The opinion of the court was delivered by: HERMAN
The petitioner, John A. Watts, pled guilty on June 4, 1956 in this District to three counts charging violations of 18 U.S.C. §§ 2113(a) and 2113(d), or armed bank robbery, and was sentenced to the custody of the Attorney General for a period of eighteen (18) years. Petitioner was granted a parole on March 28, 1966, and while on parole was subsequently charged and convicted of the crime of armed robbery in the State of Maryland. A parole violator's warrant was issued by the United States Board of Parole on January 12, 1967 and filed as a detainer against petitioner with the Maryland State penal authorities, to be effective upon expiration of the twenty (20) year sentence he is now serving.
This matter is before the court on a motion by Watts, in forma pauperis, to "Vacate Sentence and Set Judgment Aside and Withdraw Plea of Guilty," and the court construes the motion as one made pursuant to 28 U.S.C. § 2255.
Two prior motions were filed subsequent to the filing of the parole violator's warrant, seeking relief from the aforementioned federal conviction in the form of a "Writ of Habeas Corpus," Civil No. 10027, and a motion to acquire a transcript of trial, Criminal No. 12799. The two motions were denied in 1967 on the basis that petitioner was not currently in custody under the sentence from which he sought relief.
Petitioner has filed this petition under the authority enunciated in Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968), and the court granted leave to prosecute the matter in forma pauperis without prepayment of fees and costs. The United States Attorney was directed to answer the petition herein, and the court, upon consideration of the petition and answer, ordered that an evidentiary hearing be held at which hearing the petitioner was represented by experienced, court-appointed counsel.
Petitioner alleges that his plea of guilty was involuntarily induced by (1) coercive police tactics; (2) a coerced written confession obtained without adequate warnings as to petitioner's constitutional rights; (3) being held incommunicado for a period of six (6) hours without being brought before a United States Commissioner, during which time the confession was involuntarily induced without petitioner having been apprised of his rights by the State Police or by the United States Commissioner; (4) being forced to recover for the arresting officers, without adequate warnings as to his constitutional rights, the clothing worn on the day of the robbery; and (5) being held incommunicado for an additional five (5) days.
The petitioner additionally claims that he was denied the effective assistance of counsel by his former employer and retained counsel because (1) his retained counsel, hired by his former employer, was limited in fee to the extent of a guilty plea; (2) his retained counsel had a conflict of interest in that he represented petitioner's former employer on an annual retainer basis; (3) his retained counsel was not competent to handle a criminal trial; and (4) petitioner's former employer's religious beliefs compelled, and limited petitioner's retained counsel and the petitioner to a plea of guilty.
A hearing was held on March 16, 1970, at which time it was revealed to the court that the notes of testimony or the transcript of the earlier guilty plea proceedings was unavailable; arising from an inexplicable loss or misplacement by a former Court Reporter. Additionally, petitioner's privately retained counsel no longer maintained his file on the case.
After hearing the testimony and considering the passage of time from the date of the original guilty plea, the court granted the request of the United States Attorney to continue the hearing for purposes of possible additional testimony, and granted to the petitioner as a matter of course a similar right.
Having received no additional requests for further testimony and being satisfied, as acknowledged by the petitioner, that he has had full opportunity to present his testimony in support of his allegations, the court considers the record to be closed for the purpose of a determination.
Prior to a discussion of the facts and the conclusions of law in the within matter, the court is confronted with the initial determination as to the proper allocation of the burden of proof.
The major thrust of petitioner's claim is that, arising from the coerced confession, his lack of awareness of his right to court-appointed counsel, and the ineffective and restricted assistance of his retained counsel, a plea of guilty was involuntarily induced and that the trial judge failed to determine that the plea was voluntarily entered with an understanding of the nature of the charge.
In McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969) the Supreme Court held pursuant to its supervisory powers over the lower federal courts, that a defendant is entitled to plead anew if the district court fails to fully adhere to the procedure provided for in Rule 11 of the Federal Rules of Criminal Procedure, as amended in 1966.
The McCarthy decision was limited to a prospective application in Halliday v. United States, 394 U.S. 831, 89 S. Ct. 1498, 23 L. Ed. 2d 16 (1969) in which the Supreme Court declined to retroactively require a plea de novo wherein strict compliance with Rule 11 is assailed. Nevertheless, the Court, in Halliday, acknowledged that "a defendant whose plea has been accepted without full compliance with Rule 11 may still resort to appropriate post-conviction remedies to attack his plea's voluntariness." (at 833, 89 S. Ct. at 1499)
As affirmed in the Halliday decision, supra, the burden of proof on a motion to vacate sentence pursuant to § 2255 on grounds that the guilty plea was not knowingly or understandingly made is initially on the petitioner. See Halliday v. United States, 262 F. Supp. 325 (D. Mass. 1967), vacated on other grounds, 380 F.2d 270 (1st Cir. 1967), on remand, 274 F. Supp. 737 (D. Mass. 1967), aff'd, 394 F.2d 149 (1st Cir. 1968). But, where it is shown or found that the trial court failed to comply with the requirements enunciated in Rule 11, the burden of proof then shifts to the government on the question of whether or not a knowing, voluntary, and understanding plea had been entered. Durant v. United States, 410 F.2d 689 (1st Cir. 1969); United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3d Cir. 1968) (dictum); Lane v. United States, 373 F.2d 570 (5th Cir. 1967); Rimanich v. United States, 357 F.2d 537 (5th Cir. 1966); Munich v. United ...