Buhler v. Pescor

• Decision Date: 06 December 1945
• Docket Number: No. 3566.,3566.
• Citation: 63 F. Supp. 632
• Court: U.S. District Court — Western District of Missouri
• Parties: BUHLER v. PESCOR, Warden.

63 F. Supp. 632

BUHLER v. PESCOR, Warden.

No. 3566.

District Court, W. D. Missouri, W. D.

December 6, 1945.

COPYRIGHT MATERIAL OMITTED

Petitioner, pro se.

Sam M. Wear, U. S. Atty., and Sam O. Hargus, Asst. U. S. Atty., both of Kansas City, Mo., for respondent.

RIDGE, District Judge.

At a hearing on the writ of habeas corpus issued herein the following facts were developed:

May 7, 1934, in cause No. 8824, in the U. S. District Court for the Middle District of Pennsylvania, an indictment was returned against petitioner, charging petitioner in three counts with uttering, passing and possessing counterfeit notes of the Federal Reserve Bank of New York, in violation of Section 151, of the Criminal Code, Title 18 U.S.C.A. § 265. May 9, 1934, petitioner entered a general plea of guilty to said indictment before the Honorable Albert W. Johnson, one of the Judges of said District Court, who thereupon sentenced petitioner to the custody of the Attorney General of the United States for a period of one year on Count 1, six months on Count 2, to run consecutively; and sentence was suspended on Count 3, and petitioner placed on probation in the custody of U. S. Probation Officer for the Middle District of Pennsylvania for two years. After sentence, petitioner was presented to the Warden of the Northeastern Penitentiary, at Lewisburg, Pennsylvania, for service of said sentences. Said Warden refused to receive petitioner because neither sentence assessed by the Court on Counts 1 and 2, of the indictment, supra, were within the range of punishment permitting incarceration of convicted persons in said institution. Thereupon petitioner was confined in the Northern County Jail, Sunbury, Pennsylvania. May 17, 1934, while so confined, petitioner, in writing over his signature, petitioned the sentencing Court, and gave his consent for said Court, to change the sentence assessed on the First Count of the indictment from one year, to one year and one day, expressing to the Court his desire to serve the sentence so imposed on him "in a penitentiary rather than a county jail, * * * the sentence in all other respects to remain the same as originally entered on May 9th, 1934 and reserving the right to file any application or petition as to any other questions involved in said sentence as I (petitioner) may now have." On the same day petitioner was again taken before the sentencing Court and the original sentence was amended to show an amended sentence of one year and one day on Count 1, of said indictment, six months on Count 2, to run consecutively, and "sentence suspended on Count 3" and "petitioner placed on probation in the custody of Probation Officer Mid. Dist. Penna., for two years from this date." Petitioner thereafter was delivered to, and received by, the Warden of the U. S. Northeastern Penitentiary, for service of said amended sentence.

On July 28, 1934, petitioner filed in the U. S. District Court for the Middle District of Pennsylvania a petition for a writ of habeas corpus alleging, briefly stated, that the amended sentence under which he was then confined was illegal, because it increased the term of the original sentence imposed on him. Said habeas corpus proceeding was heard by Judge Johnson, above referred to, who, on September 8, 1934, ordered petitioner to be discharged from the custody of the Warden of the above penitentiary "but without prejudice to the right of the United States to take any lawful measures to have the petitioner sentenced in accordance with the law," for the crime charged in the indictment, supra. See Buhler v. Hill, D. C., 7 F.Supp. 857. Thereupon the United States District Attorney for the Middle District of Pennsylvania petitioned the Court for an order to produce petitioner for sentence on Count 3, of the above indictment. Capias was issued, and petitioner was again, on September 18, 1934, brought before the Court, at which time petitioner was sentenced to six months on Counts 1 and 2, of said indictment, to run consecutively, and placed "on probation for two years on count three." Petitioner thereafter served the total one-year sentence so imposed upon him in the Lackawanna County Jail, at Scranton, Pennsylvania.

After his release from said jail, and within the original two-year probation period, petitioner was again indicted in the same U. S. District Court, for uttering, passing and possessing counterfeit coins in violation of 18 U.S.C.A. §§ 277, and 278, on six separate counts. On the last-mentioned indictment petitioner was arraigned before The Honorable Albert L. Watson, another of the Judges of the District Court for the Middle District of Pennsylvania. At a trial on said charge, petitioner conducting his own defense, was found guilty by jury verdict on all six counts. After return of said verdict petitioner was sentenced by Judge Watson, to a total of six years and six days and to pay a total fine of six hundred dollars ($600). After said sentence was so imposed on petitioner the Probation Officer, for the Middle District of Pennsylvania, filed in said District Court an application for the revocation of the probation granted petitioner on September 18, 1934, in cause No. 8824, supra. Said application for revocation of probation was presented to the Honorable Albert W. Johnson, Judge, who, on the same day, ordered a bench warrant to be issued for petitioner. Under said warrant petitioner was brought before The Honorable Albert L. Watson, on March 18, 1936, at which time, Judge Watson entered an order as follows:

"Now, to wit, March 18, 1936, it appearing that the Court issued a warrant for the arrest of the Defendant, and said Defendant being a probationer has been brought before the Court; and it appearing that said Defendant, during the period of probation imposed September 18, 1934 on Count Three, did violate said probation by uttering, publishing and passing counterfeited coins, and by having in his possession with intent to pass other counterfeited coins, for which offenses he was tried and convicted by a jury on the 12th day of March, 1936, in the case of the United States of America v. Rudolph J. Buhler, alias R. E. Brandt, No. 9151 December Term, 1935, in this Court; and it also appearing that the said Defendant did violate said probation imposed upon him in other respects; therefore

"The Court now revokes the probation imposed on Count Three upon said Defendant on the 18th day of September, 1934, and the Court will impose a sentence which might originally have been imposed.

"(signed) Albert L. Watson "United States District Judge."

Thereafter, on the same day the following judgment and sentence was entered of record by Judge Watson, in cause No. 8824, in said District Court:

"And now, to wit, March 18, A.D.1936 the sentence of the Court is that you pay a fine to the United States of One Hundred ($100) dollars; on Count Three (3); that you be committed to the custody of the Attorney General of the United States or his authorized representative for confinement in the United States Northeastern Penitentiary for and during the term and period of Ten (10) years on Count Three (3); beginning on the expiration of or legal release from the sentence imposed upon you on March 12, 1936, in the case of United States of America v. Rudolph J. Buhler, alias R. E. Brandt, No. 9151 December Term, 1935 in this court; said sentence to be served consecutively with, and not concurrently with, said sentence imposed by this court March 12, 1936; and be subject to the same discipline and treatment as convicts sentenced by the Courts of the State; and while so confined therein you shall be exclusively under the control of the officers having charge of the said Penitentiary; and stand committed until those sentences be complied with, or until you shall be otherwise discharged by due course of law."

On September 20, 1934, petitioner was delivered into the custody of the Warden of the Northeastern Penitentiary at Lewisburg, Pennsylvania, under two commitments, for service of sentences totaling sixteen (16) years. Thereafter, by directive of the Attorney General of the United States petitioner was ordered transferred to the U. S. Penitentiary, at Atlanta, Georgia. Subsequently petitioner was transferred to the custody of respondent in the Medical Center for Federal Prisoners at Springfield, Missouri.

On August 21, 1942, petitioner filed a twenty-six page motion in the District Court for the Middle District of Pennsylvania, entitled as follows: "Motion and Petition to Set Aside Judgment Imposed by Court of Lacked Jurisdiction upon Revocation of Probated Sentence Without a Hearing." Said motion, being treated as a writ of error coram nobis, was denied, on written opinion, by Judge Watson. United States v. Buhler, D. C., 48 F.Supp. 159. The points there made by petitioner are in the main tantamount to the ten grounds set up by him in the instant proceeding. During the hearing on the instant writ of habeas corpus petitioner stated in open court:

"Mr. Buhler: Your Honor, I want to repeat a motion that all the testimony just now be stricken from the record as immaterial to the case at issue. I am attacking the 10 year term, Your Honor, and not the procedure on the indictment 8824. All the testimony here given, Your Honor, under indictment of procedure on Counts 1 and 2 is absolutely irrelevant to the issue raised in the writ of habeas corpus on the 10 year term.

"The Court: Let me understand you. You are not making any point whatever with reference to anything that transpired in Case 8824 as to counts 1 and 2?

"Mr. Buhler: There is nothing in there. I am raising that the 10 year term is illegal and that there was not originally any conditions set on the probation to be violated and that there was no power there to be conferred upon any court to set that sentence aside. The statute prohibits any such imposition of sentence.

"The Court: So you are contending, let me understand thoroughly...