U.S. v. Deal, 81-7630

• Decision Date: 18 June 1982
• Docket Number: No. 81-7630,81-7630
• Citation: 678 F.2d 1062
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold Lee DEAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1062

678 F.2d 1062

UNITED STATES of America, Plaintiff-Appellee, v. Harold Lee DEAL, Defendant-Appellant.

No. 81-7630.

United States Court of Appeals Eleventh Circuit.

June 18, 1982.

Pashley & Mers, Bruce E. Pashley, Scott J. Mers, Atlanta, Ga., for defendant-appellant.

Steven R. Wisebram, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT and HENDERSON, Circuit Judges, and LYNNE ^*, District Judge.

PER CURIAM:

Harold Lee Deal appeals the denial of his motion to vacate his sentence brought pursuant to the provisions of 28 U.S.C. § 2255 in which he challenges the voluntariness of his plea of guilty in the United States District Court for the Northern District of Georgia. We affirm.

Deal was indicted on September 2, 1976, in the United States District Court for the Southern District of Florida for knowingly and intentionally transporting stolen goods in interstate commerce in violation of 18 U.S.C. § 2314. According to Deal, he picked up a trailer loaded with carpeting in Dalton, Georgia at the direction of his employer and drove it to a designated location in Atlanta. He left the tractor-trailer rig for a time and when he returned he noticed the advertising decals had been changed and the trailer had been sealed. The Interstate Commerce Commission (ICC) identification numbers remained unaltered. He drove the trailer to Fort Pierce, Florida. Police in Fort Pierce apparently identified the trailer as stolen from the ICC markings and arrested Deal.

During his incarceration in a Florida jail he became concerned with the medical condition of his pregnant wife in Atlanta and sought advice from two FBI agents. Deal relates that the agents informed him that his case could be transferred to the Northern District of Georgia under Rule 20 of the Federal Rules of Criminal Procedure if he agreed to plead guilty. ¹ The agents purportedly told Deal that Rule 20 was the only means by which the case could be transferred. Neither agent mentioned the possibility of a transfer pursuant to Rule 21 of the Federal Rules of Criminal Procedure which does not require a guilty plea. ² Apparently, the agents themselves were not aware of the availability of a Rule 21 transfer at the time they spoke with Deal. See Record, vol. 1, at 82-83. All of these facts, alleged by Deal, are not authenticated by any evidence in the record. The appellant also claims that an attorney from the Federal Public Defender Program who visited him in the Florida jail declined to represent him or give legal advice. These assertions also lack support in the record.

Deal contends that under these circumstances he decided to plead guilty and consented to a Rule 20 transfer to the Northern District of Georgia. The transfer was approved by the United States attorney for each district. ³ After the case was docketed in the Northern District of Georgia and prior to his arraignment, an attorney was appointed to represent him. With the advice of counsel, Deal negotiated a plea of guilty and appeared before a district judge of the Northern District of Georgia. At the arraignment hearing, the district judge questioned the appellant on the circumstances and consequences of his guilty plea, as required by Rule 11 of the Federal Rules of Criminal Procedure. Thereafter, the judge accepted the plea and sentenced Deal to the custody of the Attorney General for five years, suspended the sentence and placed him on probation for five years. Probation was later revoked in July, 1980, and the district court imposed another five year suspended sentence and five years probation. See Record, vol. 1 at 17. On October 9, 1980, almost four years after he was initially sentenced, Deal filed this motion under 28 U.S.C. § 2255 to "vacate, set aside, or correct" his sentence. Record, vol. 1, at 26. The United States District Court for the Northern District of Georgia denied the motion without an evidentiary hearing as untimely and alternatively, on the merits. Deal then submitted a more factually detailed motion for reconsideration which was also denied, and he appealed to this court. Since we affirm the district court on the merits, we do not reach the timeliness issue.

On appeal, the appellant urges that (1) the district court accepting his plea of guilty improperly determined that the plea was voluntary, in violation of Federal Rule of Criminal Procedure 11(d). ⁴; (2) there was no factual basis for his plea of guilty as required by Federal Rule of Criminal Procedure 11(f) ⁵; and (3) the district court failed to advise him of certain rights before accepting his plea, in disregard of Federal Rule of Criminal Procedure 11(c) (3). ⁶ As noted earlier, the district court denied the § 2255 motion without a hearing. A § 2255 hearing is not required if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief...." 28 U.S.C. § 2255. See Wright v. United States, 624 F.2d 557 (5th Cir. 1980); Hart v. United States, 565 F.2d 360 (5th Cir. 1978). See also Rules Governing § 2255 Proceedings, Rule 4(b). We agree with the trial court that the entire record in the instant case is so conclusive as to obviate the need for an evidentiary hearing. Also, on appellate review, we must accept the findings of fact made by the district court in its § 2255 determination unless they are clearly erroneous. Cheely v. United States, 535 F.2d 934 (5th Cir. 1976); Bartelt v. United States, 505 F.2d 647 (5th Cir. 1974); United States v. Strother, 458 F.2d 424 (5th Cir.), cert. denied, 409 U.S. 1011, 93 S.Ct. 456, 34 L.Ed.2d 305 (1972). Cf. United States v. Dayton, 604 F.2d 931 (5th Cir. 1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980) (clearly erroneous standard also applies on direct appeal of a Rule 11 hearing).

For the most part, Deal relies on the events surrounding his confinement in the Florida jail to establish the purported involuntariness of his plea of guilty. ⁷ He reasons that the voluntariness of his plea in Georgia was somehow affected by the refusal of the Florida Public Defender to represent him and the advice of the FBI agents that a plea of guilty was his only hope for a transfer of the case to Georgia. Yet he was able to post bail and return to Georgia where an attorney was promptly appointed to represent him before the arraignment. There is no suggestion that he did not have ample time to consult with his appointed counsel or that his attorney's efforts were inadequate at any stages of the proceedings. He apparently made no mention of his Florida difficulties to the lawyer, nor did he inquire as to the possibility of moving the trial on a not guilty plea to the Northern District of Georgia.

Before accepting a guilty plea, the judge is required to address the defendant personally in open court and then must make a determination that the plea is voluntary. Fed.R.Crim.P. 11(d). Since a guilty plea is also a waiver of constitutional trial rights, it "not only must be voluntary but must be (a) knowing, intelligent (act) done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747, 756 (1970) (footnote omitted). The voluntariness of a plea is ascertained in light of all the relevant surrounding circumstances. Id., 397 U.S. at 749, 90 S.Ct. at 1469, 25 L.Ed.2d at 757. The United States Supreme Court has furnished guidance in making that judgment:

(A) plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).

Id., 397 U.S. at 755, 90 S.Ct. at 1472, 25 L.Ed.2d at 760, quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957) (en banc), rev'd on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958) (citation omitted). Employing this standard, the Supreme Court concluded that an otherwise voluntary guilty plea was not coerced even if it was made to avoid the imposition of the death sentence. The plea was upheld as voluntary although the statute authorizing the death sentence was subsequently ruled unconstitutional. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In another instance, the Court stated: a "plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant's confession." McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763, 773 (1970) (footnote omitted). Thus, in the absence of physical harm, mental coercion overbearing the will of the defendant, or intentional misrepresentation or deception, the Court has not been very receptive to claims of coerced guilty pleas. ⁸

The district court had before it a full and complete transcript of the hearing at which the appellant entered his plea of guilty. On the basis of this transcript, the judge ruled that the plea was voluntary. Record, vol. 1, at 76. At that point, the judge knew nothing of the events preceding the transfer of appellant's case to Georgia. It was only in Deal's motion for reconsideration that these allegations were made known to the court. The district court then reconsidered its initial order in light of these facts and again concluded that the plea was voluntary. Record, vol. 1, at 97-8. In this second order, the court found that Deal was represented by counsel after the transfer of his case and that Deal then affirmed his decision to plead guilty before both...