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FIMMANO v. UNITED STATES

January 16, 1970

Frank FIMMANO, Petitioner,
v.
UNITED STATES of America, Respondent


Levet, District Judge.


The opinion of the court was delivered by: LEVET

MEMORANDUM

LEVET, District Judge.

 Petitioner, Frank Fimmano, moves pursuant to 28 U.S.C. § 2255 to have the court vacate the judgment of conviction based on his guilty plea on May 24, 1967 and set aside the sentence imposed thereafter on June 30, 1967. He contends (1) that his retained counsel did not inform him of his ineligibility for parole under the narcotics law, thereby depriving him of the Fifth Amendment right to due process and the Sixth Amendment right to effective assistance of counsel; and (2) that the court did not inform him of such ineligibility for parole, thereby depriving him of his right to be informed of the "consequences of the plea" under Rule 11, Federal Rules of Criminal Procedure.

 The petitioner was indicted on three counts in violation of 21 U.S.C. §§ 173, 174 and 18 U.S.C. § 371. At the beginning of the trial, his counsel, Robert Mitchell, Esq., reported to me that "the defendant Frank Fimmano desires to withdraw his plea of not guilty and plead guilty to the three counts of the indictment." I then addressed Fimmano personally in order to determine that the plea was made voluntarily with an understanding of the nature of the charges and the consequences of the plea and in order to properly satisfy myself that there was a factual basis for the plea.

 In connection with the requirement that there be an understanding of the nature of the charges and a factual basis for the plea, the following colloquy occurred on May 24, 1967:

 
"THE COURT: Are you Frank Fimmano?
 
A Yes.
 
THE COURT: You are one of the defendants in this case? *fn1"
 
A Yes, your Honor.
 
* * *
 
THE COURT: Now, in reference to the first count, that charges you with selling heroin or receiving and facilitating the transportation * * of heroin on June 13, 1966. What did you do on that day in respect to narcotics? * * * Did you transfer some heroin to someone else?
 
A Yes, your Honor.
 
THE COURT: Where was it?
 
* * *
 
A In the Bronx.
 
THE COURT: Where in the Bronx? Don't you know where?
 
* * *
 
A Allerton Avenue, ...

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