Kress v. United States
| Decision Date | 29 May 1969 |
| Docket Number | No. 19516.,19516. |
| Citation | 411 F.2d 16 |
| Parties | John E. KRESS, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John Edgar Kress, pro se.
Calvin K. Hamilton, U. S. Atty., and Frederick O. Griffin, Jr., Asst. U. S., Atty., Kansas City, Mo., for appellee.
Before VOGEL, MATTHES and BRIGHT, Circuit Judges.
Appellant - defendant, John Edgar Kress, pro se in this court, appeals from the denial of his 28 U.S.C.A. § 2255 motion to vacate and set aside his judgment of conviction, by guilty plea, of a violation of the Dyer Act, 18 U.S.C.A. § 2312. The grounds for appellant's § 2255 motion are: (1) That his guilty plea was not voluntary and was accepted by the trial court in violation of Rule 11, Federal Rules of Criminal Procedure; and (2) that he was deprived of his Sixth Amendment right to effective assistance of counsel.
The record indicates that on February 16, 1968, appellant was charged in a two-count indictment with violations of 18 U.S.C.A. §§ 2312-2313, sections of the Dyer Act. At the time of appellant's appearance before a United States Commissioner, attorneys with the Legal Aid and Defenders Society of Greater Kansas City, Missouri, were appointed to represent him. Mr. James Harrington, an attorney with the Legal Aid and Defenders Society for two and a half years, represented appellant at the arraignment and sentencing proceedings.
On March 1, 1968, appellant was arraigned and entered a plea of not guilty to both counts of the indictment. On March 9, 1968, appellant stated in a letter directed to the United States Attorney that he wanted to change his plea to guilty and receive sentence. On March 20, 1968, appellant appeared before the District Court with his court-appointed attorney, was granted leave to withdraw his plea of not guilty, and pleaded guilty to Count I, which charged violation of 18 U.S.C.A. § 2312.1 The following transpired at this proceeding:
A pre-sentence report ordered by the court showed that the appellant had four previous felony convictions, including two violations of the Dyer Act with a sentence of 18 months in 1950 and a sentence of five years in 1961.2 Upon inquiry from the court, the appellant stated that the report was correct as to the four felony convictions. The pre-sentence report also included a statement to the effect that the appellant had told the Federal Probation Officer that he was not guilty and had not stolen the automobile, but had "bought this car, won it and bought it and paid the difference in a poker game * * *."
On April 5, 1968, appellant appeared in court for sentencing. The following colloquy occurred at this proceeding:
Count II of the indictment, charging a violation of 18 U.S.C.A. § 2313, was then dismissed on the government's motion.
In July 1968, appellant wrote the District Court seeking to withdraw his guilty plea. Appellant asserted that he pleaded guilty because he "couldn't stand the County Jail"; that he was not guilty; that his court-appointed attorney was ineffective and did not spend sufficient time consulting with him; that his attorney advised him only to plead guilty; that his attorney stated that if he indicated any uncertainty as to his guilt when he pleaded guilty the court would not accept the plea and he would be returned to the county jail; and that for these reasons his plea of guilty was not a voluntary plea. The trial court treated this letter as a motion under 28 U.S.C.A. § 2255 and entered a show cause order.
On July 18, 1968, an evidentiary hearing was held on appellant's § 2255 motion. Appellant was present at this hearing and was represented by a new court-appointed attorney, Mr. James Deckert. Appellant testified he changed his plea from not guilty to guilty because "being in jail * * * worked on him quite a bit" and he had "just lost faith" in his court-appointed attorney; that he was unable to make bond because of a hold order based upon a warrant from California; that Mr. Harrington never visited him at any time in jail and only spent a total of between five and ten minutes with him during the entire case; that at the time of the arraignment appellant believed in his own mind that he was not guilty; and that appellant got the impression from his court-appointed attorney that if he showed any uncertainty at the time of the arraignment and plea that the court would consider the plea as being one of not guilty and he would therefore go back to the county jail. Appellant further testified that he had the opportunity when he changed his plea and when sentence was imposed to state anything that would show reticence or uncertainty about the case, but did not do so because he thought his attorney's words were that the court didn't want to hear anything. Appellant stated that he had lied to the court when he pleaded guilty on March 20, 1968. With specific reference to the allegations concerning the conditions of the county jail, appellant testified as follows:
Appellant testified that he told the probation officer that he had "bought this car, won it and bought it and paid the difference in a poker game * * *." The trial judge stated to the probation officer that in reading the pre-sentence report "it rather bothered him on this question of guilt, from what you said appellant had told you". Appellant's former court-appointed attorney, Mr. James Harrington, testified that he apprised himself of all the facts in appellant's case and advised and represented him to the best of his ability; that he concurred in appellant's plea of guilty; that he would not recommend to appellant or any other defendant that he change his plea from not guilty to guilty if he wasn't guilty; that he did some investigation on the case; that he worked on appellant's bond situation; and that he probably didn't spend "a great deal of time" with appellant.
On September 27, 1968, the trial court denied appellant's § 2255 motion to set aside judgment and sentence. Appellant now appeals from this order. We affirm.
Initially, we note that "there can be no doubt that a conviction based upon a guilty plea not voluntarily, knowingly, and intelligently made is subject to collateral attack". Bartlett v. United States, 8 Cir., 1966, 354 F.2d 745, 751, cert. denied, 384 U.S. 945, 86 S.Ct. 1471, 16 L.Ed.2d 542. However, . Smith v. United States, 8 Cir., 1964, 339 F.2d 519, 526, quoting Johnson v. Zerbst, 1938, 304 U.S. 458, 468, 58 S.Ct. 1019, 82...
To continue reading
Request your trial
-
Peterson v. State of Missouri
...1255 (1971); Hanger v. United States (C.A.8) 428 F.2d 746 (1970); Slawek v. United States (C.A. 8) 413 F.2d 957 (1969); Kress v. United States (C.A.8) 411 F.2d 16 (1969); Cross v. United States (C.A.8) 392 F.2d 360 (1968); Churder v. United States (E.D.Mo.) 294 F.Supp. 207 (1969), aff'd (C.......
-
Brainard v. State
...court should exercise its discretion in determining when additional explanation of the charge is necessary.' See Kress v. United States, 411 F.2d 16, 21 (8 Cir. 1969). The second aspect of the first Sisco requirement was involved in Michels v. Brewer and State v. Sargent, supra. The trial j......
-
Garton v. Swenson
...adopted. Cardarella v. United States, 8 Cir., 375 F.2d 222, 230, cert. den., 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176; Kress v. United States, 8 Cir., 411 F.2d 16, 22; Borchert v. United States, 9 Cir., 405 F.2d 735, 738, cert. den. 394 U.S. 972, 89 S.Ct. 1466, 22 L.Ed.2d 753; Johnson v. ......
-
Holloway v. U.S.
...his guilty pleas. Holloway does not dispute this conclusion, nor could he do so successfully. See, e.g., Kress v. United States, 411 F.2d 16, 20-21 (8th Cir.1969) (per curiam). Regarding Holloway's sentence, the District Court held that Holloway's claim that Judge Wangelin was biased does n......