430 F2d 1292 Gilinsky v. United States

430 F.2d 1292

Irving GILINSKY, also Known as Samuel Benjamin Feldman, Appellant,
UNITED STATES of America, Appellee.

No. 24046.

United States Court of Appeals, Ninth Circuit.

July 27, 1970.

David E. Bordon (argued), San Francisco, Cal., for appellant.

Irving Gilinsky, in pro per.

Wm. Patterson Cashill (argued), Asst. U.S. Atty., Bert M. Schouwiller, U.S. Atty., Las Vegas, Nev., for appellee.

Before MADDEN,* Senior Judge, Court of Claims, and ELY and HUFSTEDLER, Circuit Judges.


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Gilinsky was indicted in United States District Courts of three states, Washington, Illinois, and Colorado, for having issued certain bogus checks for transportation in interstate commerce. 18 U.S.C. 2, 2314. The three indictments contained, altogether, seven counts, each pertaining to the issuance of a particular check. By passing all of the fraudulent instruments, Gilinsky was alleged to have received a little over $1,000 in money. He was also indicted in Colorado for failing to appear after having been released on bail. 18 U.S.C. 3146.


Apprehended in Las Vegas, Nevada, Gilinsky executed, under Rule 20, Fed.R.Crim.P., his Consent that the four indictments might be transferred to the District of Nevada. After their transfer to that District, he pleaded guilty to all counts of the four indictments. Following those pleas he was, on February 19, 1963, sentenced to serve a period of thirty years of confinement, three consecutive ten-year terms under three counts of the Washington indictment and ten-year concurrent terms under the remaining five charges.


Later in 1963, Gilinsky filed a motion under Rule 35, Fed.R.Crim.P., alleging that the four counts of the Washington indictment charged but one offense and that, hence, the consecutive sentences were illegal. The District Court denied that motion. United States v. Feldman, 226 F.Supp. 750 (D.Nev.1964). Gilinsky appealed, and this court remanded the cause for further proceedings. Gilinsky v. United States, 335 F.2d 914 (9th Cir. 1964). Following our remand, the District Court conducted a hearing and again denied the motion. Gilinsky took another appeal, which resulted in our court's determination that the sentence imposed for the offense alleged in count two of the Washington indictment should be vacated. Gilinsky v. United States, 368 F.2d 487 (9th Cir. 1966).


Gilinsky then filed a motion under 28 U.S.C. 2255. The District Court denied the motion without having conducted an evidentiary hearing, and this appeal followed.


We have concluded that we are required to affirm. The allegations made by Gilinsky were simply not sufficient. It appears from Gilinsky's hand-written petition that the same was prepared by him without any professional assistance whatsoever, and it is also apparent, we think, that Gilinsky is technically unskilled in the law. We have taken this into account. The District Court might have sought counsel to assist Gilinsky in that court, as we have done in this court. It might, also, rather than dismissing the Petition, have permitted Gilinsky, with the assistance of counsel, to amend the Petition, thus possibly avoiding successive actions. Compare Williams v. Field, 394 F.2d 329 (9th Cir. 1968). The District Court made its disposition, however, upon its conclusion, with which we agree, that the allegations were so vague, conclusory, and nonspecific that it should dismiss the Petition forthwith.


While Gilinsky did not so specifically allege in his Petition, one of his briefs in our court suggests that Government officers led him to believe that if he consented to the transfer of the four indictments to Nevada and if he surrendered certain clothing, thought to be stolen, which was found in his possession in Nevada, he would, pursuant to pleas of guilty, be sentenced to no more than five years of imprisonment. Gilinsky was fifty-seven years of age at the time he was sentenced for the offenses, and there is a certain force in his argument that he would have hardly cooperated in order to hasten the imposition of sentence unless he had been promised, by someone, sentences less harsh than those which, in sum and effect, may reasonably equate life imprisonment.1


Gilinsky's argument that the sentences, in combination, constitute cruel and unusual punishment prohibited by the Constitution, is, of course, without merit. One of the ten-year consecutive sentences was, as we have said, vacated by this court, and the other two were within the allowable range fixed by the Congress. The sentences were harsh, but we have no power to modify them. The record indicates that the sentencing judge has himself suggested that Gilinsky should be paroled.2 The Government's attorneys advise us that Gilinsky's application for parole will soon be considered, but the decision as to whether Gilinsky can now, after more than seven years as a prisoner, be entrusted with freedom rests with authorities other than the courts.

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Honorable J. Warren Madden, Senior Judge, United States Court of Claims, sitting by designation


Before accepting Gilinsky's pleas, the District Court very competently and fully examined Gilinsky, who was represented by counsel at the time, and Gilinsky affirmed that he entered his pleas voluntarily without having been given promises in exchange therefor. Cf. Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Under Parker and McMann, Gilinsky may have waived any objections to some irregularities occurring prior to his pleas of guilty, but would not be deemed to have waived any objection of inducement in the pleas themselves


On February 7, 1967, an attorney then undertaking to assist Gilinsky, wrote to Gilinsky, stating that he had appeared before the sentencing judge on the day before, February 6, 1967, and that the sentencing judge had 'stated in his order that with good time, you should be eligible for parole at this time and should you not be paroled at this time that I was to come back into court any time within one hundred twenty days of yesterday's date and move the court for proper relief to the end that you would be released from custody.'

Thereafter, on April 10, 1967, the attorney wrote Gilinsky that it was the sentencing judge's 'intention that you be immediately eligible for parole and it is hoped that you be paroled immediately.'