Dennis v. United States
| Decision Date | 11 June 1976 |
| Docket Number | No. CIV-76-0300-D.,CIV-76-0300-D. |
| Citation | 428 F. Supp. 265 |
| Court | U.S. District Court — Western District of Oklahoma |
| Parties | Robert Dewan DENNIS, Reg. No. 20169-175, Petitioner, v. UNITED STATES of America, Respondent. |
Robert D. Dennis, pro se.
David L. Russell, U. S. Atty., by O. B. Johnston, III, Asst. U. S. Atty., Oklahoma City, Okl., for respondent.
Pursuant to Title 28, United States Code, Section 2255, the above-named petitioner, an inmate at the United States Penitentiary, Leavenworth, Kansas, has moved the court to vacate the judgment and sentence of this court in case No. CR-72-16 on the following grounds:
The court has examined the files and records herein together with those in the criminal case (CR-72-16) and petitioner's prior § 2255 proceedings (CIV-72-852-D, CIV-73-756-D, CIV-75-1031-D). In said case No. CR-72-16 the petitioner was charged with the crime of Bank Robbery with a Dangerous Weapon in violation of Title 18, United States Code, § 2113(a) and (d). In all proceedings in said case he was represented by his court-appointed attorney Mr. Hugh D. Rice. At his arraignment on February 2, 1972, the petitioner entered a plea of not guilty. The case was set for trial on July 24, 1972. On that day the petitioner appeared with his attorney who was prepared for trial. The United States District Attorney for the Western District of Oklahoma was also ready for trial. The court impaneled the jury during the morning, and before receiving any evidence declared a noon recess. The court was informed during the noon recess that the petitioner desired to enter a plea of guilty to the Indictment. When the court reconvened at 1:30 p. m. the jury was excused and the petitioner then plead guilty to the charge. He advised the court that the decision was his own free and voluntary act. He stated that no promises, threats or force of any kind caused him to change his plea. He informed the court that he had been satisfied with the services of his attorney and fully understood the nature of the charge against him. He was again advised concerning the maximum permissible punishment and acknowledged that he knew this. The court fully explained his rights to a jury trial and the waivers involved in his plea of guilty including the defense of insanity. The court established a factual basis for the plea and then accepted the plea of guilty. On August 14, 1972, after the petitioner had been afforded the right of allocution the court committed him to the custody of the Attorney General for 25 years.
No direct appeal was perfected although the petitioner did unsuccessfully seek a reduction of sentence under Rule 35.
On December 13, 1972, the petitioner in case No. CIV-72-852 first sought 2255 relief on the grounds (1) the court did not properly consider his mental condition (2) his sentence was enhanced by association with a pending State arson charge and (3) the sentence was imposed so that he would be unable to receive psychiatric help. The Motion was denied January 2, 1973. The petitioner appealed to the United States Court of Appeals for the Tenth Circuit and the denial of relief by this court was affirmed. Dennis v. United States, Unpublished No. 73-1147 (10th Cir., filed September 6, 1973).
On November 7, 1973, in case No. CIV-73-756-D the petitioner again collaterally attacked his conviction under 28 U.S.C. § 2255 alleging that his plea of guilty was induced by assurances from his court-appointed counsel that a plea bargain had been arranged. In considering the detailed allegations made by the petitioner, this court determined that an evidentiary hearing was required but that the issues could be fully developed by the use of interrogatories and cross-interrogatories in lieu of oral testimony produced in court. Counsel was appointed to represent the petitioner in the case and interrogatories and cross-interrogatories were propounded as ordered by the court. After consideration of the evidence so presented the court made specific Findings of Fact and Conclusions of Law contrary to the contentions made by the petitioner and denied the Motion. Upon appeal this action likewise was affirmed. Dennis v. United States, Unpublished No. 74-1724 (10th Cir., filed March 6, 1975).
The petitioner's last effort under Section 2255 was filed December 9, 1975 in CIV-75-1031-D. Therein he attacked the constitutionality of Title 18, United States Code, § 2113 and claimed that his Indictment was therefore void. The court found the petitioner's contention to be frivolous and summarily dismissed the Motion.
The court has detailed the petitioner's prior history in this court to show that the shocking and novel allegations of involuntariness contained in his affidavit in support of the present Motion have hitherto been unrevealed or even intimated in anything that has been said or done in his numerous appearances in this court. The whole thrust of his Motion is that he was innocent of the crime and plead guilty only because the guilty parties who had framed him threatened his life and the lives of his family. In remarkable detail he alleges his involvement in a powerful criminal organization headed by top political figures in Oklahoma which led to his present predicament. As a literary effort it is interesting, and even exciting. As a legal document it is incredible. Good fiction, however, no matter how imaginatively presented will not entitle the petitioner to relief. The court must judge the application, not for its artistic merit, but for its legal substance.
A claim of innocence is not a basis for collateral attack. Wagenknecht v. Crouse, 344 F.2d 920 (CA10 1965); United States v. Smith, 407 F.2d 33 (CA2 1969). In a proceeding under § 2255 allegations of an involuntary plea require an evidentiary hearing unless the Motion, files and records examined by the court conclusively show that a petitioner is entitled to no relief. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1961); Semet v. United States, 369 F.2d 90 (CA10 1966). The Supreme Court in Machibroda further commented:
In Malone v. United States, 299 F.2d 254, 255-256 (CA6 1962) the court in denying a motion to vacate a sentence stated:
In the Rule 11 proceedings at the time the petitioner changed his plea, the petitioner expressly denied any force or threats from any source to coerce the guilty plea, and declared that the decision was his of his own free and voluntary will. (Tr. Evidentiary Proceedings, 85). Admission of facts elicited by the court completely refutes his claim that there was no factual basis for the plea:
Not only are petitioner's present allegations contrary to his statements in open court, they are inconsistent with all of the events which preceded the plea of guilty. The coercive threats which allegedly instilled the fear which induced the plea were made prior to petitioner's apprehension. Yet, when he appeared before the court for his arraignment after indictment, less than a month after the threats when, if true, the chilling effect would have been the greatest, he plead not guilty. Trial preparation had been completed and a jury selected before the petitioner changed his plea. It assaults the court's common sense to be asked to believe that during a noon recess in conference with his attorney, the threats like a delayed time bomb exploded and destroyed his will to plead not guilty.
Moreover, the current allegations are inconsistent with his sworn allegations in CIV-73-756-D that his plea of guilty was entered only because his court-appointed attorney had informed him that a plea bargain had been arranged whereby he would be sentenced to no more than 15 years imprisonment; the sentence would be imposed pursuant to 18 U.S.C. § 4208(a)(2); and the State of Oklahoma would drop any pending State charges. The petitioner would now have the court believe that he has always before lied to the court but that he is finally telling the truth. The petitioner will not be permitted to so likely disavow his own statements and substitute those of an imaginative writ-writer. This court takes...
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