U.S. v. Unger, 80-1456

• Decision Date: 12 December 1980
• Docket Number: No. 80-1456,80-1456
• Parties: UNITED STATES of America, Appellee, v. Robert Ellis UNGER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 688

635 F.2d 688

UNITED STATES of America, Appellee, v. Robert Ellis UNGER, Appellant.

No. 80-1456.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 8, 1980.

Decided Dec. 12, 1980.

James H. Reynolds, U. S. Atty., Cedar Rapids, Iowa, for appellee.

Robert Ellis Unger, pro se.

Before STEPHENSON, HENLEY and ARNOLD, Circuit Judges.

PER CURIAM.

Appellant Robert Unger appeals from the district court's denial of his motion to vacate sentence under 28 U.S.C. § 2255. His appeal raises issues involving the voluntariness of his guilty plea and the nature of his plea bargain. He seeks a remand to the district court for an evidentiary hearing to determine the true nature of his 1977 plea agreement and whether it was kept. We affirm the district court's denial of relief.

On July 20, 1977, after the jury was sworn and numerous witnesses subpoenaed, Unger pleaded guilty to separate counts of kidnapping and auto theft. ¹ The guilty pleas were prompted by a plea bargaining agreement which was struck between the prosecuting attorney and Unger's defense counsel. In return, several other counts against Unger were dropped. The district court conducted an extensive Fed.R.Crim.P. 11 hearing before accepting Unger's guilty pleas.

On August 25, 1977, the district court conducted a sentencing hearing after which Robert Unger was sentenced to a fifty-year term on the kidnapping charge and a five-year concurrent term on the auto theft charge. ²

Since the August 25, 1977, sentencing, Unger has filed numerous motions (usually on behalf of himself and his wife Crystal) attacking the validity of the guilty pleas, the length of the sentences imposed and various other matters relating to the 1977 proceedings. Some fifteen motions appear in the district court files.

The instant section 2255 motion was filed by Robert on February 4, 1980, and apparently sought relief for both Robert and Crystal. However, it was signed by Robert only as movant, and was properly considered by the district court as a motion for relief by Robert Unger. The grounds asserted in the district court were: (1) that an evidentiary hearing was required to determine the exact nature of the 1977 plea bargain; (2) that the Ungers were subjected to double jeopardy; (3) that their trial counsel was ineffective because he failed to properly prepare for trial and lied about the plea bargain; and (4) that a witness at the state preliminary hearing-the mother of the kidnapped child-testified that she gave the Ungers permission to keep the child during the period involved, thus negating the kidnapping charge. Unger also alleged that the district court imposed a severe sentence on the basis of prejudicial remarks by the prosecuting attorney during the sentencing hearing. On March 31, 1980, Unger filed additional arguments, essentially contending that the Ungers were coerced into entering into the guilty plea, that the plea bargain was breached, and again urged that an evidentiary hearing be held.

The district court denied section 2255 relief on May 1, 1980. The court held that most of the issues had been previously raised, decided against Unger and thus could not be reasserted. The court stated, inter alia :

After attempts to withdraw their plea and to have their sentences reduced, petitioners filed their first motion to vacate on January 9, 1978. As part of their motion they proclaimed their innocence, that their pleas were coerced and without a factual basis; that they were denied effective assistance of counsel and that the government had violated its Petite Policy. This motion was denied on May 22, 1978. Petitioners appealed and the appeal was subsequently dismissed. ³ The court's May order is hereby incorporated by reference and those matters previously considered will not be reconsidered at this time.

The dismissal of defendants' appeal was followed by a spate of motions from petitioners. Once again the motions raised several grounds dealing with the presence of counsel when petitioners were ordered to undergo psychiatric evaluation, prejudicial statements by the prosecutor, excessive sentence, breach of the plea bargain and mental competency at the time of the offense. The bulk of these matters were denied by the court in its order entered February 13, 1979, and will not be reconsidered again here.

At that time, in light of the numerous issues raised by petitioners and the vagueness of many of their allegations, counsel was appointed to assist them in the preparation of a comprehensive and final motion to vacate. After reviewing the record, counsel filed and was granted leave to withdraw on December 10, 1979, concluding after an investigation of the circumstances of the case that petitioners had no grounds for post conviction relief.

The present motion was filed on February 4, 1980. Once again it raises matters that were previously considered in the court's prior orders and these matters are denied with reference to the other orders. All other grounds must be dismissed as frivolous.

In passing, the court would note on its own motion that perhaps the most serious problem in this case centers around the fact that defendants were represented by the same counsel at all times. However, a review of the tapes of petitioners' initial appearances reveal that they were adequately advised of their right to independent counsel and knowingly and voluntarily waived separate counsel. Further, no conflict in representation is urged or apparent from the record. See Holloway v. Arkansas, 435 U.S. 475 (98 S.Ct. 1173, 55 L.Ed.2d 426) (1978); United States v. Cox, 580 F.2d 317 (8th Cir. 1978); United States v. Lawriw, 568 F.2d 98 (8th Cir. 1977).

In this appeal, Robert Unger raises issues going to the voluntariness of his guilty plea, the nature of the plea bargain and seeks a remand to the district court for an evidentiary hearing to ascertain the true nature of the 1977 plea agreement and whether the terms of the agreement were kept. In support of his contentions, Unger cites United States v. Scharf, 551 F.2d 1124 (8th Cir.), cert. denied, 434 U.S. 824, 98 S.Ct. 70, 54 L.Ed.2d 81 (1977). The government responds that Unger previously raised the same objections to the 1977 plea procedure and therefore, this court is not required to reconsider the issues. Since no post-conviction evidentiary hearings have been held we must determine whether the files and records of the case conclusively show that petitioner is entitled to no relief. Smith v. United States, 618 F.2d 507, 510 (8th Cir. 1980); United States v. Goodman, 590 F.2d 705, 710 (8th Cir.), cert. denied, 440 U.S. 985, 99 S.Ct. 1801, 60 L.Ed.2d 248 (1979); Lindhorst v. United States, 585 F.2d 361, 364-65 (8th Cir. 1978).

We have carefully examined the entire record and conclude that Unger's section 2255 motion was properly dismissed. Unger initially filed several motions to reduce or modify sentence in which he challenges the legality of his guilty plea and the plea bargain. The district court rejected those contentions and other complaints in a comprehensive ruling on the Ungers' first section 2255 proceeding. The district court held inter alia : (1) there was a factual basis for the Ungers' guilty plea, (2) the allegations of plea coercion were contradicted by the record, and (3) petitioners failed to allege a breach of duty by counsel or any prejudice arising therefrom. (Order filed May 22, 1978.)

In response to a subsequent series of Unger motions including a motion entitled "Motion for 2255" the district court, on February 13, 1979, filed a comprehensive order in which it reviewed pending motions. Of particular interest is the court's review of defendant's claim of a breach of the plea bargain. The court noted that defendants had been placed under oath and interrogated prior to the court accepting the guilty pleas. In addition, counsel were sworn and testified as to the terms of the plea bargain. Thereafter defendants acknowledged under oath that counsel had made an accurate statement of the entire plea bargain. The court expressed the view that "defendant has failed to allege any violation of the plea bargain." However, because defendant's allegations were "vague enough * * * so as to leave the court uncertain as to whether any claim may have potential merit" the court denied all pending motions without prejudice and appointed counsel to represent defendants in filing appropriate motions under 28 U.S.C. § 2255.

Counsel was appointed but the district court later permitted her to withdraw after she reported that after investigation and study of the files, she concluded that no meritorious section 2255 grounds existed. Robert Unger then filed pro se the instant section 2255 motion which was denied on May 1, 1980.

With respect to the merits of Unger's challenge to his guilty plea, the record does not support Unger's claims of coercion and deceit by his defense counsel and by the prosecuting attorney. The change of plea hearing transcript clearly reveals that the requirements of Fed.R.Crim.P. 11 were satisfied.

After each of the defendants was sworn, the district court carefully inquired whether: (1) the pleas were being entered voluntarily and solely because the defendants were guilty; and (2) the pleas were induced by threats or promises other than a plea bargain. The Ungers answered "Yes" and "No" respectively. After being advised that there was a plea bargain, the court directed that counsel be sworn with respect...