Johnson v. United States, 16371.
| Decision Date | 24 June 1959 |
| Docket Number | No. 16371.,16371. |
| Citation | 267 F.2d 813 |
| Parties | Wayne JOHNSON, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John C. Wesley, Phoenix, Ariz., for appellant.
Jack D. H. Hays, U. S. Atty., William A. Y. Holohan, Asst. U. S. Atty., Phoenix, Ariz., for appellee.
Before POPE, STEPHENS and HAMLIN, Circuit Judges.
Appellant is an Indian who formerly lived on the Gila River Indian Reservation in Arizona where the events here described occurred. According to his own testimony, he was driving in his car, accompanied by four juveniles, also Indians, on July 5, 1956. Appellant was then 27 years of age; two of his companions were 17, and two were 15. The boys wanted to return to a tavern where they had been before, so they could attack another Indian, one Antone, with whom one of them had had an altercation. Appellant drove them back; Antone was taken into the car, then appellant drove them out into the desert. Antone was taken out, beaten and left lying as the others drove off. Later, appellant and his companions drove back where Antone had been left. Antone was beaten and attacked again. (In the process Antone had been stripped, a cross carved on his back, and his sex organs cut off.) Appellant and his boy companions then left Antone to die.
When appellant and the two older boys were indicted for murder appellant employed an attorney chosen by him through his mother to handle his defense. He pleaded not guilty. The lawyer interviewed him frequently. He also interviewed the attorneys for the other defendants. He learned that appellant had given a lengthy signed statement to an F.B.I. agent. The statement was shown to the attorney. It was very damaging.1 In it appellant said that the first time Antone was attacked, he was kicked, cut and beaten, one of them "stomping" on his head and in his face. They then got in the car, and drove about for a time, and then "we all decided to return to where we left Antone and finish him off." All, including appellant, started beating and kicking Antone. Antone "passed out". He said "I do not remember if I stabbed Antone with my knife, nor do I remember if I cut off any of his sex organs." The lawyer also saw a statement taken from Leroy Lewis, one of the 17 year old boys. He described appellant as the leader and the one who suggested the beating.2
Confronted with the knowledge that his client was a participant in the events of a peculiarly cold-blooded and revolting murder, with all indications that the other witnesses would put primary blame on the 27 year old appellant, with all the circumstances such that a jury might well believe the older man the prime mover and ring leader, the attorney had his client plead guilty to second degree murder. He was sentenced to life imprisonment.
After having thus escaped what might reasonably have been anticipated, — a verdict of first degree murder and the death penalty, — appellant, on reaching Leavenworth prison, in collaboration with some other inmate, not named, proceeded to turn on his lawyer by filing a petition for vacation of his sentence under Title 28, § 2255, alleging that "his legal counsel was inadequate and ineffective, which simply means that defendant should have been considered to have had no counsel at all." He alleged his counsel told him that if he would plead guilty he would receive ten years; if he pleaded not guilty, he would receive the death sentence. He asserted denial of his constitutional right to have assistance of counsel.3
While it is questionable whether these allegations stated facts sufficient to show any denial of Constitutional right, see Taylor v. United States, 9 Cir., 238 F.2d 409, 413-414, and cases there cited,4 yet the trial court followed the sound procedure of holding a hearing and taking evidence. Counsel was appointed to represent appellant who was brought from Leavenworth prison to testify.
The court made findings setting forth in some detail the preparation made by the attorney for defense of the appellant, the decision to plead guilty, and that before accepting the plea the court "advised the defendant that he could be sentenced to life imprisonment, and after the defendant indicated that he understood the consequences of his plea, the court accepted his plea of guilty to murder in the second degree." The court concluded as follows:
In short, the court disbelieved the appellant's testimony. Appellant's effort, by this appeal...
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...(S.D.N.Y.1964). Many courts have alluded to the abuse of post-conviction remedies in general, including Section 2255, Johnson v. United States, 267 F.2d 813 (9th Cir. 1959); United States v. Cooper, 222 F. Supp. 661 (D.D.C.1963). In part the abuse is the result of the notion that these proc......
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