The opinion of the court was delivered by: SIRICA
On June 27, 1975, after conviction by a jury for four violations of D.C. and federal gambling laws, this Court sentenced John T. Myles to a total term of 16 months to 4 years, and fined him $5,000. Under 28 U.S.C. § 2255 (1970), he has put forward three grounds for relief, none of which has been raised before. On the first two, he requests only a reduction of his sentence. On the last ground, he requests a new trial.
The first two grounds for relief arise from Myles's withdrawal of his guilty plea.
The petitioner was originally indicted in October of 1972 on the four counts for which he was eventually convicted. Those charges were:
(1) Operating an illegal gambling business, in violation of 18 U.S.C. § 1955 (1970), for which the maximum penalty was five years imprisonment and a $20,000 fine;
(2) Operating a lottery, in violation of D.C. Code § 22-1501 (1973), for which the maximum penalty was three years imprisonment and a $1,000 fine;
(3) Possessing lottery tickets, in violation of D.C. Code § 22-1502 (1973), for which the maximum penalty was one year imprisonment and a $1,000 fine;
(4) Maintaining gambling premises, in violation of D.C. Code § 22-1505 (1973), for which, in Myles's case, the maximum penalty was one year imprisonment and a $1,000 fine.
In March of 1973, after entering into an agreement with the government, Myles pleaded guilty to the second count of the indictment. But the government thereafter submitted a memorandum to the sentencing judge, at that time Judge Pratt, in which it urged the Court to impose both a prison term and a fine. Claiming that this action violated the plea agreement, the defendant at the time of sentencing asked that his plea be withdrawn. Judge Pratt refused and sentenced Myles to a prison term of 8 to 24 months and fined him $1,000. At the government's request, Judge Pratt then dismissed the other three counts.
Myles appealed the Judge's refusal to allow him to withdraw his guilty plea. The government did not directly oppose the appeal, but instead asked that the case be remanded to find out exactly what the terms of the plea bargain were. This the Court of Appeals did.
After holding a hearing, Judge Pratt concluded that, though there was no express agreement, the defendant had believed that the government would not make any recommendation on punishment. He then vacated the sentence imposed, allowed Myles to withdraw his guilty plea, and recused himself. The case was reassigned to this Court.
In May of 1975, the government brought Myles to trial on all four counts of the original indictment. After a jury found him guilty of all charges, this ...