U.S. v. Williamson

• Decision Date: 28 November 1986
• Docket Number: No. 85-2749,85-2749
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Morgan WILLIAMSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 216

806 F.2d 216

UNITED STATES of America, Plaintiff-Appellee, v. John Morgan WILLIAMSON, Defendant-Appellant.

No. 85-2749.

United States Court of Appeals, Tenth Circuit.

Nov. 28, 1986.

Richard J. Smith, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and Jennifer A. Salisbury, Asst. U.S. Atty., with him on the brief), for plaintiff-appellee.

Tova Indritz, Federal Public Defender, Albuquerque, N.M., for defendant-appellant.

Before BARRETT, McKAY and TACHA, Circuit Judges.

BARRETT, Circuit Judge.

John Morgan Williamson (Williamson) appeals the United States District Court's dismissal of his motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. Sec. 2255 and its denial of his petition for writ of error coram nobis.

The conviction Williamson now challenges was a 1965 plea of guilty to a violation of 18 U.S.C. Sec. 2312, transporting a stolen vehicle from Shreveport, Louisiana, to Edgewood, New Mexico. Williamson is presently incarcerated in Louisiana on an apparent 1975 manslaughter conviction. He contends that his 1965 plea will adversely affect his parole status from the Louisiana prison system.

At the time of the 1965 indictment, both Williamson and his co-defendant, James Harvey Webster (Webster), who is not a party to this appeal, were 18 years of age. Webster and Williamson each were accompanied by a parent at their arraignment on October 8, 1965. At the arraignment, the judge paraphrased the indictment, verbally separating the offense into its three elements, and advised the defendants of the penalty, the availability of sentencing under the Youth Corrections Act and explained that the Youth Corrections Act could affect the sentencing options. He also advised them of their right to counsel, as well as the availability of appointed counsel free of charge. (R., Vol. II at 2-3.) The judge then advised Williamson and Webster of their right to a jury trial and asked them if they desired a lawyer. (R., Vol. II at 3.) When they stated that they would waive their right to counsel, the judge responded, "Now, let me go into it a little bit more. You are very young and I want to be sure that there is no slip-up here. Are your f[o]lks here with you?" (R., Vol. II at 3.) The judge spent a significant amount of time asking Williamson and Webster questions regarding their understanding of their right to counsel. Following this colloquy, Williamson and Webster were read and signed a written waiver of counsel in open court.

Before having the indictment read, the judge asked Williamson and Webster when they had received copies of the indictment, whether they understood the charge, and again paraphrased the indictment in simple terms (R., Vol. II at 5). When the court accepted Williamson's plea, the judge asked questions in terms of the elements of the offense, as follows:

THE COURT: John Morgan Williamson, how do you plead to this indictment: guilty or not guilty?

MR. WILLIAMSON: Guilty.

THE COURT: You helped transport this car, did you, from Louisiana to New Mexico?

MR. WILLIAMSON: Yes, sir.

THE COURT: Was it a stolen car?

MR. WILLIAMSON: Yes, sir.

THE COURT: Did you know it was stolen?

MR. WILLIAMSON: Yes, sir.

(R., Vol. II at 7.)

Before accepting the plea, the judge asked Williamson and Webster whether they had been under the influence of liquor or drugs at the time of the offense, whether anyone had threatened them or made promises to induce their pleas, whether they had discussed the matter with their parents, and whether their parents agreed with their decision to plead guilty. (R., Vol. II at 7.)

Williamson was sentenced to two years of probation under the Youth Corrections Act. The record does not clearly show what took place between this 1965 sentencing and October 22, 1984, when the 28 U.S.C. Sec. 2255 motion was filed. The record contains an almost unintelligible portion of a transcript dated April 13, 1981, in which this conviction is mentioned by an unidentified person (R., Vol. I at 11-12). There is also a document entitled "Louisiana Parole Board Decision Form" on which the word "DENIED" appears, with nine reasons checked off, including "history of violence," "escape," "parole unsatisfactory/violated," and "probation unsatisfactory/violated." (R., Vol. I at 13.) From this, we surmise that Williamson has been convicted and incarcerated on a 1975 manslaughter charge.

On January 18, 1985, Williamson moved to amend his 28 U.S.C. Sec. 2255 motion to include a writ of error coram nobis pursuant to 28 U.S.C. Sec. 1651(a). The United States Attorney's office did not oppose the amendment and it was allowed on February 15, 1985. After reviewing the record and briefs submitted by both parties, the United States Magistrate recommended that the 28 U.S.C. Sec. 2255 motion be dismissed for lack of jurisdiction, inasmuch as Williamson has completed his sentence pursuant to the 1965 conviction. He further recommended that the petition for writ of error coram nobis be denied. The district court adopted both recommendations.

On appeal, Williamson raises three issues: Whether his waiver of his Sixth Amendment right to the assistance of counsel was done voluntarily and intelligently; whether his guilty plea was voluntary and intelligent; and whether a writ of error coram nobis is justified by the facts of this case. Williamson apparently does not contest the dismissal of his motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. Sec. 2255.

I.

Williamson argues that because of his youth, lack of experience with the criminal justice system, distance from home, and the pressure put on him to waive counsel by his co-defendant and parents, the waiver of his Sixth Amendment right to the effective assistance of counsel was not made knowingly, intelligently, and voluntarily.

In United States v. Weninger, 624 F.2d 163 (10th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980), we held that in order to ascertain whether an accused has knowingly and intelligently waived his right to counsel, "we must consider 'the total circumstances of the individual case including background, experience and the conduct of the accused person [citing cases].' " In Weninger, we held that the defendant had strategically chosen his right to defend himself at trial pro se and could not later complain that he was denied his rights. Citing Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), we noted that:

To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. 624 F.2d at 164.

Each case must be reviewed individually, with the objective of determining whether the judge fully inquired into the circumstances. Thus, for example, in Shawan v. Cox, 350 F.2d 909 (10th Cir.1965), the accused, a middle-aged itinerant worker with less than an eighth grade education, was not advised of his rights either before or at the time of his guilty plea. We held that the record showed "an aggravated case of the deprivation of an accused's constitutional right to counsel." Id. at 913.

Courts indulge every presumption against the waiver of fundamental constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Where the record is silent, no presumption can arise that the accused waived his right to counsel. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). In Berryhill v. Page, 349 F.2d 984 (10th Cir.1965), the accused was illiterate. The record did not show that the trial judge explained either the nature of the charge, the possible sentencing consequence of the plea of guilty, or that the defendant was entitled to appointed counsel. Further, the record did not show an intelligent and understanding rejection of counsel by the accused, or an explanation of an apparent complete defense to a murder charge. We held that the constitutional rights of the accused were violated. Also see, Tucker v. Anderson, 483 F.2d 423 (10th Cir.1973); Smith v. Crouse, 413 F.2d 979 (10th Cir.1969). Moreover, doubts concerning an attorney waiver must be resolved in the defendant's favor, United States v. Harlan, 696 F.2d 5 (1st Cir.1982), particularly where the trial court has failed to conduct a colloquy into the defendant's reasons for appearing pro se. Id. at 7.

However, in the instant case, we do not have an illiterate or uneducated defendant, as in Shawan v. Cox and Berryhill v. Page. Nor is the record silent on whether the court explained Williamson's Sixth Amendment rights to him. This court need not resort to a presumption. We have no doubts which must be resolved one way or the other.

The totality of the circumstances, including the background, experience, and conduct of the defendant, show that Williamson knowingly and intelligently waived his right to counsel. There was a colloquy on the record whereby the court explained Williamson's right to an attorney as well as the nature of the charge and the possible penalties. Consequently, we have no reason to doubt the adequacy of Williamson's understanding of his rights. His youth, distance from his home, and lack of previous courtroom experience notwithstanding, Williamson was not lacking in education, his parents were present in court, and he was given an adequate explanation of his right to counsel. In addition, we do not view the presence of Williamson's parent or parents in court as a source of pressure to waive his right to counsel. In the absence of any evidence to the contrary, we view this as a circumstance supporting our conclusion that Williamson's waiver of counsel was made knowingly, intelligently, and voluntarily.

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