an affidavit. He stated that he had been called by defendant after he was arrested, and that counsel had asked to speak with postal employees. Counsel was told at that time of the evidence which the Government had in its possession, including the fact that petitioner was identified as the person who received the package and paid the postage due. The Government agents also told counsel that the package had been discovered in the rewrap section of the Pittsburgh Post Office, where it was sent because the package was falling apart. In the course of rewrapping the package, the gun was found. The Government agents also informed counsel that they would recommend leniency if petitioner cooperated. On the basis of that information, counsel told petitioner to cooperate with the authorities. Counsel then entered into plea negotiations with the Government and was able to obtain a favorable plea agreement.
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.
We conclude that this advice was within the range of competence to be expected from criminal attorneys and was, under the circumstances, prudent advice.
Finally, petitioner contends that counsel failed to adequately investigate the facts of his case. However, petitioner is able to allege no facts or defenses which counsel would have uncovered had he conducted a thorough investigation. Thus, this case is not one where a criminal defendant is forced to plead guilty because his counsel is inadequately prepared for trial. See, e.g., United States ex rel. Johnson v. Russell, 444 F.2d 1177, n. 11 (3d Cir. 1971).
For all of the above reasons, therefore, we deny the instant petition.