The opinion of the court was delivered by: BRODERICK
BRODERICK, District Judge.
Presently before the Court is Edward Murphy's petition pursuant to 28 U.S.C. § 2255, seeking relief from a sentence imposed by this Court on October 18, 1973. A hearing was held January 16, 1975. After carefully considering the evidence and the arguments presented by the petitioner and the Government, the Court has determined that it must deny the requested relief.
On September 5, 1973, the petitioner entered a plea of guilty before this Court to a one count indictment charging him with knowingly and intentionally distributing 3.49 grams of heroin in violation of 21 U.S.C. § 841. On October 18, 1973, the petitioner was sentenced by this Court pursuant to 21 U.S.C. § 841(b)(1) (A) to a five year term of imprisonment which included an additional three year mandatory parole period. At the time that sentence was imposed the petitioner was being held in state custody awaiting trial on an unrelated state indictment charging first degree murder. On July 21, 1974, nine months after this Court imposed sentence, the petitioner received a state sentence of four to ten years after he had entered a plea of guilty to murder in the second degree. The petitioner's state sentence began running on April 12, 1973, the date on which he was incarcerated on the state charge. The petitioner was then transferred to Graterford Prison to serve his state sentence. Petitioner claims that when he arrived at Graterford he first learned that he had a Federal detainer lodged against him as a result of the Federal sentence imposed by this Court, and that his Federal and state sentences were not being served concurrently. On August 8, 1974, Mr. Murphy filed the § 2255 petition which is currently before this Court.
Petitioner contends that he was coerced into pleading guilty before this Court as the result of an agreement between himself and his court-appointed counsel, David A. Garfunkel, Esq. Petitioner testified that he was advised by Mr. Garfunkel that a petition for a reconsideration of this Court's sentence would be filed subsequent to the disposition of the state charges. Petitioner argues that he would not have pleaded guilty before this Court had he not believed that Mr. Garfunkel would file a petition for reconsideration on his behalf and that since Mr. Garfunkel did not comply with the agreement arrived at between them, his plea was coerced.
The petitioner testified that at the time he was arrested on the Federal charge and David Garfunkel, Esq. was appointed by the Court to represent him, he was being held in the Philadelphia Detention Center awaiting trial for first degree murder. Petitioner stated that during the first discussion between himself and Mr. Garfunkel, he did not want to plead guilty and so informed his counsel. The petitioner then testified that as a result of subsequent meetings between himself and Mr. Garfunkel, he determined that the best course to follow was to enter a plea of guilty to the Federal charge. However, the petitioner insists that when it was finally agreed that he should enter a guilty plea it was on the condition that Mr. Garfunkel would at some later date submit a petition for the reconsideration of whatever sentence this Court imposed. Petitioner testified that he never received any promise from the Government other than that it would recommend a sentence of not more than five years imprisonment. He also testified that no one made any promises to him that this Court would subsequently reduce its sentence or change it to run concurrently with whatever state sentence might subsequently be imposed. Petitioner further testified that he did not expect to receive a sentence from this Court which would run concurrently with any state sentence he might subsequently receive. The petitioner testified that after arriving at Graterford Prison to serve the subsequently imposed state sentence of four to ten years, he first learned that he could not commence serving his Federal sentence until he had completed his state sentence. On June 18, 1974, the petitioner wrote to this Court concerning the possibility of a reconsideration of his sentence and was informed that the 120 day period, within which to so petition, had elapsed. Petitioner testified that he then contacted Mr. Garfunkel concerning his petition for a reconsideration of sentence and Mr. Garfunkel informed him that the 120 day rule precluded a petition for the reconsideration of sentence. Mr. Murphy then filed the petition which is currently before this Court.
The testimony of Mr. Garfunkel differed in several respects from that of the petitioner. Mr. Garfunkel stated that he had extensive discussions with the petitioner concerning the problems inherent in his being involved in a Federal case while being held in state custody awaiting trial. He testified that he told the petitioner that if he was sentenced by this Court and was subsequently sentenced by the state court he would then possibly be in a position to petition this Court for a reconsideration of the Federal sentence and seek to have the Court reconsider its sentence to have it run concurrently with the state sentence. However, Mr. Garfunkel testified that at the time he made this statement to the petitioner, he was led to believe by Mr. Murphy that the state court case, in which he was not represented by Mr. Garfunkel, would terminate in an acquittal or, in any event, would be resolved within a short period of time. Mr. Garfunkel could not recall whether he specifically mentioned the 120 day period provided in Rule 35 of the Federal Rules of Criminal Procedure, but he did testify that his agreement to file a petition for reconsideration of this Court's sentence was specifically conditioned upon the disposition of the murder charge in the state case. In essence, Mr. Garfunkel testified that the understanding he had with the petitioner was that the petitioner should contact him immediately after he was sentenced in the state court and it would then be determined whether a petition should be filed with this Court for a reconsideration of sentence.
Even if we were to find that Mr. Garfunkel agreed to petition for a reconsideration of this Court's sentence as a condition to the petitioner agreeing to enter a plea of guilty, we cannot see how this would make the entry of that plea involuntary or coerced. At the change of plea proceeding before this Court, the petitioner was made aware of the nature of the charges against him (N.T. 8, 12),
the maximum sentence that could be imposed (N.T. 10),
that a mandatory special parole term would follow any term of imprisonment (N.T. 10),
the factual basis on which he was pleading guilty (N.T. 8),
any promises made to the petitioner (N.T. 7),
that the practice of plea bargaining was acceptable (N.T. 7),
and the constitutional rights he was relinquishing by entering a plea of guilty (N.T. 5).
The Court also made a finding that the entry of the guilty plea was voluntary and an intelligent and understanding choice from among the alternatives then facing the petitioner (N.T. 13).
With respect to the promises made to the petitioner, the following exchange occurred:
THE COURT: Now has anybody threatened you or coerced you to come in here and change your plea today?
THE DEFENDANT: No, they haven't.
THE COURT: Has anybody made any promises or is there ...