Austin v. Perini, 20312.
Decision Date | 27 November 1970 |
Docket Number | No. 20312.,20312. |
Citation | 434 F.2d 752 |
Parties | Donald AUSTIN, Petitioner-Appellant, v. E. P. PERINI, Superintendent, Marion Correctional Institution, Respondent-Appellee. |
Court | U.S. Court of Appeals — Sixth Circuit |
Donald Austin in pro. per.
Paul W. Brown, Atty. Gen. of Ohio, Stephen M. Miller, Asst. Atty. Gen., Columbus, Ohio, for appellee.
Before PHILLIPS, Chief Judge, and EDWARDS and MILLER, Circuit Judges.
Donald Austin is serving a sentence imposed by the Court of Common Pleas of Cuyahoga County, Ohio, upon his plea of guilty to an indictment for rape. He appeals from the judgment of the District Court denying his application for writ of habeas corpus.
District Judge Don J. Young concluded that the State court transcript establishes that Austin's plea of guilty was entered voluntarily while represented by privately retained counsel of his own choice and that his plea of guilty waived all prior defects which he asserts in support of his petition for habeas corpus. We affirm.
Austin was taken into custody on August 2, 1965. Two days later he gave a self-incriminating statement to the police. On September 23, 1965, he was indicted on two counts: (1) for burglary of an inhabited dwelling in the night in violation of § 2907.09, Ohio Revised Code, and (2) rape in violation of § 2905.01. The burglary charge carried a sentence of life, or five to thirty years in the event of a jury recommendation of mercy. The charge of rape carried a lesser sentence of from three to twenty years. At arraignment on September 27, 1965, Austin entered a plea of not guilty.
On January 13, 1966, five months after his arrest and the taking of the incriminating statement, Austin withdrew his earlier plea of not guilty and entered a plea of guilty to the charge of rape, upon condition that the burglary count be dismissed. Austin was represented by privately retained counsel of his own choice. The plea of guilty was accepted by the court, the burglary count was dismissed, and Austin received a sentence of three to twenty years. The pertinent parts of the proceedings in the State court are made an appendix to this opinion.
Austin claims that he was arrested without a warrant, was not taken before a magistrate promptly and was not advised of his constitutional rights. He avers that the self-incriminating statement was secured from him in violation of his constitutional rights; that his attorney failed to investigate the case or advise him properly; and that his guilty plea was involuntary.
It is well settled in this Circuit that a voluntary plea of guilty made by an accused while represented by competent counsel waives all non-jurisdictional defects. Reed v. Henderson, 385 F.2d 995 (6th Cir.); Crockett v. Haskins, 372 F.2d 475 (6th Cir.); Caldwell v. Maxwell, 357 F.2d 646 (6th Cir.); United States v. Zavada, 291 F.2d 189 (6th Cir.).
In McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763, the Supreme Court held that "a defendant's plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the grounds that counsel may have misjudged the admissibility of the defendant's confession;" and that "a defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on his petition for habeas corpus." 397 U.S. at 770-71, 90 S.Ct. at 1148-1149.
In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, the Supreme Court said:
Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785, involved the voluntariness of a plea of guilty entered one month after an allegedly coerced confession had been given to police. The Supreme Court said:
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United States v. Cox
...knowingly, willingly and with the benefit of competent counsel, a plea of guilty waives all non-jurisdictional defects. Austin v. Perini 434 F.2d 752 (6th Cir. 1970); Humphries v. Green, 397 F.2d 67 (6th Cir. 1968); Reed v. Henderson, 385 F.2d 995 (6th Cir. 1967); McCord v. Henderson, 384 F......
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Henderson v. Tollett
...plea of guilty made by an accused while represented by competent counsel, waives all non-jurisdictional4 defects. Austin v. Perini, 434 F.2d 752 (6th Cir. 1970); Reed v. Henderson, 385 F.2d 995 (6th Cir. 1967); Crockett v. Haskins, 372 F.2d 475 (6th Cir. 1966); Caldwell v. Maxwell, 357 F.2d......
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United States v. Sepe, 72-1352.
...knowingly, willingly and with the benefit of competent counsel, a plea of guilty waives all nonjurisdictional defects. Austin v. Perini, 434 F.2d 752 (6th Cir. 1970); Humphries v. Green, 397 F.2d 67 (6th Cir. 1968); Reed v. Henderson, 385 F.2d 995 (6th Cir. 1967); McCord v. Henderson, 384 F......
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Cradle v. Cox
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