Monsour v. Cady, Civ. A. No. 70-C-190.

• Decision Date: 31 May 1972
• Docket Number: Civ. A. No. 70-C-190.
• Parties: Robert J. MONSOUR, 8052A, Petitioner, v. Elmer O. CADY, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

342 F. Supp. 353

Robert J. MONSOUR, 8052A, Petitioner, v. Elmer O. CADY, Respondent.

Civ. A. No. 70-C-190.

United States District Court, E. D. Wisconsin.

May 31, 1972.

Theodore F. Zimmer, Milwaukee, Wis., for petitioner.

William A. Platz and Thomas J. Balistreri, Asst. Attys. Gen., Madison, Wis., for respondent.

OPINION AND ORDER

REYNOLDS, Chief Judge.

This is an application for writ of habeas corpus pursuant to Title 28 U.S.C. § 2241. A response was ordered from the respondent Elmer O. Cady. Counsel was appointed by the court to assist the petitioner in prosecuting his petition and a hearing on the petition was held, at which time I indicated that I would have to find against the petitioner. Herewith are my findings of fact, conclusions of law, and order.

On May 12, 1969, petitioner appeared in the County Court of Waukesha County, Wisconsin, and entered pleas of guilty to twelve charges pending against him. The charges had arisen in four different Wisconsin counties,^* and pursuant to petitioner's request, his attorney had asked the Waukesha district attorney to effect consolidation in accordance with Wis.Stats. § 956.01(13). The court accepted petitioner's pleas and on June 10, 1969, sentenced Monsour to a term of imprisonment not to exceed one year on each of the eleven offenses, and for the charge of aggravated battery from Shawano County, he received a five-year sentence. The court ordered that the eleven one-year sentences were to be served concurrently but with all of them to be served consecutively to the five-year sentence.

FACTS

On March 6, 1967, the petitioner, along with a Charles McCabe, were in downtown Shawano, Wisconsin. At approximately 10:00 P.M. the petitioner was placed under arrest by a Shawano police officer. The facts surrounding the arrest are unclear. Petitioner had attempted and did obtain narcotic drugs (morphine) from a Shawano pharmacy. At the time of his arrest, his companion's physical condition was such that the police removed him to the hospital. Petitioner was under the influence of morphine when he was brought to the Shawano County jail.

What occurred at the jail is under dispute. I find that the events unfolded in the following manner. Soon after arriving in the jail, petitioner began to experience severe discomfort out of his need for morphine, and under stress he reacted in a hysterical manner, destroying some of the fixtures in his cell. The police called a local doctor who refused to inject the morphine but did give a vial of morphine to the petitioner who self-injected it. Either while the petitioner was injecting himself or shortly thereafter, one of the police officers read petitioner the waiver of rights from an old alcohol influence form. Petitioner signed the waiver and gave a statement which one of the officers wrote up. The officer who wrote the statement testified that it did not contain petitioner's exact words but rather was his interpolation of them. For example, the officer who took the statement used the word "severely" as petitioner's description of the beating to McCabe; yet at the hearing held on July 1, 1971, the officer could not remember if the petitioner used this term to describe the beating. Both officers testified that right after injecting himself with the morphine, the petitioner went from a state of emotional frenzy to a state of calm alertness.

At the time of his Shawano arrest, petitioner was under conditional release status from the Winnebago State Hospital, Winnebago, Wisconsin. Shawano authorities returned him to the institution. For approximately the next two years, the Shawano charges remained pending while petitioner received treatment, both in and out of the Winnebago facility and finally at Central State Hospital, Waupun, Wisconsin. It was during this period of time that petitioner committed other crimes with which he was charged and which were ultimately consolidated in the Waukesha County proceedings of May 12, 1969.

During the period of time between his Shawano arrests and Attorney Patrick Snyder's appointment by the Waukesha County Court to represent petitioner, petitioner had been represented by two privately secured attorneys. With petitioner's knowledge the second of the two attorneys had entered into plea bargaining discussions with the Shawano authorities. Before Mr. Snyder represented him, petitioner had already signed an application for consolidation of the Shawano County and Waukesha County charges.

On April 10, 1969, when the Waukesha County Court was informed that the second of the two attorneys had withdrawn from the petitioner's case, Judge William G. Callow found the petitioner indigent and appointed Attorney Patrick Snyder of Oconomowoc to represent him. Mr. Snyder met with the petitioner four times for varying periods of time and appeared with petitioner at four court hearings. During the time between Mr. Snyder's appointment and his client's plea of guilty, petitioner had contacted the Shawano County district attorney regarding his consolidation efforts. The district attorney replied that if the petitioner would plead guilty to the aggravated battery charge and one of the three narcotics charges, he would dismiss the other two narcotics charges; otherwise he would prosecute on all four charges.

At his first meeting with Mr. Snyder, petitioner mentioned that he desired to consolidate the charges as he had started to do with his previous attorney. He indicated to Mr. Snyder his hope that he could be committed to the Federal Clinical Research Center at Lexington, Kentucky, for narcotic addicts in lieu of commitment to a state correctional institution. Between their first meeting on April 10 and through the sentencing on June 10, most of Mr. Snyder's energies, as petitioner's attorney, were directed toward finding out from the federal authorities the commitment procedure to Lexington and conferring with the state trial court to find a means for placing the petitioner on probation and subsequent referral to Lexington. As a result of Mr. Snyder's efforts on his behalf, petitioner's hopes of getting into Lexington were aroused, but neither Snyder nor the trial judge guaranteed or promised that upon pleading guilty to the consolidated charges petitioner would go to Lexington.

Although Mr. Snyder cautioned the petitioner against a hasty decision to consolidate, he only briefly investigated the factual basis of the non-Waukesha charges against the petitioner, particularly those which arose in Shawano County. Mr. Snyder did not discuss the difference in penalties between aggravated battery (Wis.Stats. § 940.22 (1967)) and battery (Wis.Stats. § 940.20 (1967)) or the fact that the only element differentiating the two crimes is the extent of harm to the victim. Neither did Mr. Snyder investigate the circumstances surrounding the petitioner's several arrests. Consequently, he did not discuss with the petitioner any possible defenses that he might have arising from police conduct and procedure at the time of petitioner's confession.

At the hearing itself on May 12, 1969, when petitioner pleaded guilty to the consolidated indictment of twelve charges, the trial court did not question petitioner as to any of the following matters: (1) petitioner's education and general comprehension, (2) petitioner's understanding of the nature of the crimes with which he was charged (except to ask "And you understand each of the charges?"), (3) petitioner's understanding of the range of punishment carried by the crimes charged, and (4) the conduct to which petitioner admitted by pleading guilty.

On September 26, 1967, Mr. James McDermott, the state public defender, was appointed by the Wisconsin Supreme Court to represent petitioner in his post-conviction proceedings. Between the day of his appointment and January 26, 1970, when he entered his "no merit report," Mr. McDermott corresponded extensively with the petitioner and studied the trial court record of the proceedings below. McDermott relied on the petitioner's statement of the facts in the various letters, and he limited his questions solely to information the petitioner provided. Petitioner described his version of the events that occurred on March 6, 1967, in a letter to Mr. McDermott dated December 11, 1969. In his testimony in this court, McDermott stated that in light of the petitioner's several convictions and petitioner's "waiver of constitutional rights taking place in the pre-plea setting" by his plea of guilty, he could not find merit in the petitioner's claims. Only after McDermott had prepared his no merit report did petitioner inform him that he believed his trial counsel was insufficient and that his mail from the prison was being censored. The petitioner could not remember what information he felt unable to communicate to McDermott due to his alleged fear of prison censorship.

On February 11, 1970, petitioner filed a pro se response to McDermott's no merit report. On March 4, 1970, the Wisconsin Supreme Court filed an unpublished opinion which concluded that petitioner's case was "wholly frivolous and without arguable merit" and dismissed McDermott from the case (unpublished opinion #70/53). Petitioner then filed a pro se motion with the Wisconsin Supreme Court asking to have another attorney appointed on his behalf. This motion was denied in an unpublished opinion on March 12, 1970.

ISSUES

In his application for writ of habeas corpus, petitioner raises the following three issues:

1. Whether petitioner's guilty plea to each charge was a knowing, intelligent, and voluntary act done with sufficient awareness of the circumstances as to constitute a valid waiver of his constitutional rights;

2. Whether petitioner's constitutional right to effective assistance of counsel at the trial court level was satisfied by Attorney Snyder's efforts in representing petitioner in this case; and

3. Whether petitioner's constitutional right to effective assistance of ...