UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: October 28, 1966.
MARVIN NORMAN, APPELLANT,
UNITED STATES OF AMERICA
Forman, Freedman and Seitz, Circuit Judges.
Author: Per Curiam
On January 7, 1964, in the United States District Court for the Eastern District of Pennsylvania the trial of the appellant, Marvin Norman, was interrupted to permit the entry of a plea of guilty to one count of the four count indictment charging violations of the Federal Narcotics Law.*fn1 Following the guilty plea the Government moved to dismiss the remaining three counts and the motion was granted. The District Judge then imposed the mandatory minimum sentence of five years.*fn2
The present appeal arises from the District Court's denial, without hearing, of a motion to vacate the sentence.*fn3 It raises for the first time a claim that appellant entered his guilty plea in reliance on the statement of his counsel in the presence of his sister that if he would plead guilty to one count of the indictment he would receive a sentence of but one year, whereas the Court imposed the mandatory minimum sentence of five years.
Since April of 1964 the appellant has, without success, filed numerous papers in the District Court seeking release by way of habeas corpus, alleging violations of his constitutional rights and has pursued the litigation in this court. Taking into consideration petitioner's statement professing unawareness of "technical insights" we prefer to proceed directly to the merits of his appeal without deciding the question raised by the appellee that appellant's claim is barred because he has abused the habeas corpus procedure by failing to allege in earlier petitions facts available to him of known legal significance.*fn4
Appellant contends that the District Judge failed to comply with Rule 11 of the Federal Rules of Criminal Procedure in determining the voluntariness of his plea of guilty. Indeed, he charges that the exchange between his counsel and the trial judge at the time of sentence lulled him into the belief that the alleged representation of his counsel that his sentence would be but one year would be implemented by the court in a resentence to the reduced term within 60 days. At the time of sentencing the appellant was represented not by court-appointed counsel, but by one of his own choice, regarded by the District Judge as "one of the leaders of the criminal bar." No claim is made that any assurances were given to the appellant by Government officers or the Court, nor that counsel indicated that such assurance was the basis of his statement that appellant would receive only a one year sentence.*fn5
The substance of the colloquy at the time of the plea and the imposition of sentence is set forth in the margin below.*fn6 It is clear therefrom that the District Judge substantially complied with Rule 11 of the Federal Rules of Criminal Procedure as to the voluntariness of the plea. The District Judge and appellant's counsel made it emphatically plain to appellant that the minimum sentence that could be imposed upon him was five years. Appellant's theory that the statements of the District Judge and of counsel justified his conclusion that his resentence to one year would follow within 60 days simply fails in the face of the record.
The requirement of a hearing generally necessary for the disposition of factual issues in motions under Section 2255 is subject to the statutory qualification that the record of the case may be sufficient to dispose of the motion where it "conclusively show[s] that the prisoner is entitled to no relief."*fn7 The record here leaves no doubt that the appellant was well-informed and understood that the offense to which he had pleaded guilty carried a mandatory minimum sentence of five years. It also shows that the appellant has received fact-finding on the voluntariness of his plea under Rule 11. Under all the circumstances, there is no reason to duplicate that effort here.*fn8 Hence the order of the United States District Court for the Eastern District of Pennsylvania denying his motion to vacate sentence will be affirmed.