Wharton v. United States

• Citation: 470 F.2d 510
• Decision Date: 18 December 1972
• Docket Number: No. 72-1642.,72-1642.
• Parties: Oscar Floyd WHARTON, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

470 F.2d 510 (1972)

Oscar Floyd WHARTON, Appellant, v. UNITED STATES of America, Appellee.

No. 72-1642.

United States Court of Appeals, Eighth Circuit.

Submitted December 8, 1972.

Decided December 18, 1972.

Oscar Floyd Wharton, filed typewritten brief pro se.

Bethel B. Larey, U. S. Atty., and Robert E. Johnson, Asst. U. S. Atty., Fort Smith, Ark., filed brief for appellee.

Before MEHAFFY, BRIGHT and STEPHENSON, Circuit Judges.

PER CURIAM.

On October 11, 1963 appellant, Oscar Floyd Wharton, was convicted in Kansas state court on a plea of guilty to four counts of robbery, one count of escape, and one count of assault with a deadly weapon. On this same date evidence was introduced showing that Wharton had previous felony convictions on state charges in Texas and federal charges in the Western District of Arkansas. In light of this evidence Wharton was sentenced by the Kansas court as an habitual offender under the provisions of that state's law to two concurrent 25 year terms. While serving these sentences Wharton brought a writ of error coram nobis in the United States District Court for the Western District of Arkansas to invalidate the prior federal conviction upon which his Kansas habitual offender sentences were based. The district court, 348 F.Supp. 1026, denied the relief sought by Wharton and he now brings this appeal. For the reasons stated below the judgment of the district court is affirmed.

The circumstances surrounding the federal conviction challenged by appellant may be summarized briefly. In November 1962 Wharton was charged with interstate transportation of a stolen motor vehicle. On November 27, 1962 Wharton appeared before The Honorable John E. Miller, then Chief Judge of the Western District of Arkansas, and entered a plea of guilty to this charge after waiving his rights to counsel. The transcript of this proceeding clearly reflects that Wharton's waiver of counsel and guilty plea were made voluntarily and with full knowledge of their consequences. The sole basis for Wharton's attack is that the district court, at the time it accepted his guilty plea, was allegedly aware of Wharton's previous felony conviction in Texas. This prior Texas conviction, Wharton alleges, was invalid because he was deprived of his right to counsel. See Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).

At the outset we note that Wharton has not presented any evidence that supports either his allegation that the prior Texas conviction was invalid or his allegation that the federal district court in Arkansas knew of the conviction at the time his guilty plea was accepted. Even if we assume that both allegations are true, however, Wharton is not entitled to the relief he seeks.

Wharton relies heavily on the Supreme Court's recent decision in United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L.Ed.2d 592 (1972). In that case two invalid prior felony convictions were used by the prosecution to impeach a criminal defendant and...