Burleson v. United States

• Decision Date: 25 January 1965
• Docket Number: No. 17759.,17759.
• Citation: 340 F.2d 387
• Parties: Louis J. BURLESON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

340 F.2d 387 (1965)

Louis J. BURLESON, Appellant, v. UNITED STATES of America, Appellee.

No. 17759.

United States Court of Appeals Eighth Circuit.

January 25, 1965.

Thomas I. Gill, Smith, Schwegler & Swartzman, Kansas City, Mo., for appellant.

F. Russell Millin, U. S. Atty., Kansas City, Mo., and Calvin K. Hamilton and Bruce C. Houdek, Asst. U. S. Attys., for the United States.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

PER CURIAM.

Louis J. Burleson appeals in forma pauperis from an order denying his motion under 28 U.S.C. § 2255 to vacate his sentences. Burleson v. United States, 231 F.Supp. 537 (W.D.Mo.1964).

The chronology is interesting and important:

1. After the initial entry of a contrary plea, the appellant, on September 8, 1961, pleaded guilty to each count of a 5-count information filed in the Western District of Missouri charging him with violations of 18 U.S.C. § 500 (money order forgery, etc.) and § 641 (receipt of stolen money orders with intent to convert, etc.). The late Judge Smith imposed a five year sentence for each count. These were to run consecutively and thus made a total of 25 years. At the same time, Burleson also pleaded guilty to charges contained in ten other indictments and informations, relating to bank and post office offenses, which had been transferred, pursuant to Rule 20, F.R.Crim.P., from federal judicial districts in Kansas and Oklahoma. On these he received five and 20 year sentences to run concurrently with the others. A timely motion to reduce was denied. Through this point Burleson was represented by competent retained counsel.

2. Six months later, in March 1962, the appellant, on his own behalf, filed papers, thereafter amended, which attacked the validity of his sentences. He seemed primarily to question the jurisdiction of the court and the voluntariness of his plea, and he urged illiteracy and lack of understanding on his part. The district court held that the motion papers asserted only conclusions which, when "given the broadest sort of construction, do not meet the minimum pleading requirements of a Section 2255 proceeding". Burleson v. United States, 205 F. Supp. 331, 335 (W.D.Mo.1962). It granted appellant time to amend with specific and detailed factual allegation. It also appointed counsel to assist him.

3. No amendments were then forthcoming although letters from Burleson to the court and his counsel were placed in the file. In October 1962 the court formally denied the appellant's motion for the reasons stated in its earlier order and for failure to amend. Burleson v. United States, 209 F.Supp. 464 (W.D.Mo. 1962).

4. A year passed. In October 1963 appellant, on his own behalf, filed another motion which appears generally to allege undue delay between arrest and arraignment, assault by the arresting and confining officers, and inadequacy of representation by counsel. The court treated this motion, as it had the first, as one under § 2255. Then, "Considering petitioner's pending motion in a posture entirely divorced from his prior motion", and relying largely on the Supreme Court's observation in Sanders v. United States, 373 U.S. 1, 19, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), that a district court has the power to deny a § 2255 motion which states "only bald legal conclusions with no supporting factual allegations", it found that "no facts whatever are alleged upon which any evidentiary hearing could be held". But, again, formal denial of the motion was withheld and appellant was given more time in which to set forth "specific and detailed facts". Burleson v. United States, 222 F.Supp. 855, 857 (W.D.Mo.1963).

5. Burleson this time did respond. In an eleven page document, containing many generalities and much material (search and seizure, handwriting identification, and the like) which would have no legal significance in the face of self-conviction on a valid guilty plea, Lipscomb v. United States, 308 F.2d 420, 423 (8 Cir. 1962), cert. denied 371 U.S. 928, 83 S.Ct. 298, 9 L.Ed.2d 235, he nevertheless did state that (a) he "had been assaulted and coerced, with relentless questioning * * * which brought about his plea of guilty", (b) his "head and mouth was giving him so much misery, he could not eat or sleep"; (c) his attorney wrote him "to plead guilty, that I would only get five years, then I could get medical care"; (d) he was illegally detained "for 5 days or more before being taken before a committing magistrate"; (e) "he was called out night and day" and "was hurting so badly at mouth and head, he had nothing left but to plead guilty" which "was his only out for medical attention"; and (f) this, plus the assurance as to the five year sentence, was the reason for his change of plea from not guilty to guilty.

6. The court, on November 29, 1963, issued an unpublished memorandum-order in which it again concluded that, with one exception, the new averments did not comply with its previous orders that Burleson allege facts, as distinguished from conclusions, and that the exception consisted of the allegations as to illegal detention. The court made findings specifically adverse to the appellant on the detention issue. So far as the other allegations were concerned, the court once again allowed him further time to improve his pleadings.

7. Burleson filed another seven page document which seems to be directed to the claim of improper detention.

8. The court then conferred with both counsel. This resulted in the issuance of an order which, "in order to discover if any factual basis exists for the relief sought by petitioner and to expedite the conclusion of this action", directed the prompt taking of Burleson's deposition at the federal penitentiary at Leavenworth.

9. The deposition was taken on February 1, 1964. Present were Richard W. Miller, court-appointed defense counsel, and Bruce C. Houdek, Assistant United States Attorney. In response to preliminary inquiry by Mr. Miller, Burleson indicated that he would "stand behind the Fifth Amendment, and just rather not say anything" and that he wanted the court to rule on the facts it presently had and, if the ruling were adverse, he would then appeal. In response to questions by Mr. Houdek, Burleson identified himself and his sentences; acknowledged that he had written letters to court and counsel; stated that he had prepared his pleadings himself; asserted that his personally retained lawyer had made promises to him before he pleaded guilty; and said, "I am sick and I copped out for that", that he was beaten in jail by "the arresting officer, from the beginning of the arrest", that he told his original counsel he had been beaten but was advised not to say anything about it, that he was questioned day and night by "the Federal authorities", that he did not know the nature of the charge to which he pleaded guilty, and that he was sick and out of his head. But then, interspersed with all this and with acquiescence and explanation by his counsel, he claimed the Fifth Amendment repeatedly in response to inquiries about any former criminal record, allegations made in his pleadings, threats against him, physical beatings, delay, government counsel's using perjury against him, and the like. He answered, "That's right", to the following question by Mr. Miller:

"Q. Mr. Burleson, if the Court would choose to set this down for hearing, would you also, is it your inclination at this time also to stand on the Fifth Amendment in respect to any questions asked you at that time?"

He also stated that he understood the purpose of the deposition and why the court wanted it. He refused to sign the deposition.

The brief filed for the appellant in the district court suggests that his refusal further to testify at the deposition was due to a fear of a perjury charge if he did "not substantiate factual allegations" made "under oath...