360 F.2d 586 (3rd Cir. 1966), 15717, Lynott v. United States

Docket Nº:15717.
Citation:360 F.2d 586
Party Name:Jack R. LYNOTT, Appellant, v. UNITED STATES of America, Appellee.
Case Date:May 13, 1966
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 586

360 F.2d 586 (3rd Cir. 1966)

Jack R. LYNOTT, Appellant,

v.

UNITED STATES of America, Appellee.

No. 15717.

United States Court of Appeals, Third Circuit.

May 13, 1966

Argued April 22, 1966.

Page 587

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(b), 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...

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