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
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).
"THE DEFENDANT: Yes.
"THE DEFENDANT: Yes, sir.
"THE DEFENDANT: (No audible response).
"THE COURT: And it is your desire to enter a plea
"THE DEFENDANT: Right.
"THE COURT: Very well, let the record show that
the defendant, after having been fully admonished
and warned as to the consequences of his plea,
chooses to enter a plea of guilty. The plea is
entered knowingly and willfully. It will be
received. The plea will be received. There will
be a finding of guilty on the plea and judgment
on the finding."
The Court is further satisfied that there was a factual
basis for the plea. See, Proposed Amended Rule 11, F.R.Cr. P.,
34 F.R.D. 417 (1964). The extent to which a Court must inquire
as to the factual basis for a plea of guilty will vary from
case to case. In cases where the charge involves complicated
facts, such as conspiracy in a scheme to defraud a bank, the
Judge should inquire further to determine whether the
defendant, in conversation with his attorney, had discussed
possible factual and technical defenses, e. g., Statute of
Limitations. In the present case, however, no additional
inquiry was necessary, for at the hearing on the motion to
suppress, substantial facts concerning the entire incident
were elicited to satisfy the Court that defendant well knew
that he had no further defense.
Being convinced that the plea of guilty was made voluntarily
and with an understanding of the nature of the charge, that no
threats or promises were made by the Government to cause
petitioner to plead guilty, and that there was a factual basis
for the plea, the Court granted leave to Cerniglia to withdraw
his plea of not guilty and to enter a plea of guilty.
On February 13, 1964, petitioner appeared for sentencing.
Evidence in aggravation was submitted by the Government
showing that subsequent to the hearing on the motion to
suppress held on December 6, and during the Christmas holiday
rush, Cerniglia, while working at a factory, facilitated the
theft of several additional packages of goods by placing false
address labels on them so that they would be mailed to an
In response to this revealing information, defense counsel
stated, in mitigation, that defendant had a propensity for
petty thievery like a sickness and lacked will power.
The Court inquired of petitioner whether the information was
true, and asked whether he had anything to say. Cerniglia
openly admitted his guilt of both the offense charged in the
indictment and the subsequent offenses. He made no attempt to
complain of any allegedly illegal inducements to plead guilty,
but rather, himself, then sought to obtain probation.
The fact that petitioner may have had the expectation that
his plea would result in a lesser sentence is not sufficient
ground, in the absence of evidence that the expectation was
induced by the Government, for setting aside sentence and plea
of guilty. United States v. Taylor, 303 F.2d 165 (4th Cir.
As the Supreme Court in Machibroda wisely observed, "[t]he
language of the statute does not strip the district courts of
all discretion to exercise their common sense." 368 U.S. at
495, 82 S.Ct. at 514.
In view of all facts and circumstances of the case the Court
is compelled to affirm its prior finding that petitioner's
plea of guilty was voluntarily given, with an understanding of
the nature of the charge, that no threats or promises were
made by the Government to cause him to plead guilty, and that
there was a factual basis for the plea. Cf. Olive v. United
States, 327 F.2d 646 (6th Cir. 1964).
Even if the motion to suppress had been denied erroneously,
it would not follow automatically that subsequent conviction
based upon a plea of guilty would be a nullity. It is the law
of the Seventh Circuit that a voluntary and intentional plea
of guilty constitutes
a waiver of objections to prior proceedings, including alleged
prior violations of the defendant's rights. United States v.
French, 274 F.2d 297 (7th Cir. 1960). This is not a case where
the plea of guilty is alleged to have been induced by prior
police conduct. Cf. Watts v. United States, 107 U.S.App.D.C.
367, 278 F.2d 247 (1960); United States ex rel. Staples v.
Pate, 332 F.2d 531 (7th Cir. 1964).
The Court's action taken in this matter has been on its own
initiative as a part of its duties with relation to all cases
before it to determine, independent of the advice of counsel
on either side, whether the motion under § 2255 and the files
and records of the case raise a sufficient question to justify
any further consideration of the matter. If not, the Court is
empowered to deny the motion, and, in so doing, need not
appoint counsel to represent the movant. The instant case is
distinguished on its facts from, and respects faithfully, the
mandate of the Seventh Circuit Court of Appeals in Campbell v.
United States, 318 F.2d 874 (7th Cir. 1963), to the effect that
a prisoner who files a § 2255 motion must not be denied the
assistance of counsel.
Following the advice of the Judicial Conference Committee on
Habeas Corpus that "it would promote orderly procedure
if * * * appropriate legal assistance (were provided) for
inmates of Federal penal institutions in the preparation of
their § 2255 petitions," Report, 33 F.R.D. 367, 385 (1963), I
am of the opinion that counsel should be appointed even where
the movant fails to make such a request, as in the present
However, it would appear unwise, and an unfair burden on the
Federal Courts, to appoint counsel for every single § 2255
motion filed, no matter how vague, conclusory, or palpably
incredible the allegations may be. The more desirable procedure
would seem to be appointment of counsel in all § 2255 cases,
except those where the motion is completely groundless or
utterly and hopelessly frivolous. See, Note, 30 U.Chi.L.Rev.
583 (1963). Cf. Dillon v. United States, 307 F.2d 445 (9th Cir.
1962), and cases cited therein.*fn2
In view of the Court's finding that the motion was totally
without merit, there was no justification either for
appointment of counsel, or for a hearing on the motion.
Accordingly, the motion to vacate, set aside, or correct
sentence imposed upon petitioner, and for a hearing on the
issue of the voluntariness of the plea of guilty must be, and
the same hereby is, denied.
And it is so ordered.