Palmentere v. United States
| Decision Date | 10 November 1972 |
| Docket Number | 20046-1,No. 19840-1,20065-1 and 20094-1.,19840-1 |
| Parties | Peter PALMENTERE, a/k/a Pete Palmentino, Petitioner, v. UNITED STATES of America, Respondent. Alex PRESTA, Petitioner, v. UNITED STATES of America, Respondent. Peter MANDACINA, a/k/a Charles Bivona, Petitioner, v. UNITED STATES of America, Respondent. Joseph MARLO, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Western District of Missouri |
Henry L. Graf, Charles C. Shafer, Jr., Howard Chamberlin, Robert J. Mann, Edward M. Tracewell, Kansas City, Mo., for petitioners.
Bert C. Hurn, U. S. Atty., Frederick O. Griffin, Jr., Asst. U. S. Atty., Kansas City, Mo., for respondent.
All four of these cases involve petitions for the writ of coram nobis, which attack various Prohibition Act sentences obtained in the 1920's and 1930's before the Supreme Court's 1938 decision in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Similar pretrial orders, designed to delineate any areas of relevant factual dispute, were entered in each case. By agreement of counsel, the cases were set for plenary evidentiary hearing to be held on the same day. The parties agreed that their argument of the legal questions presented and the Court's discussion of the cases upon which the respective parties relied would be on a consolidated basis and be considered as applicable to each of the four cases involved.
It is unnecessary to repeat our detailed discussion of all the cases made at the plenary evidentiary hearing. It is sufficient that we direct attention to Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), in which the Supreme Court on June 12, 1972, reiterated Sixth Amendment principles which have been firmly established for over forty years. After quoting extensively from Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Johnson v. Zerbst, supra; Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and In re Gault, 387 U.S. 1, 36, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), it was stated in Argersinger v. Hamlin that:
We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial. Ibid, 407 U.S. p. 37, 92 S.Ct. p. 2012
That case also concluded that:
Beyond the problem of trials and appeals is that of the guilty plea, . . . . Counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution. Ibid, p. 34, 92 S.Ct. p. 2011.
United States v. Morgan, 346 U. S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1953), upon which all parties rely, establishes each petitioner's present right to raise the question of whether at the time each of the respective Prohibition Act convictions involved in all four cases were obtained, he was (a) represented by counsel or (b) whether he made a knowing and intelligent waiver of counsel. Morgan held:
Under the rule of Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461, decided prior to respondent's conviction, a federal trial without competent and intelligent waiver of counsel bars a conviction of the accused. Where it cannot be deduced from the record whether counsel was properly waived, we think, no other remedy being then available and sound reasons existing for failure to seek appropriate earlier relief, this motion in the nature of the extraordinary writ of coram nobis must be heard by the federal trial court. Otherwise a wrong may stand uncorrected which the available remedy would right. Of course, the absence of a showing of waiver from the record does not of itself invalidate the judgment. It is presumed the proceedings were correct and the burden rests on the accused to show otherwise. Johnson v. Zerbst, supra, at 304 U.S. at page 468, 58 S.Ct. 1024; Adams v. U. S. ex rel. McCann, supra, 317 U.S. at page 281, 63 S.Ct. 281 87 L.Ed. 268; cf. Darr v. Burford, 339 U.S. 200, 218, 70 S.Ct. 587, 597 94 L.Ed. 761. Ibid, p. 512, 74 S.Ct., p. 253.
The specific citation to 304 U.S. page 468, 58 S.Ct. 1019 of the opinion of Johnson v. Zerbst is significant. For it was on that page of 304 U.S. that the nature and extent of the burden of proof which rested upon a habeas corpus petitioner was defined. Morgan, of course, recognized and established that the same rule was applicable to a coram nobis petitioner. On pages 468, 469 of 304 U.S., pages 1024, 1025 of 58 S.Ct. of Johnson v. Zerbst, Mr. Justice Black stated:
If the accused, . . . is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty . . . Where a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional right to assistance of Counsel. If in a habeas corpus hearing, he does meet this burden and convinces the court by a preponderance of evidence that he neither had counsel nor properly waived his constitutional right to counsel, it is the duty of the court to grant the writ. emphasis ours.
Johnson v. Zerbst also established the rule that "a waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." 304 U.S. at 464, 58 S.Ct. at 1023.
The government has suggested various conclusions of law which state generally and broadly that "It is presumed that the proceedings in petitioner's prior criminal trial were correct and proceeded with regularity" and to the effect that the "Petitioner bears the burden of proof on each ground presented in support of his petition, and petitioner has not sustained his burden of proof."
The recent Seventh Circuit case of Woods v. United States, (7 Cir., 1972) 457 F.2d 185, makes clear that the burden of proof principles applicable to an old state conviction obtained in violation of Gideon v. Wainwright is equally applicable to old federal convictions obtained in violation of Johnson v. Zerbst. Woods involved an application for writ of coram nobis which attacked a 1932 federal felony conviction obtained in the United States District Court for the Eastern District of Illinois. The record was silent in regard to whether the defendant had been represented by counsel. The petition alleged, as do the various coram nobis petitions in the four cases here involved, that the petitioner "was not . . . accorded counsel, and that he did not intelligently or otherwise waive that right." The District Court dismissed Woods' petition. The Court of Appeals reversed, holding that its recent decision in a coram nobis case involving a state conviction invalid under Gideon v. Wainwright was controlling. The decision referred to was United States v. Lufman, (7 Cir., 1972) 457 F. 2d 165, decided a month before Woods was decided. In Woods the Seventh Circuit quoted and applied the following language from its earlier opinion in Lufman:
Once a defendant raises the constitutional invalidity of a prior conviction, the government has the heavy burden of proving absence of a constitutional defect or waiver of rights. United States v. Du Shane, 435 F.2d 187, 189-190 (2nd Cir. 1970).
Specifically, that case held:
When the record of a prior conviction is silent as to the presence of counsel, it is presumed that the Sixth Amendment rights of the defendant have been violated. The government must affirmatively prove otherwise. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Burgett v. Texas, 389 U.S. 109, 114, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); Oswald v. Crouse, 420 F.2d 373 (10 Cir. 1969); Losieau v. Sigler, 406 F. 2d 795 (8 Cir. 1969). 457 F.2d at 186.
The language in which the Seventh Circuit stated the applicable rule, of course, was almost a paraphrase of the Eighth Circuit's statement of the same rule in Losieau v. Sigler, supra, 406 F.2d at 803. The rule was there stated by our controlling court as follows:
Where the record is silent as to whether an accused was furnished counsel at a critical stage and where the accused introduces evidence tending to show that he was not in fact so represented, the burden then shifts to the state to prove, by a fair preponderance of the evidence, that the accused was represented.
The Eighth Circuit recognized in Losieau v. Sigler that the rule we have just quoted is commanded by a fair reading of Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L.Ed.2d 319 (1967). The recent judgment of the Supreme Court in Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), which cites Losieau v. Sigler with approval, sustains the Eighth Circuit's reading of Burgett v. Texas.
For reasons which it fails to make apparent, the government cites and attempts to rely upon Loper v. Beto and the Supreme Court's per curiam opinion in Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971), to support the notion that the fact "Petitioner Marlo, age 13 at the time of the conviction involved has not demonstrated that he was without funds or otherwise unable to employ or retain counsel" requires that "we must assume that if he did not have counsel, it was by choice" and that petitioner Marlo therefore failed to sustain the burden of proof which the government insists applies in all habeas corpus and coram nobis cases in which the record is silent in regard to whether or not the particular petitioner was in fact represented by counsel.
In Burgett v. Texas it was noted and concluded that "in this case the certified records of the...
To continue reading
Request your trial
-
Mitchell v. United States, 72-3661.
...cert. denied 396 U.S. 988, 90 S.Ct. 475, 24 L.Ed.2d 452; Wilson v. Coiner, 4th Cir. 1968, 392 F.2d 210, 212-213; Palmentere v. United States, W.D.Mo.1972, 351 F.Supp. 167; see Craig v. Beto, 5th Cir., 1972, 458 F. 2d 1131; United States v. Wendt, N.D. Ga.1972, 347 F.Supp. 647. Conversely, i......
-
Smith v. Secretary of Navy, 19960-1.
...Anything less is not waiver. See also Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); and Palmentere v. United States, 351 F.Supp. 167 (W.D.Mo.1972), and cases cited In this case the government has stipulated that it has no evidence to produce on this issue. Waiver, if ......