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UNITED STATES v. CARIOLA

November 30, 1962

UNITED STATES of America, Plaintiff,
v.
Sammy CARIOLA, Petitioner



The opinion of the court was delivered by: COHEN

This is a petition to vacate a plea and set aside a conviction entered January 24, 1938. Procedurally the motion is not properly within 28 U.S.C. § 2255, sentence having been served, but will be treated as a petition for Writ of Error Coram Nobis. *fn1"

 The Criminal Docket contains the following handwritten clerical notations:

 '1938

 Jan. 24 Trial moved before Hon. John Boyd Avis as to S.C. (Sammy Cariola)

 Ord Jury drawn Ord Jury sworn Jury sworn

 Swearing 5 wits.

 S.C. Ret plea -- Not Guilty & pleaded Guilty

 S.C. plea entered as a technical one (by order of ct.)

 S.C. Sentence -- one day -- custody of U.S. Marshal

 (Fn.) (Forman)'

 Petitioner contends that the entry of his plea was not made competently or understandingly and was never intended as a plea of actual guilt to the crime charged. Furthermore, such plea was merely a necessary and proper way to terminate the proceedings and had no legal significance since under Rule 11 of Federal Rules of Criminal Procedure there is no authority for the entry of a 'technical plea of guilty'. *fn2" It is urged that under these circumstances petitioner was denied due process of law.

 The application for relief is supported by affidavits of the petitioner and his trial counsel. Petitioner avers that he is a responsible citizen and union leader and that his conviction has resulted in embarrassment and loss of prestige. He also maintains that his conviction denies him voting privileges. Counsel avers that at the time of trial he was a member of the Pennsylvania bar for four years, of the New Jersey bar for two years, and prior to his representation of petitioner had tried approximately ten civil and five criminal cases. Lack of experience is now inferred and it is maintained that had it been counsel's understanding that his client was admitting full guilt by his 'technical plea of guilty' he would have urged the continuance of the trial.

 The Government contends that the issue is moot; that the petitioner understood his plea and the consequences thereof; and that there has been ...


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