Burgess v. United States

• Decision Date: 24 June 1963
• Docket Number: No. 17703.,17703.
• Citation: 319 F.2d 345
• Parties: Leamon Victor BURGESS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

319 F.2d 345 (1963)

Leamon Victor BURGESS, Appellant, v. UNITED STATES of America, Appellee.

No. 17703.

United States Court of Appeals Ninth Circuit.

June 24, 1963.

Hartley Fleischmann, San Francisco, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section, David Y. Smith, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, ORR and MERRILL, Circuit Judges.

ORR, Circuit Judge.

On May 13, 1957, appellant pleaded guilty to a violation of 18 U.S.C. § 2113 (a) (bank robbery) and is currently serving his sentence of fifteen years of imprisonment. Appellant filed a motion on January 19, 1960 (refiled February 12, 1960) with the District Court to vacate judgment and sentence pursuant to 28 U.S.C. § 2255¹ on the ground that he was not properly brought before a commissioner for arraignment as required by Rule 5(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. This motion was denied for the reason that the motion, files and records of the case conclusively showed that appellant was entitled to no relief.

On March 15, 1960, appellant applied to the same District Court for a writ of habeas corpus. He alleged that his plea of guilty had been coerced. He stated that between the time of his arrest on April 17, 1957 and his arraignment on April 22, 1957, he was subjected to physical duress by police officers. He contended that they so skillfully beat him that they left no scars or bruises, and that the effect of the beatings was such as to put him in a state of fear sufficient to compel him to enter a plea of guilty at the time he was arraigned in federal court. Appellant also alleged that he was in such a state of fear that he dared not divulge the treatment he had received to his lawyer or to the court when it questioned him as to whether or not he was freely and voluntarily pleading guilty.

This petition was dismissed without a hearing by the trial judge on the theory that appellant's remedy under Section 2255 was adequate and effective to test the legality of his detention.

Finally, on September 20, 1961, appellant filed another motion under Section 2255 to vacate the judgment and sentence. In this motion appellant alleges that he was detained for an unreasonable period in violation of Rule 5(a) of F.R. Crim.P. and that his confession obtained during this detention was coerced. He also contends that he was subjected to verbal and physical abuse in the following ways:

"1. On the day of your petitioner's arrest, he was held incommunicado with no lawyer present at an interrogation, where both verbal and physical abuse was used by agents of the Federal Bureau of Investigation;

"2. Although your petitioner asked for an attorney, no attorney was brought to him;

"3. Your petitioner was threatened with getting twenty-five years for the gun in his possession, although he had a permit from Las Vegas, Nevada, where he purchased the gun;

"4. Your petitioner was accused of numerous other robberies in all parts of the country;

"5. The agents of the Federal Bureau of Investigation promised him that if he signed a confession, they would press no other charges and they would see that the gun count, calling for twenty-five years, would be withdrawn;

"6. Although your petitioner had just been released from a hospital the previous day, he was refused medical care and treatment until after the arraignment, when he was placed in the County Jail Hospital.

"As a result of the verbal and physical abuse and the promise of the agents of the Federal Bureau of Investigation that they would not press the gun charge against your petitioner, which might result in twenty-five years imprisonment, your petitioner signed the confession that they handed to him at the City Jail on April 17, 1957. Although this confession was not used in court, the psychological fact that your petitioner knew that the government had this confession in addition to the fear...