Howard v. United States, 11181.

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: PER CURIAM
• Citation: Howard v. United States, 186 F.2d 778 (6th Cir. 1951)
• Decision Date: 09 February 1951
• Docket Number: No. 11181.,11181.
• Parties: HOWARD v. UNITED STATES.

186 F.2d 778 (1951)

HOWARD v. UNITED STATES.

No. 11181.

United States Court of Appeals Sixth Circuit.

February 9, 1951.

James Howard, in pro per.

John J. Kane, Cleveland, Ohio, Don C. Miller, U.S. Atty., Cleveland, Ohio, on brief, for appellee.

Before MARTIN, McALLISTER and MILLER, Circuit Judges.

PER CURIAM.

The appellant, James Howard, having waived prosecution by indictment, was proceeded against in the district court by information filed by the District Attorney on August 6, 1948, for violation of 26 U.S.C.A. § 2726(a) for illegal possession of a German machine gun. He was arraigned on the same day, and an attorney, appearing for him, entered a plea of guilty. The District Judge imposed a sentence of four years.

On March 9, 1950, he filed a motion to vacate the judgment. On May 10, 1950, the District Judge entered what the record terms an "Endorsed ruling" reading "May 10, 1950 — The motion, the files and the records conclusively show that the prisoner is entitled to no relief — Motion overruled." On May 15, 1950, the following order was entered: "Upon consideration, it is ordered that the defendant's motion to vacate the sentence and judgment imposed herein is hereby overruled." This appeal followed.

In brief, the motion states that the City Police of Cleveland, Ohio, entered the house where the appellant was staying without a search warrant, proceeded to search the house and found the machine gun; that he was taken to police headquarters and questioned night and day for more than a week, during which time he was not allowed to see any one; that he was illegally detained and was not taken before a "Committing Magistrate"; that after signing a waiver of trial by jury he was held in jail for three months awaiting trial; that he was threatened every day by the police of the consequences that would result if he did not admit to the ownership of the machine gun and was told if he would plead guilty he would receive a sentence of a year and a day, which would permit him to go free within four months; that after long periods of sleepless nights and questioning, he confessed to the ownership of the gun, following which he was promptly taken before the court, arraigned and sentenced; that "at his trial the lawyer he had neither retained by me or by the Court," but a lawyer employed by a co-defendant volunteered to defend him and advised him to plead guilty, which advice he followed. The motion contended that the appellant's constitutional rights were violated and asked that the sentence be vacated.

We find in the record no response to the motion. The only evidence pertaining to the issue involved is a transcript of the arraignment on August 6, 1948, which shows that there were present an Assistant U. S. Attorney and a lawyer who stated in response to a question by the Clerk that he represented the appellant. This attorney, in response to further questions from the Clerk, stated that the appellant had been served with a copy of the information; that he understood the nature of the charges against him; that the right to have the charges presented to a grand jury and be prosecuted by indictment had been explained to him; and that the appellant wished to waive presentment to a grand jury and be prosecuted by information. Following a statement of the charge by the Assistant District Attorney, the attorney for the appellant...