Bryan v. United States
| Decision Date | 04 April 1974 |
| Docket Number | No. 72-2127.,72-2127. |
| Citation | 492 F.2d 775 |
| Parties | Richard Henry BRYAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee, |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles C. Foster, Houston, Tex. (Court-appointed), for petitioner-appellant.
H. M. Ray, U. S. Atty., Alfred E. Moreton, III, Oxford, Miss., for respondent-appellee.
Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY, and GEE, Circuit Judges.
Richard Henry Bryan moved the district court for post conviction relief under 28 U.S.C. § 2255. That court denied his motion without a hearing. A panel of this court previously affirmed the denial as to all but one of the multitudinous issues raised by Bryan, but held that he should have been accorded 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 future plea bargaining procedures in this circuit in general.
Bryan came into the custody of the United States on a charge of robbing a federally insured bank. He was eventually convicted, and this conviction was affirmed on appeal, 423 F.2d 127 (5th Cir. 1970). The government asserts that while awaiting trial he escaped from federal custody and was retaken. Slightly over one month prior to his bank robbery trial, Bryan was arraigned on the charge of escape. Represented by appointed counsel, he entered a plea of not guilty, and his trial on the escape charge was fixed for a date before the scheduled time for trial for the robbery. On the day set he appeared before the court with his counsel and announced that he wished to change his plea from not guilty to guilty. On that occasion the court addressed Charles D. Thomas, appointed counsel for Bryan, and the following exchange took place in open court in Bryan's presence.
The court then addressed the Defendant Bryan, a high school graduate then twenty-five years of age, and the following colloquy is reflected by the record.
Bryan and his co-defendant subsequently went to trial and were convicted on charges of armed robbery of a federally insured bank. Almost two months after this conviction Bryan again appeared before the court below with Counsel Thomas for sentencing on the escape and robbery convictions. Bryan was accorded and exercised his right of allocution before sentence, but asserted no reason why he should not be sentenced, or why he should be sentenced in any special manner, on his plea of guilty to the charge of escape. After the court pronounced sentences of 22 years for the bank robbery conviction, together with a two-year consecutive sentence for the escape, the record discloses no protest by Bryan or his counsel.
As the panel opinion discloses, Bryan's motion papers assert that, pursuant to the terms of his plea bargain, he and his lawyer both deliberately deceived the district court in their representations at the time of Bryan's change of plea on the escape charge. Bryan's supporting affidavit declares that Counsel Thomas represented to him that a plea bargain had been concluded between Thomas, other defense attorneys, the United States Attorney and District Judge, which provided for Bryan to receive a concurrent sentence on the escape charge to any sentence which might be imposed if the jury found him guilty after the pending bank robbery trial. A further alleged condition of the bargain was for the conduct of an official charade in which the parties and the court would falsely develop a record of proceedings by ritualistically reciting that no agreement had produced the plea of guilty and that no promises or bargains of any kind underlaid it. Bryan also alleged that at the time of sentencing he immediately protested the failure of the bargain to his attorney and that his attorney then brought the agreement to the attention of the judge, who required his attorney's comment to be placed of record. He concludes with the assertions that "the judge then said something but I don't remember what he said," and that the portion of the record reflecting this exchange has been wrongfully deleted.
The panel reversed and remanded the summary denial of relief principally upon the basis of the Supreme Court's holdings in Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973), and Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962) and as those cases applied the language of § 22551 and the rationale of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).2 Its opinion reasoned that the files and records in Bryan's case could not amount to a conclusive showing that he was entitled to no relief, because he alleged that his part of the plea bargain agreement required not only a confession of guilt but also that he join his attorney in falsely stating to a guileful judge that no bargain existed. The panel held that a hearing was required which was to be conducted by a judge other than the one impugned in petitioner's pleadings. We reverse that portion of the panel opinion and affirm the district court's dismissal in toto.
No guilty plea which has been induced by an unkept plea bargain can be permitted to stand. At the outset of our discussion it is appropriate to redact the rule that Santobello and our own circuit jurisprudence have made crystal clear. Today's decision is intended to reinforce, not attenuate this principle. However this fundamental is not the fulcrum upon which the instant decision turns. Rather, our task is to apply judiciously the teachings of Machibroda and Fontaine to determine whether in the allegation versus record setting of Bryan's case his Section 2255 motion and the files and records of the prior plea and sentencing proceedings conclusively show that he is entitled to no relief. No per se rule can be applied, for in the final analysis, the issue becomes one of fact. Its resolution necessarily depends upon what is alleged and what is shown by the documentation of each case. Thus, we must look to the details of those causes which provide our guidance here.
David Fontaine's Section 2255 motion sought to vacate his plea of guilty, entered without benefit of counsel, on the ground that it had been coerced. His charges of physical abuse and illness from a recent gunshot would that required hospitalization were documented by records tendered in support of his petition. These records also showed that a month following the plea he was again hospitalized for heroin addiction, for aggravation of the earlier gunshot wound and other severe illnesses. Fontaine further alleged that prolonged interrogation continued during the period preceding his plea. All of this, he claimed, coerced his confession, his waiver of counsel and the uncounselled plea of guilty.
The record against which the petition and its supporting documentation was set consisted of a written waiver of counsel, a grand jury indictment and a plea supplemented by a transcript of the standard plea taking proceedings mandated by Fed.R.Crim.P. 11, in which the petitioner acknowledged in substance that his plea was given voluntarily and knowingly, that he understood the nature of the charge and the consequences of the plea, and that he was in fact guilty. The Fontaine court required the district court to conduct a hearing on the petition and concluded its opinion as follows:
On this record, we cannot conclude with the assurance required by the statutory standard...
To continue reading
Request your trial
-
U.S. v. Silverman
...could anticipate that one of three scenarios would take place once the court placed his client under oath, see Bryan v. United States, 492 F.2d 775, 781 (5th Cir.) (en banc), cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974), and commenced to interrogate him pursuant to Fed.R......
-
Potts v. Zant
...Dugan v. United States, 521 F.2d 231 (5th Cir. 1975); cf. McKenzie v. Wainwright, 632 F.2d 649 (5th Cir., 1980) and Bryan v. United States, 492 F.2d 775 (5th Cir.), cert. denied 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974). Typically, this circuit has found some form of corroboration ......
-
Blackledge v. Allison
...359 F.2d 419 (CA2); United States v. Valenciano, 495 F.2d 585 (CA3); Edwards v. Garrison, 529 F.2d 1374, 1377 (CA4); Bryan v. United States, 492 F.2d 775, 778 (CA5); Mayes v. Pickett, 537 F.2d 1080, 1082-1083 (CA9); Jones v. United States, 384 F.2d 916, 917 (CA9); United States v. Simpson, ......
-
U.S. v. Robertson
...1978); United States v. Horovitz, 565 F.2d 1295 (5th Cir. 1978); United States v. Bean, 564 F.2d 700 (5th Cir. 1977); Bryan v. United States, 492 F.2d 775 (5th Cir.), Cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974); Barker v. United States, 437 F.2d 107 (5th Cir. 1971); Uni......