LUONGO, District Judge.
On January 7 and 8, 1971, George Tillman was tried before a jury on a four-count indictment (Criminal No. 69-75) charging him with selling, and aiding and abetting in sales of quantities of heroin. At the conclusion of the government's case, the court granted Tillman's motion for judgment of acquittal as to the third and fourth counts. The jury returned a verdict of guilty as to the first and second counts. On July 30, 1971, Tillman was sentenced to a minimum mandatory term of five years
on the second count which charged a violation of 26 U.S.C. § 4705 (a), and to a concurrent term of two years on the first count which charged a violation of 26 U.S.C. § 4704 (a). An appeal was filed in the criminal proceedings and the conviction and sentence were affirmed. 467 F.2d 645 (3 Cir. 1972).
While the appeal was pending in the criminal case, the instant petition for writ of habeas corpus under 28 U.S.C. § 2255 was filed. In this petition Tillman asserts that his rights were violated in the criminal proceedings in that:
1. His not guilty plea was not a knowing and intelligent one because, at the time of trial, his attorney failed to advise him of a plea bargain allegedly offered by the prosecuting attorney;
2. Alternatively, if a plea bargain was not in fact offered by the prosecution, he was denied the effective assistance of counsel by his attorney's failure to explore the possibility of such a plea bargain, by his attorney's failure to advise him that one of the counts carried a minimum mandatory five year sentence, and by his attorney's lack of preparation for, and incompetent handling of, trial.
Needless to say, the attorney who filed the instant petition on Tillman's behalf did not represent him at the criminal trial. In fact, he is fourth in a succession of counsel. One privately retained attorney represented Tillman at arraignment, another privately retained attorney represented him at trial, the Public Defender, court appointed, represented him on the motion for new trial and at sentence, and present counsel, privately retained, represented him on appeal in the criminal case and in these proceedings. An evidentiary hearing was held on this petition. At the conclusion of the hearing, the court announced certain tentative findings, but afforded counsel an opportunity to submit briefs before rendering a final decision. After due consideration of the briefs, and upon review of the record of the criminal proceedings and the evidence adduced at the hearing on this petition, I conclude that Tillman's claims are without merit and the petition will be denied.
1. Lack of a knowing and intelligent Not Guilty plea.
The safeguards which have been built up in the law with respect to entry of pleas in criminal cases have been designed, primarily, to insure that a defendant does not give up his constitutional right to trial by jury, unless by voluntary and intelligent act on his part. Thus, if a defendant wishes to be tried by the court alone, he must first satisfy the court that he understands the consequences of the waiver of his right to trial by jury. Adams, Warden, et al v. U. S. ex rel. McCann, 317 U.S. 269, 63 S. Ct. 236, 87 L. Ed. 268 (1942); Rule 23 (a), F.R.Crim.P. If he wishes to enter a guilty plea, the record must establish that the plea was knowing, intelligent and voluntary, without threats or promises and with knowledge of the range of sentences. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); Machibroda v. United States, 368 U.S. 487, 493, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962); Chapin v. United States, 341 F.2d 900 (10th Cir. 1965). In the federal system, a guilty plea may not be accepted unless the court ascertains, by personal inquiry, that there is a factual basis for the plea. Rule 11, F.R.Crim.P. See McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969). There are no comparable safeguards with respect to not guilty pleas. Apart from seeing to it that a defendant is competent to stand trial (see 18 U.S.C. § 4244), and that he is represented by counsel, the law apparently assumes that the government's burden to prove defendant's guilt beyond a reasonable doubt at trial is safeguard enough where a defendant contests the charges against him. The law even sanctions the entry of not guilty pleas for those who stand mute or refuse to plead to the charges. Rule 11, F.R.Crim.P.
Tillman's attempt to superimpose principles governing guilty pleas on his not guilty plea is ingenious, but unconvincing. He has cited no case authority to support his position, and independent research fails to reveal any.
Actually, Tillman's argument is not directed to the not guilty plea at all. The plea was entered by Tillman
on May 27, 1969, and there is no suggestion that there was any mention of a plea bargain at that time. His complaint really is that if a plea bargain was offered at trial, he was entitled to be informed of that fact so that he could make an intelligent choice whether to proceed to trial or to accept the terms of the plea bargain. The point is an interesting one, but since I find that no plea bargain was, in fact, offered to Tillman's counsel, it will not be necessary to discuss it.
What Tillman relies upon in support of his contention that a plea bargain was offered are statements made at the time of his sentencing, some seven months after the trial. There was discussion between the court and Tillman concerning the mandatory aspect of the sentence on count 2 and at that point, the Assistant United States Attorney, who had been the prosecuting attorney at the trial, commented:
"MR. deLUCA: Your Honor, before this case went to trial I did discuss the case with Mr. King
extensively, both when we originally thought it would try, and then, because of Mr. Tillman's illness, at the later time when the case actually came to trial. I informed Mr. King at the time that Count 1 of the indictment carried a non-mandatory count and Count 2 of the indictment contained a mandatory prison term. I informed Mr. King at the time that the Government would be willing to drop Count 2 of the indictment in the event that Mr. Tillman entered a plea of guilty to Count 1. I told that to Mr. King at least on two occasions. Mr. King informed me that Mr. Tillman did not want to enter a plea of guilty.
"THE COURT: I am certain that that is the fact, because there was some hint early in the proceedings of a possibility of a plea, and I understood Mr. Tillman was insistent upon --"