The opinion of the court was delivered by: GOURLEY
This is a Motion to Vacate, Set Aside, or Correct Sentence filed pursuant to Section 2255 of Title 28, U.S.C. by a federal prisoner confined in the United States Penitentiary at Atlanta, Georgia. The federal prisoner moves the Court to vacate the judgment of sentence imposed on November 22, 1968 in Criminal Action No. 13991. The allegations contained in the Motion are such that it is deemed appropriate to recount the full history of movant's criminal proceedings in this Court before reaching the issues raised herein.
On August 16, 1953, movant was indicted in this Court at Criminal Action No. 13990 for the offense of transporting a stolen motor vehicle in interstate commerce, in violation of the Dyer Act, Section 2312 of Title 18 of the United States Code. Additionally, he was indicted at Criminal Action No. 13991 for the offense of transporting in interstate commerce two persons who had theretofore been kidnapped for the purpose of rape and robbery, in violation of the Federal Kidnapping Act, Section 1201 of Title 18 of the United States Code.
On October 26, 1953, following pleas of guilty to both offenses, judgment of sentence of twenty years imprisonment was imposed for the kidnapping offense and five years for the offense of transporting a stolen motor vehicle. Said sentences were to be served consecutively, with the sentence for the kidnapping offense to commence first. On August 22, 1963, after having served about ten years of the aggregate twenty-five year sentence imposed, the movant was paroled. However, he was recommitted as a parole violator on August 18, 1966.
On January 25, 1967, following his recommitment to a federal penitentiary, movant submitted a Motion to Vacate, Correct, or Set Aside Sentence, asserting that his original plea of guilty to the kidnapping offense was induced by his understanding that he could only avoid a possible death sentence under the Federal Kidnapping Act by entering a plea of guilty, which would remove his criminal action from the jury.
Said Motion was denied by this member of the Court on February 3, 1967. An appeal was taken to the United States Court of Appeals for the Third Judicial Circuit. During the interim pending adjudication of the appeal, the Supreme Court of the United States rendered its decision in the case of the United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968). On June 18, 1968, the Court of Appeals for the Third Judicial Circuit remanded the proceeding to this Court for a determination consistent with the principles enunciated in the case of United States v. Jackson, supra.
Movant was brought within the jurisdiction of this Court upon writ of habeas corpus ad prosequendum, and Louis C. Glasso, Esquire, was appointed as his counsel by this member of the Court on October 4, 1968. Movant was called before this member of the Court on November 22, 1968, at which time the original judgment of sentence imposed at Criminal Action No. 13991 was vacated.
At the same time, with his counsel present, the prisoner entered a new plea of guilty to the kidnapping offense charged in the indictment at Criminal Action No. 13991, and the Court imposed a new sentence of twenty years imprisonment upon said plea, granting the prisoner credit for all time previously served on the original judgment of sentence, to the extent the Court was authorized by law to do so.
It is the validity of this second plea of guilty and judgment of sentence imposed thereon which is challenged by the present Motion. The present Motion is not the first communication which the movant has had with the Court concerning his second plea of guilty and the judgment of sentence imposed thereon. By letter dated January 13, 1969, the prisoner requested a reduction of sentence which was denied by this member of the Court on February 14, 1969.
Also, by letter of July 1969, the prisoner requested a correction of sentence, asserting that he was entitled to credit on his newly imposed sentence for the time spent by him on parole prior to his recommitment for parole violation. This request for relief was denied by this member of the Court by Order dated August 12, 1969.
The present Motion challenges the newly imposed judgment of sentence at Criminal Action No. 13991 on new grounds, relating essentially to the validity of movant's second guilty plea. Although this is a second attack upon the second plea of guilty by motion under Section 2255 of Title 28 of the United States Code, the matter before us requires new consideration because of the new grounds raised by the movant.
Concerning the validity of his second guilty plea at Criminal Action 13991, and the judgment of sentence imposed thereon, the prisoner makes the following contentions:
1. This member of the Court should have disqualified himself from conducting a hearing upon the appointment of counsel for movant and from receiving his guilty plea for the reason that said member of the Court was emotionally involved in the case.
2. The plea of guilty was induced by the threat of this member of the Court that movant would receive a life sentence if he opted for a trial by jury upon the vacation of the original judgment of sentence.
3. The plea of guilty was induced by the promise that movant would only receive a total sentence of five years on Criminal Action Nos. 13991 and 13990, if he so plead.
4. This member of the Court erred in stating that the maximum sentence which could be imposed was life imprisonment when only the twenty five years originally imposed could be the maximum.
5. At the time of his guilty plea, the indictment was not read and movant plead guilty to charges so vague ...