Petition — Blackledge v. Allison

Suoreme Court, 8. &

iLED

MAY 22 1976

Ww Fe OLPRK

In The =

Supreme Court of the United States

OCTOBER TERM 1975

No. 75-1693

STANLEY BLACKLEDGE, Warden,

Central Prison, and

STATE OF NORTH CAROLINA,

Petitioners

v.

GARY DARRELL ALLISON,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT.

RUFUS L. EDMISTEN

Attorney General

RICHARD N. LEAGUE

Assistant Attorney General

Post Office Box 629

Raleigh, North Carolina 27602

Telephone: (919) 829-7188

ATTORNEYS FOR PETITONERS

NN I ERAT Ne ES te a

NN Site itahacia dicts setambnivsnbiepeeninsienreensesenetiietiatinteattinics

ITE TOL TROL LOTTO,

Constitutional and Statutory

EEE RS A ET OTT e

Statement of the Case

Reasons for Granting the Writ:

(1) THERE IS A CONFLICT IN THE CIRCUITS

OVER THE EFFECT TO BE GIVEN RULE

11 AND BOYKIN V. ALABAMA, 394 US 238

(1969) TESTIMONY BY AN ACCUSED IN

A LATER HABEAS ACTION CONCERNING

ALLEGED BROKEN PLEA BARGAINS.

THE FOURTH CIRCUIT'S RULE AD-

VERSELY AFFECTS A SUBSTANTIAL

NUMBER OF NORTH CAROLINA CONVIC-

TIONS AND IS IN CONFLICT WITH

MACHRIBRODA V. UNITED STATES, 368

US 487 (1961); TOWNSEND V. SAIN, 372 US

293 (1963); AND FONTANE V. UNITED

STATES, 411 US 213 (1972). .

Conclusion —

APPENDICES

I SN I oleic innmeneenipenanienioraiiad

B. Excerpts from Application for

Writ of Habeas Corpus —............... NE oe oe POSE

C. Initial Order of the United States

District Court for the Middle >

District of North Carolina _..................-....-....----.. Pik

Or

D. Final order of the United States District

Court for the Middle District of

AS RE Oe IIPS NPE 19

E. Opinion of the United States Court

of Appeals for the Fourth Cireuit — 23

TABLE OF CASES

Boykin v. Alabama, 395 US 238 (1969) — 5,8

Carafas v. Lavellee, 391 US 234 (1968)

Crawford v. United States, 519 F2d

I i ll

Edwards v. Garrison, 529 F2d 1374 (4

Cir 1975) , cert. den. _. US __

(1976)

Fontane v. United States, 411 US 213 (1973) — 5, 6,8

Loper v. Beto, 406 US 473 (1978) —___________......._ §

Machribroda v. United States, 368

Re ee

Norman v. United States, 368

IY I ae

Pursley v. United States, 391

i. 4 8 at.) ee

Putnam v. United States, 337 F2d

OO A OR 8 Ee? oo te

Reed v. United States, 441 F2d

SED ECR EE AOL

Townsend v. Sain, 372 US 293 (1963) 2, 5 7

Trotter v. United States, 359 F2d

419 (2 Cir Ey: a eee eee

il

United States v. Davis, 319 F2d

482 (6 Cir 1963) _.

United States v. McCarthy, 433

nace 6

United States v. Tucker, 404 US 443 (1972) 0. 8

Walters v. Harris, 460 F2d 988

ES Se (rier Mee 6,7

TABLE OF STATUTES AND RULES

cece cacti chrectencec tren oberenseeteerone 5,7,8

USC 28: 2254.0 scale eniene a __.....@, 3,7

LE a

ili

~erge wo are

In The

Supreme Court of the United States

OCTOBER TERM 1975

No.

STANLEY BLACKLEDGE, Warden,

Central Prison, and

STATE OF NORTH CAROLINA,

Petitioners

v.

GARY DARRELL ALLISON,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TO: THE HONORABLE CHIEF JUSTICE AND ASSO-

CIATE 'USTICES OF THE SUPREME COURT OF

THE UNITED STATES:

The petitioners, Stanley Blackledge and the State of North

Carolina, pray that a writ of certiorari issue to review the

sdgment of the United States Court of Appeals for the Fourth

scuit in the case of Gary Darrell Allison v. Stanley Black-

ledge, Warden, Central Prison, and the State of North Caro-

lina, No. 75-1738, filed April 13, 1976.

OPINION BELOW

The opinion of the United States Court of Appeals styled

and filed as above is not yet reported but is printed as Appen-

dix E to this petition (pp 23, post) .

JURISDICTION

The jurisdiction of this Court is invoked under 28 USC 1254

(1) within ninety days of April 13, 1976, the date of entry of

the order to be reviewed.

QUESTION PRESENTED

WHETHER THE DISTRICT COURT PROPERLY

ACCEPTED A STATE COURT FINDING ON THE

VOLUNTARINESS OF ALLISON’S GUILTY PLEA

UNDER TOWNSEND JV. SAIN, 372 US 293 (1963)

AND THE COURT OF APPEALS ERRED IN RE-

VERSING THE DISTRICT COURT’S EXERCISE

OF DISCRETION IN THIS REGARD.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Sixth Amendment, the Fourteenth

Amendment, 28 USC 2254 and 28 USC 2255.

STATEMENT OF THE CASE

—

On January 24, 1972 in the Superior Court of Alamance

County, North Carolina, Honorable Marvin Blount, Jr., Judge

Presiding, Gary Darrell Allison entered a plea of guilty in case

number 71 CRS 15073, in which he was charged with attempt-

ed safe robbery (“safecracking”). He was represented by

counsel, Glenn Pickard, Esquire, at this time. Before Judge

Blount accepted this plea, he asked Allison some fourteen

questions in accordance with a formalized North Carolina pro-

cedure in order to determine whether or not his plea was an

intelligent, knowing and voluntary act. These questions are

Appendix A to this petition (pp. 10, post), and covered the

matters of defendant’s mental capacity, his understanding of

the charge and its penalty, his understanding of the right to

plead not guilty and have a jury trial, a canvass of possible

motivations for his plea, and a canvass of his ability to pre-

pare a defense. In response to these questions, Allison, under

oath, acknowledged among other things that he was guilty

and that he understood he could be imprisoned from 10 years

to life as a result of his plea, and stated that no one had

made any promise or threat to him to influence him to plead

guilty in this case. On the basis of the overall inquiry findings

were made, including one that “the plea of guilty by the de-

fendant is freely, understandingly and voluntarily made with-

out undue influence, compulsion or duress and without promise

of leniency” and the plea was accepted. Allison was sentenced

to imprisonment for a period of from seventeen to twenty

years. He did not appeal.

On or about February 15, 1973, after having exhausted

state remedies, Allison applied for a writ of habeas corpus

from the United States District Court for the Middle District

of North Carolina pursuant to 28 USC 2254 alleging that his

guilty plea thirteen months earlier to the charge of attempted

safe robbery was a result of the following episode:

“The petitioner was led to believe and did believe, by

Mr. Pickard, that he, Mr. M. Glenn Pickard, had talk-

ed the case over with the Solicitor and the Judge, and

that if the petitioner would plea [sic] guilty, that he

would only get a ten year sentence of penal servitude.

This conversation, where the petitioner was assured that

if ne plea [sic] guilty, he would only get ten years was

witnessed by another party other than the petitioner

and counsel.”

See Appendix B (pp. 14, post) .

In reviewing Allison’s application, Honorable Eugene A.

Gordon, Judge Presiding, found that the transcript of plea

taken by Judge Blount at trial showed a careful examination

prior to acceptance of Allison’s plea, and impliedly accepted

it in lieu of further hearing. He also construed the allegation

to be one concerning only a prediction of sentence, rather

than an allegation of a broken plea bargain or a misrepresenta-

tion about a sentence. Therefore, he dismissed the application

4

without evidentiary hearing. This order appears as Appendix C

(pp. 18, post). Allison sought a reconsideration, whereupon

Magistrate Herman A. Smith then characterized the allegation

as one of “an unkept promise” and entered an order on April

25, 1974, directing Allison to file an affidavit by the witness he

had originally mentioned in support of this claim. Instead of

doing this, on or about May 13, 1974, Allison sent a letter

saying that his witness was unable to get his statement

notarized. On or about May 17, 1974, he followed this saying

that his mother had written him that the papers had been

notarized but were then torn up by the notary. This was

interpreted as suggesting state interference with his right to

access to the courts by the District Court, for the Clerk then

suggested that Allison have his mother swear to this by affi-

davit and get an unsworn statement from the witness with

that statement to include a recitation of his attempts to get his

paper notarized. Neither were forthcoming. Instead, two and

one-half months later, Allison wrote to the Court complaining

of disparity in sentences between him and his co-defendant,

and stating he had heard through his people “that the state-

ment my co-defendant was supposed to make was not made

because he is afraid of his parole and work release”. On August

16, 1974, Judge Gordon again dismissed the application. This

order appears as Appendix D (pp. 20, post). Allison then

obtained and sent an unsworn statement purportedly made

and signed by his co-defendant and witnessed by three persons

without designation, again seeking reconsideration of the

judge’s second order. Nothing was said about state inter-

ference with his access to the courts in this statement, and he

did not send with it an affidavit from his mother. Recon-

sideration was declined by Judge Gordon and Allison appealed.

On April 13, 1976, after briefing and oral argument, the

United States Court of Appeals for the Fourth Circuit reversed

the District Court in a decision in which Honorable John A.

Field, Jr., Circuit Judge, concurred but criticized the precedents

in the Circuit necessitating his concurrence and the course of

5

decision in the Circuit on this type of case. A motion to re-

hear en banc was made within the Court but failed for a want

of a majority. This opinion appears as Appendix E (pp. 23,

post). Writing fer the majority, Honorable Harrison Winter,

Circuit Judge, held that Allison was not bound by his at-trial

statement that he had not been promised anything for his

plea because “he had advanced a reasonable explanation for

his inconsistent allegations”, ie. he had been instructed to

answer in the way he did by his lawyer. The majority also

held improper the District Court’s action in requiring that

Allison document his claim with affidavits. On April 21, 1976,

a stay of mandate for purpose of seeking certiorari in this

Honorable Court was granted on the condition that the peti-

tion be filed within thirty days.

REASONS FOR GRANTING THE WRIT

I

THERE IS A CONFLICT IN THE CIRCUITS OVER

THE EFFECT TO BE GIVEN RULE 11 AND BOY-

KIN V. ALABAMA, 395 US 238 (1969) TESTIMONY

BY AN ACCUSED IN A LATER HABEAS ACTION

CONCERNING ALLEGED BROKEN PLEA BAR-

GAINS. THE FOURTH CIRCUIT’S RULE AD-

VERSELY AFFECTS A SUBSTANTIAL NUMBER

OF NORTH CAROLINA CONVICTIONS AND IS IN

CONFLICT WITH MACHRIBRODA V. UNITED

STATES, 368 US 487 1962; TOWNSEND V. SAIN,

372 US 293 (1963); AND FONTANE V. UNITED

STATES, 411 US 213 (1973). |

In Machribroda v. United States, 368 US 487 (1961) and

Fontane v. United States, 411 US 213 (1972) , this Honorable

Court adopted a case-by-case approach to allegations by

prisoners that their guilty pleas were the result of unkept

promises by government personnel. In the first of these cases,

the Court characterized the claim as “marginal” and “close to

6

the line” but held that because the allegations were specific

and detailed and were not belied by the files and records of

the case, a further hearing was required by the language of

28 USC 2255. In the latter case, the Court noted as a general

proposition that an accused would not be allowed to repudiate

his statements at the time of plea, but again because peti-

tioner’s claim related in part to his mental competency, and

he provided corroborative material, this Honorable Court re-

versed the denial of a hearing to him. In the intervening years

between Machribroda and Fontane, the first of these decisions

produced several divergent lines of authority within the cir-

cuits. The Third, Fifth, Sixth and Tenth Circuits generally

held that if a Rule 11 inquiry was made at trial and the de-

fendant stated at that time no promises were made to him

for his plea, then the files and records are conclusive on the

matter under 28 USC 2255 and a habeas corpus hearing is not

required, Norman v. United States, 368 F2d 645 (3 Cir 1966) ;

Pursley v. United States, 391 F2d 224 (5 Cir 1968); United

States v. Davis, 319 F2d 482 (6 Cir 1963) ; Putnam v. United

States, 337 F2d 313 (10 Cir 1964). On the other hand, the

First, Second and Ninth Circuits generally held that such

Rule 11 statements have evidential value at any later hearing

but do not make the files and records conclusive on the matter

and therefore these Circuits require a hearing, United States v.

McCarthy, 433 F@d 591 (1 Cir 1970); Trotter v. United

States, 352 F2d 419 (2 Cir 1969); Reed v. United States, 441

F2d 569 (9 Cir 1971). Three of the remaining circuits ap-

parently opted for a middle course which might be described

in terms of a “defeasible conclusive” approach in which a

higher threshold for inquiry has been required. However, this

requirement of a higher threshold in the Fourth Circuit is an

illusory one rather than one of substance.

The Fourth Circuit first dealt with the issue of habeas hear-

ings for allegations concerning broken plea bargains in Walters

v. Harris, 460 F2d 988 (4 Cir 1972) , which decision placed it

with the “evidential—not conclusive” group. In that case, the

7

Court remanded Walters’ case for hearing despite a detailed

Rule 11 inquiry which had revealed no promises. Later the

Fourth Circuit appeared to modify Walters in Crawford v.

United States, 519 F2d 347 (4 Cir 1975) and to move into the

middle group. In that case, on the basis of much less of a Rule

11 inquiry than had occurred in Walters, the Court held that

the allegations of a plea bargain were insufficient to require a

hearing, and announced the Circuit’s rule to be:

*... that the accuracy and truth of an accused's state-

ments at a Rule 11 proceeding in which his guilty plea is

accepted are ‘conclusively’ established by that proceeding

unless and until he makes some reasonable allegation why

this should not be so. Stated otherwise .. . a defendant

should not be heard to controvert his Rule 11 statements

in a subsequent $2255 motion unless he offers a valid

reason why he should be permitted to depart from the

apparent truth of his earlier statements.”

However, in Edwards v. Garrison, 529 F2d 1374 (4 Cir 1975),

cert. den... US _.._ (1976), the Fourth Circuit held that

an allegation by a prisoner that he was told to answer un-

truthfully by his lawyer in order to assure acceptance of the

plea bargain was a valid reason to go behind the at-trial state-

ments and would require a hearing by district courts con-

fronted with such allegations. Since this generally accompanies

an allegation of a broken plea bargain, ie. is a stock corollary

to it, it adds nothing to Walters v. Harris, supra, and in sub-

stance, if not form, the Fourth Circuit remains where it was—

in the “evidential—not conclusive” group.

Whether or not the above is a proper disposition for $2255

habeas cases, this same view has been erroneously carried over

to state cases in the Fourth Circuit in spite of the higher

“conclusive” standard applicable to federal habeas review, cf.

28 USC §2254, §2255, and in spite of this Court’s and Con-

gress’ authorization to the district court to accept state court

factual findings, Townsend v. Sain, 372 US 293 (1963) ; 28 USC

8

$ 2254. Therefore, the fact that the Fourth Circuit is on the

wrong side of the split in authority in the circuits has led to a

situacion where all 116,000 guilty pleas rendered in North Caro-

lina from 1967 through 1973 are subject to collateral attack on

a new basis, as well as a good part of those 50,000 plus guilty

pleas entered from 1974 to the present. This is disheartening be-

cause North Carolina began dealing with the problem of plea

bargaining by means of a pre-plea, in-court, interrogation

under oath well before being required to by Boykin v. Alabama,

395 US 238 (1969). More importantly it is extremely dis-

ruptive because the sentences for the worst of the crimes com-

mitted during the above periods have not yet been served,

and even those which have been served retain continued

viability for habeas review purposes in the contexts of use for

later impeachment, Loper v. Beto, 405 US 473 (1972) ; sentenc-

ing, United States v. Tucker, 404 US 443 (1972); and other

“collateral consequences”, Carafas v. Lavallee, 391 US 234

(1968). Therefore, it cannot be questioned that the Fourth

Circuit’s decision has substantial impact in North Carolina.

This Honorable Court has held in Fontane v. United States,

supra, that compliance with Rule 11 “like any procedural

mechanism .. . is neither always perfect nor uniformly in-

vulnerable to subsequent challenge .. . ”. However, if the case

law in the Fourth Circuit stands, then it never is, and para-

doxically, compliance with Rule 11 and with Boykin v. Ala-

bama, supra, is worthwhile only where is was unnecessary in

the first place.

CONCLUSION

It is respectfully submitted that because of the above, this

case is of sufficient importance for the court to exercise its

jurisdiction and issue a Writ of Certiorari to review the de-

cision of the United States Court of Appeals, either to sum-

marily reverse it, or to set the matter for briefing and argu-

ment.

Respectfully submitted,

RUFUS L. EDMISTEN

Attorney General

Richard N. League

Assistant Attorney General

Post Office Box 629

Raleigh, North Carolina 27602

Telephone: (919) 829-7188

10

APPENDIX A

STATE OF NORTH CAROLINA

County of Alamance

STATE OF NORTH CAROLINA

vs.

Gary Darrell Allison

File #71CrS 15073

in The General Court of Justice

Superior Court Division

TRANSCRIPT OF PLEA

The Defendant, being first duly sworn, makes the following

answers to the questions asked by the Presiding Judge:

1. Are you able to hear and understand my statements and

questions? Answer: Yes

2. Are you now under the influence of any alcohol, drugs,

narcotics, medicines, or other pills? Answer: No

3. Do you understand that you are charged with the

felony of Attempted Safe Cracking? Answer: Yes

4. Has the charge been explained to you, and are you

ready for trial? Answer Yes

Gr

. Do you understand that you have the right to plead

not guilty and to be tried by a Jury? Anwer: Yes

6. How do you plead to the charge of Attempted Safe

Cracking—Guilty, not Guilty, or nolo contendere?

Answer: Guilty

7. (a) Are you in fact guilty? (Omit if plea is nolo con-

tendere) Answer: Yes

(b) (If applicable) Have you had explained to you and

do you understand the meaning of a plea of nolo con-

tendere? Answer: _........

10.

11.

12.

13.

11

. Do you understand that upon your plea of guilty you

could be imprisoned for as much as minimum of 10

years to life? Answer: Yes

. Have you had time to subpoena witnesses wanted by

you? Answer: Yes

Have you had time to talk and confer with and have

you conferred with your lawyer about this case, and are

you satisfied with his services? Answer: Yes

Has the Solicitor, or your lawyer, or any policeman, law

officer or anyone else made any promises or threat to

you to influence you to plead guilty in this case?

Answer: No

Do you now freely, understandingly and voluntarily

authorize and instruct your lawyer to enter on your be-

half a plea of guilty? Answer: Yes

Do you have any questions or any statement to make

about what I have just said to you? Answer: No

I have read or heard read all of the above questions and

answers and understand them, and the answers shown are the

ones I gave in open Court, and they are true and correct.

Gary Darrell Allison

Defendant

Sworn to and subscribed before me this 24th day of January,

1972.

Catherine Sykes, Ass’t.

Clerk Superior Court

AOC-L Form 158

Rev. 10/69

II.

12

ADJUDICATION

The undersigned Presiding Judge hereby finds and adjudges:

I.

That the defendant, Gary Darrell Allison, was sworn in

open Court and the questions were asked him as set forth

in the Transcript of Plea by the undersigned Judge, and

the answers given thereto by said defendant are as set

forth therein.

That this defendant, was represented by attorney, M.

Glenn Pickard, who was (court appointed); and the de-

fendant through his attorney, in open Court, plead (guilty)

to Attempted Safe Cracking as charged in the (warrant)

(bill of indictment), of Breaking & Entering, Safe Bur-

glary & Possession of Burglary Tools and in open Court,

under oath further informs the Court that:

1. He is and has been fully advised of his rights and the

charges against him;

2. He is and has been fully advised of the maximum

punishment for said offense(s) charged, and for the

offense (s) to which he pleads guilty;

3. He is guilty of the offense (s) to which he pleads guilty;

4. He authorizes his attorney to enter a plea of guilty to

said charge (s) ;

5. He has had ample time to confer with his attorney, and

to subpoena witnesses desired by him;

6. He is ready for trial;

7. He is satisfied with the counsel and services of his

attorney;

And after further examination by the Court, the Court

ascertains, determines and adjudges, that the plea of guilty,

by the defendant is freely, understandingly and voluntarily

13

made, without undue influence, compulsion or duress, and with-

out promise of leniency. It is, therefore, ORDERED that his

plea of guilty be entered in the record, and that the Transcript

of Plea and Adjudication be filed and recorded.

This 24th day of January, 1972.

Marvin Blount Jr.

Judge Presiding

14

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GARY DARRELL ALLISON, _ )

Petitioner, )

v. ) PETITION FOR

) WRIT

DR. STANLEY BLACKLEDGE, ) OF

Warden ) HABEAS CORPUS

Central Prison, Raleigh, N. C. and )

STATE OF NORTH CAROLINA, )

Respondent.)

No. C-71-G-73

* * * . + * oe

13. State concisely every ground on which you base your

allegation that you are being held in custody unlawfully

and in violation of the Constitution or laws of the United

States:

(a) Petitioner contends that his guilty plea was induced

by an unkept promise, and therefore was not the free

and willing choice of the petitioner, and should be set

aside by this Court. An unkept bargain which has

induced a guilty plea is grounds for relief. SANTO-

BELLO v. NEW YORK, 404 US. 257, 267 (1971).

* * . * 7 7 +

14. State fully and concisely, and in the same order all avail-

able evidence, documentary or otherwise, which you claim

will support each of the grounds set out in item (13):

(a) The petitioner was charged with and brought to trial

on the charges of safe robbery, and two (2) counts of

breaking, entering and larceny and possession of burglary

tools.

The petitioner was led to believe and did believe, by Mr.

Pickard, that he Mr. N. Glenn Pickard had talked the case

over with the Solicitor and the Judge, and that if the petitioner

15

would plea [sic] guilty, that he would only get a 10 year sen-

tence of penal servitude. This conversation, where the peti-

tioner was assured that if he plea [sic] guilty, he would only

get ten years was witnessed by another party other than the

petitioner and counsel.

That the petitioner had entered pleas of not guilty and the

case was called and a recess was called, and it was at this

recess, that the petitioner agreed to plead guilty, because he

was told that he had to do so, because the jury was going to

find him guilty because his co-defendant was going to plead

guilty.

The petitioner believing that he was only going to get a ten

year active sentence, allowed himself to be pled guilty to the

charge of attempted safe robbery, and was shocked by the

Court with a 17-21 year sentence. In MACHRIBRODA v.

UNITED STATES, 368 U.S. 487, [sic] it was held that a

guilty plea induced by a promise was involuntary.

The petitioner was promised by his Attorney, who had con-

sulted presumably with the Judge and Solicitor, that he was

only going to get a ten year sentence, and therefore because

of this unkept bargain, he is entitled to relief in this Court.

An assurance by another that Petitioner would receive a par-

ticular sentence therefore since the trial Judge was the only

authority as to the length of sentence, the unkept bargain

which induced the guilty plea would invalidate the guilty plea.

SANTOBELLO v. NEW YORK, SUPRA. [sic]

The petitioner is aware of the fact that he was questioned

by the trial Judge prior to sentencing, but as he thought he

was only going to get ten years, and had been instructed to

answer the questions, so that the Court would accept the

guilty plea, this fact does not preclude him from raising this

matter especially since he was not given the promised sentence

by the Court.

16

It is clear that the United States Supreme Court specific-

ally approved of plea bargaining in SANTOBELLO, SUPRA,

and it is equally clear that plea bargaining, when same has

been held as in this matter, should appear upon the face of

the record. WALTERS v. HARRIS, 460 F. 2d 988 (1972

4th Cir.)

It is clear that the petitioner is entitled to relief in this

Court, if in fact, he plead guilty, to the charge of attempted

safe robbery, upon the belief that he was only going to receive

a ten year sentence. The fact that the Judge, said that he

could get more, did not affect, the belief of the petitioner, that

he was only going to get a ten year sentence.

It was as said in United States v. Williams, 407 F. 2d 940,

949 n. 13 (4th Cir. 1969) :

“, .. If the Judge, the prosecution, or the defense counsel

makes a statement in open court that is contrary to what

he has been led to believe, especially as to promises by

the prosecutor or his defense counsel, . . . (the defendant)

would no more challenge the statement in open court than

he would challenge a clergyman’s sermon from the pulpit.”

Because of the above, it is clear that the response given in

Court by this petitioner cannot be used as conclusive proof

that the guilty pleas [sicl was not induced by a promise that

was not kept as contended by the petitioner in this cause, See:

REED v. UNITED STATES, 441 F. 2d 569 (9th Cir. 1971) ;

UNITED STATES v. SIMPSON, 436 F. 2d 162 (D.C. Cir.

1970); UNITED STATES v. McCARTHY, 438 F. 2d 591

(Ist Cir. 1970); TROTTER v. UNITED STATES, 359 F. 2d

419 (2d Cir. 1966) .

WALTERS v. HARRIS, Supra. Pamphlet decision Pages

11-12 says:

“. . . Surely in the future the United States Supreme

Court’s approval of plea bargaining, Santobello, Supra,

will dispel the doubt about the validity of plea bargein-

17

ing that has caused plea bargains traditionally to be

shrouded in secrecy. “We reiterate what we have said be-

fore: That when plea bargaining occurs it ought to be

spread on the record and publicly disclosed. ‘RAINES,

Supra, at 530. (I) f (a plea) was induced by promises, the

essence of those promises must in some way be made

known’ Santobello, Supra at ___.. ”

The guilty plea to attempted safe robbery and sentence of

17. to 21 years is invalidated and made involuntary by the

unkept promises in this cause of only a ten year maximum

sentence, and should be set aside and vacated by this Court.

6th, 6th [sic] and 14th Amendments to the Constitution.

18

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GREENSBORO DIVISION

GARY DARRELL ALLISON, _ )

Petitioner, )

v. )

)

DR. STANLEY BLACKLEDGE, ) C-71-G-73

Warden, Central Prison, )

Raleigh, N. C. and STATE )

OF NORTH CAROLINA, )

Respondents. )

MEMORANDUM OPINION AND ORDER

GORDON, Chief Judge

Petitioner is a state prisoner seeking habeas corpus relief.

He has been allowed to proceed as a pauper.

Petitioner alleges that his plea of guilty was invalid, that

he was not informed of his right to appeal and he has been

denied a post-conviction hearing.

The respondents’ motion to dismiss will be granted.

Petitioner alleges that counsel “presumably” talked with

the Court and solicitor and that counsel told him if he

entered a plea of guilty he would get but ten years. Petitioner

was sentenced to 17 to 21 years for safe robbery. Petitioner

does not otherwise contest the voluntariness of his plea of

guilty. A transcript of the plea was furnished with respondents’

answer and motion to dismiss and conclusively shows that he

was carefully examined by the Court before the plea was

accepted. Therefore, it must stand. Predictions of counsel of

the duration of a sentence, without more, are not grounds

for attacking an otherwise valid plea of guilty. Swanson v.

United States, 304 F. 2d 865 (8th Cir. 1962) .

19

After the entry of a valid plea of guilty, there is no duty of

counsel to inform a defendant of his right to appeal. Songer

v. Coiner, mem. dec., No. 14,818 (4th Cir., November 4, 1971) ;

LeDouz v. Peyton, mem. dec., No. 13,599 (4th Cir., April 25,

1972).

There is no constitutional right to a post-conviction hearing.

A post-conviction hearing pertains only to the exhaustion of

state remedies. Robinson v. Blackledge, mem. dec., No. 71-1124

(4th Cir., September 10, 1971) ; Noble v. Sigler, 351 F. 2d 673

(8th Cir. 1965) .

ORDER

For the foregoing reasons, IT IS HEREBY ORDERED

that the application for writ of habeas corpus of Gary Darrell

Allison, filed February 15, 1973, be and is hereby denied and

the action dismissed.

In accordance with this Court’s liberal policy relative to the

filing of actions in forma pauperis, 28 U.S.C. § 1915, and in

accordance with the intent of Rule 24, Federal Rules of

Appellate Procedure, if the petitioner desires to do so, per-

mission to appeal in forma pauperis is hereby granted.

IT IS FURTHER ORDERED that the Clerk mail a cer-

tified copy of this Memorandum Opinion and Order to the

petitioner at his place of confinement and two certified copies

to the Attorney General of the State of North Carolina.

Eugene A. Gordon

United States District Judge

August 27, 1973

A True Copy

Teste:

Carmon J. Stuart, Clerk

By: Patricia F. Kimball

Deputy Clerk

20

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GREENSBORO DIVISION

GARY DARRELL ALLISON, _ )

Petitioner, )

v. )

rae

DR. STANLEY BLACKLEDGE, ) C-71-G-73

Warden, Central Prison, )

Raleigh, N. C. and STATE )

)

)

R

OF NORTH CAROLINA,

Respondents.

7 ORDE

GORDON, Chief Judge

This action was referred to United States Magistrate,

Herman Amasa Smith, for preliminary review pursuant to the

provisions of 28 U.S.C. § 636(b) and Local Rule 50, Rules

of Practice and Procedure. The Magistrate has submitted to

the Court a Memorandum and Recommendation.

The Court has examined the files and records of the action

and has independently determined that the petition is with-

out merit, and that the relief sought should be denied for the

reasons appearing in the Magistrate’s Memorandum and

Recommendation, which is attached and made a part of this

Order.

IT IS HEREBY ORDERED that the petition for rehear-

ing of Gary Darrell Allison, filed September 4, 1973, be and is

hereby denied and the action dismissed.

In accordance with this Court’s liberal policy relative to the

filing of actions in forma pauperis, 28 U.S.C. § 1915, and in

accordance with the intent of Rule 24, Federal Rules of

Appellate Procedure, if the petitioner desires to do so, per-

mission to appeal in forma pauperis is hereby granted.

21

IT IS FURTHER ORDERED that the Clerk mail a cer-

tified copy of this Order to the petitioner at his place of con-

finement and two certified copies to the Attorney General of

the State of North Carolina.

Eugene A. Gordon

United States District Judge .

August 16, 1974

A True Copy

Teste:

Carmon J. Stuart, Clerk

By: Patricia F. Kimball

Deputy Clerk

C-71-G-73

MAGISTRATE’S MEMORANDUM AND

RECOMMENDATION

Gary Darrel] Allison

By Memorandum Opinion and Order entered 28 August

1973, this Court dismissed petitioner’s application for a writ

of habeas corpus. On September 4, 1973, petitioner, with the

aid of a writ room clerk, filed a petition for a rehearing. That

petition sought to bring petitioner’s plea of guilty within the

ambit of Santobello v. New York, 404 U.S. 257 (1971). The

petitioner claimed that he had witnesses to prove that plea

bargaining took place and that the bargain was not kept. On

April 29, 1974, a Memorandum Order was entered directing

him to file within 30 days from the date of the entry of the

Order affidavits of his witnesses with such proof of his allega-

tions as he might be able to muster. The respondents were

then allowed to file counter affidavits within 21 days after the

receipt of the petitioner’s affidavits.

On May 13, 1974, the petitioner addressed a letter to Chief

Judge Eugene Gordon which alleged that his codefendant who

had a statement to make for the Court was unable to have

it notarized. A copy of that letter was sent to the respondents

by letter dated May 16, 1974. The respondents wrote the

22

Court on May 20, 1974, a copy of which was sent to Allison,

informing him that the superintendent of the Graham Unit

was a notary public and that his witnesses might appear be-

fore him to execute any affidavits. Subsequently, on May 17,

1974, the petitioner wrote Judge Gordon again. He wrote that

he had received a letter from his mother indicating that the

papers had been notarized but were destroyed by the notary

public. In response to that charge, May 22, 1974, our Clerk of

Court, Carmon J. Stuart, Esquire, was directed to write Mr.

Allison. That letter suggested that Allison submit to the Court

an affidavit of his mother, or anyone else who had first-hand

knowledge of the fact, that a notarized statement in Allison’s

behalf was destroyed, giving the name of the person who

destroyed it and describing the circumstances. Mr. Stuart

also suggested that if Allison’s codefendant was willing to

make a statement and was unable to get it notarized that he

document his efforts and send it to the Court. No further

communication was received from the petitioner until 6 August

1974 when he wrote complaining of the disparity of sentences

given him and his codefendant.

It is submitted that Santobello, supra., stands for the

proposition that when a petitioner furnishes evidence that

plea bargaining has taken place and that promises made to

induce his plea were not kept, the Court must go behind the

transcript of his plea of guilty, regardless of the inconsistency

existing between his in-court declarations under oath and his

subsequent statements.

It is submitted that Allison has been given ample oppor-

tunity to support his allegations of plea bargaining and to

show that his plea was involuntarily induced by an unkept

promise. Having failed in this regard, IT IS RECOMMEND-

ED that an Order be entered dismissing his petition for re-

hearing.

Herman Amasa Smith

United States Magistrate

14 August 1974

23

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 75-1738

Gary Darrell Allison,

Appellant,

v.

Stanley Blackledge, Warden, Central Prison,

and State of North Carolina,

Appellees.

Appeal from the United States District Court for the Middle

District of North Carolina, at Greensboro. Eugene A. Gordon,

Chief Judge.

Argued December 2, 1975 Decided April 13, 1976

Before HAYNSWORTH, Chief Judge, and WINTER and

FIELD, Circuit Judges.

C. Frank Goldsmith, Jr. [court-appointed counsel], (Story,

Hunter, and Goldsmith, on brief) for Appellant; Richard N.

League, Assistant Attorney General of North Carolina, and

(Rufus L. Edmisten, Attorney General of North Carolina, on

brief) for Appellees.

WINTER, Circuit Judge:

Gary Darrell Allison, a North Carolina prisoner incarcerated

under state law, appeals from the summary denial of his

petition for a writ of habeas corpus. He sought issuance of

the writ on the ground, inter alia, that his plea of guilty to

attempted safe robbery was involuntary. Because we are per-

suaded that Allison sufficiently alleged a claim of involuntari-

24

ness, we reverse the order denying issuance of the writ and

remand the case for further proceedings.

I.

In Allison’s petition for a writ of habeas corpus, he alleged,

with regard to the claim that his plea was involuntary, that

he was brought to trial on charges of (a) safe robbery, (b)

breaking, entering and larceny, and (c) possession of burglary

tools. During a recess of the trial, Allison was led to believe

by his counsel that counsel

had talked the case over with the Solicitor and the

Judge, and that if the petitioner would plead guilty,

that he would only get a 10 year sentence of penal

servitude.

He alleged further that his conversation with his lawyer was

“witnessed” by another person other than Allison and _ his

lawyer, that he entered a plea of guilty to attempted safe

robbery because he believed that he would receive only a

ten-year sentence, but that after his plea was accepted he was

sentenced to a term of seventeen to twenty-one years. In

supplementation of his claim, Allison said that he had been

“promised by his Attorney, who had consulted presumably

with the Judge and Solicitor, that he was only going to get a

ten year sentence . . . (emphasis in original) .” He conceded

that he was questioned by the trial judge prior to sentencing,

and, by implication, that in his answers he denied that any

promises had been made to him; but since he thought “he was

only going to get ten years, and had been instructed to answer

the questions so that the Court would accept the guilty plea,”

he was not now precluded from attacking its voluntariness.

In answer, the state asserted that the plea was voluntary.

It filed the transcript of Allison’s plea—a printed form setting

forth certain questions with Allison’s written answers, signature

and verification. The question of whether Allison’s lawyer had

made any promise or threat to induce the plea was answered

25

negatively; and the question of whether Allison’s plea was

freely, understandingly and voluntarily made was answered

affirmatively.

The district court dismissed Allison’s petition summarily.

It was of the view that the transcript of plea showed that the

plea was made voluntarily. Referring to the allegation that

Allison’s lawyer “presumably” talked to the court and the

prosecutor, the district court held that predictions of counsel

as to the duration of a sentence provided no ground for

attacking an otherwise valid plea of guilty.

Allison then filed a petition for rehearing. In essence, he

argued that an unkept promise of counsel could render a

guilty plea involuntary and that he was entitled to an eviden-

tiary hearing to afford him the opportunity to prove that such

a promise had been made to him. The petition for rehearing

was referred to a magistrate who entered a memorandum order

reciting that the burden was on Allison to prove that he was

the victim of an unkept promise and directing Allison to file

“an affidavit of his witness, and such other proof of his

allegation with respect to the promise he maintains was not

kept.”

Apparently Allison experienced substantial difficulties in

trying to comply with the magistrate’s order. They need not

be detailed, nor their sufficiency or accuracy examined. The

fact is that the affidavit and other proof were not forthcoming,

and the district court denied the petition for rehearing and

dismissed the action for noncompliance.

Il.

Taken in their entirety, Allison’s allegations are that he

was induced to plead guilty by his attorney’s promise, which

he was led to believe was made after consultation with the

prosecutor and the judge, that he would receive a sentence

of not more than ten years. That promise, if made, was not

kept; and if the promise can be proved, Allison’s plea was not

26

voluntary. Machribroda v. United States, 368 U.S. 487 (1962) .

Of course, in Machribroda the promise was made by the

prosecutor, but Machribroda has been extended to the repre-

sentations by an accused’s counsel that, by prearrangement

with the prosecutor or the court, a plea of guilty will not re-

sult in greater than a given punishment when, in fact, a

greater punishment is imposed. United States v. Hawthorne,

502 F. 2d 1183 (3 Cir. 1974); United States v. Valenciano,

495 F. 2d 585 (3 Cir. 1974); Roberts v. United States, 486

F. 2d 980 (5 Cir. 1973); Walters v. Harris, 460 F. 2d 988 (4

Cir. 1972) (by implication) , cert. den., 409 U.S. 1129 (1973) .

Such a representation is far different from a mere prediction

by counsel as to the length of sentence which is likely to result

from a guilty plea.

Although Allison alleged an unkept promise or representa-

tion of his attorney, at the time he pleaded he represented

that his attorney had made no promises or inducements to

get him to plead and that his plea was voluntary. Ordinarily

Allison would be held to his statement at the time he entered

his plea unless he advanced a reasonable explanation for his

inconsistent allegations. Crawford v. United States, 519 F. 2d

347 (4 Cir. 1975). Such an explanation is advanced here. Alli-

son alleges that he answered as he did when he entered his

plea because he had been instructed so to answer in order for

the trial court to accept his guilty plea. Allison is therefore

not foreclosed by the statements he made in order to effect

acceptance of his plea from subsequently attacking its volun-

tariness. Edwards v. Garrison, F. 2d __. _ (4 Cir., October

13, 1975).

We hold therefore that the district court erroneously denied

Allison’s petition for a writ of habeas corpus and reconsidera-

tion of its denial without conducting an evidentiary hearing

to determine the truth of what Allison alleged—both that a

promise inducing the plea was made, and that its existence

was concealed to effect acceptance of the plea.

27

III.

We are constrained to add a further word about the pro-

cedure followed in the disposition of this case with regard to

the magistrate’s order that Allison file an affidavit and proof

of his allegations before his petition for reconsideration would

be decided on its merits, and the district court’s denial of the

petition for reconsideration and dismissal of the action for

failure to comply with the magistrate’s order.

Where, as here, an indigent prisoner, proceeding pro se,

alleges a cause of action which, if proved, would entitle him

to post-conviction relief, we think it improper to require him

to document that claim or support it by affidavits of his wit-

nesses before affording him the evidentiary hearing to which

he is otherwise entitled. Bryan v. United States, 492 F. 2d

775, 783 (5 Cir.) (dissenting opinion) , cert. denied, 419 U. S.

1079 (1974). Of course we do not hold that the summary

judgment procedure of Rule 56, F.R. Civ. P., is inapplicable

to applications for writs of habeas. corpus by state prisoners.

If the state moves for summary judgment in such a case and

offers affidavits and other proof that the petitioner’s claim is

lacking in merit, a pro se petitioner may be required, after be-

ing advised of his rights and how to proceed, to offer counter

affidavits or other proof to establish that material facts are

genuinely disputed before he is afforded an evidentiary hear-

ing. If, in such a situation, the petitioner fails to respond and

offers no reasonable explanation why he cannot respond, sum-

mary judgment may properly be entered against him. But the

point is that a pro se petitioner is not to be put to a greater

burden to obtain an evidentiary hearing when he has alleged

a case which, if proved, would entitle him to relief than any

other plaintiff in any other type of action.

REVERSED AND REMANDED.

ADDENDUM

After circulation of the majority opinion and the special

28

concurrence to the nonsitting members of the court, a motion

was made within the court to rehear the case in banc and a

poll on the motion was requested. The motion failed for want

of a majority of those eligible to vote in the poll.

FIELD, Circuit Judge, concurring specially:

I concede, albeit reluctantly, that recognition of Edwards v.

Garrison, _._ F. 2d _... (No. 74-1791, 4 Cir. October 13,

1975), as viable precedent supports the reversal in this case.

It occurs to me, however, that over the past few years this

court has written a “Looking-glass book” in this area.

It began with the decision in Walters v. Harris, 460 F. 2d

988 (4 Cir. 1972). In that case a federal defendant filed a

§ 2255 motion alleging that he had entered his guilty plea upon

the promise of a government attorney that he would receive

a sentence which was lighter than that ultimately imposed by

the court. Although the record disclosed that the defendant

had assured the court that no promise had been made to in-

duce his guilty plea, the panel stated “that the defendant’s

responses alone to a general Rule 11 inquiry cannot be con-

sidered conclusive evidence that no bargain occurred,” 460

F. 2d at 993, and remanded the case to the district court for

an evidentiary hearing. Conceding that its conclusion placed

us in conflict with at least four other circuits,? the panel held

that the charge of involuntariness was not refuted by the

defendant’s denial at arraignment that any promise had in-

duced his plea.

Two years after Harris we again had occasion to consider

this question in Crawford v. United States, 519 F. 2d 347 (4

1. “Why, it’s a Looking-glass book, of course! And, if I hold it up to

a glass, the words will all go the right way again.”

The Annotated Alice—Alice in Wonderland and Through the

Looking Glass by Lewis Carroll—p. 191, Bramwall House, 1960.

2. Pursley v. United States, 391 F. 2d 224 (5 Cir. 1968); Norman v.

United States, 368 F. 2d 645 (3 Cir. 1966); Putnum v. United

States, 337 F. 2d 313 (10 Cir. 1964); United States v. Davis, 319

F. 2d 482 (6 Cir. 1963).

29

Cir. 1975). In that case we affirmed the district court's dis-

missal of the § 2255 motion, stating:

“Accordingly, we adopt the rule that the accuracy and

truth of an accused’s statements at a Rule 11 proceed-

ing in which his guilty plea is accepted are ‘conclusively’

established by that proceeding unless and until he makes

some reasonable allegation why this should not be so.

Stated otherwise, we hold that a defendant should not

be heard to controvert his Rule 11 statements in a sub-

sequent § 2255 motion unless he offers a valid reason

why he should be permitted to depart from the apparent

truth of his earlier statement.” 519 F. 2d, at 350.

This encouraging pronouncement in Crawford was short-lived

for less than three months later we handed down our decision

in the consolidated cases of Edwards v. Garrison, (No. 74-

1791) and Bass v. United States (No. 74-2038) , pub. sub nom

Edwards v, Garrison, ...... F. @d —...

Edwards involved a state prisoner who charged that his

guilty plea was induced by a promise made by his counsel with

respect to the sentence he would receive despite the fact that

he had affirmed to the court that no promises had been made.

The panel held that an evidentiary hearing was required on

the issue of voluntariness and, referring to the decision in

Walters v. Harris, supra, stated:

“Although Walters was a federal prisoner prosecuted

in a federal court and Edwards is a state prisoner

prosecuted in a state court, the same reasoning applies.

In either case the unallayed apprehensions of the

accused make general inquiries about inducements un-

reliable in unearthing plea bargains. Not having ben

asked if he claimed that a plea bargain had been made,

Edwards’ denial, at the time he entered his plea, that

any promise had induced him to tender it does not

foreclose inquiry into his later allegation suggesting

30

that a plea bargain may have been made.” ___. F. 2d,

:

The opinion in Edwards concluded with the observation that

the decision was of limited precedential significance since the

court had been advised that the state practice had been

amended to pose “questions to the prosecutor, the accused,

and his lawyer designed to elicit a full disclosure of any plea

negotiations and any bargain that was reached.” _ F. 2d

DP dcienesit

Any conclusion that specific inquiry relative to a possible

plea bargain might be the touchstone to finality in such a case

was quickly dissipated, however, by the panel’s disposition of

the Bass case in the same opinion. In Bags, the record dis-

closed that prior to accepting the guilty plea the district judge

had advised the defendant that the Supreme Court had ap-

proved the practice of plea bargaining, that a plea bargain was

proper and that if any bargains had been made Bass “should

have no hesitancy” in revealing such information to the court.

In response to the court’s inquiry, the attorney for Bass stated

that in return for the guilty plea the government had promised

to recommend a three year sentence. The district court went

on to explain that it would not be bound by the government’s

recommendation and could in fact impose whatever sentence

it felt would be necessary up to the statutory maximum. Bass

stated that he understood this fact and persisted in his plea.

Despite these representations to the court, in his § 2255 mo-

tion Bass alleged that the prosecutor and his lawyer assured

him that the government’s recommendation would be binding

on the court and that his lawyer advised him to suppress his

truthful answer that he did not wish to plead guilty if the

district court would not treat the government’s recommended

sentence as binding on it. The panel held that despite the

thorough inquiry of the district court with respect to a possible

plea bargain, Bass “may now be heard to controvert those

statements and to seek to establish that he gave those answers

solely on the advice of his lawyer to the end that his plea was

a

31

not voluntarily and understandingly made and should be

stricken.” _..... F. @d, at _.......

A distillation of these decisions demonstrates to me that no

matter how searching the inquiry of the court may be on the

issue of voluntariness, no trial judge, state or federal, can

protect himself against a later complaint by a convicted

criminal that his plea was voluntarily entered by reason of

some covert promise or understanding dehors the record. It

is disturbing to note that all too often the convicted petitioner

in such a case alleges that he was advised by his attorney to

give false answers to the questions propounded by the court,

and our opinions have unfortunately recognized such a charge

as a valid allegation which can only be resolved by an eviden-

tiary hearing.’ I suggest that the dignity and weight which

we accord such irresponsible allegations is utterly unrealistic,

for to me it is inconceivable that any attorney in his right

mind would jeopardize his professional reputation and his

license to practice law by engaging in such conduct.‘

Additionally, in many cases presently coming before this

court from state prisoners, the petitioner has vouched not only

orally, but has confirmed in writing under oath that no im-

proper influence or promise has accounted for his plea. Never-

theless, merely on the prisoner’s allegations, we permit the

solemn record and act of the trial court to be impugned.

3. In distinguishing the Bass case from the earlier decision in Craw-

ford, the Edwards panel stated:

“In suggesting reasons why in unusual cases a federal prison-

er should be permitted to controvert his statements at arraign-

ment, we said ‘{hje may have been advised to give answers

that the court would require in order to accept the plea,

rather than those which reflected the truth.’ ........ F. 2d at .........

Bass has alleged just that. It follows that he must be given

the opportunity to prove his allegations in a plenary hear-

ing.” (Emphasis added), ........ - fF

4. It is significant that in a great number of these cases the attorney

charged with such conduct was performing a public service to

the court by acting as appointed counsel for the defendant.

32

Stripped of all euphemism, the plain truth is that these pe-

titioners either lied to the trial judge at the time they entered

their guilty pleas, or they are later lying to the federal court

in an attempt to overthrow their convictions. I can discern no

middle ground, and in effect we reward them for this self-

admitted mendacity by ordering an evidentiary hearing.

I do not believe I am alone in the observation that the

once Great Writ has been badly abused in the federal courts

over the past decade, and I fear that we have unwittingly

encouraged such abuse by our decisions in cases such as this.