Moses v. Hudspeth, 2521.
| Decision Date | 18 June 1942 |
| Docket Number | No. 2521.,2521. |
| Citation | 129 F.2d 279 |
| Parties | MOSES v. HUDSPETH, Warden. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Kenneth Jepson, of Denver, Colo., for appellant.
Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.
Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.
This is a proceeding in habeas corpus. Petitioner and another were indicted on two counts in the United States Court for Northern Ohio; the first count charged that they robbed the custodian of a United States Postal Station at Cleveland, Ohio, of certain money order funds and certain stamp funds belonging to the United States, and that in effecting such robbery they put the life of the custodian in jeopardy by the use of dangerous weapons; and the second count charged that they assaulted the custodian in charge of the funds, with the intent to rob, steal and purloin the property; petitioner pleaded guilty to both counts and was sentenced to a term of twenty-five years in the penitentiary; commitment issued; and petitioner was delivered to the warden of the penitentiary at Leavenworth, Kansas, for service of the sentence. By this proceeding in habeas corpus petitioner sought to effect his discharge from further confinement. The trial court denied the petition for the writ, and petitioner appealed.
As we understand the petition, it challenges in general language the legal sufficiency of the indictment in the criminal case. Each count of the indictment undertook to charge a separate offense under section 197 of the Criminal Code, 18 U.S. C.A. § 320. Where, as here, an indictment undertakes to charge a federal offense and the court has jurisdiction of the subject matter of such offense and of the person of the accused, the legal sufficiency of the indictment is not open to challenge in a proceeding in habeas corpus after conviction and sentence. Knight v. Hudspeth, 10 Cir., 112 F.2d 137, certiorari denied 311 U.S. 681, 61 S.Ct. 62, 85 L.Ed. 439.
It is urged that the sentence in the criminal case is void for the reason that petitioner was denied the assistance of counsel in that case. It is trite to say that the Sixth Amendment guarantees to one accused of an offense against the laws of the United States the assistance of counsel in his defense but that such right may be waived, provided it is done intelligently and understandingly; that the judgment and sentence in a criminal case bears the presumption of validity; that it is not to be lightly set aside on collateral attack in a habeas corpus proceeding on the ground that the accused was wrongfully denied the aid of counsel; and that in a case of this kind the petitioner must carry the heavy burden of affirmatively showing that his right to the assistance of counsel was denied him. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. Here petitioner failed to discharge that burden. The court below expressly found that before the plea of guilty was entered the court there inquired whether petitioner desired counsel to represent him; that he replied in the negative; that he was fully informed respecting the nature of the charges against him; that he freely,...
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