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June 12, 1961


The opinion of the court was delivered by: MARSH

Pursuant to § 2255, 28 U.S.C.A., the defendant, Daniel E. Langston, moved to vacate consecutive sentences of 10 and 5 years, respectively, on his pleas of guilty to two informations, each charging concealment, sale and disposition of stolen property. Title 18 U.S.C.A. § 2315. Both sentences specified that defendant may become eligible for parole at such time as the Board of Parole may determine. Title 18 U.S.C.A. § 4208.

A rule to show cause was issued. Alexander J. Jaffurs, Esq., who was appointed to represent defendant at the hearing on the rule, filed a brief and orally argued that defendant had alleged sufficient facts to justify taking evidence on the motion. The court being of the opinion that some of the allegations were conclusionary rather than factual, in conformance with the concurring opinions in United States ex rel. Darcy v. Handy, 3 Cir., 1953, 203 F.2d 407, 428 and United States v. Derosier, 3 Cir., 1956, 229 F.2d 599, 601, ordered the defendant to file an amendment or supplement to his petition in order to afford him an opportunity to state the facts and nature of the evidence if any he had, in support of the conclusionary allegations contained in the petition. The defendant filed a supplemental petition.

 In the meantime, Attorney Jaffurs, having moved out of the district, was discharged as counsel, and the court appointed Stephen A. Zappala, Esq. to represent the defendant. Subsequently, a hearing was held to permit Attorney Zappala to express his views on whether or not a hearing should be held to take evidence on defendant's petition, as supplemented and amended.

 Upon due consideration of the arguments presented by both counsel, it is the opinion of the court that the motion to vacate sentence should be denied without a hearing.

 The following grounds are advanced for vacating the sentences: (1) illegal arrest; (2) illegal search and seizure; (3) illegal detention; (4) that his pleas were induced by threats, promises, psychological pressures, intimidations and other deprivations of his constitutional rights; (5) that he did not have effective undivided assistance of counsel; (6) that all the co-defendants, all counsel for the co-defendants, the United States Attorney, and the court were in collusion against him; (7) that he was informed only of one charge against him but was sentenced on two separate charges; (8) there was also a suggestion that an involuntary confession had been obtained by duress, threats and psychological pressures.

 The first three grounds, being matters relating to his arrest, do not entitle defendant to a hearing in a § 2255 proceeding. Plummer v. United States, 1958, 104 U.S.App.D.C. 211, 260 F.2d 729.

 The averments in support of the 4th, 5th and 6th grounds are conclusionary and as such are insufficient to warrant a hearing; indeed, the defendant seems to rely on the transcript of the sentence proceedings and the court records to sustain them instead of on specific averments of fact aliunde.

 When a defendant, after being given an opportunity to do so, cannot aver a factual basis in support of mere conclusions, his petition on those grounds may be dismissed, for there is nothing on which to base a finding of prejudice, collusion or deprivation of constitutional rights. United States v. Mathison, 7 Cir., 1958, 256 F.2d 803; United States v. Pisciotta, 2 Cir., 1952, 199 F.2d 603; United States v. Rosenberg, 2 Cir., 1952, 200 F.2d 666; United States v. Spadafora, 7 Cir., 1952, 200 F.2d 140.

 Not only is there a complete absence of supporting facts but the alleged conclusions are clearly countervailed by the undisputed and incontrovertible facts as disclosed by the court records including the official transcript of the sentencing proceedings. See: Walker v. Johnston, 1941, 312 U.S. 275, 284, 61 S. Ct. 574, 85 L. Ed. 830; United States ex rel. Darcy v. Handy, 203 F.2d 407, supra.

 Defendant was arraigned with four co-defendants on August 26, 1959. At the arraignment, the defendant and John David McClellan, a co-defendant, were represented jointly by D. B. King, Esq. and Egon M. Gross, Esq., who had been appointed on June 30, 1959 by an associate judge of this court. All five defendants waived indictment and all pleaded guilty.

 The transcript of the hearing shows that defendant's right to be indicted and to a jury trial were explained and expressly waived by him in the presence of his counsel. He was aware of the maximum penalty prescribed. *fn1" Defendant stated that he had previously discussed the charges with his counsel. He categorically denied that any kind of promises or inducements whatsoever were offered to him which in any way influenced his pleas of guilty. He affirmed unequivocally that his pleas were entered voluntarily. Both of his counsel informed the court that they concurred in his guilty pleas.

 The defendant had every opportunity to tell the court of any threats, coercion or pressure used to induce his pleas. His volunteered statements refute the idea that there were any. His mere assertions in his petitions that his pleas were coerced and induced by threats, promises, intimidations, etc., when in open court he assured the sentencing judge to the contrary, does not, without factual specifications, raise substantial issues of fact within the meaning of § 2255.

 The defendant heard C. A. John, an agent of the Federal Bureau of Investigation, detail the circumstances of the offenses involved in the informations, as well as those of similar offenses recently committed by defendant in other sections of the country where prosecutions were declined in view of the pending prosecutions in this district.

 Upon inquiry by the court, the defendant admitted that the Agent's account of the crimes was true. Thereupon the defendant expressed ...

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