Robert Lee HOLLEMAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee, 721 F.2d 1136

CUMMINGS, Chief Judge. This is an appeal from the denial of a motion to vacate a

summary dismissal of a

Section 2255 motion to vacate sentence as well as an appeal from the denial of motions for an evidentiary hearing and an expanded record. I On February 4,1977, Robert L. Holleman was convicted in the United States District Court for the Northern District of Indiana of robbing a federally-insured credit union in violation of 18 U.S.C. § 2113(a). District Judge Allen Sharp imposed a sentence of twenty years’ imprisonment to run consecutively with a state sentence Holleman was then serving as a result of a state court conviction.

On appeal, this Court affirmed the federal conviction, rejecting, inter alia, Holleman’s allegation that a confession obtained from him by FBI Agent Traeger should have been suppressed as involuntary. United States v. Holleman, 575 F.2d 139 (7th Cir.1978). On October 13, 1981, Holleman filed in the district court a pro se motion to vacate his sentence and reverse his conviction pursuant to 28 U.S.C. § 2255.

Holleman’s basis for this motion was that his conviction had been obtained through the use of perjured testimony because, subsequent to his federal conviction, the Superior Court of Lake County, Indiana, suppressed a confession which Holleman had made to a St. Joseph County police officer on the day after he had made the statement to the FBI. The reason for suppression was that testimony of the officer, McAlister, indicated that Holleman was suffering from withdrawal symptoms (specifically, “shaking and sweating going into doubled-up positions”) at the time he made the state confession (Pet.Br. 12).

McAlister testified further that Holleman had exhibited these same symptoms the day before the state confession — that is, the day Holleman made his confession to the FBI agent, Traeger (Pet.Br. 11-12). Holleman concluded that because Traeger had testified that Holle-man appeared in good health during their interview on October 18, Traeger must have perjured himself. Without conducting a hearing, Judge Sharp denied the

Section 2255 motion for two reasons: First, since the issue of volun-tariness of Holleman’s confession to Trae-ger had been raised and decided at both the federal suppression hearing and on the direct appeal from the federal conviction, it was not necessary to consider it again on a

Section 2255 motion despite the subsequent state court suppression of a later confession to a different person. Secondly, Holleman’s failure to allege that the United States had knowingly used perjured testimony made the motion defective. Holleman then moved the district court to vacate this order and also filed motions for an evidentiary hearing on the

Section 2255 motion and for an expanded record to include the transcript from the state court proceedings. Further, he supported his original

Section 2255 petition with a Memorandum of Law in which he juxtaposed excerpts of the state transcript in which McAlister described the withdrawal symptoms he observed on October 18 and 19 with an excerpt from the transcript from the earlier federal proceedings in which Trae-ger testified to his impressions of Holle-man’s good physical condition on October 18. The district court denied all three motions and Holleman filed an appeal with this Court. II

Section 2255 provides the means by which a prisoner in federal custody may obtain collateral review of a federal court-imposed sentence. Even though he was incarcerated in state prison when he initiated this action, Holleman meets the federal custody requirement because he was scheduled to begin serving his federal sentence upon completion of his state sentence. See, e.g., Simmons v. United States, 437 F.2d 156 (5th Cir.1971). A federal prisoner who brings a

Section 2255 motion seeking to vacate his sentence is entitled to a hearing “[ujnless the motion and the files and the records in the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. Although the terms “motion,” “files,” and “records” have not been specifically defined by Congress or the courts,

Section 2255 has been applied to allow the district court to review “the motion and any annexed exhibits and the prior proceedings in the case.” Rule 4, Rules Governing Proceedings in the United States District Courts under Section 2255 (1976). Also, district judges may draw on circumstances in their “personal knowledge or recollection” in determining whether a

summary dismissal or an evidentiary hearing is appropriate. Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 514, 7 L.Ed.2d 473, see also Burris v. United States, 430 F.2d 399, 401 (7th Cir.1970), certiorari denied, 401 U.S. 921, 91 S.Ct. 909, 27 L.Ed.2d 824. Thus it is clear that the district court could properly review not only the 1977 federal transcripts but also the Memorandum of Law and other documents submitted to it in connection with the penden-cy of Holleman’s

Section 2255 motion. The five 1977 federal transcripts comprised “pri- or proceedings”; the memorandum and other documents are in the nature of “annexed exhibits” as well as within the personal knowledge of the district judge who passed on the

Section 2255 motion. For the reasons explained below, we find that the

Section 2255 motion, files and records appropriately before the district court “conclusively show that the petitioner is entitled to no relief.” Therefore, we affirm the district court’s refusal to vacate its order denying Holleman’s

Section 2255 motion, as well as its denial of the motions for an evidentiary hearing and an expanded record. HI To establish a prima facie case that a conviction should be vacated because obtained through the use of perjured testimony, a petitioner must show that the testimony was in fact false and the government used it with actual or constructive knowledge of the falsity. United States v. Robinson, 585 F.2d 274, 279 (7th Cir.1978), certiorari denied, 441 U.S. 947, 99 S.Ct. 2171, 60 L.Ed.2d 1051.

Although Holleman’s motion did not expressly allege the governmént’s actual or constructive knowledge, he argues now that we must construe his pro se motion liberally and read this missing element into his motion (Pet.Br. 26, citing Zurita v. United States, 410 F.2d 477 (7th Cir.1969)). However, Zurita does not require us to read into Holleman’s motion an implied allegation of the government’s actual or constructive knowledge. In Zurita, the petitioner alleged facts to support his claim; the question was whether those facts provided sufficient support. See 410 F.2d at 480.

Here, however, Holleman did not allege the knowledge element at all. Nor was his statement that McAlister’s and Traeger’s testimony differed sufficient to allow us to infer an allegation of this knowledge by the United States. Cf. United States v. Robinson, 585 F.2d at 279 n. 9 (differences in two statements by a single witness “insufficient to raise the issue” of government knowledge). Furthermore, the

Section 2255 motion, files and records in this case conclusively rebut Holleman’s claim that because McAl-ister’s state court testimony was “directly opposite” that of Traeger in federal court (Pet.Br. 9), he was convicted on the basis of perjured testimony. In fact the testimony of the state and the federal agents does not conflict at all because the two officials each testified to observations of Holleman at different times and under different conditions.

For example, McAlister testified to his observations at the time he obtained Holle-man’s statement on October 19, the day after Holleman’s meeting with Traeger: [Q] Did you observe Mr. Holleman shaking and sweating going into doubled-up positions while the statement was taken? [A] Other than being nervous, that’s about it. [Q] Is your answer to my question yes or no? [A] It would be yes. * * * * * * [Q] During the statement? [A] Yes. [Q] Which statement? [A] During mine [the one on October 19th]. Pet.Br. 12.

The petitioner’s memorandum goes on to clarify that Holleman gave his statement to McAlister on the day after Holleman’s meeting with the FBI agent (Pet.Br. 12-13). Although McAlister also testified that he observed Holleman suffering similar withdrawal symptoms on October 18, this in itself does not contradict Traeger’s testimony that he observed Holleman on that day as pale but otherwise in good health when his statement was taken (Pet.Br. 20). While the record does not specify precisely when on October 18 McAlister saw Holle-man, it was not during the Holleman-Trae-ger interview.

Holleman himself made clear in the federal trial proceedings that only he, Traeger and South Bend, Indiana, Police Sergeant Szweda were present at that interview. 1977 Fed.Tr. 124-125. Furthermore, even if McAlister saw Holleman immediately before Traeger’s interview, his observations do not contradict Traeger’s, because Holleman received medication to ease his withdrawal symptoms at the outset of the Traeger interview. 575 F.2d at 142. Holleman does not deny that he received the medication, but argues only that expert testimony is necessary to determine its “possible ameliorative effect” (Pet.Br. 23).

However, this information was already before the

Section 2255 court ■because in the original district court proceedings, Holleman himself explained that the medication immediately “kept back my withdrawal symptoms — took away the stomach cramps and dizziness and weakness.” 1977 Fed.Tr. 168-169. Therefore, differences between McAlister’s and Trae-ger’s observations are due not to perjury but to the fact that the two officials observed Holleman at different times and under different conditions. IY Holleman has failed to meet the minimum requirements for obtaining vacation of his sentence by means of a

Section 2255 motion. His motion itself fails to allege the government’s actual or constructive knowledge that it was using perjured testimony. And the record conclusively establishes that the testimonial differences are due to the different circumstances surrounding the different observations and not, as Holleman alleges, to perjury. Consequently, we need not decide, as the dissent urges, whether a federal prosecutor must be held to have knowledge of the perjury when a federal law enforcement officer’s testimony is perjured. Therefore, we affirm the district court’s denial of Holleman’s motion to vacate the denial of his

Section 2255 motion as well as the denial of the motions for an evidentiary hearing and an expanded record. . Initially Holleman was assisted by a “jailhouse lawyer” in bringing this collateral attack on his conviction. However, when the district court’s order was appealed, this Court appointed legal counsel to assist him. . The original

Section 2255 motion itself is somewhat confusing as to whether the state court suppressed the confession admitted into evidence in the federal proceedings or a different confession. However, the Memorandum of Law submitted to Judge Sharp in connection with the motion to vacate the denial of the

Section 2255 motion makes it clear that the suppressed confession was the October 19 confession obtained by St. Joseph County, Indiana, police officer McAlister and not the one obtained on October 18 by FBI Agent Traeger (Pet.Br. 12-13). . Holleman also attached a letter from a psychiatrist relating what Holleman had told him in November 1980 about his history of heroin addiction and about his withdrawal symptoms at the time of his arrest and interrogation in October 1976. The psychiatrist found him to be of normal to high normal intelligence without any diagnosis of major mental illness.