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Utah Supreme Court Briefs
1990
Oliver Benjamin Gerrish v. State of Utah and M.Eldon Barnes : Petition for Writ of CertiorariUtah Supreme Court
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Original Brief Submitted to the Utah Supreme Court; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.unknown.unknown.
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Recommended CitationPetition for Certiorari, Gerrish v. Utah, No. 900352.00 (Utah Supreme Court, 1990).https://digitalcommons.law.byu.edu/byu_sc1/3136
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IN THE UTAH COURT OF APPEALS
OoOoo
Oliver Benjamin Gerrish, Jr.,
Petitioner and Appellant,
v.
M\l 41990
The State of Utah, M. Eldon Barnes, Warden, Utah State Prison,
Respondent and Appellee,
MEMORANDUM DECISION (Not for Publication)
Case No. 900188-CA
Before Judges Billings, Davidson, and Greenwood. (On Law & Motion).
PER CURIAM:
Petitioner appeals the trial court's dismissal of his petition for writ of habeas corpus. We summarily affirm the trial court's dismissal upon our own motion for summary disposition pursuant to Utah R. App. P. 10(e).
On September 25, 1985, petitioner, Oliver Benjamin Gerrish, pled guilty to aggravated sexual abuse of a child, a first degree felony and was sentenced to a minimum mandatory term of six years to life in the Utah State Prison. On appeal to the Utah Supreme Court, petitioner challenged the minimum mandatory sentencing scheme. The court affirmed the sentence as constitutional. Petitioner also filed a motion with the supreme court seeking dismissal of his conviction-sentencing. The court dismissed the motion without explanation, terming it a petition for writ of habeas corpus. In May 1989, petitioner filed a petition for writ of habeas corpus in the trial court attacking his guilty plea conviction. The court dismissed the petition as successive and procedurally barred. Petitioner appealed and the Utah Supreme Court dismissed the case for lack of prosecution.
In June 1989, petitioner filed a motion to set aside the guilty plea. The court denied the motion, stating that the record as a whole established that petitioner entered his plea knowingly, intelligently and with full understanding of the rights that he was waiving and of the potential consequences of the entry of his plea. Petitioner appealed and the case was
trial court's dismissal of the petition for writ of habeas corpus because the appeal presents no substantial question for review.
ALL CONCUR:
Qjc&L w- SU^f^J J u d i Billings, Judge
Richard C. Davidson, Judge ^^L&hfs*^
Pamela T. Greenwood, Judge
rfJo/K^/x 8.
J An 3 0 1390
IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT
IN AND FOR SALT LAKE COUNTY, STATE OF UTAH
OLIVER BENJAMIN GERRISH, JR.,
Petitioner,
vs.
THE STATE OF UTAH, M. ELDON BARNES, Warden, Utah State Prison,
Respondent.
ORDER OF DISMISSAL
CASE NO. 890906266 HC
For the reasons set forth in respondent's Memorandum in
Support of their Motion to Dismiss,
IT IS ORDERED, that this matter be and hereby is dismissed.
Dated this So^ day of January, 1990.
MICHAEL R. MURPHY DISTRICT COURT JUDGE
GERRISH V. STATE PAGE TWO ORDER OF DISMISSAL
MAILING CERTIFICATE
I hereby certify that I mailed a true and correct copy
of the foregoing Order of Dismissal, to the following,
this Jo a y of January, 1990:
Oliver Benjamin Gerrish, Jr. Pro se P.O. Box 250 Draper, Utah 84 02 0
Dan R. Larsen Assistant Attorney General 236 State Capitol Salt Lake City, Utah 84114
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IN THE THIRD JUDICIAL DISTRICT COURT
OF SALT LAKE COUNTY STATE OF UTAH
* * *
Case No. CR85-1142 CR85-1143
THE STATE OF UTAH,
Plaintiff,
vs.
OLIVER BENJAMIN GERRISH,
Defendant.
BE IT REMEMBERED that the above-entitled cause
came on regularly for hearing before the Honorable
Timothy R. Hanson, a Judge of the Third Judicial District
Court of the State of Utah, at Salt Lake City, Salt Lake
County, State of Utah on the 29th day of September, 1989,
at 9:00 a.m., and that the following proceedings were
had.
BUNNY C. NEUENSCHWANDER, CSR, RPR Page 1
sworn, please, sir.
HARLAN Y. HAMMOND
Called as a witness in behalf of the defendant, was
sworn and testified as follows:
DIRECT EXAMINATION
By Mr. Alba:
Q. Would you give us your name for the record,
please?
A. Harlan Y. Hammond.
Q. Mr. Hammond, how are you employed, sir?
A. I'm chief counsel for Financial
Administrative Services, which is a legal and accounting
firm.
Q. And Mr. Hammond, how long — are you an
attorney, sir?
A* Yes, I am.
Q. Admitted to practice in the State of Utah?
A* Yes.
Q. And how long have you been admitted to
practice in this State?
A. Since 1961.
Q. And since 1961, Mr. Hammond, have you
practiced within the State of Utah?
A. Yes, I have.
Q. Have you practiced elsewhere other than
Page 14 BUNNY C. NEUENSCHWANDER, CSR, RPR
within the State?
A, No, I haven't.
Q. And what has been the nature of your
practice, sir, if you can characterize it for the court?
A. Basically it has been some corporate work,
some domestic law, some estate planning. Last six years
I've done quite a lot of trusts, and the like.
Q. During the period of time, sir, since 1961,
have you been engaged in doing any criminal defense work,
sir?
A. No, I haven't.
Q. Now, were you the attorney, sir, who
undertook the representation of Mr. Gerrish sometime in
1985?
A. Yes.
Q. And would you relate to the court the
circumstances under which you became engaged to represent
Mr. Gerrish?
A, Yes. Mr. Gerrish lived in an apartment two
houses up from where I lived on First South. I lived at
1245 East First South at the time, and I was well
acquainted with Mr. Gerrish. I was well acquainted with
his situation. We were talking out on the parking of my
home there at the time that I learned that he was
requesting — going to be picked up for a matter, and I
Page 15 BUNNY C. NEUENSCHWANDER, CSR, RPR
Q. Had you undertaken to represent anyone
charged with the same type of crimes that were alleged
against Mr. Gerrish prior to that date in 1985 when you
appeared in front of Judge Hanson?
A. I don't believe I did.
Q. Prior to your appearance, sir, in front of
Judge Hanson on September 25th of 1985, had you had any
conversations with representatives from the county
attorneys office regarding any plea agreement to be
reached regarding this case?
k. Yes.
Q. With whom, sir, did you have these
conversations ?
A. It was a lady attorney, and I don't remember
her name.
Q. Karen Knight-Eagan? Do you recall that?
A. Very likely.
Q. How many conversations did you have with Ms.
Knight-Eagan?
A. I believe I talked with her on the telephone
prior to the plea hearing, and I believe I talked with
her just before the hearing.
Q. Right before the hearing itself here in
court?
A. Yes.
Page 20 BUNNY C. NEUENSCHWANDER, CSR, RPR
Q. Now, did you ever take an opportunity, sir,
after your conversations with Ms. Knight-Eagan, to relay
to Mr. Gerrish the substance of that agreement that had
been reached with the prosecution in this case?
A. Yes. I conveyed to him what they were
attempting to do. They asked if he had — if he would —
if he would plead guilty to one of the cases brought
before him.
Q» And he had how many cases?
A. He had two. That they would drop one case,
and as nearly as I can recollect, strive for a three year
sentence.
Q. Okay. Now, what is your specific
recollection, Mr. Hammond, about a three year sentence?
A. Well, what do you mean?
Q. You mentioned a three year sentence, sir, and
I don't understand in what context that came up.
A. Well, the law allows three types of
sentencing for this kind of matter, and one is three
years, one is six years, and one is nine years.
Q. And that was your understanding, sir, of what
the statute provided for in terms of possible sentences
in the event of a change of plea by Mr. Gerrish?
A. Yes. Yes, it was.
Q. It is your testimony today that you conveyed
Page 21 BUNNY C. NEUENSCHWANDER, CSR, RPR
that to Mr, Gerrish prior to his appearance in front of
the court for the change of plea?
A. I don't know how much I conveyed to Mr.
Gerrish. I conveyed to him what the prosecuting attorney
had told me.
Q. And I'm not sure I understand exactly what
that was, sir.
A. Well, that was that one case would be
dismissed, and that the prosecuting attorney thought that
she could get him off on a three year sentence.
Q. And what did you understand that three year
sentence to be? That Mr. Gerrish would serve three years
only?
A. Yes.
Q. Did you convey that to Mr. Gerrish?
A. I believe I did. I'm sure I did.
Q. And you were present at the time that Judge
Hanson advised Mr. Gerrish of possible sentences that
could be imposed on September 25th, 1985, were you not,
sir?
A. Yes, I was here.
Q. And do you recall the Judge telling Mr.
Gerrish that he could receive five years under one set of
circumstances, ten years under another set of
circumstances, or fifteen years under a third set of
Page 22 BUNNY C. NEUENSCHWANDER, CSR, RPR
Q. (By Mr. Alba) Mr. Hammond, at any time on
September 25th, 1985, when Mr. Gerrish entered his plea
of guilty, sir, do you recall ever advising the court of
the conversation that you had had with the probation —
excuse me, with the prosecutor's office regarding the
possible three year sentence that could be imposed on Mr.
Gerrish?
A. I don't recall. I don't think I did.
Q. Do you recall, sir, having raised that
particular issue again, the three year possible sentence,
on October 21st, 1985, at the time of Mr. Gerrish's
sentencing?
A. NO.
Q. Were you aquainted, Mr. Hammond, with any of
the alleged victims who were named in the three separate
criminal charges that were brought against Mr. Gerrish?
A. I was somewhat. I lived in their ward. I
didn't know them — well, I knew the parents, but I don't
recall the children, and I didn't recall the children at
that time.
Q. Did you ever have any conversations with the
parents during the course of your representations with
Mr. Gerrish?
A. It was just one time.
Q. And when did that occur in relation to the
Page 25
of the possible penalties that you could receive under
the statute?
A. No, sir.
Q. You heard his testimony, sir, regarding some
discussion about three years. What is your recollection,
sir, about the three years?
A. It came when we were in the jury room, Mr.
Hammond told me, "Oliver, if you plead guilty to one
count, the prosecutor has agreed to drop the other two.
The prosecute has promised me that you will receive only
a three year sentence. You will be out in three years.
The Judge knows about this, so there is no need for you
to bring it up in court. It is all set up." That's a
quote.
Q. You appeared — well, let me just put it in
perspective. Did you meet with Mr. Hammond on the 23rd,
and is that why you were filling out the affidavit in the
jury room?
A. I don't recall the date, but —
Q. Eventually you appeared in court on the 25th
in front of Judge Hanson, and entered a plea of guilty to
one count; is that correct, sir?
A* Yes, sir.
Q. Did you ever bring up with the court, sir,
what Mr. Hammond had told you about in the jury room?
A. No, sir.
Q. Was Mr. Hammond present in court, sir, when
you appeared after sentencing for the reduction of
sentence that occurred in I believe it was February of
1986?
A* It was February 16th, 1986.
Q. Who represented you in those proceedings?
A. Counsel Joe Carol Nesset-Sale.
Q. Was she counsel who had undertaken to
represent your case, sir, on appeal during that period of
time?
A. I was made to understand on the 16th that she
had been appointed to represent me, but that was the only
time I saw her.
Q. You are presently in custody, sir, at the
Utah State Prison?
A. Yes, sir.
Q. And have been in continuous custody since
when, sir?
A. Since I was arrested. I believe I was
arrested August 29th, 1985.
Q. And on any other charges other than the ones
presently before the court?
A. No, sir.
Q. There is no other holds, no other charges
Page 50 BUNNY C. NEUENSCHWANDER, CSR, RPR
Number two, counsel must if an agreement is reached,
advise the defendant of what that agreement consists of,
and advise the court of what that agreement consists of.
It is uncontroverted that the three year discussion took
place. In fact, Mr. Hammond's recollection was that he
had told that to Mr. Gerrish, that the prosecution had
made those representations regarding the three years.
And I think it's evident, and clear from the record that
when those items are presented to the defendant, and the
defendant relies on those representations, then anything
that occurs in court is not voluntary because of that.
And for that proposition, Your Honor, I have a case —
the only case that I was able to find regarding that
particular area, if I may submit a copy to the court at
this point, and I have a copy for counsel as well. This
is a Third Circuit Court of Appeals case in United States
versus Marsgliano. And in essence, the issue that was
presented in that case concerns the voluntariness of a
plea of guilty that was entered into by a defendant who
had been told, and made certain representations by his
counsel — given advice not to follow, or not to bring
that up at the time of the plea or in front of the court,
and then a different sentence was imposed. In that
particular case, the Third Circuit reversed the matter,
sent it back down. This came up on a writ of habeas
Page 72 BUNNY C. NEUENSCHWANDER, CSR, RPR
corpus, where the court below the District Court had
denied a hearing. The Third Circuit Court of Appeals
felt that there was sufficient evidence presented
concerning the voluntariness of the plea when that set of
circumstances occurs, where an individual defendant is
given certain information, he relies on that information,
and then to his detriment,the court does not follow that
particular recommendation because it never becomes part
of the record.
That is another instance, Your Honor, of the
ineffective assistance of counsel that was presented, and
demonstrated by Mr. Hammond in this particular case. A
third instance, Your Honor, deals with the waiver that
occurs. And I asked Mr. Hammond his recollection. He
was negligent, and I think that's being kind concerning
any discussion at all about a preliminary hearing. And
there are myriad cases in this particular jurisdiction,
Your Honor, that deal with the importance of a
preliminary hearing. It is not a perfunctory matter, it
is in fact a hearing that entitles a defendant to a
determination of probable cause. In this particular
case, Mr. Hammond's recollection regarding that was
simply that he had none. Mr. Gerrish's recollection
regarding that was that Mr. Hammond advised him it would
be of no import, and to waive the preliminary hearing.
Page 73 BUNNY C. NEUENSCHWANDER, CSR, RPR
tf/>/>&Ob/X h.
Utah§tateBar Office of Bar Counsel 645 South 200 East • Salt Lake City, Utah 84111-3834 Telephone: (801) 531-9110 • (WATS) 1-800-662-9054 A8A/Net: ABA 1152
October 7, 1988
Mr. Oliver B. Gerrish P.O. Box 250 Draper, Utah 84020
RE: Complaint against Harlan Y. Hammond
Dear Mr. Gerrish:
... Per the request of your letter of September 20, 1988, and our recent telephone conversation, I am providing to you the two ethical rules which the Screening Panel of the Ethics and Discipline Committee of the Utah State Bar found that Mr. Hammond had violated. The Panel found that Mr. Hammond violated Canon 6, DR6-10KA)(1) which prohibits a lawyer from handling a legal matter which he knows or should know that he is not competent to handle. In your case the Panel felt that Mr. Hammond was not sufficiently familiar with the criminal law relating to your sexual abuse charge and the sentencing ohase.
The Panel also found that Mr. Hammond violated Canon 5. DR5-105(A) which requires that a lawyer decline employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment. The Panel believed that Mr. Hammond displayed some bias about the ultimate sentencing outcome of the criminal charge against vou and that he improperly confused his professional role and his ecclesiastical role and failed to act properly in his role as an attorney.
I hope that the above information is helpful to you. Again, I would remind you that this discipline is
private and would ask that you use discretion in disclosing this information.
CAB/dlb
/rfP&O'blX £ :
r ^ — ,y V ^ i
UNITED STATES of America, Appellee,
Salvatore MARZGLIANO, Joseph Mogav-era, Paul R. Labriola, Thomas Graham, Bernard Carroll, William Sevransky, Anthony Noto, Peter Scheib, Carlo Joseph Scala, Richard Campo, Ciro J. Graziano, Timothy Mitteager, Marilyn Wallace, Jerome Otieri, Richard Gunn, Theodore Mendel.
UNITED STATES v. MARZGLIANO 395 Cite as 588 F.2d 395 (1978)
federal facility back to state prison after acceptance of his guilty plea but before sentencing, when the transfer from state to federal custody had been achieved pursuant to a writ of habeas corpus ad prosequendum, did not violate Agreement Interstate Agreement on Detainers Act, § 2, art. IV(e), 18 U.S.C.A. App.
See publication Words and Phrases for other judicial constructions and definitions.
Appeal of Joseph MOGAVERA.
No. 78-1169.
United States Court of Appeals, Third Circuit.
Argued Sept. 8, 1978.
Decided Nov. 27, 1978.
Appeal was taken from an order of the United States District Court for the District of New Jersey, Vincent P. Biunno, J., denying defendant's motion for dismissal of indictment or, alternatively, for withdrawal of guilty plea and subsequent sentence. The Court of Appeals, James Hunter, III, Circuit Judge, held that: (1) defendant who produced his testimony, testimony of code-fendant and testimony of an attorney showing misrepresentations by defense counsel regarding sentencing was entitled to a hearing to prove that guilty plea was not voluntary because of such misrepresentations and (2) transfer of defendant from federal facility back to state prison after acceptance of defendant's guilty plea but before sentencing did not violate Interstate Agreement on Detainers where transfer from state to federal custody was achieved pursuant to writ of habeas corpus ad prosequendum.
Affirmed in part, reversed in part.
1. Courts <s=>495 Writ of habeas corpus ad prosequen
dum is not a "detainer" within contemplation of Interstate Agreement on Detainers Act so that transfer of defendant from
2. Criminal Law <8=»273.1(2) Fact that no sentencing agreement ac
tually existed between trial judge and defense counsel was not relevant to issue whether defendant's guilty plea was induced by false promise from defense counsel regarding sentencing.
3. Criminal Law <s=>273.1(2) Defendant's statements at voluntari
ness hearing to the effect that neither his attorney nor Government had made any promises to him inducing him to plead guilty did not bar defendant from subsequently asserting that guilty plea was not voluntary because of misrepresentations by his counsel as to sentencing which would be imposed, particularly since trial judge allegedly involved in impropriety was judge before whom voluntariness hearing took place. Fed.Rules Crim.Proc. rule 11, 18 U.S.C.A.
4. Criminal Law s=>997.16(5) Defendant who asserted that his guilty
plea was not voluntary because of out-of-court representations by his counsel as to sentence that would be imposed and whose assertions were supported by his codefend-ant and another attorney who were present when defense counsel made representations made sufficient showing to entitle him to hearing to prove that guilty plea was not voluntary. 28 U.S.C.A. § 2255.
Ralph A. Jacobs, Asst. U. S. Atty., Robert J. Del Tufo, U. S. Atty., Frank C. Razzano, Newark, N. J., for appellee.
Ronald A. Cohen, Larry Bronson, Orange, N. J., for appellant.
396 588 FEDERAL REPORTER, 2d SERIES
Before GIBBONS, HUNTER and GARTH, Circuit Judges.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:
Joseph Mogavera appeals from the denial of a motion for dismissal of his indictment or, in the alternative, for withdrawal of his guilty plea and subsequent sentence. Without a hearing, the district court denied relief determining first, that the dismissal of the indictment was not mandated by the Interstate Agreement on Detainers, 18 U.S.C. app. § 2 (1976), and second, that Mogavera had not demonstrated that his guilty plea was involuntary under 28 U.S.C. § 2255 (1976). We agree that the Interstate Agreement on Detainers was not violated, though on different grounds from those advanced by the district court. However, we hold that Mogavera is entitled to a hearing on the voluntariness of his guilty plea.
I. On August 5, 1974 Mogavera and fifteen
others were indicted for conspiracy to forge and utter United States Savings Bonds and for the substantive offense of forging United States Savings Bonds in violation of 18 U.S.C. §§ 371 and 495 (1976). Mogavera was also charged with failure to file an income tax return. He was arraigned in United States District Court for the District of New Jersey on September 20, 1974; he pleaded not guilty and was released on bail. While awaiting trial on the federal charges, he pleaded guilty to a New York state charge in February, 1975, and was sentenced to a three year term. He began serving his sentence in a New York state prison on March 10,1975. On June 13, 1975 the federal government procured his trans-
1. The Supreme Court has recently held that the United States is a party to the Agreement both as a sending and a receiving "State." United States v. Mauro, 436 U.S. 340, 353, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978).
2. Article IV(e) of the Interstate Agreement on Detainers, 18 U.S.C. app. § 2 (1976), provides:
fer to the federal correctional facility in New York City pursuant to a writ of habeas corpus ad prosequendum.
While in federal custody, Mogavera pleaded guilty to the forgery and tax charges on June 27, 1975. The district court judge conducted a hearing to determine the voluntariness of Mogavera's guilty plea as required by Rule 11 of the Federal Rules of Criminal Procedure. Under oath, Mogavera declared that neither his attorney nor the government had made any promises to him which induced him to plead guilty. Mogavera does not challenge the sufficiency of the Rule 11 proceeding.
After the acceptance of the plea, he was returned to the state facility pending the preparation of the federal probation report. On October 6, 1975 he was again transferred to federal custody pursuant to a writ of habeas corpus ad prosequendum. He was sentenced by the district court judge on October 24, 1975 to a five year term—to run consecutive to his state sentence—and to five years probation to follow his release from custody.
II.
Mogavera first contends that he is entitled to the dismissal of his indictment on the federal charges because his rights under the Interstate Agreement on Detainers were violated. The Agreement governs the transfer of a prisoner from a jurisdiction where he is serving a sentence to another jurisdiction for proceedings against him.1
Under article IV(e), if the prisoner is returned to the original place of imprisonment before being tried in the second jurisdiction, then his indictment in the second jurisdiction must be dismissed with prejudice.2
(e) If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
UNITED STATES v. MARZGLIANO Cite as 588 F.2d 395 (1978)
397
The district court held that the transfer of Mogavera from the federal facility back to the state prison after the acceptance of Mogavera's guilty plea but before sentencing did not violate the Agreement. The court read article IV(e) as requiring dismissal only if "trial is not had on any indictment prior to the prisoner's being returned to the original place of impris-onment.,, See note 2 supra (emphasis supplied). Thus, it reasoned that the Agreement does not prevent transfers after the prisoner is tried in the second jurisdiction. Since it determined that the entry of a guilty plea is the legal equivalent of a "trial," the district court held that the post-guilty plea transfers were outside the ambit of the Agreement.
[1] We need not reach the merits of the district court's statutory construction. After the district court's decision, the Supreme Court held in United States v. Mauro, 436 U.S. 340, 360, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), that a writ of habeas corpus ad prosequendum is not a "detainer" within the meaning of the Agreement.3 In each instance, Mogavera's transfer from state to federal custody was achieved pursuant to a writ of habeas corpus ad prosequendum. Since the writ does not invoke the protections of the Agreement, Mogavera is not entitled to the dismissal of his indictment.4
3. This court's holding in United States v. Sor~ rell, 562 F.2d 227 (3d Or. 1977), that a writ of habeas corpus ad prosequendum was a "detainer" under the Agreement, was in effect overturned by the Supreme Court in Mauro, 436 U.S. at 349 n.14, 98 S.Ct. at 1841. The district court had relied in part on Sorreii
4. The court also held in United States v. Mauro that the protections of the Agreement apply if the federal government first lodges a detainer against a prisoner and later secures custody of the prisoner pursuant to a writ of habeas corpus ad prosequendum. 436 U.S. at 361-365, 98 S.Ct. 1847-1849. The record does not disclose a detainer against Mogavera prior to the issuance of the writs so Mogavera does not benefit from this holding.
5. Section 2255 of Title 28 U.S.C. (1976), provides in part:
III. Mogavera contends alternatively that his
guilty plea was not voluntary. Under 28 U.S.C. § 2255 he is entitled to a hearing on his petition "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief."5 (emphasis supplied) After reviewing the appropriate materials, the district court, without a hearing, denied relief. We address solely the issue of whether Mogavera has demonstrated that he is entitled to a hearing and do not decide whether habeas corpus relief is warranted.
As the basis of his section 2255 claim, Mogavera alleges that his attorney, Samuel R. DeLuca, made false representations to him which induced his guilty plea. In his affidavit in support of the habeas corpus petition, Mogavera claims that, "Mr. DeLuca promised me that if I plead guilty to one count of this indictment, and one count of the income tax information, that my sentence would not exceed the New York sentence, and would run concurrent with it." App. at 24a. Mogavera received a five year sentence to run consecutive to the state sentence and five years probation on his release from custody. Further, Mogavera asserts: "Before I took the plea I was advised by Mr. DeLuca to say yes to all questions asked by the judge." Id.
Paul Labriola, Mogavera's co-defendant, also submitted an affidavit in support of
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, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized 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 appropriate.
398 588 FEDERAL REPORTER, 2d SERIES
Mogavera's petition. He claims that he was present on an occasion when DeLuca promised Mogavera that the district court judge would give Mogavera a concurrent sentence or, at the worst, one or two years to run consecutive to the New York sentence. In addition, he reports that, "[DeLuca] told Mr. Mogavera that it was guaranteed, and that if it did not happen as promised, he— DeLuca—would take full responsibility, and Mr. Mogavera could withdraw his plea." App. at 26.
The crucial affidavit came from Robert Weiswasser, a member of the New York Bar. He had originally represented both Mogavera and Labriola but withdrew from representation of Mogavera, apparently because of a potential conflict of interest. He recommended that Mogavera retain DeLuca. Weiswasser states in his affidavit that he was present when DeLuca promised Mogavera that if Mogavera pleaded guilty, Mogavera would receive a sentence which would run concurrent with and not exceed the sentence given by the New York state court. App. at 27a-28a.
A careful reading of the affidavits indicates that DeLuca may have led Mogavera to believe that he had a special relationship with the district court judge and had "fixed" the sentence. The Supreme Court wrote in Machibroda v. United States, 368_ U.S. 487, 493, 82"S.Ct.510.JMJLIbEd.2d. 473 (1962}, that, "[a] guilty plea, if induced by promises . which deprivejtjtf tlJeHsiTaracter of a voluntary^act, isrvoid» J^ conviction based upon such^a plea is open to collateral .attack." This court confronted allegations similar to those made by Mogavera in Moorhead v. United Stajgs^456 F.2d 992 (3dJ3ir. 1972)^ Moorhead contended in his section 2255 motion that his attorney had represented to him that a "proposition" had been arranged with the prosecutor: if he pleaded guilty, he would get no more than a suspended sentence or full probation. He also alleged that his attorney directed him to respond affirmatively when the
6. We note that this is not a case where the defendant has merely alleged an erroneous prediction of sentence by his counsel, which this court has held does not render a guilty plea
court asked whether his plea was voluntary. The lower court denied his motion without a hearing. This court held: "A plea in^ duced. j?XJ*Sch_ misrepresentations jloes^not jneet the federaLstandard_p£ voluntariness. . . H^^^^a^%aljmsjepresenta-tion as to aJpror#3itiouLior>, a_ light _jen-tence., Tha^2dlegaticji_is_sufficieiit-lQjcec quireJ;he holding^of^r^dy^raAry^hearjng/^
7 d at995. See Brady v. United States, 397* "U.S. 7427755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
In McAleney v. United States, ^JF2A ^ 2 J l £ t ^ r ^ l 9 7 6 ^ defense counsel told his client that the prosecutor had agreed to recommend a light sentence. In fact, the prosecutor, when pressed for some prediction, had only given his personal opinion that the defendant would receive a light sentence; he never promised to give a recommendation. In granting the motion to withdraw the plea, the court held: "[The defendant] was entitled to credit his attorney's representation as to the_fa.ctjof_jLUfih an agreement, and to rely on it; and if his. guilty plea was in fact induced by such a representation, we agree with the district court that relief is in-order." Id. at 284. See generally Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); Owens v. United States, 551 F.2d 1053 (5th Cir.), cert, denied, 434 U.S. 848, 98 S.Ct. 155, 54 L.Ed.2d 115 (1977); United States v. Pallotta, 433 F.2d 594 (1st Cir. 1970); United States v. McCarthy, 433 F.2d 591 (1st Cir. 1970); United States v. Del Piano, 386 F.2d 436 (3d Cir. 1967), cert denied, 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968).
Thus, a claim of attorney misrepresentation of the type pleaded here may be a basis for relief in a habeas corpus action.* We must determine, therefore, whether the district court erred in denying Mogavera an opportunity to prove his allegations. The statute requires a hearing "[u]nless the motion and the files and records of the case
involuntary. Masciola v. United States, 469 F2d 1057, 1059 (3d Cir 1972). See Weilmtz v. Page, 420 F.2d 935 (10th Cir. 1970).
UNITED STATES v. MARZGLIANO Cite as 588 F.2d 395 (1978)
399 conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. The Supreme Court in Machibroda considered the circumstances in which a hearing must be provided:
The factual allegations contained in the petitioner's motion and affidavit, and put in issue by the affidavit filed with the Government's response, related primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light. Nor were the circumstances alleged of a kind that the District Judge could completely resolve by drawing upon his own personal knowledge or recollection.
368 U.S. at 494-95, 82 S.Ct. at 514.
[2] The alleged misrepresentations which form the basis of Mogavera's section 2255 motion took place at out-of-court meetings between Mogavera and his attorney. Also, the fact that no agreement actually existed between the district court judge and Mogavera's attorney, a fact which would be within the personal knowledge of the district court, is not relevant to the issue of whether or not Mogavera's guilty plea was induced by a false promise from his attorney. McAleney v. United States, 539 F.2d at 284. Thus, by alleging activities which took place outside the courtroom and beyond the personal knowledge of the district court judge, Mogavera brings himself squarely within the Machibroda standards. Accord, Brown v. United States, 565 F.2d 862, 863 & n.2 (3d Cir. 1977); Moor-head v. United States, 456 F.2d at 995 (petitioner is entitled to a hearing where the motion alleges "matters outside the record which, if true, cast serious doubt upon the voluntariness of the guilty plea").
[3] The government attempts to raise the Rule 11 voluntariness colloquy as a bar to Mogavera's present action. At the Rule 11 hearing, the district court judge re-
7. See also United States v. McCarthy, 433 F.2d 591, 593 (1st Cir. 1970), where the First Circuit noted that "the courts have generally concluded that the Rule 11 record is 'evidential on the issue of voluntariness . . not conclu-
peatedly asked the defendant whether any undisclosed promises were given to him by either the government or his own attorney which induced his plea. Mogavera stated under oath that there was none. The government contends that Mogavera cannot now deny his earlier sworn statements. In Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973), the Supreme Court refused to allow the Rule 11 proceeding to foreclose later habeas corpus attacks. While the Court conceded that a defendant "'may not ordinarily' repudiate his statements to the sentencing judge," it held: "The objective of Fed.Rule Crim. Proc. 11, of course, is to flush out and resolve all such issues, but like any procedural mechanism, its exercise is neither always perfect nor uniformly invulnerable to subsequent challenge." Id. at 215, 93 S.Ct. at 1462. Accord, Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) ("the barrier of the plea or sentencing proceeding record, although imposing, is not invariably insurmountable").
The McAleney court noted that "most defendants could be expected to deny 'any impropriety' during the Rule 11 hearing
and we cannot now say that it would be obvious to a poorly counselled defendant that he should mention a supposed 'deal' with the Government, no matter how proper." 539 F.2d at 285.7 The rationale of McAleney applies with particular force when, as alleged here, the defendant may have been led to believe that the judge before whom the Rule 11 colloquy took place was himself involved in the "impropriety." Though we understand the efforts of the government to reduce the flood of prisoners recanting their Rule 11 statements in subsequent section 2255 motions, we must heed the caution of Fontaine and Blackledge that the Rule 11 voluntariness hearing is an imperfect procedural mecha-
sive," citing United States ex rei McGrath v. LaVallee, 319 F.2d 308, 314 (2d Cir. 1963). Accord, Trotter v. United States, 359 F.2d 419, 420 (2d Cir. 1966); Scott v. United States, 349 F.2d 641, 643 (6th Cir. 1965).
400 $M FEDERAL REPORTER, 2d SERIES
nism which must not be wholly immune from collateral attack.8
IV.
[4] We hold that Mogavera's rights under the Interstate Agreement on Detainers were not violated since a writ of habeas corpus ad prosequendum, the means by which he was transferred from state to federal custody, is not a "detainer" within the contemplation of the Agreement^ However, Mogavera has made a sufficient ' showing under 28 U.S.C. § 2255 to entitle '• him to a hearing to prove that his guilty \ plea was not voluntary. The decision of the
" district court will be affirmed in part and reversed in part.
Ginn BIESENBACH, Joseph Levin, Henry Sharman, Lisa B. White,
Appellants,
v.
John H. GUENTHER, Jr., A. T. Consoli, Richard E. Hunter, Fred Parquitte, Leon Prince, Heidelberg, Inc., Appellees.
No, 78-1487.
United States Court of Appeals, Third Circuit.
Argued Nov. 14, 1978.
Decided Dec. 4, 1978.
Minority shareholders brought suit both derivatively and on behalf of ail shareholders against individual members of corporate board of directors, alleging violations of the Securities Exchange Act of 1934. The United States District Court for
8. We note that this court has recently affirmed a conviction for perjury against a prisoner who made sworn statements in his affidavit in support of his section 2255 motion which contra-
the Eastern District of Pennsylvania, Raymond J. Broderick, J., 446 F.Supp. 98, dismissed plaintiffs' federal claims for failure to state a claim upon which relief could be granted and, as a result, plaintiffs' pendent state law claims were also dismissed. On appeal, the Court of Appeals, Rosenn, Circuit Judge, held that although plaintiffs alleged violations of individual defendants' fiduciary duties as directors of the corporation which could support a cause of action under laws of Pennsylvania, such allegations standing alone did not state a cause of action under the Securities Exchange Act.
Affirmed.
1. Securities Regulation <s=>118 Although minority shareholders alleged
violations of individual defendants' fiduciary duties as directors of corporation which could support a cause of action under laws of Pennsylvania, such allegations standing alone did not state a cause of action under the Securities Exchange Act of 1934. Securities Exchange Act of 1934, § 10(b), 15 U.S.C.A. § 78j(b).
2. Securities Regulation <3=»118 The unclean heart of a corporate di
rector is not actionable under the Securities Exchange Act, whether or not it is disclosed, unless the impurities are translated into actionable deeds or omissions both objective and external. Securities Exchange Act of 1934, § 10(b), 15 U.S.C.A. § 78j(b).
3. Federal Civil Procedure <s=>1832 On a motion to dismiss for failure to
state a claim upon which relief can be granted, district court must limit its consideration to the facts alleged in the complaint. Fed.Rules Civ.Proc. rule 12(b)(6), 28 U.S.C.A.
4. Federal Courts e=>624 Failure to request oral argument on a
motion to dismiss for failure to state a claim upon which relief can be granted con-
dieted his testimony under oath at the Rule 11 hearing. United States v. Stassi, 583 F.2d 122 (3d Cir. 1978).
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