Ellerbrake v. King, 11770.

• Decision Date: 13 January 1941
• Docket Number: No. 11770.,11770.
• Citation: 116 F.2d 168
• Parties: ELLERBRAKE v. KING.
• Court: U.S. Court of Appeals — Eighth Circuit

116 F.2d 168 (1941)

ELLERBRAKE v. KING.

No. 11770.

Circuit Court of Appeals, Eighth Circuit.

December 12, 1940.

Rehearing Denied January 13, 1941.

Armin Ellerbrake, pro se.

Richard K. Phelps, Acting U. S. Atty., and Otto Schmid, Asst. U. S. Atty., both of Kansas City, Mo., for appellee.

Before SANBORN and THOMAS, Circuit Judges, and DEWEY, District Judge.

DEWEY, District Judge.

This is an appeal from a dismissal of an application for a writ of habeas corpus.

The record shows that the applicant plead guilty in the District Court of the United States for the Southern District of Illinois to three indictments charging him with offenses connected with interstate freight thefts and he was sentenced to five-year consecutive terms on each indictment. While in the penitentiary at Atlanta, Georgia, he was found to be insane and removed to the United States Hospital for Defective Delinquents in Missouri.

The application for the writ was presented to the United States District Court for the Western District of Missouri. The court appointed Hon. William L. Vandeventer as attorney for the petitioner, and on April 9, 1940, an ex parte hearing was had before Judge Reeves — the attorney appointed for petitioner being present. Respondent's motion to deny the issuance of the writ was considered, pleadings and records were examined and it was found that there was no merit in the alleged grounds for relief stated in the petition. The issuance of the writ of habeas corpus was therefore denied and the petition was dismissed. It should be said also that the judge took medical testimony offered by the Government as to petitioner's mental condition.

The procedure of the trial court in this respect was proper and in accordance with the rule recently restated by this court in Banks v. O'Grady, 113 F.2d 926, as follows: "It is the right and duty of a federal court to make a preliminary examination to determine whether a petition for a writ of habeas corpus discloses upon its face sufficient basis for the issuance of the writ, and to dismiss the petition if it does not." Citing the following cases: Mothershead v. King, Warden, 8 Cir., 112 F.2d 1004, decided June 29, 1940; Thompson v. King, Warden, 8 Cir., 107 F.2d 307, 308; Harrison v. King, Warden, 8 Cir., 111 F.2d 420; McKee v. Johnston, Warden, 9 Cir., 109 F. 2d 273; Murdock v. Pollock, 8 Cir., 229 F. 392.

The application for the writ of habeas corpus alleges the following irregularities, to wit: (1) That it was illegal to defer petitioner's sentence for a period of eight months; (2) that the trial court dated petitioner's judgment and commitment wrongly; (3) that the trial court had no right to sentence petitioner to three five-year consecutive sentences; and (4) that since the trial court failed to sentence petitioner within three terms of court, it was without jurisdiction to pass judgment and sentence upon him.

With reference to the failure to sentence promptly after a plea of guilty, he recites that "* * * being called to plead in answer to the indictment, entered a plea of guilty on June 15, 1933, before the Honorable Charles G. Briggle, in the United States District Court, Southern District of Illinois. Over the protest of petitioner, and upon motion of counsel for the Government, the court deferred sentence indefinitely. The petitioner was thereupon returned to jail without having been sentenced, but with his plea having been formally entered and accepted. The petitioner then remained in jail until February 16, 1934, a period of eight months, 1 day, at which time he was taken before the Honorable Earl Major, and sentenced. * * * During his deferred period the petitioner wrote numerous letters demanding his sentence, without results. Your petitioner therefore alleges that the Honorable Earl Major was without jurisdiction to sentence him. And for such lack of jurisdiction, the respondent is without authority to restrain petitioner; the sentence being void because the court had no jurisdiction to sentence the petitioner because of the lapse of time between entry of plea and date of sentence."

It is hornbook law that a petition for a writ of habeas corpus cannot be considered as a writ of error or appeal or as a means of reviewing errors of law and irregularities — not invoking the question of jurisdiction — occurring during the course of the trial. Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461. And where the jurisdiction has attached, the action of the court is conclusive as to the rights of the parties when collaterally questioned....