Petitioners Brief — Blackledge v. Allison

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| Supreme Court, U. S,

FILED Z

NOV ! g 1976

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

October Term 1976

No. 75-1693

STANLEY BLACKLEDGE, Warden,

Central Prison, and

STATE OF NORTH CAROLINA,

Petitioners,

Vv.

GARY DARRELL ALLISON,

.—

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR PETITIONERS

RUFUS L. EDMISTEN

Attorney General of North Carolina

RICHARD N. LEAGUE

Assistant Attorney General

Post Office Box 629

Raleigh, North Carolina 27602

Telephone: (919) 829-7387

COUNSEL FOR PETITIONERS

TABLE OF CONTENTS

OPINION BELOW

JURISDICTION

QUESTION PRESENTED

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE:

A. Procedural History

B. Facts Underlying the

Question Presented

SUMMARY OF ARGUMENT

ARGUMENT:

I. The District Court Properly Exercised Its Discretion

in Refusing to Hear Anew the Matter of Promises

For Aliison’s Plea Wher He Offered no Substantia-

tion of His Claim.

CONCLUSION

TABLE OF CASES . .

AND OTHER AUTHORITIES Font-ine v. United States, 411

ane 2 SF To 11, 13, 16, 22

Alvereze v. United States,

Forrens v. United States, 504

Gi TOs 1108 (8 Ce WS ee 15 | fC . Ls sl

Bass v. United States, 529 | Frank v Deleed Staten 501

F2d 1374 (4 Cir 1975) 17 0 LS ee

Boykin v. Alabama, 395 US Gallegos v. United States

238 (1969) 11, 22 468 Fas 463 @ Ce 1908) 17,18

Brady v. United States, 397 Hilliard v. Beto. 465 F2d

US 742 (1970) 11 829 (5 Cir 1972) 16

Bryan v. United States, 492 Jones v. United States, 384

F2d 775 (5 Cir 1974) 13, 16,17 CC

C'arafas v. LaVailee, 391 | Loper v. Beto, 405 US 473 (1972) _ ....82

US 234 (1968) ta | Lynott v. United States, 360

Crawford v. United States, Fed 586 (3 Cir 1966) a:

519 F2d 347 (4 Cir 1975) i6 Meshiboada ©. Gaited Mtate

. 1 v. United § g, ;

Del Piano v. United States, | 368 US 487 (1962) . 12, 15, 16, 22

362 F2d 931 (3 Cir 1966) 15 M Pickett. 537 Fd

ayes v. Pickett,

Drope v. Missouri, 420 US 1080 (9 Cir 1976) ae

162 (1975) " McAleney v. United States

Dugan v. United States, 521 EL 18

F2d 231 (5 Cir 1975) 16 McM Richerd 397

| cMann v. Richardson,

Earley v. United States, 381 | ES li

F2d 715 (9 Cir 1967) 16 | Shien wn tteieeiiilaes

| icklus v. Uni ,

Edwards v. Garrison, 529 ! CO

. 874 (4 Cir 1976) NS |

F2d 1374 4 Cir 1 16) 1 | Moody v, United States, 497

Fay v. Noia 372 I cciussintusheemienasanimal 15

US 391 (1963) 21 a ey

oor . >

456 Fed 992 (8 Cir 1972) _.... dS 8

Vorman v. United States,

368 F2d 645 (3 Cir 1966)

Olive v. United States, 327

Fed 646 6 Cir 1964)

Paraaiso v. United States,

482 F2d 409 (3 Cir 1973)

Price v. Johnson, 334 US

266 (1948)

Pursley v. United States,

391 Fed 224 (5 Cir 1968)

Putnam v. United States,

337 F2d 313 (10 Cir 1964)

Raines v. United States,

423 F2d 526 (4 Cir 1970)

Reed v. United States, 441

F2d 569 (9 Cir 1971)

Roberts v. United States,

486 F2d 980 (5 Cir 1973)

Rosado v. United States,

510 F2d 1098 (5 Cir 1975)

Ross v. Wainwright, 451

Fed 298 (5 Cir 1971)

Schoultz v. Hocker, 469

F2d 681 (9 Cir 1971)

Scott v. United States,

349 F2d 641 (6 Cir 1965)

Tabory v. United States,

Fed (4 Cir 1976)

15,19

16,17

Townsend v. Sain, 372

Us 298 (1963)

Trotter v. United States,

359 F2d 419 (2 Cir 1966)

USC 28: 2246

USC 28: 2254

USC 28: 2255

United States v. Allen,

F2d (4 Cir 1976)

United States v. Battle.

447 F2d 950 (5 Cir 1971)

United States v. Davis.

319 F2d 482 (6 Cir 1963)

United States v. Frontero,

452 F2d 406 (5 Cir 1971)

United States v. Hawthorne,

502 F2d 1183 (3 Cir 1974)

United States v. Lester,

$28 F2d 971 (2 Cir 1964)

United States v. McCarthy,

433 F2d 591 (1 Cir 1970)

United States ex rel McGrath

v. LaVallee, 319 F2d 308

(2 Cir 1963)

United States v. Simpson, 436

F2d 162 (DC Cir 1970)

United States v. Tucker, 404

US 443 (1972)

16,11, 16

12, 16,18

17, 18, 19

United States v. Tweedy, 419

F2d 192 (9 Cir 1969)

United States v. Valenciano,

495 F2d 585 (3 Cir 1974)

Walters v. Harris, 460 F2d

988 (4 Cir 1972)

16,17

17, 18,19

12, 18,19

IN THE

Supreme Court of the United States

October Term 1976

No. 75-1693

STANLEY BLACKLEDGE, Warden,

Central Prison, and

STATE OF NORTH CAROLINA,

Petitioners,

Vv.

GARY DARRELL ALLISON,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR PETITIONERS

OPINION BELOW

The opinion of the United States Court of Appeals for the

Fourth Circuit, filed April 13, 1976, is reported as Allison v.

Blackledge, 537 F2d 894 (4 Cir 1976), and is printed as Ap-

yendix E in the Petition for Certiorari, pp. 23-32.

JURISDICTION

The jurisdiction of this Court is invoked under 28 USC

$1254(1), by writ of certiorari sought by a party to a civil

case after rendition of judgment. The petition was filed May

22, 1976, within the statutory ninety days from decision in the

Court below, April 13, 1976.

QUESTION PRESENTED

I. WHETHER A UNITED STATES DISTRICT COURT

HAS THE DISCRETION TO DENY A PRISONER’S

HABEAS CORPUS PETITION WITHOUT A HEARING

WHEN HIS CLAIM FOR RELIEF IS THAT HIS AT-

TORNEY PROMISED A LOWER SENTENCE UPON

HIS GUILTY PLEA THAN HE RECEIVED, BUT THIS

CLAIM IS CONTRADICTED BY A STATE COURT

FINDING OF FACT BASED ON PETITIONER’S OWN

TESTIMONY AT THE TIME OF HIS PLEA THAT HIS

ATTORNEY PROMISED HIM NOTHING FOR IT?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Constitution, Article VI:

“In all criminal prosecutions, the accused shall enjoy the

right .. . to have the assistance of counsel for his defense.”’

U.S. Constitution, Article XIV:

“No state... shall... deprive any person of life, liberty or

property, without due process of law.”

28 USC $2246:

On application for a writ of habeas corpus, evidence may be

taken orally or by deposition, or, in the discretion of the judge,

by affidavit. If affidavits are admitted any party shall have the

right to propound written interrogatories to the affiants, or to

file answering affidavits.

28 USC $2254 (f) :

“In any proceeding instituted in a Federal court by an appli-

cation for a writ of habeas corpus by a person in custody pur-

suant to the judgment of a State court, a determination after a

hearing on the merits of a factual issue, made by a State court

of competent jurisdiction in a proceeding to which the applicant

for the writ and the State or an officer or agent thereof were

parties, evidenced by a written finding, written opinion, or

other reliable and adequate written indicia, shall be presumed

to be correct, unless the applicant shall establish or it shall

otherwise appear, or the respondent shall admit—

(1) that the merits of the factual dispute were not re-

solved in the State court hearing;

(2) that the factfinding procedure employed by the

State court was not adequate to afford a full and fair

hearing:

(3) that the material facts were not adequately de-

veloped at the State court hearing:

(4) that the State court lacked jurisdiction of the sub-

ject matter or over the person of the applicant in the

State court proceeding:

(5) that the applicant was an indigent and the State

court, in deprivation of his constitutional right, failed to

appoint counsel to represent him in the State court pro-

ceeding;

(6) that the applicant did not receive a full, fair, and

adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process

of law in the State court proceeding;

(8) or unless that part of the record of the State court

proceeding in which the determination of such factual issue

was made, pertinent to a determination of the sufficiency

of the evidence to support such factual determination, is

produced as provided for hereinafter, and the Federal court

on a consideration of such part of the record as a whole

concludes that such factual determination is not fairly sup-

ported by the record:

And in an evidentiary hearing in the proceeding in the Fed-

eral court, when due proof of such factual determination has

been made, unless the existence of one or more of the circum-

stances respectivly set forth in paragraphs numbered (1) to

(7), inclusive, is shown by the applicant, otherwise appears, or

is admitted by the respondent, or unless the court concludes

pursuant to the provisions of paragraph numbered (8) that the

record in the State court proceeding, considered as a whole, does

not fairly support such factual determination, the burden shall

rest upon the applicant to establish by convincing evidence

that the factual determination by the State court was er-

roneous.”

28 USC $2255:

“A prisoner in custody under sentence of « court established

by Act of Congress claiming the right to be released upon the

ground that the sentence was imposed in violation of the Con-

stitution or laws of the United States, or that the court was

without jurisdiction to impose such sentence, or that the sen-

tence was in excess of the maximum authorized by law, or is

otherwise subject to collateral attack, may move the court

which imposed the sentence to vacate, set aside or correct the

sentence,

A motion for such relief may be made at any time.

Unless the motion and the files and records of the case con-

clusively 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, determine the issues

and make findings of fact and conclusions of law with respect

thereto. If the court finds that the judgment was rendered with-

out jurisdiction, or that the sentence imposed was not authoriz-

ed by law or otherwise open to collateral attack, or that there

has been such a denial or infringement of the constitutional

rights of the prisoner as to render the judgment vulnerable to

collateral attack, the court shall vacate and set the judgment

aside and shall discharge the prisoner or resentence him or

grant a new trial or correct the sentence as may appear ap-

propriate.” |

HHH HEHE

STATEMENT OF THE CASE

A. Procedural History

This case began with the filing of a petition for a writ of

habeas corpus in the United States District Court for the

Middle District of North Carolina, Greensboro, North Caro-

lina on February 15, 1973. In that petition, Gary Darrell

Allison made three claims for relief: his attorney had promised

him a lesser sentence if he pled guilty than he received when

he did so; he was not advised of his right to appeal; and he did

not receive a post-conviction hearing. The State responded that

his first contention was refuted by his testimony at the time

of his plea; that he had ne ight to advice on an appeal because

he pled guilty; and that the absence of a post-conviction

hearing was not a ground for relief in habeas corpus. The case

was finally dismissed without a hearing on August 16, 1974

for the failure of the petitioner to produce certain affidavits in

support of his claim. Allison then appealed to the United States

Court of Appeals for the Fourth Cireuit in Richmond, Vir-

winia, and the case was briefed and argued with court-appoint-

ed counsel, C. Frank Goldsmith, Esquire, of Marion, North

Carolina, appearing on behalf of petitioner. Before the Fourth

Cireuit, Allison contended the allegation about his sentence

stated a claim which if true, would entitle him to relief; he was

entitled to a hearing on it; and the direction of the Court to

him, during the pendeney of the proceedings, to supplement his

petition with affidavits was error. The State argued no sig-

nificant state action was involved in Allison’s claim; an ade-

quate state hearing had been held at trial, the results of which

could be accepted by the Court; and the Court's action in at-

tempting to obtain affidavits from him was authorized and

reasonable, On April 18, 1976, the Court of Appeals ruled in

Allison's favor, holding he was entitled to a hearing and that

the District Court acted improperly in seeking affidavits. A

writ of certiorari from this Honorable Court was sought by

Warden Blackledge and the State of North Carolina on May

27, 1976, and granted on October 4, 1976.

B. Facts Underlying the

Question Presented

On January 24, 1972, in the Superior Court of Almance

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

Presiding, Gary Darrel] Allison entered a plea of guilty am case

number 71 CRS 15073, in which he was charged with attempted

safe robbery (“safecracking’). At this time, he was represent-

ed by counsel, Glenn Pickard, Esquire. Before Judge Blount

accepted Allison's plea, he placed Allison under oath and asked

him some fourteen questions in accordance with a formalized

North Carolina procedure in order to determine whether or not

his plea was an intelligent, knowing and voluntary act. These

questions appeared on a form entitled “Transeript of Plea”

(App p11, 12) 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 can-

vass of his ability to prepare a defense. In response to these

questions, Allison acknowledged, among other things, that he

was guilty and that he understood that he could be imprisoned

from ten vears 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. At the end of this proceeding, he also

stated that he had no further statements or any questions, and

signed a form recording the above answers.’ On the basis of the

overall inquiry, a number of findings were made, including

one that “the plea of guilty by the defendant is freely, under-

1. Allison's commitment states that he did address the bench at some

point, however, the undersigned was informed by the court report-

er that this was not transcribed and so its content has never been

before any of the courts considering this matter.

standingly and voluntarily made without undue influence, com-

pulsion 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 one years (App p 14).

He did not appeal.

Thereafter, Allison began his collateral attack in the courts

of the State of North Carolina, and having unsuccessfully ex-

hausted his state remedies there, he applied for a writ of habeas

corpus in the United States District Court for the Middle

District of North Carolina on or about February 15, 1973.

With regard to the issue before this Honorable Court, he

alleged that this plea of guilty to the charge of attempted safe

robbery was the result of the following episode:

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

Pickard, that he, Mr. M. Glenn Pickard, had talked 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 he plea [sic] guilty,

he would only get ten years was witnessed by another

party other than the petitioner and counsel.” (App p 2, 3)

In reviewing Allison's application, Honorabie Eugene A. Gor-

don, Chief Judge 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 Judge Gordon ac-

cepted this examination in lieu of a further hearing on the

matter. 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 misrepresentation by counsel about

a sentence. Therefore, he dismissed the application without

evidentiary hearing (App p 15). Allison sought a reconsidera-

tion, (App p 17) 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 in support of this claim by the witness he had original-

lv mentioned (App p 19-20) . Instead of doing this, Allison sent

a letter on or about May 13, 1974, saying that his witness was

unable to get his statement notarized (App p 25). He was then

informed that the superintendent of the prison unit in which

his witness was incarcerated was a notary (App p 26). There-

after, Allison followed this on or about May 17, 1974, saying

that his mother had written him that papers had been notarized

but were then torn up by the notary (App p 22). This was in-

terpreted by the District Court as suggesting state interference

with his right to access to the courts for the Clerk then sug-

gested that Allison have his mother swear to this by affidavit

and get an unsworn statement from the witness, with that

statement to include a recitation of his attempts to get his

paper notarized (App » 23). Neither were forthcoming. In-

stead, 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 statement my co-defendant was supposed to make was not

made because he is afraid of his parole and work release.” (App

p 24). On August 16, 1974, Judge Gordon again dismissed his

application (App p 25, 26). Allison then sent to the court an

unsworn statement to which his co-defendant’s name was sign-

ed, witnessed by three persons without designation, again

seeking reconsideration of the judge’s second order (App p 28-

30). Nothing was said in the statement forwarded about state

interference with the witness’ access to the courts, and Allison

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

tion was therefore declined by Judge Gordon who noted in

passing that petitioner's pleadings had been notarized (App

p3l).

SUMMARY OF ARGUMENT

Allison's plea proceeding was a thorough one, which provided

findings of fact that the District Court should have and did

use in coming to its decision on whether or not to grant Allison

a hearing on his allegation that his lawyer promised him a

lower sentence than he received on his plea of guilty. The Dis-

“

trict Court's tentative decision to re-open the case if there was

independent support for Allison’s claim was suggested by de-

cisions of this Honorable Court and other courts, and _ its

method of handling the initial showing by affidavit was entirely

proper. On the other hand, the Court of Appeals decision re-

versing the District Court is based on an inconsequential factor.

Moreover, the basis of its decision runs counter to general ex-

perience, and the decision itself places an undue burden on the

government in light of the circumstances alleged, disregards

equitable considerations, and overlooks a substantial motiva-

tion underlying the filing of petitions. Therefore, the Court

of Appeals should be reversed.

ARCUMENT

THE DISTRICT COURT PROPERLY EXERCISED

ITS DISCRETION IN REFUSING TO HEAR ANEW

THE MATTER OF PROMISES FOR ALLISON’S

PLEA WHEN HE OFFERED NO SUBSTANTIATION

OF HIS CLAIM.

The District Court properly handled Allison’s application

for the writ when it re-opened his case. Accordingly, the Court

of Appeals erred in reversing the District Court and should

itself be reversed by this Honorable Court for the reasons which

follow.

Allison presented an application to the District Court which

alleged his lawyer told him that if he pled guilty, he would

receive a sentence of ten years, and that he had been led to be-

lieve that this had been cleared with the judge and the solicitor

by his lawyer. When the return of the writ was made, however,

the transcript of plea showed Allison had sworn under oath at

trial that no promises had been made to him by anyone to

influence his plea and that he knew he could get as much as

life imprisonment on the charge. Therefore, taking the applica-

tion and the transcript together, Allison's assertion indicated he

had lied at trial. The District Court's reaction to this was to

try to have him corroborate his claim before committing trial

time to it. Due to the fact that Allison said that the alleged

misrepresentation by his lawyer was witnessed, the Court told

him to get an affidavit from this witness to attach to his

application. The affidavit never came however, and after the

Court had been given the run-around three times, it properly

dismissed the action.

The District Court's basis for dismissal was the failure of

petitioner to substantiate his claim of plea bargaining and its

breach, i.e., the failure to tender new evidence to the Court.

This was a permissible approach for the District Court to take

because, absent such evidence, all the Court had before it was

a state court finding from Allison’s plea proceeding which

belied his claim. This state court finding was properly relied

on since such determinations are presumed correct and or-

dinarily should be utilized by the federal judiciary in deciding

habeas corpus cases, 28 USC §2254(d), Townsend v. Sain,

372 US 293 (1963), provided the hearing was a reliable one.

The reliability of Allison’s plea proceeding cannot be faulted.

He was represented by counsel at the time he was tried, and

the trial judge took great pains to determine that Allison’s

plea was a constitutionally valid one. In accordance with nor-

mal North Carolina procedure, Allison was sworn and first

questioned on his mental competency. Then he was queried

on his understanding of the charges against him. Next Judge

Blount asked him about his understanding of the pleas avail-

able and the possible maximum sentence. When it was deter-

mined that he wished to plead guilty, Allison was questioned

about his guilt, his trial preparedness, whether or not he was

pleading on account of promises, and whether his plea was

voluntary or coerced. Finally, he was afforded allocution, but

evidently declined it at that time. None of Allison’s answers

to any of the questions indicated there was anything amiss

with regard to his plea. Therefore, no additional questions

were asked him to amplify his responses about any of the areas

touched upon. Instead, as a result of Allison’s sworn testimony,

it appeared to Judge Blount that Allison knew he might get as

much as life imprisonment and that no one had made him any

promises for his plea. Accordingly, the judge concluded the plea

was not induced by any promise of leniency, and on the basis

of Allison’s other sworn testimony, Judge Blount found the

plea was entered understandingly and voluntarily. These con-

clusions covered the necessary matters of mental competence,

Drope v. Missouri, 420 US 162 (1975) ; effective assistance of

counsel, McMann v. Richardson, 397 US 759 (1970) , including

knowledgeable forfeiture of trial rights, Boykin v. Alabama,

- $95 US 238 (1969) ; and the absence of any physical or mental

mistreatment or threats of same, Brady v. United States, 397

US 742 (1970). In addition, these conclusion determined the

absence of any plea bargain to be enforced or misrepresentation

by counsel to be uncovered. Therefore, because of both the

overall completeness of Allison’s at-trial hearing and its cover-

age of the matter in issue here, it provided findings which the

District Court should have accepted in lieu of further hearing

under Townsend v. Sain, infra, and which it had to presume

correct under 28 USC §2254. Accordingly, its dismissal was

justified on this basis, nothing else appearing, even though the

District Court did not expressly rely on the findings from the

plea proceeding in so many words.

The District Court also utilized authorized procedures in

dealing with Allison prior to rightly dismissing his case on the

basis above. It exercised its Townsend-authorized discretion

in handling the matter by seeking out an initial showing of

new evidence before reconsidering the merits of the case. This

had been previously suggested as a basis for re-hearing by Part

ITI of Townsend v. Sain, 372 US 293, 788 (1963), where

there was no “inexcusable neglect” and was the factor on

which main reliance was placed by this Honorable Court when

authorizing a hearing in Fontaine v. United States, 411 US

213 1973. The District Court sought the showing by way

of affidavit—a suggested preliminary technique in the Fourth

Circuit before this case, Raines v. United States, 423 F2d 526

(+ Cir 1970); Walters v. Harris, 460 F2d 988 (4 Cir 1972) :.

and since this case, Tabory v. United States, — Fd (75-

1081, Sep. 22, 1976): a technique suggested in other circuits

as well, Moorhead v United States, 456 F2d 992 (3 Cir 1972);

United States v. Hawthorne, 502 F2d 1183 (3 Cir 1974); and

a technique authorized for taking evidence on the merits of

the case under 28 USC $2246. Accordingly, when the new

evidence Allison said existed was not forthcoming, and he

made suspicious excuses for not producing some indication of

it, the reliance the District Court should have placed on state

court findings was significantly enhanced, and its decision to

again dismiss the case rested on even a firmer ground than

before.

The propriety of the District Court's action in both of the

above regards is confirmed by a survey of the modern pre-

cedents on the problems of granting hearings on allegations of

misrepresentation by counsel or broken plea bargains.* This

history begins with Machibroda v. United States, 368 US 487

1962). In that case, Machibroda had been convicted and

sentenced without a Rule 11 inquiry to determine if his plea

was freely made and if it was in exchange for any concessions

)

2. These phrases are two of several which describe sub-groups of

cases within the general area of pleas induced by certain expecta-

tions. The first group of cases involves a prediction by an attorney

as te sentence or other action upon a guilty plea. When this does

not pan out, it is generally held not to be a basis for setting a plea

aside. An occasional case also deals with pleas induced by predic-

tions by government personnel, with relief being allowed under the

“mistake of fact” recission doctrine. Another sub-group of cases

involves unfulfilled assurances by counsel that if a plea is made,

certain things will come to pass, without the assurance including

any mention of the government as having promised them. A fourth

group involves alleged unkept assurances by counsel that the

government has promised something for his plea. The final group

involves alleged unkept assurances made to the defendant personal-

ly by the government, with or without the presence of his counsel.

from the government. He later attacked it in a motion ac-

companied by a nineteen paragraph affidavit, detailing the par-

ticulars, persons, places and times involved in the alleged epi-

sodes of plea bargaining and coercion. This was dismissed

without a hearing in the District Court and its decision was

affirmed by the Court of Appeals. However, this Honorable

Court reversed on the grounds that 28 USC $2255 required

a hearing because the motion, files and records of the case did

not “conclusively” show that the prisoner was entitled to no

relief. Although the majority opinion described the Machibroda

case as “marginal” and “ not far from the line”, the Court was

impressed by the fact that the record showed nothing on the

matter and the affidavit about it wa detailed. The importance

of detail and supporting material has recently been re-affirmed

by this Honorable Court's decision in Fontaine v. United

States, 411 US 213 (1973), dealing with a different context—

mental competence. In that case, hospital records were tender-

ed in support of Fontaine's claims and showed hospitalization

a month following his plea for heroin addiction, and other

severe injury and illness. Once again, this Honorable Court held

that the 28 USC $2255 standard of conclusiveness was not met

when this material was compared with the evidence taken at

the Rule 11 plea proceeding (not set out in the opinion) . This

differs from the ordinary case such as Allison’s and this differ-

ence has been impressively stated by Judge Clark of the Fifth

Circuit, writing for the majority in the en bane decision in

Bryan v. United States, 492 F2d 775 (5 Cir 1974):

“ _. The record of the plea proceedings in the case at bar

reflects that both Bryan and his attorney testified with-

out conflict or equivocation that no plea bargain had been

made or promised, directly or indirectly.* No such testi-

mony appeared in the files and records developed in Fon-

3. Allison’s case differs from Bryan's in that Allison’s lawyer evi-

dently made no representations to the court at trial about the

absence of promises.

taine and Machibroda. In neither of these cases had _peti-

tioner and his attorney been required to testify in open

court as to whether a bargain had been struck. In neither

case did explicit denials of plea bargains appear as a part

of a duly recorded court proceeding record. To the con-

trary, not only was the subject of plea bargaining entire-

lv absent from Fontaine's record but also those documents

disclosed that he did not even have an attorney. The

Machibroda record shows that the only person permitted

to speak at the time of his sentencing was the attorney

from whom knowledge of the alleged plea bargain had

assertedly been withheld.

It is one thing to hold that petitioner facing files and

records that are silent on the subject of plea bargaining

is entitled to develop a charge that a police official or

prosecutor bargained not only for his plea but for conceal-

ment of the bargain itself. It is a wholly different thing to

say that a district judge must accord a hearing to a peti-

tion which advances, not the suppression of an unraised

fact, but the utterly incredible assertion that all former

official proceedings in his cause were no more than a

stultifying charade in which justice was mocked by every

participant—even the judge himself.

HHRHKHHHHHHHE

The Supreme Court said that Machibroda was ‘not far

from the line’. This case is way over it.” Jd. at 780.

Therefore, in light of these precedents, the District Court’s

disposition was clearly correct.‘

4. In addition to Allison's claim, like Bryan’s, having been con-

tradicted, an additional factor wcighs against a hearing for him that

is not present in Bryan or most of the other cases which follow.

As Allison was a state prisoner, the standard of conclusiveness was

inapplicable to the prior proceeding concerning him, since that

standard appears only in 28 USC $2255 dealing with federal prison-

ers, not in 28 USC §2254, dealing with state prisoners. Therefore,

prior proceedings concerning Allison are not gauged with the same

stringency as those of Bryan and other federal prisoners.

The District Court's decision is also supported by an an-

alysis of post Machibroda authority. The majority of cases

show heed paid to the salient facts in Machibroda and rulings

made accordingly. For example, where an allegation of mis-

representation by counsel or a broken plea bargain by govern-

ment has been made, and there evidently has been no dis-

claimer of promises at the time of a plea, a hearing has been

directed, Scott v. United States, 349 F2d 641 (6 Cir 1965) ;

Del Piano v. United States, 362 F2d 931 (3 Cir 1966); Reed

v. United States, 441 F2d 569 (9 Cir 1971) ; Shoultz v. Hocker,

469 F2d 681 (9 Cir 1971) (state case) ; United States v. Battle,

447 F2d 950 (5 Cir 1971); Micklus v. United States, 587 Fd

“$81 (9 Cir 1976), although the aspect of detail in alleging the

episode has not been critically dealt with except in the Scott

and Micklus cases. On the other hand, where a misrepresenta-

tion by counsel or a broken plea bargain by government is

alleged by one who has previously told the court that he has

received no promises for his plea, some cases have held that

files and records meet the statutory “conclusive” standard on

this account alone, United States v. Davis, 319 F2d 482 (6

Cir 1963): Putnam v. United States, 337 F2d 313 (10 Cir

1964): Norman v. United States, 368 F2d 645 (3 Cir 1966) ;

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

United States, 510 F2d 1098 (5 Cir 1975). Still other cases

have reached the same result on the basis of an at-trial dis-

claimer of promiséS without employing a form of the statutory

term, conclusiveness, Lynott v. United States, 360 F2d 586 (3

Cir 1966): Alvereze v. United States, 427 F2d 1150 (5 Cir

1970); Moody v. United States 497 F2d 359 (7 Cir 1974);

Frank v. United States, 501 F2d 173 (5 Cir 1974) . Yet another

group of cases came to this result in partial reliance on other

noteworthy factors as well as the disclaimer of promises, Olive

v. United States, 327 F2d 646 (6 Cir 1964) (failure to use

opportunity to speak plus conclusory allegations); United

States v. Lester, 328 F2d 971 (2 Cir 1964) (failure to speak

at previous opportunity plus experience in criminal prosecu-

tions); Karley vo. United States, 381 F2d 715 (9 Cir 1967)

(meticulous overall examination on plea plus conclusory al-

legation) ; United States v. Tweedy, 419 F2d 192 (9 Cir 1969)

‘failure to mention complaint when writing the judge three

letters); United States v. Frontero, 452 F2d 406 (5 Cir 1971)

lawyer's statement inconsistent with claim plus conclusory

allegation); Bryan v. United States, 492 F2d 775 (5 Cir 1974)

lawyer's statement inconsistent with claim); Forrens. v.

United States, 504 F2d 65 (9 Cir 1974) (failure to mention

the complaints when writing the judge plus delay of two years

in complaining); Crawford v. United States, 519 F2d 347 (4

Cir 1975) (use of the words “plea bargain” in examining the

accused). The decisions in each of last three groups above

support the District Court's dismissal and show that its ulti-

inate disposition of the case was proper.

The District Court's approach, as well as its decision is

supported by another group of post Machibroda precedents—

cases like Machibroda and Fontaine in which a hearing was

ordered. In this group of cases, there has been some indepen-

dent basis for re-examining the plea proceedings beyond the

word of the prisoner. In United States v. Hawthorne, 502 Fd

1183 65 Cir 1974) and Ross vo. Wainwright, 451 Fd 298 (5

Cir 1971) (state case), the record itself showed the incomplete

resolution of the conflicts concerning the existence of plea

bargaining. In /lilliard vo. Beto, 465 F2d 829 (5 Cir 1972)

state case), the record showed a substantial reason to lie

in that the judge would net accept a bargained plea and

Hillard faced death if his plea were unacecepted. In Roberts v.

United States, 486 F2d 980 (5 Cir 1973) and Dugan v. United

States, 021 Fld 231 (5 Cir 1975). the record was supplement-

ed by substantial corroboration in the form of affidavits,

some from apparently reliable third parties. Each of the above,

like the intended vield of the Distmet Court's efforts, bears

some resemblance to one of the bases for re-hearing set out in

Townsend v. Sain, 372 US 298 (1963). Accordingly, they

demonstrate the propriety of the District Court's dismissal in

the absence of some comparable factor in Allison’s case.

The Court of Appeals attached significance to an inference

from the allegations in this case that A.tison’s “no promises”

statement was part of a cover-up in which he was told to lie

to get his plea accepted. Mention of this factor has been made

in other cases, United States v. Tweedy, 419 F2d 192 (1969) ;

United States v. Simpson, 436 F2d 162 (DC Cir 1970). Gal-

legos v. United States, 466 F2d 740 (5 Cir 1972); Roberts v.

United States, 486 F2d 980 (5 Cir 1973); United States v.

Valenciané, 495 F@d 585 (3 Cir 1974); Forrens v. | nited

States, 504 F2@d 65 (9 Cir 1974); Bass v. United Stai +, 529

F2d 1374 (4 Cir 1975). However, it adds nothing to th basic

contention and should have no significance as the pleading

factor. It would be the expected explanation for an allegedly

false answer, and the only possible one except for an unreal

degree of inattentiveness or reckless disregard. Even with this

additional allegation, the claim remains one of either ineffec-

tive assistance of counsel or of fundamental unfairness, or both,

depending on who supposedly procured the prisoner’s perjury;

and, like the basic allegation, is belied by the transcript in ‘hat

it runs counter to the oath. In writing the opinion in Bryan v.

United States, 492 F2d 775 (1974), Judge Clark pointed out

the pitfall involved in using this additional factor as a basis

for a hearing:

“It is one thing to hold that a petitioner facing files and

records that are silent on the subject of plea bargaining

is entitled to develop a charge that a police official or

prosecutor bargained not only for his plea but for con-

cealment of the bargain itself. It is a wholly different thing

to say that a district judge must accord a hearing to a

petition which advances, not the suppression of a un-

raised fact, but the utterly incredible assertion that all

the former official proceedings in his cause were no more

than a stultifying charade in which justice was mocked

by every participant—even the judge himself. No proceed-

ing, not a single conceivable one, would enjoy the finality