Moore v. United States

• Decision Date: 02 September 1964
• Docket Number: No. 20406.,20406.
• Citation: 334 F.2d 25
• Parties: Shelley W. MOORE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

334 F.2d 25 (1964)

Shelley W. MOORE, Appellant, v. UNITED STATES of America, Appellee.

No. 20406.

United States Court of Appeals Fifth Circuit.

July 8, 1964.

Rehearing Denied September 2, 1964.

Charles R. Wheeler, Fort Worth, Tex., for appellant.

William L. Hughes, Jr., Robert S. Travis, Asst. U. S. Attys., Fort Worth, Tex., Barefoot Sanders, U. S. Atty., for appellee.

Before HUTCHESON and BROWN, Circuit Judges, and SIMPSON, District Judge.

PER CURIAM.

We review here the denial of a Motion to Vacate Sentence, under Title 28 U.S. C. § 2255.

Moore was convicted and sentenced upon his plea of Guilty to Count 1 of a 3-Count Indictment, charging violation of marihuana and narcotics regulations. Count 1 charged a violation of Title 26 U.S.C. § 4742(a) (the transfer of approximately 406.5 grams of marihuana not in pursuance of a written order of the transferee on a form issued for that purpose by the Secretary of the Treasury, or his delegate). Sentence was imposed under Title 26 U.S.C. § 7237(b) (the Boggs Act) which prescribes punishment of not less than five nor more than twenty years, and discretionary with the Court a fine not to exceed $20,000.00. Under subsection (d) of § 7237 suspension of execution or imposition of sentence, probation and parole are all denied to the Defendant. The remaining two Counts of the Indictment charging marihuana and narcotics violations were dismissed on Motion of Government counsel, and a sentence of fifteen (15) years confinement was imposed.

Moore was attended at all times by his personally employed counsel, an experienced criminal trial lawyer. No motion for withdrawal of the plea of Guilty under F.R.Crim.P. 32(d) was made. No appeal was taken.

About three months after the date of sentence (December 11, 1961) on March 6, 1962, Moore, through new counsel, filed with the District Court his Title 28 U.S.C. § 2255 Motion to Vacate the sentence. The Motion was supported by affidavits of the movant-Defendant Moore and his wife. An Answer was filed by the Government denying material portions of the Motion, supported by affidavits executed by Moore's original attorney, the Assistant United States Attorney, who prosecuted the case, and the Court Reporter, who was present throughout the arraignment and sentence proceedings.

Briefs were submitted by the respective counsel. A detailed and lengthy opinion was filed by the District Judge giving his reasons for denying the Motion, and for doing so without an evidentiary hearing. Based upon the Opinion on file (not reported) the trial judge entered his Order denying the Motion. This appeal then ensued.

Three questions are raised by the appeal, all decided adversely to Moore by the District Court:

(1) As below, he contends that it was represented to him by his counsel that for pleading Guilty to one Count he would receive a five-year sentence, the minimum under the Boggs Act, and that a trade to this effect had been made with the Assistant U. S. Attorney in charge of the case. He asserts that this false information was the inducement upon which his Guilty plea was entered. The tenor of Moore's and his wife's affidavits are to this effect, but there is no contention advanced that a trade had, in fact, been made with the prosecuting Assistant U. S. Attorney. The affidavit of the Assistant U. S. Attorney categorically denies that a trade was made, and the affidavit of Moore's original attorney denies the existence of a trade, and further denies that any false information to this effect was imparted to Moore.

(2) As he contended below, Moore asserts here that he had a valid defense of entrapment which the illegally induced plea of Guilty precluded his presenting.

(3) The Appellant Moore further contends that the District Court was required, in view of the factual dispute present, to hold an evidentiary hearing before ruling upon his Section 2255 Motion.

For reasons we will allude to briefly hereinafter, we conclude that each of these contentions is without merit, and affirm the District Court.

For convenience, the first and third contentions will be discussed together. Assuming that Moore, upon an evidentiary hearing, could have demonstrated the truth of the factual assertions of this Motion and accompanying affidavits, the trial judge could have found only that Moore was in good faith misled by misrepresentations of his own personally employed and paid counsel. There was no factual dispute raised before the trial judge as to any collusion between the prosecuting attorney and Moore's counsel. This showing, which is the most that an evidentiary hearing could produce, would not justify the setting aside of the plea of Guilty. See United States v. Weese, 2 Cir., 145 F.2d 135; United States v. Sehon China, D.C. W.Va., 74 F.Supp. 189, 191 (affirmed 4 Cir., 163 F.2d 876); Ridgeway v. United States, 6 Cir., 205 F.2d 680; Meredith v. United States, 4 Cir., 208 F.2d 680.

The decision of this Court in ...