Barber v. Gladden

• Decision Date: 20 March 1964
• Docket Number: No. 18812.,18812.
• Citation: 327 F.2d 101
• Parties: George R. BARBER, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

327 F.2d 101 (1964)

George R. BARBER, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Appellee.

No. 18812.

United States Court of Appeals Ninth Circuit.

January 29, 1964.

Rehearing Denied March 20, 1964.

George R. Barber, in pro. per. for appellant.

Robert Y. Thornton, Atty. Gen. of State of Oregon, and C. L. Marsters, Asst. Atty. Gen., Salem, Or., for appellee.

Before CHAMBERS and HAMLEY, Circuit Judges, and MURRAY, District Judge.

MURRAY, District Judge.

Appellant, an inmate of the Oregon State Penitentiary, filed a petition for a writ of habeas corpus in the court below seeking to set aside the 25 year sentence imposed upon him by the Circuit Court of Douglas County, Oregon, after his plea of guilty in that court to a charge of burglary with explosives in violation of ORS 164.260. The District Court denied the petition, Barber v. Gladden, D.C. Or., 220 F.Supp. 308, and this appeal followed. Jurisdiction of the District Court was based on 28 U.S.C. § 2241, and jurisdiction of the appeal is conferred on this court by 28 U.S.C. § 2253.

Appellant did not appeal his conviction and sentence, but he has been before the Oregon State Courts a number of times since seeking relief by way of habeas corpus and under the Oregon Post-Conviction Hearing Act, ORS 138.510 to 138.680. Barber v. Gladden, 210 Or. 46, 298 P.2d 986, 309 P.2d 192, cert. denied, 359 U.S. 948, 79 S.Ct. 732, 3 L.Ed.2d 681; Barber v. Gladden, 215 Or. 129, 332 P.2d 641; Barber v. Gladden, 228 Or. 140, 363 P.2d 771, cert. denied, 369 U.S. 838, 82 S.Ct. 869, 7 L.Ed.2d 843. Appellant has exhausted his state court remedies as required by 28 U.S.C. § 2254.

Appellant's first contention here, as it was in the court below, is that the indictment to which he pled guilty in the Douglas County Circuit Court was defective because, one, it failed to allege the ownership of the building in which the burglary occurred, and two, it failed to identify the subject matter under inquiry by the Douglas County Grand Jury at the time the indictment was returned, and that he was thereby deprived of his constitutional right to due process of law under the Fourteenth Amendment.

The indictment charged that appellant "on the 25th day of October A.D. 1953, in the said County of Douglas and State of Oregon * * * did then and there unlawfully, wilfully and feloniously break and enter in the night time a certain building not a dwelling, to-wit: Neilson's Market located at South Stevens Street near the South City Limits of the City of Roseburg, County and State aforesaid" with the intent to commit larceny therein with the aid of explosives. This allegation, it seems to us, states plainly that the building belonged to one Neilson, particularly in view of the apostrophe "s", denoting possession or ownership, punctuation-wise, and this understanding of the indictment from a reading thereof is confirmed by appellant's statement in his petition that one Lester Neilson testified at the preliminary hearing that he was the owner of the building entered. Whether this is a sufficiently direct allegation of ownership of the building under the common law authorities cited by appellant is immaterial here, because due process under the Fourteenth Amendment, as concerns an indictment or information, requires only that it state a public offense, and give sufficiently reasonable notice and information of the specific charge to enable the person charged to make his defense, and to plead his conviction or acquittal thereof as a bar to a subsequent prosecution for the same offense. United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588; In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682; Paterno v. Lyons, 334 U.S. 314, 320, 68 S.Ct. 1044, 92 L.Ed. 1409. The indictment here meets these requirements.

Appellant's second contention that the indictment is invalid because it failed to identify the subject matter under inquiry by the grand jury at the time the indictment was returned is founded upon a misunderstanding by appellant of the decision in Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240. The petitioners in the Russell case were convicted for refusing to answer certain questions when summoned before a congressional subcommittee. The convictions were reversed because the indictments failed to allege the subject under inquiry by the subcommittee when the petitioners were summoned to testify. That the questions which the petitioners refused to answer were relevant to the subject under inquiry by the subcommittee was an essential element of the offense with which those petitioners were charged, and the Supreme Court held that by failing to identify such subject, the indictments failed to adequately notify the petitioners of what they had to be prepared to meet, and also made it impossible for the courts to decide whether the facts were sufficient in law to support convictions. We know of no law that requires an indictment to otherwise identify the subject under inquiry by the grand jury than by the charge made in the indictment itself.

Appellant's remaining contentions are:

That he was coerced into pleading guilty by threats of Oregon State officials that if he did not plead guilty and was found guilty after a trial, habitual criminal charges would be filed against him thereby increasing his minimum sentence to 80 years;

That the sentencing judge exhibited personal bias

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