11. Following the signing of the confession petitioner was taken before a United States Commissioner where a complaint was filed and he was held over for action of the grand jury. He was then placed in the Lycoming County Jail.
12. On April 13, 1956, petitioner was removed from the Lycoming County Jail by a United States Marshal and others and directed to recover the clothing described in his signed confession.
13. John R. Coder visited the petitioner in the Lycoming County Jail on April 14, 1956, at which time petitioner again admitted his complicity in the aforesaid holdup.
14. Coder contacted and retained Attorney William H. Askey as counsel for the petitioner and imposed no financial restrictions nor other limitations upon him.
15. Petitioner's retained counsel was apprised by him of the incidents surrounding the holdup, the arrest, and the confession.
16. Petitioner's retained counsel made arrangements for a psychiatric evaluation of petitioner; discussed the counts charged in the indictment and the possible penalties, and also the possible defenses with petitioner.
17. Upon receipt of the psychiatric report which revealed petitioner as mentally competent to stand trial, and upon a final analysis, petitioner's retained counsel recommended a plea of guilty.
18. At the arraignment proceeding the Honorable Frederick V. Follmer read portions of the indictment to the petitioner, and upon petitioner's plea and in consideration of the psychiatric report and the affirmations of counsel, a plea of guilty was accepted as having been knowingly and voluntarily made.
19. Upon entering the plea of guilty petitioner had actual knowledge of the contents of the information and indictment and was aware of the consequences of the plea.
20. Where petitioner was asked if he had anything to say and was given the opportunity to introduce character witnesses, and where petitioner's counsel presented facts in mitigation of punishment, the petitioner was not denied the opportunity to speak prior to sentencing.
21. Upon conviction, the imposed sentence of eighteen (18) years was within the jurisdiction of the court.
DISCUSSION OF THE FACTS
At issue herein is the question whether or not the procedural requisites as set forth in Rule 11 of the Federal Rules of Criminal Procedure were complied with in a guilty plea which was entered June 4, 1956.
As set forth above, Rule 11 had been amended in 1966 and one of the purposes thereof, as noted in McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969), was to expressly clarify the district judges' requirements in making a determination as to whether or not a guilty plea is truly voluntary and to provide an adequate record. However, the court declined to give retroactive application to the judicially mandated procedure embodied in the amended Rule 11. Halliday v. United States, 394 U.S. 831, 89 S. Ct. 1498, 23 L. Ed. 2d 16 (1969).
The requirements of Rule 11 in 1956 did not impose upon the court any formal ritual in the fulfillment of its duty of ascertaining the voluntariness of a plea, nor did it require the court to instruct the defendant represented by counsel of the potential legal disadvantages and collateral consequences of his conviction on the charges contained in the indictment before accepting his plea. United States v. Washington, 341 F.2d 277 (3d Cir. 1965). And where a defendant at arraignment expressed his wishes to enter a plea of guilty the court could in part rely upon the representations of defendant's counsel that the plea is voluntary. United States v. Von Der Heide, 169 F. Supp. 560 (D.D.C. 1959). The totality of all of the circumstances must be considered in determining the issue of whether or not a guilty plea was entered knowingly and voluntarily, United States v. Miller, 243 F. Supp. 61 (E.D. Pa. 1965), aff'd, 356 F.2d 515 (3rd Cir. 1966), cert. denied, 384 U.S. 981, 86 S. Ct. 1882, 16 L. Ed. 2d 691 (1966), and the court concludes from the permissible inferences drawn from the record and the hearing on the motion herein that the defendant was prepared to enter a guilty plea prior to the time of arraignment; that upon arraignment portions of the indictment were read to the defendant who understood the nature of the charges and the consequences of the plea.
The court having determined the adequacy of the judicial findings of voluntariness in light of the procedural requirements in 1956, it is incumbent upon the court to then examine the question of the relationship between the alleged coerced confession and the guilty plea which is under collateral attack.
Petitioner claims in his motion that as a result of a coerced confession and arising from the lack of effective assistance of counsel his plea of guilty was coerced. The mere allegation of a coerced confession, or if in fact his confession was coerced and it motivated his plea, is not sufficient to justify relief on a motion to overturn a conviction. McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). Therefore the inquiry pursuant to the McMANN rationale should be directed to the question of whether or not the defendant was incompetently advised.
Petitioner's counsel was not subject to a limited fee, nor did he suffer a conflict of interest arising from an alleged retainer status with petitioner's former employer or arising from the alleged religious compulsion of said employer. Turner v. Maryland, 303 F.2d 507 (4th Cir. 1967). No proof or factual allegations have been offered that counsel's performance was so incompetent or negligent as to constitute a mockery of justice, and in fact, as introduced by the government, petitioner was believed to be fully satisfied with his retained counsel until the sentencing. No allegation or testimony was introduced that an agreement existed between petitioner's counsel and the prosecuting United States Attorney or the court, and counsel's suggestion that the court might be more lenient upon a plea of guilty is not an adequate basis for collateral relief. United States v. Baysden, 326 F.2d 629 (4th Cir. 1964). Furthermore, it does not appear from the record that the sentence was based on substantially erroneous data, as vaguely suggested by petitioner, and since the imposition of the 18-year sentence was well within the warranted maximum petitioner was not deprived of any constitutional rights. United States v. Perchalla, 407 F.2d 821 (4th Cir. 1969); Wilkins v. United States, 181 F.2d 495 (4th Cir. 1950).
It is noteworthy that substantial differences exist between the allegations of fact in petitioner's 1967 motion for collateral relief, the petition now before the court, and petitioner's testimony. However, in light of the respective interests of the parties whose testimony appears on the record, petitioner's previous criminal record and his demeanor on the witness stand, the court finds that with respect to other allegations not herein referred to petitioner's testimony lacks credibility and the allegations merit no further discussion.
CONCLUSIONS OF LAW
1. This court has jurisdiction of the subject matter of this proceeding pursuant to 28 U.S.C. § 2255.
2. The petitioner was not denied the competent and effective assistance of counsel.
3. A plea of guilty was properly accepted by this court on the 4th of June 1956, pursuant to Rule 11 of the Federal Rules of Criminal Procedure, subsequent to a determination that the plea was entered voluntarily with understanding of the nature of the charges and the consequences of the plea.
4. The judgment and sentence imposed by the court after the plea and after affording the defendant an opportunity to make a statement on his own behalf and by others on his behalf in mitigation of punishment was within the jurisdiction of the court and authorized by law, and is not subject to collateral attack.
5. There has not been such a denial or infringement of the petitioner's constitutional rights as to render the judgment vulnerable to a collateral attack.
For the reasons given an order will be entered denying the petitioner's prayer for relief.