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

SOBELOFF, Circuit Judge

(concurring in part and dissenting in part):

While I am in complete agreement with the majority as to the disposition of Pasterchik’s appeal, I disagree as to Raines’. I have even graver reservations about the advice the majority gives the district courts on how to handle section 2255 petitions generally.

*532 I

Pasterchik’s case bears a striking resemblance to Machibroda v. United States, 368 U.S. 487 , 82 S.Ct. 510 , 7 L.Ed.2d 473 (1962). Machibroda alleged, without more, that an eleventh hour promise by the United States Attorney induced him to plead guilty. Without holding a hearing, and solely on the basis of affidavits, the district judge resolved the facts against Machibroda. The Supreme Court held this procedure to be error, because the case was not one where “the motion and the files and records * * * conclusively show that the prisoner is entitled to no relief.” Although Machibroda’s assertions were “improbable,” they were not “incredible,” and therefore a hearing was required.

Pasterchik makes essentially the same allegation as Machibroda, and his motion was also denied without a hearing. The difference between the two is that Pasterchik’s claim is not even plausible. The correspondence between the District Attorney and petitioner supports, indeed commands, the view that it was the defendant who was impatient for the guilty plea while the prosecutor was solicitous that the step should not be taken precipitately. Furthermore, at sentencing, Pasterchik demonstrated no reticence, yet he failed to speak out when the bargain he allegedly relied on did not materialize. His recollection could hardly have been sharpened by the passage of nine years.

In short, Pasterchik’s allegations, in the light of the record evidence in the case, exceed the outer bounds of credibility. The documents before the court, it can truly be said, show conclusively that he is entitled to no relief.

Raines presents a more difficult case. This petitioner suggests that his guilty plea was “influenced” by a conference with a probation officer. The majority points out that there can be both proper and improper influence, and on that ground finds the petition too vague. There are two objections to this result.

First, we do not generally hold petitioners to technical niceties of pleading. Judges should take it into account when an indigent petitioner presents his case as a layman using lay language or ventures, without the assistance of counsel, to express himself in what he thinks is legal language. The correct approach for judges in such cases is to try to understand what the uncounselled indigent petitioner is driving at without insisting on precise legal form of detail. Raines may have in mind a type of influence that is improper and would create an infirmity in the guilty plea. He should be afforded the opportunity, with the assistance of counsel, to flesh out his assertion, if he can. See Coleman v. Peyton, 340 F.2d 603 (4th Cir. 1965).

Second, the majority recognizes that it “would have been the better practice to require * * * a response [from the Government] and an explanation of the conduct of the probation officer and what, if anything, he may have advised Raines.” In other words, the petition is not too vague to prompt some curiosity about what really happened. Under these circumstances it could hardly be said that Raines’ papers show conclusively that he deserves no relief. The statute and Machibroda make it clear that this is just the case where the district court’s doors should not be closed and precisely where the facts should be inquired into and ascertained.

II

As concerned as I am by the Raines result, I am even more troubled by the implications of the majority’s general discussion.

The opinion surveys the field of section 2255 petitions and marks out three courses open to a district judge: (A) “summary disposition,” (B) “disposition on an expanded record,” and (C) “evidentiary hearing with or without petitioner’s presence.”

A

The first category is unexceptionable. Summary disposition is sanctioned by *533 of the statute when the files and records the case show conclusively that a prisoner is entitled to no relief; as explained by Machibroda , this covers instances in which the pleadings are “vague, conclusory, or palpably incredible,” 368 U.S. at 495 , 82 S.Ct. 510 . As above indicated, Pasterchik’s petition presents just such a case.

B

In the second category we have another story. In defining it, the majority first restates what was established in (A), that unless it is clear from the files and records that petitioner’s claim has no merit, a hearing is mandatory. But in the very next sentence we are told that there is a “permissible intermediate step” that may be used to avoid what had just been described as a mandatory hearing. Actually what is proposed is that the district judge actively expand the record so as to make the case amenable to summary disposition. In particular, he may gather letters, other documentary evidence, and affidavits. There is nothing wrong with the first two types of additions if they antedate the petition. But the third — consisting of ad hoc affidavits — involves an insidious suggestion. For, as the opinion goes on to make clear, it is contemplated that district judges may receive affidavits in substitution for what ordinarily would be live testimony.

By the inclusion of affidavits within the scope of “files and records” the majority neatly obviates the necessity of a hearing in every case. It could never have been envisioned that the summary disposition provided in the statute would encompass such trial by affidavit. Testimony by witnesses to past events should be live and subject to testing by cross-examination. Affidavits cannot be probed; nor can they fill in missing details which may significantly alter or refute the account. “It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised.” Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 500 , 89 S.Ct. 1252, 1257 , 22 L.Ed.2d 495 (1969); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473 , 82 S.Ct. 486 , 7 L.Ed.2d 458 (1962).

On the other hand, letters or other documents made at the time of the incident under inquiry differ from affidavits prepared in response to the petition of the prisoner. Thus it was proper to take into account the correspondence in Pasterchik’s file. Those papers were the embodiment of the very issue at stake in the case — what was it that the district attorney told petitioner? Accordingly, those contemporaneously prepared documents were not only relevant, but the most competent evidence that could conceivably bear on the issue. In the absence of those letters, however, I would not accord an affidavit freshly prepared by the prosecutor to meet the exigencies of pending litigation any greater weight than one ordinarily gives to a pleading.

Consider the classical example of a petitioner claiming that the district attorney made an off-the-record deal which was not subsequently honored. Assume that, unlike Pasterchik’s, the allegation is not incredible. The majority would apparently countenance determination of the facts in an undefined group of cases upon the affidavit of the prosecutor. But these are the precise facts of Machibroda , where the district judge, relying on the affidavit of the Assistant United States Attorney, concluded that a hearing was unnecessary. The Supreme Court disagreed and remanded for a hearing. In so doing the Court specifically approved and quoted from Walker v. Johnston, 312 U.S. 275 , 61 S.Ct. 574 , 85 L.Ed. 830 (1941), which it decided before the passage of 28 U.S.C. § 2255 . Walker’s allegation was that his guilty plea had been coerced by the United States Attorney, an assistant and a deputy marshal. The district court denied the writ of habeas corpus, resting the decision on ex parte affidavits from those federal officers. The Supreme Court held the affidavit procedure insufficient and required the taking of evidence.

*534 Not by the pleadings and the affidavits, but by the whole of the testimony, must it be determined whether petitioner has carried his burden of proof and shown his right to a discharge. 312 U.S. at 287 , 61 S.Ct. at 579 (Emphasis added.)

C

What the majority does to the necessity for the production of other live witnesses, it does in spades to the opportunity of the petitioner himself to attend the hearing. Seizing upon the authorization in the statute and in Machibroda to hold a hearing out of the presence of the prisoner, the majority proceeds to the conclusion that hearings with the petitioner present will not often occur. District judges are told to exercise their discretion, but no guidelines are mentioned.

However, norms do exist. United States v. Hayman, 342 U.S. 205 , 72 S.Ct. 263 , 96 L.Ed. 232 (1951), in which the Supreme Court first reviewed 28 U.S.C. § 2255 , laid down the standard for determining when a prisoner’s presence is required. The Court held,

[wjhether the prisoner should be produced depends upon the issues raised by the particular case. Where, as here, there are substantial issues of fact as to events in which the prisoner participated, the trial court should require his production for a hearing.

Machibroda and Sanders v. United States, 373 U.S. 1 , 83 S.Ct. 1068 , 10 L.Ed.2d 148 (1963), in remanding for hearings, adverted to the statutory possibility in some instances to dispense with the petitioner’s presence but did not disturb the Hayman standard. Presumably Hay-man is still a correct statement of the law.

It is my submission that whenever there are factual issues upon which a petitioner is competent to testify or to aid his counsel his presence is required. If he can do neither, then certainly he should not be given the feared “change of scenery.” For example, if the factual issues revolve around the circumstances of a search accomplished in the absence of the petitioner, then if the district judge, in his discretion, decided that petitioner’s presence would not materially aid the presentation of his case, the denial of the right to attend the hearing would normally not be error. On the other hand if petitioner had been present at the search it would ordinarily be an abuse to resolve disputed facts without his testimony. Similarly, in section 2255 cases in which the voluntariness of a plea is in issue, it should be the rare instance rather than the general practice where the petitioner’s presence is not needed. 1 Although his testimony might turn out to be untruthful, there is no one whose' testimony would be more material.

Consider again the case where a petitioner alleges an unfulfilled plea bargain, when the record evidence does not conclusively refute him. A hearing is presumably required. But the majority in this case has just informed the district judges that they may, if they like, dispense with both the testimony of the district attorney and that of the petitioner, resorting instead to a short-cut by affidavit. What then does it mean to say, as the statute does say, that a hearing is mandatory?

Today, by gutting the requirements of section 2255, the prevailing opinion inverts the thrust of everything the Supreme Court has taught about the necessity for hearings in post-conviction proceedings and at the same time conflicts with the understanding of at least some of our district judges. Plenary hearings are the general rule. See Townsend v. Sain, 372 U.S. 293, 311-312 , 83 S.Ct. 745 , *535 9 L.Ed.2d 770 (1963). However, today the majority devises exceptions that threaten to swallow the rule.

The violence done to the established scheme is not ameliorated by casual reference to the “better practice” of requesting a response by the Government. In the first place, by expressly saying “we do not presently hold that it was error to dismiss the petition without requiring the government to respond,” the majority makes clear that its dictum has no teeth. It tolerates dismissal of Raines’ petition without holding a hearing or even calling for a Government response. Making a purely precatory pronouncement about responses is hardly likely to transform what the opinion calls “the better practice” into the general practice. Moreover, my observation does not encourage me to hope, as apparently the majority hopes, that “not infrequently [the Government will] admit the merit or veracity of some or all of the petitioner’s assertions.” Nevertheless I agree that ordering a response would be generally salutary in clarifying the issues. But in no event can the Government’s response or its ex parte affidavits be an acceptable substitute for a hearing in an appropriate case.

. I heartily approve the majority’s recommendation that plea bargaining be spread on the record. But even if in the future, in contrast to the past, there is general compliance with the salutary rule, we would still be faced with the problem we have here: what to do when the record does not reflect a deal. The silence of the record could mean that there was no bargain. But it could also mean that the existence of the barter was concealed, perhaps as part of the bargain.