Cherrie v. United States, 4095.

• Decision Date: 31 July 1950
• Docket Number: No. 4095.,4095.
• Citation: 184 F.2d 384
• Parties: CHERRIE v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

184 F.2d 384 (1950)

CHERRIE v. UNITED STATES.

No. 4095.

United States Court of Appeals Tenth Circuit.

July 31, 1950.

Walter B. Phelan, Cheyenne, Wyo., for appellant.

John S. Miller, Asst. U. S. Atty., Cheyenne, Wyo., (J. J. Hickey, U. S. Atty., Rawlins, Wyo., on the brief), for the United States.

Before PHILLIPS, Chief Judge, and MURRAH, Circuit Judge.

PHILLIPS, Chief Judge.

This is an appeal from an order denying a motion to vacate a judgment filed under 28 U.S.C.A. § 2255. The matter was here on a prior appeal, Cherrie v. United States, 10 Cir., 179 F.2d 94. We there held that the files and records in the case did not conclusively show that Cherrie was not entitled to any relief and reversed and remanded the matter with directions to grant him a hearing.

At the hearing Cherrie asserted a denial of his constitutional right to counsel. The United States asserted that such right was waived by Cherrie. The issue was whether the defendant competently and intelligently waived his right to counsel.¹

After a full and complete hearing, in which Cherrie was represented by able counsel, appointed by the court, the trial court resolved the issue against Cherrie.

The evidence adduced established these facts:

Cherrie was born August 28, 1910. He was educated in the public schools. He completed the eighth grade and two years of high school. He is an oil field worker and a man of more than average intelligence. Prior to the filing of the present charge he had been before the courts on at least four separate criminal charges and he had served a term in the Washington State Penitentiary. He was not a stranger to criminal proceedings.

On June 17, 1948, he made a voluntary statement to an agent of the Federal Bureau of Investigation, in which he admitted that he was guilty of the offense charged. The agent advised him that he had the right to have an attorney. Cherrie stated that he knew he could have a lawyer, but that he was guilty; that he did not want a lawyer, and that he wanted to plead guilty and get the matter over with as quickly as possible. On June 21, 1948, Cherrie was taken before the United States Commissioner in Cheyenne, Wyoming. The United States Commissioner stated to Cherrie that he could not appoint an attorney for Cherrie, and that only the United States District Judge could appoint an attorney; and inquired if Cherrie desired the services of an attorney. Cherrie replied that he did not want an attorney; that he "wanted to plead guilty and have it over with."

On June 24, 1948, the United States Marshal took Cherrie and three other defendants into open court for arraignment. The United States Attorney presented Cherrie with a copy of an information and a copy of a waiver of indictment and explained to Cherrie that he had the right to have the case presented to a grand jury, but that if he so desired, he might waive indictment by the grand jury and plead to the information; and that he would have the same rights under the information that he would have if he were charged by indictment by the grand jury. The United States Attorney then told Cherrie that he had the right to an attorney, and that if he did not have...