Lambert v. United States, Civ. A. No. C75-26A.

• Decision Date: 17 April 1975
• Docket Number: Civ. A. No. C75-26A.
• Citation: 392 F. Supp. 113
• Parties: Calvin Eugene LAMBERT v. UNITED STATES of America.
• Court: U.S. District Court — Northern District of Georgia

392 F. Supp. 113

Calvin Eugene LAMBERT v. UNITED STATES of America.

Civ. A. No. C75-26A.

United States District Court, N. D. Georgia, Atlanta Division.

April 17, 1975.

Calvin Eugene Lambert, pro se.

John W. Stokes, Jr., U. S. Atty., Sherman D. Johnson, Asst. U. S. Atty., Atlanta, Ga., for respondent.

ORDER

EDENFIELD, Chief Judge.

A guilty plea constitutes a waiver of several constitutional rights to which an accused is entitled, and courts indulge every reasonable presumption against the validity of such waivers, demanding that they be made voluntarily and intelligently. It is apparently with this well-settled rule in mind that petitioner, a prisoner incarcerated in the Atlanta federal penitentiary, filed this motion to vacate his sentence, pursuant to 28 U.S.C. § 2255. The motion asserts that petitioner's guilty plea is constitutionally invalid because petitioner was allegedly misled as to the effect of his negotiated plea. More specifically, petitioner alleges that he relied on his attorney's erroneous prediction of when the parole board would decide to release him from confinement under his indeterminate sentence, and that such reliance vitiated the voluntary and intelligent character of his guilty plea. This court must disagree.

The petitioner in this case was sentenced by this court to serve three concurrent fifteen-year sentences under 18 U.S.C. § 4208(a) (2) for three separate bank robberies. This sentence was jointly recommended to the court by the United States attorney and defendant's retained counsel pursuant to plea negotiations, and it was accepted, subject to pre-sentence investigation.

At the Rule 11, F.R.Crim.P., hearing on January 15, 1975, petitioner stated that he was aware that plea discussions were going on between his counsel, the United States attorney, and the court, that he approved of those negotiations at the time, and that he still approved of them. He stated further that he understood the maximum sentence imposable for his offenses, and that his plea was entered "freely and voluntarily, without anybody threatening him or promising him anything." Tr. 5.

At sentencing on March 1, 1975, the following colloquy took place:

"THE COURT: All right, sir. You know your attorney and the United States Attorney have talked to the Court about your case?

"MR. LAMBERT: Yes, sir.

"THE COURT: And have agreed to make a joint recommendation to the Court that I give you concurrent sentences on all of these charges of fifteen years to run concurrently, as an indeterminate sentence under — so that you can be paroled at any time the Parole Board sees fit?

"Were you aware of those negotiations?

"MR. LAMBERT: Yes, sir, I have been.

"THE COURT: Did you approve of them at that time?

"MR. LAMBERT: Yes, sir.

"THE COURT: And do you approve of them now?

"MR. LAMBERT: Yes, sir, I do."

(Tr. 9, 10, emphasis added.)

Less than nine months later, petitioner sought leave to file in forma pauperis this motion pursuant to 28 U.S.C. § 2255, which motion was ordered filed on January 3, 1975. Four of petitioner's five alleged grounds for his motion to vacate sentence were found to be without merit in this court's order of March 14, 1975, and the court heard evidence and argument pertaining to the remaining ground of the motion at a hearing held on April 11, 1975.

The gravamen of the surviving complaint is that petitioner entered his guilty plea as the result of a "false promise" allegedly made by the United States attorney, through petitioner's retained counsel, that petitioner would be released in twelve to eighteen months if he took a fifteen-year type-A sentence. 18 U.S.C. § 4208(a)(2). The government denies ever making such a promise either to petitioner or to his attorney. The evidence shows that Assistant United States Attorney Gale McKenzie discussed with defense counsel the strength of the government's case against petitioner, as well as various sentence recommendations, including three concurrent ten-year sentences, but that final agreement was reached upon the fifteen-year type-A sentence. Defense counsel apparently indicated to Ms. McKenzie that he knew little of federal sentencing and parole procedures, and that he was relying upon her expertise in such matters to understand the effect of the various types of sentences. Ms. McKenzie testified that she explained that under a type-A sentence a prisoner can be paroled at any time in the discretion of the parole board. She further explained that, while a type-A sentence means that a defendant is immediately eligible for parole, as a practical matter a parole hearing may not even be scheduled until twelve to eighteen months after the defendant has been assigned to an institution. Defense counsel testified, however, that Ms. McKenzie concurred in his conclusion that petitioner would be released within eighteen months under such a sentence, and that an unidentified "parole officer" at the Atlanta federal penitentiary likewise concurred with that prediction.

After conferring with Ms. McKenzie, defense counsel advised his client of the recommendation tentatively agreed upon, explaining that by taking the fifteen-year type-A sentence, instead of the ten-year straight sentence, it was "the very strongest probability" that he would be released within twelve to eighteen months. He stated to petitioner that this was not a guarantee, but testified further that in his own mind he considered such a result to be "as certain as the sun rising tomorrow morning." Relying on this advice, as compared with the knowledge that it would be at least forty months before he would be eligible for parole under a ten-year straight sentence, petitioner agreed to accept the bargain and plead guilty. Petitioner himself testified that his counsel told him, and that he fully understood, that there was "the remotest possibility" that he would have to serve the entire fifteen years in an institution. Nevertheless, he chose to take the longer type-A sentence rather than the shorter straight sentence in order to secure earlier eligibility for parole.

Within four months of sentencing, petitioner was afforded a parole hearing, but parole was denied and petitioner is next scheduled for an institutional review hearing in June 1977. It was apparently this three-year setoff which triggered petitioner's § 2255 motion, since he now is scheduled to remain in confinement for at least two to three times as long as he expected when he entered his plea. Petitioner now claims that, had he known that such would be the result of his type-A sentence, he would have opted for the shorter ten-year sentence, under which he would still have been eligible for parole in approximately June 1977, but also under which he would be subject to one-third less time under supervision. It is this misunderstanding which petitioner claims robs his guilty plea of its voluntariness.

Ordinarily, the mere erroneous prediction of sentence by counsel does not make a guilty plea involuntary. See Tindall v. United States, 469 F.2d 92 (5th Cir. 1972); Wellnitz v. Page, 420 F.2d 935 (10th Cir. 1970); Moore v. United States, 334 F.2d 25 (5th Cir. 1964); Georges v. United States, 262 F. 2d 426, 430 (5th Cir. 1959); contra Kelsey v. United States, 484 F.2d 1198 (3d Cir. 1973). This is especially so when counsel is retained by the defendant himself (as was the case here) rather than appointed by the court. See Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1974); United States ex rel. Maselli v. Reincke, 383 F.2d 129, 132 (2d Cir. 1967). Advice given by counsel need not be perfect; it need only be reasonably competent within the standards set forth in McMann v. Richardson, 397 U. S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Herring v. Estelle, 491 F.2d 125, 128 (5th Cir. 1974). In McMann the Supreme Court noted that the requirement that "a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a postconviction hearing." 397 U.S. at 770, 90 S.Ct. at 1448. Whether erroneous advice of counsel is sufficient to negate the intelligent or voluntary character of a guilty plea depends not on whether a court would retrospectively consider such advice to be right or wrong, but rather on "whether that advice was within the range of competence demanded of attorneys in criminal cases." At 771, 90 S.Ct. at 1449.

Defendants facing criminal charges are entitled to the effective assistance of competent counsel; but if it is recognized, as McMann did, that "uncertainty is inherent in predicting court decisions," id., it must be recognized that uncertainty is inherent a fortiori in attempting to predict decisions of the United States Board of Parole. Recognition of this latter element of uncertainty leads this court to distinguish this case from the recent case of Hill v. Ternullo, 510 F.2d 844 (2d Cir. 1975). Relying on Leeson v. Damon, 496 F.2d 718 (2d Cir. 1974), cert. denied, 419 U. S. 954, 95 S.Ct. 216, 42 L.Ed.2d 172 (1974), the Second Circuit held that counsel's failure to advise his client properly on the maximum or minimum term fixed by statute for an offense may vitiate the guilty plea. The opinion focused on the fact that the defendant's plea was made with reliance on erroneous legal advice about "the ultimately knowable: the length of time which, under the applicable statutes, he might be kept in prison." The Second...