Green v. Wingo
Decision Date | 27 January 1972 |
Docket Number | No. 71-1453.,71-1453. |
Parties | Roger Lee GREEN, Petitioner-Appellant, v. John W. WINGO, Warden, Kentucky State Penitentiary, Respondent-Appellee. |
Court | U.S. Court of Appeals — Sixth Circuit |
Roger Lee Green, in pro. per.
John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Commonwealth of Kentucky, Frankfort, Ky., for appellee.
Before CELEBREZZE, Circuit Judge, O'SULLIVAN, Senior Circuit Judge, and ROTH, District Judge.*
Roger Lee Green appeals from denial, without an evidentiary hearing, of his petition for writ of habeas corpus. It was presented to the United States District Court for the Western District of Kentucky, Louisville Division.
On March 6, 1969, in the Circuit Court of Jefferson County, Kentucky, appellant entered a plea of guilty to two counts of an indictment ; each charged him with armed robbery. He was sentenced to ten years imprisonment on each count, to be served consecutively. He was represented by privately retained counsel at the time of entering his plea. No appeal was taken from the judgment entered on his plea. He thereafter, and without success, employed various post-conviction procedures in the Kentucky Courts.
Appellant's petition presented a melange of charges of deprivation of constitutional rights. They may be summarized, in part, as follows:
Except for conclusional averments, his petition supplied no factual material upon which to test the validity of his conclusions. Such a pleading does not call for an evidentiary hearing. Reams v. Davis, 333 F.2d 430, 431 (6th Cir.1964) ; O'Malley v. United States, 285 F.2d 733, 734 (6th Cir.1961).
Notwithstanding the foregoing, we are constrained by our understanding of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), to remand this case to the District Court for an evidentiary hearing to determine whether the state court judge conducted any examination to determine whether the petitioner's plea of guilty was voluntary. We do this notwithstanding that the petition for writ of habeas corpus filed in the District Court did not in any understandable terms aver that the state court judge had failed to conduct such examination. In addition to the seven points we have set out above, he charges that he had suffered almost every manner of wrong that in recent judicial history has been found, in varying contexts, to be deprivation of constitutional right. His brief and reply brief in this Court also do not set out with specificity a claim that the state trial judge failed to examine him prior to accepting his plea of guilty.
The vice that brought about the reversal of Boykin's conviction was that the record on appeal was silent as to whether Boykin himself had been examined by the state judge as to the voluntariness of his plea. The majority opinion stated:
"So far as the record shows, the judge asked no questions of petitioner Boykin concerning his plea, and petitioner did not address the court." 395 U. S. at 239, 89 S.Ct. at 1710.
The absence of such questioning was not charged as a ground for relief until it was raised upon the argument in the Supreme Court. The majority said:
The foregoing is a proposition of law and not an allegation of fact. The appellant has been without counsel in the District Court as well as here and we think we should read the above as an allegation "that there is no record of the trial judge's interrogation," etc. The appellee does not challenge its truth and...
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...statements without substantiating allegations of specific facts and fails to state a claim cognizable under § 2255. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961); Brain, 2011 WL 1343344, at * 2; Jones, 2010 WL 1882122, at * 2.I......
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Roberge v. United States
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