United States v. Simpson, 23352.

• Citation: 436 F.2d 162,141 US App. DC 8
• Decision Date: 01 October 1970
• Docket Number: No. 23352.,23352.
• Parties: UNITED STATES of America v. Emanuel W. SIMPSON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

141 US App. DC 8, 436 F.2d 162 (1970)

UNITED STATES of America v. Emanuel W. SIMPSON, Appellant.

No. 23352.

United States Court of Appeals, District of Columbia Circuit.

Argued March 13, 1970.

Decided October 1, 1970.

Mr. Dennis G. Lyons, Washington, D. C. (appointed by this court), for appellant.

Mr. Broughton M. Earnest, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief for appellee.

Before BAZELON, Chief Judge and WRIGHT and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

This case involves the propriety of denial of a petition filed under 28 U.S.C. § 2255 without holding a hearing.

The petitioner pleaded guilty on March 12, 1969 to one count of armed robbery. He was represented by court-appointed counsel. He first admitted committing the offense of robbery. The District Court, taking commendable pains to satisfy itself as to the factual predicate of the plea, asked him to recount the circumstances of the robbery. Appellant said he had borrowed a revolver, with bullets, and gone to McKinley Tech High School's Credit Union, with the gun, and "I stole some money, and I ain't hurt nobody." He was then asked a standard series of questions by the Clerk, and his answers set forth that there had been no promises of any kind to induce a plea of guilty, that he had discussed the plea fully with his attorney, that he was aware that he might be sentenced to life imprisonment, that he was entering the plea of guilty voluntarily because he was guilty and for no other reason.¹

On May 16, he was sentenced to 6 to 24 years on the first count, and the court, on the government's motion, dismissed the remaining ten counts of the indictment. No objection was voiced by petitioner at this time. The pro se petition under 28 U.S.C. § 2255, filed June 17, 1969, recited that defense counsel had told petitioner that he had talked with the judge and made arrangements that on a plea of guilty petitioner would receive a sentence under the Youth Corrections Act, that all that it was necessary for him to do was to give the appropriate answers, yes and no, when the judge asked him certain questions, and everything would be taken care of. "Thusly petitioner was tricked and induced to enter said plea, on the day of sentencing."

The trial judge denied the petition without hearing on July 11, 1969, stating: "The motion, files, and records of the case conclusively show that the prisoner is entitled to no relief." The judge noted that petitioner had said expressly at the plea-taking that no promises had been made, and had acknowledged that he could be sentenced to life imprisonment, that there was no representation of Youth Corrections Act by the court or any showing that any such expectation was induced by the government. The court noted: "It is not unusual and in fact it is likely that defense counsel did discuss the probabilities of sentence with defendant. This is not ineffective assistance of counsel; rather it is the opposite."

I

Obviously the district judge, who accepted the plea, took some pains in disposition of this petition. His opinion has been helpful in focusing the issue, and in avoiding the kind of arid remand which is sometimes necessitated when a petition for relief is denied without any accompanying statement. Moreover, if the case could now be disposed of on the basis of a prediction as to what is "likely" to eventuate, it may well be that the petition will prove on further hearing to be grounded in nothing more than a discussion of probabilities by defense counsel, the kind of discussion which the district judge correctly noted is a cause for commendation rather than condemnation.

However, we must take the case as we find it now. And the petition filed under 28 U.S.C. § 2255, taken on its face, and assuming the truth of its allegations, presented facts that would support a claim of ineffective assistance of counsel and probably also of a guilty plea that was not voluntary because defendant had been falsely told by his attorney that the attorney had talked with the trial judge and had made an arrangement for Youth Corrections Act treatment.²

A defendant cannot claim "coercion" undercutting a guilty plea merely because he has been advised by his attorney that e. g. the judge will probably be more lenient than a jury, or is normally more lenient with defendants who plead rather than go to trial.³ Nor is the guilty plea undermined by an allegation that counsel "assured" defendant that he would obtain certain treatment, even if embellished by the defendant's addition that he "presumed" that his attorney had in hand a promise or agreement on the part of the prosecutor or judge.⁴ However, an allegation of false advice from counsel of an outright arrangement with the judge, crosses the line, and would constitute, if proved, impermissible verbal coercion. In stating that the records of the District Court conclusively show that petitioner is entitled to no relief, the court did not grapple with the allegation that those records were devised so as to conceal the truth by precisely the alleged action of counsel outside the court room which provided the basis for a claim for relief.⁵

To some extent, the need for evidentiary hearings on petitions filed under 28 U.S.C. § 2255, can be avoided or confined by reasonable limitations as to the threshold showing required to impose a hearing requirement. A distortion rather than furtherance of the interest of justice might well be the likely product of a rule that inexorably required evidentiary hearings, even if the allegations are "vague, conclusory, or palpably incredible."⁶ An evidentiary hearing is not required where a petition is supported by mere general allegations of involuntariness.⁷

In Berryman v. United States, No. 22,579 (January 9, 1970) (unreported) this court held that a claim that petitioner did not know and was not advised of the consequences of his plea should not be explored on the basis of general and purely conclusory allegations, and affirmed the dismissal of the petition without prejudice to the filing of a new and more specific petition.⁸

The procedure embodied in Rule 11 "is designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary." McCarthy v. United States, 394 U.S. 459, 465, 89 S. Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). The careful plea-taking transcript not only supports the propriety of a rule rejecting any requirement of hearing based on mere generalized allegations of lack of voluntariness, but also raises the height of the hurdle that must be cleared by defendant, through affirmative proof tendered, even if allegations are specific enough to require an evidentiary hearing.

The need for such a doctrine is underscored by the consideration that otherwise there may be no protection from abuse of the judicial process by prisoners who have assurance from fellow inmates that their use of what is in effect a pre-prepared form will enable them to obtain a hearing promising at least some possibility, however slight, of relief.

Petitioner's assertion, however, is too specific to be denied as merely conclusory, and it cannot be said to be so "palpably incredible" as to permit rejection on the present record. He claims his counsel provided an assurance that the judge had agreed to a sentence under the Youth Corrections Act. The possibility that some statement was made concerning Youth Correction Act treatment is consistent with defendant's youth (20 years at time of offense) and corresponding lack of prior record as an adult.⁹ The likelihood that petitioner will be able to establish that counsel made the presentation alleged in the pleading may be undercut by the high probability that defense counsel will give contrary testimony and by a disposition to credit statements by a member of the court's bar. And the plea transcript is undeniably of highest significance in any testing of the merit of the allegations. Yet these factors cannot be conclusive basis for rejection on the merits, without a hearing, of a pleading which alleges that this court record is itself the product of a distortion deliberately wrought by assigned counsel. Defendant's failure to speak up at sentencing time is a factor, but may prove to be understandable in terms of his confusion. Defendant's allocution¹⁰ at the time of sentencing is certainly consistent with, though of course it does not conclusively establish, the understanding from counsel related in his petition. His failure to speak up after hearing the prison term actually imposed is a factor to be taken into account, but may well be understandable in terms of his confusion¹¹ — as to what happened, and why, and what his remedies might be, and what would be the appropriate way to present them. It was only a month after sentence that defendant executed the petition under 28 U.S.C. § 2255 that is now before us for consideration.

On this record we conclude that the petition should not have been dismissed, and that the case must be remanded for further proceedings.

II

It seems appropriate for a court considering the kind of issue presented by this record to consider further whether the rule requiring evidentiary hearings must be accepted as an unavoidable burden on the courts that cannot be ameliorated, or whether there may not be approaches in the overall administration of justice that would operate to keep the courts open to avoid injustice yet avoid or at least lessen the possibility that they may be clogged by the requirement of hearings on petitions under 28 U.S.C. § 2255 that prove unmeritorious in fact.

1. We first consider the possibility of a procedure for amplifying the record that falls short of an evidentiary hearing. An "amplifying" procedure has been used by the court of appeals for coping with the interrelated problem of pro se petitions seeking...