Lovvorn v. Johnston, 9570.
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Citation | 118 F.2d 704 |
| Docket Number | No. 9570.,9570. |
| Parties | LOVVORN v. JOHNSTON, Warden. |
| Decision Date | 24 March 1941 |
118 F.2d 704 (1941)
LOVVORN
v.
JOHNSTON, Warden.
No. 9570.
Circuit Court of Appeals, Ninth Circuit.
March 24, 1941.
James A. Lovvorn, 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 WILBUR, GARRECHT, and HEALY, Circuit Judges.
WILBUR, Circuit Judge.
This is an appeal from an order of the trial court refusing to issue writ of habeas corpus upon petition of James A. Lovvorn. Instead, the court issued an order to show cause. The respondent filed a return and the petitioner traversed the return. Under the decision of the Supreme Court in Walker v. Johnston, 61 S. Ct. 574, 85 L.Ed. ___, decided February 10, 1941, the question involved upon the hearing of the order to show cause and, consequently upon the appeal from the order denying the writ, is whether or not the appellant's petition and traverse construed together as the application for the writ allege a material fact which if true would require the discharge of the petitioner, notwithstanding such material fact may be controverted by the respondent in his return to the rule to show cause.
Petitioner alleges that he was tried by a jury upon indictment charging conspiracy and the passing of counterfeit money, that he was found guilty thereof and sentenced, and is in custody because of the judgment of conviction. He claims that the court that sentenced him had no jurisdiction so to do, because he was deprived of the assistance of counsel in violation of the Sixth Amendment to the Constitution of the United States as construed by the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.
In that regard he alleges in his petition as follows:
"Before the verdict was returned, petitioner's counsel, Mr. W. E. Martin, withdrew from the case without petitioner's knowledge or consent and when petitioner was at liberty on bond with a right to waive his presence at all the proceedings of trial. Such withdrawal of counsel, as petitioner is advised and believes, divested the court of its jurisdiction to proceed with the trial, and the trial court lost jurisdiction under the due process of law clause and the right to counsel under the Fifth and Sixth Amendments to the Constitution."
"Petitioner appeared in the court room when the jury returned with the verdict, and at the same time, a Deputy United States Marshal took petitioner into custody. As soon as the verdict was read, the court said: `Stand up to be sentenced', speaking to petitioner. Petitioner complied with the court's order and the aforesaid sentences were imposed."
Petitioner alleges that he did not know how to take an appeal and, consequently, gave no notice of appeal. He alleges he was not produced in the trial court on the fifth day after judgment for the purpose of giving notice of appeal or making a motion for new trial. Petitioner alleges that his confinement in jail obstructed his exercise of the right of appeal and that his people were denied the right to see him for a week after his confinement. He also claims that there is no evidence to support any of the counts of the indictment.
Petitioner also alleges he did not waive his right to counsel at any time in the proceedings and did not know he had a right to compel the court to allow petitioner counsel at the trial.
At the outset of our consideration of the allegations of the petitioner it should be noted that an attorney cannot withdraw from a case without the consent of the court. The rule is correctly stated in 7 Corpus Juris Secundum, Attorney and Client, page 943, § 110, as follows: "An attorney may not, in the absence of the client's consent, withdraw from a case without justifiable cause; and then only after proper notice to his client, and on leave of the court."
See also 6 C.J., 674, § 186: "An attorney seeking to withdraw must make an application to the court, for the relation does not terminate formally until there is a withdrawal of record; at least, so far as the opposite party is concerned, the relation otherwise continues until the end of the litigation."
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Coates v. Lawrence
...state to adopt, and violates no provision of the Constitution of the United States. Frank v. Mangum, supra; Lovvorn v. Johnston, 9 Cir., 118 F.2d 704(5, 6), 706. See, also, Frank v. State, 142 Ga. 741(2, 3), 751, 763, 83 S.E. 645, L.R.A. 1915D, 817; Cawthon v. State, 119 Ga. 395, 46 S.E. 89......
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Powell v. Com.
...25 S.W. 603; Huffman v. State, 28 Tex.App. 174, 12 S.W. 588; State v. Boozer, 92 S.C. 495, 75 S.E. 864. In Lovvorn v. Johnston, 9 Cir., 118 F.2d 704, it was said that the voluntary absence of the accused's counsel does not affect the right of the court to proceed to a verdict and judgment. ......
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United States v. Nierstheimer, Civ. A. No. 750-D.
...because all the relator complains of could have been corrected upon direct review. See, in this connection, Lovvorn v. Johnston, 9 Cir., 118 F.2d 704, 706; Kent v. Sanford, 5 Cir., 121 F.2d 216, certiorari denied 315 U.S. 799, 62 S.Ct. 622, 86 L.Ed. 1200; Batson v. United States, 10 Cir., 1......
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People v. Breslin
...647, certiorari denied 348 U.S. 975, 75 S.Ct. 538, 99 L.Ed. 759; Osborne v. Johnston, 9 Cir., 120 F.2d 947; Lovvorn v. Johnston, 9 Cir., 118 F.2d 704, certiorari denied 314 U.S. 607, 62 S.Ct. 92, 86 L.Ed. 488; People v. Logan, 137 Cal.App.2d 331, 290 P.2d 11; Sykes v. Warden, 201 Md. 662, 9......
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Coates v. Lawrence
...of the state to adopt, and violates no provision of the Constitution of the United States. Frank v. Mangum, supra; Lovvorn v. Johnston, 9 Cir., 118 F.2d 704(5, 6), 706. See, also, Frank v. State, 142 Ga. 741(2, 3), 751, 763, 83 S.E. 645, L.R.A. 1915D, 817; Cawthon v. State, 119 Ga. 395, 46 ......
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United States v. Nierstheimer, Civ. A. No. 750-D.
...is involved because all the relator complains of could have been corrected upon direct review. See, in this connection, Lovvorn v. Johnston, 9 Cir., 118 F.2d 704, 706; Kent v. Sanford, 5 Cir., 121 F.2d 216, certiorari denied 315 U.S. 799, 62 S.Ct. 622, 86 L.Ed. 1200; Batson v. United States......
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Powell v. Com.
...58 Ark. 513, 25 S.W. 603; Huffman v. State, 28 Tex.App. 174, 12 S.W. 588; State v. Boozer, 92 S.C. 495, 75 S.E. 864. In Lovvorn v. Johnston, 9 Cir., 118 F.2d 704, it was said that the voluntary absence of the accused's counsel does not affect the right of the court to proceed to a verdict a......
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People v. Breslin
......975, 75 S.Ct. 538, 99 L.Ed. 759; Osborne v. Johnston, 9 Cir., 120 F.2d 947; Lovvorn v. Johnston, 9 Cir., 118 F.2d 704, certiorari denied 314 U.S. 607, ......