Holland v. United States, 25928.

• Decision Date: 20 January 1969
• Docket Number: No. 25928.,25928.
• Citation: 406 F.2d 213
• Parties: Johnny Wilson HOLLAND, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

406 F.2d 213 (1969)

Johnny Wilson HOLLAND, Appellant, v. UNITED STATES of America, Appellee.

No. 25928.

United States Court of Appeals Fifth Circuit.

January 20, 1969.

Johnny Wilson Holland, pro se.

R. Macey Taylor, Asst. U. S. Atty., Macon L. Weaver, U. S. Atty., Birmingham, Ala., for appellee.

Before ALDRICH^*, GODBOLD and DYER, Circuit Judges.

PER CURIAM:

Holland appeals from the District Court's denial of his 2255 motion to vacate his sentence. The motion alleged that Holland was incompetent at the time that his pleas were entered and that his pleas were not voluntarily and understandingly made because of coercion by his counsel. An evidentiary hearing was held on the motion. Holland was not present. He also asserts this as error on appeal. We affirm.

From the papers in the cause and the hearing it appears that an indictment was returned against Holland on three counts in connection with the robbery of the Muscle Shoals Bank. Count One charged a violation of Title 18 U.S.C.A. Section 2113(e), a capital offense. Counts two and three charged violations of Sections 2113(d) and 2113(a). Prior to arraignment Holland was represented by counsel of his own choice who subsequently withdrew. At the arraignment Holland appeared with other counsel of his own choice, entered pleas of not guilty and filed a pro se motion alleging temporary insanity at the time of the offenses and continuing thereafter. On motion of the United States Attorney the Court appointed a psychiatrist who examined Holland. He was found to be competent and able to understand the proceedings against him and to cooperate in his defense. There was full compliance with 18 U.S.C.A. Section 4244.

Being dissatisfied with the court appointed psychiatrist's report, Holland and his sister arranged through Holland's counsel to have Holland examined by a privately retained psychiatrist. The findings of this examination were entirely consistent with the findings of the court appointed psychiatrist.

Holland's counsel in this case had been previously retained to represent him in connection with an indictment charging Holland with robbing a bank in Tennessee. He was also defending him in connection with pending state charges. Holland was knowledgeable about Rule 11 and Rule 20¹ and at Holland's suggestion his counsel conferred with the United States Attorney to request that the indictment pending against Holland in the Middle District of Tennessee charging bank robbery be transferred to the Northern District of Alabama for pleas of guilty so that the sentences to be imposed on that indictment could be made to run concurrently with the sentences to be imposed on the indictment in the Northern District of Alabama. Holland's counsel also discussed with him the fact that Holland had been apprehended inside of the bank that he was charged with robbing after having been wounded and about the possibility of geting the capital count dismissed if Holland entered pleas of guilty to the second and third counts of the indictment.

When the case was called for trial Holland withdrew his pleas of not guilty to Counts two and three of the indictment and entered pleas of guilty. Count 1 was dismissed on motion of the United States Attorney.

At the evidentiary hearing on the motion to vacate, Holland's counsel testified unequivocally that Holland was not subjected to any coercion. On the contrary, counsel said that he explained to Holland the elements of the offense in each count of the indictment and the maximum penalty that could be imposed. Holland appeared to his counsel to be rational and to understand completely the situation. Holland's brother and cousin corroborated all of this.

Holland and four witnesses submitted identical affidavits, which were accepted by the court as testimony, that Holland's counsel told him that if he did not plead guilty he would receive a sentence of at least fifty years, maybe life, or even the death penalty. This was flatly denied by Holland's counsel. Holland's brother and cousin refused to sign affidavits to this effect because the factual statements were not true.

From this rather detailed chronology it is apparent that there is not a shred of evidence to sustain Holland's assertion of mental incompetency at the time of the alleged offense or at the time of entering his pleas of guilty. In fact, in the evidentiary hearing in the criminal case and the second evidentiary hearing on the motion all of the evidence supported the trial court's finding of Holland's competency.

Holland's contention that his pleas of guilty were the result of his retained counsel's coercion is wholly without merit. Counsel's discussions with the United States Attorney, at the request of Holland, which culminated in the dismissal of the count charging a capital offense upon Holland's pleas to the second and third counts, the sentences on which were thereafter ordered to run concurrently with the sentences imposed for the Tennessee bank robbery charge, fall squarely within the framework of Martin v. United States, 5 Cir. 1958, 256 F.2d 345, in which Judge Tuttle said:

So far as we know no court has held that any such concession made by the prosecution necessitates a finding that the plea was involuntary. The crucial issue appears to be whether, with all the facts before him, including the advice of competent counsel, the plea was truly involuntary. The Supreme Court lays down no other test. The fact findings of the trial court as to the voluntariness should be reviewed on this issue on the clearly erroneous test.

Id...