Burgett v. United States
| Decision Date | 19 October 1956 |
| Docket Number | No. 15565.,15565. |
| Parties | Aaron Walter BURGETT, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Aaron Walter Burgett, appellant, pro se.
Harry Richards, U. S. Atty., and Robert C. Tucker, Asst. U. S. Atty., St. Louis, Mo., for appellee.
Before WOODROUGH, VOGEL and VAN OOSTERHOUT, Circuit Judges.
On May 29, 1952, Aaron Walter Burgett, upon having entered a plea of guilty to a violation of 18 U.S.C.A. § 2114, was given a mandatory sentence of imprisonment for a period of 25 years. He appeals to this court from an order of the District Court denying a motion "in the nature of error coram nobis", which was treated by the court as a motion under 28 U.S.C.A. § 2255, whereby appellant sought vacation of the sentence imposed on the ground that it was illegal. He alleges that his plea was coerced. The District Court found that "from examination of the present pending motion and from an examination of the files and records in the case, including the official transcript, which show conclusively that the defendant is entitled to no relief, we find that defendant is entitled to no relief under the present motion and that same is without merit". Appellant takes the position that his petition raises substantial issues of fact and that the District Court should have required his presence at a hearing thereon. A determination of appellant's right to be present at a hearing on his motion requires a careful examination of the original files which we have before us.
The record indicates that the appellant and two codefendants, not involved in the instant proceedings, appeared before the District Court on May 23, 1952, at which time the District Court was advised in the presence of the defendant by a United States Attorney that the latter had received a communication in the mail from the defendant indicating a desire to waive grand jury indictment and be proceeded against on criminal information. Burgett was asked if he had counsel, to which he replied in the negative. He was asked if he desired counsel appointed. Upon his indicating that he did not want counsel appointed for him, the United States Attorney suggested that in view of the nature of the offense, the defendant should be represented. The court appointed two attorneys for the three defendants. Later on the same day, after a conference between the attorneys and the defendants, waivers of indictment were filed. The attorneys so appointed asked the court for a week's time "to go further into this charge". The cause was passed until May 29th, at which time the three defendants again appeared before the court with their attorneys. The following occurred:
After further inquiry from the co-defendants, the court imposed a mandatory sentence of imprisonment of 25 years.
On March 26, 1953, the appellant filed a motion to vacate judgment in accordance with the provisions of 28 U.S.C.A. § 2255. He requested that the court appoint counsel for him. Hearing on his motion was held on April 30, 1953. His court-appointed counsel, Paul Lashly, appeared in his behalf. In that proceeding appellant asked for a reduction in his sentence because, while admitting armed robbery of a store, he claimed he was unaware that the store was also a post office. On May 8, 1953, the District Court made findings of fact and conclusions of law and, following this court's decision in Hood v. United States, 8 Cir., 1946, 152 F.2d 431, which involved a similar question, entered its order overruling appellant's petition. No appeal was perfected therefrom.
On February 6, 1956, appellant filed the motion which is the subject of this appeal. In his motion he claims that his petition "* * * deals with different and unrelated facts not heretofore raised due to fear and intimidation".
The main theme of the present complaint is one of threat and coercion. Petitioner alleges that he did not wilfully or intelligently waive indictment; that the waiver was secured by threat and promise and was signed before he had recourse to counsel; that the information alleged a crime which was never committed; that no person could be presumed to freely and intelligently enter a plea of guilty to a crime prescribing a mandatory sentence of 25 years; that his plea of guilty was coerced; that he was beaten and abused by law enforcement officers and then made to sign a confession of guilt, and that his counsel was incompetent.
Petitioner cites a number of cases to this court which have been examined and found not applicable to the instant question. He relies mainly upon United States v. Hayman, 1952, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. In that case, the respondent alleged in his petition that he did not have the effective use of counsel in that a principal witness against him at his trial who was a defendant in a related case was represented by the same lawyer as respondent. He claimed that he was not told of the dual representation, and had no way of discovering the conflict until after his trial was over. The court record disclosed that the witness and co-defendant had testified against the respondent after entering a plea but before sentence. A possible conflict of interest was indicated and it was conceded by the concurrent findings of both the District Court and the Court of Appeals, 9 Cir., 187 F.2d 456 that:
"* * * respondent\'s motion states grounds to support a collateral attack on his sentence and raises substantial issues of fact calling for an inquiry into their verity." 72 S.Ct. 267.
The Supreme Court, however, carefully pointed out, 342 U.S. at page 222, 72 S.Ct. at page 274, that:
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