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CERNIGLIA v. UNITED STATES

June 30, 1964

LEONARD CERNIGLIA
v.
UNITED STATES OF AMERICA.



The opinion of the court was delivered by: Parsons, District Judge.

Leonard Cerniglia has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed upon him by this Court in Cause No. 63 CR 263. Leave was granted him to proceed in forma pauperis.

Petitioner was indicted under 18 U.S.C. § 659 for theft of two cartons of sport jackets having a value in excess of $100, 00 from an interstate shipment. Judgment was entered on a plea of guilty, and petitioner was committed to the custody of the Attorney General for a period of three years under 18 U.S.C. § 4208(a)(2) to be released on parole at such time as the Board of Parole may determine.

In his motion, petitioner requests a hearing on his claim that his plea of guilty was not voluntarily given by him, but was the result of promises of probation, and that said plea was obtained by illegal inducements.

There is no doubt that if the allegations contained in the motion are true, petitioner is entitled to have his sentence vacated. A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).

The question arises as to whether petitioner is entitled to a hearing on his motion. Section 2255, Title 28 United States Code, requires that a District Court "grant a prompt hearing" when such a motion is filed, and to "determine the issues and make findings of fact and conclusions of law with respect thereto" unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief."

If the petition can be ruled on upon the basis of the record, then no hearing is required. Jones v. United States, 290 F.2d 216 (10th Cir. 1961); Cain v. United States, 271 F.2d 337 (8th Cir. 1959).

However, a hearing should not be denied simply because the Court may entertain a mere doubt as to the validity of petitioner's assertions. United States v. Taylor, 303 F.2d 165 (4th Cir. 1963).

Unless the ground for the application is clearly shown to be without merit on the record previously made, then a hearing must be held. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510 (1962); United States v. Paglia, 190 F.2d 445 (2d Cir. 1951).

Thus, the question confronting this Court is whether the motion and the files and records of the case conclusively show that the petitioner is entitled to no relief.

After carefully reviewing the files and records in Cause No. 63 CR 263, the Court is of the opinion that the motion can be ruled on without a hearing on the basis of the record, and that the ground for the application is totally without merit.

At his arraignment on June 13, 1963, Cerniglia was represented by competent counsel and entered a plea of not guilty. Subsequently, he filed a motion to suppress evidence obtained as a result of an allegedly illegal arrest. A hearing on the motion was held on December 6, 1963, and it was denied. At that time, counsel for petitioner indicated that there might be a change in plea from not guilty to guilty. Trial was set for December 27, 1963.

On December 27, Cerniglia requested leave of Court to withdraw his plea of not guilty entered on June 13, and to enter a plea of guilty. Counsel represented to the Court that he had advised Cerniglia of his right to a trial by jury or by the Court and of the possible consequences of pleading guilty to the offense charged in the indictment.

In accordance with Rule 11, Federal Rules of Criminal Procedure, and recognizing that personal interrogation of the defendant is the better practice even when he is represented by counsel, the Court addressed the defendant personally in order to determine whether the plea of guilty was made voluntarily and with an understanding of the nature of the charge and the possible consequences of a guilty plea. The transcript of pertinent parts of that proceeding recites as follows:

  "THE COURT: You heard your attorney tell the
  Court that it is your desire to withdraw a plea
  of not guilty heretofore entered and enter a plea
  ...

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