Harpin v. Johnston, 9328.
| Decision Date | 06 February 1940 |
| Docket Number | No. 9328.,9328. |
| Citation | 109 F.2d 434 |
| Parties | HARPIN v. JOHNSTON, Warden. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Harold Harpin, in pro. per.
Frank J. Hennessy, U. S. Atty., and A. J. Zirpoli, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.
Before WILBUR, GARRECHT, and HANEY, Circuit Judges.
Appellant, confined to the federal penitentiary at Alcatraz Island, seeks to review an order denying his petition for a writ of habeas corpus.
On December 19, 1935, appellant and one Hanley were indicted in two counts for kidnapping and transporting two persons in interstate commerce. By another indictment returned on the same day, appellant and Hanley were indicted for transporting a stolen automobile in interstate commerce. On January 10, 1936, appellant pleaded not guilty to the indictments, but withdrew such plea on January 23, 1936, and entered a plea of guilty. He was sentenced on that day to a term of 25 years on each of the kidnapping charges, and to a term of 5 years on the other charge, all sentences to run concurrently.
On April 28, 1939, appellant filed in the court below his petition for a writ of habeas corpus, alleging that he was being deprived of his liberty contrary to the Sixth Amendment of the Constitution, U.S.C.A., in that he had not had the assistance of counsel in the proceedings under the indictment, and did not intelligently or competently waive his right thereto. The court below thereupon issued an order directing appellee to appear at a time fixed, and show cause why the writ should not issue. Counsel was appointed for appellant at his request.
Appellee filed a return alleging that appellant was detained pursuant to the judgments, sentences and commitments in the criminal cases above mentioned, and attached to the return were copies of the indictments, minute entries showing pleas, judgments and sentences, warrants of commitments and certain affidavits. The records of the cases do not disclose affirmatively that appellant was advised of his right to counsel, or that he knew of such right.
The trial judge before whom the pleas were made, certified that prior and subsequent to and on January 10, 1936, it was the practice in his court upon arraignment of a defendant in a criminal case "for the Judge himself or, under his direction, for the United States Attorney or his Assistant to make inquiry of the defendant before receiving his plea if he had engaged counsel, and if his answer was in the negative to further inquire if the defendant wanted counsel appointed for him, and if he answered in the affirmative to appoint a member of the bar of this Court to act as counsel for the defendant in the event that defendant further answered that he was not financially able to employ counsel"; that prior to about January 1, 1937, it was not the practice in his court for the Clerk to record whether or not the defendant had been asked if he wished counsel assigned; and that on January 17, 1936, he had received the following letter from appellant:
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Walker v. Johnston
...v. Holohan, 294 U.S. 103, 111, 55 S.Ct. 340, 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; ......
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Evans v. Rives, 8134.
...Cir., 1941, 120 F.2d 471; Creel v. Hudspeth, 10 Cir., 1940, 110 F.2d 762; Kelly v. Aderhold, 10 Cir., 1940, 112 F.2d 118; Harpin v. Johnston, 9 Cir., 1940, 109 F.2d 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......
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Franzeen v. Johnston, 9359.
...mere bald assertion (Ex parte Deatherage et al., 9 Cir., 98 F.2d 793) by a confessed criminal, without corroboration (Harpin v. Johnston, Warden, 9 Cir., 109 F.2d 434, certiorari denied, 60 S.Ct. 898, 84 L.Ed. ___, April 29, 1940), that he had been denied counsel is overcome when the allega......
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Jackson v. Sanford
...of the evidence when contradicted by all the other facts and circumstances. Ex parte Deatherage, 9 Cir., 98 F.2d 793; Harpin v. Johnston, 9 Cir., 109 F.2d 434; Franzeen v. Johnston, 9 Cir., 111 F.2d 817; Lewis v. Johnston, 9 Cir., 112 F.2d I find from the evidence that petitioner was afford......