Chick v. Wingo, 17808.
| Citation | 387 F.2d 330 |
| Decision Date | 27 December 1967 |
| Docket Number | No. 17808.,17808. |
| Parties | Robert A. CHICK, Petitioner-Appellant, v. J. W. WINGO, Warden, Commonwealth of Kentucky, Kentucky State Penitentiary, et al., Respondents-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Earl W. Allison, Columbus, Ohio, for appellant.
David Murrell, Asst. Atty. Gen., Frankfort, Ky., for appellees, Robert Matthews, Atty. Gen., Frankfort, Ky., on the brief.
Before PHILLIPS, EDWARDS and McCREE, Circuit Judges.
Appellant seeks reversal of Judge Bernard T. Moynahan's denial without evidentiary hearing of his petition for writ of habeas corpus brought under 28 U.S.C. § 2254 (Supp. II, 1965-66).
Appellant had previously filed a similar petition raising the same issues before the Circuit Court for Boyd County, Kentucky. In this case a full evidentiary hearing was held and Circuit Judge Chesley A. Lycan entered a careful opinion dealing with the issues of law and fact presented by appellant.
Appellant is currently on parole by the State of Kentucky because of two 1943 convictions on check charges on which Kentucky judges assessed terms of five years and two years. The extraordinary delay in completion of the 1943 sentences resulted from appellant's escape from jail after the jury verdicts and sentences, but before formal sentencing.
Appellant asserts these Kentucky convictions are void because he had no counsel at the time of the two trials concerned. On this score, after the state habeas corpus hearing, Judge Lycan found:
"While the defendant swears positively he did not have counsel, the record says he did have counsel and the court finds that the statement of the defendant standing alone is not sufficient to impeach the trial order made at the time of trial showing that the defendant did have counsel."
The Circuit Judge's ruling on this score was affirmed by the Court of Appeals for Kentucky. Chick v. Commonwealth, 405 S.W.2d 14 (Ky.1966). The records of the state court are entitled to a presumption of regularity. This record does not establish by a preponderance of the evidence that appellant was denied counsel. Bates v. Meadows, 358 F.2d 674 (6th Cir. 1966), cert denied, 385 U.S. 937, 87 S.Ct. 299, 17 L.Ed.2d 217 (1966); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
Appellant also contends that Kentucky "waived" prosecution of these two Kentucky check charges in 1943 when in the course of appellant's prosecution on similar charges in Pennsylvania he (or someone on his behalf) made restitution. The record before Judge Lycan showed that the records of the Quarter Sessions Court of Beaver County, Pennsylvania, for May 1, 1943, show that appellant was granted probation and records four instances of restitution. None of these instances match the facts upon which the two Kentucky indictments were subsequently returned by a Boyd County grand jury on September 8, 1943. And, of course, restitution does not deprive a sovereign state of its right to prosecute for the original crime. Savitt v. United States, 59 F.2d 541 (3d Cir. 1932); 1 F. WHARTON, CRIMINAL LAW, § 385, at 517 (12th ed. 1932). Clearly Kentucky elected to exercise its right to prosecute.
Finally, appellant contends that Kentucky "waived" its right to seek his return to serve these sentences when he was under arrest in Nevada in 1949....
To continue reading
Request your trial
-
U.S. v. Towne, 91-10562
...also Brainerd v. Beal, 498 F.2d 901, 902 (7th Cir.), cert. denied, 419 U.S. 1069, 95 S.Ct. 655, 42 L.Ed.2d 664 (1974); Chick v. Wingo, 387 F.2d 330, 330-31 (6th Cir.1967). Here, the municipal court file does not "affirmatively show" that the issuing judge was not presented with an Attachmen......
-
Lee v. Probate Court of Davidson County, Tenn., Civ. A. 3:85-0953.
...assumption that a trial — as opposed to a preliminary-hearing — had occurred is insufficient to impeach such entries. Chick v. Wingo, 387 F.2d 330, 330-331 (6th Cir. 1967). Court-records, when signed by the presiding judge, "* * * become the highest evidence of what has been done in the Cou......
-
U.S.A. v. Baggett, 99-6414
...matter to be submitted to the jury ..." (Emphasis supplied). We should presume that the order means what it says. Cf. Chick v. Wingo, 387 F.2d 330, 331 (6th Cir. 1967) (state court's records entitled to a presumption of regularity).Moreover, the time at which the order was file-stamped by t......
-
Broshears v. Com. of Ky.
...waiving jurisdiction over him. This Court has previously held that a state does not have such an affirmative duty. In Chick v. Wingo, 387 F.2d 330 (6th Cir. 1967), we denied habeas corpus relief under similar circumstances. In that case appellant had escaped from a Kentucky jail after a jur......