Brief for the United States — Fontaine v. United States

INDEX

Page

Opinions below__.......--.---- I

Jurisdiction.......-.. bei Puwinle l

Questions presented __--.-.-- sia 2

Statute and rule involved 2

Statement. ......-..-- sé ; git 3

A. The arraignment proceedings 4

B. The sentencing proceedings 5

C. The Section 2255 proceedings 6

1. The motion to vacate 6

2. The hospital records -

3. The decisions below 1]

Summary of argument_. il

Argument:

I. Petitioner’s claim that his guilty plea was

coerced was properly denied without a

hearing........ ‘ 15

A. As a general rule, a defendant

who personally represents to

the court at the time he pleads

guilty that he is making his

plea voluntarily is not later en-

titled to a hearing on his self-

serving and uncorroborated al-

legation that his plea was, in

fact, coerced 15

B. Petitioner is bound by his in-

court representation that his

guilty plea was not coerced. _- 23

(I)

Argument—Continued

Petitioner’s claim—Continued

C. Even if petitioner is not bound

by his representations at the

motion and the records in this

case conclusively show that he

is entitled to no relief

1. The district court could

readily conclude from

the records in the case

that petitioner’s claim

that be was innocent

2. The motion and records

in the case contain sub-

stantial additional indi-

cations that petitioner’s

claim of coercion was

3. The unexplained delay of

more than twenty

months before institut-

ing the challenge to the

plea in itself casts fur-

thur doubt on the sub-

stantiality of petition-

er’s coercion claim. - - -

Il. Petitioner’s conclusory allegations that

he was mentally incompetent at the

time of his guilty plea did not require a

hearing

Cases:

mir

CITATIONS

:

Adams v. United States ex rel. McCann, 317

ERE Cee 2 ape r k Oeet an 36, 38

Arsenault v. Massachusetts, 393 U.S. 5_____- 36

Brady v. United States, 397 U.S. 742____- 22, 27, 36

Carnley v. Cochran, 369 U.S. 506__________- 36

Diamond vy. United States, 432 F. 2d 35______ 17

Ellis v. United States, 274 F. 2d 52____._____ 35

Gann v. Gough, 79 F. Supp. 912, reversed sub

nom. Hiatt vy. Gann, 170 ¥ . 2d 473, certiorari

GURNGE, Ge. We Sie oek neds cicia 35

Hartman v. United States, 310 F. 2d 447_____ 32

Hayes v. United States, 399 F. 2d 691________ 32

Haynes v. Washington, 373 U.S. 503_________ 20

Heiden v. United States, 353 F. 2d 53________ 16

Howard v. United States, 420 F. 2d 478______ 34

Johnson v. Zerbst, 304 U.S. 458_....__.___ __ 36

Lipscomb v. United States, 209 F. 2d 831,

certiorari denied, 347 U.S. 962__._..._. | 34

Lopez v. United States, 439 F. 2d 997________ 18

Lynott v. United States, 360 F. 2d 586, certi-

orari denied, 386 U.S.917_._._.._._._______ 17

Machibroda v. United States, 368 U.S. 487. 21, 22, 30

McCarthy v. United States, 394 U.S. 459_____ 16

McMann v. Richardson, 397 U.S. 759_______ 22

Oliver v. United States, 398 F.2d 353____.____ 32

Parker v. North Carolina, 397 U.S. 790______ 22, 31

Parker v. United States, 358 ¥ . 2d 50, certiorari

eam, O08 OE G06 is ceived du... .- 17

Pursley v. United States, 391 F.2d 224... —_- 17

Putnam v. United States, 337 F. 2d 313______ 17

Raines v. United States, 423 F.2d 526_.._____ 30

Reed v. United States, 441 F.2d 569... 18

Sanders v. United States, 373 U.S.1______ 32, 34, 35

Santobello v. New York, 404 U.S. 257

Smith v. United States, 223 F. 2d 750

Cases—Continued

Swepston v. United States, 289 F. 2d 166, pags

certiorari denied, 369 U.S. 812___....-..-- 17

United States v. Davis, 319 F. 2d 482__-__-- - 17, 22

United States v. Dougherty, decided June 30,

1972, rehearing denied October 26, 1972 (D.

C. Cle. Ho. BaRip at Mb ds Sel ecan 38

United States v. Hayman, 342 U.S. 205-_-__-_- 15

United States v. Lester, 328 F. 2d 971____--_- 17

United States v. McCarthy, 433 F. 2d 591___- 17,18

United States v. Orlando, 327 F . 2d. 185, certi-

orari denied, 379 U.S. 825. _._....--.._-- 30

United States v. Pallotta, 433 F. 2d 594_____- 18

United States v. Simpson, 436 F. 2d 162____-- 17, 19

United States v. Tateo, 214 F. Supp. 560____- 19

United States v. Thomas, 291 F. 2d 478____-_- 25

United States v. Tweedy, 419 F. 2d 192_____- 18, 19

United States ex rel. McGrath v. LaVallee, 319

Pe Aes see A eee 19

Walters v. Harris, 460 F. 2d 988___________- 17, 18

White v. Maryland, 373 U.S. 59__--.____--- 36

Statutes and rule:

SE Us So Bo eSed a eoees hs heels Ls 3

EO ae Gwe ek se soe Ae. 3

TE. UB eee eh see ek eee 39

PE UBA Bees datbtadsteleicc ci dlzc: passim

Rule 11, Fed: BR. Crem. Pioicci cc ccc lc.e 3,

11, 12, 13, 15, 16, 18, 20, 21, 23

Miscellaneous:

American Bar Association, Standards Relating

to Providing Defense Services (Approved

Dee, Seeeesh ieeds se re. 39

jn the Supreme Gourt of the Bnited States

OctoserR TERM, 1972

No. 71-6757

Davip X. FONTAINE, PETITIONER

v.

UNITED STATES OF AMERICA

N WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIROUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the district court (A. 30-31) is not

eported. The court of appeals wrote no opinion. Its

rder affirming the district court (A. 34) is not

eported.

JURISDICTION

The judgment of the court of appeals was entered

n April 21, 1972 (A. 2). The petition for a writ of

ertiorari was filed on June 1, 1972, and was granted

n November 6, 1972 (A. 35). The jurisdiction of this

ourt rests upon 28 U.S.C. 1254(1).

(1)

MN AIT. AF stent a eRe eae as

m i ll alae wee cal e Te I

QUESTIONS PRESENTED

_ 1. Whether petitioner is entitled to a hearing on his

self-serving and uncorroborated allegations in a mo-

tion to vacate his sentence under 28 U.S.C. 2255 that

he was coerced into pleading guilty, where he person-

ally represented to the court at arraignment that his

plea was not coerced and where neither the motion nor

the records in the case reveal any objective facts ex-

plaining why petitioner could not have been expected

to reveal the alleged coercion at the arraignment.

2. Whether, if petitioner’s allegations of coercion

are not barred by his responses at the arraignment, a

hearing was nevertheless properly denied on the

ground that his motion and the records in the case

conclusively show that he is entitled to no relief.

3. Whether the conclusory assertions in the motion

that petitioner lacked the mental competence to plead

guilty required a hearing.

4. Whether petitioner validly waived his right to

counsel; if so, whether his guilty plea was invalid

because it was entered after the waiver of counsel.

STATUTE AND RULE INVOLVED

28 U.S.C. 2255 provides in pertinent part:

A prisoner in custody under sentence of a

court established by Act of Congress claiming

the right to be released upon the ground that

the sentence was imposed in violation of the

Constitution or laws of the United States, * * *

or is otherwise subject to collateral attack, may

move the court which imposed the sentence to

vacate, set aside or correct the sentence.

* * * * *

i

SoS te Oo tft & @ oO

_ ——————

3

Unless the motion and the files and records of

the case conclusively show that the prisoner is

entitled to no relief, the court shall cause notice

thereof to be served upon the United States

attorney, grant a prompt hearing thereon, de-

termine the issues and make findings of fact

and conclusions of law with respect thereto.* * *

Rule 11, Fed. R. Crim. P., as amended February 28.

966 (effective July 1, 1966), provides in pertinent

part :

* * * The court may refuse to accept a plea

of guilty, and shall not accept such plea * * *

without first addressing the defendant person-

ally and determining that the plea is made vol-

untarily with understanding of the nature of

the charge and the consequences of the plea.

* * * The court shall not enter a judgment up-

on a plea of guilty unless it is satisfied that

there is a factual basis for the plea.

STATEMENT

In November 1969, petitioner pleaded guilty in the

Jnited States District Court for the Eastern District

f Michigan to a one-count information charging him

vith the armed robbery of a federally insured bank

n violation of 18 U.S.C. 2113(d). He was sentenced

0 20 years’ imprisonment, subject to the parole eligi-

ility provisions of 18 U.S.C. 4208(a)(2) (A. 8). In

\ugust 1971, petitioner filed pro se a motion under

8 U.S.C. 2255 to vacate his conviction and sentence

n the ground that his plea had not been voluntarily

nd competently entered (A. 1, 9-15). The district

ourt denied the motion without holding an eviden-

lary hearing (A. 30-31) and the court of appeals

firmed (A. 34). The files and record in the case, on

4

which the district court relied in denying the motion

summarily, show the following facts:

A. THE ARRAIGNMENT PROCEEDINGS

On November 13, 1969, petitioner, then 26 years

old, appeared before District Judge Fred W. Kaess

for arraignment on the information (A. 3, 16). An

Assistant United States Attorney told the court that

petitioner had been given a copy of the information,

had been advised of his rights to counsel and to grand

jury indictment, had signed waivers of both rights,

and had indicated that he intended to plead guilty

to the information (A. 3). The court explained to

petitioner his rights to indictment and to counsel;

petitioner confirmed that he was waiving both rights.’

1The colloquy between the court and petitioner with respect

to the waiver of rights was as follows (A. 4):

“The Court. The first thing of consequence is that you have

signed also a waiver of Grand Jury indictment which means

you are entitled to have this matter first submitted to a Grand

Jury and a determination made by that body and an indictment

returned first; do you understand that and the rights you have

thereunder? Anyway, that’s what you will get if you wanted

it to go to the Grand Jury.

Defendant Fonrarne. Yes.

The Courr. You have signed a waiver of that right. am I

right?

Defendant Fonrarne. Yes, sir.

The Court. In addition, you are entitled to be represented

by an attorney and, if you are without funds with which to

employ an attorney, the Court will appoint one for you. The

Court has here before it a waiver of assignment of an attorney.

Is it your wish to proceed here without an attorney?

Defendant Fonrarne. I guess so.

The Court. You have got to know so.

Defendant Fontaine. Yes, sir.”

5

The court then questioned petitioner personally to

determine whether he understood that he was charged

with armed bank robbery, whether he realized he was

subject to a possible maximum penalty of 25 years

in prison and a $10,000 fine, whether anyone had made

any promise of any kind with respect to his proposed

guilty plea or had threatened him, and whether he was

“knowingly and freely and voluntarily’”’ offering his

plea of guilty. Petitioner acknowledged that he under-

stood the charge and maximum penalties, stated that

no threats or promises had been made, and assured the

court that the was entering his plea voluntarily (A.

4-5). Petitioner specifically admitted that on October

8, 1969, he had held up at gunpoint the teller of the

Liberty State Bank in Hamtramck, Michigan, had

taken over $1,400, and had been aided and abetted in

the robbery by one Edward Gregory Lee (A. 5-6).

Petitioner thereupon asked the court to accept his

plea since he “never had a past record’’’ and since he

“got strung up on drugs and * * * started to make

some money”’ (A. 6). The court accepted the plea and

ordered the preparation of a presentence report

(tbid.).

B. THE SENTENCING PROCEEDINGS

Three months later, on February 13, 1970, petitioner

again appeared before Judge Kaess, this time for gen-

tencing (A. 7-8). The court noted that petitioner had

*In this Court, petitioner acknowledges that his denial of

a past record at the guilty plea hearing was incorrect and that

in fact he has a lengthy police record, including several convic-

tions (Pet. 11; Reply to Memorandum in Opposition, p. 4).

495-437—73—_2

6

waived his right to counsel at the time of his plea

and asked him whether he wished to proceed without

counsel during sentencing as well. Petitioner said he

did. Before the court imposed sentence, petitioner

asked for merey on the ground that he had been

“under the influence of drugs when this happened.”

He further represented to the court that since he liad

been in jail for five months, he believed he had kicked

the habit (A. 8).

C. THE SECTION 2255 PROCEEDINGS

1. THE MOTION TO VACATE

On August 6, 1971, almost 21 months after plead-

ing guilty, petitioner filed a pro se motion in the dis-

trict court under 28 U.S.C. 2255, seeking to vacate

and set aside his judgment of conviction and sentence

(A. 1, 9-15).° Petitioner alleged in the motion that on

the night of October 21, 1969 (some two weeks after

the bank robbery and 23 days prior to the entry of his

guilty plea), police officers broke into his home with-

out a search warrant or probable cause, frightened his

wife and children, knocked him momentarily uncon-

scious, dragged him in his underwear from his home,

and took him to the police station. At the police sta-

tion, petitioner continued in his allegations, he was

handcuffed to a chair and questioned about several

crimes; petitioner alleged that an officer named John

Crookshank struck him with fists and open hands,

called him a “nigger bastard,’’ and promised to beat

* The motion was sworn to by petitioner on July 20, 1971 (A.

12).

—

him to death if he did not cooperate. Petitioner fur-

ther alleged that “while befuddled, groggy, and in

mortal fear of his life [he] informed the police that

he would say anything they wanted him to say”

(A. 9-10).

Petitioner also alleged in his motion that the

“brutal treatment” by the police officers opened a

gunshot wound he had received a few days prior to

his arrest and caused the wound to bleed freely. Peti-

tioner asserted that, after blacking out a couple of

times and while in severe pain, he was refused a doc-

tor or a lawyer and was told that his head would be

bashed in if he did not cooperate. Petitioner asserted

that, while allegedly in fear of his life, he agreed to

cooperate, admitted committing various crimes the

police told him he had committed, and signed several

papers. He thereupon allegedly lost consciousness and

awoke while being admitted to the Detroit General

Hospital (A. 10).*

Petitioner further alleged in his motion that state

and federal officers interrogated him in the hospital

while he was “ill and mentally disturbed,” and coerced

him into pleading guilty to armed bank robbery in the

federal court by threatening that otherwise he would

be prosecuted in the state court and sentenced to life

* Petitioner alleged that the hospital records reflect that he

was admitted suffering from “Heroin addiction, serum hepati-

tis, gunshot wound in right abdomen, hematoma of the right

flank and a convulsive disorder” (A. 10). In fact, petitioner failed

to distinguish between the hospital records relating to his ad-

mission on the day of his arrest and the records relating to a

separate admission almost two months later (see pp. 9-10), infra).

i a i Ne a A RR I he la | eat Boas bo

—

imprisonment. The officers allegedly told petitioner

the details of the bank robbery—a crime petitioner

alleged he had no knowledge of committing (A. 10-

11).

Finally, petitioner alleged that he had a severe men-

tal problem, suffered from epilepsy, and had a “mental

trauma of major proportions’’ due to having been shot

in the head by the police when a teenager. His fear of

the police was allegedly so strong that he lived with

the constant belief that they would kill him if he did

not obey their every whim. It was this traumatic con-

dition that had led him to agree to plead guilty to a

bank robbery he allegedly had not committed. Peti-

tioner alleged that the police had so conditioned his

mind for the guilty plea hearing that he did not under-

stand the consequences of his guilty plea or of his

waivers of his rights to counsel and to be proceeded

against by way of indictment. He also claimed that,

because he only had a seventh grade education, he did

not understand the legal terms used by the court. Peti-

tioner concluded his motion by asserting that he was

mentally ill at the time of his arraignment and that

his guilty plea was a product of that illness (A. 11-

12).

2. THE HOSPITAL RECORDS

Petitioner attached as exhibits to his motion two dis-

charge summaries prepared by physicians relating to

separate periods during which petitioner was hospi-

talized in the Detroit General Hospital—the first

covering the period October 21-26, 1969 (beginning

the day of his arrest) and the second covering the pe-

mq

————,

9

riod from December 17, 1969, to January 6, 1970 (be-

ginning two months after the date of the arrest and

more than a month after petitioner’s guilty plea) (A.

16-20).° Petitioner also attached to his motion a letter

from a hospital in Florida relating to a two week pe-

riod of hospitalization in 1962 for treatment of a gun-

shot wound in the head (A. 21).

The October 21-26 period of hospitalization. The

discharge summary for petitioner’s first period of hos-

pitalization listed petitioner’s ailments as follows:

“Final Diagnosis: Hematoma, right lumbar region

abdominal wall. Secondary Diagnosis: Two-week-old

gunshot wound, abdominal wall” (A. 19). The sum-

mary stated that petitioner had been admitted with a

history of pain and superficial swelling in the abdom-

inal wall as a result of having been shot in the abdo-

men two weeks before. A physical examination of

petitioner had revealed ‘‘very superficial swelling in

the abdominal wall” and that the rest of petitioner’s

system was “absolutely normal.” The summary con-

cluded by noting that petitioner was being discharged

in good condition, to be treated further in the Clinie

(A. 19-20).

* Because only the second of the discharge summaries w.s

included by petitioner in the appendix to the petition for a

writ of certiorari and that summary makes no reference td the

first admission, we were unaware of the first admission when

we filed our Memorandum in Opposition to certiorari and mis-

takenly stated therein that the hospital records showed that

petitioner was not admitted to the hospital until December 17.

1969 (p. 2, n. 2). Petitioner clarified the matter in his Reply

Memorandum (p. 2).

—— PSE ET ILL Ae I HAL SIY ENE LRN ATR OE MUO TT TM NN RET

10

The December 17 to January 6 period of hospitali-

zation. The discharge summary for this period of hos-

pitalization listed petitioner’s ailments, as finally diag-

nosed, as heroin addiction, serum hepatitis, old gun-

shot wound in the abdomen and convulsive disorder

(A. 16). The summary stated that petitioner had been

a known heroin addict for two years, had been in jail

without access to heroin for approximately one and

one-half months prior to his admission, and was ad-

mitted complaining of dark urine, vomiting and other

serious discomforts which had begun approximately

one week before. The report also mentioned peti-

tioner’s continued complaints concerning the abdomi-

nal gunshot wound he had received two weeks prior

to his arrest and referred to a previous gunshot wound

he had receive.’ in the head in 1962, Petitioner report-

edly had suffered from persistent headaches and “epi-

sodes of seizures”’ since the 1962 shooting (A. 16-17).

The discharge summary indicated that petitioner had

improved steadily while in the hospital after treatment

for a urinary tract infection, that a neurological exam-

ination showed no neurological deficit, and that he had

been discharged in satisfactory condition (A. 17-18).

The 1962 Florida hospital record. The \etter from

the Florida hospital discloses that petitioner’ was

*In other words, the deterioration of petitioner's condition

which led to his second period of hospitalization became mani-

fest about December 10, 1969, or nearly four weeks after he had

pleaded guilty to armed bank robbery.

* The letter refers to “Hubert Fountain, Jr.,” apparently an

alins used by petitioner.

11

admitted to the hospital in 1962, when he was about

19 years old, after being shot by the police while try-

ing to avoid arrest. The letter reports that surgery was

necessary to remove a bullet which had entered the

head at the floor of the mouth and had lodged in the

frontal sinus. Petitioner was “discharged as improved,

with a prognosis of good”’ (A. 21).

3. THE DECISIONS BELOW

With the foregoing facts before it, the district court

denied petitioner’s motion without a hearing, holding

that *‘[a] review of the entire record * * * fails to

substantiate [petitioner’s] claims” (A. 30). The court

noted that the record showed that petitioner had de-

clined the assistance of counsel prior to the acceptance

of his guilty plea and that he had been questioned on

the voluntariness of his plea in full compliance with

Rule 11 of the Federal Rules of Criminal Procedure

(A, 30-31). The court held that under these circum-

stances, petitioner “cannot now be heard to collater-

ally attack the record and deny what was said in open

court’ (A, 31).

On appeal, the Sixth Circuit affirmed on the ground

that the district court had fully complied with Rule

11 at the guilty plea hearing (A. 34).

SUMMARY OF ARGUMENT

A

1. Petitioner’s motion under 28 U.S.C. 2255 attacks

the validity of his guilty plea on the ground that it was

coerced, Under Section 2255, he was entitled to a hear-

—EEE

ing on the allegations in his motion, “{u )nless the motion

and the files and records of the case conclusively show

that [he] is entitled to no relief.’’ It is our position

that where, as here, a guilty plea hearing is conducted

in compliance with Rule 11 of the Federal Rules of

Criminal Procedure and a defendant expressly repre-

sents in open court that his guilty plea is not the result

of threats, promises, or coercion, the defendant may

not ordinarily repudiate that representation through

unecorroborated allegations in a Section 2255 motion

that his plea was not in fact voluntary. In such situa-

tions, we submit, the motion and record “conclusively

show,” within the meaning of Section 2255, that the

defendant is entitled to no relief.

We acknowledge that under some circumstances a

defendant’s representations of voluntariness at the

time he pleads guilty should not be binding. If the de-

fendant was mentally incompetent at the time of his

plea or if he was specifically warned by the prosecutor

not to disclose a promise of leniency to the court, he

should not be foreclosed from challenging his plea in

a later Section 2255 motion. But where it does not ap-

pear from allegations of objective facts in a motion to

vacate or from the records in a case that the defendant

could not reasonably have been expected to disclose

alleged promises or threats at his guilty plea hearing,

his responses at that hearing should be binding.

2. Neither petitioner’s motion nor the records in this

case allege or disclose objective facts explaining why

he could not have been expected to disclose at the plea

13

hearing any alleged threats and coercion of the police

some three weeks before. The subjective assertions

that the police had “conditioned his mind’’ for the plea

proceedings and that he lived in constant fear of the

police totally lack the necessary specificity to free

petitioner from the binding effect of his unequivocal

representations to the court at the plea proceeding that

he was acting voluntarily.

3. Even if petitioner is not bound by his represen-

tations to Judge Kaess at the guilty plea hearing, sev-

eral factors appearing in the motion and transcripts

of the plea and sentencing proceedings “conclusively

show,’’ in the aggregate, that he is entitled to no re-

lief. First, the district court was entitled to reject

petitioner’s claim that he was innocent—a claim that

was central to the allegation that he was coerced into

pleading guilty to a crime he did not commit. Second,

the medical report offered by petitioner relating to his

period of hospitalization beginning on the day of his

arrest does not support his allegation that the police

treated him brutally on that day and caused an old

gunshot wound to tear open and bleed freely. Third,

the hospital records show that petitioner’s claims that

he was suffering from “severe illnesses’”’ at the time of

his arrest and during his initial period of hospitaliza-

tion were significantly exaggerated. Fourth, the trans-

seript of the plea proceeding belies petitioner’s conten-

tion that he did not understand the terms used by the

court in addressing him personally in compliance with

Rule 11. Fifth, the court could properly take into ac-

494-447 —74-—-4

14

count the unexplained delay of more than twenty

months between the guilty plea hearing and petition-

er’s submission of the Section 2255 motion challenging

the validity of his plea. Taken in the aggregate, these

factors conclusively show that petitioner’s claim of

coercion was insubstantial and was properly denied

without a hearing.

B

Petitioner also alleged in his motion to vacate that

his guilty plea was the product of mental illness. This

contention was also properly rejected without a hear-

ing. The allegations in support uf the mental illness

claim were either conclusory or irrelevant, failing to

specify instances of past aberrational conduct which

would support the claim. Moreover, the hospital rec-

ords tendered by petitioner rebutted any contention

that a prior gunshot wound in the head or any of

his other illnesses had rendered him mentally incom-

petent at the time he pleaded guilty.

C

Contrary to petitioner’s contention, the record shows

that he voluntarily and knowingly waived counsel

at the guilty plea hearing. Furthermore, sound reasons

of policy and practicality warrant rejection of peti-

tioner’s alternative argument that the Court, in decid-

ing this case, should promulgate a rule—not required

by the Constitution—forbidding the entry of guilty

pleas in federal courts unless the defendant has a

lawyer.

PETITIONER’S CLAIM THAT HIS GUILTY PLEA WAS COERCED

WAS PROPERLY DENIED WITHOUT A HEARING

A. AS A GENERAL RULE, A DEFENDANT WHO PERSONALLY REPRESENTS

TO THE COURT AT THE TIME HE PLEADS GUILTY THAT HE 18 MAK-

ING HIS PLEA VOLUNTARILY 18 NOT LATER ENTITLED TO A HEARING

ON HIS SELF-SERVING AND UNCORROBORATED ALLEGATION THAT 1118

PLEA WAS, IN FACT, COERCED

1, Under 28 U.S.C. 2255, a federal prisoner may at

any time file a motion in the court which imposed his

sentence, seeking to vacate, set aside or correct the

sentence on the grounds “that the sentence was im-

posed in violation of the Constitution or laws of the

United States * * * or is otherwise subject to collateral

attack.’’ The statute directs the court to hold a hear-

ing on such a motion “[uJnless the motion and the

files and records of the case conclusively show that the

prisoner is entitled to no relief.’’*

The right to a hearing on allegations made in a Sec-

tion 2255 motion attacking the validity of a guilty plea

must be considered in the light of Rule 11 of the Fed-

eral Rules of Criminal] Procedure. Under that rule, a

district court may not accept a guilty plea “without

first addressing the defendant personally and de-

termining that the plea is made voluntarily with un-

derstanding of the nature of the charge and the con-

sequences of the plea.” In addition, the court must be

* For a discussion of the legislative history of Section 2255, see

United Statics v. Hayman, 342 U.S. 205, 210-219.

aa...

satisfied that there is a factual basis for the plea. The

direct relationship between compliance with Rule 11

and resolution of a later collateral attack on the volun-

tariness of a guilty plea has been recognized by this

Court. In McCarthy v. United States, 394 U.S. 459,

465, the Court noted that Rule 11

* * * is intended to produce a complete record

at the time the plea is entered of the factors

relevant to [the] voluntariness determination.

Thus, the more meticulously the Rule is adhered

to, the more it tends to discourage, or at least

to enable more expeditious dispositions of, the

numerous and often frivolous post-conviction

attacks on the constitutional validity of guilty

pleas.

Of particular relevance here, the Court went on to

state (394 U.S. at 469-470) :

Rule 11 is designed to eliminate any need to re-

sort to a later fact-finding proceeding “in this

highly subjective area.” Heiden v. United

States, [353 F. 2d 53, 55 (C.A. 9)]. The Rule

“contemplates that disputes as to the under-

standing of the defendant and the voluntariness

of his action are to be eliminated at the outset

tediatn ae |

While we do not contend that compliance with

Rule 11 automatically eliminates the need for later

fact-finding proceedings in every instance, we do

submit that as a general rule a defendant’s explicit

representation in open court that his guilty plea is

not coerced by any threats or promises and is freely

and voluntarily entered “conclusively shows,”’ within

the meaning of Section 2255, that the plea was

5]

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17

voluntary despite later uncorroborated allegations in

a Section 2255 motion that the plea was not in fact

voluntary.’ The basic rationale for this position is

that, except under unusual circumstances, a defend-

ant should not be permitted by unsupported allega-

tions to contradict the representations he personally

made in open court at the time he entered his plea.

See United States v. Davis, 319 F. 2d 482, 484 (C.A.

6); cf. Lynott v. United States, 360 F.2d 586, 588

(C.A. 3), certiorari denied, 386 U.S. 917.

There are, of course, circumstances under which a

defendant’s representations at a guilty plea hearing

should not foreclose him from later attacking the

voluntariness of his plea in a motion under Section

2255. The appropriate inquiry, in our view, should be

whether it appears from allegations of objective

facts in the Section 2255 motion or from the records

in the case that the defendant could reasonably have

been expected to disclose the alleged promises,

threats or other impediments in response to the

° Most of the courts of appeals have followed this general

rule. See, ¢.g., Pursley v. United States, 391 F.2d 224 (C.A. 5);

Lynott v. United States, 360 F.2d 586 (C.A. 3), certiorari de-

nied, 386 U.S. 917; Parker v. United States, 358 F.2d 50 (C.A.

7), certiorari denied, 386 U.S. 916; Putnam v. United States,

937 F.2d 313 (C.A. 10): United States y. Lester, 328 F.2d 971

(C.A. 2); United States v. Davis, 319 F.2d 482 (C.A., 6):

Swepston v. United States, 289 F.2d 166 (C.A. 8), certiorari

lenied, 369 U.S. 812. Other courts have required a hearing on

1 defendant’s allegations made in a motion under Section 2255

sontradicting his prior representations at arraignment. See, ¢.g.,

Walters v. Harris, 460 F.2d 988, 991-993 (C.A. 4); United

States v. Simpson, 436 F.2d 162 (C.A.D.C.); United States v.

McCarthy, 453 F.2d 591 (C.A. 1); Diamond vy. United States.

32 F.2d 35 (C.A. 9).

18

judge’s personal inquiries under Rule 11 at the guilty

plea hearing. If he could not reasonably have been

expected to disclose these factors, then he should

not be foreclosed from asserting them in a later

collateral attack on his conviction.

The most obvious situation in which a defendant’s

responses at a guilty plea hearing would not “con-

clusively” dispose of later collateral attacks on the

voluntariness of the plea would be where it later

appears that the defendant may have been mentally

incompetent at the time of the guilty plea hearing.”

If he were in fact incompetent, he was legally in-

capable of admitting his guilt at the hearing.

Another example of a situation where a defendant

would not be foreclosed from collaterally attacking his

own prior representations at a guilty plea hearing

might be where it is alleged in a Section 2255 motion

that the guilty plea was induced by a promise of leni-

ency made by the prosecutor who expressly or im-

pliedly instructed the defendant not to disclose the

promise to the court.” In such a situation, as the First

Circuit observed in United States v. McCarthy, 433

‘© We show at pages 31-35, infra, that petitioner's allegations

in his Section 2255 motion that he was mentally incompetent

at the time of his plea do not require a hearing and that there is

no reason to suspect he was actually incompetent at the time of

his plea.

™ See Walters v. Harris, 460 F.2d 988, 991-993 (C.A. 4);

United States v. McCarthy, 433 F.2d 591 (C.A. 1); United

States vy. Pallotta, 433 F.2d 594 (C.A. 1); United States vy.

Tweedy, 419 F.2d 192, 193 (C.A. 9); see also Reed v. United

States, 441 F.2d 569 (C.A. 9) (alleged promise by defense coun-

sel) ; Lopez v. United States, 439 F.2d 997 (C.A. 9) (same). Cf.

Nantobello vy. New York, 404 U.S. 257.

‘ 19

F. 2d 591, 593, “most defendants would be expected to

deny any impropriety during the Rule 11 hearing.”’ Or,

as the Ninth Circuit noted in United States v. Tweedy,

419 F. 2d 192, 193, “a defendant might solemnly affirm

to the court that his plea had not been induced by

promises of leniency because he thought that this

was all part of the game, and that honest answers

would destroy the deal.” Similarly, if a threat or

promise is alleged to have been made off the record

by the court itself at a guilty plea hearing, a hearing

on the allegations might be necessary. Cf. United

States v. Simpson, 436 F. 2d 162 (C.A.D.C.) (prom-

ise); United States v. Tateo, 214 F. Supp. 560 (S.D.

N.Y.) (threat); and see United States ex rel. Mc-

Grath v. LaVallee, 319 F. 2d 308 (C.A. 2) (threat by

state trial judge). For here, too, the record of thie

guilty plea hearing, though ‘‘undeniably of highest

significance in any testing of the merit of the allega-

tions,” is—according to the allegations—‘‘itself the

product of a distortion deliberately wrought” (United

States v. Simpson, supra, 436 F'. 2d at 165). The above

examples illustrate the type of situations in which

defendants’ disclaimers might properly be viewed as

“evidential on the issue of voluntariness,*** not con-

elusive.” United States ex rel. McGrath vy. LaVallee,

supra, 319 F. 2d at 314.

Where extenuating circumstances of the type de-

scribed are not apparent on the face of a Section 2255

motion or the records of the case, however, the inter-

ests of justice are not served by permitting a defend-

ant to disavow through self-serving and uncorrobo-

rae ait ae ale ie oieisnanes

Tae ee poe

20

rated allegations his personal representations to the

court at the time of his plea. For in such situations, -

the personal judicial inquiries required by Rule 11

provide the defendant with an adequate opportunity

to expose possible coercive tactics used against him;

his failure to take advantage of that opportunity and

his explicit disclaimer of the existence of any threats

or promises should foreclose later collateral attacks on

the voluntariness of his plea. In the terms of Section

2255, the motion and the arraignment record in such a

situation “conclusively show that the prisoner is en-

titled to no relief” and thus no hearing on the allega-

tions in the motion is required.

2. In arguing that the arraignment record in this

ease should not be given conclusive effect, petitioner

relies on this Court’s decision in Haynes v. Washing-

ton, 373 U.S. 503, denying conclusive effect to expres-

sions of voluntariness in allegedly coerced confessions

(Br. 27-28). As the Court pointed out in Haynes,

“fejommon sense dictates the conclusion that if the

authorities were successful in compelling the totally

incriminating confession of guilt, the very issue for

determination, they would have little, if any, trouble

securing the self-contained concession of voluntari-

ness” (373 U.S. at 513). But the suggested analogy

between a “‘self-contained concession of voluntariness”

in an out-of-court confession claimed to have been

coerced and an accused’s representation to the court

that no threat induced his guilty plea is false. In the

confession case, the concession of voluntariness is

made at the instance of the very authorities whose

——

—

21

allegedly coercive tactics produced the challenged con-

fession in which the representation of voluntariness

is contained. In the arraignment situation, the ac-

knowledgement is made to the district judge, the

arbiter of the plea’s acceptability, in response to in-

quiries expressly designed to discover whether any

such overreaching occurred. The proceedings are

conducted, moreover, in a locale—the courtroom—

removed in time and space from any coercive in-

fluences that might have affected prior proceedings.”

In short, in most situations it is reasonable to require

the defendant to answer the court’s Rule 11 inquiries

truthfully and to be bound by his answers.

Nor, contrary to petitioner’s further assertion (Br.

21-24), does our position here conflict with this Court’s

decision in Machibroda v. United States, 368 U.S. 487.

In that case, the defendant alleged in a Section 2255

motion that he had pleaded guilty to two informations

in reliance on a promise by the prosecutor, said to

have been cleared with the court, that he would not be

sentenced to more than twenty years’ imprisonment ;

the defendant was also allegedly warned by the pros-

ecutor not to disclose the promise to his lawyer (368

U.S. at 489). Following the defendant’s guilty pleas,

*? A question not presented by this case is whether the exception

to the general rule, that representations of voluntariness at

plea proceedings should be conclusive, would apply where the

guilty plea hearing took place within two or three days of

alleged police coercion and where the coercion allegedly in-

cluded an express warning to the defendant not to disclose

the threats to the court. See Smith v. United States, 223 F. 2d 750

(C.A. 5).

NS OU LIS et

i ie, ,

the court had imposed consecutive sentences totaling

40 years. This Court concluded that the files and

records did not conclusively show that the allegations

in the Section 2255 motion were unfounded and held

that a hearing was required. Machibroda is not con-

trolling here for two distinct reasons. First, the trial

judge in Machibroda had accepted the guilty pleas

without questioning the defendant whether the pleas

had been induced by threats or promises—indeed, the

record in that case shows that no meaningful in-

quiries had been made of the defendant at all.** In

other words, as the Sixth Circuit observed in Un ited

States v. Davis, supra, in distinguishing Machibroda,

the accused had “made no representations to the

Court about the nature of his plea” which he “later

repudiated” in a Section 2255 motion (319 F. 2d at .

485). Second, and equally important, the promise

claimed to have been made in Machibroda was the type

of promise which the defendant might reasonably have

been expected not to disclose at his guilty plea

hearing.“

18 See pp. 39-41 of the transcript of the arraignment proceed-

ings in Machibroda, set forth in United States v. Davis, supra,

319 F.2d at 485, n. 1. Although petitioner asserts that Machi-

broda had admitted at arraignment that his pleas were volun-

tary (Br. 21), the transcript shows only that Machibroda answered

affirmatively to the court’s inquiry whether it was his “desire” to

plead guilty.

14 Petitioner discusses at length (Br. 31-36) this Court’s deci-

sions in Brady v. United States, 397 U.S. 742, McMann v. Rich-

ardson, 397 U.S. 759, and Parker v. North Carolina, 397 U.S.

790, in connection with his assertion that a hearing on allega-

tions in a Section 2255 motion is especially appropriate where

the defendant was not represented by counsel at the guilty plea

a

23

B. PETITIONER IS BOUND BY HIS IN-COURT REPRESENTATION ‘THAT HIS

GUILTY PLEA WAS NOY COERCED

The substance of petitioner’s allegations in his mo-

tion to vacate is that the police coerced him into sign-

ing false written confessions to several crimes through

physical mistreatment at the police station following

his arrest, and induced him during his ensuing six-day

confinement at the Detroit General Hospital to plead

guilty to federal armed bank robbery by threatening

that, if he did not so plead, he would be prosecuted in

a Michigan state court and sentenced to life imprison-

ment (A. 9-11).” Yet 18 days following petitioner’s

discharge from the hospital and over three weeks after

the alleged coercion at the police station, petitioner

represented in open court in response to straightfor-

ward questions by the district court in full compliance

with Rule 11 that no promises of any kind had been

made to him, that no one had threatened him and that

he was knowingly, freely and voluntarily pleading

hearing. In those cases, however, the issue was whether guilty

pleas could be collaterally attacked as involuntary on the ground

that they were prompted by possibly mistaken tactical judg-

ments of counsel (for example, the desire to avoid the impact of

a penalty scheme later found to be unconstitutional or to avoid

the effect of earlier allegedly coerced confessions which might

have been inadmissible at trial). In each case, this Court held

that counsel’s misapprehension of the legality of the penalty

scheme or the admissibility of the confessions did not render the

pleas involuntary where the defendants were represented by

generally competent counsel. The cases have little bearing on the

instant question: whether a defendant may disavow an assertion

of fact made at the time of his guilty plea.

** Petitioner's assertion in his motion that he was mentally in-

competent at the time of his plea is analyzed at pp. 31-35, infra.

ees

Wien POR ERE PETALS ENTREE DAE ER

guilty (A. 4-5). Sinee neither petitioner's motion nor

the records in this case allege or disclose objective facts

explaining why he could not have been expected to

disclose the threats or coercion at the plea hearing, we

submit that he is not now entitled to a hearing on his

uncorroborated allegations of coercion.

Petitioner does season his allegations concerning his

arrest and interrogation in the police station and hos-

pital with some specificity. But his attempt to explain

why he failed to disclose these matters at the time of

the plea consists of the subjective and conclusory as-

sertions that the police had “conditioned his mind” for

the plea proceedings and that he did not understand

the consequences of his waivers of counsel and indict-

ment and of his guilty plea.” The latter assertions are

belied by the transcript of the guilty plea hearing,

which discloses specific acknowledgements by peti-

tioner that he fully understood the nature of the pro-

ceedings and the consequences of his waivers and

guilty plea.

* Petitioner also alleged that his constant fear of the police

led him to agree to plead guilty (A. 11). While it is possible,

of course, that an accused's fear of the police could be sufli-

ciently strong to cause him to! in open court in anticipation

of what the police might do to him after the arraignment if

he disclosed their coercive measures, this speculation does not

warrant a hearing here since (1) the separation of time le-

tween the alleged coercion and the arraignment greatly reduces

the chances that he was still acting out of fear at the arraign-

ment, (2) the alleged mistreatment at his arrest and station-

house interrogation took place at the hands of the local police

whereas he would know that after his plea of guilty to a fedl-

eral crime he would in all likelihood be in federal custody, and

(3) the allegations of fear are generalized and apparently p,o

forma.

The assertion that the police had “conditioned his

mind” is purely subjective and fails to set forth objec-

tive facts explaining why he could not have been ex-

pected to tell the truth in open court almost three

weeks after the alleged coercion. There are no allega-

tions that the police continued to coerce him while he

was awaiting arraignment and no allegations that the

police expressly warned him not to disclose their as-

sertedly coercive tactics to the court. Compare Smith

v. United States, supra (discussed in note 12, supra).

In short, under all the circumstances, ‘petitioner’s

representations in tendering his guilty plea foreclose

him from reopening the question of the voluntariness

of the plea by uncorroborated allegations.

C. EVEN IF PETITIONER 16 NOT BOUND BY HIA REPRESENTATIONS AT

TUE PLEA WEARING, IK RPCTION 2255 MOTION AND THE RROCORDS

IN THIS CASE CONCLUSIVELY SHOW THAT HE 16 ENTITLED TO NO

RELAY

In the event the Court disagrees with our foregoing

submission that petitioner is bound by his representa-

tions to Judge Kaess at the guilty plea hearing, an

examination of his motion and attachments and the

transcripts of the guilty plea hearing and his sen-

tencing “conclusively show that [he] is entitled to no

relief,” within the meaning of 28 U.S.C. 2255, and

thus was not entitled to a hearing. While we do’ not

maintain that any individual factor discussed below

is conclusive, we do submit that, considered in the

aggregate, they fully justified the denial of a hearing

by the same district judge who presided over peti-

tioner’s arraignment, plea, and sentencing. Cf. United

States v. Thomas, 291 F.2d 478, 481 (C.A. 6).

1. The District Court could readily conclude from the records in

the case that petitioner's claim that he was innocent was un-

founded

One of the central allegations in petitioner’s motion

to vacate is that he did not in fact commit the offense

for which he was charged, but was coerced into plead-

ing guilty after the police told him that he and another

man had robbed the bank (A. 11). While a coerced

guilty plea is invalid whether or not the defendant is

actually guilty, petitioner’s allegations of innocence

and coercion are so interrelated that a showing that

he was in fact guilty would seriously impugn the

substantiality of his coercion claim. The records in

this case conclusively rebut petitioner’s claim of

innocence.

When he entered his guilty plea, petitioner specifi-

cally acknowledged the details of the bank robbery

(A. 5-6). While he alleged in his motion that these

details were provided by the police (A. 11), he does

not explain his further statement to Judge Kaess at

arraignment, in apparent explanation of his crime,

that “I got strung up on drugs and I started to make

some money” (A. 6). In addition to his admissions at

arraignment, petitioner stated three months later at

his sentencing—again suggesting mitigating circum-

stances—“I was under the influence of drugs when

this happened’ (A. 8; emphasis added). In other

words, nearly four months after the allegedly coercive

conduct of the police, petitioner made a plea for

mercy which contained an open admission that he had

27

mmitted the crime with which he was charged. Con-

stently with his approach at the time he offered his

lilty plea, petitioner sought—not to exonerate him-

lf as the victim of a police plot—but to offer ex-

ses for the crime he admittedly committed. Under

ese circumstances, petitioner’s claim of innocence in

s Section 2255 motion could properly be disregarded

- Judge Kaess. There is “no reason to doubt that his

lemn admission of guilt [at the guilty plea hearing]

as truthful.’’ Brady v. United States,397 U.S. 742, 758.

The motion and records in the case contain substantial addi-

tional indications that petitioner's claim of coercion was insub-

stantial

The hospital records attached to petitioner’s motion

fute many of his allegations of coercion; the ar-

ignment transcript refutes others. Taken together,

ese factors give substantial support to the district

urt’s summary denial of petitioner’s motion.

a. Petitioner alleged in his motion that the brutal

eatment allegedly given him by the police following

s arrest had torn open a gunshot wound he had sus-

ined earlier, causing it to bleed freely (A. 10). The

yspital discharge summary for the period of hospital-

ation beginning on the day of his rrest, however,

akes no reference to any recent bleeding from the

mshot wound (A. 19-20). The summary does discuss

two-week old gunshot wound in detail, but discloses

mply that petitioner was admitted with a history of

‘pain and with “a very superficial swelling” in his ab-

dominal wall (A. 19).”

6. An integral part of petitioner’s claim of coercion

is that he was suffering from a number of ‘‘severe

illnesses” at the time the alleged threats were made

(A. 11). In support of this claim, petitioner made the

assertion in his motion that the hospital records show

that he was admitted to the hospital on the date of

his arrest suffering from “Heroin addiction, serum

hepatitis, gunshot wound in right abdomen, hematoma

of the right flank and a convulsive disorder” (A. 10).

In fact, however, petitioner was in the hospital twice,

and this compilation of ailments combined the afflic-

tions listed in the discharge summaries relating to

both of his confinements (A. 16, 19).

References to heroin addiction, serum hepatitis and

a convulsive disorder are contained only in the dis-

charge summary relating to the period of hopitaliza-

tion from December 17, 1969, to January 7, 1970, be-

ginning over a month after his plea. The vomiting

and other serious discomforts leading to that period

of hospitalization had begun only a week before his

admission or at least three weeks after he had pleaded

guilty. While this second discharge summary does in-

dicate that petitioner had been a known heroin addict

* Petitioner also alleged in his motion that he regained con-

sciousness from the last of several blackouts suffered during the

alleged police brutality as he was being admitted to the hos-

pital (A. 10). We point out that the hospital record contains

no support whatever for any suggested implication that his

hospitalization might have been necessitated by the alleged po-

lice misconduct.

SS eh. 2 oe eee’ ee me

te

for two years and had been suffering headaches and

seizures for seven years (A. 16), it is, of course, the

irst period of hospitalization, beginning on the day

of petitioner’s arrest, which is of major relevance to

iis claim of coercion. The discharge summary for the

irst period of hospitalization does not refer to these

onditions. The summary describes petitioner’s condi-

ion as “absolutely normal,’’ apart from the superfi-

ial swelling from the gunshot wound, and states that

ie had been discharged in “good condition’? (A. 19-

hg

Thus the “severe illnesses’ petitioner claimed to

lave been suffering from at the time of his arrest

nd during his initial hospitalization and which al-

egedly led him to succumb to the alleged threats were

ignificantly exaggerated. This fact appeared from

he face of the motion and the attached exhibits and

ould properly have been considered by the district

ourt in appraising the credibility of the coercion

laim itself.

ce. Petitioner alleged in his motion that the legal

erms used by the court at the guilty plea hearing

vere ‘‘complete jargon” to him, “beyond his sphere of

omprehension” (A. 11-12). The record shows, how-

ver, that the court in the main used such simple terms

s “ ” “robbery,”’ “armed,”’ “gun,” “held up,”

teller,” “‘promise” and “threatened’’ and that peti-

ioner’s answers to the questions using these terms

* According to the report of the later hospitalization, apart

rom @ urinary tract infection, all other tests, including a

eurological examination, were negative.

30

were coherent and responsive (A. 4-6). Judge Kaess,

who had been in a position to appraise petitioner’s

understanding of the proceedings, could properly have

concluded that petitioner’s claim of a lack of compre-

hension was specious and was conclusively refuted by

the record.

d. Finally, the district court was entitled to reject

outright petitioner’s incredible statement that, despite

his alleged innocence, the police had convinced him he

was a ‘‘bona fide bank robber”’ (A. 11).

3. The unexplained delay of move than twenty months before in-

stituting the challenge to the plea in itself casts further doubt

on the substantiality of petitioner's coercion claim

The motion to vacate was sworn to on July 20,

1971—more than 20 months after the guilty plea was

entered and over 17 months after sentence was im-

posed (A. 3, 8, 12). No explanation for the delay

was offered in the motion, with the possible exception

of the conclusory and subjective references to peti-

tioner’s alleged traumatic fear of the police (A. 11).

This delay in instituting the challenge to the allegedly

coerced plea in itself renders the allegations in the

motion suspect. Cf. Raines v. United States, 423 F. 2d

526, 531 (C.A. 4); United States v. Orlando, 327 F.

2d 185, 188-189 (C.A. 6), certiorari denied, 379 U.S.

825. This Court’s decision in Machibroda v. United

States, supra, does not stand for the contrary proposi-

tion that unexplained delays in seeking collateral relief

should be ignored. While the motion to vacate in that

case was not filed until nearly three years after the

ROMRGI ERR

~~ *a — sts het) |6COUk Bas aia

— «4

a

31

yuilty plea, the defendant attempted to explain the

lelay by alleging that he had written unanswered

etters to the court and the Attorney General in the

nterim referring to his claims (368 U.S. at 490). This

Yourt implied that the delay might indeed be signifi-

ant in appraising the credibility of the substantive

legations by suggesting that the district court on

mand might inquire whether the sending of such

etters could be substantiated (368 U.S. at 495).

In summary, the above factors taken in the ag-

rregate conclusively show that petitioner’s claim that

\is plea was coerced is insubstantial and was properly

lenied without a hearing. Just as this Court concluded

n Parker v. North Carolina, 397 U.S. 790, 796,

n rejecting the claim that a guilty plea was the prod-

ict of “allegedly coercive interrogation” several weeks

arlier, this record reveals that ‘‘the guilty plea was

' * * [petitioner’s] free and voluntary act, the product

if his own choice, just as he affirmed it was when the

lea was entered in open court.”

II

ETITIONER’S CONCLUSORY ALLEGATIONS THAT HE WAS

MENTALLY INCOMPETENT AT THE TIME OF HIS GUILTY

PLEA DID NOT REQUIRE A HEARING

In addition to his primary claim that his guilty

jlea was coerced, peticioner alleged at the end of his

section 2255 motion, almost as an afterthought, that

ie was ‘‘mentally ill” at the time of his arraignment

ind that his guilty plea was “a product” of that ill-

less (A. 12). Petitioner also alleged that he ‘‘has a

32

severe mental problem and that he suffers from epi

lepsy and a mental trauma of major proportions du

to his having been shot in the head by the polic

when he was a teenager” (A. 11), although the contex

of these allegations suggests they were intended t

support the principal claim of coercion. Even if con

strued as part of petitioner’s assertion of mental in

competence at the guilty plea hearing, however, th

allegations are insufficient to entitle petitioner to ;

hearing on that assertion, since the references to :

“severe mental problem” and major “mental trauma’

are wholly conclusory and since proof that petitione

was an epileptic would not, without more, establish :

claim of mental incompetence.

Where a motion under Section 2255 alleges onl;

*‘hald legal conclusions,” the motion may properly b

denied without a hearing. Sanders v. United States

373 U.S. 1, 19; Hayes v. United States, 399 F. 2d 69

(C.A. 5); Oliver v. United States, 398 F. 2d 353, 35:

(C.A. 9); Hartman v. United States, 310 F. 2d 44

(C.A. 6). As the Fifth Circuit held in Hayes, a See

tion 2255 motion alleging mental incompetence at th

time of plea may be summarily denied in the absence

of assertions of “‘specific facts regarding the claime

prior mental history, background, or incidents o

aberration to support the conelusory allegations * * *

(399 F. 2d at 691). Contrary to petitioner’s assertio1

(Br. 30, n. 16), the hospital records attached to hi

motion do not satisfy the requirement of specificity

The letter from the Florida hospital describes pe

titioner’s 1962 head wound which allegedly had le

33

to the “mental trauma” referred to in the motion. The

letter indicates that the bullet causing the wound had

entered the head at the floor of petitioner’s mouth,

had fractured his skull and several bones and had

lodged in his frontal sinus. The letter does not refer

to brain damage, however, and notes that petitioner

had been “discharged as improved, with a prognosis

of good” after only two weeks of hospital care (A.

21). The second of the two Detroit hospital discharge

summaries refers to petitioner’s 1962 wound and re-

ports that he claimed to have had ‘“‘persistent head-

ache and episodes of seizures” since the incident, but

does not mention any mental impairment other than

the seizures (A. 16). On the contrary, that report—

which petitioner annexed to his motion—stated that

he had been subjected to neurological examination and

that the examination ‘‘showed no neurological deficit”

(A. 17).

Petitioner also states in his brief that the second

discharge summary “confirms that [he] had been in

jail continuously after his arrest and had been experi-

encing heroin withdrawal symptoms”’ (Br. 30). While

the discharge summary does not identify petitioner’s

symptoms as stemming from heroin withdrawal,” it

lists heroin addiction as one of his ailments and notes

that he had not received any heroin since his arrest

(A. 16). Thus, the record does indicate that petitioner

might have been addicted when he pleaded guilty on

* The summary notes that the vomiting, dark urine, fever and

other discomforts had begun about one week before petitioner’s

admission to the hospital on December 17, 1969. Petitioner was

treated for a urinary tract infection.

34

November 13, 1969, even though it appears he had

then been off heroin since his arrest 23 days before.”

Petitioner does not appear to argue that his possible

addiction at the time of his guilty plea in itself ren-

dered him mentally incompetent. Nevertheless, because

there has been some confusion in earlier proceedings

on the relevance of his addiction,” we point out that

a history of drug addiction, without more, does not

make one incompetent to plead guilty. Howard v.

United States, 420 F. 2d 478 (C.A. 5); Lipscomb

v. United States, 209 F. 2d 831 (C.A. 8), certiorari

denied, 347 U.S. 962; ef. Sanders v. United States,

supra, 373 U.S. at 19-20. Of course, as this Court held

20 At petitioner’s sentencing on February 13, 1970, petitioner

stated that he thought he had kicked the habit “already” (A. 8).

He did not indicate when he had kicked the habit.

2 Petitioner argued before the district court in response to

the government’s motion to dismiss his Section 2255 motion that

his statement during the guilty plea hearing that “I got strung

up on drugs * * *” should have warned the court that petitioner's

“mental capabilities might well have been impaired causing him

to incompetently waive basic rights and plead guilty * * *” (A.

27). Presumably as a result of this argument, the district court

stated in its opinion denying the 2255 motion that petititoner

had alleged, among other things, that his plea was the product

of drug addiction (A. 30). In his petition for a writ of cer-

tiorari, petitioner again referred to his alleged drug addiction

and to his statement at arraignment (Pet. 11). In our Memoran-

dum in Opposition, we referred to petitioner’s Section 2255

motion as having alleged that the plea was invalid because of

(among other things) “addiction to heroin” (p. 1). In his

Reply, however, petitioner disclaimed reliance on drug addic-

tion as a factor invalidating his plea, pointing out that the

Section 2255 motion had made no claim that addiction was

responsible for the plea, and suggesting that the district court

and we had confused the issues (pp. 2, 4). The disclaimer has

not been repudiated.

—

_ * ™

35

in Sanders, a plea made by a defendant under the in-

fluence of drugs may be invalid; but petitioner has

at no time suggested that he was under the influence of

drugs when he entered his plea, as the prisoner in

Sanders alleged. On the contrary, in the present case,

the record affirmatively shows that petitioner had had

no access to narcotics for at least several weeks prior

to the entry of his plea.

Finally, petitioner’s allegation that he suffered from

epilepsy required no hearing because the allegation

was irrelevant. “Epilepsy is not insanity and is dis-

tinguished therefrom medically and legally.’’ Ellis v.

United States, 274 F. 2d 52 (C.A. 10). Cf. Gann v.

Gough, 79 F. Supp 912, 914 (N.D. Ga.), reversed on

other grounds sub nom. Hiatt v. Gann, 170 F. 2d 473

(C.A. 5), certiorari denied, 337 U.S. 920. Petitioner

made no allegation that his guilty plea was affected

by an actual seizure during the guilty plea hearing.

And, as we have discussed above, a hospital neurologi-

cal examination proved negative.

IIT

‘PETITIONER VALIDLY WAIVED HIS RIGHT TO COUNSEL

Petitioner contends in his brief on the merits that

the record fails to reflect that he effectively waived his

right to counsel, * and in the alternative that, in any

event, this Court should exercise its supervisory power

2 In his Section 2255 motion, petitioner alleged he had not

understood the “consequences” of his waiver of counsel (A. 11)

and that the waiver “was a product of his mental illness” (A.

12). These allegations were repeated in his pro se petition for a

writ of certiorari (Pet. 6).

36

over proceedings in federal courts to forbid uncoun-

seled guilty pleas altogether or at least require a de-

fendant to consult with an attorney before waiving

counsei (Br. 47-59). In our view, these contentions

should be rejected.

1. The Court has made it clear that a guilty plea

to a felony charge entered without counsel is invalid,

unless counsel has been waived. See White v. Mary-

land, 373 U.S. 59; Arsenault v. Massachusetts, 393

U.S. 5; Brady v. United States, supra, 397 U.S. at

748-749, n. 6. Under the Court’s definition, waiver is

an “intentional relinquishment or abandonment of a

known right or privilege.’’ Johnson v. Zerbst, 304 U.S.

458, 464. Whether there has been “an intelligent

waiver of the right to counsel must depend, in each

ease, upon the particular facts and circumstances sur-

rounding that case, including the background, expe-

rience, and conduct of the accused.” Ibid. To make an

“intelligent waiver,’’ however, a defendant need not

act with any particular degree of wisdom; all that is

required is that he “knows what he is doing and [that]

his choice is made with eyes open.’’ Adams v. United

States ex rel. McCann, 317 U.S. 269, 279. Or, as the Court

held in Carnley v. Cochran, 369 U.S. 506, 516, the record

must show that the accused “was offered counsel’’ and

“understandingly rejected the offer.’’ Petitioner’s

waiver was valid under these standards.

At the time of the guilty plea hearing, petitioner

was a 26-year-old man with a seventh grade education.

By his own admission, he had several prior convic-

tions (A. 11, 16; Pet. 11; Reply to Memorandum in

37

position, p. 4). He was informed by the district

ige that he was “entitled to be represented by an

orney’’ and that if he was “without funds with

ich to employ an attorney” the court would “ap-

int one’’ for him. The judge noted that he had

‘ore him a “waiver of assignment of an attorney,”

viously executed by petitioner, and inquired

ether petitioner wished “to proceed here without

attorney.”” When petitioner replied “I guess so,”’

. court advised him that guessing would not be

ficient; he had to “know’’ whether he wanted to

yeeed without a lawyer. Petitioner then responded,

es, sir’ (A. 4). Petitioner suggests that his response

es, sir” was ambiguous and could have been in-

ded merely as an acknowledgement that he could

; “suess’’ about the waiver, rather than as an ex-

cit waiver of counsel (Br. 53). In retrospect, on a

d record and in isolation, petitioner’s answer could

argued to appear ambiguous. But the intonation at

hearing evidently signaled no ambiguity or un-

tainty to the district judge. And the full context of

exchange demonstrates that petitioner was making

leliberate waiver. Prior to the hearing, petitioner

| signed a written waiver of counsel; at the hearing,

was unequivocally informed of his right to counsel

the district court, and he raised no objection when

district court left the waiver issue to inquire

ther petitioner was aware of the penalties that

Id be imposed. Under these circumstances, it is

ir that petitioner’s response was intended as, and

s accepted by the district court as, a knowing waiver

RAPER LN EE IPL ITSO REA HRD TENE MSE, VP EY “PSS RR ISS aE Ha se

of counsel.” Furthermore, three months later, whe

petitioner appeared before the same district judge fi

sentencing, the judge noted that at the time of h

plea he had waived the appointment of counsel an

asked him whether it was “your wish that you procee

here through sentence without being represented b

counsel.” Petitioner again responded unambiguously

“Yes, sir’ (A. 8). Thus, the record in this case cor

clusively shows that petitioner’s guilty plea is nm

subject to collateral attack on the ground of a def

ciency in waiving counsel. That waiver satisfied all «

the constitutional tests.

2. Petitioner also suggests (Br. 56) that, irrespe

tive of whether the waiver of counsel in this case ws

constitutionally valid, this Court should assert its s

pervisory powers to prohibit uncounseled guilty ples

in federal courts. This argument raises a serious cor

stitutional question whether a defendant can be force

to be represented by counsel. Over 30 years ago, th

Court rejected the proposition, holding: ‘*The right t

assistance of counsel and the correlative right to dis

— pense with a lawyer's help are not legal formalism

* * * [T)he Constitution does not force a lawyer upo

a defendant.” Adams v. United States ex rel. McCani

supra, 317 U.S. at 279."

™ Petitioner also argues that the court erred in failing t

inform him expressly at the guilty plea hearing that he coul

repudiate his prior written waiver of counsel (Br. 52-53). How

ever, the court's inquiry “Is it your wish to proceed here with

out an attorney!” (A. 4) adequately notified petitioner ths

he was being asked then and there whether he wanted an a!

torney notwithstanding the prior waiver.

™ See also United States v. Dougherty (D.C. Cir. No. 431

decided June #0, 1972, rehearing denied October 26, 1972), re

Forcing a lawyer on a defendant would certainly

not lay the foundation for the kind of professional

relationship that should exist between a client and his

lawyer. In addition, a policy that refused to permit a

defendant to terminate the proceedings against him

without the intervention of a lawyer would create new

problems; for example, it is easy to anticipate claims

by defendants convicted after a trial under such cir-

cumstances that he would have received better treat-

ment if he had been allowed to plead guilty instead

of aequiescing in the “advice” by his court-imposed

counsel that he go to trial.

The alternative suggestion that a defendant be

required to confer with a lawyer at least once before

finally waiving counsel is worthy of consideration

and, as petitioner points out (Br. 57), has been ree-

ommended by the American Bar Association. See

Standards Relating to Providing Defense Services, pp.

64-65 (approved draft, 1968). The imposition of such a

requirement, however, would have a substantial impact

upon the administration of justice in the federal

courts.” Whether the requirement should be adopted

in the federal system requires a careful balancing of

this impact against the likely utility of the rule. In

our view, these considerations are essentially legisla-

versing a criminal conviction in which the trial court had. in-

sisted that the defendants be represented by counsel, and holding

that a criminal defendant has a statutory right under 28 U.S.C.

1654 to waive counsel and proceed pro ac.

™ Petitioner cites statistics furnished by the Administrative

Office of the United States Courts indicating that for the fiscal

years 1969 through 1972, a total of 19,395 defendants pleaded

guilty after waiving counsel. There were 104.544 guilty pleas

entered during this period (Thr. 56, n. 40).

tive in nature and the proposed rule should be

adopted, if at all, either by statute or by an amend-

ment to the Federal Rules of Criminal Procedure,

after thorough discussion. Imposition of such a re-

quirement—not required by the Constitution—as part

of the disposition of a particular case would be inap-

propriate.

CONCLUSION

For the reasons stated, it is respectfully submitted

that the judgment of the court of appeals should be

affirmed.

Exwin N. Grisworp,

Solicitor General.

Henry E. Perersen,

Assistant Attorney General.

Samvur. Huntinoton,

Assistant to the Solicitor General.

Pauar R. Monanany,

Attorney.

Pepavary 1973.

© 8 COVteeuret rHreTIES OFFICE. FETS