withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended, but -- and the rule goes on -- to correct manifest injustice the Court, after sentence, may set aside the judgment of conviction and permit the defendant to withdraw his plea.
In this instance the defendant expressly does not maintain that he was innocent. He does not deny that he committed the crimes to which he pleaded guilty. In fact, when he took the witness stand on cross-examination he admitted the details. He was arrested in flagrante delicto and a crowbar was seized from his person. In Watts v. United States, 107 U.S.App.D.C. 367, 371, 278 F.2d 247, 251, the Court of Appeals stated:
'A claim of 'manifest injustice' is utterly incompatible with appellant's recently repeated admission of the crimes charged.'
Obviously, there can be no manifest injustice justifying a withdrawal of a plea of guilty if there is no claim of innocence and, in fact, if the defendant does not deny his guilt. There are numerous cases to the same effect, particularly in the Second Circuit.
Consequently, on this basis and this basis alone the Court is warranted in denying the motion if considered as made under Rule 32(d) and that will be the disposition of this aspect of this case.
There remains the rights that the defendant may have under 28 U.S.C. § 2255. Conceivably even if the defendant does not deny his guilt, yet if he was tricked into pleading guilty, he may be entitled to some consideration, although it seems rather artificial to permit a defendant to say, 'Yes, I am guilty, but, nevertheless, I want to be put back in a position of requiring the Government to prove my guilt.' One might say without intending to be facetious, that such an attitude would resemble a chapter out of 'Alice in Wonderland', or an act out of one of Gilbert and Sullivan's operas. The Court, must nevertheless give serious consideration to the matter.
The defendant claims that he cooperated with the police and pleaded guilty because the police officers promised him that if he did so, they would see to it that he would get a short sentence, not more than two or three years. Whether such a promise was made, was an issue of fact that was tried at this hearing. The defendant testified at length to the effect that such a promise was made. He named three police officers who at different times participated in discussing the matter with him. Each of the police officers was then called by the Government and denied that any such promise was made. The principal officer whom the defendant named as having made the promise was Inspector Causey, who at that time was captain in command of the precinct to which the defendant was brought upon his arrest. The Court had an opportunity to hear and observe the witnesses. The Court believes the police officers. They impressed the Court as conscientious and as men of probity. On the other hand, the defendant impressed the Court as being reckless with the truth and not worthy of belief. Moreover, his previous career and criminal record would not justify and trier of a disputed issue of fact to make a finding on the basis of his testimony alone when it is disputed by persons who impress the Court as telling the truth. It appears that this defendant has had a career as a pickpocket, a thief, a burglar and a housebreaker, and has been in and out of prison for a great many years. It is quite obvious that he has no regard for the truth.
The probabilities strongly support the version of the police. As is well known, in this Court the United States Attorney makes no recommendations or suggestions as to sentence. In fact, Government counsel is not heard on the issue of sentence at the time sentence is imposed. Consequently, the experienced police officers well knew that they could not in any way, directly or indirectly, carry out any such promise, and therefore it is not likely that they would make it. The situation might be different in some jurisdictions where it is customary for the prosecuting attorney to make a recommendation as to sentence and where the prosecuting attorney at times discusses with the defendant or his counsel what sentence he would recommend under specified circumstances. One of the very purposes of our practice is to prevent such negotiations or bargains.
In view of these considerations the Court reaches the conclusion that no such promise was made to the defendant, that his plea of guilty was voluntary, that he understood, as the transcript shows, just what he was doing at the time he waived indictment and pleaded guilty.
The Court might add that this is one of those many cases in which post-conviction remedies have been misused and abused by defendants. They constitute an imposition on busy courts in that they require the courts to devote time, and a great deal of it, that could be accorded to other matters. They impose on members of the bar, who are assigned to represent defendants in these cases gratuitously -- and one of the problems with which we are confronted in this jurisdiction due to the peculiar nature of some of the cases we have, is the undue burden on members of the bar in defending indigent prisoners. Unfortunately, the Legal Aid Agency is able to absorb only a small proportion of these cases. It is to be hoped that a public defender system will eventually be established because the burden on the bar is becoming intolerable.
The books are replete with cases in other circuits in which attention has been called to the abuse of post-conviction remedies.
These remedies, such as 28 U.S.C. § 2255 and habeas corpus, were intended for the exceptional case where there might have been a miscarriage of justice, which in former years would have been rectified by Executive clemency. They are not intended as a routine review at the behest of a defendant who is dissatisfied with his sentence. The motion will be denied.