Martin v. United States

• Decision Date: 12 August 1966
• Docket Number: 8765.,No. 8764,8764
• Citation: 364 F.2d 894
• Parties: George F. MARTIN, Appellant, v. UNITED STATES of America, Appellee (two cases).
• Court: U.S. Court of Appeals — Tenth Circuit

364 F.2d 894 (1966)

George F. MARTIN, Appellant, v. UNITED STATES of America, Appellee (two cases).

Nos. 8764, 8765.

United States Court of Appeals Tenth Circuit.

August 12, 1966.

William Edward, Brayshaw, Denver, Colo., for appellant.

John W. Raley, Jr., Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., on the brief), for appellee.

Before PHILLIPS, PICKETT and SETH, Circuit Judges.

PHILLIPS, Circuit Judge.

These are appeals from an order denying a motion to vacate a sentence and an order denying an application for a writ of habeas corpus.

A two-count indictment was returned against Martin, charging violations of 18 U.S.C.A. § 1341. Each count charged that Martin and one Diffie, his codefendant, devised a scheme to defraud persons through the sale of oil and gas leases and mineral deeds, and to obtain money by false and fraudulent pretenses and representations, and that each of the leases and mineral deeds offered for sale and sold in carrying out the object of such scheme was represented by Martin and Diffie to be signed by the true owner thereof, when in fact the purported signature was a forgery and not the signature of the true owner.

The first count further charged that on November 12, 1953, Martin and Diffie, for the purpose of executing the scheme, caused to be placed in an authorized depository for mail matter, a letter to be sent and delivered by the Post Office Establishment of the United States. The second count further alleged that Martin and Diffie, for the purpose of executing the scheme, caused to be placed in an authorized depository for mail matter a letter containing a mineral deed purportedly signed by one Royce C. Johnson and a sight draft drawn on one E. L. Branstetter, payable to Johnson, for the sum of $1250, addressed to the Liberty National Bank, Oklahoma City, Oklahoma, to be sent and delivered by the Post Office Establishment of the United States.

On April 15, 1955, Martin, while he was serving a five-year sentence in the United States Penitentiary at Leavenworth, Kansas, for a violation of the Mann Act,¹ appeared in open court in person and with counsel of his own choice, withdrew pleas of not guilty theretofore entered, and entered pleas of guilty to each count of the indictment. On April 19, 1955, he was sentenced to the custody of the Attorney General for a period of five years on each of the two counts, such sentences to run consecutively for a total term of ten years and to run consecutively, also, with the sentence Martin was then serving. Thereafter, Martin filed a motion pursuant to 28 U.S.C.A. § 2255 to vacate the sentence. The late Judge W. R. Wallace, who imposed the sentences, after an evidentiary hearing on the motion, specifically found that no promises or representations were made to Martin concerning the sentence which the court might impose in the event he entered pleas of guilty, and that with counsel of his own choice present, he knowingly, intelligently and voluntarily entered pleas of guilty, and entered an order denying the motion. That order was affirmed by this court. See Martin v. United States, 10 Cir., 285 F.2d 150, 152.

In his motion to vacate the sentence, Martin alleges that the only part he played in the commission of the offenses charged was the mailing of the letters; that he received a sentence of ten years and Diffie was placed on probation for a period of two years, and that there was such a disparity in the sentences imposed on him and Diffie that there was an abuse of discretion by the sentencing court and the sentence should be vacated.

The grounds set up by Martin in his application for the writ of habeas corpus, which he here asserts entitle him to a reversal of the order denying the...