Lynott v. United States, 15717.

Decision Date13 May 1966
Docket NumberNo. 15717.,15717.
Citation360 F.2d 586
PartiesJack R. LYNOTT, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Third Circuit

William Richter, New York City, for appellant.

John N. Ellsworth, Asst. U. S. Atty., Newark, N. J. (David M. Satz, Jr., U. S. Atty., Newark, N. J., on the brief), for appellee.

Before KALODNER, GANEY and SMITH, Circuit Judges.

WILLIAM F. SMITH, Circuit Judge.

The appellant was convicted on his plea of guilty to an indictment charging him with the interstate transportation of a stolen motor vehicle, knowing the same to have been stolen, in violation of § 2312 of Title 18 U.S.C.A. After serving approximately four months of a term of imprisonment of three years he filed a motion under Fed.Rules Cr.Proc., rule 32(d), 18 U.S.C.A., to withdraw his plea of guilty, and a motion under § 2255 of Title 28 U.S.C.A., to vacate and set aside his conviction and sentence. The present appeal is from the denial of these motions without a hearing.

The motions for relief, supported only by the personal affidavits of the appellant, allege that the plea of guilty was induced by threats and promises of leniency. This allegation is in direct contradiction of the record made by the appellant at the time of his arraignment. The only question is whether the allegation, viewed in the light of the record of the case, was such as to require an evidentiary hearing.

The appellant, represented by court appointed counsel, was arraigned on November 9, 1964, at which time he entered a plea of "not guilty." Approximately two months later, on January 7, 1965, he again appeared before the court for the purpose of retracting his earlier plea and entering a plea of guilty. At that time the following colloquy took place:

MR. KRIVIT Defense Counsel: "Your Honor, this is a motion for leave to withdraw a prior plea to this indictment of not guilty and at this time enter a plea to the indictment of guilty. I have conferred with Mr. Lynott. He advises me that he is guilty of this crime. I advised him that the maximum penalty is five thousand dollar fine and five years in jail. He understands this. He withdraws the plea voluntarily without promises made by me, by the United States Attorney, or by anybody. He stands before you, sir, to be prepared to plead guilty to this indictment."
THE COURT: "I have no doubt of the truth of your representations, Mr. Krivit, but I want what you have said to come directly from the mouth of the defendant."

Following this colloquy the court adequately advised the appellant as to the nature and substance of the charge contained in the indictment, the effect of a plea of guilty, and the possible consequences of such a plea, including the maximum permissible punishment. During a meticulous examination conducted by the court the appellant stated that he was guilty of the offense charged; that he was aware of the effect and consequences of his proffered plea; and that the plea was not induced by any "promise, or threat or other consideration." It is clear from the record that the plea was not accepted until after the court had satisfied itself that it was voluntary.

Sentence was imposed on March 19, 1965, more than two months after the guilty plea was accepted. During the interim between the acceptance of the plea and the imposition of sentence the appellant admittedly made no complaint to the court that his plea was not voluntary. After the imposition of sentence the court asked the appellant, "Have you anything to say about this?" The appellant answered, "No, sir. I thank the Court."

The court below found "from the files and records of the case that appellant's plea was made voluntarily without any threats or promises made to him." This finding is amply supported by the appellant's statement made at the time of his arraignment. On the basis of the finding the court concluded that the appellant was entitled to no relief.

It is the general rule that an allegation of fact made in support of a motion for relief under § 2255, supra, must be accepted as true and will ordinarily entitle the movant to a judicial hearing at which he and his witnesses may be heard. United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952); Machibroda v. United States, 368 U.S. 487, 489-496, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). However, such a...

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9 cases
  • Blackledge v. Allison
    • United States
    • U.S. Supreme Court
    • May 2, 1977
    ...this is not a case in which there is a record of the sentencing proceedings, see, e. g., United States v. Tweedy, supra; Lynott v. United States, 360 F.2d 586 (CA3), or where delay by the prisoner in seeking postconviction relief, see, e. g., Raines v. United States, 423 F.2d 526, 528 (CA4)......
  • Harrell v. United States
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 3, 1967
    ...Assistant United States Attorney nor defense counsel discussed the subject of promises before the trial court. Cf. Lynott v. United States, 360 F.2d 586, 587 (3rd Cir. 1966); Parker v. United States, 358 F.2d 50, 53 (7th Cir. 1965). 4 If a hearing had been granted by the District Court, thi......
  • State v. Robbins
    • United States
    • New Mexico Supreme Court
    • May 1, 1967
    ...Olive v. United States, 327 F.2d 646 (6th Cir. 1964). Compare Putnam v. United States, 337 F.2d 313 (10th Cir. 1964); Lynott v. United States, 360 F.2d 586 (3rd Cir. 1966). In Machibroda the contention made by petitioner was that the assistant United States district attorney had made promis......
  • Baker v. U.S., 85-5561
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • January 15, 1986
    ...The Blackledge Court distinguished two circuit court cases, United States v. Tweedy, 419 F.2d 192 (9th Cir.1969) and Lynott v. United States, 360 F.2d 586 (3d Cir.1966) on the ground that there was a record of the sentencing proceedings in those cases. 431 U.S. at 78 n. 15, 97 S.Ct. at 1631......
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