Davis v. United States, 15229.

• Decision Date: 04 November 1955
• Docket Number: No. 15229.,15229.
• Parties: Volney DAVIS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

226 F.2d 834 (1955)

Volney DAVIS, Appellant, v. UNITED STATES of America, Appellee.

No. 15229.

United States Court of Appeals Eighth Circuit.

November 4, 1955.

Allen H. Surinsky, Clayton, Mo. (appointed by court), for appellant.

Alex Dim, Asst. U. S. Atty., and George E. MacKinnon, U. S. Atty., St. Paul, Minn., for appellee.

Before WOODROUGH, JOHNSEN and VOGEL, Circuit Judges.

VOGEL, Circuit Judge.

On December 9, 1952, Volney Davis filed in the United States District Court for the District of Minnesota a motion, pursuant to 28 U.S.C. § 2255, to set aside, vacate and nullify or reduce a life sentence of imprisonment imposed on him by the United States District Court for the District of Minnesota on June 7, 1935, pursuant to his entry of a plea of guilty to an indictment charging that he and others conspired to kidnap one Edward George Bremer at St. Paul, Minnesota, and transport him into the State of Illinois. 18 U.S.C. § 408a, now 18 U.S.C. § 1201.

Judge Matthew M. Joyce, the judge who had presided at the arraignment of Davis and had sentenced him, denied petitioner's motion on the ground that, "The files and records show conclusively that the petitioner is entitled to no relief * * *". An appeal from such order was taken to this court. In Davis v. United States, 210 F.2d 118, this court reversed the order appealed from and remanded the case for the purpose of giving the petitioner an opportunity to be heard on what this court termed the three remaining issues under consideration; namely, the assertions by the petitioner that:

1. He did not know of his constitutional right to counsel;

2. That he did not waive that right;

3. That he was led to believe he would be given a term of years if he entered a plea of guilty.

Upon a remand of the case to the United States District Court for the District of Minnesota, Judge Joyce disqualified himself and the hearing was held before Chief Judge Gunnar H. Nordbye. After the mandate from this court was returned to the district court, the petitioner was removed from the United States Penitentiary at Leavenworth, Kansas, wherein he was at that time confined, to St. Paul, Minnesota, and two attorneys, Mr. Harlan B. Strong, of Minneapolis, Minnesota, and Mr. Howard H. Gelb, of St. Paul, Minnesota, were appointed by the court to represent him. A substantial period of time prior to the commencement of the hearing was allowed to enable appointed counsel to prepare for the hearing. The right to subpoena witnesses at the expense of the United States was accorded the petitioner and all witnesses he desired to call and who could be located were made available to him. The hearing and preparations therefor were apparently held with meticulous care and consideration for the petitioner's rights.

The judgment of conviction based upon Davis' plea of guilty carried with it the presumption of regularity. The burden of proof at the hearing on Davis' present motion rested upon him to establish by a fair preponderance of the evidence that he did not know his constitutional right to counsel or that he did not waive that right or that he was led to believe he would be given a term of years if he entered a plea of guilty. Johnson v. Zerbst, 1937, 304 U.S. 458, 468, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461:

"It must be remembered, however, that a judgment cannot be lightly set aside by collateral attack, even on habeas corpus. When collaterally attacked, the judgment of a court carries with it a presumption of regularity. Where a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional right to assistance of counsel. If in a habeas corpus hearing, he does meet this burden and convinces the court by a preponderance of evidence that he neither had counsel nor properly waived his constitutional right to counsel, it is the duty of the court to grant the writ."

United States v. Morgan, 1954, 346 U. S. 502, 512, 74 S.Ct. 247, 253, 98 L.Ed. 248:

"Of course, the absence of a showing of waiver (of counsel) from the record does not of itself invalidate the judgment. It is presumed the proceedings were correct and the burden rests on the accused to show otherwise. Johnson v. Zerbst, supra, 304 U.S. at page 468, 58 S.Ct. 1024; Adams v. United States ex rel. McCann, supra, 317 U.S. 269 at page 281, 63 S.Ct. 236 at page 242, 87 L.Ed. 268; cf. Darr v. Burford, 339 U.S. 200, 218, 70 S.Ct. 587, 597 94 L.Ed. 761."

The hearing commenced on July 7, 1954, and was concluded on July 12, 1954. In a detailed opinion, findings and conclusion (Davis v. United States, D.C., 123 F.Supp. 407, 414), Judge Nordbye came to the conclusion that:

"After due reflection and consideration of all of the evidence, I have come to a sustained and abiding conviction that when Volney Davis entered his plea of guilty on June 3, 1935, he competently, intelligently, and understandingly waived his constitutional rights to be represented by counsel under the Sixth Amendment to the Constitution of the United States, with a full understanding of the implications thereof,"

and accordingly denied petitioner's motion. Davis has now appealed therefrom.

No record or transcript of the arraignment proceeding held on June 3, 1935, was made other than the clerk's notations, which show the following entry:

"The United States Attorney, Geo. F. Sullivan, being present the defendant Volney Davis appears and is arraigned. Upon being questioned by the Court said defendant stated that he did not desire the advice of counsel and entered a plea of guilty to the charge in the indictment herein.

"Whereupon, it is by the Court

"Ordered: That sentence be and same hereby is deferred to June 7, 1935."

With reference to June 7, 1935, the clerk's records indicate that Volney Davis appeared "with his Attorney". The latter entry was obviously incorrect and on October 10, 1939, an order amending the judgment was made to show that Volney Davis appeared "without an attorney".

The transcript of the July 7-12, 1954, proceedings before Judge Nordbye, consisting of 715 pages, was furnished to the appellant and his attorneys in this appeal.

The evidence discloses that Edward George Bremer was kidnapped at St. Paul, Minnesota, on January 17, 1934. On January 22, 1935, Volney Davis, the petitioner herein, along with a number of other persons, was indicted for conspiracy to kidnap and transport Bremer, in violation of 18 U.S.C. § 408(a), now Section 1201.

Davis was arrested in Kansas City on February 17, 1935, but escaped from custody while being transported from Kansas City to Chicago. On June 1, 1935, Davis was again arrested, this time in Chicago, Illinois, and the following day was taken by airplane from Chicago to Minneapolis. On June 3, 1935, he was arraigned before Judge Joyce. He appeared without counsel, entered a plea of guilty and four days later, on June 7, 1935, was sentenced by Judge Joyce to life imprisonment.

Volney Davis was born January 29, 1902, in Cherokee Nation, Oklahoma. He went to the sixth grade in school, and while there met Freddie Barker, later of the infamous Barker-Karpis gang. When Davis was 17 years old, he was sentenced to the Oklahoma penitentiary to serve three years for theft. In 1922, represented by counsel, he was tried to a jury and found guilty of first-degree murder and sentenced to life imprisonment in the Oklahoma State Penitentiary. He served such sentence from February, 1923, until November, 1932, at which time he received an eight months' leave. Subsequently he received an additional twelve months' extension. Upon obtaining his leave from the penitentiary, he immediately joined up with the Barker-Karpis gang, receiving money from them from time to time.

After the extended twelve months' period of leave from the Oklahoma penitentiary expired, Davis deliberately failed to return to the penitentiary and became a fugitive. Some of the members of the Barker-Karpis gang, with which Davis was associated, kidnapped Bremer on January 17, 1934, and transported him to Bensonville, Illinois. He was held for $200,000.00 ransom, which was subsequently paid and he was released. Two indictments were returned by the grand jury of the District of Minnesota, one charging Davis and others with the crime of conspiracy to kidnap Bremer and transport him to Illinois, and the second charging certain defendants, including Davis, with the substantive offense of kidnapping Bremer.

Davis contends that when he appeared before Judge Joyce on June 3, 1935, for arraignment, he did not know of his constitutional right to counsel, that he did not waive such right and that he was led to believe he would be given a term of years if he entered a plea of guilty. He testified that when he first appeared on June 3, 1935, Judge Joyce asked him if his name was Volney Davis. He replied, "Yes, sir." He claims Judge Joyce then asked, "Have you agreed to enter a plea of guilty?" and he replied, "I would like to know what the maximum sentence is that I could receive for this crime"; that the judge told him, "You could receive up to a life sentence" and Davis then said, "Well, I will enter a plea of guilty to conspiracy"; that the indictment charging conspiracy was read to him and that he thereafter entered a plea of "guilty of conspiracy". He denies that at that time he was asked if he had counsel or was advised of his right to counsel. He claims he pleaded guilty to keep from going back to "isolation" in Oklahoma.

Davis also claims that he was incapable of intelligently and competently waiving his constitutional rights at the arraignment of June 3, 1935, because of alleged happenings between the time of his arrest, June 1st, and the arraignment on June 3rd. He claimed that at the time of his arrest he was struck over the head by something, that a gun was...