The opinion of the court was delivered by: ABRUZZO
The present motion is made under and pursuant to Title 28 U.S.C.A. 2255, seeking relief as provided in that section. It reads as follows:
' § 2255. Federal custody; remedies on motion attacking sentence
'A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. * * *'
The basic grounds urged by the defendant are as follows: (1) That the sentence was imposed in violation of the Constitution, Sixth Amendment, because the defendant was deprived of his right to counsel and because he was deprived of his right to trial by jury; and (2) that the sentence is otherwise subject to collateral attack on the facts submitted in this motion which were not before the Court at the time the defendant was sentenced.
A brief history of this case is relevant. The defendant pleaded guilty to Counts 1, 2 and 3 of the indictment. At the time of this plea the defendant was asked the usual questions by the Clerk on every plea of guilty taken before this Court. Two of these questions were as follows: (1) Are you taking this plea voluntarily? (2) You realize that on this plea of guilty the Court has the right and may sentence you to jail?
Basically the defendant was charged in these three counts with fraudulently making a false oath and concealing in excess of $ 25,000 assets in a bankruptcy proceeding. The pre-sentence report shows that the defendant admitted he failed to disclose approximately $ 65,000 in assets belonging to him at the time he filed the petition for bankruptcy. He received a discharge in bankruptcy in December, 1954. Throughout the proceedings he declared assets amounting to $ 35 in cash.
As a result of this plea on April 3, 1959, this Court sentenced the defendant to a three-year sentence on each count, the sentences to run concurrently. He is now in jail serving that sentence.
At the time of his plea of guilty he was represented by a very capable and outstanding lawyer named Menahem Stim. Whether he took this plea of guilty pursuant to the advice of his counsel or contrary to his advice is of no consequence.
United States v. Miller, 2 Cir., 254 F.2d 523, at page 524, states as follows:
'Denial of the motion was plainly correct. After conviction on a plea of guilty validly accepted by the trial judge, the defendant cannot by asserting his innocence obtain a retrial of the facts. As stated in Kercheval v. United States, 274 U.S. 220, 223, 47 S. Ct. 582, 583, 71 L. Ed. 1009, 'Like a verdict of a jury it (the plea) is conclusive.' Godish v. United States, 10 Cir., 182 F.2d 342, 343 is to the same effect. * * * Finally, the claim that his attorney was inefficient is of no avail on a motion under 2255 unless counsel's failure was such as to make the trial 'a mockery of justice,' United States v. Wight, 2 Cir., 176 F.2d 376, 379. * * *'
The defendant was represented by counsel of his own choosing, an able, experienced and efficient attorney. His public record attests to this fact. He has tried many important criminal cases and this defendant was ably represented at the time he took his plea. These factors dispose of the claim that his sentence was imposed in violation of the Constitution's Sixth Amendment.
The moving affidavits stress the fact this defendant took the plea of guilty on the advice of one Voloshen who apparently is an attorney admitted to the Bar in Maryland and who had been the defendant's legal advisor for many years, and, secondly, that the bankruptcy petition did not reflect the true facts relevant to his creditors. The petition lays emphasis on the fact that Voloshen was not admitted to the Bar in this State and that Voloshen directed the inclusion of a number of obligations, either overstated, paid or barred by the statute of limitations. These factors are not determinative of the issue laid bare by the criminal indictment.
It is noteworthy that the indictment was the result of some facts discovered after he was discharged in bankruptcy in December, 1954. In April, 1955, approximately a year and a half after the discharge it was discovered that he had a net worth of $ 223,961.01. His affidavits upon this application now assert that most of these assets, or a great proportion of them, were owned by his wife. She was the recipient of an inheritance in the amount of $ 93,000. It is quite debatable how much of the assets of $ 223,961.01 were actually owned by the defendant. Suffice it to say that he admitted to the probation department that he failed to disclose at the time of his bankruptcy approximately $ 65,000 in assets. Whether he was innocent of the charge when he pleaded to the indictment or not is not at issue, for his plea of guilty overcomes any contention which the defendant now asserts that would warrant a retrial to prove his innocence. United States v. Miller, supra.
Singularly, Voloshen was not the defendant's attorney of record in the bankruptcy proceeding. These proceedings show that Lewis H. Ullman represented him. He is a New York attorney admitted to ...