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December 30, 1983


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


Andrew Theodorou was sentenced pursuant to guilty pleas he tendered in two indictments, No. 80 CR 312*fn1 and No. 80 CR 370.*fn2 On February 2, 1982, he filed a motion pursuant to 28 U.S.C. § 2255 to vacate both the judgments and the sentences of these District Court cases. Theodorou contends that he was coerced into the guilty pleas. In addition, he asserts that he did not understand the length of the sentences he could receive pursuant to these guilty pleas. Consequently, Theodorou desires to withdraw these pleas of guilty and to have the sentences set aside through the use of this 28 U.S.C. § 2255 motion.

28 U.S.C. § 2255 of the United States Judicial Code regulates the procedure to vacate or correct a sentence. Section 2255 provides that a prisoner in custody may move the sentencing court to vacate, set aside, or correct a sentence for various reasons, all of which deal with the constitutionality of the sentence.*fn3 If the court determines that one of the reasons exists, the court must vacate and set aside the sentence.

A proceeding under Section 2255 is a new proceeding, independent of that in which the sentence it attacks was entered. Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). The function of a Section 2255 motion is to bring to the attention of the court errors which, if known, would have prevented rendition of judgment. United States v. Davis, 212 F.2d 264 (7th Cir. 1954); United States v. Kranz, 86 F. Supp. 776 (1949).

Under the guidelines of 28 U.S.C. § 2255, the trial court, and only the trial court, may hear the motion to vacate the sentence. However, a hearing is not necessary if the court is entirely familiar with the facts of the case. United States v. Scott, 292 F.2d 49 (6th Cir. 1961), cert. denied, 368 U.S. 879, 82 S.Ct. 128, 7 L.Ed.2d 79 (1961), United States v. Tammaro, 93 F.R.D. 826 (N.D.Ga., 1982). A hearing is required unless the "files and records of the case conclusively show the prisoner is entitled to no relief." 28 U.S.C. § 2255. If it plainly appears from the face of the motion and any prior proceedings that the petitioner is entitled to no relief, the motion should be summarily dismissed.

As stated in the Advisory Committee Notes to 28 U.S.C. § 2255, the appropriate inquiry is "whether the claimed error of law was a fundamental defect which inherently results in a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974).

In this situation, Theodorou contends that the sentences imposed are unconstitutional and violate Rule 11, Fed.R.Crim.P. Rule 11 regulates the procedure of the Federal Courts with respect to pleas by defendants. Essentially, a guilty plea will be considered valid and binding on the defendant if the plea was made voluntarily and intelligently. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

Rule 11 outlines the procedure to be followed by a District Court in order that the defendant's constitutional rights are protected. Rule 11(c) and (d), Fed.R.Crim.P. If the procedure is not fully adhered to, the defendant must be given the opportunity to plead anew. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).*fn4 However, failure to comply with the formal requirements of Rule 11 is not, by itself, grounds for relief under Section 2255. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). Relief can be given if the defendant was prejudiced by lack of understanding of the plea or if the plea was given involuntarily. Timmreck.

Here, however, the United States Attorney merely explained the conditions of the plea agreement. Any pressure on Theodorou could only arise from the other defendants. Rule 11 does not envision pressure or coercion from co-defendants as a violation of a defendant's constitutional rights. Coercion is not determined by whether there are external forces inducing the defendant to plead guilty. Rather, coercion is determined by whether these forces are constitutionally acceptable. United States v. Martinez, 486 F.2d 15 (5th Cir. 1973). In this instance, any coercive pressure came from the co-defendants, not the prosecuting attorney, the government or the court. Allegations of coercion by co-defendants are not recognized as a violation of Rule 11's requirement precluding coercion. See Melnick v. United States, 356 F.2d 493, (9th Cir. 1966), United States v. Webster, 468 F.2d 769 (9th Cir. 1972), cert. denied, 410 U.S. 934, 93 S.Ct. 1385, 35 L.Ed.2d 597 (1973). Consequently, Theodorou's claim that the court's acceptance of his guilty plea violated Rule 11 is incorrect.*fn5

Theodorou also contends that he did not understand the consequence of his guilty pleas. First, he states that he was under the impression that a New Jersey indictment against him would be dismissed. Second, he states that the sentence imposed pursuant to 80 CR 312 was in excess of what he had anticipated. Third, he alleges that he was not aware that the 80 CR 370 sentence could be imposed to run consecutively to the two five-year sentences of 80 CR 312.*fn6

Theodorou contends he would not have pleaded guilty if he had known the New Jersey proceedings would not be dismissed.*fn7 This intimates that Theodorou would not plead guilty if there was a possibility of his receiving a sentence from the New Jersey state courts in addition to any federal sentence. As the New Jersey indictment was eventually dismissed, he was not given an additional sentence and his motivation for pleading guilty was not compromised. Since he was not sentenced, the incorrect assumption he made did not prejudice him. Therefore, he is not entitled to relief as to this claim.

Theodorou also claims that the sentences handed down pursuant to 80 CR 312 and 80 CR 370 should be vacated on the grounds that the sentences were in excess of what he had anticipated. He alleges that he was under the impression that he would not be sentenced for more than seven years under 80 CR 312, in spite of the fact that seven years was the agreed minimum and he was told by the court that he could face a sixteen year sentence.

Rule 11 prohibits the court from accepting a guilty plea from a defendant who does not fully understand the consequences of the plea. The plea must be intelligently made. To assure the defendant's understanding, the court must alert the defendant to the possible consequences of pleading guilty. Pursuant to Rule 11, the court should address the defendant in open court. A.B.A. Standards for Criminal Justice 14-4.1 (2d ed. 1980). The court must address the defendant and inform him of the mandatory minimum and the maximum possible penalty. However, the defendant need not be advised of the sentence he will receive. Paradiso v. United States, 482 F.2d 409 (3rd Cir. 1973), Ruiz v. United States, 494 F.2d 1 (5th Cir. 1974), cert. denied, 419 U.S. 899, 95 S.Ct. 181, 42 L.Ed.2d 144 (1974). In this situation, Theodorou was apprised of the mandatory minimum sentence and the possible maximum sentence in open court. While it is true that the answers given by a defendant ...

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