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HOLLAND v. UNITED STATES

February 17, 1977

EDWARD J. HOLLAND, Petitioner,
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: BECKER

 EDWARD R. BECKER, Judge.

 I. Preliminary Statement

 In this petition under 28 U.S.C. § 2255 to vacate both his plea of guilty to bank robbery and the ensuing sentence, petitioner Edward J. Holland ("Holland") makes three claims. First, he asserts that our inquiry at the time of his plea failed to establish a factual basis for the entry of judgment. Second, he claims that when he pleaded guilty he did not correctly understand certain policies of the United States Parole Commission which he characterizes as consequences of the plea. Third, he alleges that these parole policies will thwart our intentions as the sentencing judge.

 During the evening of May 10, 1973, several men came to the Philadelphia home of the Herbert Matlack family and held the family hostage at gunpoint overnight. The next morning one of the men stayed with Mrs. Matlack and the couple's two daughters while the other intruders took Mr. Matlack to the branch of Cayuga Federal Savings and Loan of which he was manager. There, at gunpoint, they compelled bank employees to part with some $23,000. The government contended that Holland was the man who stayed behind to stand guard over Mrs. Matlack and the children.

 A grand jury indicted Holland along with William Murphy, Douglas Ehly and Clarence Ford on charges of bank robbery and conspiracy. Because the Matlack family had been held hostage and Mr. Matlack kidnapped, the bank robbery charges included a count under 18 U.S.C. § 2113(e) (hereinafter the "(e) count"), which carries a mandatory minimum term of ten years and a possible maximum of life imprisonment. Because of severances and mistrials, the events of May 10 and 11, 1973, at the Matlack home and the Cayuga Federal were recounted to four separate juries. Holland was brought to trial with Douglas Ehly, but the jury deadlocked as to Holland and we declared a mistrial. *fn1" The factual background and the procedural history of the case are set forth in our opinion denying co-defendant Ehly's post trial motions following his second trial, 378 F. Supp. 144, 146-48 (E.D.Pa.), aff'd, 506 F.2d 1050 (3d Cir. 1974), cert. denied, 420 U.S. 994, 95 S. Ct. 1433, 43 L. Ed. 2d 676 (1975).

 Holland was brought to trial again, alone this time. In addition to the evidence adduced at Holland's previous trial, the government produced co-defendant Clarence Ford as a witness against Holland. After the prosecution rested and the defense rested without producing evidence, Holland advised the Court of his desire to enter a plea of guilty to five of the six counts. The government (by way of a plea bargain) had agreed to dismiss the (e) count in return. After a lengthy hearing, which included an extensive colloquy with Holland, and during which a plea was offered, we accepted the plea. Following receipt of a presentence report we sentenced Holland to a study by the Bureau of Prisons pursuant to 18 U.S.C. § 4208(b) (since recodified as 18 U.S.C. § 4205(c)). After receiving the report of the study we imposed final sentence: fifteen years imprisonment. Holland becomes eligible for parole after one-third of his sentence has been served. 18 U.S.C. § 4202 (1970) (now 18 U.S.C. § 4205(a)). This petition attacks that plea proceeding and sentence. For the reasons which follow, we find each of Holland's claims to be without merit and accordingly deny the petition. *fn2"

 II. Discussion.

 A. The Factual Basis for the Plea

 At the time Holland changed his plea (February 6, 1974) Rule 11 of the Federal Rules of Criminal Procedure provided, in part: "The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea." *fn3" The usual and favored procedure for compliance with this requirement is a request, made on the record at the time of offering of the plea, that the defendant "describe the conduct that gave rise to the charge." Santobello v. New York, 404 U.S. 257, 261, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971). *fn4" We made such an inquiry, and Holland did not deny his participation in the conspiracy to rob the bank or even in the substantive scheme, but neither did he admit full culpability. That aspect of the colloquy, in pertinent part, went as follows:

 
THE COURT: Very well. Now we have heard spread upon the record in some detail on a couple of occasions by Mr. Matlack what happened. And you have been here through all the testimony that I have except during the suppression hearing when you were out of the room.
 
Mr. Holland, weren't you involved in the plan to rob the Cayuga Bank?
 
Or maybe the question is inartfully drawn.
 
Will you tell me what your role was with respect to the subject matter of the Indictment, what you in fact did.
 
THE DEFENDANT: Rather than lie to the Court I would rather not say anything at all, sir. I had a very, very small part.
 
THE COURT: Well, did you have a part?
 
THE DEFENDANT: The Court would consider it a part, I assume. So I'd better consider it a part.

 (N.T. Change of Plea 20-21).

 
THE COURT: . . . But the question is whether or not there is sufficient for me to make a determination that there is a factual basis for your plea. I suppose I could on the basis of evidence that I heard. But I think it would be preferable if you detail what you say your role is and then I can make a judgment whether that is sufficient.
 
THE DEFENDANT: I repeat myself, Your Honor. I have too much respect for the Court to state anything that wouldn't be true, sir.
 
THE COURT: I don't want you to state anything. In view of the seriousness of this matter, I think you ought to state what you consider to be true.
 
THE DEFENDANT: It is so minimal that I feel like I'm an ass for even being here, sir.
 
THE COURT: I think you ought to say at least what it is.
 
THE DEFENDANT: I never knew the location. I never knew that bank existed. I don't live in that neighborhood. It speaks for itself, Your Honor.
 
THE COURT: Did you know you were involved in a plan to rob a bank?
 
THE DEFENDANT: When you say rob, I should say yes to that, ...

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