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).
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
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
"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