Appeal from an order of the United States District Court for the Southern District of New York, Richard Owen, Judge, denying second petition pursuant to 28 U.S.C. § 2255 to vacate plea of guilty.
Friendly, Mansfield and Kearse, Circuit Judges.
Petitioner Willard Williams appeals from an order of the United States District Court for the Southern District of New York, Richard Owen, Judge, denying his second petition pursuant to 28 U.S.C. § 2255 (1976) to vacate his plea of guilty to a charge of organizing a continuing criminal enterprise, in violation of 21 U.S.C. § 848 (1976). Williams was sentenced to, inter alia, a term of life imprisonment without possibility of parole. The current petition contended that Williams's plea of guilty was involuntary because he was not informed by the court, and was otherwise unaware, that a plea of guilty to a charge under § 848 would expose him to a sentence of life imprisonment without possibility of parole. The district court denied the petition on the grounds that the court was not required to inform Williams of the parole consequences of his plea, that on Williams's first § 2255 petition his plea of guilty had been found to be voluntary, and that the court had the discretion to deny summarily a § 2255 petition that presented the same ground as an earlier petition. We affirm on the ground that the denial of the present petition was within the district court's discretion as defined in Sanders v. United States, 373 U.S. 1, 15-19, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963). The current petition raises the same legal ground as the prior petition, and the ends of justice do not require that the present petition be entertained.
In June 1981, Williams was indicted on 25 counts of violations of the narcotics laws. Sixteen other persons were indicted with him on various counts. Count 2 of the indictment charged Williams with organizing a continuing criminal enterprise, in violation of 21 U.S.C. § 848. On February 17, 1982, the day after trial began, Williams sought to plead guilty to the § 848 count, with the understanding that the remaining counts would be dismissed at the time of sentence and that he could preserve his right to appeal certain pretrial rulings on motions to suppress. Prior to accepting Williams's plea, the district court conducted an allocution and informed Williams that a plea of guilty to a charge under § 848 would expose him to a maximum term of life imprisonment, plus a fine of up to $100,000 and the forfeiture of any profits or property generated by the activities of the criminal enterprise. Williams stated that he understood and that no one had told him what sentence he would receive if he pleaded guilty. After completing its questioning of Williams, the court accepted his conditional plea of guilty to a violation of § 848. On May 7, 1982, Williams was sentenced under § 848 to, inter alia, a term of life imprisonment.*fn1 Any person sentenced for a violation of § 848 is, under the terms of that section, ineligible for parole. 21 U.S.C. § 848(c).
On May 10, 1982, Williams applied to the district court for a reduction of his sentence on the ground that the sentence was unduly severe. The motion was denied.
A. The First § 2255 Petition
On August 16, 1982, Williams petitioned the district court pursuant to 28 U.S.C. § 2255 to vacate his plea of guilty on the ground that it was involuntary. Williams contended that he had been led to believe, by virtue of conversations of his counsel with the prosecutor and the court, that if he pleaded guilty, the court would not impose the maximum possible sentence. According to both Williams and his counsel, Jay Goldberg, Esq., conversations Goldberg had with the prosecutor and the court led Williams to believe that the court would sentence him in the same manner that the court had sentenced one Frank Moten, see United States v. Moten, 564 F.2d 620 (2d Cir.), cert. denied, 434 U.S. 959, 54 L. Ed. 2d 318, 98 S. Ct. 489 (1977), who had not received the maximum possible sentence. See 564 F.2d at 623 n. 3. (Affidavit of Willard Williams, dated July 20, 1982 ("First Williams Aff."), at 1-2; Affirmation of Jay Goldberg, dated August 16, 1982 ("First Goldberg Aff."), at 2.) According to Williams and Goldberg, the prosecutor had informed Goldberg that any presentence memorandum would liken Williams to Frank "Moten, not Leroy Barnes." (First Williams Aff. at 2; First Goldberg Aff. at 2.) Leroy "Nicky" Barnes had been sentenced under § 848 to the maximum term of life imprisonment without possibility of parole. See United States v. Barnes, 604 F.2d 121, 156 (2d Cir. 1979), cert. denied, 446 U.S. 907, 64 L. Ed. 2d 260, 100 S. Ct. 1833 (1980). Williams contended that if he had believed there was any possibility that the court might impose the maximum possible sentence, he would not have pleaded guilty.
The district court rejected Williams's contention that his plea of guilty had been involuntary, pointing out that at his plea hearing Williams had stated that no one had made any representations to him as to the sentence he would receive.
Williams appealed the denial of his first § 2255 petition to this Court, contending that his plea of guilty had been involuntary, and that its acceptance thus violated Fed. R. Crim. P. 11 and the United States Constitution. We summarily affirmed the denial of Williams's petition. The Supreme Court denied certiorari. Williams v. United States, 461 U.S. 931, 103 S. Ct. 2095, 77 L. Ed. 2d 304 (1983).
B. The Present § 2255 Petition
Williams filed the present petition on April 7, 1983, asserting again that his plea of guilty had been involuntary. This petition asserted for the first time that the reason the plea was involuntary was that the court had failed to inform Williams during his Rule 11 allocution that if he was given the maximum sentence of life imprisonment, he would be statutorily ineligible for parole. Williams asserted that he did not know of this parole ineligibility and that he would never have entered a plea of guilty had he been aware that the possibility existed that he could be sentenced to prison for the rest of his life. (Affidavit of Willard Williams, dated March 31, 1983 ("Second Williams Aff."), at 2.) Goldberg, in a new affirmation, stated that he could not recall whether or not he had "advised [Williams that] a life sentence without parole was a possibility." (Affirmation of Jay Goldberg, dated March 31, 1983 ("Second Goldberg Aff."), at 1 n.*.)
The district court rejected this second petition on alternative grounds. Relying on Hunter v. Fogg, 616 F.2d 55 (2d Cir. 1980), it ruled that neither Rule 11 nor the Constitution required the court to inform Williams as to the parole ramifications of the sentences he might receive. Alternatively, the court noted that this was Williams's second petition for vacation of his sentence on the ground that his plea of guilty had been involuntary, and it ...