Franzeen v. Johnston, 9359.
| Decision Date | 09 May 1940 |
| Docket Number | No. 9359.,9359. |
| Citation | 111 F.2d 817 |
| Parties | FRANZEEN v. JOHNSTON, Warden. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Richard C. Franzeen, in pro. per.
Frank J. Hennessy, U. S. Atty., and R. B. McMillan and A. J. Zirpoli, Asst. U. S. Attys., all of San Francisco, Cal., for appellee.
Before GARRECHT, HANEY, and HEALY, Circuit Judges.
Richard C. Franzeen appeals from an order of the District Court denying his petition for a writ of habeas corpus. February 18, 1936, he and one Elliott W. Michener were sentenced and judgment entered under an indictment returned in the Northern District of California, drawn in five counts, which charged him and his co-defendant with violation of Section 264 of 18 U.S.C.A. He had pleaded guilty and received a sentence of five years on each count, terms of imprisonment to run concurrently; he also was fined the sum of $1 on each count. He was imprisoned at McNeil Island, Washington, March 14, 1936. September 19, 1935, Franzeen and Michener were indicted in two counts in an indictment returned in the District of Minnesota, for a crime of a similar nature, but they were not tried until May 12, 1936; each entered a plea of guilty to the indictment; sentences were imposed and judgments entered. Franzeen was sentenced to a term of 15 years on the first count and 10 years on the second, the terms of imprisonment to run consecutively, the term of the first count to begin immediately upon expiration of the sentence imposed by the District Court for the Northern District of California. The Minnesota court also levied a fine of $1,000 on each of the two counts of the indictment. Franzeen's place of imprisonment was then designated as Leavenworth Penitentiary, Kansas. On March 5, 1937, he was ordered transferred to the United States Penitentiary, Alcatraz Island, California. We believe it safely can be said that the appellant was not defended by counsel at the trial of either indictment.
Franzeen filed a petition for writ of habeas corpus in the court below, seeking release from custody upon the ground that "he was deprived of the assistance of counsel for his defense" in both courts. The court below issued an order to show cause, directed to the warden of the penitentiary, and set a return day. On the same day a member of the bar of the District Court was appointed attorney for the petitioner. The return to the order to show cause recited that the petitioner was detained by virtue of the two judgments, and the transfer order, heretofore mentioned. There were also filed, as a part of the return, an affidavit of an Assistant United States Attorney for the Northern District of California, and an affidavit of an Assistant United States Attorney for the District of Minnesota, each of whom was present in court at the time of the respective arraignments. Neither affidavit stated positively that the appellant had been asked, in so many words, whether he desired the assistance of counsel for his defense, or that he had been advised by the trial court that the court would appoint such counsel for him, though he be without funds with which to pay counsel. The affidavit of the Assistant United States Attorney for the District of Minnesota, however, recited that the indictment was read in full to the defendants and that they were asked whether they understood the nature of the charges contained therein, to which each answered that he did; that they were asked whether they pleaded guilty or not guilty, and each pleaded guilty; that neither defendant at any time made request for the assistance of counsel. The affidavit of the Assistant United States Attorney for the Northern District of California averred that he had no independent recollection of the case; that his records indicated that defendant was arraigned and pleaded guilty as charged in the indictment; that to the best of his recollection it was the practice of the trial judge and of his court clerk "to apprise without exception all defendants appearing without counsel of their right to assistance of counsel should they be without funds with which to secure the services of counsel." He further averred that he had no recollection of this practice not being followed on the date when Franzeen was arraigned. After hearing on the return to the order to show cause, the court below entered an order denying and dismissing the petition for the writ of habeas corpus. The petitioner appeals from that order; upon an affidavit of poverty, the court below permitted him to prosecute his appeal in forma pauperis.
Two questions are before us on this appeal: (1) Whether the lower court erred in denying and dismissing the petition for the writ of habeas corpus upon the order to show cause without bringing the petitioner before it; and (2) whether the petitioner was deprived of his right to assistance of counsel for his defense.
The appellant's first contention is answered in a decision of this court written by Judge Haney in Walker v. Johnston, Warden, etc., 9 Cir., 109 F.2d 436. The practice prevailing in the court below of issuing an order to show cause and requiring a return by the detaining officer was upheld in Walker's case, supra, which arose in the same District Court as the present case. Nivens v. Hudspeth, Warden, 10 Cir., 105 F.2d 756, 759. The following language is taken from Christianson v. Zerbst, Warden, 10 Cir., 89 F.2d 40, 43: ...
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Walker v. Johnston
...341, 79 L.Ed. 791, 98 A.L.R. 406. 10 Murdock v. Pollock, 8 Cir., 229 F. 392. 11 Harpin v. Johnston, 9 Cir., 109 F.2d 434; Franzeen v. Johnston, 9 Cir., 111 F.2d 817; Walker v. Chitty, 9 Cir., 112 F.2d 79; Zahn v. Hudspeth, 10 Cir., 102 F.2d 759; Nivens v. Hudspeth, 10 Cir., 105 F.2d 756; Mc......
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Evans v. Rives, 8134.
...434, certiorari denied 1940, 310 U.S. 624, 60 S. Ct. 898, 84 L.Ed. 1395; Walker v. Chitty, 9 Cir., 1940, 112 F.2d 79; Franzeen v. Johnston, 9 Cir., 1940, 111 F.2d 817; Jorgensen v. Swope, 9 Cir., 1940, 114 F. 2d 988; Macomber v. Hudspeth, 10 Cir., 1940, 115 F.2d 114, certiorari denied 1941,......
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Smith v. State of Idaho
...to the show cause order in habeas corpus proceedings. See Lewis v. Johnston, 112 F.2d 451, 453 (9th Cir. 1940); Franzeen v. Johnston, 111 F.2d 817, 819-820 (9th Cir. 1940); Walker v. Johnston, 109 F.2d 436, 438 (9th Cir. 1940).2 The reason for allowing such hearsay evidence is sound — that ......
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