Bryan v. United States, 72-2127. Summary Calendar.

Citation481 F.2d 272
Decision Date31 August 1973
Docket NumberNo. 72-2127. Summary Calendar.,72-2127. Summary Calendar.
PartiesRichard Henry BRYAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Richard Henry Bryan, pro se.

H. M. Ray, U. S. Atty., Alfred E. Moreton, III, Oxford, Miss., for respondent-appellee.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

Rehearing En Banc Granted August 31, 1973.

GOLDBERG, Circuit Judge:

This is a pro se appeal from the denial of a motion filed under 28 U.S.C. § 2255. The motion sought to vacate judgments of conviction for armed robbery of a federally insured bank and for escaping from federal custody while awaiting trial on the bank robbery charges. In 1968 petitioner-appellant, Richard Henry Bryan, was convicted on both charges, by a jury verdict on the bank robbery charge and by a plea of guilty on the escape charge, and his convictions were affirmed on direct appeal to this Court. United States v. Ballard, 5 Cir. 1970, 423 F.2d 127. Petitioner subsequently filed the instant § 2255 motion, by which he raises no less than twenty allegations of error regarding the trial at which he was convicted. Adopting the recommendations of the United States Magistrate, the District Court denied relief without having conducted an evidentiary hearing. We have studied the record adduced below, and being convinced that nineteen of these allegations are utterly without legal merit, we affirm without written opinion the denial of relief on these points. See Local Rule 21.1 As to the one remaining allegation, however, we find that petitioner has alleged facts that, if true, would entitle him to relief, and we must therefore remand that issue for further proceedings.

Petitioner's one meritorious point on appeal is that he is entitled to an evidentiary hearing on its question of whether a "plea bargain"—pursuant to which petitioner would plead guilty to the escape charge in return for a sentence that would be concurrent with his bank robbery sentence—was actually entered into and was then broken after he pled guilty. Although Rule 11, F.R. Crim.P., was fully complied with at the time the guilty plea to the escape charge was entered, petitioner now alleges that the following bargain existed and was breached:

"Mr. Thomas a defense lawyer spoke up then and said that he (Mr. Thomas) and two other defense lawyers had made a deal with the judge and the U. S. Attorney. Mr. Thomas said this was the deal. If me and James Edward Neal would plead guilty to the escape charge, then the judge and U. S. Attorney would not make Ballard plead to the escape charge because Ballard was so young. (The record will show that Ballard did not plead to the escape charge and that Ballard was given a continuance.) Mr. Thomas also said that part of the deal was that me and Neal would not be sentenced until after we had been tried on the bank robbery charge and that if me and Neal were convicted on the bank robbery charge then the judge would run our escape sentences concurrently with our bank robbery sentence. (The judge kept his word about Neal as the record will show that Neal was sentenced to three (3) years on the escape charge, said three (3) years to run concurrently with Neal\'s bank robbery time which was fifteen (15) years. The judge, U. S. Attorney, and Mr. Thomas did not keep their word about my sentence on the escape charge.) (I was given 2 years consecutively with my twenty-two (22) years for the bank robbery conviction.) . . . Mr. Thomas explained to all of us that we could not go into the court room and say that a deal had been made between our attorneys and the judge and U. S. Attorney, so when me and Neal went into the court room, we did like Mr. Thomas said do, we said there had been no deal or promises or anything."

If it is true, as a factual matter, that petitioner's guilty plea to the escape charge was induced by a plea bargain that was subsequently broken, he will clearly be entitled to relief. Accordingly, a hearing must be held to develop the facts further concerning the alleged bargain. See Fontaine v. United States, 1973, 411 U.S. 213, 93 S.Ct. 1461, 36 L. Ed.2d 169.

The government acknowledges that under certain circumstances a plea of guilty may be collaterally attacked as having been rendered involuntary by prosecutorial promises:

"A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack."

Machibroda v. United States, 1962, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed. 2d 473, 478. Citing United States v. Frontero, 5 Cir. 1971, 452 F.2d 406, the government nevertheless contends that if Rule 11 was fully complied with at the time the guilty plea was entered, the plea may not later be challenged. That argument was only recently before the Supreme Court, which rejected such an inflexible position in Fontaine v. United States, supra. We think it clear that Machibroda, Fontaine, and the cases hereinafter discussed establish that formalistic recitations in the record that indicate the plea was "voluntary" cannot prevent the person convicted from later challenging the character of the plea, and we hold that petitioner's in-court denial of the existence of a bargain does not prevent him from complaining that a bargain existed and was later broken.

Santobello v. New York, 1971, 404 U. S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, firmly establishes that if a plea bargain induced a guilty plea and the government's promise to take some course of action in return is not fulfilled, the person convicted is entitled to relief:

"When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled."

404 U.S. at 262, 92 S.Ct. at 499, 30 L. Ed.2d at 433. James v. Smith, 5 Cir. 1972, 455 F.2d 502, Johnson v. Beto, 5 Cir. 1972, 466 F.2d 478, and United States v. Ewing, 5 Cir. 1973, 480 F.2d 1141 (slip op. no. 73-3622, 1973), are all post-Santobello cases that apply this principle, and there can be little doubt today that one...

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2 cases
  • Bryan v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • April 4, 1974
    ...an evidentiary hearing on the question of whether his plea of guilty to a charge of escape was the product of an unkept plea bargain. 481 F.2d 272 (1973). This court ordered the cause to be reheard en banc and has limited its consideration to the plea bargain issue in Bryan's case and to fu......
  • U.S. v. Carabbia
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • March 13, 1975
    ...have referred the motion for disposition to another judge. In making this determination, we follow the decision in Bryan v. United States, 481 F.2d 272, 274 (5th Cir.1973) where the court held that when a claim is made that a guilty plea was induced by a plea-bargain that was subsequently b......

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