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UNITED STATES v. THOMAS

April 10, 1979

UNITED STATES of America
v.
Lonnie THOMAS, III



The opinion of the court was delivered by: HUYETT

MEMORANDUM AND ORDER

 The background information, as disclosed by the record in this case, demonstrates that on July 14, 1975, defendant Thomas pled guilty before this court to one count of violating Title 18, Section 1715 of the United States Code, knowingly causing a concealable firearm to be delivered by mail. During the guilty plea colloquy held in accordance with Fed.R.Crim.P. 11, the parties stated that a plea agreement had been entered into providing that the Government would agree to drop charges on Count II of the indictment in return for the guilty plea, and that no sentencing recommendation would be made. On August 1, 1975, a sentence of five years probation was imposed.

 Petitioner Pro se filed the instant motion, which stated several related allegations. Liberally construed, the petition alleged that assistance of counsel in this case was ineffective, in that (1) counsel advised petitioner to sign a full and complete statement to the Government; (2) counsel failed to challenge the validity of the search of petitioner's mail, for which no warrant was obtained; (3) counsel did not investigate the facts surrounding the offense; and (4) counsel negotiated a plea agreement behind petitioner's back without petitioner's knowledge or permission and then convinced petitioner to plead guilty on the day of trial when he was "afraid and confused." Petitioner further alleged that the Government withheld evidence which was favorable to him.

 After our initial review of the record, we determined that it was not possible to dismiss the motion summarily and that further information was required. Therefore, we appointed counsel for petitioner and ordered that the parties supplement the record, in accordance with Rule 7 of the Rules governing § 2255 motions, *fn1" by filing affidavits and other documents deemed to be relevant to the issues presented by the petition.

 The expanded record provided further information for our consideration. Petitioner's affidavit stated that his counsel advised him to cooperate fully with the investigating authorities before counsel had ever discussed the case with petitioner. Petitioner affirmed that he did not at that time understand why he had been arrested nor the nature of the charges lodged against him. Furthermore, petitioner affirmed that at no time did counsel discuss with him the elements of the crime charged, nor did counsel inform him prior to the time of his guilty plea of the constitutional rights that petitioner possessed with respect to the criminal charges. Finally, petitioner stated that, prior to the time he entered his guilty plea, he was not informed of the existence of any plea bargain.

 We have examined this expanded record, the transcripts of the Rule 11 colloquy, and the memoranda submitted. We conclude on the basis of this record that no hearing is necessary, and that the petition should be denied.

 In petitioner's Pro se complaint, the relief requested is that all charges against him be dropped. However, after counsel was appointed, and the petitioner's affidavit was submitted, that affidavit made it clear that the relief sought was withdrawal of a guilty plea. We will therefore treat this petition as a motion to withdraw a guilty plea. See United States v. Consiglio, 391 F. Supp. 564, 568 (D.Conn.1975). Federal Rule of Criminal Procedure 32(d) permits the withdrawal of a guilty plea after sentence is imposed in order to correct "manifest injustice." United States v. Hawthorne, 502 F.2d 1183 (3d Cir. 1974). In reviewing the record in this case, we will discuss each of petitioner's allegations individually to see if they have merit or are clearly frivolous. Cf. Moore v. United States, 571 F.2d 179 (3d Cir. 1978).

 Petitioner claimed in his § 2255 petition that the Government withheld evidence which was favorable to him. However, this allegation is not further supported by specific factual allegations, either in the petition or in petitioner's affidavit. In the absence of any factual allegations as to the nature of the evidence withheld, etc., we must conclude that this claim is without merit.

 Petitioner also alleged that the assistance of counsel was inadequate, thereby rendering his plea involuntary, for a variety of reasons. First, petitioner alleged that his lawyer did not inform him of various matters prior to the entry of his guilty plea; E. g., the elements of the crime with which he was charged, the maximum penalty for conviction of that crime, the nature of the constitutional rights which were being waived as a result of the guilty plea, and so forth. Petitioner's affidavit P 3(c) (d). However, these matters were carefully covered during the Rule 11 colloquy. Transcript at pp. 6-11. At that time, the petitioner had full knowledge of his constitutional rights and related matters, and yet asserted his continuing desire to plead guilty. In view of this fact, we cannot find that petitioner's plea was involuntary, nor that refusal to permit him to withdraw his guilty plea would constitute "manifest injustice."

 Petitioner further claimed that the plea negotiations took place behind his back, and without his permission, and that he did not know of this agreement until he appeared in court. However, even if we assume that this is true, we do not believe that this allegation is sufficient to warrant the withdrawal of a guilty plea, especially in view of the statements made by defendant during the Rule 11 colloquy. At that time, he stated that he understood the terms of the plea agreement and desired to enter the guilty plea. Transcript at p. 6. This is not a case, such as that arising in Blackledge v. Allison, 431 U.S. 63, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977) or Moorhead v. United States, 456 F.2d 992 (3d Cir. 1972), where the petitioner alleges that his guilty plea was induced by misrepresentations made by his counsel or the attorney for the Government. So long as the guilty plea was voluntary and knowledgeable At the time it was entered into, we do not believe that it should be disturbed because petitioner did not know of the agreement until he appeared in court.

 Petitioner further attacks certain legal determinations made by his counsel, presumably alleging that counsel's advice to plead guilty, in light of these legal determinations, was not "reasonably competent." See McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763. Specifically, petitioner complains about the failure of counsel to challenge the legality of the search of petitioner's package and the advice given of counsel to give a statement to the authorities. We believe that the proper standard for judging this advice, for purposes of the instant motion, is "whether that advice was within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, supra at 770-71, 90 S. Ct. at 1449. Accord, Moore v. United States, 432 F.2d 730 (3d Cir. 1970).

 Judged by this standard, the advice of counsel passes muster. With respect to the propriety of the search of petitioner's package by postal authorities, counsel knew that the package was unwrapped only because it had fallen apart, and the postal authorities had to rewrap it. Under the circumstances, we believe that it was reasonable for counsel to conclude that no illegal search took place. Similarly, the advice counsel gave to petitioner, that he should cooperate with the authorities and give a truthful statement to them, was given after counsel had been informed of the evidence against petitioner and that the postal agents would recommend leniency if petitioner cooperated. *fn2" ...


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