Martin v. United States, 14542.

• Decision Date: 28 October 1952
• Docket Number: No. 14542.,14542.
• Citation: 199 F.2d 279
• Parties: MARTIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

199 F.2d 279 (1952)

MARTIN v. UNITED STATES.

No. 14542.

United States Court of Appeals Eighth Circuit.

October 28, 1952.

J. Kehlor Carr, Jr., Clayton, Mo. (appointed by the Court) for appellant. Appellant filed a brief pro se in addition to the brief filed by his counsel.

Hugh A. Miner, Asst. U. S. Atty., Kansas City, Mo. (Sam M. Wear, U. S. Atty., Kansas City, Mo., on the brief), for appellee.

Before SANBORN, JOHNSEN, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from an order of the District Court entered December 12, 1951, denying a motion of the defendant (appellant) under § 2255, Title 28 U.S.C.A., for the vacation of a sentence of ten years' imprisonment. The sentence was imposed on April 10, 1947, based upon the defendant's plea of guilty to an indictment in four counts charging him and two others jointly with the forgery of certain United States Treasury checks and with uttering and publishing such checks, in violation of § 73 now § 495, Title 18 U.S.C.A. The defendant's sentence was to commence upon the expiration of a sentence he was then serving in the Missouri State Penitentiary.

The grounds upon which the defendant's motion to vacate sentence was based were, in substance, that at the time he was arraigned and his plea of guilty entered, he was not effectively represented by counsel; that he did not competently or voluntarily waive his right to the appointment of counsel; and that he was not fully advised of and did not understand his legal right to have counsel appointed for him by the court.

The court denied the motion to vacate sentence, upon the ground that it had previously considered a similar motion filed by the defendant on October 16, 1947, which was denied on November 6, 1947, and was therefore not required "to entertain a second or successive motion for similar relief on behalf of the same prisoner" under § 2255.

The previous motion of the defendant was based upon the erroneous theory that the Federal District Court was without jurisdiction to sentence him because he was then in State custody. The motion was filed and was denied prior to September 1, 1948, the date when § 2255 first became effective. No denial of any constitutional right was asserted in this prior motion. The fact that the motion was denied would not at the time of its denial have precluded a second collateral attack upon the judgment, based upon constitutional grounds.

We think the sole question for determination on this appeal is whether the defendant was entitled to a hearing upon his last motion. If the record conclusively shows that the defendant was entitled to no relief, it would be futile to accord him a hearing, even though the court gave a wrong reason for its order denying the motion.

Section 2255 provides that "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." See and compare, Taylor v. United States, 10 Cir., 193 F.2d 411, 412; Michener v. United States, 8 Cir., 177 F.2d 422, 423-424; United States v. Hayman, 342 U.S. 205, 223, 72 S.Ct. 263.

The record shows that the defendant Martin and his two codefendants were arraigned on the morning of April 10, 1947; that none of them was represented by counsel; and that the Government was represented by Thomas A. Costolow, an Assistant United States Attorney. So far as pertinent, the record shows that the following proceedings were had:

"The Court: United States versus Martin, Welch and Chrestensen.

"Mr. Costolow: I might explain for you that the indictment charges forgery of certain government checks and the passing of them is the nature of the charge. Do either of you have attorneys or do you want to be represented by attorneys?

"Defendant Martin: They brought me from the penitentiary this morning, and I haven\'t had time to contact my people. I wish to get them.

"Mr. Costolow: Have you a lawyer in mind that you have undertaken to employ?

"Defendant Martin: Yes, sir, I have.

"Mr. Costolow: You have made some arrangements?

"Defendant Martin: Not anyone directly but through my mother. I wrote to her and explained the situation to her with the understanding that as soon as I came here to be tried they would contact a lawyer for me.

"Mr. Costolow: You certainly should have an opportunity to do that. This is a new indictment, isn\'t it?

"Defendant Martin: Yes, sir.

"Mr. Costolow: You were brought here this morning from the Missouri penitentiary?

"Defendant Martin: Yes, sir.

"The Court: Serving time for another theft?

"Defendant Martin: Three years for car theft.

* * * * * *

"The Court: This seems to be a forgery charge.

"Mr. Costolow: Yes, sir.

"The Court: Not connected with the sentence you are serving time for in the penitentiary?

"Defendant Martin: No, sir, it isn\'t.

"The Court: How long would it probably require for you to make your arrangements with your lawyer?

"Defendant Martin: That would depend, Your Honor, upon how soon I could make contact with him due to the telephone strike.

"The Court: Do any of the other defendants desire counsel?

"Defendant Chrestensen: No.

* * * * * *

"The Court: And you, Miss Welch, do you desire counsel?

"Defendant Welch: No, sir.

"The Court: Do both of you desire that your case be disposed of this morning?

"Defendant Chrestensen: I would like for mine to.

"The Court: Do you, Miss Welch?

"Defendant Welch: I am not particular. It doesn\'t matter.

"The Court: Do both of you understand the charge? You had better have Mr. Costolow explain it anyway.

"Mr. Costolow: As a preliminary, may I suggest, Your Honor, that as long as Mr. Martin wants some time, Mr. Chrestensen had entered a plea of guilty to a similar charge in Judge Ridge\'s court and received fifteen years\' sentence. If he enters a plea here — the same is true if he entered a plea here, we would ask that the sentence be deferred until Mr. Martin\'s case is disposed of. As to Miss Welch, if she desires to enter a plea we would also ask her sentence be deferred too. However, they can enter whatever plea they want to to the indictment. I will be glad, too, for them — as to the indictment, it is in two counts, rather it is in four counts, involving two checks. The first count charges forgery of the endorsement of Mrs. Edna Ruth Osborn, the payee of the check, on a certain government check, in the sum of $50.00, dated September 1, 1945. The second count of the

...