Lone v. United States

• Decision Date: 28 April 1969
• Docket Number: Civ. No. 50295.
• Citation: 299 F. Supp. 855
• Court: U.S. District Court — Northern District of California
• Parties: Kenneth L. LONE, Petitioner, v. UNITED STATES of America, Respondent.

299 F. Supp. 855

Kenneth L. LONE, Petitioner, v. UNITED STATES of America, Respondent.

Civ. No. 50295.

United States District Court N. D. California.

April 28, 1969.

Cecil F. Poole, U. S. Atty., Harvey L. Ziff, Asst. U. S. Atty., San Francisco, Cal., for respondent.

Kenneth L. Lone, in pro. per.

ORDER

OLIVER J. CARTER, District Judge.

Pursuant to 28 U.S.C. § 2255, petitioner Lone has filed a motion to set aside a sentence of twenty-five (25) years imprisonment imposed by this Court on January 13, 1964. On that date, petitioner entered a plea of guilty to a single count indictment charging him with violation of several provisions of the Federal Bank Robbery Act, namely, 18 U.S.C. § 2113(a), (d), (e). The indictment charged that on or about November 1, 1963, Lone did wilfully by force and violence take from the United California Bank, San Francisco, money in the sum of approximately $6,719.00. It further charged that he knowingly and wilfully put in jeopardy the lives of several persons by use of a loaded hand gun and in committing the offense did force two persons to accompany him without their consent.

At the time Lone was indicted, 18 U.S.C. § 2113(e) provided:

"Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct."

Since then, United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968) and Pope v. United States, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968) have been decided. These cases held the death penalty provisions of the Federal Kidnapping Act, 18 U.S.C. § 1201(a), and of the Federal Bank Robbery Act, 18 U.S.C. § 2113(e), unconstitutional. Provisions limiting the death penalty to cases in which a jury recommends it serve "to discourage assertions of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial." United States v. Jackson, supra, at 581, 88 S.Ct. at 1216.

The question raised by Lone's petition is what effect, if any, do Jackson and Pope have on the sentence imposed by this Court after accepting Lone's plea of guilty to the indictment charging him with violation of 18 U.S.C. § 2113(a), (d), (e). Before answering this question, the Court should refer to the circumstances surrounding the entry and acceptance of the petitioner's guilty plea.

On November 29, 1963, Lone appeared before this Court with appointed counsel to enter a plea. On January 10, 1964, the defendant again appeared before this Court and entered a plea of guilty. Sentence was imposed after the plea at the request of the defendant. The transcript of the hearing of November 29, 1963, is marked Exhibit "A", appended hereto, and by this reference made a part hereof. Portions of the transcript of the hearing on January 10, 1964, are marked Exhibit "B", appended hereto, and by this reference made a part hereof.

The retroactive effect of Jackson is yet unclear. See Sims v. Eyman, 405 F.2d 439 (9th Cir. 1969). Already, conflicting decisions exist among the circuits. In Bailey v. United States, (D.C.Cir. 9/13/68), the court announced that the principles of Jackson as applied to the District of Columbia rape statute would affect only those defendants whose trials began after Jackson was decided. In Buttcher v. Yeager, 288 F.Supp. 906 (D.C.N.J.1968), the court decided that Jackson was not retroactive for purposes of setting aside a non vult plea to a charge of violation of New Jersey's murder statute. In Natale v. United States, 287 F.Supp. 96 (D.C.Ariz.1968), Jackson was held retroactive for purposes of deciding that the petitioner had not been charged with a capital offense which would have required that he be charged by indictment rather than by information. In McFarland v. United States, 284 F.Supp. 969 (D.C.Md.1968), the court decided that the effect of Jackson may be retroactive but that "the Jackson case should not be applied indiscriminately to strike out every judgment heretofore entered in a case where a defendant has entered a guilty plea; the totality of the circumstances in each case should be considered to determine whether there was any denial of due process in the light of the development of the law." Id. at 977.

Retroactive application of recently-announced constitutional safeguards to the criminally accused is not a matter of course. E. g., Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1964) (exclusionary rule of illegally-seized evidence under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), held inapplicable to convictions which had become final before Mapp was decided); Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966) (rule of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), declaring comment on refusal of the defendant to testify unconstitutional held inapplicable to cases in which judgment of conviction was rendered, availability of appeal exhausted, and the time for petition for certiorari elapsed or was denied before Griffin was decided); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) (exclusionary rules of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L. Ed.2d 977 (1964), and of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), held applicable only to cases where the trials have commenced after the respective decisions were announced); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (rules of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and of Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), involving right to counsel at identification lineups, held applicable only to cases involving confrontations taking place after Stovall); De Stefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968) (Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), right to jury trial in serious state criminal cases and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), right to jury trial for serious criminal contempts, held applicable only to trials commencing before the respective cases were decided); Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968) (Lee v. Florida, 392 U.S. 378, 88 S.Ct. 2096, 20 L.Ed.2d 1166 (1968), holding evidence violative of § 605 of the Federal Communications Act, is to be applied only to trials in which the evidence is sought to be introduced after the date of Lee); Desist v. United States 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (exclusionary rule of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) held applicable only to cases in which the prosecution seeks to introduce fruits of electronic surveillance conducted after Katz was decided).

On the other hand, retroactive application is justified when the rule announced affects the "very integrity of the factfinding process" and averts the "clear danger of convicting the innocent." Johnson v. New Jersey, supra, at 727, 86 S.Ct. at 1778. E. g., Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L. Ed.2d 508 (1969) (prior testimony of witness absent from jurisdiction, Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968)); Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L. Ed.2d 5 (1968) (prior guilty plea offered without aid of counsel, White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed. 2d 193 (1963)); McConnell v. Rhay, 393 U.S. 2 (1968), 89 S.Ct. 32, 21 L.Ed.2d 2 (assistance of counsel at proceeding for revocation of probation and imposition of deferred sentencing, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L. Ed.2d 336 (1967)); Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968) (extra-judicial confession in joint trial, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (cause for challenge of jurors generally opposed to capital punishment); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) (hearing on voluntariness of confession); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (assistance of counsel on appeal); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (assistance of counsel at trial); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) (assistance of counsel at certain arraignments); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (transcripts to indigents on appeal).

In determining whether the rule of Jackson v. United States, supra, is retroactive, its effect must be clearly defined. Death penalties actually imposed are invalid if they fall within the infirmity announced in Jackson. Also, convictions of defendants who waive jury trials on charges which subject them to the death penalty upon recommendation by the jury, are open to attack as being unnecessarily encouraged by the jury's death penalty power. Thus, three different classes of defendants may take advantage of Jackson: defendants who plead guilty, defendants who are tried and convicted by a judge, and defendants who are convicted by a jury and sentenced to death. Parker v. United States, 400 F.2d 248 (9th Cir. 1968).

This Court is asked to decide the issue of retroactivity only with respect to Jackson as it applies to those who have pled guilty. The Court is of the opinion that Jackson is not retroactive in this respect. This decision is reached despite the fact that Jackson may be retroactive for purposes of those...