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
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 ...