Dorton v. United States, 577-70 — 579-70.

• Decision Date: 13 August 1971
• Docket Number: No. 577-70 — 579-70.,577-70 — 579-70.
• Citation: 447 F.2d 401
• Parties: Harvey Wayne DORTON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Larry Bert PRICE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Jerald Paul BROWN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

447 F.2d 401 (1971)

Harvey Wayne DORTON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Larry Bert PRICE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Jerald Paul BROWN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Nos. 577-70 — 579-70.

United States Court of Appeals, Tenth Circuit.

August 13, 1971.

Loyd G. Pearcy, Englewood, Colo., for petitioners-appellants.

Richard V. Thomas, U. S. Atty. (Tosh Suyematsu, Asst. U. S. Atty., on the brief), for respondent-appellee.

Before PHILLIPS, SETH and McWILLIAMS, Circuit Judges.

ORIE L. PHILLIPS, Circuit Judge.

Each of the above-named petitioners filed a motion under 28 U.S.C. § 2255 to vacate a sentence imposed on him in the United States District Court for the District of Wyoming on a plea of guilty to an information charging him with a violation of the Dyer Act, 18 U.S.C. § 2312, namely, the interstate transportation of a motor vehicle, knowing it to have been stolen.

From a denial of their respective motions, each petitioner has appealed. Their appeals were consolidated for a hearing in this court.

Each petitioner set up the following four grounds for his motion:

1. Denial of counsel;

2. Denial of leave to withdraw his plea of guilty;

3. Denial of his right of appeal;

4. That his court-appointed counsel failed to represent him to the best of his ability.

The sentences were imposed on a plea of guilty by each petitioner. Prior to the imposition of the sentences, each of the petitioners, on July 5 and July 9, 1968, had made an oral motion to withdraw his plea of guilty. Such motions were heard on July 9, 1968. At such hearing, petitioners were represented by Frederick G. Loomis, a member of the bar of the Supreme Court of Wyoming and of the bar of the United States District Court for the District of Wyoming, who represented petitioners under the appointment of the court from prior to their arraignment until the sentences had been imposed. The motions to withdraw the pleas of guilty were denied.

The petitioners did not file written motions to withdraw their pleas of guilty.

Partly from informal oral motions made by their appointed counsel and partly from the testimony of each petitioner, liberally construed, we will undertake to state separately as to each petitioner the grounds upon which he based his motion to withdraw his plea of guilty.

The grounds urged by Brown were:

1. That when he was arrested by the City Police, he requested the presence of counsel to represent him before he made any statement and such request was denied;

2. That he made a statement to Robert C. Gustafson, Special Agent of the Federal Bureau of Investigation (hereinafter referred to as the F.B.I.), upon the promise by Gustafson that if Brown would tell him everything that Carol Cornelious would be released;

3. That Gustafson told Brown that if he was prosecuted for violation of the Dyer Act, the states would drop their charges against him.

The grounds urged by Price were:

1. That after he had been questioned by the City Police, but had not made any incriminating answers, he requested an attorney and his request was denied.

(On his direct examination, Price stated that when he asked for an attorney, the questioning ceased, and that he had not said anything indicating he had committed a crime.)

2. Same as Brown\'s No. 2;

3. That Loomis, after discussing the matter with the court, promised Price that he would get a "lesser" sentence if he pleaded guilty to an offense as to which the evidence was clearly against him than he would if he pleaded not guilty and was tried and found guilty.

The grounds urged by Dorton were:

1. Same as Brown\'s No. 2;

2. Same as Brown\'s No. 3;

3. That after the police officers began questioning him he requested counsel and his request was denied. (Dorton was not further questioned by the police after he requested an attorney. He had made no incriminating statements when the questions ceased and were not renewed.)

4. Same as Price\'s No. 3.

The court allowed the petitioners and their counsel broad latitude in the presentation of their evidence to establish grounds for withdrawal of the pleas of guilty.

At the hearing on the § 2255 motions, petitioners introduced no evidence other than the transcript of the proceedings on July 5 and July 9, 1968, on the motions to withdraw the pleas of guilty and the evidence introduced at the hearing on July 9, 1968, and the United States introduced only the evidence of Frederick G. Loomis.

The trial court consolidated for hearing the respective motions filed by each petitioner for leave to withdraw his plea of guilty and enter a plea of not guilty. The trial court accorded each petitioner a full and fair evidentiary hearing on this motion.

Most of the material evidentiary facts appear from the transcript of the hearing on the motions to withdraw the pleas of guilty. The evidence at that hearing fully established the following facts:

On May 28, 1968, the petitioners escaped from the Utah State Penitentiary at Draper, Utah, where they were incarcerated on convictions of the commission of crimes in Utah. They stole a pickup truck at Lehi, Utah, and traveled in it to Las Vegas, Nevada, where they abandoned it and stole a 1963 Corvair and traveled in it to Bend, Oregon, where they abandoned it and stole a 1963 two-door white Oldsmobile, in which they traveled to the Canyon Village Motel in Yellowstone Park, where Price and Brown stole the license plates from another automobile and placed them on the Oldsmobile. They picked up a female companion, Carol Cornelious, in the Park and the four of them traveled to Cheyenne, Wyoming, arriving there in the afternoon of June 9, 1968.

Simpson and Backus were detectives in the Cheyenne Police Department. On the evening of June 9, 1968, they were dispatched to the Hitching Post Inn Motel on the western edge of Cheyenne to investigate several persons who had used a Bankamericard credit card to rent two units in the motel. The person who presented the card had no driver's license or other identification to show that he was the person whose name appeared on the card. A telephone call was made by a representative of the motel to the central office of Bankamericard and it advised that the card would not be honored, unless the person presenting it had proper identification.

The clerk advised the officers that the four persons had arrived at the motel in an Oldsmobile, and gave the officers the license number thereon. The officers learned from Montana authorities that the license plate had been issued for a Dodge automobile. The officers then went to the rooms assigned to such four persons and found they had left the motel and apparently had taken all of their belongings. The officers then left the motel and shortly thereafter located the Oldsmobile at 16th and Central Avenue in Cheyenne. Brown was seated on the right side, Cornelious in the middle, and Price behind the wheel.

Backus had called Bankamericard at Los Angeles and was informed the card was issued to a Muriel Horner. Hence, the officers suspected the credit card had been stolen. Backus went to the driver's side of the Oldsmobile and asked Price for identification and for his draft card. Simpson went to the opposite side of the automobile and asked Brown for identification and for his draft card. They gave no identification and stated they did not have draft cards.

Backus then informed all three of them that they were under arrest for vagrancy. The standard Miranda warning used by the Cheyenne Police Department is set out in Note 1 hereto.¹

Backus read the warning to Price and Cornelious and Simpson read it to Brown immediately after Backus informed them that they were under arrest. Brown and Price both stated that they understood the warning.

The officers transported Brown, Price and Cornelious to the Detective Bureau of the Cheyenne Police Department and placed them in separate rooms. In order to make out arrest sheets, the officers began to question Price and Brown, whereupon they asked for a lawyer and all questioning ceased.

After Brown, Price and Cornelious were arrested and taken into custody, a police officer found Dorton alone in the automobile and took him to the Police Station. He was placed under arrest for vagrancy and given the Miranda warning, set out in Note 1. After Dorton had answered some questions, he requested a lawyer, whereupon all questioning ceased.

Backus explained to the petitioners that the city could not appoint a lawyer for them. In his brief in the instant appeal, counsel for petitioners states: "However, upon their request for counsel, the Police terminated questioning and no inculpatory statements were obtained."

The motions of petitioners to withdraw their pleas of guilty and to enter pleas of not guilty came on for a hearing on July 9, 1968.

The court heard each petitioner's motion for leave to withdraw his plea of guilty separately.

The following additional facts were fully established at the hearing on the motions to withdraw the pleas of guilty.

On June 10, 1968, Brown, acting for himself, Price, and Dorton, called John Terrill, the United States Marshal for Wyoming, by telephone from the City Jail and told him that he and two other men were escapees from the Utah State Prison and that they wanted to see the United States Marshal about a stolen automobile. Terrill replied that it would not do much good for him to see them and that he would send an F.B.I. Agent to see Brown.

Terrill contacted Robert C. Gustafson, a Special Agent of the F.B.I., who was at the City Jail, and advised him of his conversation with Brown. Gustafson then contacted Brown and interviewed him at the Interview Room of the City Jail.

Gustafson first told Brown his name, told him he was a Special Agent of the F.B.I., showed him his credentials, and told him he was there to interview him with respect to a possible violation of...