This appeal concerns motions filed by appellant under Title 28 U.S.C. § 2255, to vacate two sentences totaling thirty years of imprisonment. The motions were denied without hearing by the United States District Judge who had administered the sentences.
Petitioner alleges that his pleas of guilty to the two indictments for bank robbery were induced by a promise of a sentence of no more than ten years for three such offenses. He claims the promise was made by a Mississippi sheriff — now deceased — in the presence of and with the acquiescence of several federal officers.
Although his original pleading was in fairly general terms, on answers to interrogatories filed by the government, his allegations concerning the claims referred to are now specific as to time, place, language and people present. Cf. Olive v. United States, 327 F.2d 646 (C. A. 6, 1964).
In turn, the government has filed affidavits from the federal officers who were concerned with the case which squarely deny the promise alleged by appellant.
Without noticing the matter for hearing or taking any testimony, the United States District Judge denied the motions. To do so it appears to us that he must have taken the government affidavits into account.
Section 2255 provides in part as follows:
It is clear, of course, that a plea of guilty induced by a promise of lenient treatment is an involuntary plea and hence void. Shelton v. United States, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958), reversing, 5 Cir., 246 F.2d 571.
Under the holding of the United States Supreme Court in Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), the affidavits filed by the United States cannot be regarded as conclusive. As was stated in Machibroda:
A review of this record leaves us unable to say that "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief."
Machibroda recognized that there "will always be marginal cases," and certainly this one is "near the line." Machibroda v. United States, supra at 496, 82 S.Ct. at 514.
The factors suggesting voluntariness of the instant pleas, cited by the government and by the District Judge, are highly persuasive. And it may well be that the hearing on remand will produce no more facts than are already before the District Judge by way of affidavit. But he will have heard witnesses testify and petitioner will have had a chance to produce substantiation for his story if he has any.
We cannot, in this case, read the colloquy at sentencing as providing a definite rebuttal to petitioner's present claims of inducement. And the specificity of the petitioner's claims as set forth in the interrogatories serves to distinguish this case from Olive v. United States, supra.
By reversing this case we do not intend automatically to provide petitioner with a trip to Memphis. As was noted in Machibroda v. United States, supra:
O'SULLIVAN, Circuit Judge (concurring).
While I join in remanding this case for a hearing on the motion to vacate sentence, I wish to make it plain that our decision here will, in my view, be of little precedential value to this or any other court. I consider that we remand on the special factual allegations of this case only because we are unable to say with confidence on which side of the line