965 F.2d 1184
James BARRETT, Petitioner, Appellant,v.UNITED STATES of America, Respondent, Appellee.
No. 91-1568.
United States Court of Appeals,First Circuit.
Heard Jan. 10, 1992.Decided June 8, 1992.

Kenneth J. King with whom Fenn & King, Jamaica Plain, was on brief, for petitioner, appellant.
Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., Portland, Me., was on brief, for respondent, appellee.
Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.
CYR, Circuit Judge.

1
James W. Barrett [hereinafter "petitioner"] appeals the dismissal of a motion to vacate or set aside his conviction and sentence for an armed bank robbery which occurred in Portland, Maine, in 1975.   Petitioner asserts four grounds for relief:  (1) a Jencks Act claim, see 18 U.S.C. § 3500;  (2) a Brady claim, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963);  (3) a Sixth Amendment ineffective assistance claim;  and (4) an alleged entitlement to a new trial based on newly discovered evidence.   We affirm the district court judgment.

2
* BACKGROUND

3
Three armed men wearing ski masks robbed the Lunts Corner Branch of the Northeast Bank in Portland, Maine, on October 4, 1975, and made their getaway.   At trial, some nine years later, petitioner denied any involvement in the robbery.   The chief prosecution witness, Joseph Aceto, testified that he and the petitioner entered the bank with codefendant Raymond Levasseur, while a fourth individual, codefendant Thomas Manning, waited in the getaway car.   At the time of petitioner's trial, Levasseur and Manning were fugitives.   The trial "ultimately turned on the relative credibility of Aceto and [petitioner]," United States v. Barrett, 766 F.2d 609, 612 (1st Cir.), cert. denied, 474 U.S. 923, 106 S.Ct. 258, 88 L.Ed.2d 264 (1985), which is the principal focus of the present appeal as well.1

II
DISCUSSION

4
Petitioner challenges the dismissal of the section 2255 petition without an evidentiary hearing.   Petitioner was required to demonstrate to the district court, by a preponderance of the evidence, not only an entitlement to section 2255 relief but entitlement to an evidentiary hearing.  Myatt v. United States, 875 F.2d 8, 11 (1st Cir.1989);  United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 115, 58 L.Ed.2d 129 (1978).   An evidentiary hearing is not required where the section 2255 petition, any accompanying exhibits, and the record evidence "plainly [reveal] ... that the movant is not entitled to relief...."  Rule 4(b), Rules Governing Section 2255 Proceedings.   See Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir.1990).   As we have explained on previous occasions, summary dismissal is appropriate when the section 2255 petition " '(1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case.' "  DiCarlo, 575 F.2d at 954 (quoting Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir.1974)).   Thus, the petition is subject to dismissal, without an evidentiary hearing, if the grounds for relief either are not cognizable under section 2255 or amount to mere "bald" assertions without sufficiently particular and supportive allegations of fact.  Moran, 494 F.2d at 1222.   Alternatively, even a section 2255 petition predicated on specific assertions of fact allegedly supported in the record may be dismissed summarily by the district court since "only [the] district court know[s] definitely, without a hearing, whether the petitioner's facially adequate supporting allegations are in fact untrue," id. at 1222 n. 1, and "the district court can often 'test' the adequacy of accompanying factual allegations by assuming arguendo their truth, and then assessing their sufficiency in light of the relevant constitutional standards and the record," id. at 1222.   As we have observed, "if [petitioner's] claim is based upon facts with which the trial court, through review of the record or observation at trial, is familiar, the court may make findings without an additional hearing, and, as is the case for findings of the trial court generally, those findings will not be overturned unless they are clearly erroneous."  Panzardi-Alvarez v. United States, 879 F.2d 975, 985 n. 8 (1st Cir.1989) (quoting DiCarlo, 575 F.2d at 954-55), cert. denied, 493 U.S. 1082, 110 S.Ct. 1140, 107 L.Ed.2d 1045 (1990).

1. Jencks Act Claim

5
On June 11, 1990, petitioner filed a pro se motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.   More than five months later, through appointed counsel, petitioner filed an amended habeas petition, alleging, inter alia, that the government had suppressed evidence at trial, including a verbatim transcript of an interview of Joseph Aceto conducted in Arkansas approximately two months before trial by FBI Agent Crate in the presence of Assistant United States Attorney ("AUSA") Mark Terison, the prosecutor at petitioner's trial.2  The amended section 2255 petition alleged that the failure to provide the verbatim interview transcript violated the government's duty to disclose exculpatory information under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).   Petitioner demanded an evidentiary hearing and the disqualification of AUSA Terison.

6
The government responded to the amended habeas petition on January 4, 1991.   On February 19, 1991, petitioner filed "Plaintiff's Motion for Leave to File a Brief Reply Memorandum," asserting that "several legal arguments and factual assertions raised by the government ... require a response from plaintiff."  (emphasis added).   The district court granted the motion.   Instead of filing a "brief reply memorandum," however, on February 22, 1991, more than eight months after the filing of the original habeas petition, petitioner filed "Plaintiff's Reply to Government's Response to His 28 U.S.C. § 2255 Motion," raising a Jencks Act claim for the first time.3  The government did not respond to petitioner's Jencks Act claim prior to the district court's denial of habeas relief on April 30, 1991.   The district court order dismissed the amended petition, without an evidentiary hearing and without alluding to the Jencks Act claim.   See Barrett v. United States, 763 F.Supp. 658 (D.Me.1991).

7
An unsigned and undated motion purportedly submitted by petitioner's counsel was docketed in the district court on May 24, 1991, requesting reconsideration of the April 30 dismissal order on the ground that the district court had not addressed the Jencks Act claim.   On May 31, 1991, petitioner filed a notice of appeal from the April 30 dismissal order.   On June 6, 1991, petitioner's May 24 motion to reconsider was stricken by the district court, as it was unsigned.   See Fed.R.Civ.P. 7(b)(3) ("All motions shall be signed in accordance with Rule 11.");   Fed.R.Civ.P. 11 ("If a ... motion ... is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the ... movant.");   see also D.Me.L.R. 1(b), 3(d)(1).4  Thereafter, petitioner filed two further motions for reconsideration, which the district court denied.   We turn to the resultant procedural snarl.

8
Treated as Rule 59(e) motions, all three motions for reconsideration were untimely.   See Fed.R.Civ.P. 59(e).   The ten-day time bar under Rule 59(e) is jurisdictional.  Rivera v. M/T Fossarina, 840 F.2d 152, 154 (1st Cir.1988) ("ten-day limitation period of Rule 59(e) 'is one of the few limitary periods which the court has no power to enlarge' ") (quoting Scola v. Boat Frances R., Inc., 618 F.2d 147, 155 (1st Cir.1980).   As the first motion to reconsider the April 30 order was not even submitted until May 24, it was untimely, as were those which followed.5

9
Alternatively, were we to treat the three motions for reconsideration as having been timely filed under Rule 60(b)(1), see Fed.R.Civ.P. 60(b)(1) (motion may be made within a reasonable time, not more than one year), petitioner would fare no better, since the district court orders denying the motions were never appealed.6

10
Furthermore, as a practical matter, petitioner's failure to raise the Jencks Act claim in a timely manner below precludes effective appellate review on the merits.   See Dziurgot, 897 F.2d at 1224 (claim not raised in § 2255 motion will not be reviewed on appeal);  cf. United States v. Valencia-Copete, 792 F.2d 4, 5 (1st Cir.1986) (direct appeal).7  Additionally, we would note, without deciding, that the Jencks Act claim may not be cognizable under section 2255 in any event, by virtue of the recognized rule that nonconstitutional claims may not be presented in a section 2255 proceeding unless "the claimed error of law [represents] 'a fundamental defect which inherently results in a complete miscarriage of justice.' "  Fasano v. Hall, 615 F.2d 555, 557 (1st Cir.)  (quoting Davis v. United States, 417 U.S. 333, 345, 94 S.Ct. 2298, 2302, 41 L.Ed.2d 109 (1974)), cert. denied, 449 U.S. 867, 101 S.Ct. 201, 66 L.Ed.2d 86 (1980);   see United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (discussing rationale for restrictions on collateral attacks against criminal convictions);   United States v. Capua, 656 F.2d 1033, 1037 (5th Cir.1981) (§ 2255 proceeding distinguishing between cognizability of "constitutional or jurisdictional errors on the one hand, and mere errors of law on the other," and adverting to Davis criteria for identifying "mere errors of law");   see also Wilson v. United States, 554 F.2d 893, 894 (8th Cir.)  (en banc) (Jencks Act claim not cognizable under § 2255), cert. denied, 434 U.S. 849, 98 S.Ct. 158, 54 L.Ed.2d 117 (1977);   Lindhorst v. United States, 585 F.2d 361, 366 (8th Cir.1978) (same).

2. The Brady Claims

11
a) Expectations of Lenity

12
Petitioner asserts that the government suppressed documentary evidence indicating that Aceto may have expected lenient treatment on an Arkansas murder charge in return for testimony against petitioner on the federal charge for armed bank robbery.   Petitioner argues that the government deprived him of important impeachment evidence against Aceto.

13
Prosecutorial nondisclosure of exculpatory evidence does not assume unconstitutional dimensions unless the undisclosed evidence is "material ... to guilt or to punishment...."  Brady, 373 U.S. at 87, 83 S.Ct. at 1197.  "Since impeachment evidence is 'exculpatory' under Brady, ... the question we ask in a prosecutorial nondisclosure setting is 'whether the omitted evidence is of sufficient materiality to call for a new trial.' "  United States v. Sanchez, 917 F.2d 607, 617 (1st Cir.1990) (quoting United States v. Imbruglia, 617 F.2d 1, 4 (1st Cir.1980), cert. denied, --- U.S. ----, 111 S.Ct. 1625, 113 L.Ed.2d 722 (1991)).   The materiality test under Brady is not met unless the nondisclosure of the evidence "undermine[s] confidence in the outcome of the trial," United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985), which can occur only if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."  Id. at 682, 105 S.Ct. at 3383 (emphasis added);  Sanchez, 917 F.2d at 617 (Bagley prescribes "uniform standard of materiality for general application in all nondisclosure cases").

14
The district court denied petitioner's initial request to cross-examine Aceto at trial about the pending Arkansas murder indictment, on the ground that there was no sufficient factual basis for finding that the probative value of the untried murder indictment would outweigh substantially the severe risk of unfair prejudice.8  See Fed.R.Evid. 608(b)(1) (whether to permit inquiry into specific instance of conduct, other than conviction of crime, for purpose of proving witness' truthfulness or untruthfulness, is addressed to "the discretion of the court");  see also 3 Weinstein's Evidence, p 608 (1991) (courts may apply Rule 403 safeguards under Rule 608(b));  Fed.R.Evid. 403 (evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice").   Nevertheless, shortly thereafter, at "considerable expense and trouble to the court and government," Barrett, 766 F.2d at 615, the district court recalled Aceto expressly to permit petitioner's trial counsel to demonstrate, on voir dire, a reasonable basis for the claim that Aceto expected to "benefit in connection with his ... homicide prosecution as a result of his testimony in [petitioner's] case."   Yet, after eliciting the admission that there was a murder indictment pending against Aceto, petitioner's trial counsel "suddenly gave up," id., and abandoned all further interrogation of Aceto on voir dire.   After several unsuccessful efforts to encourage defense counsel to pursue the inquiry further, the district court excused Aceto.9  On direct appeal, it was held that petitioner's trial counsel had been given "ample opportunity to make a record from which he could argue that the witness was biased because of a particular hope or expectation," Barrett, 766 F.2d at 615 (citing United States v. Tracey, 675 F.2d 433, 439 (1st Cir.1982)), but that petitioner had "failed ... to establish ... why inquiry into this most prejudicial matter should be made before the jury."  Id.

15
The claim presently before the court closely tracks the claim rejected on direct appeal.   We consider whether, but for the government's nondisclosure of the Terison memorandum and the related documents, petitioner would have been allowed to inquire into the Arkansas murder charge at trial and, if so, whether there is a reasonable probability that the jury would have acquitted petitioner.  Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.   Petitioner relies primarily on a January 24, 1984 file memorandum prepared by AUSA Terison.   The Terison memorandum states, in pertinent part:

16
On or about January 18, 1984 I talked to Tommy Brown who is a state of Arkansas prosecutor responsible for the murder prosecution of Joseph Aceto....  Brown also said that his case against Aceto was not a rock solid one and that both he and Aceto may be interested in reaching some sort of plea arrangement whereby Aceto would agree to come to Maine to testify in the Barrett case.

17
(Emphasis added).10

18
(i) Materiality of Undisclosed Documents

19
The present claim must fail unless the Terison memorandum and the related documents, alone or in combination with the evidence admitted at trial, would have facilitated petitioner's voir dire examination of Aceto sufficiently to have enabled establishment of the required predicate for a reasonable belief that Aceto expected favorable treatment from the Arkansas prosecutor in return for testimony against petitioner on the federal charge.   In other words, the petitioner must demonstrate that the undisclosed documents contained either admissible evidence, or inadmissible information, with which petitioner would have been able to demonstrate to the district court that he was entitled to an evidentiary hearing on the section 2255 petition.11

20
The only portion of the Terison memorandum even arguably probative of Aceto's state of mind--the Arkansas prosecutor's statement to Terison that Aceto might be interested in a plea agreement--would not have been admissible as evidence of the matter asserted, as it constituted compound hearsay;  that is, Terison's assertion as to what Brown stated might interest Aceto.12  At most, as the district court noted, access to the Terison memorandum might have prompted further interrogation of Aceto as to whether the Terison memorandum was based on expressions of interest on the part of Aceto, or only on the hopes of the Arkansas prosecutor.   Yet at trial petitioner insistently refused the clear opportunity, indeed the explicit invitation, see supra note 9, to interrogate Aceto on voir dire concerning any benefit he hoped for, or expected, in return for testimony against petitioner.

21
The entire purpose of the voir dire examination, as all concerned well understood, was to afford petitioner an opportunity to demonstrate a factual predicate for inferring that Aceto expected favorable treatment in connection with the pending murder indictment in return for his testimony against petitioner.   On voir dire, without the benefit of the Terison memorandum or the related documents, petitioner's trial counsel elicited the information that a murder indictment was pending against Aceto.   Nevertheless, despite the fact that the admission of the murder indictment depended upon the establishment of some evidence as to Aceto's state of mind on the subject, or some other reasonable evidentiary basis for inferring the existence of a connection between Aceto's testimony against petitioner and an expectation, understanding, or agreement concerning lenient treatment on the murder charge, Aceto was "never asked the critical question whether the government had made any agreements with respect to the pending charge or whether Aceto had some hope of leniency with respect thereto."  Barrett, 766 F.2d at 615.   Notwithstanding the district court's earnest efforts, petitioner's trial counsel relinquished the opportunity to examine Aceto concerning any agreement or understandings which may have been reached, or any hopes Aceto may have harbored, in connection with his testimony against petitioner.   The government's belated disclosure of the Terison memorandum and the related documents cannot efface petitioner's plain election to abandon any direct inquiry as to Aceto's hopes or expectations for leniency.13

22
The information in the Terison memorandum and the related documents is entirely cumulative of the evidence available to petitioner at voir dire;  that is, principally, the pending murder indictment and Aceto's appearance as a witness for the prosecution at petitioner's federal trial.   At voir dire, petitioner knew about the pending murder indictment against Aceto, and petitioner had been provided with the Form 302 interview summary which revealed that a "Thomas Brown, Prosecutor's Office," participated in the Aceto interview.   Moreover, the Form 302 provided to petitioner plainly revealed itself as a redacted version of the original Form 302, in that it exhibited a large blank space between Brown's name and the ensuing designation that Brown was a prosecutor--located in the most likely place for a designation of Brown's full title.   Yet, despite this information, petitioner's trial counsel never asked Aceto whether Prosecutor Brown had anything to do with the pending murder indictment against Aceto.   We believe the record reveals an abiding tactical reluctance to learn whether the obvious redaction in the Form 302 provided to petitioner was pertinent to his defense.

23
Petitioner offers no nonspeculative ground whatever for concluding that the undisclosed cumulative evidence would have spurred further inquiry into Aceto's state of mind, let alone a more fruitful inquiry.14  Accordingly, we conclude that the unavailability of the cumulative impeachment evidence contained in the Terison memorandum, and related documents, did not affect the outcome of the trial.  Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.15

24
b) Aceto's Mental State

25
Petitioner claims that the government withheld four documents wherein Aceto is diagnosed as a paranoid schizophrenic who was receiving personal messages via radio and television.   As the district court stated,16 and this court observed on direct appeal,17 an abundance of damning impeachment evidence was adduced at trial as to Aceto's mental instability.   See also supra note 14.   Given all the "damaging [trial] evidence concerning Aceto's mental status," see Barrett, 766 F.2d at 615-16, we see no reason to disturb the district court finding, see Barrett, 763 F.Supp. at 664, that there is no reasonable probability that the cumulative impeachment evidence in these undisclosed diagnoses would have affected the outcome of the trial.   See Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.

3. Ineffective Assistance Claim

26
Petitioner claims that trial counsel's representation was so deficient as to amount to a denial of his Sixth Amendment right to the effective assistance of counsel.   See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   In response to an inquiry from counsel, petitioner testified on direct examination that he shot a person in self-defense in 1963 and spent thirteen years in prison before the conviction was vacated.   The government responded by introducing the death certificate, which indicated that the victim had been shot in the back.

27
Petitioner must demonstrate that the alleged deficiencies in professional performance assumed unconstitutional dimensions and resulted in prejudice "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."  Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.  Strickland cautions reviewing courts to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ... 'considered to be sound trial strategy ...[,]' " id. at 689, 104 S.Ct. at 2065 (quoting Michel v.  Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)), and that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable."   Id. at 690, 104 S.Ct. at 2066 (emphasis added).   Thus, "a defendant must allege and demonstrate that his counsel's error clearly 'resulted from neglect or ignorance rather than from informed, professional judgment.' "   United States v. Bosch, 584 F.2d 1113, 1121 (1st Cir.1978) (quoting  Marzullo v. Maryland, 561 F.2d 540, 544 (4th Cir.1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978)) (emphasis added);   see United States v. Natanel, 938 F.2d 302, 309 (1st Cir.1991) (citing Bosch ) (defendant bears burden of demonstrating deficient performance;  performance standard is "to be applied not in hindsight, but based on what the lawyer knew, or should have known, at the time his tactical choices were made and implemented"), cert. denied, --- U.S. ----, 112 S.Ct. 986, 117 L.Ed.2d 148 (1992).18

28
We note at the outset that petitioner does not advance the contention that counsel's trial strategy resulted from any failure to conduct a "thorough investigation of law and facts," see Strickland, 466 U.S. at 690, 104 S.Ct. at 2064, but merely that introduction of petitioner's self-defense testimony was not a "plausible option."  Id.  Petitioner's failure to allege, see Bosch, 584 F.2d at 1121, let alone demonstrate, see id., that counsel's tactical decision "resulted from neglect or ignorance," id., effectively insulates counsel's choice among plausible options from successful collateral challenge in the present circumstances.  Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.

29
As noted on direct appeal, see Barrett, 766 F.2d at 618, trial counsel advanced two reasons for inquiring into petitioner's 1963 murder conviction, and both were plausible.   The principal aim of the self-defense initiative was to establish that petitioner's fugitive status following the armed bank robbery for which he was on trial "was not, as the government would have it, [evidence of petitioner's] guilt, but ... of [petitioner's] lack of faith in the justice system."  Id.  The second purpose, as articulated by the district court and acknowledged by defense counsel, was to establish petitioner's credibility as a witness and "explain[ ] the fact that he was previously in prison."  Id.  Thus, as the district court ruled, the decision to apprise the jury of the petitioner's invalid murder conviction rather clearly represented a calculated defense tactic.   The district court explained:

30
The Court cannot find that counsel's decision to introduce the self-defense issue was constitutionally unreasonable.   Petitioner concedes that the decision was tactical.... [c]ounsel could well have decided that the jury would be more sympathetic to Petitioner if it heard the details of the killing from him.   Such a decision is indeed strategic and, in the context of this most thoroughly-prepared trial, unchallengeable.

31
Barrett, 763 F.Supp. at 664-65 (emphasis added).   Therefore, we cannot conclude that counsel's decision to pursue this strategic initiative amounted to ineffective assistance.19

4. Newly Discovered Evidence

32
Finally, petitioner points to newly discovered evidence as grounds for an evidentiary hearing and a new trial.   Codefendants Thomas Manning and Raymond Levasseur, unavailable at the time of petitioner's trial, submitted substantively identical affidavits which flatly attest:  I did not rob the Northeast Bank in Portland, Maine with James Barrett.

33
We need not determine whether newly discovered evidence is a cognizable ground for obtaining a new trial in proceedings under section 2255,20 since the present claim cannot succeed in any event.   At a minimum, petitioner would be required to meet the conventional criteria for obtaining a new trial on the ground of newly discovered evidence.  Cruz-Sanchez v. Rivera-Cordero 835 F.2d 947, 948 (1st Cir.1987);  see Lindhorst v. United States, 658 F.2d 598, 602 (8th Cir.1981) (request for § 2255 relief based on newly discovered evidence reviewable under standards applicable to motion for new trial under Fed.R.Crim.P. 33), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 309 (1982).   Thus, petitioner must show, among other things, that "the new evidence is material and is not merely cumulative or impeaching...."  United States v. Benavente-Gomez, 921 F.2d 378, 382 (1st Cir.1990) (emphasis added);  United States v. Martin, 815 F.2d 818, 824 (1st Cir.), cert. denied, 484 U.S. 825, 108 S.Ct. 89, 98 L.Ed.2d 51 (1987);  see United States v. Rodriguez, 738 F.2d 13, 18 (1st Cir.1984) (on motion for new trial, "[i]mpeachment evidence is presumptively immaterial");  Pelegrina v. United States, 601 F.2d 18, 21 (1st Cir.1979) ("impeaching evidence is generally treated as immaterial" on motion for new trial);  United States v. Bonadonna, 775 F.2d 949, 957 (8th Cir.1985) ("newly discovered evidence which is merely impeaching normally cannot form the basis for a new trial");  see generally 3 Charles A. Wright, Federal Practice and Procedure § 557 (1982).   Since it does not bear directly on the defendant's guilt or innocence, "impeachment evidence ... [does] not rise to the level of materiality that would be likely to cause a different result at a new trial."  Benavente-Gomez, 921 F.2d at 383.

34
The district court summarily may dismiss a section 2255 motion, without an evidentiary hearing, if its claims are inadequate on their face.  DiCarlo, 575 F.2d at 974.   Therefore, plenary presentation is not required unless the motion "contain[s] assertions of fact that a petitioner is in a position to establish by competent evidence."  United States v. Aiello, 814 F.2d 109, 113 (2d Cir.1987) (emphasis added);  see Dalli v. United States, 491 F.2d 758, 760 (2d Cir.1974) (appellate court views summary dismissal with disfavor if motion was supported by "a sufficient affidavit") (emphasis in original);  cf. Machibroda v. United States, 368 U.S. 487, 495-96, 82 S.Ct. 510, 514-15, 7 L.Ed.2d 473 (1962) (hearing required where it appears reasonably likely that evidence exists which could either corroborate or disprove material allegations supported by affidavits).   Thus, the threshold issue is "whether, if the evidence should be offered at a hearing, it would be admissible proof entitling the petitioner to relief."  Dalli, 491 F.2d at 760 (emphasis added).

35
Assuming their truth, see Myatt, 875 F.2d at 11, these affidavits assert merely that Manning and Levasseur did not rob the Northeast Bank with Barrett.   For the testimony to be admissible in evidence, the putative witness must be shown to have sufficient personal knowledge of the matter at issue.   See Fed.R.Evid. 602 ("A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.");   Fed.R.Evid. 104(b);  see United States v. Doe, 960 F.2d 221, 223 (1st Cir.1992) (evidence inadmissible unless " 'a reasonable trier of fact could believe the witness had personal knowledge' ") (quoting Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 764 (2d Cir.1991));  United States v. Sorrentino, 726 F.2d 876, 887 (1st Cir.1984) (affirming district court's exclusion of testimony because witness lacked personal knowledge concerning subject of testimony);  cf. Fed.R.Civ.P. 56(e) (for summary judgment purposes, "affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein") (emphasis added);  Fed.R.Civ.P. 81(a)(2) (Civil Rules applicable in habeas corpus proceedings where practice is not otherwise dictated by statute).

36
These affidavits present no foundational facts as to the affiants' personal knowledge.   The affidavits assert neither that the affiants were present at the time of the robbery, nor that they were elsewhere with Barrett at the time of the robbery.   Although the affidavits state categorically that the affiants did not participate in the bank robbery with petitioner, the affiants do not represent that petitioner did not participate in the bank robbery with others. Thus, their statements do not bear directly on petitioner's guilt or innocence, but instead constitute cumulative impeachment evidence against Aceto, who testified that Levasseur and Manning, as well as Aceto and the petitioner, robbed the bank.   Since petitioner did not demonstrate that the newly discovered evidence would have been admissible at trial, either as alibi evidence or as evidence of the identification of the participants in the bank robbery, neither an evidentiary hearing nor a new trial was warranted.   See Dalli, 491 F.2d at 761 (no evidentiary hearing warranted where petitioner did not demonstrate that allegations could be "establish[ed] by competent evidence").   Accordingly, the "newly discovered evidence" warranted neither an evidentiary hearing nor a new trial.   See Benavente Gomez, 921 F.2d at 382;  Martin, 815 F.2d at 824.

37
As the district court correctly concluded that petitioner was entitled to no relief, the judgment must be affirmed.

38
Affirmed.

1
 The district court denied petitioner's postjudgment motions.   See United States v. Barrett, 598 F.Supp. 469 (D.Me.1984).   The conviction was affirmed on direct appeal.   See United States v. Barrett, 766 F.2d 609 (1st Cir.), cert. denied, 474 U.S. 923, 106 S.Ct. 258, 88 L.Ed.2d 264 (1985).   The district court opinion dismissing the instant § 2255 motion is reported as well.   See Barrett v. United States, 763 F.Supp. 658 (D.Me.1991)

2
 Before trial, the government agreed to disclose all prior statements of witness Aceto.   AUSA Terison represented to the district court that petitioner's trial counsel had been, or would be, provided "everything [the government has] that's on paper from Mr. Aceto."   Rather than providing petitioner's trial counsel with the 72-page verbatim Aceto interview transcript, however, the government submitted a redacted summary of the Arkansas interview form "FBI 302."   The government does not deny knowledge of the existence of the verbatim interview transcript at the time of trial, but bases its decision to redact on security grounds.   See infra note 13

3
 In his reply brief on appeal, petitioner attempts, likewise for the first time, to characterize the so-called "reply brief" filed in the district court as a "traverse."   See United States v. Benavente Gomez, 921 F.2d 378, 386 (1st Cir.1990) (arguments not raised in opening appellate brief are waived);  Playboy Enterprises v. Public Service Comm'n, 906 F.2d 25, 40 (1st Cir.)  ("An appellant waives any issue which it does not adequately raise in its initial brief, because in 'preparing briefs and arguments, an appellee is entitled to rely on the content of an appellant's brief for the scope of the issues appealed.' ")  (quoting Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir.1983)) (citations omitted), cert. denied, --- U.S. ----, 111 S.Ct. 388, 112 L.Ed.2d 399 (1990)
The Section 2255 rules do not contemplate the filing of a traverse, see Rule 5, Rules Governing Section 2255 Proceedings, except in "special circumstances," not present here, where the government's response requests dismissal of the petition pursuant to Rule 9 ("Delayed or Successive Motions").   See Advisory Committee Notes to Rule 5, Rules Governing Section 2255 Proceedings;  United States v. Smith, 869 F.2d 835, 837-38 (5th Cir.1989) ("[t]he rules under § 2255 ... do not permit traverse pleadings unless the government moves for dismissal under Rule 9").   Moreover, petitioner did not request or obtain permission to file a traverse, but a "brief reply memorandum."

4
 The Federal Rules of Civil Procedure are applicable to § 2255 proceedings.   See Fed.R.Civ.P. 1, 81(b);  28 U.S.C. § 2242;  see also Rule 2(b) & Rule 5 advisory committee's note, Rules Governing § 2255 Proceedings;  D.Me.L.R. 13

5
 Moreover, a Rule 59(e) motion must be served within ten days.   See Fed.R.Civ.P. 59(e).   The first signed certificate of service reflects that service was not made until June 28.   See Rivera, 840 F.2d at 155 (movant bears burden of establishing service of Rule 59(e) motion)

6
 As petitioner withdrew the third and final motion for reconsideration, notwithstanding our August 28, 1991 order directing the parties' attention to Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39 (1st Cir.1979) (defining procedure for filing and disposing of a Rule 60(b) motion while an appeal from the underlying judgment is pending in the court of appeals), petitioner plainly waived any claim of error relating to the denial of the motions for reconsideration

7
 Since we are unable to conduct effective appellate review without the benefit of the district court's consideration of the Jencks Act claim, if called upon to do so in the future the district court would be required to rule whether petitioner may raise the Jencks Act claim in a successive § 2255 petition.   See Rule 9(b), Rules Governing Section 2255 Proceedings.   The Supreme Court has held that a successive § 2254 petition presenting a ground for relief, not previously raised, is to be given "full consideration [on] the merits ... [unless] there has been an abuse of the writ or motion remedy;  and this the Government has the burden of pleading."  Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963) (§ 2254);  see Saville v. United States, 451 F.2d 649 (1st Cir.1971) (reversing district court denial of third habeas petition, without evidentiary hearing, where court relied on denials of prior motions, but third petition raised two new constitutional claims);  28 U.S.C. § 2244(b) (successive applications for § 2255 relief "need not be entertained ... unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application ..., and unless the court ... is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ");  8C J. Moore, Moore's Federal Practice p 15.07 (2d ed. 1992) ("If the section 2255 movant asserts a claim in a successive petition which he failed to assert in a prior section 2255 motion due to his deliberate bypass or inexcusable neglect, he is deemed to have abused the section 2255 remedy under Rule 9(b).").   But cf. McCleskey v. Zant, --- U.S. ----, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991) ("If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim.")  (§ 2254);  Sanders, 373 U.S. at 15, 83 S.Ct. at 1077 ("successive petition" standard same under § 2254 and § 2255)

8
 At trial, petitioner's counsel established the existence of a 1976 plea agreement in which Aceto agreed to testify on behalf of the government in future criminal trials (including petitioner's trial for armed bank robbery) in return for the government's promise to recommend favorable treatment for Aceto in federal and state criminal proceedings then pending against Aceto.   See Barrett, 766 F.2d at 613-14 (discussing particulars of Aceto's 1976 plea agreement with the government).   Petitioner's later decision to abandon the cross-examination of Aceto on voir dire about the 1983 Arkansas murder indictment is not to be confused with petitioner's successful effort to demonstrate to the jury Aceto's potential bias arising out of the 1976 plea agreement.   As to the latter, this court noted on direct appeal that petitioner's "Sixth Amendment right was adequately protected and that defense counsel, through extensive cross-examination, fully established the potential bias of Aceto stemming ... from ... his plea agreement...."  Id.   As the district court noted in its opinion dismissing the § 2255 petition, "Aceto was thoroughly impeached [with] ... [t]his [1976] agreement...."  Barrett, 763 F.Supp. at 663

9
 The court observed:
I brought this witness back for what you represented to me was a particular purpose and I have afforded you an opportunity to inquire into that purpose and you have elected not to pursue it.

10
 In addition to the Terison memorandum, petitioner relies on later documents, disclosed neither before nor during trial, which show that Brown, the Arkansas prosecutor, cooperated in petitioner's federal prosecution by relaying communications between AUSA Terison and Aceto.   These documents provide no independent support for an inference that Aceto harbored any expectation of lenient treatment in return for his testimony against petitioner, beyond whatever basis is indicated in the Terison memorandum.   As a matter of fact, these documents would tend to support the inference that Aceto's testimony against petitioner was not linked to any expectation of lenient treatment on the Arkansas murder charge.   In one document, for instance, Aceto provides information pertinent to petitioner's upcoming federal trial on the armed bank robbery charge, notwithstanding Aceto's statement that he has rejected a plea agreement relating to the Arkansas murder charge.   See also infra note 11.   Additionally, the affidavit AUSA Terison submitted in the § 2255 proceedings asserts that he is unaware of any inducements to Aceto other than as disclosed at trial, and that neither Terison nor his office took any action to secure favorable treatment for Aceto in connection with the Arkansas murder charge

11
 We are satisfied that the Terison memorandum (and related documents), simpliciter, would not have been sufficient to establish an evidentiary base for a reasonable inference that Aceto harbored an expectation of leniency on the Arkansas murder charge, since these documents were neither admissible in evidence nor directly probative of Aceto's expectations.   Moreover, Aceto's actions do not indicate that there was any agreed quid pro quo for his testimony against petitioner.   In fact, the documents relied upon by petitioner show that Aceto rejected a plea agreement in connection with the Arkansas murder indictment prior to petitioner's trial, but after Aceto provided information which assisted the government's prosecution of petitioner.   Second, shortly after petitioner's trial ended, Aceto went to trial on the Arkansas murder charge.   Thus, there is no evidence that Aceto ever entered into a plea agreement relating to his testimony against petitioner.   Although Aceto's trial resulted in a hung jury and Aceto subsequently pled guilty to the murder charge, the district court supportably found, see Barrett, 763 F.Supp. at 661 n. 2, (and petitioner does not challenge on appeal) that the Arkansas guilty plea was in no way connected with Aceto's testimony against petitioner.   Finally, petitioner's abandonment of the voir dire inquiry into Aceto's expectations for leniency, based exclusively on the pendency of the murder indictment and Aceto's provision of testimony at petitioner's trial, was resolved against petitioner on direct appeal, Barrett, 766 F.2d at 615, and cannot be collaterally attacked in these proceedings.  Murchu v. United States, 926 F.2d 50, 55 (1st Cir.)  (" 'Issues resolved by a prior appeal will not be reviewed again by way of a 28 U.S.C. § 2255 motion.' ")  (quoting Dirring v. United States, 370 F.2d 862, 864 (1st Cir.1967)), cert. denied, --- U.S. ----, 112 S.Ct. 99, 116 L.Ed.2d 70 (1991).   Accordingly, we turn to consider whether the cumulative effect of the Terison memorandum and related documents would have enabled petitioner to establish an evidentiary base for inferring an expectation of leniency on the part of Aceto, as distinguished from some free-floating hope of benefit which could only have been substantiated through direct inquiry as to Aceto's state of mind

12
 Similarly, the related documents demonstrate an ongoing cooperative relationship between the state and federal prosecutors to arrange Aceto's participation in petitioner's federal trial for armed bank robbery, but contain no representation, hearsay or otherwise, probative of Aceto's state of mind relating to any expectation of leniency.   See also supra notes 10 & 11.   The two references to a possible interest in a plea agreement make no connection between a possible plea to the Arkansas murder charge and any testimony or other assistance in the federal prosecution against petitioner.   In a letter to the Arkansas prosecutor, Aceto first indicates that he has already forwarded certain requested information relating to petitioner's federal trial.   In the next paragraph, Aceto rejects a plea agreement without linking its rejection in any way to the assistance he was providing to the federal prosecution against petitioner.   In another letter, Brown recommends a plea agreement and makes no mention of the federal prosecution.   The documents nevertheless demonstrate a factual predicate for inferring that Aceto's testimony at petitioner's trial was facilitated through the cooperation of the Arkansas prosecutor and AUSA Terison, which might have provided encouragement to pursue the voir dire examination of Aceto at trial.   See infra at pp. 1191-1192

13
 In these circumstances we do not think that a criminal defendant who possessed all the information necessary to spur inquiry into the state of mind of the key prosecution witness at trial can decline the opportunity and later rely on speculation and conjecture to demonstrate that cumulative impeachment evidence not available at trial would have resulted in an acquittal.   The decision to abandon the voir dire examination of Aceto appears to have been tactical.   For instance, although petitioner knew of the pending murder indictment, not only was Aceto not asked where the indictment was pending, but no attempt was made to inquire whether Prosecutor Brown, affiliation unspecified, was in any way involved with the pending murder indictment.   Although the entire effort to delimit disclosures relating to the indictment was based on the government's concerns for Aceto's personal security, the linking of the pending murder indictment with Prosecutor Brown (and Brown's known participation in Terison's interview of Aceto) would have disclosed the substantial equivalent of all the pertinent information contained in the undisclosed Terison memorandum, and related documents, without posing any additional risk to Aceto's security

14
 In addition, of course, through extensive cross-examination at trial "the grounds for bias on the part of Aceto were made very clear to the jury."  Barrett, 766 F.2d at 615 n. 6.   As the district court supportably found, "Aceto was thoroughly impeached by far more substantial means:  his mental illness, inconsistencies between trial and previous testimony, his prior criminal behavior, and his [1976] plea agreement with the government."  Barrett, 763 F.Supp. at 663.   See also infra note 16

15
 Although petitioner argued below that the transcript of the Arkansas interview was Brady material, see Barrett, 763 F.Supp. at 662-663, on appeal he adverts to the issue in perfunctory fashion only, never identifying it as Brady material, as distinguished from Jencks Act material, see text supra at pp. 1186-1187.   We deem any such Brady claim to have been waived.   See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990).   In any event, a careful comparison of the undisclosed verbatim transcript with the redacted Form 302 version of the interview and Aceto's trial testimony satisfies us that the claimed inconsistencies were minor and far from sufficient to "undermine confidence in the outcome of the trial."  Bagley, 473 U.S. at 678, 105 S.Ct. at 3381

16
 The district court characterized the trial testimony presented by Aceto's psychiatrist as indicating:
that Aceto was a victim of paranoid schizophrenia and that he was psychotic, delusional and probably paranoid and subject to hallucinations ... [and that] these conditions should be taken to have a severely adverse effect upon the reliability of Mr. Aceto's testimony and ... could well undermine his ability to tell the truth.
Barrett, 598 F.Supp. at 477 (emphasis in original).

17
 On direct appeal, this court adverted to the trial evidence that Aceto had been institutionalized three times and, not long before trial, had been prescribed 600 milligrams of Mellaril daily, which dosage often causes "confus[ion between] fact and fantasy."  Barrett, 766 F.2d at 615-16

18
 Inasmuch as trial counsel's effort to elicit that petitioner had acted in self-defense opened the door to the introduction of the death certificate, petitioner contends that counsel need merely have elicited testimony that petitioner had served 13 years in prison by the time his 1963 murder conviction was vacated.   Petitioner latches on to language in the opinion affirming his conviction on direct appeal
We may question whether such detail was necessary in order either to explain his being in prison or to make his point that he "was wrongfully incarcerated for 13 years, had no faith in the system, and therefore took to cover when Aceto implicated him."   The simple facts that he was convicted and served 13 years, and that his conviction was finally overturned would seem to serve both purposes sufficiently.
Barrett, 766 F.2d at 619 (emphasis added).   However, even though we may question informed trial counsel's tactical decisions, we may not find a deficient professional performance in the constitutional sense unless the challenged decisions were not "plausible options."  Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.

19
 Petitioner adverts to trial counsel's failure to offer Evidence Rule 106 as a basis for introducing transcripts of petitioner's 1963 murder trial to rebut the impact of the death certificate.   Since petitioner merely adverts to the claim in a perfunctory fashion in a footnote, and without "developed argumentation," the claim is deemed waived.   See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.)  (noting "settled appellate rule" that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived"), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990).   Moreover, the claim is not only problematic on the merits, but the decision not to emphasize the conflict in evidence which resulted in a jury verdict against petitioner at the original trial, certainly cannot be second-guessed on collateral review as an implausible tactical option
The district court excluded the rebuttal evidence on the ground that the transcripts amounted to inadmissible hearsay.   See Fed.R.Evid. 804(b)(1).   Although we need not resolve the matter now, we do note that there is considerable disagreement whether Fed.R.Evid. 106 can ever serve as a basis for admitting evidence which is inadmissible on other grounds.   Compare 1 J. Weinstein & M. Bergher, Weinstein's Evidence, p 106 (Rule 106 "covers an order of proof problem;  it is not designed to make something admissible that should be excluded");  United States v. Costner, 684 F.2d 370, 373 (6th Cir.1982) (same);  United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir.)  (same), cert. denied, 454 U.S. 830, 102 S.Ct. 125, 70 L.Ed.2d 106, and cert. denied, 454 U.S. 847, 102 S.Ct. 165, 70 L.Ed.2d 135 (1981), with 21 Charles A. Wright & Kenneth W. Graham, Federal Practice and Procedure, §§ 5072, 5078 (Rule 106 can fulfill its function adequately only if otherwise inadmissible evidence can be admitted under the rule);  United States v. Sutton, 801 F.2d 1346, 1368-69 (D.C.Cir.1986) (same).

20
 See Cruz-Sanchez v. Rivera-Cordero, 835 F.2d 947, 948-49 (1st Cir.1987) ("it is not even clear that newly discovered evidence is a ground for section 2255 relief");  Pelegrina v. United States, 601 F.2d 18, 19 (1st Cir.1979) (declining to decide whether newly discovered evidence is ground for § 2255 relief).   But cf.  Grace v. Butterworth, 586 F.2d 878, 880 (1st Cir.1978) ("It may be assumed that a compelling claim for relief might be presented when newly available evidence conclusively shows that a vital mistake had been made.")


74 Wn.2d 231 (1968)
443 P.2d 843
MILDRED HENRY MATSEN, Appellant,
v.
E.C. "EZ" KAISER, Respondent.[*]
No. 39453.
The Supreme Court of Washington, En Banc.
July 25, 1968.
Palmer, Willis & McArdle, Charles O. Shoemaker, Jr., and J.W. McArdle, for appellant.
Gavin, Robinson, Kendrick, Redman & Mays, by Leo C. Kendrick, for respondent.
HALE, J.
In 1909, the legislature, hoping to promote uprightness in public affairs, declared that any public officer convicted of a felony or malfeasance in office would not only forfeit but thenceforth be disqualified from holding public office.
*232 The statute reads:
The conviction of a public officer of any felony or malfeasance in office shall entail, in addition to such other penalty as may be imposed, the forfeiture of his office, and shall disqualify him from ever afterward holding any public office in this state. (Italics ours.) RCW 9.92.120.
It is now invoked against the Sheriff of Klickitat County to oust him from office. Coming here on an agreed statement of facts (Rule on Appeal 34 (4), RCW vol. 0), the case was initiated by plaintiff as an election contest under RCW 29.65.010 on the petition of Mildred H. Matsen as a registered voter of Klickitat County. Petitioner says that the defendant sheriff had been convicted of a felony during an earlier term of office and, therefore, under the statute, was and is ineligible to hold public office. Although the petition, or "Statement of Election Contest Pursuant to R.C.W. 29.65.010 et seq.," as it is denominated, asked that the election be annulled and set aside, the record on appeal makes it clear that the respondent sheriff has held and exercised office since January 9, 1967. Because of this, we believe that any remedy now available to petitioner would include a judgment of ouster, without further pleading or trial, for the facts and law governing both the election challenge and ouster in this case are identical. Petitioner now appeals from a judgment and order of dismissal based on findings of fact and conclusions of law entered December 28, 1966, dismissing with prejudice the election contest petition.
An agreed statement of facts constitutes the record of appeal now before us and includes, inter alia, the findings of fact, conclusions of law and the trial court's oral opinion. From them we gather what happened.
For several years prior to August 21, 1961, E.C. Kaiser had been the elected and legally qualified Sheriff of Klickitat County. August 21, 1961, he resigned that office. More than 1 year later, by supplemental information, the prosecuting attorney charged him with violating RCW 40.16.020, during his term as sheriff, i.e., with the felony of misappropriating *233 public records.[1] The appeal record does not describe the particular records which the defendant was charged with misappropriating, or concealing, or destroying, nor how it was done, but the parties agree, however, that the information charged a felony.
April 9, 1963, more than a year and one half after he had resigned the office of sheriff, Kaiser entered a plea of guilty to the supplemental information, and the court deferred the imposition of sentence for 6 months and placed him on probation. Two provisions of the order receiving and entering Kaiser's plea of guilty and granting probation tend more than the others to produce the problem here. The first such provision stated:
NOW, THEREFORE, IT IS THE JUDGMENT OF THIS COURT That the Defendant, E.C. Kaiser, is guilty of the crime of Misappropriation of Public Record by a Public Officer, as charged, and....
The order then placed the defendant on probation for 6 months, specifying terms and conditions. It contained a proviso that, in case of a breach of strict compliance, the defendant would be subject to immediate apprehension and imposition and execution of sentence on his plea of guilty. The second crucial provision stated:
IT IS FURTHER ORDERED That if the said Defendant fulfills and faithfully complies with all of the terms and conditions herein set forth, he may, at the expiration of the period of probation, be permitted, in the sound discretion of this Court, to withdraw his plea of guilty and enter a plea of not guilty and this Court may thereupon dismiss the information filed herein and if such is done, the said Defendant shall thereafter be released from all penalties and disabilities resulting from this offense; ....
*234 November 5, 1963, Kaiser, showing his compliance with the terms of probation, petitioned the court for leave to withdraw his plea of guilty and enter a plea of not guilty to the information. He petitioned, too, that the court order the information dismissed and that he be released from all penalties and disabilities resulting from the information. Thereupon, the court granted this petition fully, and entered a written order of dismissal, November 5, 1963, which declared:
ORDERED, ADJUDGED AND DECREED That the above-entitled cause charging the defendant herein with the crime of Misappropriation of Public Records by a Public Officer be, and the same is hereby dismissed and the defendant is discharged from further attendance herein and is released from all penalties and disabilities resulting from the filing of said charge.
Appellant contends that the statutes conferring jurisdiction on the court to grant probation (RCW 9.95.200) and to defer the imposition or suspend the execution of sentence (RCW 9.95.240), even though empowering the court to subsequently vacate the plea of guilty, dismiss the information and affirmatively relieve the accused of all disabilities and penalties, do not erase the conviction ab initio.
Appellant argues, too, that not only would a plea of guilty to a felony charge duly received and entered constitute a conviction of felony or establish malfeasance in office, but says that the court made a specific finding of guilt in declaring that the "Defendant, E.C. Kaiser, is guilty of the crime of Misappropriation of Public Record by a Public Officer." This judicial declaration of guilt, however, set forth as it was in the order granting probation should not, without more, be treated as a judgment and sentence. The finding, based upon a plea of guilty, that the defendant was guilty, although legally sufficient to confer jurisdiction upon the court to defer sentencing and grant probation, obviously did not, when standing alone, constitute a judgment and sentence. While a finding of guilt is ordinarily essential to imposition of a sentence, it did not in this instance represent the court's final adjudication of guilt in the premises. *235 Under the statute, RCW 9.95.240, the court had power to defer imposition of sentence and grant probation upon entry of the plea of guilty without including in the order an explicit declaration of guilt. Accordingly, a finding of guilt in an order deferring imposition of sentence and granting probation is not the legal equivalent of a judgment and sentence, except where, by statute, a plea or verdict of guilty shall be deemed a conviction.
Did the entry and the court's acceptance of the sheriff's plea of guilty to a felony charge, when followed by deferment of sentence, probation, withdrawal of plea, dismissal of the information and removal of all penalties and disabilities, amount to a conviction of felony under RCW 9.92.120, or constitute the establishment of malfeasance in office so as to disqualify the sheriff from election to or thereafter serving in any public office?
Certainly from both a moral and legal standpoint, a plea of guilty, or a jury verdict of guilty, in one sense constitutes a conviction, for the same statute which permits the court to expunge the conviction and dismiss the information on fulfillment of probation expressly declares that such plea or verdict will count as a conviction in any subsequent prosecution. RCW 9.95.240. And, of course, the entry of a judgment and sentence upon a plea of guilty or verdict of the jury, if execution of the sentence is suspended, likewise constitutes a conviction warranting ouster from office, even though an appeal therefrom is pending. In re Simmons, 65 Wn.2d 88, 395 P.2d 1013 (1964); State ex rel. Zempel v. Twitchell, 59 Wn.2d 419, 367 P.2d 985 (1962).
One of the principal reasons supporting a forfeiture of office pending appeal undoubtedly is that a strong presumption of validity supports the judgment of a court of record. It would create an absurdity in government to allow one whose guilt has been established by judgment and sentence to continue in a public office during his appeal. It is simply a matter of balancing two possible harms: the possible unfairness of an individual's loss of public office during the remainder of his term against the inherent danger to the *236 body politic that a criminal may exercise the powers of government.
But the seeming conflict between a case which holds that immediately upon conviction of any felony or malfeasance in office a public officer forfeits his office and the present case is illusory, because in the former a judgment and sentence is actually imposed upon the defendant, whereas here there has been no judgment and sentence. Thus, the word conviction in criminal statutes has more than one meaning; it may mean a finding of guilt in one situation  as in a verdict or plea of guilty  or in other circumstances and in a different context may mean a formal finding or declaration of guilt  as in a judgment and sentence. State ex rel. Brown v. Superior Court, 79 Wash. 570, 140 Pac. 555 (1914).
For most purposes, therefore, there exists a distinction between the legal effect of a deferred sentence, that is, one in which imposition of sentence is deferred, and a suspended sentence, where the court actually imposes a sentence but suspends its execution. In assessing one's rights to vote or hold public office, we would say that a deferred sentence is no bar, whereas a suspended sentence would be a conviction. In re Richetti v. New York State Bd. of Parole, 300 N.Y. 357, 90 N.E.2d 893 (1950); Truchon v. Toomey, 116 Cal. App.2d 736, 254 P.2d 638, 36 A.L.R.2d 1230 (1953).
[1] In the instant case, the acceptance and entry of defendant's plea of guilty by the superior court was followed by an order deferring the imposition of sentence; a granting of probation; a finding of successful probation; a permitted withdrawal of his plea of guilty; entry of a plea of not guilty; the issuance of an order dismissing the information to which the plea of guilty had been entered; and a judicial decree releasing the defendant from all penalties and disabilities resulting from the filing of the information. When these procedures are considered in connection with the defendant's right to hold office or ouster therefrom under RCW 9.92.120, the resultant, despite the plea of guilty, does not amount to a conviction. The defendant, therefore, was *237 not convicted within the meaning of RCW 9.92.120 which calls for a forfeiture of and disqualifies him from public office upon conviction of a felony or malfeasance in office.
Affirmed.
HUNTER, J., concurs.
HAMILTON, J. (concurring)
I concur in the ultimate result reached by the majority, i.e., that respondent is presently entitled to hold the office of Sheriff of Klickitat County, to which he was duly elected by the voters of that county on November 8, 1966, some 3 years after the order of the superior court dismissing his earlier conviction. This result, in my view, does not spring from any sophisticated distinction laboriously drawn between pleas or verdicts of guilty and convictions, or between sentencing procedures. Instead, it seems to me, it flows rather effortlessly from the simple fact that the legislature has provided by RCW 9.95.240, of the deferred sentence statute, that:
Every defendant who has fulfilled the conditions of his probation ... may at any time prior to the expiration of the maximum period of punishment for the offense ... be permitted in the discretion of the court to withdraw his plea of guilty and enter a plea of not guilty, or if he has been convicted after a plea of not guilty, the court may in its discretion set aside the verdict of guilty; and in either case, the court may thereupon dismiss the information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted.... Provided, That in any subsequent prosecution, for any other offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had not been granted, or the information or indictment dismissed. (Italics mine.)
This statute is a legislative expression of public policy in the field of criminal law and rehabilitation. It undertakes, in unambiguous terms, to restore a deserving offender to his preconviction status as a full-fledged citizen. The only exception to the statutory release of all penalties and disabilities attendant upon a conviction is found in the proviso, which is not applicable in the instant case.
*238 RCW 9.92.120 is likewise a legislative expression of public policy. It provides:
The conviction of a public officer of any felony or malfeasance in office shall entail, in addition to such other penalty as may be imposed, the forfeiture of his office, and shall disqualify him from ever afterward holding any public office in this state. (Italics mine.)
The language utilized by the legislature would appear to indicate that it equated the consequences provided by the statute with the term "penalty," and the import of that term as generally recognized in criminal law parlance. And, it would also appear that the legislature contemplated that two distinct penalties would follow the criminal conviction of a public officer, i.e., (1) forfeiture of the office then held, and (2) disqualification from afterward holding any other public office.
In applying RCW 9.92.120, supra, this court has consistently held that an adjudication of guilt in the trial court immediately invoked the forfeiture feature of the statute, regardless of the possible outcome of any appeal from the trial court proceeding. State ex rel. Guthrie v. Chapman, 187 Wash. 327, 60 P.2d 245 (1936); State ex rel. Knabb v. Frater, 198 Wash. 675, 89 P.2d 1046 (1939); State ex rel. Zempel v. Twitchell, 59 Wn.2d 419, 367 P.2d 985 (1962); State ex rel. Carroll v. Simmons, 61 Wn.2d 146, 377 P.2d 421 (1962). This court has never, however, held that the future disqualification feature of the statute would survive and continue in effect despite a reversal of the conviction on appeal and an acquittal or a dismissal of the prosecution following the reversal. And, it seems somewhat unlikely that this court would so hold.
[1] By analogy then, it seems to me that if the legislature in its wisdom sees fit to provide a statutory method by which all penalties and disabilities engraved upon a criminal conviction, save a specified one, may, under certain conditions, be wholly erased it ought logically to follow that the erasure embraces the disability of the future disqualification feature of RCW 9.92.120, supra. Certainly, had *239 the legislature intended otherwise, it could have so stated in the proviso to RCW 9.95.240, supra.
The net effect, therefore, of an adjudication of felony guilt and the entry of an order of deferred sentence involving an individual holding public office should be the immediate forfeiture of that individual's office and a disqualification from holding any public office during any probationary period and until such time as the individual qualified for and received the order of dismissal provided for by RCW 9.95.240. Thereafter, it would be my view that the restoration of citizenship rights accompanying the order of dismissal would and should restore the individual's eligibility to run for public office, and if the voters, knowing of his former record, see fit to elect him to public office such should be their right. In this way RCW 9.92.120 and 9.95.240, and the respective policy considerations behind each, work in complete harmony.
The same harmonious accommodation would not, however, seem to follow the approach of the majority opinion; for, as I read the opinion, the majority's reasoning leads to the probable continuation in office of a public official, who, after being adjudged guilty of a felony, receives an order of deferred sentence, which, incidentally, may or may not include a jail sentence as a condition thereof. This unusual result tends to defeat the wholesome purpose and policy of RCW 9.92.120 and, in my view, is a result which was never intended by the legislature. Furthermore, the majority, in drawing sustenance for its view from the distinctions between deferred and suspended sentences, unnecessarily projects a potential element of discrimination into sentencing procedures when a defendant happens to be a public officer. Again, I am sure the legislature never intended to foster such a development, and this court, by circuitous reasoning, should not be the father of that consequence. Instead, the facts and circumstances of each case should be permitted to channel and direct the trial court's choice between a deferred, suspended or penal sentence rather than this court's subtle suggestion that a *240 convicted public official might escape forfeiture of office if he receives a deferred sentence.
For the reasons stated, I concur with the majority only in the conclusion that respondent  having been timely released from all pertinent penalties and disabilities flowing from his conviction  is not now disqualified from serving in the office to which he was elected by the voters of Klickitat County.
FINLEY, C.J., NEILL, and McGOVERN, JJ., concur with HAMILTON, J.
HILL, J. (dissenting)
I dissent. The majority opinion is a labored explanation of when a conviction is not a conviction, which I do not find convincing.
The question should be: When does a disqualification to hold public office cease to be a disqualification?
The statute with which we are concerned is set forth on the first page of the majority opinion and says that the "conviction of a public officer of any felony or malfeasance in office" entails the forfeiture of his office and disqualification from ever after holding any public office in this state.
We were adamant as flint about this statute meaning what it says in State ex rel. Carroll v. Simmons, 61 Wn.2d 146, 377 P.2d 421 (1962), and State ex rel. Zempel v. Twitchell, 59 Wn.2d 419, 367 P.2d 985 (1962).
We are adamant as putty in the present case where "Ez" Kaiser, after resigning as Sheriff of Klickitat County, plead guilty to misappropriating a public record while occupying that position. This offense is conceded to be a felony and, obviously, constitutes misfeasance in office. A judgment of conviction was entered on that plea. However, there is ample authority that a plea of guilty in itself constitutes a conviction. In 21 Am.Jur.2d Criminal Law § 495, at 484, it is said:
In short, a plea of guilty is an admission or a confession of guilt, and as conclusive as a verdict of a jury; it admits all material fact averments of the accusation, leaving no issue for the jury, except in those instances where the *241 extent of the punishment is to be imposed or found by the jury.
This court has said:
Such plea is a confession of guilt and is equivalent to a conviction, leaving no issue for the jury, except in those instances where the extent of the punishment is to be imposed or found by the jury. By pleading guilty the defendant admits the acts well pleaded in the charge, waives all defenses other than that the indictment or information charges no offense, and waives the right to trial and the incidents thereof. In re Brandon v. Webb, 23 Wn.2d 155, 160, 160 P.2d 529 (1945)
The majority upholds Kaiser's right to now hold the office of sheriff, to which he has been re-elected, urging that having been placed on probation following his conviction and having satisfactorily completed the probationary period, the conviction and the offense can be and were wiped out as provided in RCW 9.95.240.
The majority has quite forgotten our rather critical appraisal  in the Twitchell case, supra  of the courts in a few jurisdictions that "have yielded to sentimentality or empathy for public officials." We pointed out in that case that RCW 42.12.010 and RCW 9.92.120 are expressions of legislative policy. It seems to me that a disqualification "from ever afterward holding any public office in this state," after a judgment of conviction of a felony or of misfeasance in office is a declaration of public policy that should not be wiped out by the partial erasure process provided for in RCW 9.95.240, on which the majority places its reliance. (I say "partial erasure" because, as the majority points out, the guilty plea will count as a conviction in any subsequent prosecution.)
I am aware of our decision in Tembruell v. Seattle, 64 Wn.2d 503, 392 P.2d 453 (1964), holding that a plea of guilty is not a conviction under RCW 41.20.110  a statute depriving a retired policeman of his pension upon being convicted of a felony. There was involved in that case a property right in deferred compensation. It is my view that under RCW 9.95.240 a plea of guilty is a conviction *242 because it deprives the public officer of his office forthwith and, by the same token, should disqualify him  in the absence of a pardon  from again being eligible for any public office in this state.
I also question the constitutionality of a statute giving to the courts the pardoning power (the wiping out of a conviction). The pardoning power is vested in the Governor "under such regulations and restrictions as may be provided by law." Const. art. 3, § 9. While courts may suspend or defer sentence upon a convicted person, the pardoning power rests with the Governor.
With some questioning,[2] it seems to be the rule that the exercise of the constitutional pardoning power by the Governor can restore eligibility to public office lost by the conviction for certain crimes. State ex rel. Cloud v. State Election Bd., 169 Okla. 363, 36 P.2d 20, 94 A.L.R. 1007 (1934). The legislature cannot restore such eligibility. Ferguson v. Wilcox, 119 Tex. 280, 28 S.W.2d 526 (1930). I find no authority that the courts can constitutionally do so. Suspend or defer sentences, yes; restore eligibility to office after conviction, no!
I would direct the trial court to enter a judgment of ouster and remove Mr. Kaiser as the Sheriff of Klickitat County.
WEAVER and ROSELLINI, JJ., concur with HILL, J.
October 1, 1968. Petition for rehearing denied.
NOTES
[*]  Reported in 443 P.2d 843.
[1]  "Every officer who shall mutilate, destroy, conceal, erase, obliterate or falsify any record or paper appertaining to his office, or who shall fraudulently appropriate to his own use or to the use of another person, or secrete with intent to appropriate to such use, any money, evidence of debt or other property intrusted to him by virtue of his office, shall be punished by imprisonment in the state penitentiary for not more than ten years, or by a fine of not more than five thousand dollars, or by both." RCW 40.16.020.
[2]  See Pardon as restoring eligibility to public office, Annot., 94 A.L.R. 1011 (1934).


       Third District Court of Appeal
                                State of Florida

                         Opinion filed November 12, 2014.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D13-2361
                          Lower Tribunal No. 07-19086
                              ________________

                               Patricia Sbroggio,
                                     Appellant,

                                         vs.

                              Graziano Sbroggio,
                                     Appellee.

      An appeal from the Circuit Court for Miami-Dade County, John C.
Schlesinger, Judge.

      Robert J. Merlin, for appellant.

     Perez-Abreu & Martin-Lavielle and Ana-Maria Mejer and Javier Perez-
Abreu, for appellee.

Before SUAREZ, ROTHENBERG, and LAGOA, JJ.

      PER CURIAM.

      We affirm the trial court on the granting of Appellee’s Petition for

Modification of Parenting Plan/Timesharing. We reverse the trial court’s retention
of jurisdiction to consider Appellant’s claim for attorney’s fees because it was not

properly pled below.

      Affirmed in part, reversed in part.

                                            2


810 F.2d 1163
Edwardsv.Government of Virgin Islands
86-3221
United States Court of Appeals,Third Circuit.
1/22/87

1
D.V.I.

AFFIRMED


97 Cal.App.2d 169 (1950)
Estate of VIOLA ELMO GUZZETTA. LULA M. PARTRIDGE, as Executrix, Appellant,
v.
STANLEY OWEN WILLIAMS et al., Respondents.
Civ. No. 17227.
California Court of Appeals. Second Dist., Div. Three.
Apr. 25, 1950.
 W. W. Comstock for Appellant.
 Maurice Gordon, Harold W. Kennedy, County Counsel, and Henry W. Gardett, Deputy County Counsel, for Respondents.
 SHINN, J.
 Lula M. Partridge appeals from an order revoking letters of administration with will annexed which had been issued to her, and appointing the Public Administrator as her successor.
 The order was made upon the petition of Stanley Owen Williams, a creditor of the estate and the chief beneficiary under the will, which alleged that Williams, Lula Partridge and one Carl Carter were named as legatees in decedent's holographic will dated August 11, 1947; testatrix died May 26, 1948; the will was admitted to probate on July 6, 1948, and Lula Partridge was appointed administratrix with will annexed; on November 18, 1948, she filed a petition to revoke probate of the will upon the ground that Williams had procured its execution by means of undue influence, duress, coercion and fraud; she claimed to be the mother of decedent, and by virtue of such relationship would inherit the entire estate in the event of intestacy; the interest of Lula Partridge in the estate was adverse to that of petitioner and there was a conflict of interest between her as administratrix and petitioner as a person interested in the estate. In her answer Lula Partridge admitted, either expressly or by not denying, all of the foregoing allegations of the complaint. The minute order from which the appeal is taken recites that the petition *171 came on for hearing on January 19, 1949, that notice of hearing had been given as required by law, and that removal was ordered by the court "after hearing the evidence." The minutes do not recite that appellant or her attorney was present. No findings of fact or conclusions of law were signed by the court. The appeal is presented solely on the clerk's transcript.
 [1] It is contended that the failure to make written findings constitutes reversible error. This contention is not tenable. Appellant's answer raised no issue of fact. Although the minute order recites that evidence was taken it is stated by respondent and not questioned by appellant that the matter was submitted on the petition and answer. The order represents only a decision of a question of law. Findings were not required.
 [2] The question here is whether it was an abuse of discretion to remove appellant as administratrix with will annexed where she was contesting the will in order to acquire the entire estate by inheritance. Section 521 of the Probate Code authorizes the court to revoke the letters of an executor or administrator for actual or threatened waste or embezzlement of property of the estate or mismanagement or actual or threatened fraud or for incompetency, removal from the state, or wrongful neglect of the estate, and section 523 requires removal and revocation of letters if the executor or administrator fails to appear in obedience to the citation, or if he appears and the court is satisfied from the evidence that cause for removal exists. There are numerous other provisions in the Probate Code which authorize or require removal in special circumstances. However, conflict between the interest of an executor or administrator with will annexed, consisting of a right of inheritance in case of intestacy, and his duty to defend the will and to fairly represent and protect the rights and interests of beneficiaries of the will is not made a statutory ground for removal. Appellant was the one who procured admission of the will to probate. She represented herself to be the sole heir, and her right to be appointed was duly recognized. She contends that she was subject to removal only for one of the causes enumerated in section 521, and that her statutory right is not affected by the assertion of a claim to the entire estate adversely to the beneficiaries of the will. We do not doubt that the court has the inherent power to remove an executor or *172 administrator with will annexed in such a case. The duty to uphold the probate of a will and to protect the interests of the beneficiaries rests upon an executor. (Estate of Webster, 43 Cal.App.2d 6, 20 [110 P.2d 81, 111 P.2d 355]; 11B Cal.Jur.  819, pp. 222, 223; 68 C.J.  680, p. 935, note 66.) An administrator with will annexed has the same duty to see that the desires of the testator are given effect. Appellant's claim as sole heir and her attack upon the will are inconsistent with the performance of her duty to defend the will and to see that its terms are carried out. She was a trustee for the beneficiaries (11A Cal.Jur.  22, p. 72), and took a position which conflicted with her fiduciary duties when she instituted the contest. The court should have felt impelled to exact of her as a trustee and officer of the court the ultimate in the performance of her duties, and was not required to retain her in her office of administratrix with will annexed when there would be a continuing conflict between her selfish interest and her duty. (Estate of Tersip, 86 Cal.App.2d 43 [194 P.2d 66].) A trustee who acquires any interest or becomes charged with any duty adverse to the interest of his beneficiary may be removed. (Civ. Code,  2233.) There is no reason why this principle of the law of trusts should not be applied in a proper case to executors and administrators. There is here not merely a trivial or incidental conflict of interest but a major one deliberately brought about by appellant. Had the adverse claim of appellant been known to the court at the time she applied for letters, it would have furnished a sufficient ground for denial of her petition. (Estate of St. John, 8 Cal.2d 175 [64 P.2d 725].) It is a general rule that when an executor or administrator makes claim to property which other interested parties claim belongs to the estate, the adverse interest thus asserted furnishes sufficient ground for removal. (119 A.L.R. 306.) Although the precise question we have to consider appears not to have been decided in California, the views we express are consistent with the principles announced in Luckey v. Superior Court, 209 Cal. 360, 370 [287 P. 450]; Estate of Bell, 135 Cal. 194 [67 P. 123]; Estate of Palm, 68 Cal.App.2d 204, 213, 214 [156 P.2d 62]; and Estate of Tersip, supra, 86 Cal.App.2d 43. (See, also, Moore v. Thomas, 115 W.Va. 237 [174 S.E. 876], In re Pearson's Estate, 228 App.Div. 418 [239 N.Y.S. 653] 33 C.J.S.  90(e), p. 1036; Anno. 119 A.L.R. 306, 138 Am.St.Rep. 535.) If appellant had been retained as administratrix with will annexed she would have found herself *173 in the contradictory and impossible position of attempting to procure revocation of probate of the will while under a duty to sustain it. The circumstances required her to make a choice between her right to contest the will and her right to letters.
 [3] Sections 521 of the Probate Code, which specifies certain grounds for removal, and section 523 relate only to situations in which removal is mandatory. The code does not place any limitations upon the discretionary power of the court in such matters. There is nothing in the statutory law which expressly or by implication attempts to deprive the court of its inherent power to remove an executor or administrator whose self- interest is so opposed to the interests of the beneficiaries under a will as to render him unfit to act as such. The court is not compelled to retain as its own officer one whom it would be required to remove from any other type of trusteeship. We can conceive of no good reason why the court should not have removed appellant.
 The order is affirmed.
 Wood, J., concurred.
 Vallee, J., dissented.


560 F.Supp. 119 (1982)
Fred S. NOLAN, et als., Plaintiffs,
v.
OTIS ELEVATOR COMPANY, Defendant.
Civ. No. 82-1888.
United States District Court, D. New Jersey.
August 12, 1982.
*120 Greenberg, Kelley & Prior by William S. Greenberg and James F. Schwerin, Trenton, N.J., for plaintiffs.
Goodman, Stoldt, Breslin & Horan by John D. Horan, Hackensack, N.J., Peter F. Healey and William B. Peterson, Washington, D.C., of counsel, for defendant.

OPINION
BIUNNO, Senior District Judge.
This is a case removed here from Superior Court of New Jersey, in which the court initiated inquiry by order to show cause on the question whether the case was removed improvidently and without jurisdiction so as to require its remand under 28 U.S.C. § 1447(c).
The case is not removable under diversity jurisdiction because defendant has dual citizenship in New Jersey (where it was incorporated) and Connecticut (where its principal place of business is located), see 28 U.S.C. § 1332(c), and 28 U.S.C. § 1441(b), last sentence. Only defendants who are not citizens of the forum may remove a case on diversity grounds. Beyond that, all but one of the plaintiffs appear to be citizens of New Jersey.
Thus, removal is grounded (if it can be sustained at all) on grounds that the case "arises under" the Constitution, laws or treaties of the United States, 28 U.S.C. § 1331(a), or under an Act of Congress regulating commerce, 28 U.S.C. § 1337.
The complaint, which is by 25 named plaintiffs, alleges that all the plaintiffs were employees of defendant Otis, were employed in management positions, and were not represented by any labor union. It says that during 1980, all plaintiffs were terminated as part of a reduction in force effected for financial reasons at the Harrison plant, with a final work date of May 16, 1980. [NOTE: the Answer alleges that only 20 plaintiffs were so terminated; it says that four were transferred to another facility at Yonkers, N.Y. and were later terminated, or retired, while a fifth went on sick-leave and then retired on disability pension. Assuming these allegations to be true, the case asserted by the other 20 remains unaffected].
The complaint alleges that each plaintiff had 25 or more years of service with Otis at termination, and that each was under 55 years of age, and received a severance benefit of 1 week's pay for each year of service.
It says that "other employees" who had 25 years' or more service when terminated but who were 55 years of age or older, received "benefits greatly exceeding those paid to plaintiffs." It does not say whether the "other employees" were also management employees not represented by a labor *121 union, nor does it say whether the other employees received a severance benefit plus some other kind of benefit, or no severance benefit but some other kind of benefit instead.
What it does say, for each plaintiff, is that had the individual been 55 years or more old, and was treated as were those of that age, each would have received benefits worth $X more than was paid (each amount being in excess of $10,000).
It then alleges that Otis' action in paying greater benefits to those 55 years of age or more, with 25 years or more of service, than was paid to those under 55 with like service, was an unlawful discrimination as to a term, condition or privilege of employment because of age, in violation of N.J.S.A. 10:5-12(a), and claim is made for the differential.
Whether or not the claims are valid ones under State law is not the question here. New Jersey statutes dealing with various kinds of discrimination under various circumstances are quite old, going back to the 1800's. The modern Law Against Discrimination originated as N.J.P.L. 1945, c. 169, and was designed to fulfill guarantees of civil rights provided in the Constitution of 1844, which were continued in the Constitution of 1947, as well as in exercise of the police power and to promote the general welfare, see N.J.S.A. 10:5-2.
N.J.Const.1844, Art. I, par. 1, declared the natural and inalienable right of pursuing and obtaining safety and happiness. Art. I, sec. 4, declared that no person was to be denied the enjoyment of any civil right, merely on account of his religious principles. N.J.Const.1947, by Art. I, par. 1, continued the happiness clause, and enlarged the civil rights clause in Art. I, par. 5 to forbid discrimination because of religious principles, race, color, ancestry or national origin.
The New Jersey Law Against Discrimination did not list age, marital status or sex as forbidden criteria in various contexts. These were added later by amendment.
At the time "age" was added as a forbidden criterion in employment contexts but not for other circumstances, the act was also amended to include what is now N.J. S.A. 10:5-2.1, which provided in part that nothing in the Law Against Discrimination is to be construed "to interfere with the operation of the terms or conditions and administration of any bona fide retirement, pension, employee benefit or insurance plan or program." See N.J.P.L.1962, c. 37.
These features, of course, do not tend to disclose that the case "arises" under any federal source of law. They deal only with state law, and provide no basis for removal.
The petition for removal asserts other facts. It asserts that the Harrison plant was shut down solely for financial reasons, its physical plant and equipment sold and employees terminated. It says that under a deferred compensation plan established for the Harrison plant, management employees not represented by a labor union who were 55 years of age or over and who had 25 years or more of service, were paid a special supplemental retirement benefit. This benefit is said not to have been payable by the terms of the plan to the plaintiffs as they were under age 55.
The petition asserts that plaintiffs cannot state a valid cause of action under state law because, by federal law the subject is preempted by ERISA, 29 U.S.C. § 1001, et seq. If they have claims at all, it is argued that they arise under either ERISA or the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq.
Alternatively, it is said that ERISA preemption involves interpretation of that law and ultimately the Supremacy Clause, both of which are said to be unavoidable, which go to the heart of the validity of the claims.
As a second alternative it is argued that the claims arise exclusively under ERISA as an action by "participants" or "beneficiaries" to recover benefits or enforce rights under the terms of a plan, 29 U.S.C. § 1002(7) and (8).
While it is conceded that ADEA itself contains no preemption provision in respect *122 to state laws on age discrimination, it is argued that ERISA and ADEA taken together have this effect, and that as a consequence, the real nature of the claim is federal despite the plaintiffs' characterization of it, or that the claim is one that is exclusively governed by federal law so that plaintiffs are necessarily stating a federal cause of action no matter whether it is so articulated or not. See, e.g., such cases as Burgess v. Charlottesville, etc., 477 F.2d 40 (CA 4, 1973); Romick v. Bekins Van etc., 197 F.2d 369 (CA 5, 1952); Johnson v. England, 356 F.2d 44 (CA 9, 1966).
This is not the situation in this case. Plaintiffs' complaint states, and is intended to state, a claim under the state statute only. No claim is made under ERISA or under ADEA. The federal questions of preemption, and the like, even assuming they are valid, are raised as defenses and to support the counterclaim for declaratory judgment. This does not provide a basis for removal, see Madsen v. Prudential Federal S & L, 635 F.2d 797 (CA 10, 1980), cert. den. 451 U.S. 1018, 101 S.Ct. 3007, 69 L.Ed.2d 389; Stone v. Stone, 632 F.2d 740 (CA 9, 1980), cert. den. 453 U.S. 922, 101 S.Ct. 3158, 69 L.Ed.2d 1004; First Nat'l etc. v. Aberdeen etc., 627 F.2d 843 (CA 8, 1980).
There is no need to review here the entire history of the removal statutes since the first Judiciary Act of 1789. It is sufficient to note that since the Act of March 3, 1887, from which the present statute, 28 U.S.C. § 1441 is derived, removal is not authorized in a case where the federal question is a matter of defense. See State of Tennessee v. Bank of Commerce, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894). Only a defendant may remove, Chicago, etc. Co. v. Stude, 346 U.S. 574, 74 S.Ct. 290, 98 L.Ed. 317 (1954), and so even a plaintiff who sues in state court and has a federal counterclaim asserted against him cannot remove, Oregon, etc. v. Andrews, 458 F.2d 382 (CA 9, 1972). See, also, La Chemise Lacoste v. Alligator Co., 506 F.2d 339 (CA 3, 1974), cert. den. 421 U.S. 937, 95 S.Ct. 1666, 44 L.Ed.2d 94.
Another leading case is Gully v. First Nat'l Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936), where the suit sought to be removed was to collect taxes under state law from a national bank, and was ordered remanded even though the state's power to levy the tax depended on federal law.
See, also, Shamrock, etc. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) which precludes a plaintiff against whom a counterclaim is asserted from removing under the statute.
No doubt there has been considerable debate about altering these principles, as in the ALI Study of the Division of Jurisdiction, etc., adopted in 1965 and 1968 (Philadelphia, 1969). The text of § 1312(a) there proposed would have allowed removal by a defendant on the basis of a federal defense or counterclaim, as well as by a plaintiff against whom a federal counterclaim was asserted, among others. The drafters' note says:
"Subsection (a) is a major change in present law. To allow removal on the basis of a federal defense or counterclaim is new."
The proposed draft has never been enacted, and is not law this court can apply.
Quite evidently, plaintiffs have sued in state court to make a state claim if it can be made. They may recognize that they have no federal claim or at least choose not to assert any. The federal defenses raised by Otis may preclude any recovery under state law. If so, that is a result to be achieved in the state court and provides no basis for removal here. On the other hand, there may turn out to be an area of state law for which federal law does not control. If that be the case, then that claim surely does not "arise" under federal law and cannot be removed. The age laws are different in various respects. The state law governs in the areas of employment, boycotts and credit transactions. The federal law applies only in employment. The state law applies from age 18 on up, with no upper limit. The federal law originally applied to ages 40-65, and was amended to ages 40-70.
There is no precedent binding on this court dealing with the interplay between *123 ERISA, ADEA and a state age discrimination law. Under all these circumstances, the court cannot say that the complaint asserts a federal claim disguised as a state claim by artful pleading. Whether the asserted state claim has any validity is a matter of defense. The Superior Court may conclude that the direction of N.J.S.A. 10:5-2.1 precludes recovery without regard to federal law.
Otis also argues that even if the complaint be remanded, jurisdiction should be retained over the counterclaim because it has an independent basis for federal jurisdiction. The precedents cited from the Court of Appeals in this circuit do not support the proposition. Neither Rengo v. Molins, 657 F.2d 535 (CA 3, 1981), nor National Research v. Bartholomew, 482 F.2d 386 (CA 3, 1973) was a removal case and so neither addresses the question involved here. Ferguson v. Eakle, 492 F.2d 26 (CA 3, 1973) was a removal case, but there was no issue of improvident removal or lack of jurisdiction. Rather, after an answer and counterclaim, there was a dismissal under F.R. Civ.P. 41 so far as the complaint was concerned, and Rule 41 itself requires retention of the counterclaim under those conditions.
The difficulty with the argument is that it ignores the matter of jurisdiction. The district courts are of limited statutory jurisdiction. If a case be removed improvidently and without jurisdiction under the removal statute, no jurisdiction is obtained by the filing of a counterclaim even though it states a federal claim.
In arriving at its conclusions, the court takes care to note that it has expressed no view on the opposing views presented on the merits of the federal defense, or, for that matter, on the possible inapplicability of the state statute sued on in light of the 1962 declaration, enacted at the same time that "age" was added to some parts of the statute, barring interference with any bona fide retirement, pension, employee benefit or insurance plan or program, N.J.S.A. 10:5-2.1, a provision of the same nature as that in ADEA, 29 U.S.C. § 623(f)(2).
Plaintiffs also seek the allowance of attorneys fees and costs. Precedents in other circuits are relied on for the proposition that attorneys fees are allowable on remand for improper removal. No claim is made that they are allowable here under Roadway Express v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980).
Assuming there is such authority (which the court need not decide), it is admittedly within the sound discretion of the court to make such allowance.
The court exercises its discretion to disallow costs, or attorneys fees. The matter was raised by the court on its own initiative, and most of the plaintiffs' brief, which was nearly double the maximum length allowed by General Rule 27 of this district was addressed to the merits of Otis's alleged federal defenses, a subject which this court could not deal with unless removal was proper.
The conclusion is that the case was removed improvidently and without jurisdiction, and so must be remanded to Superior Court of New Jersey as required by 28 U.S.C. § 1447(c).