Eaton v. United States, 18836
Decision Date | 03 April 1972 |
Docket Number | 18911.,No. 18836,18836 |
Parties | James E. EATON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. William LESSARIS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
Court | U.S. Court of Appeals — Seventh Circuit |
Rodney D. Joslin, Chicago, Ill., for petitioners-appellants; Jenner & Block, Chicago, Ill., of counsel.
James R. Thompson, U. S. Atty., Donald C. Shine, Asst. U. S. Atty., William J. Bauer, U. S. Atty., Chicago, Ill., for respondent-appellee; John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel, assisted by: Jerold Siegan, Law Intern, De Paul University School of Law.
Before KILEY, FAIRCHILD and STEVENS, Circuit Judges.
Petitioners appeal from the district court's denial of their motions under 28 U.S.C. § 2255 to vacate sentences imposed upon pleas of guilty to violating certain counterfeiting laws. Two of the issues raised in the district court were that the guilty pleas were induced by threats and promises of counsel and that the offenses resulted from entrapment. The issues raised on appeal by appointed counsel are that the trial court erred in failing to hold an evidentiary hearing on the guilty plea and entrapment issues and that the sentencing judge should have disqualified himself from hearing the § 2255 motions. Petitioners raise, by pro se brief, the additional issue that the court predicated their sentences upon information contained in pre-sentence investigation reports rather than upon the offenses charged in violation of the fifth amendment protection from double jeopardy.
Failure to hold evidentiary hearing.
In their § 2255 motions petitioners assert:
Petitioners argue that their guilty pleas were involuntary because of counsel's alleged remarks and that they were erroneously denied an evidentiary hearing on that issue.
Title 28, U.S.C. § 2255, provides:
"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 on the United States Attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." (Emphasis added.)
We must therefore determine whether petitioners' motions and the files and records in this case conclusively show that their guilty pleas were voluntarily entered. If so, they are not entitled to a hearing.1 Furthermore, we must accept petitioners' factual allegations as true except to the extent that they are inherently incredible, merely conclusory rather than statements of fact, or are contradicted by the record.2
Prior to accepting petitioner Lessaris' plea of guilty the following colloquy occurred:
Even though a § 2255 motion may contain factual allegations, the district courts will not always be required to hold full scale hearings as Mr. Justice Stewart indicated in Machibroda v. United States:4
In our opinion the record conclusively establishes that petitioners' claim that counsel made a promise or even a firm prediction of probation which induced them to plead guilty is incredible. The latter part of the alleged remark, notwithstanding the use of "hung", was clearly no more than evaluation of the chances of acquittal if the case were tried. Thus the district court was not in error in denying them an evidentiary hearing on the issues.
Petitioners' contention that they were erroneously denied an evidentiary hearing on their defense of entrapment fails on two grounds. First of all, it is well settled that a defendant's plea of guilty admits, in legal effect, the facts as charged and waives all non-jurisdictional defenses.5 Entrapment is a non-jurisdictional defense on the merits and petitioners have waived their right to assert it. Secondly, it is equally well-settled law that even if petitioners had gone to trial and unsuccessfully attempted to establish entrapment or failed to try to establish it, the defense of entrapment could not be raised on collateral attack by a § 2255 motion.6
Disqualification of the sentencing judge.
Petitioners contend that their § 2255 motion should not have been assigned to the sentencing judge for decision. It is clear, however, that the normal and appropriate procedure is to assign a § 2255 motion to the sentencing judge. The motion is, by statute, to be made before "the court which imposed the sentence," and although the word "court" rather than "judge" was used, it has been held that "Congress obviously considered it desirable that district judges be required to review proceedings over which they had presided."7 Moreover, the same judge who accepted the guilty plea, may bring to bear his personal knowledge of the prior proceedings, which is an advantage rather than a mark of inherent prejudice.8
Petitioners alleged that the sentencing judge had not been impartial, contending that he had said before the change of plea that petitioners were "shooting craps with the government only to come out losers." The record shows that the remark actually made was addressed to counsel, after inquiring as to the theory of the defense.
The judge went on:
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People v. White
...which held that the right to raise an entrapment claim is waived by a guilty plea, is specifically disapproved.See also Eaton v. United States, 458 F.2d 704 (CA 7, 1972), and Williams v. State, 437 S.W.2d 82 (Mo.1969), where both courts, essentially without analysis, also held that a plea o......
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...should give credence to unsupported, patently incredible or conclusory allegations that have no basis in fact. See Eaton v. United States, 458 F.2d 704, 706 (7th Cir.1972), cert. denied, 409 U.S. 880, 93 S.Ct. 208, 34 L.Ed.2d 135 (1972) (courts should accept allegations as true "except to t......
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Portillo v. United States
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U.S. v. Yater, 84-3450
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