*1 BRYAN, Hеnry Petitioner- Richard Appellant, America, STATES
UNITED Respondent-Appellee, No. 72-2127. Appeals, States Court Fifth Circuit. April 4, 1974. Foster, Houston, Tex. C.
Charles (Court-appointed), petitioner-appel- lant. Atty., Ray, Alfred E.
H. M. U. S. Moreton, respon III, Oxford, Miss., for dent-appellee. BROWN, Judge, and
Before Chief GEWIN, BELL, WISDOM, THORN GOLDBERG, BERRY, COLEMAN, DYER, AINSWORTH, GODBOLD, CLARK, SIMPSON, MORGAN, RO Judges. NEY, GEE, Circuit Judge: CLARK, Circuit Henry the dis- moved
Richard post un- relief conviction trict court denied 2255. That court der U.S.C. § hearing. panel A motion without a previously the de- affirmed of the multitudi- all but one nial *2 by Bryan, him be if trial but held than it would he stood nous issues raised ev- ? been accorded an and was convicted that he should have identiary question of on the my MR. Not to “BY THOMAS: charge plea guilty to a indirectly, knowledge, directly or Your unkept escape product of an was the Honor. bargain. plea F.2d 272 yоu feel “BY Do THE COURT: be re- ordered the cause to This court change guilty, plead his desire to heard en and has limited its consid- banc Guilty plea Guilty from Not issue eration to the voluntarily freely one bargain- future case and to understandingly knowingly general. procedures in this circuit part? made on his do, “BY I MR. sir.” THOMAS: I. Defend- The court then addressed the custody into the of the came high graduate Bryan, ant then school robbing charge of on a United States twenty-five years age, the follow- federally He was eventu- bank. insured ing colloquy record. is reflected ally convicted, this conviction was anyone “BY THE COURT: Has (5th appeal, affirmed on 423 F.2d promised you anything in connection 1970). government asserts Cir. change with this ? escaped awaiting he that while trial custody and was retaken. from federal “BY THE DEFENDANT BRYAN: Slightly prior month to his one over No sir. arraigned robbery trial, bank anyone “BY THE COURT: Has charge Represented escape. any you in manner threatened ? appointed counsel, he entered “BY THE DEFENDANT BRYAN: escape guilty, trial and his No, sir. charge fixed for á date before agent any “BY THE COURT: Has robbery. time for trial for the scheduled government, or of other day appeared before the On the set governmental agency, state, or munici- and announced court with his counsel anything pality, anybody, done change plea from he wished you you change your to make want to guilty. guilty On that occasion plea in this ease? Thomas, D. the court Charles addressed appointed Bryan, and the counsel “BY THE DEFENDANT BRYAN: following exchange place open took No, sir. Bryan’s presеnce. why “BY THE Then do COURT: you do “BY THE COURT: And you change your want any pressure that has been know brought plea? upon to bear him from “BY THE DEFENDANT BRYAN: get change plea? him to source Well, charge. guilty I I’m feel “BY MR. THOMAS: know of you, “BY THE COURT: Did such. fact, escape jail you from the while you “BY THE Do COURT: know being were confined there ? any promises “BY THE DEFENDANT BRYAN: made? Yes, sir. “BY MR. THOMAS: None what- indicated ever. edge, “BY COURT: Has THE that him, your would be anybody knowl- knowingly right “BY a trial to THE [*] COURT: Do [*] by jury? voluntarily [*] [*] waive you [*] your then accepted lighter THE BRYAN: would cause a “BY DEFENDANT upon Yes, and lesser sentence to made sir. Bryan’s change the time of want And COURT: “BY THE charge. escape Bryan’s supporting ?
plead declares that Thomas affidavit Counsel BRYAN: DEFENDANT “BY THE plea bargain represented him that Yes, sir. Thomas, had been concluded between Court Then “BY THE COURT: attorneys, other defense given to information finds from Attоrney Judge, and District *3 defendant, and for the him counsel Bryan provided which to receive a for defendant defendant, this charge escape concurrent on the sentence understandingly, free- knowingly, and imposed any sentence which voluntarily, to with- ly desires and jury guilty found him the the after guilty in this plea of not draw his robbery pending further A bank trial. charge guilty plead the and to case alleged bargain the was for condition of indictment, finds the Court and in of an conduct official charade freely, is, fact, volun- plea his parties which the and court would understandingly knowingly, tarily, and develop proceedings falsely a record of accept his will entered, the Court and reciting agree- by ritualistically that no upon charge, guilty plea to the of guilty produced ment of giving government’s factual basis bargains promises and that no of in this case prosecution for alleged Bryan kind underlaid also it. ft sentencing he imme- at the time of Bryan protested subse- diately co-defendant and his the failure of the bar- gain trial and were convicted quently to his and that attor- went his charges robbery brought agreement ney of a feder- armed of then judge, required two months ally insured bank. Almost attention of the again ap- attorney’s placed of after this conviction comment peared below with record. concludes with the asser- before He sentencing judge tions “the then some- Counsel Thomas said thing escape robbery convictions. what he but I don’t remember right said,” portion of and exercised his and that of the record was accorded wrоng- sentence, exchange reflecting asserted been but this has allocution before why fully not be no reason he should sen- deleted. tenced, why he should be sentenced panel and remanded The reversed manner, special of principally summary denial of relief escape. After the court upon the of the Court’s basis
pronounced years 22 sentences holdings States, in Fontaine v. United together conviction, robbery with a bank 213, 1461, 411 93 36 L.Ed.2d U.S. S.Ct. two-year for the es- consecutive sentence (1973), and v. 169 United protest by cape, the record discloses no 510, L. 7 368 82 U.S. S.Ct. Bryan or his counsel. ap (1962) Ed.2d those cases 473 1 discloses, plied language panel opinion Bryan’s 2255 and As the of § York, papers that, pursuant New motion assert rationale Santobello v. plea bargain, L.Ed.2d 427 terms he and his 92 S.Ct. of his U.S. lawyer deliberately (1971).2 deceived the reasoned that Its representations files records in case could district court their following upon pertinent part provides: panel 2. also relied statute import: similar Unless the cases from this court of motion the files records Ewing, conclusively pris 480 F.2d United v. case show States relief, (1973) ; oner is no entitled to court shall Beto, (1972) ; upon F.2d 478 thereof served Johnson v. cause notice to be Smith, prompt attorney, grant 455 F.2d James hearing thereon, determine the issues and findings make conclusions respect law thereto. 28 U.S.C. this, claimed, showing plea. All he not amount to a conclusive confession, relief, coerced his his waiver of because he was entitled to plea bargain counsel and thе uncounselled that his agreement guilty. required a confes- guilt join that he his at- sion also against petition which record stating guileful
torney falsely to a supporting and its documentation was pan- that no existed. set consisted of a written waiver of held el that a counsel, grand jury indictment and which was to be conducted plea supplemented by transcript impugned petition- than other the one proceedings man- standard portion pleadings. reverse that er’s We dated Fed.R.Crim.P. which the panel opinion and affirm the dis- acknowledged in substance trict toto. court’s dismissal given voluntarily knowingly, understood the that he na- No has *4 consequences ture of the and the bargain by unkept induced can and that he was permitted At the outset of be stand. guilty. court Fontaine appropriate to our discussion it is redact hearing district court to conduct rule and cir that Scmtobello our own petition and its concluded as jurisprudence crystal made cuit follows: Today’s clear. is intended to decision record, On we cannot this conclude reinforce, principle. not attenuate this required by with the assurance the ful However this fundamental is not “conclusively statutory standard upon crum which the instant decision show” no that under circumstances Rather, judi apply turns. our is to task could the establish facts ciously teachings of Machibroda and warranting relief under Fontaine to whether in determine the al legation setting Bryan’s versus record of case his motion and Section 2255 guilty plea John Machibroda’s was prior plea files recоrds of taken before was amended Rule 11 to re sentencing proceedings conclusively show quire dialogue sentencing at between per he that is entitled no relief. No personally. the court and the defendant applied, rule se can for in the final represented all Machibroda was at times analysis, becomes one of issue fact. by Contrary retained to Fed.R. counsel. necessarily depends upon Its resolution existed, 32(a) then Crim.P. it Machi as alleged by what and what is shown personal right broda no was afforded Thus, each documentation of case. sentencing although allocution his we must look to details of those permitted counsel was to address guidance provide causes which our here. court his Consecutive sentenc behalf. twenty-five David years Fontaine’s 2255 motion fifteen Section es were sought years guilty, imposed. vacate his and one en- Almost two half counsel, tered without benefit on the later filed a Machibroda Section 2255 ground that it had coerced. motion His that an Assistant asserted charges physical Attorney, Condon, abuse and illness United States gunshot jail a recent wound that time re- visited him at a when his at quired hospitalization torney present were him documented and offered was support bargain pe- records tendered in of a maximum sentence of his twenty count, years tition. These also records showed that a on one and a ten following again year month he was concurrent sentence second hospitalized addiction, ag- exchange guilty. for heroin сount in for a gravation gunshot bargain conference, alleged plea of the earlier wound At the assertedly and other severe Condon Machibroda illnesses. Fontaine cautioned alleged interroga- prolonged further not to to his coun disclose the during period preced- tion continued The motion further sel. they pled, he were not such but before as Machibroda so after drawing govern- per- could resolve his own appeared sentenced, he against knowledge proceeding sonal recollection. in a ment witness charged further one found the record with another defendant sentencing Machibroda Machibroda’s to which robberies the same “conclusively en- that after did not show” pled. further claimed he He sentencing, prior testimony, relief, titled to therefore the dismis- but still again to ad- with him alone was vacated and the remanded met sal cause Condon closing District for a this com- with vise Judge the substance ment: was “vexed” longer testimony impose always marginal cases, There will bargained originally for. sentences than not far from the line. this case is expressed that he Machibroda averred specific But the and detailed factual objection vigorous to Condon and stated petitioner, assertions im- while the matter discuss would probable, juncture cannot at whereupon, judge, and the to be .... said incredible bring other bank threatened Condon robbery charges against Unlike peace. keep further He he did petitions filed Fontaine or Machi him that assured clаimed Condon broda, sought place assertions Attorney move would the United States improperly district sixty reduction of sentence within squarely in the midst of the bar *5 days judge had off” “cooled the —after gaining process in both anteroom bargain original would —so and in the All mate courtroom. kept. Finally, Machibroda by Bryan rial issues raised are ones sentencing to had he twice written judge, required was Section complaining mis- about Condon’s motion, readily hear the could resolve to representation no an- had but received drawing personal on his own knowl swer. edge and recollection. It is sure thing extraordinary had done an he such government filed a denial sworn making participate as to bar everything by Machibroda to asserted gain ap with a defendаnt who was jailhouse except con- it admitted a him, bargain pear especially before Machibro- which Condon told ference suppressing part did judge had a and willingness part tes- da that a his indelibly keep, the matter would be pending tify truthfully trial memory.3 impressed Fon Unlike his consid- favorable sentence invoke Machibroda, Bryan or did not as taine the motion eration. The court dismissed subject physical that he sert was six noted that without abuse or threats had been sentencing he had received after months against plea. him coerce his His as did Machibroda which one letter from sertion was that a concurrent sentence bargain, unkept but not mention conditionally in ex had been offered merely requested that his sentences willingness change plеad made concurrent. that, when the condition —conviction that the The Machibroda Court noted robbery pass, —came developed detailed factual issues did not receive the concurrent sentence responding petition re- affidavit bargained he had for. Unlike Fontaine purported dehors conferences lated Machibroda, Bryan only or tendered pointed specifically out record own affidavit to counter a com- record Bryan’s allegations proceedings him in as to an altered record before which he had perti- lawyer publicly proceedings sentencing at are also state facts es- being judicial tablishing wrongdoing passes been nent here. It credible had part wrongfully a record deleted. would not know directly single enjoy one, posed former conceivable would inconsistent finality testimony by counsel that decisional law must have to himself Indeed, wholly questions and maintain its credence. the num- inconsistent hearings judge. ber of a wilful affiant comments from the trial single provoke as to a conviction importantly, the record of the Most limitless, time he would be for each plea proceedings in re- the case bar could swear that someone at the last Bryan attorney flects that and his preceding hearing suborned false testi- equivocation testified conflict or without lawyer mony from him or that the or his bargain that no promised, had been made judge played performance false indirectly. directly or No day in had his his duties. appearеd testimony such files bargain of whether a had issue developed records in Fontaine or Machi- plea. been Both he connected with his In neither of cases had the broda. these bargain and his counsel denied that a attorney re- and his been “directly indirectly.” was involved quired testify open court as to proscribes itself Section 2255 successive had been struck. motions for similar relief and explicit neither case did denials of spirit of that bar we hold that bargains appear duly aas of a bargain” positive record’s “no affirma- proceeding recorded court record. To precludes necessity retry tion contrary, only subject issue.4 plea bargaining entirely absent Court said Machibroda Fontaine’s record also those docu- was “nоt far from the line.” This case ments disclosed that he did not even have way over it. attorney. record person permitted shows that the speak sentencing at the time II. knowledge from whom Although we hold that was not alleged bargain assertedly relitigate entitled to his in-court decla- withheld. ration that his was not the result *6 thing bargain, It petition- is one to a hold that a of the court’s awareness facing er files and increased of records that are si- incidence attacks on subject plea pleas bargaining agree- lent on the of based of is breaches those develop charge compels us, to police entitled supervisory a ments a our ca- prosecutor bargained pacity, only speak official or to not to the need for more ad- equate procedures for his but for concealment of the Rule 11 that dis- so wholly routinely explore itself. It will is a different trict courts this thing say testing judge pleas to that a area in district must of voluntariness bargains petition accord a accompa- to a tendered. Plea which ad- have vances, suppression history not the nied the un- whole of nation’s of an this fact, jurisprudence. utterly raised criminal of but the For most incredible as- pro- journey 'they unseen, sertion that all the this official former have been ceedings secreted, appendages. say his cause were no more than not “Don’t stultifying justice a so, said charade which but” seems have to been the every participant by Why past. mocked usual introduction in times —even proсeeding, kept himself. No a this area was in the shadows is ob- reject 4. We the contention that ment the record would have been ineffective. Absent bring perjury here is inconclusive because the court did not desire to of strictures Bryan (1) respond (a hardly Bryan) state to that he could bear notion attributable inquiry by promises stating allegedly redundant, absurd, it would be if not to hold incurring made without fear of the court’s that a must admonish an disapproval, (2) expected responses it truth- in their client truthful questions accepted. questions they ful Under answers asked. before Bryan makes, state- assertions the first
781 acceptance any part presented for than to tradition rea- viously due more agreement, and, if in an ago court basis long this of their 1967 As son. “ understanding, safeguard- so, оf that [p] roperly the details pointed out system justice. agreements may imperil our of discussions ed dealing explicitly this prosecutor necessity are of with an accused and between signifi- factor, which could have such administration fair consistent Beto, part of F.2d in the voluntariness justice.” 377 cant Brown v. recognized by Third Cir- Court In 1971 has prophylactic disclo- this view into mandate cemented cuit’s Santobello measures Paradiso sure with these words: law (1973) States, F.2d 413 charges disposition of criminal requirement Fourth Circuit’s prosecutor and agreement between F.2d Raines v. United loosely accused, called sometimes (1970), courts district bargaining,” com- “plea an essential circuit must add to their Rule 11 jus- ponent administration specific procedures inquiry as to administerеd, Properly it tice. bargaining occurred. has encouraged. every criminal If of Practice and Committee Rules subjected full-scale were Procedure the Judicial Conference of Gov- trial, and the Federal proposed has amend- United States multiply need ernment would present ments to Rule would judges and many the number times inquiry provide mandate such facilities. regulation comprehensive scheme for the charges plea dis Disposition after agreements undertaken. See part an essential cussions is Proposed 11(d) (e), Rule Prelimi- highly process desirable but a Proposed nary Draft Amendments many It leads reasons. Federal Rules Criminal Procedure disposition largely prompt final for the District Courts and the Federal cases; it avoids of most criminаl Appellate Procedure, April, Rules of impact of en corrosive much (G.P.O.), 52 F.R.D. 416-431.5 during pre-trial con forced idleness re are denied finement for those who Thirty days after the. date of trial; protects pending it lease all district courts in this persons public from those accused put following into circuit shall effect prone conduct to continue criminal supplementary practices at the time of release; and, pretrial even while on taking pleas or nolo contendré. shortening between time agree The court shall state that *7 disposition, it enhances and permissible ments are and that the de may be rehabilitative whatever duty fendant and all counsel have to they prospects are guilty when any disclose the existence and details of ultimately imprisoned. Brady v. agreement See to the ten relates 742, States, 751-752 United 397 U.S. Specific inquiry dered. made as shall be 1463, 1470-1471, L.Ed.2d S.Ct. [90 agreement to the existence an such 747] accepted. before a is The defend 260, 404 U.S. 261. placed ant shall be under oath. These practices minimum in and are not problem Thus, no while can arise any tended to circumscribe additional bargaining, in- the fact of the failure pleas inquiries any procedures that the court told whether sist deemed proposed Project approved These rules were on Minimum Standards for Criminal Justice, Approved 1968, Draft, and Conference transmitted and 8 Moore’s 26, Practice, 11.05, pp. See also 2d Court on October Stand Federal ¶ ed. 11-81 through Relating Guilty, ards Sections 11-112. Pleas 3.1-3.4, Bar Association 1.5 American prisoner pertinent to the issue entitled to no relief court recogniz- majority propriety .” any in case. As es, Bryan’s supporting motion affi- judgment appealed from in all davit facts which if true would things Consequently, entitle him to relief. Affirmed. district court determine motion, files, and record of the con- case Bryan GOLDBERG, Judge, clusively is entitled with show Circuit BROWN, Judge, relief, WISDOM, it had conclude that whom Chief alleged simply true. GODBOLD, RONEY, facts he MORGAN original Judges, join (concurring panel rested Circuit dissenting papers part): case the belief support with that conclusion would recently This Circuit has much certainty the statute. problem bringing fi- vexed with nality record” in The “files and initially adjudicated by to eases Bryan’s documents case contained three guilty pleas. Today, means of in an ef- claim of a broken bar- relevant to the rising fort stem the tide of such cases pro- gain: transcript of Rule path we follow chosen several ceeding pleaded guilty when similarly expand- other courts vexed—an charge; escape transcript inquiry pursuant ed to Fed.R.Crim.Proc. Bryan’s sentencing; allocution judge probes, in which the district support affidavit in of his own record, for the the details 2255 motion. § negotiations have occurred.1 Believing expanded Ias do that the Rule transcript proceeding promises be a useful Bryan’s full and care reveals constructing just, as, tool well effi- requirements compliance with ful post-conviction cient resolutions to at- Rule 11. It also reveals that both guilty pleas allegedly tacks on based and his denied that bargains, wholеheartedly broken con- being exchange entered majority opinion. cur Part II of the promises. The Government ease not, however, I do syllable one recede argued compliance full such original panel’s from the conclusion that requirements pre of Rule 11 should petitioner Bryan should have received into examination the volun clude later evidentiary hearing on claim of a guilty plea. tariness of a Fontaine plea bargain, broken and I therefore re- 213, 93 411 U.S. S. spectfully dissent from Part I of the however, L.Ed.2d Ct. majority opinion. beyond Supreme Court made it clear According to (1970), 28 U.S.C. 2255 under cavil that hearing some circumstances facing granted a motion to vacate sen- must be consider tence must hold a post-convictipn plеas, on motion attacks “[ujnless the notwithstanding motion and the files full tran Rule 11 conclusively record of the case script. show that *8 States, 1. Paradiso v. 1973, (1970), 319(b), Pennsylvania 3 Cir. 482 Rules Rule 409, 413; F.2d Harris, Procedure, Appendix. Walters v. 4 Cir. of Criminal 19 P.S. 1972, 988, 993, denied, 460 Recently Advisory F.2d cert. Wren the National Commission States, 1129, 947, Goals, v. United 409 U.S. 93 on S.Ct. Criminal Justice Standards 35 supreme L.Ed.2d though negotiation, 262. At least state two critical of recom- practice courts have also moved in the oí direction mended can elimi- that until the be expanding colloquy nated, any the agreement bargain involved in a made should guilty plea bring open presented open court, record, order to into the the on the for any bargains. acceptance existence and judge’s rejection. nature of See the Seе Stand- supra, States, Crim.L.Rptr. 3001, Paradiso 3.2, (Oct. v. United F.2d 482 ard 14 3003 citing 1, West, People at 413 31, & 413 n. 1973). v. 3 595, Cal.Rptr. 385, Cal.3d 91 409 477 P.2d
783 persuasive in- in the clear and suit is factual differences are there Of course bar; case: at stant and the case Fontaine between proposition the central in terms of prosecution, or judge, the If the the tran 11 a Rule there established—that a statement in defense counsel makes the always for script conclusive is not contrary open court that to what is determining propriety the purposes of believe, especially as has been led to three hearing 2255 of a § —there prosecutor promises by the or his de- There, key two cases. in the similarities counsel, . . defend- [the fense . complete here, reflected record as the сhallenge the would no more ant] updated of version the compliance with open than he would statement court subsequent here, 11; there, the as Rule challenge clergyman’s from sermon necessarily in guilty plea on the attack corporated pulpit. the directly con that Harris, supra 2, at the made Walters note 460 F. representations flicted entered; 993, citing Trebach, Rationing 2d guilty was time there, subsequent here, attack of 159-60 Justice as occurring alleged incidents focused indisputable, If, as seems me nothing Moreover, the record.2 de hors transcripts proceeding of the Rule 11 suggests central that its in Fontaine sentencing might in and the some cases precise to the proposition limited is determining inconclusive of case. facts hearing is оn a 2255 mo- § sentencing tion, the nature the other documents in the Bryan’s silence at breaking papers alleges becomes A rule re- was crucial. what he face of quiring something peti- other than induced his prerequisite certainly though own affidavit evi tioner’s circumstantial going transcripts behind official of fact could a finder dence from which made, has a certain Noth- is not surface attraction. deal ever infer that no was justifying in the statute commands such a rule denial evidence conclusive 3 suggest hearing. prison and the life Fontaine realities In both of a 2255 § per unreasonably States, 1962, that a rule se v. United and Machibroda unnecessarily 510, 487, restrict to the L.Ed.2d access 82 368 U.S. S.Ct. 7 objec remedy. petitioners important, More Machi- 473, 2255 had voiced clearly hearing yet sentencing, did broda seems to allow a their silence tions at strength petitioner’s hearings subsequent own not foreclose papers. supporting logic affidavit without behind this re- their claims. 1129, 947, States, 1962, 409 35 L.Ed. U.S. 93 S.Ct. Machibroda v. United 368 U.S. 262, 510, 2d the Fourth Circuit refused to make fac 82 7 L.Ed.2d is also S.Ct. explicit transcript, including tually case, distinguishable Rule full 11 de instant any bargain had nials defendant it 1966 (cid:127)since occurred before the amendments made, expanded colloquy that no bar conclusive evidence 11 and the role Rule granting gain purpose process entering occurred the court hearing talking plea. on the claim. was Machibroda most counsel, according by the defense done Accord, Simpson, 1970, United States v. ignorant petitioner’s later claims was U.S.App.D.C. 8, 165-166. Of F.2d alleged bargain. that case and Both claim the record course judice, however, in the case sub palpa cut off doubtless close to the falls initially did himself assure bly category, is incredible of some rele challenge voluntary, only later evaluating allegations in vance the other plea and the the voluntariness petition. hand, On the other the fact See 368 truth of initial statements. own prove does not one frivolous claim 516, L.Ed.2d at 482 U.S. at S.Ct. at conclusively all other claims are J., ; (Clark, dissenting) v. Ma United States equally here What is at issue frivolous. F.Supp. 881, chibroda, N.D.Ohio, 1959, granting propriety *9 1972, Harris, claims, 4 460 on Walters v. Cir. the 885. the likelihood of success 988, 993, denied, merits. v. United F.2d cert. Wren 784 Bryant’s petition sure, the to with affidavits from in Machibroda Govern-
To be
response
attorneys,
рerhaps
the
to
two
from an-
ment filed a memorandum
attaching
putative
motion,
an
other
witness.
I concede that
affida-
the
§
might
Attorney-
be undesirable
U.S.
this course
as
vit which the assistant
making
economy
resources,
I
the
deal em- matter of
and do
accused of
every
promises
suggest
phatically
not mean
that
or coer-
denied
§
only by
meeting
supported
petition-
cion,
that the
at motion
the
but did admit
allegedly
had er’s own sworn affidavit merits a full
which the deal was
Quite
meeting
hearing.
apart
evidentiary
admission of
the
occurred.
might
the serious
such
rule would
be taken
sufficient corrobora-
burdens
as
already
peti-
impose
on
overburdened
tion of some of
details
the
district
the
justify
hearing
courts,
clearly permits
the
tioner’s affidavit to
statute itself
explore
Here,
disposition
on
of some 2255 motions with-
controverted facts.
§
hearing.
an
hand,
evidentiary
the other
response Bryan’s petition.
no out
Yet I re-
the Government filed
statute,
main convinced that under the
responds or
the Government
may
There
well be
in which
cases
not,
entitled,
utterly
allega-
nature of the
frivolous
purpose
deciding
hearing
whether a
justifies
on
tions
silence
of the
weight
required,
to have some
accord-
Government.
Raines v. United
See
ed his own affidavit.
1970,
526,
423 F.2d
Cir.
might
efficiency
also,
Office
in some
Court
cases, justify
respond
a failure to
to ev-
distinguishing
suggested some
factors to
ery
prisoner.
motion
by
filed
I can-
identifying
used
those situations
however,
not,
understand a rule that al-
hearing
granted
in which a
should
on
lows the Government to decide
its si-
strength
рetitioner’s
of a
affidavit
lence which
2255 motions are entitled
§
explicitly
First,
Court
alone.
re
hearing;
to an evidentiary
de-
is a
ferred
several occasions
de
places
cision the statute
in the
hands
specific
peti
tailed and
nature of the
important,
district
More
courts.
allegations.
though
Moreover,
tioner’s
can think of no other context in which
rejected
the Court
the Government’s at
party
the silence of one
in the
face
tempt
“improbable
rely
detailed,
allegations
specific
oppo-
quality
claim,
unbelievable”
of the
it did
against
nent
party
is construed
mak-
suggest
hearing might
that a full
not be
allegations,
and can think of no required in
“palpably
a case
incredi
reason to do so in 2255 cases.
§
allegations
prisoner.
ble”
368 U.S.
controverting
In Machibroda a
affida-
at