1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-4-1994

USA v. Nahodil

Precedential or Non-Precedential:

Docket 93-7519

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Recommended Citation

"USA v. Nahodil" (1994). 1994 Decisions. Paper 152.

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UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

______________________________ 

No. 93-7519 

______________________________ 

UNITED STATES OF AMERICA, 

 Appellee

vs. 

DAVID L. NAHODIL, 

 Appellant

_______________________________________________________ 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. Crim. No. 90-00306) 

_______________________________________________________ 

Submitted Under Third Circuit LAR 34.1(a) 

June 22, 1994 

Before: BECKER and HUTCHINSON, Circuit Judges, 

and JOYNER, District Judge.

*

(Filed: October 4, 1994) 

 DAVID M. BARASCH 

 United States Attorney 

 GEORGE J. ROCKTASHEL 

 Assistant United States Attorney 

 Post Office Building 

 Third & Market Streets 

 Lewisburg, PA 17837 

 Attorneys for Appellee

 DAVID L. NAHODIL 

 Frackville SCI 

 1111 Altamont Boulevard 

 

 *. The Honorable J. Curtis Joyner, United States District 

Judge for the Eastern District of Pennsylvania, sitting by 

designation. 
 Frackville, PA 17931 

 Appellant Pro Se

 __________________________________________ 

 OPINION OF THE COURT

 __________________________________________ 

BECKER, Circuit Judge. 

 David L. Nahodil, proceeding pro se, appeals from an order 

of the district court summarily denying his motion brought pursuant 

to 28 U.S.C. § 2255 to set aside his conviction of using a firearm 

during and in relation to a drug trafficking crime, 18 U.S.C. § 

924(c)(1), on the ground that his counsel was ineffective at a 

guilty plea hearing. The appeal turns on the distinction between 

the meaning of "prejudice to the government" in two contexts: (1) a 

§ 2255 motion involving a claim of ineffective assistance of counsel 

in the plea proceeding; and (2) a proceeding to withdraw a guilty 

plea in the underlying criminal case. We conclude just as in 

Vasquez v. Hillery, 474 U.S. 254, 264-65, 106 S. Ct. 617, 624 

(1986), which dealt with proceedings under 28 U.S.C. § 2254, that 

the appropriate prejudice determination under § 2255 (where 

ineffective assistance of counsel is claimed) encompasses not the 

government's facility in retrying the petitioner -- an important 

consideration in proceedings to withdraw the guilty plea -- but only 

its capacity to respond suitably to the petition. Because the 

district court applied the wrong standard, and because the record 

does not show conclusively that Nahodil is not entitled to relief, 
we will vacate the district court's order and remand for a hearing 

on the § 2255 motion. 

I. 

 In May 1991, Nahodil pled guilty to the firearms charge. 

On June 14, 1991, he moved to withdraw his guilty plea. Although 

the district court found fair and just reasons to allow Nahodil to 

withdraw his plea, it denied his motion because of its conclusion 

that the government would be prejudiced due to the intervening death 

of the government's key witness, and sentenced him to sixty months 

imprisonment. See United States v. Nahodil, 776 F. Supp. 991, 996 

(M.D. Pa. 1991). We affirmed both rulings in an unpublished 

opinion. See 972 F.2d 1334 (3d Cir.), cert. denied, 113 S. Ct. 672 

(1992). 

 Nahodil, who is currently serving a state sentence and has 

not yet begun serving his federal sentence, moved under § 2255 to 

vacate the guilty plea. The district court dismissed the § 2255 

motion without ordering a response or a hearing, and certified, 

pursuant to 28 U.S.C. § 1915(a), that any appeal would be deemed 

frivolous and not taken in good faith. Nahodil filed a timely 

notice of appeal. We have jurisdiction pursuant to 28 U.S.C. §§ 

1291 and 2253. 

 The discretion of the district court summarily to dismiss 

a motion brought under § 2255 is limited to cases where the motion, 

files, and records "`show conclusively that the movant is not 

entitled to relief.'" United States v. Day, 969 F.2d 39, 41-42 (3d 
Cir. 1992) (quoting Virgin Islands v. Forte, 865 F.2d 59, 62 (3d 

Cir. 1989)). We review the district court's decision to do so for 

abuse of discretion. See id.

 Nahodil's principal claim is that his counsel was 

ineffective for improperly advising him to enter a plea of guilty 

despite his repeated objections to doing so.1 A § 2255 motion is a 

proper and indeed the preferred vehicle for a federal prisoner to 

allege ineffective assistance of counsel. See United States v. 

Sandini, 888 F.2d 300, 311-12 (3d Cir. 1989), cert. denied, 494 U.S. 

1089, 110 S. Ct. 1831 (1990); cf. United States v. DeRewal, 10 F.3d 

100, 103-04 (3d Cir. 1993) (holding that in a § 2255 motion alleging 

ineffective assistance of counsel the petitioner need not first 

raise the issue on direct appeal and need not show "cause and 

prejudice"), cert. denied, 114 S. Ct. 1544 (1994). To show that 

ineffective assistance of counsel made his or her guilty plea 

involuntary, the movant must show that (i) his or her counsel's 

representation fell below an objective standard of reasonableness 

demanded of attorneys in criminal cases; and (ii) there is a 

reasonable probability that, but for counsel's errors, he or she 

would have proceeded to trial instead of pleading guilty. See Hill 

v. Lockhart, 474 U.S. 52, 56-59, 106 S. Ct. 366, 369-70 (1985). 

 

 

1. Nahodil raises additional claims of ineffective assistance, but because we are remanding the case to the district court, 

we express no opinion as to their merits. 
II. 

 The record substantiates Nahodil's claim that he was quite 

reluctant to plead guilty. First, he did not want to admit at the 

plea hearing that he used a gun "during and in relation to a drug 

trafficking offense." 18 U.S.C. § 924(c)(1) (emphasis supplied). 

Second, he interrupted the hearing numerous times to confer with his 

attorney. Third, Nahodil experienced great difficulty with his 

decision to plead guilty, see Nahodil, 776 F. Supp. at 992-93, 996, 

and at one point during the plea hearing he attempted to enter a 

plea of nolo contendere, which the district court rejected. 

 Nahodil's reluctance to plead guilty and his claim to 

innocence may have a substantial basis in fact. He protests that he 

retrieved the firearm, a combination rifle/shotgun stashed in a wall 

rack, as a conversation piece rather than to threaten anyone, and 

that its retrieval had no relation to the drug transaction, which 

involved acquaintances in a small rural city. Indeed, when denying 

the motion to withdraw the guilty plea, the district court observed 

that "although it appears that circumstances surrounding Nahodil's 

possession of the . . . firearm . . . would be sufficient to support 

a jury verdict against him . . ., a jury could still acquit Nahodil 

of the charge if it found his explanation credible." Nahodil, 776 

F. Supp. at 996. Nevertheless, in the order denying the § 2255 

motion, the district court stated that, "[r]egardless of the advice 

of counsel, petitioner made a knowing and voluntary plea." Order at 

2 (July 15, 1993). 
 Under the Hill v. Lockhart standard, see supra at Error! 

Bookmark not defined., the quality of the advice that Nahodil's 

counsel gave him during the plea hearing determines the 

voluntariness of his guilty plea. The record at this stage does not 

disclose what that advice was. It does impart, however, that 

Nahodil's attorney did not request a continuance despite Nahodil's 

oft repeated protestations of innocence and his considerable 

reluctance to plead guilty, and that his attorney did not ask to 

confer with him after the court rejected his plea of nolo

contendere. Thus, the brief record does not preclude a finding that 

the content of his counsel's advice fell below the range of 

competence demanded of criminal defense counsel. Accordingly, 

unless the appeal may be disposed of on the prejudice prong, see

infra, we are constrained to hold that the court abused its 

discretion by precipitously denying the § 2255 motion without first 

holding a hearing to find the relevant facts, see United States v. 

Giardino, 797 F.2d 30, 32-33 (1st Cir. 1986). 
III. 

A. 

 If the district court determines that Nahodil's attorney's 

advice fell below an objective standard of reasonableness, it must 

next determine whether that infirm advice prejudiced Nahodil. Hill, 

474 U.S. at 58-59, 106 S. Ct. at 370. Prejudice results from 

ineffective assistance of counsel at a plea hearing if there was a 

reasonable probability that, but for counsel's errors, the defendant 

would not have pled guilty but instead would have insisted on 

proceeding to trial. See Hill, 474 U.S. at 59, 106 S. Ct. at 370. 

 Nahodil's claim that "defense counsel improperly advised 

[him] to enter a plea of guilt[y] to the charges despite petitioner's repeated objections to doing so, and with clear understanding 

that [he] would not agree to admit his guilt to the charges," 

implies that he would have proceeded to trial had his attorney not 

advised him to plead guilty. As we have noted, his presently 

asserted desire to have stood trial has a plausible foundation in 

the record, meaning that we can not rule out that there was a 

reasonable probability that but for his counsel's allegedly 

constitutionally deficient advice he would have proceeded to trial. 

He has therefore alleged the requisite prejudice to himself to 

warrant a hearing on his § 2255 motion. We turn to the question of 

prejudice to the government. 
B. 

 Rule 9(a) of the Rules Governing § 2255 Proceedings 

provides: 

 Delayed Motions. A motion for relief made pursuant to 

these rules may be dismissed if it appears that the government has been prejudiced in its ability to respond to 

the motion by delay in its filing unless the movant shows 

that it is based on grounds of which he could not have had 

knowledge by the exercise of reasonable diligence before 

the circumstances prejudicial to the government occurred.

 

A § 2255 motion is the federal equivalent of a state habeas petition 

filed pursuant to 28 U.S.C. § 2254. The language of Rule 9(a) 

pertaining to prejudice to the government tracks that of Rule 9(a) 

of the Rules Governing § 2254 Proceedings. In a habeas proceeding 

under § 2254, the appropriate prejudice determination does not 

encompass the government's facility in retrying the petitioner, but 

just embraces its capacity to respond suitably to the petition. See

Vasquez v. Hillery, 474 U.S. 254, 264-65, 106 S. Ct. 617, 624 

(1986). 

 Because, as indicated, the two versions of Rule 9(a) are 

practically indistinguishable, the discussion in Vasquez regarding 

the suitable inquiry as to prejudice to the government applies to 

both federal and state habeas petitions. Cf., e.g., Reed v. Farley, 

114 S. Ct. 2291, 2299-300 (1994) (stating that "`§ 2255 was intended 

to mirror § 2254 in operative effect'" (quoting Davis v. United 

States, 417 U.S. 333, 344, 94 S. Ct. 2298, 2304 (1974))); Kaufman v. 

United States, 394 U.S. 217, 224-27, 89 S. Ct. 1068, 1073-74 (1969) 

(applying precedent under § 2254 to a § 2255 proceeding); United 
States v. Gutierrez, 839 F.2d 648, 650 (10th Cir. 1988) (same). 

Thus, prejudice to the government's ability to retry the case is not 

a consideration when ruling upon a § 2255 motion. See Heflin v. 

United States, 358 U.S. 415, 420, 79 S. Ct. 451, 454 (1959) 

(Stewart, J., concurring) ("[A]s in habeas corpus, [under § 2255] 

there is no statute of limitations, no res judicata, and . . . the 

doctrine of laches is inapplicable." (emphasis supplied)). 

 The government counters with a reference to a portion of 

the advisory committee's note to Rule 9 of the Rules Governing § 

2255 Proceedings, where it states that "[s]ubdivision (a) provides a 

flexible, equitable time limitation based on laches to prevent 

movants from withholding their claims so as to prejudice the 

government both in meeting the allegations in the motion and in any 

possible retrial." RULE 9 OF THE RULES GOVERNING § 2255 PROCEEDINGS

advisory committee's note -- 1976 adoption (emphasis supplied). 

Although advisory committee notes are due some deference, see

Schiavone v. Fortune, 477 U.S. 21, 31, 106 S. Ct. 2379, 2385 (1986), 

they cannot be allowed to contradict the express language of a Rule 

and its authorizing statute, cf. Business Guides, Inc. v. Chromatic 

Communications Enters., Inc., 498 U.S. 533, 111 S. Ct. 922, 928 

(1991) (holding that courts are to "`give the Federal Rules of Civil 

Procedure their plain meaning'" (quoting Pavelic & LeFlore v. Marvel 

Entertainment Group, 493 U.S. 120, 123, 110 S. Ct. 456, 458 

(1989))). 

 The statute provides that "[a] motion for relief may be 

made at any time." 28 U.S.C. § 2255 (emphasis supplied). Rule 9(a) 
somewhat constricts the statute's categorical language, proclaiming 

that "[a] motion made pursuant to these rules may be dismissed if it 

appears that the government has been prejudiced in its ability to 

respond to the motion by delay in its filing . . . ." RULE 9 OF THE 

RULES GOVERNING § 2255 PROCEEDINGS. But neither the rule nor the statute 

abridges a prisoner's right to file a petition because of prejudice 

to the government's case in a retrial, and we are not free to weave 

such an exception out of whole cloth, the advisory committee's note 

notwithstanding.2

 The government also asserts that § 2255 motions should be 

treated differently from § 2254 petitions with respect to the 

prejudice inquiry because (i) a § 2255 motion may be made "at any 

time," 28 U.S.C. § 2255; (ii) a § 2254 petition is a separate civil 

action whereas a § 2255 motion is a further step in the criminal 

process, see RULE 1 OF THE RULES GOVERNING § 2255 PROCEEDINGS advisory 

committee's note -- 1976 adoption; and (iii) the remedies available 

under a § 2255 motion include ordering a new trial, compare 28 

U.S.C. §§ 2241-54 (speaking in terms of the court "issuing the 

writ") with 28 U.S.C. § 2255 (authorizing the court to "discharge 

 

 

2. The tension between the advisory committee's note and the 

text of Rule 9(a) may possibly be understood by reference to the 

legislative history of Rule 9(a). Apparently the note was drafted 

and submitted to Congress along with the proposed Rule 9(a) in 1976. 

But Congress altered the proposed Rule, striking language that would 

have created a rebuttable presumption of prejudice to the government 

if five years had passed prior to the petition being brought. See

H.R. REP. No. 1471, 92d Cong., 2d Sess. 4-5 (1976), reprinted in 1976 

U.S.C.C.A.N. 2478, 2481; Gutierrez, 839 F.2d at 650. Yet the note 

apparently was not amended to reflect this evolution of the Rule's 

text. Moreover, the advisory committee's note was drafted before 

the Supreme Court's decision in Vasquez, supra. 
the prisoner[,] resentence him[,] grant a new trial[,] or correct 

the sentence"). These arguments are unavailing. 

 With respect to the argument based on the lack of a 

statute of limitations for § 2255 proceedings, the same has 

universally been held true of § 2254 petitions. See, e.g., Vasquez, 

474 U.S. at 265, 106 S. Ct. at 624; Pennsylvania ex rel. Herman v. 

Claudy, 350 U.S. 116, 123, 76 S. Ct. 223, 227 (1956); Campas v. 

Zimmerman, 876 F.2d 318, 325 (3d Cir. 1989) ("[D]elay without more 

[i]s insufficient to warrant a Rule 9(a) dismissal."); United States 

v. Cariola, 323 F.2d 180, 183 (3d Cir. 1963). Considering next the 

argument that a § 2254 petition is a separate civil proceeding 

whereas a § 2255 proceeding is a continuation of the criminal trial, 

we understand the difference to have arisen in 1948 due to the 

Judicial Conference's urging that the administration of habeas 

corpus proceedings in federal courts would be simplified if the 

proceeding could be brought in the sentencing court instead of the 

court of the district where the prisoner was confined. See Kaufman, 

394 U.S. at 221-22, 89 S. Ct. at 1071. The change "was intended 

simply to provide in the sentencing court a remedy exactly 

commensurate with that which had previously been available by habeas 

corpus." Id. at 222, 89 S. Ct. at 1071 (quoting Hill v. United 

States, 368 U.S. 424, 427, 82 S. Ct. 468, 471 (1962)) (emphasis 

supplied). Thus, this distinction in the form of the proceedings 

has no substantive repercussions. 

 Finally, as to the government's argument premised on the 

supposed distinction in remedies available in § 2254 petitions vis-
à-vis § 2255 proceedings, it may be true that, on its face, § 2255 

authorizes broader relief than § 2254. This distinction is not 

genuine, however, because federal courts may condition relief under 

§ 2254 on various grounds, including on the state affording the 

prisoner a new trial. See, e.g., Barry v. Brower, 864 F.2d 294, 301 

(3d Cir. 1988) (conditioning issuance of the writ on the state 

appellate court reinstating the petitioner's appeal within 30 days); 

Carter v. Rafferty, 781 F.2d 993, 998 n.6 (3d Cir. 1986) (noting the 

"customary approach [of] issuing a writ only after a 60 or 90 day 

period for the State to commence new trial proceedings"), overruled 

on other grounds by Hilton v. Braunskill, 481 U.S. 770, 107 S. Ct. 

2113 (1987). Thus, none of the government's contentions points to a 

material distinction between the two types of proceedings. 

 Of course, insofar as § 2255 proceedings are governed by 

equitable principles, a petitioner's inexcusable delay predating the 

loss of weighty evidence which causes the government prejudice in 

its ability to retry the petitioner may have a bearing on the 

prisoner's burden of proof during the proceedings, and may be 

appropriate for a district court to consider in deciding whether to 

exercise its discretion to grant a § 2255 motion. See, e.g., 

Cariola, 323 F.2d at 183 ("Although the passage of many years will 

not cure a conviction if it is void, a defendant who, knowing of his 

right to relief from a conviction, waits to apply for it until all 

witnesses have died, will have a heavy burden of proof with respect 

to the facts on which the relief must rest.").3 This is because the 

 

 

3. Cariola cited United States v. Morgan, 222 F.2d 673, 675 

(2d Cir. 1955) and Farnsworth v. United States, 232 F.2d 59, 63 
prejudice to the government's ability to retry the petitioner and 

prejudice to its ability to respond suitably to the petition will 

overlap in some cases. In this case, however, Nahodil, a pro se

litigant "who is not skilled in the arts and sciences of law," acted 

fairly promptly after his conviction to obtain collateral relief: 

he filed his § 2255 motion less than 13 months after this Court 

(..continued) 

(D.C. Cir. 1956) for that proposition. In Farnsworth, the District 

of Columbia Circuit stated: 

 If a defendant without good reason waits a long time 

before asserting his claimed right, with the consequence 

that many witnesses are dead, he might have difficulty 

maintaining his burden of proof, or a heavier burden of 

proof may be imposed upon him. See Morgan, 222 F.2d at 

675. But where the fundamental constitutional right has 

been denied, an accused should not be precluded from 

relief because he cannot satisfy a court that he had good 

cause for any delay in seeking it. "To permit a defense 

of laches to the writ would, in effect, denude it of one 

of its essential characteristics -- the power to hurdle a 

time factor." Haywood v. United States, 127 F. Supp. 485, 

488 (S.D.N.Y.). 

Id. at 63. Morgan voiced a similar opinion: 

 It may be that, if a defendant, knowing of his to obtain 

relief from . . . a [void] conviction, waited to apply for 

it until all witnesses other than the defendant have died, 

he would have a very heavy burden of proof with respect to 

the facts on which such relief must rest. However, we 

need not here so decide. 

Id. at 675. We note that Farnsworth, Morgan, and Cariola were all 

petitions for a writ of coram nobis, not § 2255 proceedings, and 

could be distinguished on that ground, since coram nobis precedent 

is not binding in § 2255 proceedings. See United States v. Morgan, 

346 U.S. 502, 74 S. Ct. 247 (1954). However, insofar as all these 

cases were addressing the question of laches in collateral relief 

proceedings, they would seem to be quite persuasive in § 2255 

proceedings. 
affirmed his sentence.4 If the district court were to find this 

delay not to be undue, prejudice to the government in the § 2255 

proceeding would be irrelevant to the merits of his § 2255 motion. 

 In any event, collateral relief would not be barred in 

this case even assuming Nahodil's delay in filing his § 2255 motion 

were undue and the government's prejudice in retrying Nahodil were a 

relevant consideration in a § 2255 proceeding, since the 

government's alleged prejudice in retrying Nahodil is not causally

related to that delay, the government's key witness having died 

before completion of the primary proceedings. See RULE 9(A) OF THE 

RULES GOVERNING § 2255 PROCEEDINGS (providing that delay causing prejudice 

may not be a cause for dismissal of a § 2255 motion if the movant 

 

 

4. Nahodil is a blameless petitioner (in terms of dilatory 

conduct as described in the text), and thus we need not elaborate 

here on the contours of the law in a case where the petitioner is 

blameworthy. Presumably, once the government has made a showing of 

prejudice attributable to petitioner's delay, "`the burden shifts to 

the petitioner to show either that the state actually is not prejudiced or that petitioner's delay is "based on grounds which he could 

not have had knowledge by the exercise of reasonable diligence 

before the circumstances prejudicial to the state occurred."'" 

Gutierrez, 839 F.2d at 652 (quoting McDonnell v. Estelle, 666 F.2d 

246, 251 (5th Cir. 1982)). Perhaps if the petitioner fails to meet 

that burden, his or her uncorroborated testimony would rarely be 

enough to warrant setting aside a conviction: since his or her 

unreasonable conduct has resulted in the unavailability of witnesses, the destruction of documents, or other prejudice to the government, he or she cannot in equity benefit therefrom. Alternatively 

or additionally, the court could apply a clear and convincing 

standard of proof to the petitioner to make up for the petitioner's 

undue delay. Cf. Klein v. United States, 880 F.2d 250, 254 (10th 

Cir. 1989) (holding that laches barred the petitioner from coram 

nobis relief because the petitioner had not exercised due diligence: 

the petitioner had known of the grounds for relief for over seven 

years, and during that time two government witnesses had died). 

However, we decline to decide these questions here and leave them 

for another day. 
shows the motion "is based on grounds of which he could not have had 

knowledge by the exercise of reasonable diligence before the 

circumstances prejudicial to the government occurred" (emphasis 

supplied)); Campas, 876 F.2d at 325 ("[T]he State in making its 

particularized showing of prejudice must relate its prejudice to the 

petitioner's delay and prove that the delay in filing was the cause 

of the State's prejudice."); Gutierrez, 839 F.2d at 652 (holding 

that a petitioner's delay is inexcusable only if "`based on grounds 

which he could not have had knowledge by the exercise of reasonable 

diligence before the circumstances prejudicial to the state 

occurred'" (quoting McDonnell v. Estelle, 666 F.2d 246, 251 (5th 

Cir. 1982))); see also, e.g., Oliver v. United States, 961 F.2d 

1339, 1342 (7th Cir. 1992) (holding that laches applies to a § 2255 

proceeding if the delay was "inexcusable as well as prejudicial to 

the government"); Gutierrez, 839 F.2d at 650, 652 (stating that 

laches applies only if the government makes a particularized showing 

of prejudice and the petitioner's delay was inexcusable). 

Consequently, Nahodil would not face a heightened burden of proof 

upon remand even had he been dilatory. 
C. 

 We acknowledge that prejudice to the government's ability 

to retry the case is a factor which a district court considers when 

deciding a motion to withdraw the guilty plea. See United States v. 

Huff, 873 F.2d 709, 712 (3d Cir. 1989). However, prejudice to the 

government's ability to bring a case to trial is not dispositive of 

a motion to withdraw the guilty plea if the original acceptance of 

the plea was improper or improvident. See United States v. De 

Cavalcante, 449 F.2d 139, 141 (3d Cir. 1971) (stating that a guilty 

plea may be withdrawn for any reason that "seems fair and just"), 

cert. denied, 404 U.S. 1039, 92 S. Ct. 715 (1972). At a minimum, "a 

motion to withdraw should be granted if the plea was not made 

voluntarily and intelligently." 8A JAMES WM. MOORE ET AL., MOORE'S FEDERAL 

PRACTICE ¶ 32.09[1], at 32-89 (1994); cf. United States v. Barker, 514 

F.2d 208, 221 (D.C. Cir.) (holding that a court should "almost 

always" allow the withdrawal of pleas which were entered unconstitutionally or contrary to the provisions of Federal Rule of Criminal 

Procedure 11), cert. denied, 421 U.S. 1013, 95 S. Ct. 2420 (1975); 

see also Hawthorne, 502 F.2d at 186-87. 

 Nahodil's instant motion is a § 2255 motion rather than a 

motion to withdraw his guilty plea. Section 2255 is a proper medium 

for raising challenges to the voluntariness of a guilty plea after 

the judgment of sentence has been imposed. See, e.g., United States 

v. Hawthorne, 502 F.2d 1183, 1186-87 (3d Cir. 1974). At that 

juncture, the substantive standards are those applicable to the 

claims raised in the § 2255 motion (ineffective assistance of 
counsel in this case) rather than those which governed the claims 

raised at the principal proceedings (a motion to withdraw the plea 

in this case). See FED. R. CRIM. P. 32(d); United States v. 

Cannistraro, 734 F. Supp. 1110, 1119-20 (D.N.J.), aff'd without 

opinion, 919 F.2d 133 and 137 (3d Cir. 1990), cert. denied, 500 U.S. 

916, 111 S. Ct. 2011 (1991).5

 For the reasons we have articulated supra Part III.B, 

Vasquez expounds the germane inquiry in § 2255 motions as well as in 

§ 2254 proceedings. Vasquez directs courts to evaluate a different, 

narrower conception of prejudice to the government than in context 

of a motion to withdraw a plea: the court must examine simply 

whether the government can effectively frame an answer to the 

charges contained in the § 2255 motion. See RULE 9(A) OF THE RULES 

GOVERNING § 2255 PROCEEDINGS (permitting the government to move for 

dismissal if "it appears that the government has been prejudiced in 

its ability to respond to the motion by delay in its filing" 

(emphasis supplied)); Hannon v. Maschner, 845 F.2d 1553, 1556 (10th 

Cir. 1988) (holding that under Rule 9(a) of the Rules Governing § 

2254 Proceedings, prejudice refers to prejudice in responding to the 

petition, not to prejudice in retrying the defendant). Because, in 

the case sub judice, the government can respond to the claim of 

ineffective assistance of counsel despite the death of its key 

 

 

5. We note that in the motion to withdraw the guilty plea, 

Nahodil did not raise the issues of the voluntariness of the plea 

and the violation of his right to effective assistance of counsel. 

Nahodil based his motion to withdraw the plea on the "fair and just" 

reasons that he was extremely reluctant to plead guilty and that he 

had proclaimed his innocence throughout. 
witness, it cannot oppose Nahodil's § 2255 motion by reference to 

prejudice on that ground. See id.6

 For the foregoing reasons, the order of the district court 

summarily dismissing Nahodil's petition must be vacated and the case 

remanded for further proceedings. If the district court should 

find, after the § 2255 hearing, that Nahodil's plea was involuntary 

because it resulted from ineffective assistance of counsel, it 

should vacate the plea despite the finding it made during the motion 

to withdraw the guilty plea proceeding that the government would be 

prejudiced in its ability to proceed to trial. See Strader v. 

Garrison, 611 F.2d 61, 65 (4th Cir. 1979) ("When the misadvice of 

the lawyer is so gross as to amount to a denial of the 

constitutional right to the effective assistance of counsel, leading 

the defendant to enter an improvident plea, striking the sentence 

and permitting a withdrawal of the plea seems only a necessary 

consequence of the deprivation of the right to counsel."); cf.

United States v. Hernandez-Lebron, 23 F.3d 600, 607 (1st Cir. 1994) 

(advising the defendant to attempt to withdraw his guilty plea by 

raising an ineffective assistance of counsel claim in a § 2255 

proceeding); United States v. Willis, 804 F.2d 961, 964 (6th Cir. 

1986) (same). 

 

 

6. Incidentally, Nahodil claims, and the government does not 

dispute, that another percipient witness besides the deceased one 

was present in Nahodil's house at the time of the drug transaction. 

Br. of Appellant at 2-4; see also Br. of Appellant at 35-36, No. 92-

5002 (3d Cir. Mar. 2, 1992). 
IV. 

 In sum, this case is not one about which we can say that 

the motion, files, and record show conclusively that the movant is 

not entitled to relief, and hence we find that the district court 

abused its discretion by summarily dismissing Nahodil's § 2255 

motion. We will therefore vacate the July 15, 1993 district court 

order and remand the case to the district court for proceedings 

consistent with this opinion. Because of the complex issues 

presented, the district court should consider appointing counsel to 

represent Nahodil.