Devine v. Hand, 6565.

• Decision Date: 24 January 1961
• Docket Number: No. 6565.,6565.
• Citation: 287 F.2d 687
• Parties: George Raymond DEVINE, Appellant, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

287 F.2d 687 (1961)

George Raymond DEVINE, Appellant, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Appellee.

No. 6565.

United States Court of Appeals Tenth Circuit.

January 24, 1961.

Sheldon E. Friedman, Denver, Colo., for appellant.

J. Richard Foth, Topeka, Kan. (John Anderson, Jr., Topeka, Kan., on brief), for appellee.

Before MURRAH, Chief Judge, and BRATTON and BREITENSTEIN, Circuit Judges.

MURRAH, Chief Judge.

This is an appeal from the District Court's denial of Devine's petition for a writ of habeas corpus, filed after having exhausted his state remedies.

He was convicted of burglary and larceny in a Kansas state court, upon a plea of guilty, and is presently in that State's penitentiary.

His first contention is that he was forcibly brought from Missouri for trial in Kansas, without being properly extradited, in violation of due process under the Fourteenth Amendment; and that his conviction was therefore a nullity. But, "* * * the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a `forcible abduction' * * * There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will." Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541. Due process under the Fourteenth Amendment is satisfied when one charged with a state offense is tried in a state court of competent jurisdiction "in accordance with constitutional procedural safeguards," i. e., established modes of procedure. Id. See Odell v. Hudspeth, 10 Cir., 189 F.2d 300; Alexander v. Daugherty, 10 Cir., 1960, 286 F.2d 645.

The petitioner contends, however, that he was not accorded constitutional procedural safeguards under applicable Kansas law, particularly G.S.Kansas 1949, Sec. 62-1304, which provides in material part that "If any person about to be arraigned upon an indictment or information for any offense against the laws of this state be without counsel to conduct his defense, it shall be the duty of the court to inform him that he is entitled to counsel, and give him an opportunity to employ counsel of his own choosing, if he states that he is able and willing to do so. * * * If he is not able and willing to employ counsel, and does not ask to consult counsel of his own choosing, the court shall appoint counsel to represent him unless he states in writing that he does not want counsel to represent him and the court shall find that the appointment of counsel over his objection will not be to his advantage." The manifest and laudable purpose of this statute is to provide a procedural safeguard for due process by imposing, upon a Kansas sentencing court, the inescapable duty to ensure the substantive right of an accused to the effective assistance of counsel at every step of the proceedings against him, unless he voluntarily and competently waives such right, and the court finds that the assistance of counsel would not be advantageous. Compliance with these "primary rights of an accused" is jurisdictional to the acceptance of a guilty plea. Ramsey v. Hand, 185 Kan. 350, 343 P.2d 225. And, compliance is therefore requisite to due process. Alexander v. Daugherty, supra; Odell v. Hudspeth, supra; Amrine v. Tines, 10 Cir., 131 F.2d 827. Cf. the duty of federal sentencing courts under the Sixth Amendment to the Constitution in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; Snell v. United States,...