422 F2d 1313 Diamond v. United States

422 F.2d 1313

Jerry Spencer DIAMOND, Petitioner-Appellant,
UNITED STATES of America, Respondent-Appellee.

No. 23865.

United States Court of Appeals, Ninth Circuit.

February 18, 1970.

Certiorari Denied May 4, 1970.

See 90 S.Ct. 1531.

Jerry S. Diamond, in pro. per.

Michael A. Heuer, Robert L. Brosio, Asst. U. S. Attys., Wm. Matthew Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, CARTER and WRIGHT, Circuit Judges.

BARNES, Circuit Judge:

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Petitioner was charged with two counts of violating the Mann Act. On a compromise plea, on the advice of his appointed counsel (an experienced criminal trial lawyer), he entered his plea of guilty to the second count. Count I was dismissed.


This is an appeal from the denial of his motion for relief under 28 U.S.C. § 2255. The grounds urged by petitioner are two — first, that his attorney was ineffective and wrongfully counseled the guilty plea — second, that his plea of guilty was the result of physical coercion — beating and "rape" by the staff of the Los Angeles County Jail, where he was held during his federal trial.


The district court judge taking petitioner's plea was the same judge who heard the § 2255 petition. Rule 11, Fed.R.Crim.Pro., requires the trial court not to accept the plea without first determining the plea was made voluntarily with understanding of the nature of the charge. Although petitioner entered his plea on February 21, 1966, prior to the July 1, 1966 effective date of the amendment of Rule 11, the transcript of trial proceedings shows that the trial judge both first addressed the defendant personally, and that he explained to petitioner the consequence of his plea. (C.T. 60-62.) The petitioner, without prompting, advised the court he knew he could be sentenced on his proposed plea of guilty to "$5000 or five years or both." Petitioner admitted the commission of the acts charged in Count II, and admitted his guilt as so charged. He acknowledged his lawyer had been told all the facts, and that the lawyer had advised him of all his rights guaranteed under the Constitution, specifying each separately. He denied he had been coerced or threatened or promised any favor, or a lesser sentence, or that any force had been used or threatened against him or his family, by anyone. Petitioner advised the court he had, in his opinion, been afforded the services of competent and effective counsel.


Based on the foregoing, and the judge's observation of the petitioner at the time of sentencing (a matter outside the record), plus the affidavit of petitioner's attorney filed by the Government in response to the petition, the same was denied.


In other words, the judge, when hearing petitioner's § 2255 motion, considered the record of the sentencing "evidential on the issue of voluntariness * * * not conclusive." This was proper, and required. Jones v. United States, 384 F.2d 916 (9th Cir.1967).


The facts of this case do not resemble those of Castro v. United States, 396 F.2d 345 (9th Cir.1968, in banc). In it there had been no compliance with Rule 11, at the time of sentencing. Here, the facts necessary for a determination that the defendant voluntarily and intelligently pleaded guilty appear in the record, as required by Heiden v. United States, 353 F.2d 53 (9th Cir. 1965). The record of the plea proceedings establishes that Diamond correctly understood the consequences of his plea. Cf. Mockford v. United States, 251 F.2d 857, 858 (5th Cir.1958). In Castro, the defendant's attorney's affidavit supported the petitioner's statement of facts. It does not in this case.


There is no absolute rule that under any and all circumstances to constitute a "hearing" a petitioner must be permitted to be present and testify on his own behalf. United States v. Tweedy, 419 F.2d 192 (9th Cir.), decided December 8, 1969; Dearinger v. Rhay, 421 F.2d 1086 (9th Cir.), corrected opinion, decided January 28, 1970.

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Appellant was sentenced to three years imprisonment on February 21, 1966. He has now completed service of his sentence to which his motion was directed. Cf. Duggins v. United States, 240 F.2d 479, 484 (6th Cir.1957); Juelich v. United States, 257 F.2d 424 (6th Cir.1958).


The order of the district court denying relief is affirmed on the record before us.