United States v. Nahodil ( 1994 )

Opinions of the United
1994 Decisions 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Precedential or Non-Precedential: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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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 assis-
tance, 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 petition-
er'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 gov-
ernment 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 preju-
diced 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 witness-
es, the destruction of documents, or other prejudice to the govern-
ment, 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 unconstitu-
tionally 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.