Harrell v. United States

• Decision Date: 03 February 1967
• Docket Number: No. 15739.,15739.
• Citation: 371 F.2d 160
• Parties: John Robert HARRELL, Petitioner Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

371 F.2d 160 (1967)

John Robert HARRELL, Petitioner Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 15739.

United States Court of Appeals Seventh Circuit.

January 5, 1967.

Rehearing Denied February 3, 1967.

John J. Cleary, Michael J. McArdle, Chicago, Ill., for appellant.

Carl W. Feickert, U. S. Atty., Joel A. Kunin, Asst. U. S. Atty., East St. Louis, Ill., for appellee.

Before SCHNACKENBERG, KNOCH and CUMMINGS, Circuit Judges.

Rehearing Denied February 3, 1967, en banc.

SCHNACKENBERG, Circuit Judge.

John Robert Harrell, petitioner, has appealed from an order of the district court denying his motion of April 27, 1966, in forma pauperis, filed pursuant to 28 U.S.C.A. § 2255.¹

It appears that petitioner on October 13, 1964, with the assistance of retained counsel, withdrew a plea of not guilty and entered a plea of guilty to an indictment and an information. The indictment charged in count I that Harrell in August 1961 unlawfully concealed and protected a deserter from the United States Marine Corps, in count II that he refused to give up said deserter, and in counts III and IV that he conspired in relation to the acts referred to in the other counts, while count V charged that he unlawfully resisted by means of deadly and dangerous weapons an agent of the FBI in the performance of his duties. The information, in one count, charged that he incurred a bail forfeiture on November 12, 1963 and willfully failed to surrender himself, in violation of 18 U. S.C. § 3146.

The record shows that at a court hearing when petitioner's plea of guilty was accepted by the court, the judge advised him of his rights and inquired as to whether any promises had been made to induce him to change his plea from not guilty to guilty; whereupon petitioner indicated that none had been made. A similar inquiry and a like response followed as to his plea of guilty to the information.

On March 15, 1966, petitioner filed in the district court a lengthy document which he characterized as a "petition (in the nature of) error of coram nobis", which was considered by the court as a motion under 28 U.S.C. § 2255. It was accompanied by various affidavits and was disposed of on the same day by the district court by a memorandum and order fully meeting petitioner's charges and denying the petition. No review of that order is now sought by petitioner.

As hereinbefore stated, on April 27, 1966, petitioner filed what was actually a second motion under § 2255 "on the ground that his plea of guilty was unfairly obtained through use of coercion, intimidation, mistake, misapprehension, fear, inadvertence, or ignorance of his rights or understanding of the consequences of the plea; and, promises made by the prosecution that were not fulfilled or unfillable." His own affidavit in support thereof set forth that he was told by his own attorney that the United States attorney had said that, if Harrell would plead guilty "to harboring a deserter and refusing to deliver him on demand, that he the U. S. Attorney will drop the other four (4) counts, and grant three (3) years probation, * * * and drop the charges pending against his son. * * *" Because the second motion involved a subject matter disposed of by the March 15, 1966 order, the court refused to appoint counsel for petitioner to represent him on the second motion. As above indicated, the court denied that motion. This appeal followed.

The key question before the court below, when considering Harrell's motions under § 2255, was whether the motions, files and records in the case conclusively showed that his plea of guilty was knowingly and voluntarily entered. As a result of our examination of those files and records, we hold that Harrell's contention that false promises deprived his plea of guilty of its voluntary character is not supported by the record. Actually it appears that petitioner's contention that his plea of guilty was induced by promises to his attorney by the government attorney is contradicted by the recitals in the record as to what occurred at that stage of the proceeding.

Thus, on October 13, 1964, when he was arraigned, petitioner was fully advised of his rights and of the maximum sentences which the court could impose. In answer to a question, he stated that his change of plea was made of his own free will and accord and that "there is no need for this Court to try a case already tried before. Therefore, I did change my plea because of that."

The court accepted his plea of guilty and found him guilty on all five counts of the indictment and on the one count of the information after petitioner stated that he was familiar with the charges against him and that no "promises" of any kind by any person at any time made him change his plea from not guilty to guilty; that he was not subjected to any threats, acts of coercion or acts of intimidation, which caused him to change his plea from not guilty to guilty.

On November 4, 1964, when defendant was sentenced he had appeared with his retained counsel, a respected member of the bar. On that occasion neither counsel nor defendant himself informed the court of any alleged promises of leniency. On that day the court sentenced petitioner to the maximum period of confinement on each count of the indictment, and the information, the sentences to run concurrently.

It is significant that, after sentencing of defendant, an affidavit was filed in the district court on December 17, 1964, wherein defendant stated:

"* * * Furthermore, in view of what had happened to the others involved, I assumed that I would get probation. But most of all, I wanted to protect my son, Tod, who is now a fine young man of seventeen and the mainstay of his mother and grandmother. At the last minute, Attorney Rice told me the government had backed out on their deal so far as I was concerned but wouldn\'t prosecute Tod, if I plead guilty".

We are impressed by the government's contention that defendant's plea was not involuntary because he had wrongly anticipated the length of the sentence which the court proceeded to impose upon him and was disappointed in not receiving probation.

We do not find that the action of the district court in this case does violence to the holding in Machibroda v. United States, 368 U.S. 487, 489, 82 S. Ct. 510, 7 L.Ed.2d 473 (1962). Thus in United States v. Farrar, 7 Cir., 346 F.2d 375 (1965), upon facts of record far more favorable to a prisoner than those appearing of record in this case, we at 376, relied upon Machibroda and upheld the action of a district court in denying, without a hearing, a petitioner's motion under § 2255. Numerous cases from other circuits are in conformity with the action which we there took. The authorities sustain the action of the district court in the case at bar and its order, from which petitioner has now appealed, is affirmed.

Mr. John J. Cleary, court-appointed counsel, has served diligently on behalf of defendant in this case. We express our appreciation for his services.

Order affirmed.

CUMMINGS, Circuit Judge (dissenting).

In my opinion, the District Court's denial of petitioner's April 1966 motion under Section 2255 of the Judicial Code (28 USC § 2255) was improper. Under that Section, a hearing is required "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief" (italics supplied).

Machibroda v. United States, 368 U.S. 487, 496, 82 S.Ct. 510, the leading case, admonishes that a hearing is required even though a petitioner's assertions are "improbable", if they are not clearly "incredible". Here the petitioner's April 1966 motion, supported by his, his wife's and his mother's affidavits, states that he pleaded guilty to these charges in December 1964 because on October 5, 1964, his defense counsel, Robert Rice, advised petitioner that United States Attorney Feickert had agreed to drop the charges pending against petitioner's 17 year-old son Tod.¹ According to the affidavits, Mr. Rice so informed petitioner's wife and mother on October 7. Petitioner's affidavit also asserts that on October 9, 1964, in the presence of his cell-mate, Assistant United States Attorney Williams assured petitioner that the Government's promise would be kept. Finally, the affidavit claims that in December 1964 Mr. Rice told petitioner's Danville, Illinois, attorney, John Unger, that the Government had kept its promise of dropping the charges against petitioner's son.

In denying petitioner's Section 2255 motion, the District Court stated that "these same questions" had been previously raised in a November 1965 motion denied on March 15, 1966.² But an examination of the November motion and supporting affidavit shows that they were devoid of any allegation concerning petitioner's son Tod. At the time that petitioner received his 10-year maximum sentence, the charges were still pending against Tod. We were advised at the oral argument that "the indictment against petitioner's son was dismissed on December 29, 1964."

At the time he was sentenced, the District Court interrogated petitioner as to whether any promises had been made to him, and petitioner then denied the existence of any promises influencing his plea.³ Such a ritualistic pre-sentencing colloquy is "not conclusive" on the issue of voluntariness. Trotter v. United States, 359 F.2d 419, 420 (2nd Cir. 1966); Scott v. United States, 349 F. 2d 641, 643 (6th Cir. 1965). If petitioner had acknowledged the "promise" of leniency toward his son in return for petitioner's guilty plea, that plea would not have been accepted and petitioner would be uncertain whether the prosecution against his son would be dropped. It is only really where such promises are not kept that a defendant can be expected to tell the truth about any "deal" with the prosecutor. Courts should not penalize defendants who have denied promises during their in-court statements if they can later show why they made...