Breier v. Gladden

• Decision Date: 22 April 1964
• Docket Number: Civ. No. 63-518.
• Citation: 229 F. Supp. 823
• Parties: Marvin A. BREIER, Petitioner, v. Clarence T. GLADDEN, Warden of Oregon State Penitentiary, Respondent.
• Court: U.S. District Court — District of Oregon

229 F. Supp. 823

Marvin A. BREIER, Petitioner, v. Clarence T. GLADDEN, Warden of Oregon State Penitentiary, Respondent.

Civ. No. 63-518.

United States District Court D. Oregon.

April 22, 1964.

Dan O'Leary, Pozzi, Levin & Wilson, Portland, Or., for petitioners.

C. L. Marsters, Asst. Atty. Gen., Dept. of Justice, Salem, Or., for respondent.

JOHN F. KILKENNY, District Judge.

On the 28th day of July, 1959, the petitioner was charged by the Grand Jury of Malheur County, State of Oregon, with the crime of obtaining money by false pretenses. The indictment, in considerable detail, presented the nature of the crime charged.¹ To be kept in mind is the fact that the indictment charged the petitioner with making, dating and presenting the check on the same day, i. e., the 8th day of June, 1959. Shortly thereafter, petitioner was committed to the Idaho State Penitentiary in connection with the commission of another crime. On his release, September 5, 1962, he was transported to Oregon, where he was arraigned in the Circuit Court of Malheur County on the charge contained in the above indictment. Prior to the arraignment the petitioner consulted with an attorney, who was authorized to practice in the State of Idaho, but not in the State of Oregon. At the time of the arraignment the petitioner entered a plea of guilty to the charge in the indictment and on September 11, 1962, was sentenced to commitment in the Oregon State Penitentiary for a term not to exceed three years.

Seeking relief under the Oregon Post-Conviction Act, the petitioner filed a petition in the Circuit Court of Marion County in December, 1962. Subsequent to trial, on said petition, that Court entered an order dismissing the petition. Petitioner did not prosecute an appeal to the Oregon Supreme Court from that order.

Although, in the exercise of the Court's discretion, this proceeding could probably be dismissed on the theory that petitioner has not exhausted his state remedies, I feel there was sufficient compliance to justify the Court is assuming jurisdiction. The first three issues of fact, outlined by the Pre-Trial Order, should be disposed of together. These issues are:

(a) Was the petitioner denied the right to counsel at both his arraignment and sentencing?

(b) Was the petitioner incompetently represented by reason of the fact that he consulted with an attorney from another jurisdiction, who was not admitted to practice in Oregon?

(c) Was the plea of guilty of the petitioner in the criminal proceeding, voluntarily made and free from misrepresentation?

A hearing was held before me, on all of petitioner's contentions, at which time he testified, at length, on what he claimed transpired prior to, and at the time of, his arraignment and sentence. Although petitioner testified that the transcript of the proceedings on the arraignment was erroneous, he later, on cross-examination, conceded that the transcript was correct on the matters reported, but that, in his best judgment, the transcript was incomplete and did not include some of the discussion with the Judge on the subject of probation. The petitioner was evasive in his answers to many material questions. I was not impressed with his testimony. The record of the hearing at the time of the arraignment conclusively demonstrates that petitioner's first three contentions are without merit. The record of the hearing² on arraignment shows that the indictment was read to the petitioner and that the petitioner was fully advised of his right to an attorney.

Petitioner stated that he could read the English language, voluntarily waived time within which to plead and then entered his plea of guilty. On the hearing before this Court, the petitioner attempted to imply that he received unreliable advice from the Idaho attorney. The transcript of the hearing on arraignment shows there was no such reliance. If, as petitioner now contends, the check in question was postdated, he was in duty bound to mention that fact to the Court at the time of arraignment. The check on which petitioner was prosecuted was not postdated, which fact appears on the face of the indictment. Along the same line of argument, the petitioner claims that an Oregon attorney, if appointed, would have challenged the sufficiency of the indictment and that the Oregon court would have been compelled to hold the indictment insufficient. I disagree. State v. Reynolds, 229 Or. 167, 366 P.2d 524. Petitioner's reliance on Broome v. Gladden, 231 Or. 502, 373 P.2d 611 (1962); and Lunce v. Overlade, 244 F.2d 108, 74 A.L.R.2d 1384 (7 Cir. 1957), is misplaced. Neither case, when analyzed in the light of the facts here presented, support petitioner's position.

Additionally, the Circuit Court of Marion County, in the post-conviction proceedings, must, of necessity, have passed on the validity of the indictment. The Circuit Court is a Court of general jurisdiction in the State of Oregon. In declaring and applying the State Law such a Court is acting in its official capacity as a judicial branch of the State and its determination, in the absence of a decision by the highest Court of the State, should be followed by a Federal Court in deciding the State question. Fidelity Union Trust Co. et al v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109. On the first three issues of fact presented, I find:

(a) That petitioner was not denied his right to counsel at either the arraignment or the sentencing and that he voluntarily and knowingly waived such right.

(b) I find there is no evidence supporting petitioner's contention that he was incompetently represented, by reason of the fact that he consulted an attorney from another jurisdiction. In fact, petitioner knowingly and voluntarily waived his right to consult with an Oregon attorney.

(c) I find that petitioner's plea of guilty in the original proceeding was voluntarily made with full knowledge of the facts.

In making these findings, I fully recognize the general principles of law as stated in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and related cases. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 and Lunce v. Overlade, do not apply to this factual background. For example, in Lunce v. Overlade, the out-of-state attorney in fact represented the accused at the time of the trial and was so lacking in diligence and competence that the trial was reduced to a sham. There the accused completely relied on the ability and advice of the attorney. Here, the out-of-state attorney had no connection with the case, other than a preliminary conference and the record shows that the petitioner pleaded guilty because he, in fact, knew he was guilty. Furthermore, the Judge told the petitioner that the out-of-state attorney was not informed on Oregon Law.

The next issue to be disposed of is the charge that the sentencing Judge was prejudiced. There is absolutely nothing in the record to support this charge. The most that can be said of the evidence is that petitioner believed the Judge was prejudiced because he did not grant probation. The failure to grant probation, under the facts in this case, does not rise to the dignity of plausible argument, let alone an inference of prejudice on the part of the Judge.

The Court is unable to follow the petitioner's argument that the Oregon statute of limitations barred the prosecution at the time of the arraignment and entry of the plea. The applicable statute³ would require the State to file the action within three years after the commission of the crime. The action is commenced within the meaning of the law when the "indictment is found and filed".⁴ Here the indictment was found and filed within a short period after the commission of the crime. There is no Oregon stat...