Doyle v. United States

• Decision Date: 10 October 1966
• Docket Number: No. 20401.,20401.
• Citation: 366 F.2d 394
• Parties: John Bernard DOYLE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

366 F.2d 394 (1966)

John Bernard DOYLE, Appellant, v. UNITED STATES of America, Appellee.

No. 20401.

United States Court of Appeals Ninth Circuit.

August 29, 1966.

Rehearing Denied October 10, 1966.

Fred L. Stewart, Smith, Scott & Morthland, Yakima, Wash., for appellant.

Smithmoore Myers, U. S. Atty., C. D. Fransen, Asst. U. S. Atty., Spokane, Wash., for appellee.

Before CHAMBERS, POPE and HAMLEY, Circuit Judges.

POPE, Circuit Judge.

On this appeal we are reviewing an order denying a petition filed by the appellant Doyle pursuant to Sec. 2255 of Title 28 U.S.C., for an order vacating sentence. Doyle, an Indian, had been indicted pursuant to Secs. 1111(a), 1152 and 1153 Title 18 U.S.C., on a charge of murder committed within the Yakima Indian Reservation in the State of Washington. On October 3, 1959, a verdict was returned by the jury finding Doyle guilty of murder in the second degree and on October 5, 1959, he was sentenced to life imprisonment. On the same day a motion for new trial was filed on his behalf which was denied by the court on October 8, 1959. He therefore had until October 18, 1959, in which to file notice of appeal. No such notice was filed by him or on his behalf. His petition to vacate the sentence pursuant to Sec. 2255 was filed on June 24, 1960, and on the basis of affidavits filed by him he was permitted to prosecute the same in forma pauperis. The district judge who had imposed sentence heard and denied the petition. Upon appeal from the order of denial this court reversed and remanded the matter to the district court for an evidentiary hearing upon the allegations contained in the application for vacating the sentence on the ground that Doyle was entitled to a hearing and a determination of the issues presented on the basis of findings of fact and conclusions of law. Doyle v. United States, 9 Cir., 336 F.2d 640. Thereupon a further hearing of the application was had, evidence was received and findings of fact and conclusions of law made and entered, and an order made denying Doyle's motion to vacate sentence. This is an appeal from that second order denying Doyle's application.

The background of Doyle's prosecution, conviction and sentence was substantially as follows: prior to June 9, 1959, he had been adjudged mentally incompetent and was confined in the Northern State Hospital at Sedro Wooley, Washington. On or about that day he escaped from that hospital. On June 23, 1959, a complaint was filed by an agent of the Federal Bureau of Investigation charging him with first degree murder of Vivian A. Meagher on June 22, 1959. A warrant was issued and he was arrested on that day. On June 24, 1959, he was brought before the U.S. Commissioner at Yakima, Washington, and informed of his constitutional rights, including his right to counsel. He advised the Commissioner that he had no attorney; that he was a ward of Northern State Hospital which might get him an attorney. He waived the assistance of counsel at the preliminary hearing and he was bound over to the district court. A report of the proceedings of the Commissioner contained the notation: "Parents might obtain attorney." The United States Attorney then moved for a judicial determination of the mental competency of Doyle to stand trial and a Judge of the court was advised of this by mail. The Judge, on June 25, telephoned the Commissioner and the deputy clerk of the court at Yakima and inquired as to the status of the proceedings and whether petitioner had counsel. The Commissioner informed the Judge that a preliminary hearing had been held; that petitioner had no counsel but that he understood the parents of the defendant might secure an attorney for him. On that date the Judge telephoned J. P. Tonkoff, a member of the Yakima bar, advising him that he was appointed as counsel for Doyle; that Doyle would need representation at the hearing on the motion of the United States Attorney which was set for June 29, 1959. As it afterwards appeared, Doyle was not an indigent or without funds. He had the sum of $2788.74 credited to his account in the Portland area office of the Bureau of Indian Affairs. It thus appears that initially Doyle had no opportunity to participate in the selection of an attorney.

The first specification of error presented on this appeal is to the effect that the district court erred in denying the motion to vacate the sentence on the ground that Doyle was denied counsel of his own choosing. While there was obviously some mistake in the manner in which the Judge named counsel to represent Doyle without any apparent inquiry as to the latter's financial condition, or as to his desires or the desires of his parents with respect to a choice of counsel, yet we think that this alleged error is not available to appellant on the appeal before us because the court below has found that on June 29, 1959, when Doyle appeared before the court and Mr. Tonkoff was present and acting as his counsel, the court inquired of Doyle whether he had a chance to talk with Mr. Tonkoff, the inquiry was answered in the affirmative and the court then inquired "Do you accept him as your counsel?" to which the defendant replied, "Yes." The court below also found that at that appearance inquiry was made by the Judge as to whether Tonkoff had talked with Doyle's parents. The reply was that the parents, who were present in the courtroom, were agreeable to have Tonkoff represent their son. The court then appointed two qualified psychiatrists to examine Doyle. On the basis of their reports the court, after examining Doyle, made findings and entered an order to the effect that Doyle was mentally competent to understand the proceedings against him and to assist in his defense.

An indictment was returned by the grand jury charging Doyle with murder, as previously noted, and upon arraignment upon that indictment, the following took place: "The Court: Mr. Doyle, this matter is coming before the Court today on your arraignment. You have your attorney present with you, do you? The Defendant: Yes. The Court: And who is your attorney? A. Mr. Tonkoff. The Court: And you have accepted him as your attorney in the defense of this action, is that correct? A. Yes."

The second and third specifications of error presented here are as follows: "2. The district court erred in denying appellant's motion to vacate sentence on the ground that appellant's appeal of the judgment and sentence was blocked.

"3. The district court erred in denying appellant's motion to vacate sentence on the ground that appellant did not intentionally relinquish his known right to appeal by a considered choice on his part."

In respect to these two contentions the appellant is not confronted with findings of fact which would, in our view, constitute an obstacle to his contentions here. The court below made three findings with respect to an appeal from the judgment of conviction. Those findings were as follows:

"32. No notice of appeal was ever filed. Tonkoff advised petitioner and members of his family against an appeal.

"33. Neither the court nor Tonkoff was advised by petitioner or members of his family, within the statutory period for perfecting an appeal, that petitioner desired to take an appeal.

"34. While petitioner did not request Mr. Tonkoff to take an appeal within the statutory period and Tonkoff did not agree to do so, it is uncertain whether petitioner intentionally relinquished his `known right to appeal by a considered choice on his part.'"

While we find it unnecessary to determine whether Tonkoff's actions, or failure to act, in connection with an appeal would constitute a showing of a denial of adequate representation by counsel, we do think that the record here is replete with evidence that Doyle's right to appeal was frustrated; that he had substantial reasons for an appeal; and that he did not intentionally relinquish his right to appeal by a considered choice on his part.

As the district court found, Tonkoff did advise Doyle and the members of his family against an appeal. Although, as we shall note hereafter, this was bad advice, that alone would not constitute a basis for vacating a sentence or for relief under Sec. 2255. The evidence does show that substantial representations were made by Tonkoff with respect to the possibility of an appeal. We have previously noted that Doyle had to his credit on the books of the Tribe and in the hands of the Indian Bureau, the sum of $2788.77. This was not known at the time Tonkoff was first appointed by the court; the court evidently assumed he was an indigent defendant unable to secure his own representation; Tonkoff learned of this fund after his appointment. He requested that the sum be assigned to him "for expenses and for payment of such time as the funds would cover." On August 10, 1959, the court, on application of Tonkoff, made an order that the agent in charge of the Yakima Indian Agency having control of these funds "is hereby authorized to release and deliver to the defendant's attorney J. P. Tonkoff * * * the sum of $3000 or any part of said sum which is now in possession of the Yakima Indian Agency and which funds belong to the above named defendant." On September 3, 1959, the Superintendent of the Portland Indian office approved the payment to Tonkoff and check for the full $2788.77 was issued September 10, 1959. After the judgment of conviction, Tonkoff moved the court for payment of expert witness' fees for the defendant and such payment was ordered in the sum of $550. As the $550 came from Government sources, the court below correctly found that the bulk of the payment of $2788.74 represented attorney's fees. At any rate, it is plain that from September 10, 1959 on, Tonkoff had the $2788.74, or the bulk thereof, and Doyle had nothing. Under those circumstances Doyle was an indigent and in the position of a pauper.

The file contains an affidavit by Tonkoff stating that "This affiant did advise the...