Lujan v. United States

• Citation: 424 F.2d 1053
• Decision Date: 14 April 1970
• Docket Number: No. 27483 Summary Calendar.,27483 Summary Calendar.
• Parties: Jose LUJAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

424 F.2d 1053 (1970)

Jose LUJAN, Appellant, v. UNITED STATES of America, Appellee.

No. 27483 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

April 14, 1970.

Jose Lujan, pro se.

Seagal V. Wheatley, U. S. Atty., San Antonio, Tex., Romualdo Cesar Caballero, Trial Atty., U. S. Dept. of Justice, Criminal Section, Washington, D. C., for appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM:

Jose Lujan appeals from an order of the district court denying his petition to vacate sentence. Lujan's difficulty began in 1947 when he was convicted in the United States District Court for the Western District of Texas for forging a physician's prescription for dilaudid tablets in violation of 18 U.S.C.A. § 72, now 18 U.S.C.A. § 494. Lujan here contests the validity of this conviction, which resulted from his plea of guilty, on the ground that he was unrepresented by counsel and did not knowingly waive his right to counsel.

At the time of the 1947 conviction Lujan did not avail himself of a direct appeal, and his two-year sentence was completely served immediately after its imposition. He alleges, however, that this judgment was used as a prior conviction to justify a life sentence as a third-time felonious offender which was imposed by a Texas state court in 1951. After serving almost twelve years on this 1951 conviction, Lujan was paroled. He was subsequently convicted in a California state court for possession of marihuana and is apparently now confined in California. When his California confinement ends, Texas expects to imprison him, having lodged a parole violation warrant against him on the basis of the 1951 life sentence. Lujan alleges that he has served almost twelve years on this sentence, a period greater than the ten-year maximum which could have been imposed if the 1947 federal conviction had not been used for enhancement. The effect of holding the 1947 conviction invalid, therefore, would be to release Lujan from any further restraint or future custody under the 1951 Texas conviction.

The Supreme Court has indicated that such a situation presents a valid basis for relief by way of a motion in the nature of a writ of coram nobis. United States v. Morgan, 1954, 346 U.S. 502, 507, 74 S.Ct. 247, 98 L.Ed. 248. The court below, however, denied the petition to vacate the judgment without holding an evidentiary hearing. We reverse.¹

In this case there are controverted issues of fact which cannot be decided in the absence of an evidentiary hearing. The 1947 judgment recited the following: "This day this cause coming on to be heard, came the United States by their District Attorney, came also the defendant, Jose Lujan, in proper person, and the defendant having been duly advised in open court before arraignment, of the nature of the charge against him and of his right to be prosecuted upon an indictment, in open court waived the assistance of counsel and his right to be prosecuted under the indictment. * * *" The United States Attorney has filed in the district court affidavits of two former Assistant United States Attorneys and a former Deputy Clerk, stating that the practice of the court and prosecutors in 1947 was to advise indigent defendants of their right to court appointed counsel, whereupon the court would appoint counsel if desired. The judgment of conviction recites that Lujan in open court waived the assistance of counsel. Lujan, however, has filed an affidavit and a verified petition which contains detailed allegations to the...