State of Louisiana ex rel. Gwin v. Dees, 26873 Summary Calendar.

• Decision Date: 25 April 1969
• Docket Number: No. 26873 Summary Calendar.,26873 Summary Calendar.
• Parties: STATE OF LOUISIANA ex rel. James GWIN, Plaintiff-Appellant, v. Hayden J. DEES, Warden, Louisiana State Penitentiary, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

410 F.2d 321 (1969)

STATE OF LOUISIANA ex rel. James GWIN, Plaintiff-Appellant, v. Hayden J. DEES, Warden, Louisiana State Penitentiary, Defendant-Appellee.

No. 26873 Summary Calendar.

United States Court of Appeals Fifth Circuit.

April 25, 1969.

William F. Wessel, Court appointed, New Orleans, La., for appellant.

James Gwin, pro se.

Jack P. F. Gremillion, Atty. Gen. of Louisiana, Baton Rouge, La., for appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

PER CURIAM:

Pursuant to new Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir., 1969, 409 F.2d 804, Part I.

This appeal lies from the denial of appellant's petition for a writ of habeas corpus. We hold that the lower court's findings of fact were not clearly erroneous, and hence we affirm the judgment of the District Court for the reasons well expressed in the written opinion of Judge Dawkins (unpublished and therefore appended hereto). Picard v. Allgood, 5 Cir., 1968, 400 F.2d 887; Busby v. Holman, 5 Cir., 1966, 356 F.2d 75, 80. See Pursley v. United States, 5 Cir., 1968, 391 F.2d 224.

Affirmed.

APPENDIX

DAWKINS, Chief Judge:

This application, pursuant to 28 U.S.C. § 2241 et seq., is brought by James Gwin for a writ of habeas corpus granting his immediate release from the custody of the Warden of the Louisiana State Penitentiary.

Prior to institution of this proceeding, petitioner previously had applied for a writ of habeas corpus in the proper courts of Louisiana which finally resulted in the refusal of petitioner's writ by the Louisiana Supreme Court. Consequently, petitioner properly has exhausted his legal remedies in the Louisiana State Courts as required by 28 U.S.C. § 2254(b), and his claim properly is before this Court here.

Salient facts giving rise to this application are set forth below.

November 18, 1959, the Oak Ridge Bank, Oak Ridge, Louisiana, was robbed of some $13,050.00 by two men at gun point. November 22, 1959, petitioner and his brother, Otis Ray Gwin, were arrested in connection with this bank robbery. At arraignment, in April, 1960, the Gwin brothers pleaded "not guilty" to the charge of armed robbery. Trial was set for May of that year and resulted in a hung jury.

The record reveals that the two key defense witnesses in that trial were later convicted of perjury in connection with their testimony which in essence had provided an alibi for the Gwin brothers in the armed robbery charge. A new trial, therefore, was set for October, 1960. In the interim the Gwin brothers were released on bail.

Subsequently, while on bond, Otis Ray Gwin attempted to dispose of certain monies and again was apprehended by State law enforcement officials. Upon further investigation, it was found that money had been buried by the Gwin brothers and the serial numbers on these bills corresponded to those which had been taken in the Oak Ridge Bank robbery.

Petitioner James Gwin likewise was arrested in New Orleans when he was found with a substantial sum of money on his person. He later testified that he intended to flush some $2300 down a commode in a New Orleans hotel and that this money had come from the bank hold-up described above.

In light of this newly discovered evidence, and prior to the second trial concerning the armed robbery charges, which was set for October, 1960, petitioner and his brother decided to change their plea from not guilty to guilty. The State Court of Louisiana accepted these pleas and sentenced petitioner to twenty years in the State Penitentiary and his brother received a ten-year term. The record reveals that the discrepancy in these sentences resulted from the rather extensive criminal record which petitioner had built up prior to the armed robbery charges. His brother was a first-offender.

After brief incarceration in the Louisiana State Penitentiary, petitioner escaped and was recaptured. He was then convicted of the crime of escape and given an additional two years. Escape was affected by petitioner for a second time and he received an additional two-year sentence. While incarcerated, he was called as a witness in a separate matter, and following his testimony in that case was convicted of attempted perjury for which he received another five-year term of confinement. All of these sentences were to run consecutively, which means that petitioner is under sentences totalling some twenty-nine years. At the time this application was heard, he had served six years and nine months of the total of twenty-nine years to which he was sentenced.

Petitioner contends that he is entitled to immediate release from custody from the State authorities because his plea of guilty in connection with the armed robbery charge was not entered voluntarily. In this connection he alleges he was misled into believing that the maximum sentence he could receive for a conviction of armed robbery was fifteen years, when in fact it was thirty years. The record reveals that during the May, 1960, trial, which resulted in a hung jury, both the prosecuting attorney and District Judge in argument to the jury, and in instructions to the jury, stated that the maximum penalty for conviction of armed robbery was fifteen years.

The record further reveals that the law had been amended in 1958 to change the maximum sentence from fifteen to thirty years. That these statements were innocently made by both the Trial Judge and prosecuting attorney is an uncontroverted fact in this case. Thus, petitioner alleges that when he changed his plea to guilty in October, 1960, he was under the distinct impression that the maximum sentence he could receive was fifteen years and that he was further of the impression that he would get a reduced sentence for pleading guilty. At all stages of the proceedings, petitioner was ably represented by two counsel of his own choosing, both extremely experienced in the field of Louisiana criminal law.

At the evidentiary hearing held in connection with this application, both counsel who represented the defendant in the State Court proceedings testified that it was not their practice to allow a client to plead guilty if they counsel did not know the maximum sentence which would be imposed. They further indicated that this case was no exception. However, they were unable specifically to recall whether they had discussed the matter with petitioner Gwin.

We granted petitioner an evidentiary...