The issue for determination by the District Court, upon remand from the Court of Appeals,
Petitioner is now incarcerated at the United States Penitentiary, Lewisburg, Pennsylvania, serving a 2½ to 9 year sentence of imprisonment imposed under 18 U.S.C. §'4208(a) (1) by this Court February 17, 1964 upon his guilty plea.
The government promptly filed its response denying that any representations had been made to petitioner, either by the government or his court appointed counsel, that his guilty plea would result in a suspended sentence. Attached to the government’s response were affidavits by the court appointed counsel and by each of the two Assistant United States Attorneys whо handled the case. Each affidavit flatly denied that any promise of a suspended sentence had been made to petitioner or to his court appointed counsel. The affidavits did make clear that the court appointed counsel and, through him, petitioner had been informed that, in view of his willingness to сooperate with the Federal Bureau of Narcotics by supplying information concerning his source of supply and other contacts in the illicit traffic of narcotics, the government would be willing to file a substitute information charging a violation of 26 U.S.C. § 4704(a) rather than the 21 U.S.C. § 174 violations charged in the indictment; that, whereаs under 21 U.S.C. § 174 the Court would be required to impose a mandatory minimum five year sentence, under 26 U.S.C. § 4704(a) the sentence to be imposed would be within the sole discretion оf the judge who could even impose a suspended sentence and probation if in his wisdom he saw fit to do so; but that it was not the policy of the United States Attornеy to make recommendations as to sentence and no recommendation was made or promised with respect to a suspended sentencе or any other sentence in this case.
Upon receipt of the government’s response, including the affidavits referred to above (all of which were served on petitioner’s counsel), the Court on May 13, 1966 ordered a hearing at which petitioner and the government, each represented by counsel, would bе heard on the issues raised and would be permitted to offer evidence relevant thereto.
Such a hearing was held May 23, 1966. Petitioner personally was prеsent and testified. He was represented by counsel who called a number of witnesses on petitioner’s behalf and cross-examined the government’s witnesses. Thе government called as witnesses petitioner’s court appointed counsel and the Assistant United States Attorney who, according to petitioner, promised him a suspended sentence.
The government’s witnesses testified substantially in accordance with their affidavits referred to above, each emphatically denying that petitioner had been promised a suspended sentence.
Petitioner on the other hand testified that the government offered him a “deal”: thаt in return for his promise of cooperation with the government, an Assistant United States Attorney had promised him a 2 year suspended sentence, plus 5 years prоbation. At first he declined the “deal”, according to petitioner’s testimony, but eventually he was persuaded by his relatives who in turn had been urged by his court appointed counsel to talk him into pleading guilty, which he did. Petitioner’s story was corroborated to this extent by the testimony of a number of relatives, including his mother, his sister, his step-fаther and his aunt.
The Court, thus confronted with a sharp conflict in evidence, is required to make a determination whether promises of a suspended sentencе were made to petitioner as alleged. Applying the well recognized tests for determining credibility, the Court credits the testimony of the court appointеd counsel and the Assistant United States Attorney that petitioner was not promised a suspended sentence; and, by applying the same tests, the Court rejects as unworthy of belief the testimony of petitioner and his relatives that he was promised, as part of a
In resolving the issue of credibility against petitioner, the Court has taken into account — in addition to such well recognized criteria as the demeanor of the witnesses on the stand, their interest in the outcome of the case, the inherent probability or improbability of their story, its consistency or lack of consistency and its corroboration or lack of corroborаtion with other credible evidence — the following factors which in the opinion of the Court are particularly revealing upon the issue of credibility here presented:
(1) Petitioner’s substantial prior criminal record.
/ox T. 4.-X- » . . . ... . (2) Petitioner s admission — without blinking an eyelash — at the May 23, 1966 hearing that he had lied to this Court on two prior occasions, namely, at the time of his changе of plea on January 24, 1964 and at the time he was sen-fenced on February 17, 1964.
(3) Petitioner’s statement to this Court at the time of the change of plea on Januаry 24, 1964, while represented by counsel, that no person, including no one connected with the United States Government, had given or promised anything to him to induce him to рlead guilty to violation of 26
U.S.C. § 4704(a). (4) Petitioner s repeated affirmations of his guilt: at the time of his change of plea on January 24, 1964; at the time he was sentencеd on February 17, 1964 ; in ,1S .,e eí" ° r®ceive the fact that I committed the crime”); and in his letter to his court appointed counsel of April 16, 1964 (“but I know how guilty I am”). In the teeth of such an ■ overwhelming record of admission of guilt petitioner nevertheless pompously proclaimed his innocence at the May 23, 1966 hearing.
(5) Despite the faсt that petitioner submitted to the Court innumera^e motions, petitions and letters seeking reduction of sentence, correction of sentence and vacation sentence on every imaginable ground it was not until July 30, 1965, more than a year and a half after he was sentenced, that there first emerged the claim that his guilty рlea had been induced and coerced by promises of a suspend-sentence made by his court appointed counsel and an Assistant United States Attorney. Against the entire background of this case and in particular petitioner’s loose regard for the truth’ such claim just does not ring true.
The Court finds that petitioner dеliberately lied at the May 23, 1966 hearing on every material issue and is wholly unworthy of belief on any issue, Aside from all else, such patently false testimony coming from a prisoner who is approaching the end of his minimum term of imprisonment imposed — a time when normally he might be under consideration for parole — appeаrs especially ill-advised and unfortunate. Petitioner’s performance on the witness stand before this Court on May 23, 1966 certainly brands him as a highly doubtful parole rjg]c_
CONCLUSION
Uрon the entire record, the Court concludes that petitioner’s guilty plea was no£ jnduced or coerced by any promjge 0f a SUSpended .sentence made by petitioner’s court appointed counsel or an Assistant United States Attorney, nor was any Promise made that a suspended sentence would be recommended. Petitioner’s guilty plea was freely and voluntarily entered.
The fo oi constitutes the Court’s findings of fact and conclusions of law mt to Rule 52 Fed.R.Civ.P.
Motion to vacate sentence denied.