434 F.2d 11 (5th Cir. 1970), 30115, Scott v. United States

Docket Nº:30115 [*]
Citation:434 F.2d 11
Party Name:Earl Earnest SCOTT, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Case Date:November 02, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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434 F.2d 11 (5th Cir. 1970)

Earl Earnest SCOTT, Petitioner-Appellant,


UNITED STATES of America, Respondent-Appellee.

No. 30115 [*]

United States Court of Appeals, Fifth Circuit.

November 2, 1970

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[Copyrighted Material Omitted]

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Bill Joyner, North Miss. Rural Legal Services, Batesville, Miss., for appellant.

H. M. Ray, U.S. Atty., Alfred E. Moreton, III, Asst. U.S. Atty., Oxford, Miss., for appellee.

Before WISDOM, GOLDBERG and SIMPSON, Circuit Judges.


Scott's motion to vacate sentence under Title 28, U.S.C., Section 2255, was given a three-day evidentiary hearing by the trial court, March 31, April 1 and 2, 1970. At the conclusion of the hearing after arguments of counsel, the district judge dictated extensive oral findings of fact and conclusions of law into the record, reserving the right to 'polish or edit them in final form, perhaps placing this holding in a memorandum opinion should that seem suitable'.

A written memorandum was never filed, but we consider the oral findings and conclusions to be sufficiently complete to dispose adequately of all the questions of fact and law raised below and the issues raised on this appeal. Embellishment by us is not required. A copy of Judge Keady's findings and conclusions is attached as an appendix to this per curiam opinion and adopted as the judgment of this Court.



APRIL 2, 1970


The Court will make its findings of fact and conclusions of law at this time, but reserves the right to polish or edit them in final form, perhaps placing this holding in a memorandum opinion should that seem suitable.

The Court's findings of fact are as follows:

On July 20, 1962, Earl Earnest Scott, the petitioner, and two other defendants, Elmer Leon Woodruff and Charles H. Whatley, were indicted by the Federal Grand Jury of the Northern Judicial District of Mississippi, on five counts involving crimes committed against federally-insured banks. Count 1 of the indictment charges petitioner and the two other persons with unlawful conspiracy to rob a number of federally-insured banks such as Pace Bank at Pace, Mississippi, Bank of Vardaman, at Vardaman, Mississippi, Bank of Pope, Pope, Mississippi, and Ethel Branch Bank at Ethel, Mississippi. Counts 2, 3, 4 and 5 charged the same parties with the substantive offenses of unlawful entry at each of the said banks mentioned with intent to commit a felony or larceny therein.

Petitioner was then an inmate of the Mississippi State Penitentiary serving sentences for state convictions hereinafter mentioned. Pursuant to federal writ of habeas corpus ad prosequendum, petitioner was brought into Federal District Court on October 5, 1962, for arraignment. The co-indictees Woodruff and Whatley were present in Federal Court at the same time. Petitioner was represented by counsel, Alton Massey of Kosciusko, Mississippi, who had been retained by petitioner's wife and entered not guilty pleas to all counts of the indictment. At that same time, the coindictee Whatley entered guilty pleas to all five counts of the indictment, and in open Court while petitioner was present before he entered guilty pleas Whatley was informed that the maximum punishment limits if one were found guilty of the first count were as much as five years insofar as a prison term was concerned, and as much as twenty years insofar as each prison term for each of the four substantive counts were concerned, making a total maximum punishment limits for one convicted on a guilty plea of all such crimes, of eighty-five years.

As stated, petitioner was in court, and he heard that explanation of the seriousness as to the nature of the crimes and the consequences of a guilty plea insofar

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as the maximum punishment limits were concerned.

Following his pleas of not guilty, petitioner remained in federal custody at Clarksdale where he had a number of conferences with Mr. Massey, his retained counsel. There was full discussion between Massey and the petitioner concerning the defenses to be made to each of the charges. Witnesses were subpoenaed for the day that the case was set for trial by the Court, which was on a date certain in November, 1962; all trial preparations had been made and the case was calendared for trial. Then, petitioner decided that he would like to withdraw his plea of not guilty to Count 1 of the indictment and enter a plea of guilty thereto. A day or two prior to November 9, 1962, he notified Mr. Massey of his wishes in this regard. Massey had explained to petitioner that if he went to trial and were convicted on all counts the Court could impose a maximum punishment of as much as eighty-five years just as Mr. Whatley had himself been informed in Court at the original appearance. Massey also informed the petitioner in these conferences leading up to petitioner's decision to enter a change of plea that the United States was not interested in obtaining a conviction except on Count 1 of the indictment in view of the fact that petitioner was already under sentence pursuant to state convictions to serve three consecutive seven-year terms. Massey was of the opinion, and so expressed it to petitioner, that a plea of guilty, if petitioner saw fit to enter it, would probably dispose of the other counts in that they would be dismissed. Massey also expressed an opinion that while the maximum sentence under Count 1 of the indictment would be five years, that there was some possibility it might be less, but, no one could predict what sentence Judge Clayton, the Presiding Federal Judge, would impose and that no assurances or promises of any kind could be made with respect to what might be the sentence under Count 1 of the indictment, if petitioner pleaded guilty. Petitioner was fully aware of all consequences in his situation, and he discussed it with Mr. Massey. He knew what his choices were, and at that time he realized that he was obliged to serve three seven-year state sentences to the State of Mississippi. All of the state proceedings, so far as petitioner then knew, had been concluded. While Massey expressed his opinions about what might be the outcome in case of trial or in case of a guilty plea on Count 1 of the indictment, in so doing, he did not depart from the usual and customary role of a lawyer advising a client accused of crime.

Mrs. Lorena Scott, wife of the petitioner, did not at all figure in petitioner's decision to enter a plea of guilty to Count 1 of the federal indictment. She had in no way been involved in the federal charges; her name had not come up in the F.B.I. reports; neither Scott, the petitioner, Massey, nor Mrs. Scott herself in any way been put on notice that she was suspected of having committed any kind of federal crime either in conjunction with Scott or otherwise in the discussions that Mr. Massey had with petitioner prior to his change of plea. Mrs. Scott's position in no way influenced his decision. Petitioner did not at any time have on his mind, in deciding whether to plead guilty to Count 1 of the federal indictment, any considerations whatsoever relating to Mrs. Scott. There had not been advanced by Massey or anyone else a suggestion to petitioner that he should plead guilty to prevent his wife from being arrested for a federal crime or being prosecuted for a federal crime. Scott's decision to enter a guilty plea was entirely his own decision.

On November 9, 1962, petitioner appeared in Federal Court with his counsel, Alton Massey, and requested the Court's permission to withdraw his not guilty plea to Count 1, and enter a plea of guilty. At this point, Judge Clayton, the Presiding Judge, specifically inquired of petitioner whether there had been any threats or promises of any kind made to him to get him to withdraw his guilty plea, to which the petitioner said there had not been any such threats or

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promises. The Court then ascertained from the petitioner that he understood that the maximum punishment limits for one pleading guilty to Count 1 of the indictment could be as much as five years in the penitentiary and a $10,000 fine. Then, in direct answer to the Court's inquiry, the petitioner stated that no one had told him what sentence he, Judge Clayton, would actually put on him if he did plead guilty. The Court thereupon accepted petitioner's plea of guilty and notified him to be back in Court for sentencing on November 14, 1962.

On that date, petitioner and his retained counsel, Alton Massey, appeared before Judge Clayton, at which time he imposed a sentence upon petitioner of five years to be served in an institution to be designated by the Attorney General with the sentence to be, 'In addition to and consecutive with the sentences you are now serving in the Penitentiary of the State of Mississippi.' Judge Clayton further orally informed petitioner at that time, 'This sentence will begin to run when you shall have fully served the sentences you are now undergoing on the State Court sentences or at the time you are paroled, or released from those sentences.' Substantially the same sentence was given to the co-indictee, Elmer Leon Woodruff, who in the meantime had also entered a plea of guilty to Count 1 of the indictment.

The judgment and commitment entered by the Federal Court on November 19, 1962, read as follows: 'It is adjudged that the defendant is hereby committed to the custody of...

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