Curtis v. Hiatt, 9144.

• Decision Date: 14 May 1947
• Docket Number: No. 9144.,9144.
• Citation: 161 F.2d 621
• Parties: CURTIS v. HIATT.
• Court: U.S. Court of Appeals — Third Circuit

161 F.2d 621 (1947)

CURTIS v. HIATT.

No. 9144.

Circuit Court of Appeals, Third Circuit.

Argued February 17, 1947.

Decided May 14, 1947.

William W. Curtis pro se.

Arthur A. Maguire, U. S. Atty., of Scranton, Pa., for appellee.

Before O'CONNELL and KALODNER, Circuit Judges.

O'CONNELL, Circuit Judge.

Petitioner appeals an order dismissing his petition for a writ of habeas corpus.

The allegations of petitioner are substantially as follows: On December 20, 1939, when petitioner was eighteen years of age, he was arrested in the Canal Zone on a charge of armed robbery of the Lower Salem Commercial Bank, Lower Salem, Ohio, in violation of Section 588b, Title 12, U. S. C., 12 U.S.C.A. § 588b. This was the first time he had been arrested. While he was being transported to Ohio in the custody of a United States Marshal, the marshal on several occasions advised him to plead guilty and intimated that he (the marshal) would "talk to the judge for him and get him off with a light sentence."

Petitioner was arraigned on June 12, 1940, at Columbus, Ohio. Asked whether he desired counsel, petitioner replied in the negative, and entered a plea of guilty. He was convicted and sentenced to imprisonment for twenty-five years, the maximum confinement permitted by the statute. No appeal is reported as having been taken.

In 1945, while incarcerated in the United States Penitentiary at Lewisburg, Pennsylvania, petitioner learned for the first time that he could have been represented by counsel assigned by the court. He petitioned in forma pauperis for a writ of habeas corpus on June 15, 1945. The district judge, on August 20, 1945, issued a rule to show cause why the writ should not be granted. The warden replied with a recital of the record and an assertion that the record could not be contradicted in a collateral proceeding. Hearing was set for September 12, 1945.

Two days before the hearing, the court appointed a Harrisburg, Pennsylvania, attorney to represent petitioner at the hearing. The attorney at no time interviewed the petitioner, nor was petitioner advised of the appointment until one month after the hearing.¹ Petitioner was not present at the hearing. On September 18, 1945, the court discharged the rule to show cause and dismissed the petition for writ of habeas corpus. The opinion of the court briefly states that the Constitution permits an accused to plead guilty even though he has no counsel, and that the record showing no desire for counsel cannot be contradicted in a collateral proceeding. A petition for rehearing, submitted on December 11, 1945, was denied on December 17, 1945.

On December 28, 1945, petitioner filed the present petition for a writ of habeas corpus in the same court. This petition while based upon the same grounds, included allegations of fact not set forth in the first petition. On January 22, 1946, the district judge dismissed this petition as well. The court said: "The sole reason presented in this petition is that he was denied his constitutional right to counsel. This identical question was previously raised by the petitioner in a habeas corpus proceeding * * * and this court in such previous habeas corpus proceeding pointed out that such record could not be contradicted on a collateral proceeding such as in habeas corpus." The court added that a copy of the judgment, attached to the petition, would in itself be sufficient to determine that the petition was without merit.

Actually, both the June 15, 1945, and the December 28, 1945, petitions contain two alleged grounds for issuance of the writ: (1) that the waiver of representation by counsel was ineffective, and (2) that the Lower Salem Commercial Bank was not a "bank" within the meaning of 12 U.S. C.A. § 588a. The district court failed to mention the latter ground in either opinion dismissing the petitions. Our holding on the former ground renders it unnecessary to discuss the question of the effect, if any, of proof that the Lower Salem Commercial Bank is not a "bank" included within 12 U.S.C.A. § 588a. We do wish to point out, however, that the jurisdiction of the federal court which tried petitioner in 1940 necessarily depended upon the Lower Salem Commercial Bank coming within that category; and a letter attached to the petition raises a doubt whether that jurisdiction existed.²

We believe that the question of representation by counsel may be raised in a habeas corpus proceeding, even if inquiry into that question entails contradiction of the record. This precise question was considered in Williams v. Huff, 1944, 79 U.S.App.D.C. 31, 142 F.2d 91. A youth of seventeen, on advice from a "layman," had pleaded guilty to an indictment charging assault with a deadly weapon. The record showed that he had been advised of his...