401 F2d 542 Petitti v. United States

401 F.2d 542

Gary PETITTI, Appellant,
UNITED STATES of America, Appellee.

No. 22345.

United States Court of Appeals Ninth Circuit.

October 17, 1968.

Raymond E. Sutton, Las Vegas, Nev., for appellant.

Joseph L. Ward, U. S. Atty., Robert S. Linnell, Asst. U. S. Atty., Las Vegas, Nev., for appellee.

Before HAMLEY, BROWNING and HUFSTEDLER, Circuit Judges.


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In this proceeding under 28 U.S.C. § 2255 (1964), commenced on May 16, 1967, Gary Petitti seeks relief on the ground that his plea of guilty to a charged narcotics offense was conditioned on the understanding that he would receive treatment for narcotics addiction as soon as he was sentenced, and that although he has been serving his ten-year sentence since July 11, 1966, no such medical treatment has yet been provided.


Following a hearing and the entry of findings of fact and conclusions of law, the district court entered an order denying the section 2255 motion. The court found that the plea of guilty was not entered conditionally, and that Petitti was not misled into believing that the court would order that he be given immediate treatment of this kind, or that the court had authority to enter such an order.


Petitti appeals, contending only that the trial court erred in so finding.


We hold that there was no error in this respect. A verbatim report of the plea and sentencing proceedings is set out in the findings of fact. It shows that, during the plea proceedings, neither Petitti nor his counsel made any request concerning treatment for drug addiction. It further shows that, at the time of sentencing, both Petitti and his counsel expressed the hope that Petitti would receive such treatment but said nothing to indicate that the plea of guilty was conditioned upon receiving it. The court made no representation that Petitti would receive such treatment, or that the court had authority to order it. In fact, however, the court did, at the time of sentencing, recommend that Petitti receive such treatment.