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UNITED STATES v. GREENE

October 4, 1989

UNITED STATES OF AMERICA
v.
RODNEY G. GREENE



The opinion of the court was delivered by: BRODERICK

 RAYMOND J. BRODERICK, UNITED STATES DISTRICT JUDGE

 On October 21, 1988, Rodney Greene pleaded guilty before this Court to eight counts of bank fraud in violation of 18 U.S.C. § 1344, one count of possession of stolen mail in violation of 18 U.S.C. § 1708, and one count of uttering a forged United States Treasury check in violation of 18 U.S.C. § 510. On December 7, 1988, the Court sentenced defendant to seven years incarceration for the section 510 offense and five years for the bank fraud charges, with the two sentences to run concurrently. For his unlawful possession of stolen mail, the Court placed defendant Greene on probation for a term of five years and ordered him to pay a total special assessment of $ 500.00.

 Defendant Greene then petitioned the Court under Federal Rule of Criminal Procedure 35(a) to correct a putatively illegal sentence. He argued that the special assessments were invalid because their authorizing legislation, 18 U.S.C. § 3013, originated in the United States Senate, contrary to article I, section 7 of the United States Constitution. The Court, holding that section 3013 was not a revenue bill subject to the origination clause, denied the Rule 35(a) motion. United States v. Greene, 709 F. Supp. 636 (E.D. Pa. 1989) (Broderick, J.).

 Afterward, defendant filed a motion for reduction of sentence pursuant to Federal Rule of Criminal Procedure 35(b). In denying the motion, the Court stated that two of defendant's grounds for relief could not be adjudicated under Rule 35(b), but only in a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2255. Rodney Greene now properly has asserted those grounds and others in a section 2255 petition.

 First, petitioner presents three interlocking claims. He states that he was compelled to provide handwriting exemplars in violation of his right not to incriminate himself as secured by the fifth amendment of the United States Constitution and without being apprised of his rights as required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), and its progeny. Petitioner further contends that because his attorney failed to bring the purported violation of Miranda's strictures to the Court's attention, petitioner was denied the right to effective assistance of counsel as guaranteed by the sixth amendment to the United States Constitution. Second, petitioner Greene asserts that he was laboring under a "possible mental impairment during [the] criminal offense."

 It is well established that the decision whether to order an evidentiary hearing for a section 2255 motion is committed to the sound discretion of the district court. United States v. Nino, 878 F.2d 101, 103 (3d Cir. 1989). In exercising that discretion, however, the court must accept as true the movant's factual allegations, unless they plainly are frivolous on the basis of the existing record. United States v. Williams, 615 F.2d 585, 591 (3d Cir. 1980). The district court need not conduct an evidentiary hearing if "the motion and files and records conclusively show that the prisoner is entitled to no relief." United States v. Baynes, 622 F.2d 66, 68 (3d Cir. 1980); see also United States v. Leiby, 820 F.2d 70, slip op. at 8-9 (3d Cir. 1987). Discerning this to be the case here, the Court, pursuant to 28 U.S.C. § 2255, Rule 8(a), finds that an evidentiary hearing is not required and denies petitioner Greene's motion.

 I.

 Petitioner Greene pleaded guilty to the crimes for which he was incarcerated. That admission bars petitioner from challenging the constitutional validity of governmental conduct that occurred before the plea was entered. As the Supreme Court recently stated,

 
When the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack.

 United States v. Broce, 488 U.S. 563, 102 L. Ed. 2d 927, 109 S. Ct. 757, 762 (1989); see also Mabry v. Johnson, 467 U.S. 504, 508, 81 L. Ed. 2d 437, 104 S. Ct. 2543 (1984) (indicating "a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked"); Tollett v. Henderson, 411 U.S. 258, 267, 36 L. Ed. 2d 235, 93 S. Ct. 1602 (1973) (holding "independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea" not judicially cognizable on habeas review); McMann v. Richardson, 397 U.S. 759, 770, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970). *fn1" Instead of pleading guilty, petitioner had -- and was informed of -- the right to challenge the admissibility of certain evidence, proceed to trial, and seek appellate review of any errors he believed infected the district court proceedings. He " chose not to, and hence relinquished that entitlement." Broce, supra, 109 S. Ct. at 763. In his section 2255 motion, petitioner Greene does not contest that his guilty plea was voluntary and counseled. Rather, he asserts claimed constitutional deprivations that antedated the plea and contends that he might not have been mentally competent at the time of the offense. Because petitioner does not challenge the plea as such, his present contentions, although perhaps relevant to evaluating the competency of his representation, cannot serve as independent grounds for relief under section 2255. Id. at 765; Tollett, supra, 411 U.S. at 267.

 II.

 Even apart from petitioner's lack of entitlement to attack collaterally his conviction, however, none of the allegations demonstrate that his imprisonment is the result of governmental activity condemned by the Constitution. There simply is no merit to the argument that the compelled production of handwriting exemplars violates the guarantee against self-incrimination. That right prohibits officials only from forcing an accused to provide "testimonial or communicative" evidence, rather than evidence of a "real or physical" nature. Schmerber v. California, 384 U.S. 757, 761, 764, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966). Drawing on the Schmerber distinction in Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967), the Supreme Court held that a "mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic" and therefore is outside the protection of the fifth amendment. Id. at 266-67; see also In re Special Federal Grand Jury, 809 F.2d 1023, 1025 (3d Cir. 1987).

 Petitioner also states that the exemplars were secured by threats of arbitrary incarceration -- i.e., that if he did not produce the exemplars, petitioner would be imprisoned without having committed a crime -- in violation of the fifth amendment *fn2" and that if petitioner had had an attorney present at the time, he would not have generated the handwriting samples until he had been indicted. Petitioner, however, produced the exemplars under a subpoena, the validity of which he does not challenge. If petitioner had declined to comply with the order, he in fact likely would have been jailed, with his failure to produce the demanded exemplars constituting the predicate offense. See 28 U.S.C. § 1826(a); United States v. Euge, 444 U.S. 707, 718 & n. 14, 63 L. Ed. 2d 141, 100 S. Ct. 874 (1980); In re Grand Jury Proceedings (Schofield I), 486 F.2d 85 (3d Cir. 1973) (defining required contempt procedures); In re Grand Jury Subpoena, 558 F. Supp. 50 (S.D.N.Y. 1983). Nothing in the Constitution forbade officials at that point from truthfully informing petitioner of the consequences of noncompliance with a lawfully issued subpoena. Similarly, because petitioner was not entitled to wait for an indictment before conforming his behavior to the ...


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