Blood v. Hudspeth, 2081.

• Decision Date: 29 June 1940
• Docket Number: No. 2081.,2081.
• Citation: 113 F.2d 470
• Parties: BLOOD v. HUDSPETH, Warden.
• Court: U.S. Court of Appeals — Tenth Circuit

113 F.2d 470 (1940)

BLOOD v. HUDSPETH, Warden.

No. 2081.

Circuit Court of Appeals, Tenth Circuit.

June 29, 1940.

Dayton Denious, of Denver, Colo., for appellant.

Homer Davis, Asst. U. S. Atty., of Topeka, Kan. (Summerfield S. Alexendar, U. S. Atty., of Topeka, Kan., on the brief), for appellee.

Before PHILLIPS and BRATTON, Circuit Judges, and MURRAH, District Judge.

BRATTON, Circuit Judge.

James R. Blood, hereinafter called petitioner, brings for review an order denying a petition for a writ of habeas corpus to secure his release from the custody of the warden of the penitentiary at Leavenworth, Kansas. In October, 1934, two indictments were returned against petitioner and a co-defendant in the United States Court for Northern Oklahoma. The first, drawn under section 218 of the Criminal Code, 18 U.S.C.A. § 347, contained four counts. The first count charged the forging and counterfeiting of the signature of the postmaster at Catoosa, Oklahoma, to a post office money order; the second charged the passing, uttering and publishing of such money order; the third charged the forging and counterfeiting of the signature of the postmaster to another money order; and the fourth charged the passing, uttering and publishing of that order. The second indictment, drawn under section 192 of the Criminal Code, 18 U.S.C.A. § 315, charged the burglary of the post office at Catoosa with the intent to steal blank money orders, and a money order stamp, pad and cutter. Petitioner pleaded guilty to both indictments and was sentenced to five years on each count in the first with provision that the several sentences should run consecutively, and to a term of five years on the second with provision that it should begin at the termination of the sentences imposed under the first. Commitments issued and petitioner is accordingly detained.

Petitioner challenges the judgments in the criminal cases on the ground that he was denied the assistance of counsel at the time he entered the pleas of guilty, in violation of the Sixth Amendment to the Constitution of the United States. One accused of a crime is entitled to the aid of counsel in his defense, and he may be heard to urge in a habeas corpus proceeding that his right in that respect was wrongfully denied. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. But the right is personal and may be waived provided it is waived in an intelligent, understanding and competent manner. Zahn v. Hudspeth, 10 Cir., 102 F.2d 759, certiorari denied, 307 U.S. 642, 59 S.Ct. 1045, 83 L.Ed. 1522; Buckner v. Hudspeth, 10 Cir., 105 F.2d 396, certiorari denied, 308 U.S. 553, 60 S.Ct. 99, 84 L.Ed. ___; Creel v. Hudspeth, 10 Cir., 110 F.2d 762; Pers v. Hudspeth, 10 Cir., 110 F.2d 812. And ordinarily it will be presumed that the right was waived in that manner where the accused appeared before the court without counsel and failed to request or indicate in any manner a desire that counsel be assigned to assist him in his defense. Buckner v. Hudspeth, Creel v. Hudspeth, Pers v. Hudspeth, supra.

The judgments are presumed to be regular and valid and are not to be lightly set aside on collateral attack in a proceeding of this kind. The burden rested upon petitioner to show that he did not waive in a valid and binding manner his right to counsel, but that instead he was wrongfully denied the assistance of counsel. Johnson v. Zerbst, Zehn v. Hudspeth, Buckner v. Hudspeth, Creel v. Hudspeth, Pers v. Hudspeth, supra. The allegations contained in the verified petition for the writ and the statements or recitations contained in affidavits submitted by the warden presented the question of fact to the trial court. The court resolved the issue against petitioner. The finding is supported by substantial evidence, is not clearly wrong, and hence must not be overturned on appeal. Creel v. Hudspeth, Pers v. Hudspeth, supra.

The procedure of the trial court in making disposition of the cause is questioned. The verified petition alleged that petitioner was friendless, penniless, and wholly ignorant of legal matters and judicial proceedings; that upon being brought into the presence of the court he was asked by the United States attorney what he intended to do, to which he replied that he did not know as he had no funds and was unable to employ an attorney; that the United States attorney replied that he had better plead guilty, and the post office inspector interjected that it was a very bad case; that thereupon the deputy marshal escorted petitioner to a position immediately in front of the presiding judge; that the indictment was read and the pleas entered; and that without further ado or preliminaries the sentences were imposed. The warden answered with reasonable dispatch. Copies of the indictments, judgments, commitments, and affidavits of the judge who accepted the pleas of guilty and imposed the sentences, the assistant United States attorney, and the post office inspector, separate written statements made by petitioner and his co-defendant to the inspector, and a letter written by petitioner to the United States attorney, were attached to the answer. The trial judge stated in his affidavit that he distinctly remembered the cases; that he fully advised petitioner and his co-defendant of their right to be represented by counsel; that he admonished them that if they were not guilty they should not...