Crum v. Hunter, 3154.

• Decision Date: 15 November 1945
• Docket Number: No. 3154.,3154.
• Citation: 151 F.2d 359
• Parties: CRUM v. HUNTER, Warden.
• Court: U.S. Court of Appeals — Tenth Circuit

151 F.2d 359 (1945)

CRUM v. HUNTER, Warden.

No. 3154.

Circuit Court of Appeals, Tenth Circuit.

September 4, 1945.

Rehearing Denied November 15, 1945.

Submitted on brief, for appellant.

Eugene Davis, Asst. U. S. Atty., of Topeka, Kan. (Randolph Carpenter, U. S. Atty., and Lester Luther, Asst. U. S. Atty., both of Topeka, Kan., on the brief), for Appellee.

Before MURRAH, Circuit Judge, and RICE and SAVAGE, District Judges.

MURRAH, Circuit Judge.

Petitioner instituted this proceedings in habeas corpus to invalidate a sentence of twenty-five years, imposed by the United States District Court for the District of Oregon, for violation of 12 U.S.C.A. §§ 588b and 588c (bank robbery and kidnapping) and 18 U.S.C.A. § 88 (conspiracy). As grounds for release, petitioner alleges that he was deprived of his constitutional right to the effective assistance of counsel, in that his appointed counsel and officers of the law threatened and coerced him into entering a plea of guilty to the indictment; that counsel was not present in the court room when his plea was entered, and that since he was charged with a capital offense he was entitled to more than one counsel for his defense under Section 563, 18 U.S.C.A.

At an appropriate hearing on the writ, petitioner narrated the following facts: He was arrested and placed in the county jail at Portland, Oregon, where he was beaten by the jailor with a "large black hose" in an attempt to make him confess his guilt, but when he refused to do so he was taken before the court for arraignment in a "very short time" and entered a plea of not guilty. He did not have counsel at the time of arraignment but the next day an attorney appointed by the court came to the jail to confer with him. He told counsel he had been beaten and requested medical care, which counsel said "he would see about". That counsel told him "I really don't feel myself capable of defending this serious a charge because I have studied for corporation law principally and I don't believe I could fairly represent you" but "I will do my best". His counsel returned to the jail a day or two later and advised him he would not be able to try the case and urged a plea of guilty. He asked counsel to wire his family or obtain a continuance of his case until he could communicate with them, but was told that the court would not allow it. Counsel stated that he knew the Judge "very well" and if petitioner would enter a plea of guilty to the first count "he would make a nice talk in court for me." The morning before the trial, counsel came to the jail and stated that he had talked with the District Attorney who had convinced him that the co-defendants, who had entered pleas of guilty and received life sentences, "were going to turn Government evidence in the case and that it would be impossible for him to win the case under those circumstances." That on the same day, counsel and an F. B. I. agent talked to the co-defendants at the jail, where he could see them through a glass partition, and the F. B. I. agent came over and told him the co-defendants were going to testify for the Government. Counsel again told him it was impossible for him to try the case and if he would enter a plea of guilty "he would fix it" so he could plead guilty to the first count only. On the following day counsel called and assured him that "everything was all right" and he appeared in court without counsel and entered a plea of guilty.

Before filing his petition for the writ, petitioner prepared and submitted an affidavit to the attorney who had been appointed by the sentencing court to represent him, which counsel refused to sign, but wrote petitioner a letter stating: " cannot conscientiously sign the affidavit in the form submitted because it does not coincide with my recollection in several important particulars. I do not know what use you intend to make of an affidavit from me and hesitate to submit one without...