cir. 1967); Accardi v. United States, 379 F.2d 312 (2nd Cir. 1967). When the issue is one of credibility, resolution on the basis of affidavits can rarely be conclusive, but that is not to say they may not be helpful.

EVIDENTIARY HEARING WITH OR WITHOUT PETITIONER’S PRESENCE

For the sake of prompt treatment of prisoner claims, we hope that many Section 2255 petitions will yield to disposition on the record, or on the record as expanded. There will remain, however, a category of petitions, usually involving credibility, that will require an evidentiary hearing in open court. Whether such a hearing may be necessary, and whether petitioner’s presence is required, is best left to the common sense and sound discretion of the district judges, Machibroda, supra at 495, 496, 82 S.Ct. 510, for it is difficult to formulate a rule of easy application. It will not often occur, we think, that prisoners will be afforded the “change of scenery” which so much concerned Mr. Justice Clark. Machibroda, supra at 501, 82 S.Ct. 510. But unquestionably there will arise cases which cannot be fairly determined without the presence of the petitioner.³

The rule announced in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), ought to further diminish the necessity for full evidentiary hearings in the disposition of petitions under Section 2255.

The thrust of McCarthy is that “disputes as to the understanding of the defendant and the voluntariness of his action are to be eliminated at the outset * * *." Heiden v. United States, 353 F.2d 53, 55 (9th Cir. 1965). Rule 11 is intended to produce a complete record of the factors relevant to the voluntariness of the guilty plea and, thereby, to forestall subsequent controversy as to voluntariness. The purpose and spirit of the rule is diametrically opposed to the unfortunate tradition of invisible plea bargaining. It is this tradition that causes trouble here. We are not unaware that plea bargaining often occurs without the knowledge of the court. The result is an absurdity: the trial judge knows everything about the plea except what truly motivates it. We have previously recognized plea bargaining as an ineradicable fact. Failure to recognize it tends not to destroy it but to drive it underground. We reiterate what we have said before: that when plea bargaining occurs it ought to be spread on the record⁴ and publicly disclosed. United States v. Williams, 407 F.2d 940 (4th Cir. 1969). If that had been the general practice at the time of arraignment in these cases, it is improbable that these contentions would now be made. In the future we think that the district judges should not only make the general inquiry under Rule 11 as to whether the plea of guilty has been coerced or induced by promises, but should specifically inquire of counsel whether plea bargaining has occurred. Logically the general inquiry should elicit information about plea bargaining, but it seldom has in the past.

We think Raines’ case is not “marginal.” See Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). Complete compliance with Rule 11 clearly disclosed at the trial that his plea was neither induced nor coerced. The only asserted factual basis for now invalidating the plea is a vague and conelusory assertion that he was “influenced” to so plead by a conversation with a probation officer who was explaining to him the provisions of the Youth Corrections Act. One may be properly or improperly influenced. We think this allegation alone insufficient to invoke the necessity of a hearing.

It is within the discretion of the district judge to deny without a hearing Section 2255 motions which state only “legal conclusions with no supporting factual allegations.” Sanders v. United States, 373 U.S. 1, 19, 83 S.Ct. 1068, 1079, 10 L.Ed.2d 148 (1962); Eaton v. United States, 384 F.2d 235 (9th Cir. 1967). Allegations of “a vague, conelusory or palpably incredible nature” do not raise factual issues which require a full hearing. Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). Although we do not presently hold that it was error to dismiss the petition without requiring the government to respond, we think it would have been the better practice to require such a response and an explanation of the conduct of the probation officer and what, if anything, he may have advised Raines.⁵

Pasterchik alleges specific facts, but they are refuted by the files and records of the case. His arraignment took place in 1959, years before the trial court was required by Rule 11 to address the defendant personally. The trial court did, however, inquire into the voluntariness and understanding of his plea as required at that time. To be considered in conjunction with the trial court’s finding that the plea was voluntary is the fact that Pasterchik three times expressed his desire to plead guilty and was advised by the Assistant United States Attorney not to plead guilty if he were not, in fact, guilty. Two of Pasterchik’s offers to plead guilty were in letters, as was the advice directed to him from the United States Attorney’s office. Letters, exhibits and other evidence not previously a part of the record may be considered by the court as part of the record in determining the necessity for an evidentiary hearing under Section 2255. See United States v. Carlino, 400 F.2d 56 (2nd Cir. 1968) (correspondence and other exhibits); Mirra v. United States, 379 F.2d 782 (2nd Cir. 1967) (affidavit from movant’s physician); Castro v. United States, 396 F.2d 345 (9th Cir. 1968) (affidavit from movant’s trial counsel).

Furthermore, Pasterchik exhibited no hesitancy to speak out at his sentencing. At his request his sentence was reduced from four years to three by the trial judge. If in fact an unfulfilled promise of probation had been made to the appellant it seems likely that he would have voiced his indignation, for the record shows he was not intimidated from expressing other objections. Finally, both petitioners’ silence for extended periods, one for 28 months and the other for nine years, serves to render their allegations less believable. “Although a delay in filing a section 2255 motion is not a controlling element * * * it may merit some consideration.” Parker v. United States, 358 F.2d 50, 54 n. 4 (7th Cir. 1965).

No. 12,404 affirmed.

No. 13,028 affirmed.

1 . Raines explicitly states Section 2255 as the basis for his action. Pasterchik titles his pleading as seeking a “writ of error coram nobis,” which is properly treated as a motion under Section 2255. Parker v. United States, 358 F.2d 50 (7th Cir. 1965); United States v. Rutkin, 212 F.2d 641 (3rd Cir. 1954).

2 . E. g., visitor and mail records are suggested in Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).

3 . Both 28 U.S.C. § 2255 and Machibroda contemplate that there may be a sufficient evidentiary hearing without the presence of the prisoner. Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).

4 . The Bench Book prepared by the Federal Judicial Center for use by United States District Judges now suggests that the defendant be asked by the court “if he believes there is any understanding or if any predictions have been made to him concerning the sentence he will receive.” Benchbook for United States District Judges, Federal Judicial Center (1969) at 1.05.3.

5 . Our affirmance will not bar Raines from filing a new petition specifying precisely what, if anything, was said to him by the probation officer to influence his plea.