Ellis v. United States, 13781.

• Decision Date: 25 February 1963
• Docket Number: No. 13781.,13781.
• Citation: 313 F.2d 848
• Parties: George ELLIS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

313 F.2d 848 (1963)

George ELLIS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 13781.

United States Court of Appeals Seventh Circuit.

February 25, 1963.

Don H. Reuben, Frederick W. Temple, Chicago, Ill., John E. Angle, Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., of counsel, for appellant.

James P. O'Brien, U. S. Atty., John Powers Crowley, John Peter Lulinski, Raymond F. Zvetina, Asst. U. S. Attys., of counsel, Chicago, Ill., for appellee.

Before SCHNACKENBERG, KNOCH and KILEY, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

George Ellis, petitioner, filed a petition in the district court on November 13, 1961 stamped "Filed Jan. 22, 1962" by the clerk of the court, pursuant to 28 U.S.C.A. § 2255, seeking the vacation of his sentence on a plea of guilty for violating § 4705(a) of the Internal Revenue Code of 1954, as amended by the Narcotics Control Act of 1956, as well as violating § 174, Title 21 United States Code, as amended by said act of 1956.

The petition was prepared by petitioner without legal assistance. It indicates that he is possessed of a meager knowledge of the law and is of limited education. The questions it raises as to his plea of guilty are stated in the following language:

"Petitioner was advised that if a plea of guilty was entered, whatever the order of sequence was, would start when given.

"Petitioner was promised a short term and that the Federal sentence would run concurrently with the State term.

"Petitioner was defrauded into a plea of guilty.

* * * * * *

"* * * his sic was sentenced and entered his plea of guilty without the representation of competent counsel.

* * * * * * *

Petitioner was not represented by Counsel of record but by a substitute from the same office. * * *"

At the time of his sentence petitioner was in the custody of the State of Illinois, where he was awaiting trial on a charge of possession of narcotics.

Upon the occasion of the entry of his plea of guilty, his attorney withdrew a plea of not guilty theretofore entered, and the following proceedings occurred:

"The Court: All right. Have you explained to him he has a right to plead not guilt and have a jury or court pass upon your guilt or innocence — ? Understanding that you persist in your plea of guilty, is that right?

"(No audible response.)

"Mr. Strouse government counsel: I would like to advise the Court this is a 2 count indictment. Count 1 charges sale of approximately 1,020 grains of heroin, in violation of Section 4705(a) of the Internal Revenue Code of 1954.

"Count 2 alleges possession of the same amount of heroin unlawfully imported into the United States, in violation of Section 174, Title 21, United States Code.

"The penalty provided in each count in the indictment is not less than 5 nor more than 20 years and a fine not in excess of $20,000.

"The Court: How many counts?

"Mr. Strouse: Two counts, your Honor.

"The Court: Do you have any comment?

"Mr. Lee attorney for defendant: No. He has been so advised and he said that he would prefer to plead guilty before this Court.

* * * * * *

"The Court: Well, I will have to give you 5 years on each count, to run consecutively.

"Mr. Lee: Consecutively? Will the Court reconsider that and have them run concurrently?

"The Court: I beg your pardon?

"Mr. Lee: Will the Court reconsider that and have them run concurrently? He is probably going to get a sentence over there at state court.

"The Court: Is that trial set?

"Mr. Lee: Well, that trial was set for sometime this month. I don\'t know whether it is the 19th or the 29th, if they can get to trial out there.

"The Court: Well, he is still here. If after that case is disposed of and they have that sentence concurrently —

"Mr. Strouse: He is in state custody now, your Honor.

"The Court: I understand.

"Mr. Lee: Well, may I then at this time make a motion to reduce the sentence, and will this Court continue that motion so that we can see what the state sentence will be?

"The Court: Well, I can\'t —

"Mr. Lee: Then I may come in and move to have it run concurrently with that. I don\'t know whether we can do it the other way.

"The Court: Well, it can be done. No, I think I will let that sentence stand because he will still be here and he will be in time to make your motion, and if he gets another sentence over there, a sentence that would be attached to this sentence, then I will hear you on your motion."

The record does not show that the district court was ever advised of the result of the state court proceeding or was ever requested to review the sentence imposed.

On December 28, 1961, and again on January 31, 1962, petitioner wrote to the chief judge of the district court asking for information concerning the disposition of his § 2255 petition aforesaid.

The government on February 23, 1962 answered the petition to vacate.

On May 14, 1962, Judge Richard B. Austin, entered an order denying relief sought by said petition filed under § 2255.

On May 29, 1962, the clerk of the court marked "filed" a motion by petitioner for appointment of counsel, subscribed and sworn to by him before a parole officer at Leavenworth penitentiary, where he was incarcerated, on November 21, 1961. Said motion for appointment of counsel was denied by Judge Austin by order entered May 29, 1962.

On May 31, 1962 Judge Austin gave leave to petitioner to prosecute his appeal as a poor person.

1. Rule 11 of the Rules of Criminal Procedure, 18 U.S.C.A., provides:

"* * * The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. * * *"

We have carefully considered the proceedings accompanying the entry of the plea of guilty by defendant and we are convinced that the court accepted the plea without first determining that it was made...