Brigham Young University Law SchoolBYU Law Digital Commons

Utah Supreme Court Briefs

1990

Oliver Benjamin Gerrish v. State of Utah and M.Eldon Barnes : Petition for Writ of CertiorariUtah Supreme Court

Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_sc1

Part of the Law Commons

Original Brief Submitted to the Utah Supreme Court; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.unknown.unknown.

This Petition for Certiorari is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in UtahSupreme Court Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available athttp://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at hunterlawlibrary@byu.edu withquestions or feedback.

Recommended CitationPetition for Certiorari, Gerrish v. Utah, No. 900352.00 (Utah Supreme Court, 1990).https://digitalcommons.law.byu.edu/byu_sc1/3136

U 45.9

3T/V 77J£

o£/P£E/]f£ a&t/2T&F7&££7fi7F d>F c/ifiH

B&MBS; u)A/?b£/0f ^trm 6Wn=/gf&yV.

M^Y^^aenT

/)&n'no/0 Fo£ rf <&£jr JF C£F£T/£Z#£Z r& TTY^

J&sr <£/=t=ic£ /Sox ZS~&

F/LED M / « m u

J7/U T?S£

$c(PAE/HE <&c/4r&F 7X£ <ST&7F d^ c/rf?rt

7%<? 4r/?r£- dt~ £fr*>H, <rt &£ b&V

J&ST-d/=frc£ /Sex Z5~<$

77?ei£ d>F £0A>T£AJT$

/4tf& M.

7ddo/& c» tfurKOf-t tries

cDaesri'&rf$ r££$£/UTE:b + - ^ . * *• *

Prayer * * * . , . - - - ^ . ^ -

COU/-T &T /yc^<xk> ($>/)f/7setts <- -K '

Cs>*<ST'iT-tiTU2Sl<3-i ft-€>0i*/G/1$ J^Oo/j&d\ +

ft#6CJ/ff£AJT- £°dLS&rtS TOT (^rvLnrrxg y~4.e U)^r *

oert-ikA, ^hy -o- 7s(e <£mr<s. e&~CM*/*; /rf.

B/C/OT^ Sajvt^ tcktrlm! 1/roA. >jmnz

fi/.iOK, (jZxe /%/P9d).

- -1,6., Ut fSt / ? , / 1

- --2, <4p&*a/y(.

*,£*

ftoa-

s-Ju.dfC.scL/ U(&m<s uywT &ur /L\aJce.

Jty /9M. r:

Cct<5<2? dt&~ a)#4c/i &o s?s)r<2CT7£ ?& 7~£<r /featfT

&L£.£<f.2.A S36Q9M)*. . . . ^ . - - /A

jSrodj, J. 6irlr*</grar<rst JP?6/+5, 9?2, fs*; 9<P $.

dr. /?43, XS-^&c/.AJ 7V7 OWo) _ . . . / / «

las*eh McfaAZc/ ?6, ft-9? 9Y0 AZlUZ

({96*$). c • v ~ S]Z&*

CZJ. 6>, tfti) > . _ . . . / / .

dA&& L>> &*r^f. 6/TAZJ3V/, 3<?3 fc/mA. / / # ? ) , _ _

Hum? A M>es f/fat./Pte). MS<?-,£#£, vz?c/*s.ji$t

£&**.£</. Zd /Yf, /9¥ * * > * * * * . L . . i c < * <- ' ? -

/V6fc?r ^, ^£w«, 60&6S, /9/?3)/Z9Z/JcB. z</ *?oe t , t t « -< A T .

£*&-.&•/&, 'U.&/.ZJ. 4"73 &9CJL) «. * t t t . * , * • ^

k4b**9 J* SJi<r<rd£rtLrc>$, 53? StZj Z%J?, Z3S~

(far* 0>. /??&) * ± c , * * * . t < * ^ * * < %//,/?,

rffc&>#&;<? u. ida/rtctrSiJn-, 62ZEZJ6Y9 (&4.&n /9do), <2, / / .

/fader o./*t)d.lle. M/EzJ /3</4,(M&>. ffW) . . < rt-

fTfacrl&ad p. Correct' Smes, #$"<£ /\Zc/ a. r ??S~ * , * , . tf.

d>u>**L& 0< 6//ysr<?</ Qzxr<?<t 5~S~//KZd /OS'S ("Sr4t C<*. )

Ce^r. <&*. <Z3<<&cS. fY% 9?$. Cr. /&&; 3TY Z. £\/t Zc/

H?<&k t). Dor-uJ,*. #00 sO?,-*/. ?ZZ 09?i} . t . » , , - 13,

$&Lrt4o*t i), Ae/)/*. 09?f)t 3%Y/J.£tZd. tZQ Z1 £//

bee- &Z<4, 6&T// /&#, go/ 4d/* , ~ ^ *. «. « . . . /i&renmd

£***7&£e//o J. /Uct) 46nf£ Yovd.S. 2 ^ ?Z>ZCrz ?9z;

30/c£J,ZJ ¥Z? C/?^ ~ ~ . ^ ?/<£.

&O.TZ d, A^'M t#l<I>/9W\ J9S~ <4.£d /SOS-, . . , . • /3,/S7

^Tcrca- e)t l/r><reJ £TTXT<?S, S&y EZd'?$-/, 9^3, C«r£,fa

J X f. 0. ± *+ *• 0T *- «* * *+ « - > . «. * / 7 <*

7b//<?7r O. {/<?«.</&$&*, ¥// </<$.25~? (J993) ^ ^ . . . , &,

66;/rvd&TAr<*& J, £/ocb>f, (h< ?< b^T. /?%3\ 3S~Y ^ 6 ^ . /*%" z^-

UflfT&J 6mTtS>s O, b*?//}g«o, 3td &*<{ ?34 6&</*C>. /%9),

cesTt </*?* ,;3 9^ £/.<$ t 936, $%S< Cr. 23C&, ££/< £d. 2J.

/39S^ C/9&'v) „ - - - . - ~ - - ^ - * ^ - ~ , //.

t*s*r. </**>, V6 P t/t£t ?13 &fev) *. ~ -. . ^ „ ^ ~ ^ /<*>,tf.

tf/ttnrj&n.r<rs J. ^aJ^a*, 5~?0 / T Z J 90$; CfiiXch /J99\

ttrta&Jgrtttirs 0. bolerosJ^t *7//££</?¥?(/&-.&* /?%$) „ . /2* ~ -A/

•3&Y, /*-e£>*5</<3*< er^f-9/^*<A

CttftTvJ £&*?$ <)<&&/&>. V33EZJ &9Y(kr. &\ /??<£)- « , /Z*

fi/mrtrJ £rtmp$ t>+ ^ y / ; C<?*4,J7K. f97z)( VSOF.zJ/3YY,

cerrcc/svc, 93 $.Cr>ZOS, Yo9 U6. $?3, 3YS.f</.£/ /ZS~* , /Z,/J.

U>trr t7, &**ux&*.ujca/-dlt /??T, Z/Z$c£<ZdZ ?3,Z/S~'lk*&?6> <• * /S~<

ti&CCM/hmy /?U7ttC4/77£$

/tm&frca* Gas- #6$&Cf#.s%M <^*-d&/r/$ A&fctT-z/j yo 7-^s

/teetf*ja/t*#rrT- /Jd), T7Z.. * * * * * * . * ~ < - * 3,7.

Ab> JZZZL + * + ~ ~ * ^ - - - 4 ^

^^r<?=*u$<<>f~ 2 9 /?$} 4cr-?!CCdL**t~9 "t <&$<?* Sl/ok.

r&3& /iu**<te*s 2£ 2t, *2 a**/'<?S~j ££&**-&"<• <s^>^^

a*tdQO g/f&cr/y 7Z? r~/u? TZJLCTS <JrWi*& d&Tin&n., /tfctfr/toraftecr/y

Cttsd 4L$ y&x?re<If Ac^^ri/t^^h?/^ /*? (Ytlscc^t^-tiffi

T&srr&t&tty J* &&/*$&/ //art&'t tyi Mx^^c^</^ yij , 2<0 * „ * _ l(

le^sn^HC^cy <& (^aurt-'S&i mirmK CJ i£/da€txcu<if yyd 2 2^ *- ~ * . si&rccr&d

~J&$T-</*tc?7cy Jr Ccxu**&?/ J-£h?-/an U> j^/r?&cadf y& L <£S~ - ^ «. * /lore

'7<FST7#KOFly 2* /^T7770tet^/y^i 4^ *• ~ « ^ ^ * ^ *. +. « rf#TCcr-<rd

&rzcrcmt&t=!*szr <& /4?z&/2fey \£^^c^<e//^/^i; y^o* 9,2 + * * < * * & /<S-

d)^(96s££l/d/^T'?#&^ C&£/t$<S( i^MS //?<£<?<?y^zZ7-C* 4trL<3/ f*t

i^^iy/LaJTV-cod\ - ^ ^ . ^ ^ . ^ ^ , * - ^ ^ X'\ 1f (S',

6i)rteT-/-<<?f- A?rr rioted vct/iy f?/e?a. texts ^/tca^.srr>-c^rrai^c£tc

G?&cka.t&& raha^Qctt/ty Areaf g/iaaJdrnz &t-<S4JCfcs/<j? ^TTyGs.

/SlOO'itrtTZity) C2} A?T7TZ£Kcr^ C£%LS jOGC^/iiG/<D?/C#.//y £&€*>:&*/Site

/ J: / "• X

/hOf)^oJs //f 77ZXS /*2d.77<~/*.

<jp//>j/o/b> £&c£>u)

7~%e <$rfM.>r&n <^f~riCs £/r*-L docjur-r- <zH~/&y?<&a-6$ .AS A&02AT?°<f

arte/ Koue ¥3 C3y*/)r kLuPS £&~TK& ScyA^tc^ dzcesr- <z» c/rsA .

p&CK5ua*rr JU^ ^STe) $J!-s <&~ *tt?

63/J37?rzi77&/'j/fr: /ttdcJtS/a/c/s sr^ck^t U£b

Tie ftkTL

6/^ S+ <&?t$7~, /<Wt, J2T/

>7Zir<**s

u

<Q&j6*?a $£/<S>('y £LdOt !-/(.<£ dth$fX(S<?> <& f<S*ircer>eCCf> s&Zlc/<5> 7& Kr«(

£&f/(/Q<* cyci7- /*i 7&L^<~ y&&f$ + / ^ ^7ZL<fr<~ x*sc*-<J5 &.K?C&UT~ TT^^S^

^ W ^ t TK*> d * 2 ^ > ? ^ ^ « r w r } st& sttcLfn?th /feted d/>s&?*:

7£>C$4OUJ 4^ M?/s?/s#tess*t A^naarz2***L, < 5 ( R ^ r w ^ e &* € f* c,&cz+$ ?&

A-

tt~&QA<?&e<frl7~/7ss*? + Afar £s€0*<3e£<4 77U?$<s=> TTV'SttfS, j2<?2r7 77£&te¥^ icte$

~7n& /&$&<&£ /fcxAfeh?&?>0t7ip<c/ *"? -r-/?ss M-<T~ s*f<e<er r~/t^ CMLCZSC&L /

CtSCCJ/XLjgrzi/K.C&S tdtf'-cA <3Lf-<$ rff^A&SYy ^cpfrf/rr-tL&A 6c, J0OS7-—

££Wl<JtCT7<?v< f>e/s&h (Z) 6^/te/^P 7~Ke? </~<S*C*£t&/&&#??% d?*~/VU<J A*UM?

"TTZdi^fo./ uter+fec- ^otx^Tj Art /Qrrrzo*- fz?^ Zdfzr- <£* Azuv&&$ debits„

s7~<&cjt**<h TV Ti{<e C/rzih

-^/ * ^ ^y / ^ x J- si

/ / ^ V ^ / ^ ' *r $£-**-* cstjz S4£«? #SZ?C'Z^£ ITS' ,L±J-<. - „.<Ll ?fC~. -'*& ^X< yJ&~-

jP&to&te r<$# &/?/4AJT7A)S 7*£- td&rr

dUE$77C*J d<0. /

1 /. / " ' /

r fV " ygy rrtffo* a\ '.7' Ccrc~{f't$<?/' rf&fifit fitter*^ :• T~SP <•' ^^rrsTc?&e<?Y^ 7~X<1T-

/

-<:>- € ~>/K/^-V . t. ,* y ?f ' y^~~r v^-. * <rzr~fiz.£*?-y sCZfi*&< - ' *• '*-*"' —— / *- •-

£f'i*!f:tia.( ''cue) A&dzrij'Us 7<& y^oco scrtfeta; &.&c£*><?> *?£&&<- a^c,

• x * / r

- -_._- /c-... .„ _ _ " ' ' ' — — / y i/ < */

/

is

v' ' -'

c?/&large/ -Jy

J"?r7~777&PlS't:^ *'C~r-<?o'~-Z~&i2;'&m< /**z{<S*rt.Os*£es^T- S^?/17*> tdt&^tp n^^d

f'T; />?";„-^lf~; -, _ . 'dT /^/"/ c^

y

/?/y?&&'?~ ssir&s** -trios ^ x ?^>>$»:•— CZ/J/J^CL^ ^ : y / ^ > ^^~9s^±~?~~

ZTr- / 6 <?(<&&/- TT^cr <uyz+ tft-€<?- <! f-t*i&f4frtO*GS d^^xccc ~ & 'trscXi / eo-

V

d>UE$7-:S'tr 1/cP, £.

)

ti&Jttxs A:^t c<?y T^/'cr &C//&-Y /*£* jyUvcits/j/rt/2 y r

' •• - $&s?r&tcc<? 7 ^ e '"/"zn /x. /vg' ? s I.? a f.

ZTrt r'/us r/t/irrd3^ d*?+&fic6<r ( ^ w ^ s ^ '*$ C->^ *-~e<:c>*c <£J^ A^uJ^<n

a ut?3j- & r^JcC^ C/c^J a ' / / / >>° +¥*&?** ,#>• t&vL/y 7-/^&& <^r?o/^

^'/z&nrA-Z t Acrrz~rzcr-«r-* / . " •? air^&j-^ J-- -- .x / . , . / * > - - _ - . ' Si < :::2: *v , ^ i

tf&fTi^tfr •" ' .. .

£L//^/4jcsir- r?ue- /-^?/&//u?<7 ">- //fc *fe^? -'^ <**Y ^jzOSdLT JL

^ —

v' /^^^t ' - c?* rf*£> fly

' - / / / / / / ' _ /

/ <A

<p< y a . r/Ae<e yex*' ^r^r<^^<<r^ & -r/C j^Pr^nc'^kt^ /Vtzd *p ,0CF> <^x ,>i^c:*. =?=,,

,^« .y^Tu. - -,. . * . zjn^nizsiu, ' *^*~<&> - 'it/zra ^ ,,t (fCicYtZp ' a.

J'""*1 " " " " * — — — — —

y^^5V**P r/^jL^ S0C&&T&- <T r ^ <rrS ' rvH^/r* . ' ^ -^V^y^** , JT^

^ V S

i: c

$f qC&^dO i 2^^ T'/tt € ' <?*£&&, ^&T-77-ZQp ItPA CCfo « /<*</c£C&d TO /a/&2b3

VUif'FCf /6db6&</C^C^ OL. jQ^fyftteG* 77^4L7 ^ 4 • ut »^../V /*«:€*C*r C?rz/y

dl x/i/ie^ ytsr&J^ <g€?r?71<:#<C<e &*<£ CL&*dct **&<&-*/*&&set <y^ ^ r^'-^^t

t/ifO/^S ' JjJ, £*)jLef&®& s & /&&<?& c h s?%L} 7 4 o, -Sc £/} * a. y ^ '^.a * tr-f J """"" : -—7*-——— "-TT— ' i •

1 7 / / , / ' t tt / % J

*e/( j?/ ~Jb/& it?h /2&j *&/<?. * i r& < : <; ^fc& ^

jH?rt77C¥i^ A&S*&r*< t>cte>S TV-d b7"" r/c&T~ £& ccJ&ct/tf && /=$£ £: 2 ; V

04/£Y ?H£££ v&?A$, t /*r>~ "t&***p/y <r/<J<?/£/<T "rz^ 6^ >^*?& ., 7y?V> -5><rt^e

/ /

V ? 7 ; ^ * ^ /'/?^5 c ' / ^SVcc^ c > ^ w , _- *~ ^ A t A ^ \

„ „ • &X :a" '" ' ^*2.- ' • ~ * Z2£.'-$? '*'

: a /&/&& dcts& ni^ dr&tteh/t^ tft A e ^ / t w ^ c V ^ ' ^ c ^

g ;aJ<LL^ CA ^ C M , ;:?/ ^ 1 5 ^ ^ r o7 o: / ^ ^ -5 r ]

9V9 (1990)' /fCCOitf, Ay-cout^ O^ ^/r^J'^rar^e, S&XKZ* ZJZ ^ .-./« -

6/,-v, ¥&oK2d<zT ??5~. <?>a)<?*^ O. 6/<5,. 5~?S-/i=i£cl A2S3 C'Shi. £*.),

-«•'••-••••••••-—•- J , / " "J *' Q

pAagg, 316 frJJ ~- -'C "•'•' '"-. /?6 9) c ^ ^ d™. <39* tf£* 93^ ZTS, LTV

:^/<//^//rAj:±rjC,<?7~?T7r3-?ci?,i~i /^SS^^r/^/L/^KK I^J^6 ,,:cJs./<u_sfmty

A

^ V

" / / ~ J: </ / / if

•f)<o«t>\ /J.s-i , f xu+'s^s^c&r- A- r . , --"-!.- r ; ^ .-**, ^:cr' .-v*-'* £&s*>n c/e^^-.

7""T f^/V,"? Kfr? i?*V, £J. Zay /^SZ.

<1 S

\jc*e

s* / { 1 i

/ %7f.l& /&C&K? '7/fiaTt t/j/i^L TilOzC^ trebles Os*c-y-V V ^ v - ^ ^ Y ?c? .. r<- 3/**7Z*tO&f^'

' y

'/7r^£~~£PC'Cc^£~1? //.- v'irx-^"* ^ /"-£. tsLhc-tfi/.'Wy ^ -z-c CLOCK- " —/<:.'/

. ^ N ~7 7 ^ ^

$ee / ^ / f e / / / / ^ ? a . 4 O.St, 36% ,6. a.r $73, 0Z$, €r, $?& fa. £ / ^

VK? (/&2)).

^cAd.^^ -tor'- &&*%<<> <&>rLC<?>g-<5f<3*t 4/Zm. riL& jg/&s$<2CU72<&* .

G&ZS/Z6&S cute/ jUS&$c&s?ar 7 ^ * 7 ^ rr~ t,&u~ je/e<zd ow/?^ 7& &*t<?

($U&S770/i/ A/&> V.

dLC7-<£F&?L accuse*/,'sr-/$r&S7-&f!>&4'n£/*ie </

fee I &ar* a *tfh&? M* /??£} 3?$-4.JZJ /#$r+

$72cn°e?iij?s7r'&<, CLCC<Z£$<P<//rzu^r- #<? <J&/ce/?fZk/j,

See * cJ^>. e-Kc /^sC, QfiH/^n

O&hud ?S7fiA//4%ce'TL<d*<*, 9Z&Cr./#, VCYc/4* ITS*?, 30<t.£c£Zd

ZZ/£ /fikr$?/f&fi&j Tc/? <x l7a:^<i'&ficarr'&cerr<5fc /H^^>^L/€ C&6&, s*t

tfcrv^

id^rr-

^6&ms^*<&Ltz<3K C?<S2ite6S*p srsfifc?*?^ S&c&rtc^s d&^r-£> jr/C** s^ce3t</«

A

<S JCU/TJ, AfedL r*< /?$S~ Arte/ &s^ &CLb$&fitf#**7- &UC.A £&*&*?£&&*&;

" /i?£T c> c&/uriT&J?st€>&s &/*<n*?f/*ld&7s<4 &7&r<r*rt<~*;t7-s&

/laraif^ en- /Uruteck?*- s/fTztG&i/^ d/cyt&A* <&>*-n#yis TO

See I sJd£, &<) re/, //fdTr&x sJ, SCOTT; (b.c\X£ /?*?v\ S7^/\S^/>^ \&%

HprfTidfriefe ^e/T-aeYiscrrcM , scjtfSz}, u/su<, /^$r~-cc?/?>f.c /(•& coos

/Wh ou&uH v-e -+•/>?<?*«. OA/C/ T/**&<$ y&aS$ . 77f& /3rt??*?ss<p / ^ / y g c /

TWlir/z&k v<£/3g/ho/fe</ *sT cutty r#Jie& <y&xS% &*-c/&&SZJ>&</ a? / / y g /

rdLTfi-e/y 7S5S7~AS u?neme^ TX&. o2zx?m*s<sscx. t^xx.*?

$&zJ MtsTZ o>c £>*$, C4-£< /?*&\ WS.dr.&J, MftfJ.2% SZ>1*&* Z^

- i

dptf&errcK/ Sub. ST

U)rt£#£~ UfM />£T777&fJ&A @MtTYrt£rf ZA/£%6J/)7#AY *&/&

J-CQtzMsS^u &"&Aabs*& txdybcuj 5^s>t'

» W <d*rPCZ7CS<? &&S£&rCtffiC£G» &<?<&&*$&£ (^s^/ZZSsS dtdfe</ J

Jl / " * ' / {( s* < • y* /

f < « * .

/ j y

fif<$ciJr~cfr ' srftfirkscTze/c* &€&s&rz£*&cz=' <^C£^^<e./<z«-d T^ZUS yi fj&f<f m

dk/£en&u /ltd). 6.

ht&Q£&4£b>£*b 77//fT 7fr£? AZT7770(J££ t¥/96 J3&&/S SU&STXWtftiU Y

dL 3/0<&C*rt<: $&jrtT&*&e£ d>TOfiJ£.Y 7K&&E r£»A$ jt/a* T*t&rA& *az&/z/ K{ &£ £*&£&

TJj&fttY TtefiEE Y&P4& £ fc)-rAzr /* 4&c/^&^b d*&^4&h& <&* r~/& /*a0ft<s</

O^adefectJQ/&*&&& &4f&earcn<*rt OrttY77ae&£ Yiz/9/fS.^ (J) 7t£*T-j0/&G^ce7rot<

u&G ^t^ttaicez/ op> ?iQ> &fsac/ist<e c r / / s x i « t . <g^rb^^^«vrri (£) T^tcr 4**?

»*0 >.<* ^***0 '5-

ufe^xTroc^ &&&/^m-KC<? c&ccw-'*-^/*

<&*&&& /si)c6Stzc& TV tZctu) c/as&< 7-/zct~/fi? e$ Afcc<?au#x.//y wjL*s^d4f&m- Acs

<z&rtO<cc?zc9< itte/t&ir i &€>crrc%<$ CZ / &*</ (3& ut/ief^ sen***- fr&cr~o$ Jtchzu*^

flPflBAfbfX #

/$%i/i/(& (j^SyZTzcxcrc

- b s -f~J<* sex* d~^ ^ ^ ^

1^ | 3n~ w^

' ^«» I**.* %^

IN THE UTAH COURT OF APPEALS

OoOoo

Oliver Benjamin Gerrish, Jr.,

Petitioner and Appellant,

v.

M\l 41990

The State of Utah, M. Eldon Barnes, Warden, Utah State Prison,

Respondent and Appellee,

MEMORANDUM DECISION (Not for Publication)

Case No. 900188-CA

Before Judges Billings, Davidson, and Greenwood. (On Law & Motion).

PER CURIAM:

Petitioner appeals the trial court's dismissal of his petition for writ of habeas corpus. We summarily affirm the trial court's dismissal upon our own motion for summary disposition pursuant to Utah R. App. P. 10(e).

On September 25, 1985, petitioner, Oliver Benjamin Gerrish, pled guilty to aggravated sexual abuse of a child, a first degree felony and was sentenced to a minimum mandatory term of six years to life in the Utah State Prison. On appeal to the Utah Supreme Court, petitioner challenged the minimum mandatory sentencing scheme. The court affirmed the sentence as constitutional. Petitioner also filed a motion with the supreme court seeking dismissal of his conviction-sentencing. The court dismissed the motion without explanation, terming it a petition for writ of habeas corpus. In May 1989, petitioner filed a petition for writ of habeas corpus in the trial court attacking his guilty plea conviction. The court dismissed the petition as successive and procedurally barred. Petitioner appealed and the Utah Supreme Court dismissed the case for lack of prosecution.

In June 1989, petitioner filed a motion to set aside the guilty plea. The court denied the motion, stating that the record as a whole established that petitioner entered his plea knowingly, intelligently and with full understanding of the rights that he was waiving and of the potential consequences of the entry of his plea. Petitioner appealed and the case was

trial court's dismissal of the petition for writ of habeas corpus because the appeal presents no substantial question for review.

ALL CONCUR:

Qjc&L w- SU^f^J J u d i Billings, Judge

Richard C. Davidson, Judge ^^L&hfs*^

Pamela T. Greenwood, Judge

rfJo/K^/x 8.

J An 3 0 1390

IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT

IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

OLIVER BENJAMIN GERRISH, JR.,

Petitioner,

vs.

THE STATE OF UTAH, M. ELDON BARNES, Warden, Utah State Prison,

Respondent.

ORDER OF DISMISSAL

CASE NO. 890906266 HC

For the reasons set forth in respondent's Memorandum in

Support of their Motion to Dismiss,

IT IS ORDERED, that this matter be and hereby is dismissed.

Dated this So^ day of January, 1990.

MICHAEL R. MURPHY DISTRICT COURT JUDGE

GERRISH V. STATE PAGE TWO ORDER OF DISMISSAL

MAILING CERTIFICATE

I hereby certify that I mailed a true and correct copy

of the foregoing Order of Dismissal, to the following,

this Jo a y of January, 1990:

Oliver Benjamin Gerrish, Jr. Pro se P.O. Box 250 Draper, Utah 84 02 0

Dan R. Larsen Assistant Attorney General 236 State Capitol Salt Lake City, Utah 84114

fcL/'

tfflfisdbix c.

N-m/^^-r.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

IN THE THIRD JUDICIAL DISTRICT COURT

OF SALT LAKE COUNTY STATE OF UTAH

* * *

Case No. CR85-1142 CR85-1143

THE STATE OF UTAH,

Plaintiff,

vs.

OLIVER BENJAMIN GERRISH,

Defendant.

BE IT REMEMBERED that the above-entitled cause

came on regularly for hearing before the Honorable

Timothy R. Hanson, a Judge of the Third Judicial District

Court of the State of Utah, at Salt Lake City, Salt Lake

County, State of Utah on the 29th day of September, 1989,

at 9:00 a.m., and that the following proceedings were

had.

BUNNY C. NEUENSCHWANDER, CSR, RPR Page 1

sworn, please, sir.

HARLAN Y. HAMMOND

Called as a witness in behalf of the defendant, was

sworn and testified as follows:

DIRECT EXAMINATION

By Mr. Alba:

Q. Would you give us your name for the record,

please?

A. Harlan Y. Hammond.

Q. Mr. Hammond, how are you employed, sir?

A. I'm chief counsel for Financial

Administrative Services, which is a legal and accounting

firm.

Q. And Mr. Hammond, how long — are you an

attorney, sir?

A* Yes, I am.

Q. Admitted to practice in the State of Utah?

A* Yes.

Q. And how long have you been admitted to

practice in this State?

A. Since 1961.

Q. And since 1961, Mr. Hammond, have you

practiced within the State of Utah?

A. Yes, I have.

Q. Have you practiced elsewhere other than

Page 14 BUNNY C. NEUENSCHWANDER, CSR, RPR

within the State?

A, No, I haven't.

Q. And what has been the nature of your

practice, sir, if you can characterize it for the court?

A. Basically it has been some corporate work,

some domestic law, some estate planning. Last six years

I've done quite a lot of trusts, and the like.

Q. During the period of time, sir, since 1961,

have you been engaged in doing any criminal defense work,

sir?

A. No, I haven't.

Q. Now, were you the attorney, sir, who

undertook the representation of Mr. Gerrish sometime in

1985?

A. Yes.

Q. And would you relate to the court the

circumstances under which you became engaged to represent

Mr. Gerrish?

A, Yes. Mr. Gerrish lived in an apartment two

houses up from where I lived on First South. I lived at

1245 East First South at the time, and I was well

acquainted with Mr. Gerrish. I was well acquainted with

his situation. We were talking out on the parking of my

home there at the time that I learned that he was

requesting — going to be picked up for a matter, and I

Page 15 BUNNY C. NEUENSCHWANDER, CSR, RPR

Q. Had you undertaken to represent anyone

charged with the same type of crimes that were alleged

against Mr. Gerrish prior to that date in 1985 when you

appeared in front of Judge Hanson?

A. I don't believe I did.

Q. Prior to your appearance, sir, in front of

Judge Hanson on September 25th of 1985, had you had any

conversations with representatives from the county

attorneys office regarding any plea agreement to be

reached regarding this case?

k. Yes.

Q. With whom, sir, did you have these

conversations ?

A. It was a lady attorney, and I don't remember

her name.

Q. Karen Knight-Eagan? Do you recall that?

A. Very likely.

Q. How many conversations did you have with Ms.

Knight-Eagan?

A. I believe I talked with her on the telephone

prior to the plea hearing, and I believe I talked with

her just before the hearing.

Q. Right before the hearing itself here in

court?

A. Yes.

Page 20 BUNNY C. NEUENSCHWANDER, CSR, RPR

Q. Now, did you ever take an opportunity, sir,

after your conversations with Ms. Knight-Eagan, to relay

to Mr. Gerrish the substance of that agreement that had

been reached with the prosecution in this case?

A. Yes. I conveyed to him what they were

attempting to do. They asked if he had — if he would —

if he would plead guilty to one of the cases brought

before him.

Q» And he had how many cases?

A. He had two. That they would drop one case,

and as nearly as I can recollect, strive for a three year

sentence.

Q. Okay. Now, what is your specific

recollection, Mr. Hammond, about a three year sentence?

A. Well, what do you mean?

Q. You mentioned a three year sentence, sir, and

I don't understand in what context that came up.

A. Well, the law allows three types of

sentencing for this kind of matter, and one is three

years, one is six years, and one is nine years.

Q. And that was your understanding, sir, of what

the statute provided for in terms of possible sentences

in the event of a change of plea by Mr. Gerrish?

A. Yes. Yes, it was.

Q. It is your testimony today that you conveyed

Page 21 BUNNY C. NEUENSCHWANDER, CSR, RPR

that to Mr, Gerrish prior to his appearance in front of

the court for the change of plea?

A. I don't know how much I conveyed to Mr.

Gerrish. I conveyed to him what the prosecuting attorney

had told me.

Q. And I'm not sure I understand exactly what

that was, sir.

A. Well, that was that one case would be

dismissed, and that the prosecuting attorney thought that

she could get him off on a three year sentence.

Q. And what did you understand that three year

sentence to be? That Mr. Gerrish would serve three years

only?

A. Yes.

Q. Did you convey that to Mr. Gerrish?

A. I believe I did. I'm sure I did.

Q. And you were present at the time that Judge

Hanson advised Mr. Gerrish of possible sentences that

could be imposed on September 25th, 1985, were you not,

sir?

A. Yes, I was here.

Q. And do you recall the Judge telling Mr.

Gerrish that he could receive five years under one set of

circumstances, ten years under another set of

circumstances, or fifteen years under a third set of

Page 22 BUNNY C. NEUENSCHWANDER, CSR, RPR

Q. (By Mr. Alba) Mr. Hammond, at any time on

September 25th, 1985, when Mr. Gerrish entered his plea

of guilty, sir, do you recall ever advising the court of

the conversation that you had had with the probation —

excuse me, with the prosecutor's office regarding the

possible three year sentence that could be imposed on Mr.

Gerrish?

A. I don't recall. I don't think I did.

Q. Do you recall, sir, having raised that

particular issue again, the three year possible sentence,

on October 21st, 1985, at the time of Mr. Gerrish's

sentencing?

A. NO.

Q. Were you aquainted, Mr. Hammond, with any of

the alleged victims who were named in the three separate

criminal charges that were brought against Mr. Gerrish?

A. I was somewhat. I lived in their ward. I

didn't know them — well, I knew the parents, but I don't

recall the children, and I didn't recall the children at

that time.

Q. Did you ever have any conversations with the

parents during the course of your representations with

Mr. Gerrish?

A. It was just one time.

Q. And when did that occur in relation to the

Page 25

of the possible penalties that you could receive under

the statute?

A. No, sir.

Q. You heard his testimony, sir, regarding some

discussion about three years. What is your recollection,

sir, about the three years?

A. It came when we were in the jury room, Mr.

Hammond told me, "Oliver, if you plead guilty to one

count, the prosecutor has agreed to drop the other two.

The prosecute has promised me that you will receive only

a three year sentence. You will be out in three years.

The Judge knows about this, so there is no need for you

to bring it up in court. It is all set up." That's a

quote.

Q. You appeared — well, let me just put it in

perspective. Did you meet with Mr. Hammond on the 23rd,

and is that why you were filling out the affidavit in the

jury room?

A. I don't recall the date, but —

Q. Eventually you appeared in court on the 25th

in front of Judge Hanson, and entered a plea of guilty to

one count; is that correct, sir?

A* Yes, sir.

Q. Did you ever bring up with the court, sir,

what Mr. Hammond had told you about in the jury room?

A. No, sir.

Q. Was Mr. Hammond present in court, sir, when

you appeared after sentencing for the reduction of

sentence that occurred in I believe it was February of

1986?

A* It was February 16th, 1986.

Q. Who represented you in those proceedings?

A. Counsel Joe Carol Nesset-Sale.

Q. Was she counsel who had undertaken to

represent your case, sir, on appeal during that period of

time?

A. I was made to understand on the 16th that she

had been appointed to represent me, but that was the only

time I saw her.

Q. You are presently in custody, sir, at the

Utah State Prison?

A. Yes, sir.

Q. And have been in continuous custody since

when, sir?

A. Since I was arrested. I believe I was

arrested August 29th, 1985.

Q. And on any other charges other than the ones

presently before the court?

A. No, sir.

Q. There is no other holds, no other charges

Page 50 BUNNY C. NEUENSCHWANDER, CSR, RPR

Number two, counsel must if an agreement is reached,

advise the defendant of what that agreement consists of,

and advise the court of what that agreement consists of.

It is uncontroverted that the three year discussion took

place. In fact, Mr. Hammond's recollection was that he

had told that to Mr. Gerrish, that the prosecution had

made those representations regarding the three years.

And I think it's evident, and clear from the record that

when those items are presented to the defendant, and the

defendant relies on those representations, then anything

that occurs in court is not voluntary because of that.

And for that proposition, Your Honor, I have a case —

the only case that I was able to find regarding that

particular area, if I may submit a copy to the court at

this point, and I have a copy for counsel as well. This

is a Third Circuit Court of Appeals case in United States

versus Marsgliano. And in essence, the issue that was

presented in that case concerns the voluntariness of a

plea of guilty that was entered into by a defendant who

had been told, and made certain representations by his

counsel — given advice not to follow, or not to bring

that up at the time of the plea or in front of the court,

and then a different sentence was imposed. In that

particular case, the Third Circuit reversed the matter,

sent it back down. This came up on a writ of habeas

Page 72 BUNNY C. NEUENSCHWANDER, CSR, RPR

corpus, where the court below the District Court had

denied a hearing. The Third Circuit Court of Appeals

felt that there was sufficient evidence presented

concerning the voluntariness of the plea when that set of

circumstances occurs, where an individual defendant is

given certain information, he relies on that information,

and then to his detriment,the court does not follow that

particular recommendation because it never becomes part

of the record.

That is another instance, Your Honor, of the

ineffective assistance of counsel that was presented, and

demonstrated by Mr. Hammond in this particular case. A

third instance, Your Honor, deals with the waiver that

occurs. And I asked Mr. Hammond his recollection. He

was negligent, and I think that's being kind concerning

any discussion at all about a preliminary hearing. And

there are myriad cases in this particular jurisdiction,

Your Honor, that deal with the importance of a

preliminary hearing. It is not a perfunctory matter, it

is in fact a hearing that entitles a defendant to a

determination of probable cause. In this particular

case, Mr. Hammond's recollection regarding that was

simply that he had none. Mr. Gerrish's recollection

regarding that was that Mr. Hammond advised him it would

be of no import, and to waive the preliminary hearing.

Page 73 BUNNY C. NEUENSCHWANDER, CSR, RPR

tf/>/>&Ob/X h.

Utah§tateBar Office of Bar Counsel 645 South 200 East • Salt Lake City, Utah 84111-3834 Telephone: (801) 531-9110 • (WATS) 1-800-662-9054 A8A/Net: ABA 1152

October 7, 1988

Mr. Oliver B. Gerrish P.O. Box 250 Draper, Utah 84020

RE: Complaint against Harlan Y. Hammond

Dear Mr. Gerrish:

... Per the request of your letter of September 20, 1988, and our recent telephone conversation, I am providing to you the two ethical rules which the Screening Panel of the Ethics and Discipline Committee of the Utah State Bar found that Mr. Hammond had violated. The Panel found that Mr. Hammond violated Canon 6, DR6-10KA)(1) which prohibits a lawyer from handling a legal matter which he knows or should know that he is not competent to handle. In your case the Panel felt that Mr. Hammond was not sufficiently familiar with the criminal law relating to your sexual abuse charge and the sentencing ohase.

The Panel also found that Mr. Hammond violated Canon 5. DR5-105(A) which requires that a lawyer decline employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment. The Panel believed that Mr. Hammond displayed some bias about the ultimate sentencing outcome of the criminal charge against vou and that he improperly confused his professional role and his ecclesiastical role and failed to act properly in his role as an attorney.

I hope that the above information is helpful to you. Again, I would remind you that this discipline is

private and would ask that you use discretion in disclosing this information.

CAB/dlb

/rfP&O'blX £ :

r ^ — ,y V ^ i

UNITED STATES of America, Appellee,

Salvatore MARZGLIANO, Joseph Mogav-era, Paul R. Labriola, Thomas Graham, Bernard Carroll, William Sevransky, An­thony Noto, Peter Scheib, Carlo Joseph Scala, Richard Campo, Ciro J. Graziano, Timothy Mitteager, Marilyn Wallace, Je­rome Otieri, Richard Gunn, Theodore Mendel.

UNITED STATES v. MARZGLIANO 395 Cite as 588 F.2d 395 (1978)

federal facility back to state prison after acceptance of his guilty plea but before sentencing, when the transfer from state to federal custody had been achieved pursuant to a writ of habeas corpus ad prosequen­dum, did not violate Agreement Interstate Agreement on Detainers Act, § 2, art. IV(e), 18 U.S.C.A. App.

See publication Words and Phrases for other judicial constructions and definitions.

Appeal of Joseph MOGAVERA.

No. 78-1169.

United States Court of Appeals, Third Circuit.

Argued Sept. 8, 1978.

Decided Nov. 27, 1978.

Appeal was taken from an order of the United States District Court for the District of New Jersey, Vincent P. Biunno, J., deny­ing defendant's motion for dismissal of in­dictment or, alternatively, for withdrawal of guilty plea and subsequent sentence. The Court of Appeals, James Hunter, III, Circuit Judge, held that: (1) defendant who produced his testimony, testimony of code-fendant and testimony of an attorney show­ing misrepresentations by defense counsel regarding sentencing was entitled to a hearing to prove that guilty plea was not voluntary because of such misrepresenta­tions and (2) transfer of defendant from federal facility back to state prison after acceptance of defendant's guilty plea but before sentencing did not violate Interstate Agreement on Detainers where transfer from state to federal custody was achieved pursuant to writ of habeas corpus ad prose­quendum.

Affirmed in part, reversed in part.

1. Courts <s=>495 Writ of habeas corpus ad prosequen­

dum is not a "detainer" within contem­plation of Interstate Agreement on Detain­ers Act so that transfer of defendant from

2. Criminal Law <8=»273.1(2) Fact that no sentencing agreement ac­

tually existed between trial judge and de­fense counsel was not relevant to issue whether defendant's guilty plea was in­duced by false promise from defense coun­sel regarding sentencing.

3. Criminal Law <s=>273.1(2) Defendant's statements at voluntari­

ness hearing to the effect that neither his attorney nor Government had made any promises to him inducing him to plead guilty did not bar defendant from subse­quently asserting that guilty plea was not voluntary because of misrepresentations by his counsel as to sentencing which would be imposed, particularly since trial judge al­legedly involved in impropriety was judge before whom voluntariness hearing took place. Fed.Rules Crim.Proc. rule 11, 18 U.S.C.A.

4. Criminal Law s=>997.16(5) Defendant who asserted that his guilty

plea was not voluntary because of out-of-court representations by his counsel as to sentence that would be imposed and whose assertions were supported by his codefend-ant and another attorney who were present when defense counsel made representations made sufficient showing to entitle him to hearing to prove that guilty plea was not voluntary. 28 U.S.C.A. § 2255.

Ralph A. Jacobs, Asst. U. S. Atty., Robert J. Del Tufo, U. S. Atty., Frank C. Razzano, Newark, N. J., for appellee.

Ronald A. Cohen, Larry Bronson, Orange, N. J., for appellant.

396 588 FEDERAL REPORTER, 2d SERIES

Before GIBBONS, HUNTER and GARTH, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

Joseph Mogavera appeals from the denial of a motion for dismissal of his indictment or, in the alternative, for withdrawal of his guilty plea and subsequent sentence. With­out a hearing, the district court denied re­lief determining first, that the dismissal of the indictment was not mandated by the Interstate Agreement on Detainers, 18 U.S.C. app. § 2 (1976), and second, that Mogavera had not demonstrated that his guilty plea was involuntary under 28 U.S.C. § 2255 (1976). We agree that the Interstate Agreement on Detainers was not violated, though on different grounds from those advanced by the district court. However, we hold that Mogavera is entitled to a hearing on the voluntariness of his guilty plea.

I. On August 5, 1974 Mogavera and fifteen

others were indicted for conspiracy to forge and utter United States Savings Bonds and for the substantive offense of forging Unit­ed States Savings Bonds in violation of 18 U.S.C. §§ 371 and 495 (1976). Mogavera was also charged with failure to file an income tax return. He was arraigned in United States District Court for the District of New Jersey on September 20, 1974; he pleaded not guilty and was released on bail. While awaiting trial on the federal charges, he pleaded guilty to a New York state charge in February, 1975, and was sen­tenced to a three year term. He began serving his sentence in a New York state prison on March 10,1975. On June 13, 1975 the federal government procured his trans-

1. The Supreme Court has recently held that the United States is a party to the Agreement both as a sending and a receiving "State." United States v. Mauro, 436 U.S. 340, 353, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978).

2. Article IV(e) of the Interstate Agreement on Detainers, 18 U.S.C. app. § 2 (1976), provides:

fer to the federal correctional facility in New York City pursuant to a writ of habe­as corpus ad prosequendum.

While in federal custody, Mogavera pleaded guilty to the forgery and tax charges on June 27, 1975. The district court judge conducted a hearing to deter­mine the voluntariness of Mogavera's guilty plea as required by Rule 11 of the Federal Rules of Criminal Procedure. Under oath, Mogavera declared that neither his attorney nor the government had made any promises to him which induced him to plead guilty. Mogavera does not challenge the sufficien­cy of the Rule 11 proceeding.

After the acceptance of the plea, he was returned to the state facility pending the preparation of the federal probation report. On October 6, 1975 he was again transfer­red to federal custody pursuant to a writ of habeas corpus ad prosequendum. He was sentenced by the district court judge on October 24, 1975 to a five year term—to run consecutive to his state sentence—and to five years probation to follow his release from custody.

II.

Mogavera first contends that he is enti­tled to the dismissal of his indictment on the federal charges because his rights under the Interstate Agreement on Detainers were violated. The Agreement governs the transfer of a prisoner from a jurisdiction where he is serving a sentence to another jurisdiction for proceedings against him.1

Under article IV(e), if the prisoner is re­turned to the original place of imprison­ment before being tried in the second juris­diction, then his indictment in the second jurisdiction must be dismissed with preju­dice.2

(e) If trial is not had on any indictment, information, or complaint contemplated here­by prior to the prisoner's being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, infor­mation, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prej­udice.

UNITED STATES v. MARZGLIANO Cite as 588 F.2d 395 (1978)

397

The district court held that the transfer of Mogavera from the federal facility back to the state prison after the acceptance of Mogavera's guilty plea but before sentenc­ing did not violate the Agreement. The court read article IV(e) as requiring dis­missal only if "trial is not had on any indict­ment prior to the prisoner's be­ing returned to the original place of impris-onment.,, See note 2 supra (emphasis sup­plied). Thus, it reasoned that the Agree­ment does not prevent transfers after the prisoner is tried in the second jurisdiction. Since it determined that the entry of a guilty plea is the legal equivalent of a "tri­al," the district court held that the post-guilty plea transfers were outside the ambit of the Agreement.

[1] We need not reach the merits of the district court's statutory construction. Af­ter the district court's decision, the Su­preme Court held in United States v. Mau­ro, 436 U.S. 340, 360, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), that a writ of habeas corpus ad prosequendum is not a "detainer" within the meaning of the Agreement.3 In each instance, Mogavera's transfer from state to federal custody was achieved pur­suant to a writ of habeas corpus ad prose­quendum. Since the writ does not invoke the protections of the Agreement, Mogav­era is not entitled to the dismissal of his indictment.4

3. This court's holding in United States v. Sor~ rell, 562 F.2d 227 (3d Or. 1977), that a writ of habeas corpus ad prosequendum was a "de­tainer" under the Agreement, was in effect overturned by the Supreme Court in Mauro, 436 U.S. at 349 n.14, 98 S.Ct. at 1841. The dis­trict court had relied in part on Sorreii

4. The court also held in United States v. Mauro that the protections of the Agreement apply if the federal government first lodges a detainer against a prisoner and later secures custody of the prisoner pursuant to a writ of habeas cor­pus ad prosequendum. 436 U.S. at 361-365, 98 S.Ct. 1847-1849. The record does not disclose a detainer against Mogavera prior to the issuance of the writs so Mogavera does not benefit from this holding.

5. Section 2255 of Title 28 U.S.C. (1976), pro­vides in part:

III. Mogavera contends alternatively that his

guilty plea was not voluntary. Under 28 U.S.C. § 2255 he is entitled to a hearing on his petition "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief."5 (emphasis supplied) After re­viewing the appropriate materials, the dis­trict court, without a hearing, denied relief. We address solely the issue of whether Mo­gavera has demonstrated that he is entitled to a hearing and do not decide whether habeas corpus relief is warranted.

As the basis of his section 2255 claim, Mogavera alleges that his attorney, Samuel R. DeLuca, made false representations to him which induced his guilty plea. In his affidavit in support of the habeas corpus petition, Mogavera claims that, "Mr. DeLu­ca promised me that if I plead guilty to one count of this indictment, and one count of the income tax information, that my sen­tence would not exceed the New York sen­tence, and would run concurrent with it." App. at 24a. Mogavera received a five year sentence to run consecutive to the state sentence and five years probation on his release from custody. Further, Mogavera asserts: "Before I took the plea I was ad­vised by Mr. DeLuca to say yes to all ques­tions asked by the judge." Id.

Paul Labriola, Mogavera's co-defendant, also submitted an affidavit in support of

Unless the motion and the files and records of the case conclusively show that the prison­er is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make find­ings of fact and conclusions of law with re­spect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not autho­rized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vul­nerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

398 588 FEDERAL REPORTER, 2d SERIES

Mogavera's petition. He claims that he was present on an occasion when DeLuca prom­ised Mogavera that the district court judge would give Mogavera a concurrent sentence or, at the worst, one or two years to run consecutive to the New York sentence. In addition, he reports that, "[DeLuca] told Mr. Mogavera that it was guaranteed, and that if it did not happen as promised, he— DeLuca—would take full responsibility, and Mr. Mogavera could withdraw his plea." App. at 26.

The crucial affidavit came from Robert Weiswasser, a member of the New York Bar. He had originally represented both Mogavera and Labriola but withdrew from representation of Mogavera, apparently be­cause of a potential conflict of interest. He recommended that Mogavera retain DeLu­ca. Weiswasser states in his affidavit that he was present when DeLuca promised Mo­gavera that if Mogavera pleaded guilty, Mogavera would receive a sentence which would run concurrent with and not exceed the sentence given by the New York state court. App. at 27a-28a.

A careful reading of the affidavits indi­cates that DeLuca may have led Mogavera to believe that he had a special relationship with the district court judge and had "fixed" the sentence. The Supreme Court wrote in Machibroda v. United States, 368_ U.S. 487, 493, 82"S.Ct.510.JMJLIbEd.2d. 473 (1962}, that, "[a] guilty plea, if induced by promises . which deprivejtjtf tlJeHsiTaracter of a voluntary^act, isrvoid» J^ conviction based upon such^a plea is open to collateral .attack." This court confronted allegations similar to those made by Mogav­era in Moorhead v. United Stajgs^456 F.2d 992 (3dJ3ir. 1972)^ Moorhead contended in his section 2255 motion that his attorney had represented to him that a "proposition" had been arranged with the prosecutor: if he pleaded guilty, he would get no more than a suspended sentence or full probation. He also alleged that his attorney directed him to respond affirmatively when the

6. We note that this is not a case where the defendant has merely alleged an erroneous pre­diction of sentence by his counsel, which this court has held does not render a guilty plea

court asked whether his plea was voluntary. The lower court denied his motion without a hearing. This court held: "A plea in^ duced. j?XJ*Sch_ misrepresentations jloes^not jneet the federaLstandard_p£ voluntariness. . . H^^^^a^%aljmsjepresenta-tion as to aJpror#3itiouLior>, a_ light _jen-tence., Tha^2dlegaticji_is_sufficieiit-lQjcec quireJ;he holding^of^r^dy^raAry^hearjng/^

7 d at995. See Brady v. United States, 397* "U.S. 7427755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

In McAleney v. United States, ^JF2A ^ 2 J l £ t ^ r ^ l 9 7 6 ^ defense counsel told his client that the prosecutor had agreed to recommend a light sentence. In fact, the prosecutor, when pressed for some predic­tion, had only given his personal opinion that the defendant would receive a light sentence; he never promised to give a rec­ommendation. In granting the motion to withdraw the plea, the court held: "[The defendant] was entitled to credit his attor­ney's representation as to the_fa.ctjof_jLUfih an agreement, and to rely on it; and if his. guilty plea was in fact induced by such a representation, we agree with the district court that relief is in-order." Id. at 284. See generally Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); Owens v. United States, 551 F.2d 1053 (5th Cir.), cert, denied, 434 U.S. 848, 98 S.Ct. 155, 54 L.Ed.2d 115 (1977); United States v. Pallotta, 433 F.2d 594 (1st Cir. 1970); United States v. McCarthy, 433 F.2d 591 (1st Cir. 1970); United States v. Del Piano, 386 F.2d 436 (3d Cir. 1967), cert denied, 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968).

Thus, a claim of attorney misrepresenta­tion of the type pleaded here may be a basis for relief in a habeas corpus action.* We must determine, therefore, whether the dis­trict court erred in denying Mogavera an opportunity to prove his allegations. The statute requires a hearing "[u]nless the mo­tion and the files and records of the case

involuntary. Masciola v. United States, 469 F2d 1057, 1059 (3d Cir 1972). See Weilmtz v. Page, 420 F.2d 935 (10th Cir. 1970).

UNITED STATES v. MARZGLIANO Cite as 588 F.2d 395 (1978)

399 conclusively show that the prisoner is enti­tled to no relief." 28 U.S.C. § 2255. The Supreme Court in Machibroda considered the circumstances in which a hearing must be provided:

The factual allegations contained in the petitioner's motion and affidavit, and put in issue by the affidavit filed with the Government's response, related primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light. Nor were the circumstances alleged of a kind that the District Judge could completely resolve by drawing upon his own personal knowledge or recollection.

368 U.S. at 494-95, 82 S.Ct. at 514.

[2] The alleged misrepresentations which form the basis of Mogavera's section 2255 motion took place at out-of-court meetings between Mogavera and his attor­ney. Also, the fact that no agreement actu­ally existed between the district court judge and Mogavera's attorney, a fact which would be within the personal knowledge of the district court, is not relevant to the issue of whether or not Mogavera's guilty plea was induced by a false promise from his attorney. McAleney v. United States, 539 F.2d at 284. Thus, by alleging activi­ties which took place outside the courtroom and beyond the personal knowledge of the district court judge, Mogavera brings him­self squarely within the Machibroda stan­dards. Accord, Brown v. United States, 565 F.2d 862, 863 & n.2 (3d Cir. 1977); Moor-head v. United States, 456 F.2d at 995 (peti­tioner is entitled to a hearing where the motion alleges "matters outside the record which, if true, cast serious doubt upon the voluntariness of the guilty plea").

[3] The government attempts to raise the Rule 11 voluntariness colloquy as a bar to Mogavera's present action. At the Rule 11 hearing, the district court judge re-

7. See also United States v. McCarthy, 433 F.2d 591, 593 (1st Cir. 1970), where the First Circuit noted that "the courts have generally conclud­ed that the Rule 11 record is 'evidential on the issue of voluntariness . . not conclu-

peatedly asked the defendant whether any undisclosed promises were given to him by either the government or his own attorney which induced his plea. Mogavera stated under oath that there was none. The government contends that Mogavera cannot now deny his earlier sworn statements. In Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973), the Su­preme Court refused to allow the Rule 11 proceeding to foreclose later habeas corpus attacks. While the Court conceded that a defendant "'may not ordinarily' repudiate his statements to the sentencing judge," it held: "The objective of Fed.Rule Crim. Proc. 11, of course, is to flush out and resolve all such issues, but like any proce­dural mechanism, its exercise is neither al­ways perfect nor uniformly invulnerable to subsequent challenge." Id. at 215, 93 S.Ct. at 1462. Accord, Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) ("the barrier of the plea or sentenc­ing proceeding record, although imposing, is not invariably insurmountable").

The McAleney court noted that "most defendants could be expected to deny 'any impropriety' during the Rule 11 hearing

and we cannot now say that it would be obvious to a poorly counselled defendant that he should mention a suppos­ed 'deal' with the Government, no matter how proper." 539 F.2d at 285.7 The ration­ale of McAleney applies with particular force when, as alleged here, the defendant may have been led to believe that the judge before whom the Rule 11 colloquy took place was himself involved in the "impro­priety." Though we understand the efforts of the government to reduce the flood of prisoners recanting their Rule 11 state­ments in subsequent section 2255 motions, we must heed the caution of Fontaine and Blackledge that the Rule 11 voluntariness hearing is an imperfect procedural mecha-

sive," citing United States ex rei McGrath v. LaVallee, 319 F.2d 308, 314 (2d Cir. 1963). Accord, Trotter v. United States, 359 F.2d 419, 420 (2d Cir. 1966); Scott v. United States, 349 F.2d 641, 643 (6th Cir. 1965).

400 $M FEDERAL REPORTER, 2d SERIES

nism which must not be wholly immune from collateral attack.8

IV.

[4] We hold that Mogavera's rights un­der the Interstate Agreement on Detainers were not violated since a writ of habeas corpus ad prosequendum, the means by which he was transferred from state to federal custody, is not a "detainer" within the contemplation of the Agreement^ However, Mogavera has made a sufficient ' showing under 28 U.S.C. § 2255 to entitle '• him to a hearing to prove that his guilty \ plea was not voluntary. The decision of the

" district court will be affirmed in part and reversed in part.

Ginn BIESENBACH, Joseph Levin, Henry Sharman, Lisa B. White,

Appellants,

v.

John H. GUENTHER, Jr., A. T. Consoli, Richard E. Hunter, Fred Parquitte, Leon Prince, Heidelberg, Inc., Appellees.

No, 78-1487.

United States Court of Appeals, Third Circuit.

Argued Nov. 14, 1978.

Decided Dec. 4, 1978.

Minority shareholders brought suit both derivatively and on behalf of ail share­holders against individual members of cor­porate board of directors, alleging viola­tions of the Securities Exchange Act of 1934. The United States District Court for

8. We note that this court has recently affirmed a conviction for perjury against a prisoner who made sworn statements in his affidavit in sup­port of his section 2255 motion which contra-

the Eastern District of Pennsylvania, Ray­mond J. Broderick, J., 446 F.Supp. 98, dis­missed plaintiffs' federal claims for failure to state a claim upon which relief could be granted and, as a result, plaintiffs' pendent state law claims were also dismissed. On appeal, the Court of Appeals, Rosenn, Cir­cuit Judge, held that although plaintiffs alleged violations of individual defendants' fiduciary duties as directors of the corpora­tion which could support a cause of action under laws of Pennsylvania, such allega­tions standing alone did not state a cause of action under the Securities Exchange Act.

Affirmed.

1. Securities Regulation <s=>118 Although minority shareholders alleged

violations of individual defendants' fiduci­ary duties as directors of corporation which could support a cause of action under laws of Pennsylvania, such allegations standing alone did not state a cause of action under the Securities Exchange Act of 1934. Secu­rities Exchange Act of 1934, § 10(b), 15 U.S.C.A. § 78j(b).

2. Securities Regulation <3=»118 The unclean heart of a corporate di­

rector is not actionable under the Securities Exchange Act, whether or not it is dis­closed, unless the impurities are translated into actionable deeds or omissions both ob­jective and external. Securities Exchange Act of 1934, § 10(b), 15 U.S.C.A. § 78j(b).

3. Federal Civil Procedure <s=>1832 On a motion to dismiss for failure to

state a claim upon which relief can be granted, district court must limit its consid­eration to the facts alleged in the com­plaint. Fed.Rules Civ.Proc. rule 12(b)(6), 28 U.S.C.A.

4. Federal Courts e=>624 Failure to request oral argument on a

motion to dismiss for failure to state a claim upon which relief can be granted con-

dieted his testimony under oath at the Rule 11 hearing. United States v. Stassi, 583 F.2d 122 (3d Cir. 1978).

/ffPE/Ubiyc E

__ J S ^ m£i ur&H^a/0&/7?£^<Z&/2CJZH/Mb /&$ <&£ &GPrz?L c$£ ^SZ&S-

'£»C

• = * > $ . - _ _

./bs<sK

Loti<r &£ c^n&j&igu

_J?*$rdd. 9.<&{2%^LCJI-

_J&ryKe/-(i S*<tj3r/*<<L- £*£&! %Z&J2/_

•VKL

.WM&dMj? „tte&£P*(-$ J.

.Z- <2#l_ TZiste /y. /9$% vile £/?*£ (^xy-~ci~^yQ^aJst gJJ-t/Tfus </^ »•

..... ~6^/7lctl/7^eS0Ls$ <z2Z9p#m$

^mXK^TZtr^ /?*&*<_. __

>**<*?'+*?-'

<7ryr*& /Trt 7-/?s& jf&UTZrS,^ ?&s& G&<S^*

£1 /&We?J&£i'AS T7/^f 7&

, dfLCL Tree* /zs<s x?<ar777cM. -t&h cttr-tT- <??VS?2K2 SA/X-t

- /) te^<rr - sip>Tm2i«&