# Machibroda v. United States/Dissent Clark

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Clark
United States Supreme Court
368 U.S. 487
Machibroda v. United States
Argued: Dec. 5, 1961. --- Decided: Feb 19, 1962
Mr. Justice CLARK, with whom Mr. Justice FRANKFURTER and Mr. Justice HARLAN join, dissenting.
The Court awards petitioner, a bank robber serving sentences in Alcatraz, a hearing on a § 2255 petition which it admits is 'not far from the line' marking those applications the trial judge may ordinarily deny. If this be true, the doubt should be resolved in support of the decision below, not in the destruction of it. The experienced trial judge, who had been with this case from the very beginning, found the files and records conclusively show to be false petitioner's contention that his pleas of guilty were induced by promises of leniency. Accordingly, petitioner's application under § 2255 was dismissed without a hearing in exact compliance with that section. The Court of Appeals affirmed this dismissal. This Court now rejects the inferences drawn from the files and records by the courts below and substitutes its own finding that these materials do not conclusively belie petitioner's story and that it is necessary to go outside the files and records to discover the truth of the matter. With this conclusion I cannot agree. It represents not only a failure to give due deference to the inferences drawn by the two lower courts but an unwarranted restriction of the summary disposition provision of § 2255. The opinion is an invitation to prisoners, always seeking a sojourn from their keepers, to swear to 'Munchausen' tales when self-interest readily leads to self-deception in § 2255 applications. Once the opinion goes the rounds of our prisons, we will likely be plagued with a rash of such spurious applications.
The record shows that petitioner, who had previously been convicted of armed robbery, participated in four bank robberies in Ohio, which at the point of a sawed-off shotgun netted over $169,000. After the last of these robberies, the Waterville State Savings Bank, he escaped to Canada. He was arrested there and upon waiver of extradition was returned to Ohio. An information was filed charging petitioner and one Breaton with the robbery of the Waterville Bank. Both signed in open court waivers of indictment on the charges. A week later another information was filed against the petitioner alone charging him with the robbery of the First National Bank of Forest. Petitioner, who was accompanied by counsel throughout, again filed a waiver of indictment, and at this time he pleaded guilty to both informations. The trial judge called for a presentence report, and petitioner was returned to jail.
In the interim between pleading and sentencing, petitioner pursuant to a subpoena testified on behalf of the defense at the trial of his codefendant Breaton. He admitted that he had committed the Waterville robbery but denied that Breaton was in anywise connected with it. He claimed that another person, presently unknown to him, whom he had picked up in a bar in Canada was his accomplice. He testified that they had driven together from Canada to Waterville, but he insisted that he not only did not know his accomplice's name but could not describe him. State witnesses testified that petitioner had stated in their presence that Breaton was the accomplice. The jury disbelieved petitioner and found Breaton guilty. Shortly thereafter petitioner appeared for sentencing before the same judge who had presided over Breaton's trial and was given a total of 40 years, 25 in the Waterville and 15 in the Forest robbery.
Three years later petitioner filed this application before the same trial judge claiming that an Assistant United States Attorney, with full authority of his superior and with the implied consent of the judge, promised him a total sentence of 20 years, rather than the 40 which he had received, in return for a waiver of indictment in the second case and a plea of guilty in each case. He alleged that the Assistant had contacted him in the local jail twice before sentencing and once immediately afterwards. The latter occasion was to reassure him that the sentence would be reduced to 20 years within 60 days. The Government contested these allegations and filed a detailed affidavit by the Assistant specifically denying each of the charges.
An examination of the files and records in this case reveals that petitioner clearly outspoke himself. If a deal had been made, it borders on the incredible that petitioner would sit quietly in prison for over two and onehalf years after the prosecutor had reneged on his promise. To my mind it is preposterous to think that the prosecutor would make the trade alleged when before any promises were allegedly made not only had petitioner waived indictment on the Waterville robbery, which was the more serious of the two charges, but his attorney in his presence had mentioned to the judge in open court the 'possibility of another information being filed' and had indicated a clear intention to waive indictment on 'both informations' and to plead guilty to at least one. Moreover, experienced criminals such as petitioner know that judges, not prosecutors, control sentences. Petitioner says the Assistant had the 'implied' consent of the judge. Certainly this would have not been sufficient for one so experienced as petitioner. The pledge he alleges the Assistant exacted as to silence with reference to his attorney did not include the judge. Despite this and even though he appeared before the judge on three occasions subsequent to the alleged 'deal,' he never mentioned the same nor asked for any conference with the judge in camera. Finally, it is inconceivable that credence could be given to a story of an agreement of leniency told by a hardened criminal who before the alleged agreement was performed had testified against the Government and favorable to a codefendant. Prosecutors make deals, if at all, for testimony to support their prosecutions, not to destroy them.
In addition to being unbelievable in light of the files and records, petitioner's claim is inconsistent therewith. To explain his tardiness in seeking formal relief, petitioner alleges several previous informal attempts by letter to prod the Government into fulfilling its obligations. Yet the protest letters supposedly sent to the trial judge were not received by him and were not in the files where under departmental routine they would have been deposited had they been received. But petitioner's file is not barren of letters for it contains one written by petitioner to the trial judge several months after the Assistant United States Attorney had failed to perform the purported bargain. This letter, however, did not even remotely suggest an agreement but merely sought a reduction of sentence based upon repentance. Then, of course, there is petitioner's own admission at the time his guilty pleas were entered that such action was voluntarily taken.
For the Court to say that an application so inconsistent and incredible cannot be dispatched without a hearing leaves the summary dismissal exception of § 2255 meaningless. As pointed out by the Government, to require a hearing in this case means 'that the number of hearings held on motions under Section 2255 would be limited only by the imagination and ingenuity of the prisoners involved.' An ingenious prisoner can deliberately bait his application with claims beyond independent proof or disproof and then demand that he be brought to court to tell the story known only to him, no matter how inconsistent and incredible it may be in light of the files and records. The Court 'supposes' that in the present case 'many of the material allegations can either be corroborated or disproved by the visitors' records of the county jail where the petitioner was confined, the mail records of the penitentiary to which he was sent, and such other sources.' If such independent proof is available, which I doubt, then these avenues should be explored before permitting the petitioner to make a trip into town. Why not ask for a response in this regard, as we often do, before ordering a hearing with the attendant expense and hazards. The Court implies that a full hearing may not be required in a given case if the allegations are sufficiently 'vague, conclusory, or palpably incredible.' Although I would not require any hearing under the circumstances of this case, I submit that if upon remand it develops that no letters were mailed and that the Assistant United States Attorney did not visit the jail as claimed, then even the rationale of the Court's opinion would not require that petitioner be summoned to tell his story in court.
Alcatraz is a maximum security institution housing dangerous incorrigibles, and petitioner wants a change of scenery. The Court has left the door ajar for a trip from California to Ohio along with the accompanying hazards. I would deny it.

## Notes

* ↑ I concur in Part I of the Court's opinion.
* ↑ Section 2255 cases have been steadily on the increase. The fiscal year 1961 saw a new high of 560 applications filed under this section, an increase of 15% over the previous year. The frivolous nature of these applications is indicated by the fact that less than 3% were granted by the District Courts.
* ↑ For a case in which this factor alone was considered sufficient to summarily deny an application, see United States v. Lowe, 173 F.2d 346 (C.A.2d Cir. 1949).
* ↑ In evaluating the inferences to be drawn from the files and records some weight must be accorded the personal recollection of the trial judge. E.g., Dario Sanchez v. United States, 256 F.2d 73 (C.A.1st Cir. 1958). Judge Kloeb observed petitioner at the time he entered his pleas of guilt and again when he was sentenced. He had also listened to petitioner's blatant lies at the trial of his codefendant.
* ↑ Although prisons keep records of letters which actually go out, no record is made of every letter dropped in the mailbox. Jails likewise keep some records of visitors but do not necessarily record which prisoners are interviewed by police investigators and prosecutors, who are there regularly.
* ↑ It could be argued that the visitor and mailing records are part of the 'files and records of the case' within the meaning of § 2255 and that therefore such records could be examined by the trial judge in determining whether a hearing is necessary.
* ↑ 28 U.S.C. § 2255, 28 U.S.C.A. § 2255 provides in part that: 'A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.'
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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