he "knew from his own knowledge that no persons lived in the burned dwelling at issue in this criminal cause of action . . .[, that he] engaged in the crime to burn the building to assure that no individuals would be subjected to live in such deplorable conditions." Id. "I state that I did not intend to violate anyone's civil rights." Id.
In other words, Callahan admits that he participated in a conspiracy to burn the house. He further argues that he did not intend to violate anyone's civil rights, but rather that he was coerced to confess and plead guilty involuntarily because of intimidation by police officers.
At no time prior to the instant petition did petitioner raise the possibility that his plea or confession might have been anything other than voluntary. Indeed, during the colloquy which preceded the change of petitioner's plea, petitioner specifically denied that anyone threatened him or forced him in any way to change his plea to guilty. Transcript of March 14, 1986 at 16. His current claim of involuntariness is also contradicted by clear evidence in the record. Petitioner's arrest was occasioned by his voluntary surrender to the Federal Bureau of Investigation after he himself had contacted authorities, claiming to have knowledge of the offense. At the time of his surrender, he confessed to his own involvement and named his codefendants as other participants in the crimes. All indications of involuntary confession and plea are absent from the record in this case.
Petitioner's assertions in support of this claim are simply incredible. His voluntary surrender, confession, extensive testimony at trial and implication of the co-conspirators speak with much more force than his verbal allegations in support of this element of his petition.
Even if the court were to accept petitioner's conclusory claims that his initial confession had been coerced by investigators, which the court does not, his guilty plea still stands. McMann v. Richardson, 397 U.S. 759, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970). That the confession might not have been admissible is not grounds for overturning a voluntary guilty plea entered subsequently. Busby v. Holman, 356 F.2d 75, 77 (5th Cir. 1966) (Maris, J., sitting by designations); United States v. Morin, 163 F. Supp. 941 (W.D.Pa. 1958), aff'd, 265 F.2d 241 (3d Cir. 1959). The plea itself was not coerced, and defendant entered his plea of guilty after being fully informed of his rights in accordance with Fed.R.Crim.P. 11. Nor was the allegedly coerced confession at any time used against the petitioner. Furthermore, petitioner's own testimony at the trial of codefendant Stewart is completely consistent with the statements petitioner now seeks to recant. See United States v. Stewart, 806 F.2d 64, 66 (3d Cir. 1986). Because even an allegedly coerced confession under these circumstances would not undermine the validity of a subsequent guilty plea, the first ground for the petition is rejected.
B. Ineffective Assistance of Counsel
Petitioner's second contention is that his counsel was ineffective for failing to move to dismiss count I of the indictment.
An attorney's performance must be reasonable under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970). Petitioner "bears the burden of proving his claim of ineffective assistance of counsel." Government of the Virgin Islands v. Bradshaw, 726 F.2d 115, 117 (3d Cir.), cert. denied, 469 U.S. 829, 83 L. Ed. 2d 56, 105 S. Ct. 113 (1984). "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, supra, 466 U.S. at 689. Counsel's strategies and choices are presumed to be sound, and a defendant must rebut that presumption to make out an ineffective assistance claim. Id. If a defendant can overcome this presumption, then he must also establish that he was prejudiced. Id. at 687. See also Bradshaw, supra, 726 F.2d at 117.
Petitioner asserts that his counsel was ineffective
for failing to seek dismissal of the charge under 18 U.S.C. § 241, count I of the indictment, and for failing to take a variety of steps to challenge the validity of that charge. Section 241 makes it a crime for:
two or more persons to conspire to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.
Proof of violation of section 241 requires a showing of an agreement with the specific intent to interfere with the exercise of a federal right, and at least one overt act taken to accomplish the intent of the conspiracy. United States v. Guest, 383 U.S. 745, 16 L. Ed. 2d 239, 86 S. Ct. 1170 (1966); Screws v. United States, 325 U.S. 91, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945). Petitioner was charged with conspiring to interfere with the rights of Williams, Bloxom and other black citizens to live in the house they desired, without regard to race. At the time petitioner and others set the house on fire, the house was owned by the Veterans Administration, an agency of the United States government. Bloxom and Williams had moved out of the house because of the protests against their presence, and their fear of a violent incident like the one which in fact occurred.
Petitioner argues that because the house was unoccupied, the Williams-Bloxom family no longer intended to live there, and the house was owned by the United States, the elements of section 241 could not be proved. Thus, he contends, counsel was ineffective for failing to have the charges under section 241 dismissed. Petitioner's argument fails for at least two reasons. First, on these facts a reasonable factfinder could have concluded that Callahan and the others intended to interfere with Williams and Bloxom's rights. As the Third Circuit pointed out in deciding co-defendant Stewart's appeal on this point: "As Callahan testified at trial, 'everybody thought that they [Bloxom and Williams] would be back in.'" Stewart, supra, 806 F.2d at 67. Second, a reasonable factfinder certainly could have concluded that Callahan conspired to keep other black citizens from exercising their right to live in that all-white neighborhood. Id. The facts asserted by petitioner simply do not remove his conduct from that proscribed by section 241. Counsel's decision not to seek dismissal of that count was thus eminently reasonable; failure to seek dismissal was in no way ineffective assistance of counsel.
C. Lack of Jurisdiction
Petitioner's third ground for seeking the court to vacate the sentence pursuant to count I is lack of jurisdiction.
Section 241 states that conspiracy to hinder any citizen in the enjoyment of rights secured by federal law is an offense against the United States. The district court clearly has jurisdiction to hear such a case. 18 U.S.C. § 3231.
D. Rule 11
Petitioner's final argument is that he would not have entered his plea of guilty had he been sufficiently apprised of his rights by the court as required by Fed.R.Crim.P. 11. Petitioner alleges four specific deficiencies. First, petitioner alleges that he "would not have made his guilty plea if he had known about (1) his Miranda rights," (2) his right of compulsory process to subpoena witnesses, (3) his right to remain silent and not to be compelled to incriminate himself, and (4) the Court's alleged failure to develop an adequate factual basis to accept petitioner's guilty plea.
I have reviewed the transcript of petitioner's guilty plea, and am satisfied that petitioner was fully advised of his rights as required by Fed.R.Crim. P. 11(c) during the course of the colloquy. Furthermore, the factual basis for petitioner's plea was clear as to each element of the two crimes, with which petitioner was charged.
For all of these reasons, Mr. Callahan's petition pursuant to section 2255 will be denied.
An appropriate order follows.
AND NOW, this 11th day of March, 1987, it is hereby Ordered that the petition pursuant to 28 U.S.C. § 2255 is DENIED.
AND IT IS SO ORDERED.