Foster v. United States

• Citation: 359 F.2d 497
• Decision Date: 03 May 1966
• Docket Number: No. 18225.,18225.
• Parties: Arthur T. FOSTER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

359 F.2d 497 (1966)

Arthur T. FOSTER, Appellant, v. UNITED STATES of America, Appellee.

No. 18225.

United States Court of Appeals Eighth Circuit.

May 3, 1966.

Arthur T. Foster, pro se.

Miles W. Lord, U. S. Atty., Minneapolis, Minn., and Patrick J. Foley, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before VOGEL, Chief Judge, BLACKMUN, Circuit Judge, and STEPHENSON, District Judge.

VOGEL, Chief Judge.

Arthur T. Foster, appellant, brings this appeal in forma pauperis from the denial of his application for a writ of habeas corpus. The writ was sought on the grounds that appellant's court-appointed attorney, who represented appellant in matters pertaining to his current incarceration, was ineffective, inadequate and unprepared. A contrary determination by the District Court was rendered after a full evidentiary hearing held on September 7, 1965. At such hearing appellant was ably represented by Mr. Robert E. Lucas, who was appointed by the District Court for that specific purpose. Mr. Lucas is not the attorney challenged by the appellant in his application herein. Appellant brings this appeal pro se. We affirm.

In proceedings leading up to his instant incarceration, Foster was originally charged in an indictment containing two counts. Count No. 1 charged a violation of 18 U.S.C.A. § 2115 in that Foster did forcibly break into a building used in part as a United States Post Office at Chanhassen, Minnesota, with intent to commit larceny therein. Count No. 2 charged a violation of 18 U.S.C.A. § 1707, through the theft of $119.80 in money used by the United States Post Office Department. Both offenses were allegedly committed on July 13, 1961.

Appellant was initially arrested in Minneapolis, Minnesota, in August of 1961 by Minnesota State authorities on a charge of possession of narcotics. On August 17, 1961, appellant appeared in traffic court on an outstanding traffic violation and was sentenced to serve ten days. On August 21, 1961, appellant was arraigned in Hennepin County District Court on the narcotics charge, at which time he was represented by the local Public Defender's office.

After his arraignment in state court, appellant was interviewed once or twice by Sheriff Lester W. Melchert of Carver County, Minnesota. As a result of such interview(s), appellant admitted, in a signed statement dated August 22, 1961, his responsibility for several burglaries in Carver County, including the burglary of the Roundup Superette Grocery in Chanhassen, Minnesota, on July 13, 1961. The said grocery store contained the Chanhassen Post Office. Subsequently, on his plea of guilty to the state narcotics charge, appellant was sentenced to serve a term of five years in the Minnesota State Penitentiary at Stillwater. Appellant was still represented by the Minnesota Public Defender's office when he pleaded guilty to the narcotics charge. Sentence thereunder was imposed on December 7, 1961.

While in the Minnesota Penitentiary at Stillwater, appellant again confessed, this time to Postal Inspector Jack Wyatt, as to his part in the burglary at the Roundup Superette Grocery and Post Office. As already noted, appellant was then indicted for his part in this post office burglary. The attorney appointed by the court as a result of this indictment is the one in controversy herein. Appellant's current conviction and incarceration at the Federal Correctional Institution at Sandstone, Minnesota, came about through his having pleaded guilty to the theft charged in Count 2 of the indictment. Count 1 of the indictment was dismissed on motion of the United States at the time appellant received a three-year sentence on his plea of guilty to Count 2.

Appellant's principal allegation herein is that his court-appointed counsel at the time of his plea of guilty to Count 2 knew that the only evidence the government had to establish his guilt consisted of the two confessions mentioned above. Appellant contends that his attorney should have moved to suppress the confessions since he was induced to make them in reliance on promises that he would not be prosecuted for certain of the crimes involved or, if prosecuted, that he would be given concurrent rather than consecutive sentences. Without the admission of two confessions, it appears that the government might have had little or no evidence upon which to convict the appellant of either count of the indictment against him. Appellant claims that he asked his court-appointed attorney to move for the suppression of the confessions but that he, the attorney, would not do so. He allegedly agreed to plead guilty only when he realized the confessions were not to be challenged.

Appellant was represented by the court-appointed attorney involved herein while under indictment and when entering his final plea of guilty to Count 2. Appellant met with his court-appointed counsel three times. The first occasion was August 23, 1962, in the Federal Courts Building in Minneapolis. This interview was followed by an arraignment and appellant's entry of a plea of not guilty. The second interview took place at the Minnesota State Penitentiary at Stillwater, Minnesota, on approximately September 24, 1962, when appellant's court-appointed counsel made the trip from Minneapolis to Stillwater for the purpose of seeing appellant and preparing for trial. During that interview, estimated to have lasted anywhere from half an hour to an hour and a half, appellant advised his court-appointed attorney that he desired to change his plea to guilty. The third occasion for an interview between the two men was on September 27, 1962, in the detention room in the Federal Courts Building in Minneapolis. This interview lasted from 20 to 30 minutes. At first appellant desired to maintain his original not guilty plea. During this time appellant and his court-appointed counsel discussed "* * * whether or not he would be running any great risk in pleading guilty to one count of the indictment and asking for a dismissal of the second." Finally, it was agreed that a plea of guilty would be entered. Upon appearing before the court, counsel for the United States stated:

"At this time counsel informs me that they wish to withdraw their plea of not guilty to Count II of the Indictment and enter a plea of guilty to that Count, which is the theft of Postal property. At the time of sentencing, the United States would dismiss Count I charging the breaking into and entering a Post Office.

"The Court: Well, you may proceed, Mr. Lamson the clerk of court.

"The Clerk: A plea of not guilty having been previously entered, do I understand you desire to change your plea now to guilty to Count II, is that correct?

"The Defendant: Yes, sir.

* * * * * *

"The Court: I take it, Foster, that after a conference with

...