The opinion of the court was delivered by: WORTENDYKE
Invoking the provisions of 28 U.S.C. § 2255, petitioner, a prisoner in custody under sentence of this Court upon a plea of guilty, seeks vacation of his sentence upon the following asserted grounds:
(1) That he was persuaded by representatives of the Federal Bureau of Investigation, prior to the filing of the Information to which he pleaded guilty, that he was guilty of a Federal offense;
(2) That he executed a written waiver of indictment under the mistaken belief that the offense charged was a violation of Federal law;
(3) That his Court-appointed attorney persuaded him to plead guilty to the Information;
(4) That the Court failed in its duty to impart to petitioner a full understanding of the nature of the charge against him and to see that the attorney appointed to represent the petitioner properly protected the petitioner's constitutional rights; and
(5) That the Court was without jurisdiction to enter judgment and impose sentence by reason of the facts alleged in the foregoing contentions.
Section 2255 of Title 28, relied upon by petitioner in support of the present motion, provides a procedure whereby a sentence may be collaterally attacked by recourse to the Court in which the conviction was had and sentence imposed. In the language of the section ( § 2255), the application may be based 'upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence; or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.'
Petitioner's plea of guilty was to an Information (after due waiver of indictment) which charged that on December 15, 1954, the petitioner, 'with unlawful and fraudulent intent, caused to be transported in interstate commerce, from Newark, New Jersey, in the District of New Jersey, to Philadelphia, in the State of Pennsylvania, a certain falsely made security, to wit, a check drawn on the Camden Trust Company, Camden, New Jersey * * * it being well known by the said Burton Rodgers Walker that the said check was falsely made.' The Information also charged that the foregoing offense constituted a violation of § 2314 of Title 18 of the United States Code. It also appears on the face of the Information that the check in question was made payable to Henry D. Emery, an alias of petitioner, was signed 'S. E. Tayler', and endorsed in the name of said Henry D. Emery. Petitioner's plea of guilty to all of the facts alleged in the Information constituted facts alleged in the Information constituted facts, the truth of which he cannot challenge in this proceeding, but also a waiver of all non-jurisdictional defects and defenses. United States v. Gallagher, 3 Cir., 1950, 183 F.2d 342, certiorari denied 340 U.S. 913, 71 S. Ct. 283, 95 L. Ed. 659. The substance of petitioner's present contentions, however, seems to consist in his claim that the Information was defective jurisdictionally, and that because this vice was not pointed out to petitioner by his attorney he was induced to plead guilty to the Information without a full understanding of the legal effect of the allegations thereof.
28 U.S.C. § 2255 provides further, in part, as follows:
'Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States Attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.'
We are confronted at the outset with the question of whether 'the files and records of the case conclusively show that the prisoner is entitled to no relief * * *.' The Federal penal statute charged to have been violated by petitioner (18 U.S.C. § 2314), as of the date of the alleged offense (December 15, 1954) read as follows:
'* * * Whoever, with unlawful or fraudulent intent transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities, knowing the same to have been falsely made, forged, altered or counterfeited; * * * shall be fined not more than $ 10,000 or imprisoned not more than ten years, or both. * * *'
It will be noted, in passing, that the language of the Information to which the petitioner pleaded guilty does not coincide with that above quoted from § 2314 in that the quoted portion of the section constitutes, as an offense, the transportation in interstate commerce of a falsely made security; whereas the Information charges that the petitioner caused the false check to be transported in interstate commerce. (Emphasis supplied.) However, 18 U.S.C. § 2(b) provides that 'Whoever causes an act to be done, which if directly performed by him would be an offense against the United States, is also a principal and punishable as such.' The Information, therefore, charged, and the petitioner by his plea of guilty thereto admitted, that the petitioner caused a false security, to wit, a check drawn and presented in Newark, New Jersey, upon a bank in Camden, New Jersey, to be transported to Philadelphia, in the State of Pennsylvania. This Court takes judicial notice of the fact that the charged transportation was in interstate commerce. It was admittedly caused by the petitioner who, by virtue of the provisions of 18 U.S.C. § 2(b), became a transporter thereof and therefore a violator of 18 U.S.C. § 2314, cited in the Information. Petitioner's plea of guilty to the Information, which, on its face, charges all facts essential to constitute a violation of § 2314, an offense within this Court's jurisdiction, was an admission of all facts well pleaded. Accordingly, the judgment which imposed sentence upon petitioner was not thereafter subject to collateral attack by the present motion under 28 U.S.C. § 2255. Smith v. United States, 10 Cir., 1953, 205 F.2d 768, citing inter alia United States v. Gallagher (supra). In the Gallagher case, Judge Maris, speaking for the Third Circuit Court of Appeals, 183 F.2d at page 344, said:
'Here the appellant, with the advice of counsel, pleaded guilty to the indictment. That plea constituted an admission of his guilt, a waiver of all non-jurisdictional defects and defenses, and admitted all the facts averred in the indictment. The appellant, therefore, could not be heard to challenge those facts in a habeas corpus proceeding. Nor ...