Merritt v. Hunter, 3706.
| Decision Date | 05 November 1948 |
| Docket Number | No. 3706.,3706. |
| Citation | 170 F.2d 739 |
| Parties | MERRITT v. HUNTER. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Samuel J. Frazin, of Denver, Colo., for appellant.
Eugene W. Davis, Asst. U. S. Atty., of Topeka, Kan. (Lester Luther, U. S. Atty., of Topeka, Kan., on the brief), for appellee.
Before PHILLIPS, Chief Judge, HUXMAN and MURRAH, Circuit Judges.
By this habeas corpus proceedings, petitioner seeks release from a four year sentence imposed in the United States District Court for the Western District of Missouri upon a plea of guilty to a violation of the Dyer Act, 18 U.S.C.A. § 408.1 As grounds for the writ petitioner alleges that when he appeared before the sentencing court he did not have "adequate" counsel; that he was not informed of the nature of the charge against him; and, that he was not given an opportunity to enter his own plea or make a statement in his behalf. Finding that petitioner failed to establish the truth of his allegations, the trial court denied the writ and this appeal followed.
Petitioner's testimony in support of his allegations is flagrantly inconsistent. He stated that he did not employ the counsel who appeared before the sentencing court, and then related the amount of fee he paid counsel. He stated that when he appeared before the sentencing court he did not know the nature of the charge against him. He later testified that when the federal warrant was issued for his arrest for a violation of the Dyer Act he was being held by state authorities under a fugitive warrant and he decided to plead to the federal charge to avoid prosecution under the Habitual Criminal Act of Missouri, Mo.R.S.A. § 4854, which carried a twenty-five year sentence. He also admitted that the Assistant United States Attorney read the charge in open court and in his presence. He further testified that he was not allowed to enter his own plea or make a statement in his behalf; that when a plea of guilty was entered by his counsel he remained silent only because he had been told if he did not the court would give him the maximum sentence. Yet he admitted having freely entered into a discussion of his former criminal record at the time sentence was imposed.
The transcript of proceedings in the sentencing court, which petitioner introduced in evidence and relied upon to substantiate his allegations, discloses that petitioner appeared in court with counsel; that counsel stated he represented the accused and was informed as to the nature of the charge in the pending indictment; that the accused desired to waive formal arraignment and enter a plea of guilty. Upon inquiry by the court the Assistant United States Attorney made an extensive statement as to the charge and informed the court that the defendant had signed a statement admitting a violation of the Dyer Act and wished to plead guilty. After all the facts were before the court and before sentence was imposed, counsel made a plea for leniency.
There is nothing in the entire record, or petitioner's own testimony which tends to show that he did not receive effective assistance of counsel throughout the proceedings. Moreover, "one who appears before the court with counsel employed for his defense is not deprived of his constitutional right to the assistance of counsel merely because in retrospection he concludes that such representation did not meet his standards of effectiveness." Moss v. Hunter, 10 Cir., 167 F.2d 683, 684. See also Ex parte Haumesch, 9 Cir., 82 F.2d 558; Crum v. Hunter, 10 Cir., 151 F. 2d 359; Shepherd v. Hunter, 10 Cir., 163 F.2d 872.
Petitioner's contention that he did not know the nature of the charge against him until after he had entered upon the service of his sentence is clearly refuted by his own testimony. Upon interrogation by the trial court he admitted that he understood the charge as explained by the Assistant United States Attorney in open court.
Due process does not require that one...
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