Glenn Carlton Whitley, Appellant, v. United States of America, Appellee, 400 F.2d 881 (9th Cir. 1969)

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U.S. Court of Appeals for the Ninth Circuit - 400 F.2d 881 (9th Cir. 1969) September 11, 1968
Rehearing Denied December 10, 1968
Rehearing En Banc Denied February 11, 1969

Melvin D. Close, Jr. (argued), Las Vegas, Nev., for appellant.

Robert S. Lennell (argued), Asst. U. S. Atty., Joseph L. Ward, U. S. Atty., Las Vegas, Nev., for appellee.

Before MERRILL and CARTER, Circuit Judges, and SMITH,*  District Judge.


Petitioner, convicted on his plea of guilty to a violation of 18 U.S.C. § 331, relating to the alteration of coins, was given the maximum sentence. He now appeals from the denial of a Title 28 U.S.C. § 2255 motion to vacate the judgment. His claim is that he was not adequately represented by counsel and that his plea was not voluntarily made because of the misrepresentations made to him by counsel. After an evidentiary hearing the district court found against the defendant on both issues and entered judgment denying relief. This appeal is from that judgment.

If only that portion of petitioner's testimony most favorable to him were considered, then petitioner was misled. However, we note that petitioner's testimony at the hearing

(1) was not entirely consistent,

(2) was contradicted by the lawyer who represented him at the time the plea was taken,

(3) was completely contrary to the statements made in response to a careful questioning by the district court at the time the plea was taken,

(4) was contradictory to a written statement signed by petitioner and given to his counsel prior to the entry of the plea.

There was ample support in the evidence for the district court's findings.

The judgment is affirmed.


Hon. Russell E. Smith, United States District Judge, District of Montana, sitting by designation