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PERRY v. UNITED STATES

May 28, 1981

Eugene PERRY, Petitioner,
v.
UNITED STATES of America, Respondent



The opinion of the court was delivered by: MEANOR

On October 7, 1975, the petitioner Eugene Perry appeared before this court as a criminal defendant and entered guilty pleas to four counts of bank robbery in violation of Title 18, United States Code sections 2113(a) and (d). *fn1" Petitioner now seeks to have this court vacate his sentences on the grounds that the "plea of guilty ... was unlawfully induced or not made voluntarily" and the "(denial) of effective assistance of Counsel." Petition at 4. For the reasons set forth below, I will, without an evidentiary hearing, deny the petition.

(T)o require a hearing in this case means "that the number of hearings held on motions under Section 2255 would be limited only by the imagination and ingenuity of the prisoners involved." An ingenious prisoner can deliberately bait his application with claims beyond independent proof and then demand that he be brought to court to tell the story known only to him, no matter how inconsistent and incredible it may be in light of the files and records.

 Machibroda v. United States, 368 U.S. 487, 500, 82 S. Ct. 510, 516, 7 L. Ed. 2d 473 (1962) (Clark, J., dissenting).

 Pursuant to a plea agreement, the defendant agreed to plead in Criminal No. 75-463 (Rule 20 from South Carolina), Counts One and Two of Criminal No. 75-459 (Howard Savings Bank and Essex County State Bank) and Count One of Criminal No. 75-331 (Union City Savings and Loan Association). In return, the United States agreed to dismiss Counts Two and Three of Criminal No. 75-331, "stand moot" (sic ) at sentencing except to correct any factual misrepresentations and to contact the Essex County Prosecutor and request that he dismiss an Essex County indictment returned against the defendant for the Howard Savings Bank robbery set forth in Criminal No. 75-459. Of course, the exact details of the agreement will be discussed in more detail below.

 On November 24, 1975, this court sentenced the defendant to twenty-five years in prison. *fn2" I structured the sentence in the following manner: twenty-five years on Criminal No. 75-463; twenty years on Criminal No. 75-331 concurrent with the sentence on Criminal No. 75-463; and twenty years on each Count of Criminal No. 75-459 concurrent with each other and with the sentences in Criminal Nos. 75-463 and 75-331.

 In a handwritten letter dated March 4, 1976, the petitioner explained to the court in great detail the various transformations that he had undergone since his incarceration. The upshot of this eight page letter was a request "of the Honorable Court to consider granting me a reduction of my sentence." Shortly thereafter, in a typewritten letter dated March 16, 1976, and received by the Court Clerk on March 29, 1976, the defendant indicated that "the effects of this sentence might stunt the inspiration of positive thinking for me in here or out in society. Also it is a known fact that association brings on similarity. I believe that it is in the best interest of society for me to incorporate such positive propensity than for to have to deal with uncouthness, which may corrupt my tendency nine (9) to ten (10) years from now." I am compelled to highlight the fact that in this correspondence to the court, totaling eleven single spaced pages, no mention whatsoever is made of the alleged promise of the prosecutor that the defendant would receive any sentence other than that received. On August 9, 1976, I denied the defendant's motion for reduction of sentence.

 Perry now petitions this court pursuant to 28 U.S.C. ยง 2255 to vacate his sentence and guilty pleas, contending that he was promised he would only receive a fifteen year sentence. In particular, the petitioner writes:

 
When petitioner appeared for sentencing on 11-24-75, he was sentenced to twenty-five years, something that was not in the plea agreement at the time of petitioner's withdrawal of his not guilty plea. Petitioner' (sic ) decision to plead guilty was induced to a significant degree by the prosecutor's promise which was later broken. A conviction under such circumstances violates due process.

 Brief in Support of Petitioner's Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. Section 2255, at 1. Petitioner also contends that his counsel did not provide him with effective legal assistance. Specifically, he explains:

 
Here in the instant case petitioner hardly ever saw his court appointed attorney except for the times that his attorney wanted to discuss a guilty plead (sic ). It isn't enough to assume that counsel thus precipitated (sic ) in this case and thought there was no defense, and exercised his best judgement (sic ) by proceeding to trial without any preparation. Neither he nor the court could say that a prompt and thorough going investigation might disclose as to the facts. His only advice to petitioner was that petitioner plead guilty to said charges, or face the possibility of "eighty five (85) years if found guilty.(")

 Id. at 4. As a final argument, petitioner asserts that "(since) all of the charges of each individual indictment arose out of two single bank robberies, petitioner claims that the multiple sentences constituted an impermissible "pyramiding' of sentence in violation of the principle of Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1957), even though in each indictment, the counts were run concurrently with each other." Brief, supra at 5.

 Guilty Pleas

 The resolution of this aspect of petitioner's present application to the Court is eased greatly by a detailed examination of the record of the Rule 11 hearing and the various affidavits filed by the government in opposition to the petition. After the defendant had read a copy of the indictments and information, they had been read to the defendant, the defendant had indicated his understanding, entered his pleas and been informed of the panoply of constitutional rights he was waiving, Tr. 17 to 24-1, the colloquy between the defendant, who was under oath, Tr. 3-14, and the court was in pertinent part as follows:

 
(THE COURT) Q You enter these pleas of guilty voluntarily, that is, of your own free will?
 
(DEFENDANT) A Yes.
 
Q Have any threats of any kind from anyone been made to you to enter these pleas?
 
A No.
 
Q Other than the promises that we spoke about before, the government not speaking at your sentence, Counts II and III of 75-331 to be dismissed, and a request by the government to dismiss the pending armed robbery indictment against you in Essex County, which duplicates Count I of the Information, any other promises been made to you to get you to enter these pleas of guilty?
 
A No.

 Tr. 25-2 to -15.

 The defendant then engaged in a detailed factual explanation of the manner in which he robbed the various banks. During this exchange, the defendant, under oath, confessed to his wrongdoings.

 
You'll have to tell me some details as to how you are involved in each of these escapades of bank robbery.
 
We'll start with Count I of Indictment 75-331, which charges that you and Hillard McQueen on July 2, 1975 did rob the Union City Savings and Loan Association in Union City of approximately $ 17,000.
 
Tell me what happened that makes you guilty of this offense as charged.
 
(DEFENDANT) A I went into Union City Bank Association in Union City, on approximately the date of July 2nd, 1975. At that time I pulled the revolver, announced a hold up pardon me at that time I went in, announced a hold up, pulled the revolver, held it up in the air, not pointing but up in the air so everyone observed me, and put it back in my pocket, and confiscated $ 17,000, approximately.
 
Q What did you do with the money?
 
THE DEFENDANT: The money was turned over to the arresting officers.
 
THE COURT: All of it?
 
THE DEFENDANT: Yes.
 
MR. HORN (Prosecuting attorney): Mr. McQueen and Mr. Perry were apprehended as they left the bank.

 Tr. 25-16 to 26-18. With respect to the bank robbery charged in Criminal No. 75-459, an Information charging petitioner with the robbery of the Howard Savings Bank, Springfield Ave., Newark, petitioner in open court confessed:

 
(DEFENDANT) A On the date of the 10th month, 29th day, 1974, Howard Savings Bank. I went in, vaulted over the counter and took money from the drawers, came back and left.
 
(THE COURT) Q How much did ...

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