WILLIAMS, Circuit Judge.
As disclosed by the record, appellant was indicted in the United States District Court for the Eastern District of Michigan, Southern Division, in Cause No. 24352, the indictment filed in said court on July 30, 1937, containing five counts, charging violation of 18 U.S.C.A. § 317.
On August 9, 1937, appellant entered plea of guilty to said indictment and by the court on said date was sentenced to a term of imprisonment of fifteen years. Appellant later filed motion for leave to withdraw plea of guilty theretofore entered and to enter a plea of not guilty.
On August 20, 1937, an order having been entered denying said motion to withdraw the plea of guilty theretofore entered, appellant was delivered to the custody of the appellee on August 26, 1937.
Petition for writ of habeas corpus was filed June 28, 1938, and denied on July 16, 1938. A petition for rehearing filed August 11, 1938, was denied on August 16, 1938.
In the petition for the writ, a copy of the indictment, judgment and commitment being attached as a part thereof, it was alleged that the judgment and commitment are each void and a nullity in that he was denied the right of counsel; that the court had no jurisdiction to impose a judgment and issue a commitment, as said judgment and commitment were rendered without due process of law, the petitioner having waived none of his constitutional rights.
In said record as of August 20, 1937, it is recited:
"The above named defendant, Milton J. Levine, having made application to withdraw his plea of guilty, heretofore entered in this cause, on the 9th day of August, A. D. 1937, the said defendant being sentenced by this court on the same day to imprisonment for a term of years, at an institution to be designated by the Attorney General of the United States, and the said application having been presented to this court;
"It is hereby ordered that the application of the above named defendant, Milton J. Levine, to withdraw his plea of guilty and enter a plea of not guilty be denied and the same is hereby denied."
The respondent, represented by the Assistant United States District Attorney for the District of Kansas, denied each and every material allegation in the petition except as specifically admitted, as herein set out.
A statement from the trial judge, introduced by both sides, dated October 8, 1937, addressed to Milton J. Levine, No. 51572, Post Office Box 7, Leavenworth, Kansas, is as follows: "Replying to your recent letter of October 4th, regarding the sentence which I imposed upon you, and your desire to have the sentence changed, also your desire to appeal from the order of the Court allowing you now to change your plea to not guilty, I advise that I have taken the time to go over the files in your case, and find that on August 9, 1937, you plead not guilty to the indictment upon arraignment, and on the same day you again came into court and asked to be allowed to withdraw your plea of not guilty and to enter a plea of guilty. And the court at this time asked you if you were pleading guilty to the indictment because you were guilty, and you advise that that was true; after you were sentenced for a period of fifteen years, and being dissatisfied with such sentence, you asked to be allowed to withdraw your plea of guilty, after such sentence was imposed, and enter a plea of not guilty, and be allowed to go to trial. Under the rules a plea of guilty cannot be withdrawn after sentence has been imposed. You complained considerably about the severity of your punishment, and I find upon consulting your record that the day you committed the crime charged in the indictment and stole letters from apartment houses in Detroit, you had only a few days before been released from Leavenworth prison after serving a sentence of ten years for the same offense. You further admitted to the Postal Officers that you stole the letters from the apartment buildings as charged in the indictment, thereby admitting your guilt. I again find upon reviewing your criminal record, that you have served long periods of time in prisons, involving offenses of forgery, robbing mail boxes, using mail to procure fraud, and in 1931 you were sentenced to the Federal penitentiary at Leavenworth from St. Louis, Mo. for stealing mail, and receiving a sentence of ten years, and your trouble in Detroit, in stealing mail from apartment houses, followed very shortly after your release from Leavenworth. This strongly indicated to the Court that you made your living by stealing letters from mail boxes and from apartment buildings, and you have not over a long period of years exhibited the first disposition to reform. Therefore, under all the circumstances I am unable to grant you any relief."
The affidavit by Thomas P. Thornton, Assistant United States Attorney for the Eastern District of Michigan, admitted without objection, states:
"* * * that on the 9th day of August, A. D. 1937, he was present in the court room of the Honorable Edward J. Moinet, one of the District Judges for the Eastern District of Michigan, and that on the aforesaid date, he, the said deponent, was present when the above named petitioner was arraigned on an indictment charging a violation of the postal laws; that at the time of the aforesaid arraignment the said petitioner entered a plea of not guilty, at the conclusion of which he was remanded to the custody of the United States Marshal, who returned him to the Marshal's detention cell to await transfer to the United States Detention Farm at Milan, Michigan.
"That at the noon recess of Court your deponent was informed by the postoffice inspector, R. B. MacLachlan, that Levine was desirous of withdrawing his plea of not guilty and entering a plea of guilty and that, upon receipt of this information, your deponent instructed the United States Marshal to return Levine to the court room * * * at 2 P. M. on the same day.
"That at 2 P. M. on August 9, 1937, this deponent apprised the Court of the matter to be presented to the Court in the following language:
"`If the court please, I understand that this defendant wishes to withdraw a plea of not guilty and enter a plea of guilty.'
"The court then interrogated the defendant as to whether or not he was pleading guilty because he was guilty and, upon being informed by the defendant that he was pleading guilty because he was guilty, the Court then sentenced him to a term of fifteen years."
The order entered by the District Court of Kansas, from which this appeal is prosecuted, recites:
"The petitioner being represented by Henry Dangerfield, his attorney, and the respondent being represented by Homer Davis, Assistant United States Attorney for the District of Kansas.
"The petitioner offered in evidence his exhibits as follows:
"Exhibit `A' — Photostatic copy of an indictment numbered 24352, filed July 30, 1937, in the United States District Court for the Eastern District of Michigan, Southern Division.
"Photostatic copy of plea and sentence in case No. 24352.
"Photostatic copy of commitment, together with return of the Marshal on the reverse side thereof, in said case No. 24352.
"Exhibit `B' — Photostatic copy of an order dated August 20, 1937, denying motion of petitioner herein to change plea.
"All said exhibits were received in evidence without objection.
"The respondent offered in evidence his exhibits as follows:
"Exhibit `1' — Photostatic copy of letter dated October 8, 1937, directed to the petitioner herein by the Honorable Edward J. Moinet, Judge of the United States District Court for the Eastern District of Michigan.
"Exhibit `2' — Affidavit of Thomas P. Thornton, Assistant United States Attorney for the Eastern District of Michigan.
"All said exhibits were received in evidence without objection.
"The court, having fully heard and considered the evidence and having been fully advised by counsel and having heard arguments of counsel herein, finds that the application for petition for writ of habeas corpus herein should be denied."
Later, appellant filed in the United States District Court of Kansas a petition for rehearing, addressed to the...
