Nivens v. Hudspeth, 1865.

• Citation: 105 F.2d 756
• Decision Date: 17 July 1939
• Docket Number: No. 1865.,1865.
• Parties: NIVENS v. HUDSPETH, Warden.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

105 F.2d 756 (1939)

NIVENS v. HUDSPETH, Warden.

No. 1865.

Circuit Court of Appeals, Tenth Circuit.

July 17, 1939.

Elmer Brock, Jr., 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 LEWIS, PHILLIPS, and BRATTON, Circuit Judges.

LEWIS, Circuit Judge.

This is an appeal from an order denying a petition for writ of habeas corpus.

On October 2, 1936, an indictment was returned against petitioner Nivens and James A. Lovvorn in the United States District Court for the Northern District of Texas containing four counts. The first three counts each charged them with passing counterfeited obligations of the United States, and the fourth count charged conspiracy to pass counterfeited obligations of the United States. Defendants were found guilty on all four counts, and were sentenced to serve a term of seven years on each of the first three counts and two years on the fourth count, sentences to run consecutively.

Petitioner attacks the validity of the judgment and sentence on the ground that he was denied the right to have the assistance of counsel for his defense. It is alleged in the petition that petitioner requested that counsel be appointed by the court but no counsel was provided as required by the Constitution of the United States, Amendment 6, U.S.C.A.; that the court, upon request of petitioner, designated W. E. Martin, an attorney of Abilene, Texas, who was representing the codefendant, James Lovvorn, but said Martin refused to represent petitioner and at no time represented him in the process of the trial. Petitioner set forth in his petition a copy of an affidavit by W. E. Martin as follows:

"This man (petitioner) was tried for the offense in connection with possessing and passing counterfeit money, October 14, 1936, at Abilene, jointly with one James Lovvorn.

"I was retained by, and represented Lovvorn, but I did not represent Nivens and took no part in his defense. Nivens interrogated, for himself, the witnesses at the trial. I do not recall if Nivens made an argument to the jury in his own behalf, but it occurs to me that he did.

"I made no argument in his behalf, except so far as a discussion of the evidence, some of which pertained to both defendants, was necessarily applicable to both defendants."

A copy of an affidavit by one W. J. Williams, a juror, is also set forth in the petition. He stated:

"Defendant Lovvorn was represented by W. E. Martin, an attorney of Abilene. Nivens conducted his own defense, interrogated for himself, the witnesses. The attorney representing Lovvorn took no part in the defense of Nivens, and made no argument in Nivens' behalf, except so far as his discussion of the evidence, some of which pertained to both defendants, was necessarily applicable to both defendants."

Three other affidavits were filed in this court by petitioner as exhibits to his brief, and they are not a part of the record. Two of the jurors state they did not hear petitioner request the court to appoint counsel for him. The third has no recollection as to that.

Petitioner was represented by an attorney at the hearing in the court below on his petition for writ of habeas corpus. Certified copies of the indictment, the judgment and sentence, the commitment with return of the Marshal, and affidavits by the judge who tried the case, the United States Attorney and his assistant were received in evidence without objection.

The United States Attorney for the Northern District of Texas stated in his affidavit that he participated in the trial of Nivens and Lovvorn on October 14, 1936, before Hon. T. Whitfield Davidson, United States District Judge, upon the indictment above described, which resulted in the conviction of both defendants on all counts; that some few minutes before this case was called for trial, he talked to the defendant, Claud Nivens, in his office in the federal building, Abilene, Texas.

"Affiant asked him if he had counsel; he said he did not; he said he did not wish any counsel. Defendant stated he was guilty, but that his codefendant, James A. Lovvorn, was not. * * * The case was called a few minutes later and both Lovvorn and Nivens entered a plea of not guilty. The Court asked the defendant Nivens if he had counsel, and he said he had none; whereupon the Court appointed Mr. W. E. Martin, attorney of Abilene, who was representing the codefendant, James A. Lovvorn, and the defendant Nivens announced that he did not want any counsel; that he would handle his own case. This defendant did conduct his own case and did a good job. He asked various questions and testified in his own behalf and in fact entered a plea of guilty when he got on the witness stand and attempted to assume all responsibility for his...