Bayless v. Johnston, 23716.

• Decision Date: 09 February 1943
• Docket Number: No. 23716.,23716.
• Citation: 48 F. Supp. 758
• Court: U.S. District Court — Northern District of California
• Parties: BAYLESS v. JOHNSTON, Warden.

48 F. Supp. 758

BAYLESS v. JOHNSTON, Warden.

No. 23716.

District Court, N. D. California, S. D.

February 9, 1943.

Joseph L. Sweeney, of San Francisco, Cal., for petitioner.

Frank J. Hennessy, U. S. Atty., and A. J. Zirpoli, Asst. U. S. Atty., both of San Francisco, Cal., for respondent.

ST. SURE, District Judge.

Petitioner seeks release from Alcatraz prison upon habeas corpus, claiming that the judgment upon which commitment was issued is void, because he was deprived of assistance of counsel for his defense in violation of the Sixth Amendment of the Constitution of the United States.

Two indictments were returned against petitioner in the United States District Court for the Western District of Missouri charging him with bank robbery using deadly weapons, and transportation in interstate commerce of a stolen automobile. 12 U.S.C.A. § 588b and 18 U.S.C.A. § 408. He pleaded guilty to both indictments and was sentenced to twenty-five years imprisonment.

Petitioner alleges "that at the time of his said arraignment he did not know that it was his right to have the benefit of the assistance of counsel by an appointment made by the trial court, that he was not advised that counsel would be appointed if it was his desire to have the assistance of counsel to represent his case and to prepare his defense. That petitioner did not waive in any manner whatsoever his right to have the assistance of counsel."

The Government contends that petitioner intelligently waived his right to counsel, and asks that the petition be denied. Prior to the preliminary hearing before the United States Commissioner petitioner was asked by an attorney who appeared for the wife of a codefendant if he desired counsel, and petitioner replied he did not; thereafter in the United States District Court, before plea and sentence, the Assistant United States Attorney, and the same attorney that appeared for the codefendant's wife, again asked petitioner if he desired counsel, to which he again replied that he did not. The colloquies were without the hearing of the trial judge.

At no time was petitioner represented by counsel. When he appeared in court he was not asked by the trial judge if he was represented by counsel, or if he desired counsel; nor was he informed by the trial judge that if he desired counsel and was unable to provide counsel for himself, the court would appoint counsel for him.

At the hearing in this court upon the return to the writ, petitioner was present and was examined, as was also the Assistant United States Attorney who prosecuted the case in the Western District of Missouri.

The Assistant United States Attorney testified in part, as follows:

"Q. At the time of Mr. Bayless' arraignment, Mr. Schmid, was he asked by the Court, do you recall, whether he had an attorney representing him? A. As I stated awhile ago, Mr. Sweeney, I do not remember that that matter was mentioned by the Court at all.

"Q. Did the Court advise him that he had a right to have an attorney? A. I said I do not believe that the matter was mentioned at all. * * *

"Q. Just one other thing. Was anything said, to your recollection, by the Court itself with relation to counsel?

"The Court: With relation to what?

"Mr. Zirpoli: With reference to representation by counsel.

"The Court: Q. What was said by the Court? A. Nothing, your Honor, that I recall. I do not remember that the matter was mentioned at the time of the arraignment. * * *

"The Court: Q. As I understand it, then, after the arraignment nothing was said and the defendant pleaded guilty, is that...