Olson v. Tahash
| Decision Date | 06 April 1965 |
| Docket Number | No. 17904.,17904. |
| Citation | 344 F.2d 139 |
| Parties | Herman Evald OLSON, Appellant, v. Ralph H. TAHASH, Warden, Minnesota State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Herman Evald Olson, filed typewritten brief pro se.
Robert W. Mattson, Atty. Gen. of Minnesota, Charles E. Houston, Sp. Asst. Atty. Gen., St. Paul, Minn., filed typewritten brief for appellee.
Before VAN OOSTERHOUT and RIDGE, Circuit Judges, and HENLEY, District Judge.
This is an appeal by Herman Evald Olson, hereinafter called defendant, from order entered September 22, 1964, by the District Court denying his third petition for writ of habeas corpus filed August 20, 1964. The District Court denied defendant's motion for certificate of probable cause. We granted certificate of probable cause on December 16, 1964, and authorized defendant to proceed with this appeal in forma pauperis.
A brief summary of the events leading up to the present petition seems desirable. Defendant on December 4, 1958, represented by court-appointed counsel, pled guilty to two separate County Attorney's informations charging forgery in the second degree in violation of MSA § 620.10 before the District Court of Faribault County, Minnesota. He was sentenced to concurrent terms not exceeding ten years. Execution of the sentence was stayed, defendant being placed on probation. On March 19, 1959, the stay was revoked upon a finding of violation of the terms of probation and defendant is now serving the sentence imposed. No appeal was taken from the judgment of conviction.
Defendant thereafter applied to the State District Court for a writ of error coram nobis, which was denied. Upon appeal, the Supreme Court of Minnesota affirmed. State v. Olson, 265 Minn. 75, 120 N.W.2d 311. Such action was predicated upon alleged newly discovered evidence to show that the defendant was authorized to write the checks upon his father's bank account, which the informations charged he had forged. The court inter alia held such evidence was not newly discovered.
Petitioner then filed a petition for writ of habeas corpus in the Supreme Court of Minnesota alleging,
The petitioner also contended that the information was demurrable in that it stated that he uttered the checks while it then went on to charge that he violated MSA 620.10, said act constituting the crime of forgery in the second degree. Petitioner states that he was denied the assistance of competent counsel in that he was permitted to plead guilty to an information charging uttering when his plea only encompassed an admission of forgery and contended that he was allowed to plead guilty to a charge not made against him. The Supreme Court of Minnesota denied the writ in a memorandum order, stating:
."
The admissions referred to in the foregoing memorandum order appear in the transcript of the sentencing proceeding in the State District Court as follows:
In substance, the same question was asked and the same answer given relating to the second information.
State ex rel. Masters v. Tahash, 266 Minn. 348, 123 N.W.2d 600, relied upon by the Minnesota court in its memorandum, fully supports the result reached. That case is strikingly similar to our present case with respect to the form of the charging information. The court there states:
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