O'Keith v. Johnston, 9742.
| Decision Date | 15 September 1941 |
| Docket Number | No. 9742.,9742. |
| Parties | O'KEITH v. JOHNSTON, Warden. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles O'Keith, in pro. per., for appellant.
Frank J. Hennessy, U. S. Atty., and R. B. McMillan and A. J. Zirpoli, Asst. U. S. Attys., all of San Francisco, Cal., for appellee.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
The petition of appellant for a writ of habeas corpus, filed in the court below, alleged in substance that he was confined at Alcatraz Island United States Penitentiary by virtue of a commitment under a judgment and sentence of the District Court of the United States for the Eastern District of Texas, Tyler Division; that he was apprehended December 25, 1936, at Denver, Colorado, and thereafter removed to the jurisdiction of the above court; that an indictment was returned in said District February 9, 1937, charging him, in two counts, with robbery by force and violence, of a member bank of the Federal Deposit Insurance Corporation; that on February 10, 1937, appellant was arraigned and pleaded guilty to the offenses charged in the indictment, being without the assistance of counsel; that on the day following, the appellant was sentenced to imprisonment for a period of twenty-five years and to pay a fine of $1,000, or to a term of twenty years on count one of the indictment and twenty-five years on count two, the latter count carrying the fine, the terms of imprisonment to run concurrently; that the record of his trial does not disclose whether appellant knew of his legal rights, or was offered assistance of counsel or knew the nature of the accusation against him; that he was denied "due process of law."
In his petition O'Keith argued his case under four heads:
(1) "Indictment fails to charge an offense against the United States and the Texas federal court was without jurisdiction to impose sentence upon the petitioner."
(2) "The sentence rendered against the petitioner is alternative ambiguous and void and the Texas court was without statutory power to impose said sentence."
(3) "The indictment, judgment of conviction and sentence are void because they do not bar another prosecution for the same offenses."
(4)
An order to show cause, directed to the Warden of the said United States Penitentiary at Alcatraz, issued out of the court below, and return to said order was made by said warden, appellee here. The return set forth that petitioner O'Keith was held under commitment, referred to above, and alleged that said petitioner had theretofore filed a petition for writ of habeas corpus before the same court and incorporated the entire record of the proceeding under that petition by reference to the files of the court.
Three days after the return was filed, August 8, 1940, the court entered an order reciting that petitioner had requested counsel be appointed by him to represent the petitioner, and the court appointed a member...
To continue reading
Request your trial
-
Dorsey v. Gill
...85 L.Ed. 830; Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392; Beckett v. Hudspeth, 10 Cir., 131 F.2d 195; O'Keith v. Johnston, 9 Cir., 122 F.2d 554. 41 Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 85 L.Ed. 830; 28 U.S. C.A. § 42 This is the usual procedure in some f......
-
McCrea v. Jackson
...Cir., 137 F.2d 898, 900; Ex parte Rosier, 76 App.D.C. 214, 133 F.2d 316; Lewis v. King, Warden, 8 Cir., 133 F.2d 195; O'Keith v. Johnston, Warden, 9 Cir., 122 F.2d 554, 555. In his carefully prepared petition for a writ of habeas corpus, which employs language in conformity with the statute......
-
Bozel v. Hudspeth
...petition. Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830, and Minnec v. Hudspeth, 10 Cir., 123 F.2d 444. Cf. O'Keith v. Johnston, 9 Cir., 122 F.2d 554. It is sufficient to say that each count in the indictment clearly charges a scheme to use the mails to defraud, punishable un......
-
Price v. Johnston
...was required to grant the petitioner a hearing, if the petition, return and traverse raised substantial issues of fact." O'Keith v. Johnston, 9 Cir., 122 F.2d 554, 555. No hearing was had in this case, the court entering its order on the pleadings filed. The question before us is whether th......