Maye v. Pescor

• Decision Date: 01 August 1947
• Docket Number: No. 13482.,13482.
• Citation: 162 F.2d 641
• Parties: MAYE v. PESCOR, Warden.
• Court: U.S. Court of Appeals — Eighth Circuit

162 F.2d 641 (1947)

MAYE v. PESCOR, Warden.

No. 13482.

Circuit Court of Appeals, Eighth Circuit.

August 1, 1947.

Sidney Lorber, of Minneapolis, Minn. (appointed by Court), for appellant.

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

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

This is an appeal in forma pauperis from a judgment dismissing a writ of habeas corpus. The appellant is seeking release from the custody of the Warden of the Medical Center for Federal Prisoners at Springfield, Missouri, in which he is confined and to which institution he was transferred by direction of the Attorney General from the United States Penitentiary at Terre Haute, Indiana, where he was serving a sentence imposed upon him in the Southern District of Indiana.

Appellant was arrested at Indianapolis, Indiana, on August 4, 1945, where an indictment in two counts was returned against him. The first count charged the violation of 18 U.S.C.A. § 408, which provides that "Whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, * * * knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, or by imprisonment of not more than five years, or both." Count two charged violation of 18 U.S.C.A. § 409 for taking and carrying away certain goods and chattels of the approximate value of $15,000 while they were moving in interstate commerce, the prescribed penalty for which is a fine of not more than $5,000, or imprisonment for not more than ten years, or both.

When appellant was arraigned in the district court at Indianapolis on September 25, 1945, the court at his request appointed an attorney to represent him. Later on the same day after conferring with his attorney he entered a plea of guilty to both counts of the indictment. The court deferred sentence and directed the Probation Officer of the court to make an investigation and report. The appellant was again brought before the court at New Albany, Indiana, on October 15, 1945. Upon inquiry by the court he waived the presence of his attorney who was absent and was sentenced to a term of four years in a penitentiary to be designated by the Attorney General.

In his petition for a writ of habeas corpus appellant alleged in substance: (1) That he was mentally incompetent at the time of his arraignment and plea on September 25, 1945; (2) that he was induced to sign a written statement or confession, on August 4, 1945, by an F.B.I. Agent by means of duress and misrepresentations; (3) that he was not accorded his rights under the Constitution to have the assistance of able and competent counsel; and (4) that he was the victim of a nefarious employer.

The warden filed a return to the petition in response to an order to show cause in which he related the proceedings terminating in the delivery of appellant into his custody at the Medical Center, and denied the truth of the charges alleged in the petition.

The petition came before the district court for the western district of Missouri on November 12, 1946, and a full hearing was had. Appellant appeared, was represented by counsel, and testified in his own behalf. At this hearing appellant abandoned the charge that he was the victim of a nefarious employer. The government introduced the testimony of the attorney appointed by Judge Baltzell to represent appellant at his arraignment in Indianapolis, the testimony of Edwin P. Kirkendahl who wrote out appellant's confession on August 4, 1945, and the testimony of Eugene Burns, the probation officer who directed the pre-sentence investigation and made a report to the court.

After the hearing the court made findings of fact and entered judgment dismissing the petition. In substance the court found that prior to his arraignment appellant voluntarily, with full understanding and without coercion, signed a written confession of guilt in the presence of Edwin P. Kirkendahl; that counsel appointed by the court to represent appellant at the time of his arraignment advised him of his legal and constitutional rights and that appellant intelligently and with full knowledge of his rights entered a plea of guilty to both counts of the indictment; and that after the pre-sentence report of the probation officer appellant was lawfully sentenced.

No useful purpose would be served by reviewing here the testimony produced at the hearing on the petition. We have carefully examined all the evidence and it abundantly supports the findings of the court. The burden was upon appellant to establish some or all of the charges in his petition, and this he failed to do. By his own admissions on cross-examination the statements recited in his written confession were true. We shall consider, therefore, briefly the points suggested by counsel assigned by this court to prosecute the appeal.

It is first argued that "Under the facts presented to the original trial court, to the United States Attorney and to the appointed defense counsel, it does not appear that Early Maye had committed any crime."

In regard to this argument it will be observed that the hearing on habeas corpus is not a substitute for the functions of the trial court. Pelley v. Botkin, 80 U.S. App.D.C. 251, 152 F.2d 12. The question of guilt or innocence was not an issue at the hearing. The evidence introduced at the hearing was relevant to the issues presented by the petition for the writ of habeas corpus and only incidentally to the allegations of the indictment. The record does not purport to set out all the facts presented to or known by the United States Attorney, and we can not go outside the record for the facts. Conklin v. Cozart, Warden, 5 Cir., 158 F.2d 676. The plea of guilty admitted all the facts charged in the indictment. The appellant's constitutional rights only were involved in...