                                                                                                                           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Precedential or Non-Precedential: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.
