Brooks v. U.S., 74-1003
| Decision Date | 08 July 1974 |
| Docket Number | No. 74-1003,74-1003 |
| Citation | 500 F.2d 103 |
| Parties | Loren L. BROOKS, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Loren L. Brooks, filed appellant's briefs pro se.
W. H. Dillahunty, U.S. Atty., and Walter G. Riddick, Asst. U.S. Atty., Little Rock, Ark., filed appellee's typewritten briefs.
Before LAY, HEANEY and ROSS, Circuit Judges.
Loren Lee Brooks, an inmate of the United States Penitentiary at Atlanta, Georgia, appeals from the District Court's disposition of his petitions for post-conviction relief with respect to four past convictions in the Inited States District Court for the Eastern District of Arkansas.
On October 30, 1970, Brooks pled guilty to two felony charges: (1) an information charging him with entering the First National Bank of Prescott, Iowa, with intent to commit larceny in violation of 18 U.S.C. 2113(a); and (2) an indictment charging the unlawful possession of rare currency with a value in excess of $100.00 taken in the bank larceny in violation of 18 U.S.C. 2113(c). He is currently incarcerated pursuant to the sentence imposed with respect to the unlawful possession plea.
Brooks alleged in two petitions for writs of error coram nobis that his constitutional rights to counsel and due process were denied in guilty plea proceedings before the District Court in 1944 and 1949. He filed a third petition asking for post-conviction relief from the sentences imposed pursuant to his 1970 guilty pleas under 28 U.S.C. 2255. He alleged that the court had acted illegally by allowing him to plead guilty to both entering the bank with intent to commit larceny and unlawful possession, and by considering invalid previous convictions 1 in giving him two ten-year sentences to be served concurrently. He also alleged that the sentencing court erred by considering a felony charge that was pending against him in pronouncing the sentences on the 1970 pleas.
The District Court heard the three petitions together in a consolidated hearing. 2 It held that all the guilty pleas were made voluntarily, knowingly and intelligently. It ruled that the 1944 and 1949 guilty pleas were valid and that, therefore, it was appropriate to consider them in sentencing Brooks pursuant to his 1970 guilty pleas. However, it did hold that under the teachings of Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959), it was improper to have sentenced Brooks for both entering with intent to commit larceny and unlawful possession charges. Accordingly, the court set aside the judgment and sentence on the entering with intent to commit larceny charge and upheld the judgment and sentence of ten years on the unlawful possession charge. The court did not rule on the propriety of its consideration of the pending felony charge in sentencing the petitioner.
On appeal, Brooks, with two exceptions, has substantially reiterated the claims he raised in the District Court. We have reviewed the record and are satisfied that the District Court correctly decided these claims in its well reasoned unpublished memorandum opinion. We are also satisfied that the sentencing court did not commit reversible error by taking into consideration the pending felony charge when it sentenced Brooks in 1970. The charge was for unlawful possession of a firearm. Both the government and Brooks' counsel agreed that the court should consider it in pronouncing the sentences. The government agreed to dismiss the charge at the sentencing. In addition, Brooks' counsel explained the mitigating circumstances surrounding the charge to the court.
The first new issue raised here in whether the District Court improperly required Brooks, rather than the government, to prove that the 1944 and 1949 guilty pleas were entered in violation of the Sixth Amendment. This Court directly addressed this issue in Losieau v. Sigler, 406 F.2d 795, 802-803 (8th Cir.), cert. denied, 396 U.S. 988, 90 S.Ct. 475, 24 L.Ed.2d 452 (1969):
Ordinarily, the burden of proof is on an accused to establish that he was denied the right to counsel. * * * * * * Where the record is silent as to whether an accused was furnished counsel at a critical stage and where the accused introduced evidence tending to show that he was not in fact so represented, the burden...
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U.S. v. John, s. 72-1565
...exceeded because the appellants failed to raise the issue below and such failure precludes review of this Court. Brooks v. United States, 500 F.2d 103, 105 (8th Cir. 1974); 18 U.S.C. 2518(10)(a). Moreover, because the attendant facts were not fully developed below, review pursuant to our di......
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Jacobson v. U.S., 76-1291
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