LaClair v. United States, No. 15673.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: HASTINGS, , and KNOCH and KILEY, Circuit
• Citation: 374 F.2d 486
• Decision Date: 11 January 1967
• Docket Number: No. 15673.
• Parties: Bernard E. LaCLAIR, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

374 F.2d 486 (1967)

Bernard E. LaCLAIR, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 15673.

United States Court of Appeals Seventh Circuit.

January 11, 1967.

374 F.2d 487

Jerry P. Belknap, Robert H. Reynolds, Indianapolis, Ind., for appellant.

Alfred Moellering, U. S. Atty., Joseph F. Eichhorn, Asst. U. S. Atty., Fort Wayne, Ind., for appellee.

Before HASTINGS, Chief Judge, and KNOCH and KILEY, Circuit Judges.

KILEY, Circuit Judge.

LaClair, a federal prisoner, has appealed from a judgment dismissing, without an evidentiary hearing, his fifth collateral attack on his federal conviction and sentence for bank robbery. We affirm.

LaClair is serving a thirty-year sentence imposed in 1954 on conviction of six charges of bank robbery plus a consecutive five-year sentence for attempted escape. He pleaded guilty to all these charges. His first section 2255¹ motion, filed in August, 1959, was based on allegations of a coerced confession, prejudicial publicity and broken promises of his trial counsel. The motion was denied, and this court affirmed. United States v. LaClair, 285 F.2d 696 (7th Cir. 1960), cert. denied, 365 U.S. 854, 81 S.Ct. 820, 5 L.Ed.2d 818 (1961).

LaClair's second motion, filed in August, 1963, alleged collusive arrest, violation of Fed.R.Crim.P. 5(a) after his arrest, invalid guilty pleas and ineffective and incompetent counsel at his trial. The motion was denied. In his third motion, filed in April, 1964, LaClair charged he was incompetent when he pleaded guilty and when sentenced. The motion was denied without prejudice for insufficient allegations of fact.

LaClair's fourth motion alleged that he was denied effective assistance of

374 F.2d 488

counsel at his trial, that he was mentally incompetent prior to and at the time of sentencing, and that his plea was not understandingly made because of his misapprehension of the law. This fourth motion was denied, without hearing, in May, 1965, in an exhaustive opinion. 241 F.Supp. 819 (N.D.Ind.1965). The district court, in its opinion there, rejected the claim of ineffective counsel and found the allegations of mental incompetency (virtually invited by the court in its decision on the third motion) frivolous, "entirely unfounded" and "insufficient in themselves." The district court also concluded that LaClair's misapprehension with respect to the law when he pleaded guilty to some charges was of no consequence in view of the valid conviction and sentence on other counts of the indictment

This fifth petition now before us was filed in June, 1965, and denied in September, 1965. It is grounded upon the alleged denial of LaClair's Sixth Amendment rights. He alleged that during his interrogation by the police, he asked to consult with counsel, that this request was refused, and that he was not advised of his right to remain silent. LaClair alleged that his subsequent guilty pleas were motivated by his confession in these circumstances and were invalid. The district court found that LaClair's petition was an abuse of the collateral process. On authority of Smith v. United States, 347 F.2d 505 (7th Cir. 1965), and United States ex rel. Boucher v. Reincke, 341 F.2d 977, 980 (2d Cir. 1965), the district court held that LaClair's guilty plea, when represented by counsel, waived any nonjurisdictional defects and defenses and denied the petition.

LaClair's first contention in this court is that his right to due process was violated by the district court's denial of his request for counsel to assist him in preparing his 2255 petition. In support of this broad contention LaClair does not rely solely upon the particular facts here but urges a general rule for adoption in this circuit. He relies upon United States ex rel. Marshall v. Wilkins, 338 F.2d 404 (2d Cir. 1964); Dillon v. United States, 307 F.2d 445 (9th Cir. 1962), and this court's decisions in Campbell v. United States, 318 F.2d 874 (7th Cir. 1963), and Milani v. United States, 319 F.2d 441 (7th Cir. 1963).

The courts in both Marshall and Dillon declined to depart from the established rule that the Sixth Amendment does not apply in section 2255 and habeas corpus proceedings, the right claimed in LaClair's petition. Both courts stated that in some cases the due process clause of the Fifth Amendment could require...