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United States v. Malcolm

decided: September 23, 1970.

UNITED STATES OF AMERICA, APPELLEE,
v.
GARY MALCOLM, APPELLANT



Anderson and Feinberg, Circuit Judges, and MacMahon, District Judge.*fn*

Author: Macmahon

MacMAHON, District Judge:

The appellant, Gary Malcolm, then eighteen years old, was convicted upon his plea of guilty to the crime of bank robbery (18 U.S.C. § 2113(a)) and sentenced to a term of fifteen years on March 22, 1968. He moved the district court in September 1969 for vacation, correction or reduction of sentence or, in the alternative, to vacate his plea of guilty under Rule 35, Fed.R.Crim.P., and 28 U.S.C. § 2255. The motion was denied without a hearing, but after a review of the record, as completely without merit and frivolous.

Malcolm now appeals from the order of denial, asserting error in the district court's dismissal of his petition without an evidentiary hearing on his claims that: (1) he was mentally incompetent to plead guilty because he was then addicted and under the influence of drugs; (2) he was induced to plead guilty by the prosecutor's unfulfilled promise to recommend sentence under the Federal Youth Corrections Act and (3) he was sentenced illegally because the sentencing judge stifled the prosecutor's attempts to keep his promise, confused his criminal record and labored under a false assumption about his cooperation with city, state and federal authorities while refusing to hear evidence that he had rendered substantial assistance to the New York City police.

We first consider Malcolm's challenge to the validity of his plea and conviction.

Essentially, Malcolm's claim is that his plea of guilty was neither knowing nor voluntary. "A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be 'an intentional relinquishment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Consequently, if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void." McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171, 22 L. Ed. 2d 418 (1969). Accordingly, a plea which is the tainted product of ignorance, incomprehension, coercion, terror, inducements, threats or promises is void. Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).

These safeguards of fundamental fairness make plain that Malcolm would be entitled to vacation of his plea and conviction if he proved that his mental faculties were so impaired by drugs when he pleaded that he was incapable of full understanding and appreciation of the charges against him, of comprehending his constitutional rights and of realizing the consequences of his plea. Sanders v. United States, 373 U.S. 1, 5-6, 19-20, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). A plea in such circumstances is not a knowing, free and rational choice of the alternatives open to an accused and cannot be an intelligent waiver of constitutional rights. It would, therefore, offend due process. Boykin v. Alabama, supra ; McCarthy v. United States, supra ; Sanders v. United States, supra, 373 U.S. at 19-20, 83 S. Ct. 1068; Machibroda v. United States, 368 U.S. 487, 493, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962); Kercheval v. United States, 274 U.S. 220, 223, 47 S. Ct. 582, 71 L. Ed. 1009 (1927).

The district court recognized these familiar principles but denied collateral relief without a hearing, because after review of the record it considered Malcolm's allegations unsupported, wholly without merit and completely frivolous. The statute requires "a prompt hearing" when the allegations of deprivation of constitutional rights raise disputed issues of fact in order to "determine the issues and make findings of fact and conclusions of law" with respect to them "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; Sanders v. United States, supra, 373 U.S. at 6, 15, 83 S. Ct. at 1077; Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963); Machibroda v. United States, supra, 368 U.S. at 494, 82 S. Ct. 510; Note, Developments in the Law: Federal Habeas Corpus, 83 Harv.L.Rev. 1038 (1970). A hearing is not required, therefore, where the allegations are insufficient in law, undisputed, immaterial, vague, conclusory, palpably false or patently frivolous. Sanders v. United States, supra, 373 U.S. at 19, 83 S. Ct. 1068; Machibroda v. United States, supra, 368 U.S. at 494, 82 S. Ct. 510; Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 119, 76 S. Ct. 223, 100 L. Ed. 126 (1956).

With these principles in mind, we turn to the facts respecting Malcolm's plea of guilty.

Malcolm was arraigned before the district court, Bartels, J., on January 25, 1968. His assigned counsel was relieved and retained counsel substituted. Following a brief conference between his attorney and the Assistant United States Attorney, Malcolm offered to plead guilty to count one of a two-count indictment. Malcolm was then personally interrogated by the judge, who first ascertained that he was eighteen years old but, despite his youth, did not inquire about addiction or recent use of drugs. The judge then read aloud count one charging Malcolm with knowing and wilful robbery of a bank, but he did not ask explicitly about each element of the crime, as required by Rule 11, Fed.R.Crim.P. McCarthy v. United States, supra. Malcolm's counsel, however, represented that he had advised him of the charges and Malcolm personally admitted to the judge that he understood them.*fn1 The judge proceeded to advise him of his right to a jury trial, to be confronted with the witnesses against him, to summon witnesses in his behalf and of the consequences of his plea, including possible sentence under the Federal Youth Corrections Act as well as the maximum statutory penalty. Malcolm then pleaded guilty. He was then asked: "Has anyone made any threats or promises or statements to induce you to plead guilty to this count?" He answered: "No." Replying to further questions, he said that he had discussed his plea with his attorney, that he was pleading guilty because he was guilty and for no other reason, and that he was doing so with full understanding of the consequence.

There is nothing in the form or content of the entire interrogation to suggest that Malcolm was under the influence of drugs or otherwise not in full possession of his mental faculties. On the contrary, he appears to have acted with intelligence and understanding. The arraignment proceedings, thus, appear regular on their face.

Nevertheless, Malcolm might have been under the influence of drugs and his condition would not necessarily be revealed by the record or be apparent to the judge who sees him only briefly. Regularity of the arraignment, therefore, cannot "conclusively show" that Malcolm's present claim is without merit, for the facts upon which such a claim is based are usually outside the record. Sanders v. United States, supra, 373 U.S. at 19-20, 83 S. Ct. 1068. Here, however, there is more to the record than the mere transcript of the arraignment.

The presentence report, part of the files and records upon which the court below relied both in imposing sentence and in denying Malcolm's application for collateral relief, conclusively refutes Malcolm's claim. That report shows that Malcolm was interviewed on January 25, 1968 immediately following his plea. He informed the probation officer that he had started using heroin about four months earlier, in September 1967, that he had gone to a Dr. Samuel Grubin for help in stopping his habit, and that he "had not taken a shot" in about three weeks. He also gave a detailed and coherent statement, in writing, admitting his crime from the planning to the division of the stolen money. Later, but before sentence, he produced a letter from Samuel Grubin, M.D., dated January 27, 1968 (two days after his plea), certifying that he "has been examined by me and found to be in good physical condition and free from any addiction."

Thus, the files and records conclusively show that immediately following his plea Malcolm admitted his guilt, denied the recent use of drugs, and confirmed his freedom from narcotics by certification of his own physician. In light of these immutable facts, there was no error in denying collateral relief on this claim without a hearing for, as Judge Abruzzo found, the files and records of the district court "conclusively show" that it is without merit.

Confronted with the record, Malcolm claims that he deceived the probation officer so he would be released on bail and free to indulge his habit. Deceit is a fragile foundation for relief on habeas corpus. The statute itself, 28 U.S.C. § 2255, lends credence to the files and records, including petitioner's admissions against interest. Moreover discretion to deny relief where a claim is founded on petitioner's own fraud upon the court is implicit in the statutory command that the district judge "dispose of the matter as law and justice require." 28 U.S.C. § 2243. "Furthermore, habeas corpus has traditionally been regarded as governed by equitable principles. * * * Among them is the principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." Fay v. Noia, 372 U.S. 391, 438, 83 S. Ct. 822, 848, 9 L. Ed. 2d 837 (1963). This claim, thus, presents yet another instance where a court must ...


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