Barber v. Gladden

• Decision Date: 24 May 1963
• Docket Number: Civ. No. 62-200.
• Citation: 220 F. Supp. 308
• Parties: George R. BARBER, Petitioner, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent.
• Court: U.S. District Court — District of Oregon

220 F. Supp. 308

George R. BARBER, Petitioner, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent.

Civ. No. 62-200.

United States District Court D. Oregon.

May 24, 1963.

Robert L. Ridgley, Portland, Or., for petitioner.

Robert Y. Thornton, Atty. Gen., and Harold W. Adams, Asst. Atty. Gen., Salem, Or., for respondent.

SOLOMON, Chief Judge.

George Barber, a prisoner in the Oregon State Penitentiary, filed a petition in this Court for a writ of habeas corpus, in which he seeks to set aside the 25-year sentence imposed upon him after he pleaded guilty in the Circuit Court of Douglas County, Oregon, to a charge of burglary with explosives in violation of ORS 164.260.

Petitioner did not appeal from his conviction, but he did file a number of proceedings thereafter. He first filed a habeas corpus proceeding in the State Court in 1955, Barber v. Gladden, 210 Or. 46, 298 P.2d 986, 309 P.2d 192 (1957), cert. denied, 359 U.S. 948, 79 S.Ct. 732, 3 L.Ed.2d 681 (1959), and again in 1958, Barber v. Gladden, 215 Or. 129, 332 P.2d 641 (1958). In 1959, he filed a petition for relief under the Oregon Post-Conviction Hearing Act, ORS 138.510 to 138.680. Barber v. Gladden, 228 Or. 140, 363 P.2d 771 (1961), cert. denied, 369 U.S. 838, 82 S.Ct. 869, 7 L.Ed.2d 843 (1962). Petitioner did not obtain relief in any of these proceedings.

In this proceeding, petitioner alleges that his present detention violates his constitutional rights under the due process clause of the Fourteenth Amendment on a number of grounds.

He first alleges that the indictment charging him with burglary with explosives was defective in that it failed to allege ownership of the building in which the burglary occurred. This is not a ground for relief in a federal habeas corpus proceeding unless it constitutes a denial of petitioner's rights under the Constitution. 28 U.S.C.A. § 2241. The due process clause of the Fourteenth Amendment requires that a criminal defendant in a State Court be given reasonable notice and information of the specific charge against him, Paterno v. Lyons, 334 U.S. 314, 320-322, 68 S.Ct. 1044, 92 L.Ed. 1409 (1948), so that the defendant will be able to make his defense and protect himself after judgment against another prosecution on the same charge. United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588 (1875).

The indictment charged the petitioner with unlawfully, wilfully and feloniously breaking and entering in the night "a certain building not a dwelling, to wit: Neilson's Market located at South Stephens Street near the South City Limits of the City of Roseburg," with the intent to commit larceny therein with the aid of explosives. The indictment clearly identifies the premises where the crime was alleged to have been committed and "was sufficient to advise the accused that the state alleged that the * * * building did not belong to him, and that his entry was unlawful and felonious." Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533, 541, 169 A.L.R. 868 (1946). Even though ownership of the building was not specifically alleged, the indictment gave the petitioner due notice of the crime charged.

Second: Petitioner alleges that his sentence is void because it was influenced by the personal bias of the sentencing Judge. No record is available of the sentencing proceeding, but petitioner's version of the incident, based upon his own recollection, is that the Judge said:

"When I was a boy over at Drain, Oregon, my father had a grocery store and one night he returned to the store after a lodge meeting and surprised two safe-crackers in the act of blowing open the store safe. One of them turned and fired a pistol point-blank at my father just missing his head by about one inch, the bullet stuck in the front door jam, and for that reason I got no use for the likes of you and I am going to put you where the dogs won't bark at you twenty-five years in the Oregon State Penitentiary."

In the second habeas corpus proceedings, the sentencing Judge, who is now deceased, testified that at the petitioner's sentencing, he had recounted an incident from his boyhood concerning a burglary of his father's store, but he stated that petitioner's version was erroneous. The Judge denied that he had stated that his father was present when the burglars were discovered or that the burglars fired at him or at the party who discovered the burglary. The Judge also denied that he had stated "for that reason I got no use for the likes of you", or that he had made any similar statement.

In Darr v. Buford, 339 U.S. 200, 218, 70 S.Ct. 587, 597, 94 L.Ed. 761 (1950), the Court defined the standard to be applied where the fairness of a State Court proceeding is questioned.

"A conviction after public trial in a state court by verdict or plea of guilty places the burden on the accused to allege and prove primary facts, not inferences, that show, notwithstanding the strong presumption of constitutional regularity in state judicial proceedings, that in his prosecution the state so departed from constitutional requirements as to justify a federal court's intervention to protect the rights of the accused."

The testimony here is insufficient to warrant even an inference that the sentencing Judge was biased against petitioner.

Third: The sentence was void because the Judge considered an unsworn statement prejudicial to petitioner.

Counsel for a co-defendant, in the presence of Barber and his attorney, told the Judge that Barber had sent a note to his co-defendants threatening their lives for having implicated Barber in the burglary.

Neither at that time nor later that day, when he was sentenced, did Barber avail himself of the opportunity to deny the threat or to demand the production of the note. He merely told the Judge that he could "take the statement with a grain of salt."

At the Post-Conviction hearing the Judge testified: "I don't know whether there was any note or not. It was never established in my mind that there was, because it wasn't there."

Barber's only evidence that the Judge was influenced by a threatening note was a penitentiary record that "Barber was dressed into administrative segregation at commitment because of threats made against his co-partners." There is no evidence as to who communicated such information to the prison officials; in my view, it is much more likely that it was done by the District Attorney or by the Sheriff than by the Judge.

Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), upon

which petitioner relies, is not in point. In that case the Judge, before sentencing an illiterate unrepresented defendant, read from a list furnished him by the prosecutor, which list showed that the defendant had seven prior convictions. At the time the Judge sentenced defendant to a term of 10 to 20 years imprisonment, he was unaware that the list was incorrect and that the defendant had been found not guilty on two charges and a third had been dismissed.

There is insufficient evidence to warrant the conclusion that the Judge believed that petitioner had threatened his co-defendant or that the Judge was influenced in any way by it. In addition, by his failure to object to the unsworn statement or to make any statement in mitigation, Barber waived any objections he may have had. Williams v. Oklahoma, 358 U.S. 576, 583, 79 S.Ct. 421, 3 L.Ed. 2d 516 (1959); Barber v. Gladden, 228 Or. 140, 363 P.2d 771 (1961).

Fourth: The sentence is void because the Judge acted arbitrarily in fixing a 25-year sentence.

At the hearing on his second habeas corpus petition, Barber called the sentencing Judge as a witness. Barber asked the Judge the following question:

"In the case of State v. Boloff 138 Or. 568, 4 P.2d 326, 7 P.2d 775, Justice Rossman said, `a careful judge apprises himself concerning the defendant's past life, his capacity to comply with the adopted standards, and his former attitude towards law and order.' As the sentencing judge in my case do you think you met the requirements laid down by that?"

The Judge replied:

"Yes, I do, and I will tell you why if you want to know. It was brought to my attention that you had a long criminal record. You had been in prison—in the penitentiary at Walla Walla and also in the Oregon State Penitentiary, and in considering that I figured when you got out you would have paid your debt to society, but one of my duties was to consider the question of the deterrent effect that it would have on you and other criminals, and the maximum sentence was forty years, and I thought in view of your plea of guilty you should have credit for that, and I gave you fifteen years credit, which is all I think you are entitled to."

Barber bases his claim of arbitrary action on the portion of the Judge's testimony which I have italicized.

The plea of guilty was only one factor which the Judge considered. Many judges—perhaps most judges— when imposing sentence, consider whether the defendant pleaded guilty or was found guilty. LUMMUS, THE TRIAL JUDGE 46-47. Some give it more weight than others, but any sentence within the statutory limits is proper, and in the absence of special statutory authority, may not be modified. Gurara v. United States, 8 Cir., 1930, 40 F.2d 338; Bryson v. United States, 9 Cir., 1959, 265 F.2d 9. See also Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958).

Is a sentence, well within the statutory limit, imposed upon a defendant who has been recently released from a State penitentiary and who has four prior felony convictions, so shocking to the conscience as to constitute a lack of due process? In my opinion it does not.

Fifth: His plea of guilty was involuntary and coerced because it was induced by the District Attorney's threat to prosecute him under the Habitual Criminal Act if he pleaded not guilty but was found guilty by a jury.

Barber and two other men were picked up by the police in downtown Roseburg, while sitting in...