Gioiosa v. United States, Civ. A. No. 79-1262-MC.

• Decision Date: 20 November 1981
• Docket Number: Civ. A. No. 79-1262-MC.
• Citation: 525 F. Supp. 1241
• Parties: Edward A. GIOIOSA, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Massachusetts

525 F. Supp. 1241

Edward A. GIOIOSA, Petitioner, v. UNITED STATES of America, Respondent.

Civ. A. No. 79-1262-MC.

United States District Court, D. Massachusetts.

November 20, 1981.

Karnig Boyajian, Boston, Mass., for petitioner.

Asst. U.S. Atty. Marianne B. Bowler, Boston, Mass., for the U.S.

MEMORANDUM AND ORDER

McNAUGHT, District Judge.

At the hearing on petitioner's objections to the report and recommendation of the Magistrate, a "bench memorandum", summarizing the arguments of both parties as disclosed in the materials, briefs, and pleadings, was read into the record without objection or correction by either party. That memorandum, now contained in the notes of the court reporter, reads as follows:

Petitioner objects to the report of the Magistrate which recommends that petitioner's motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, be denied. Petitioner had moved to vacate his sentence on three grounds: (1) the guilty plea which he made was not made voluntarily nor with an understanding of the charge against him, (2) the conviction was obtained by the use of illegally obtained evidence, and (3) he did not have the effective assistance of counsel.

INVOLUNTARINESS OF THE PLEA

After an evidentiary hearing at which the petitioner, his former counsel, and an Assistant United States Attorney testified, Magistrate Cohen found that on several occasions the petitioner had advised his former counsel, a Mr. Cosgrove, that he did not want to plead guilty. The Magistrate also found, however, that petitioner changed his mind on the day of trial after looking at the "insurmountable odds" against him. The petitioner was informed by Chief Judge Caffrey of the charges against him and acknowledged that he understood them and that he did knowingly possess valium with the intent to distribute it.

Petitioner claims that the Magistrate overlooked evidence of his state of mind on the morning of the change of plea. He says he was shocked, bewildered, and very disturbed by the turn of events. He contends that he answered the questions of the court as he did because his counsel informed him not to "make waves" or the plea would not be accepted. Additionally, petitioner says that his father told him that there were financial considerations to be kept in mind. Finally, he contends that he believed that the recommendation of the United States Attorney was going to be six months, and in fact was for eighteen months.

FOURTH AMENDMENT ISSUES

Magistrate Cohen found that the claims of illegal search and seizure did not warrant habeas corpus relief without a showing that the existence of such illegally obtained evidence induced a plea of guilty or made the plea involuntary. The Magistrate found that the Assistant United States Attorney had stipulated that the gun seized from the petitioner would not be placed in evidence; he also found that the petitioner had no standing to challenge the legality of the search of a co-defendant's vehicle, which search did produce incriminating evidence.

Petitioner argues that where as here his claim of illegal search and seizure was never tested by a motion to suppress, nor heard at trial, nor tested by way of appeal, his allegation is properly before this court. He claims that the law in effect at the time of his arrest and plea gave him standing to challenge the legality of the search and seizure.

DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL

Magistrate Cohen found that: (1) the fact that Mr. Cosgrove met with the petitioner for 15-30 minutes on each of a few occasions did not make counsel ineffective, (2) Cosgrove did explain the elements of the offense charged to the petitioner, (3) the fact that Cosgrove suggested a guilty plea, in view of the strength of the government's case, did not warrant an inference of ineffective assistance of counsel, (4) the fact that Cosgrove did not file a motion to suppress, when such a motion clearly would have been frivolous, did not even

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