Perry v. United States, Civ. A. No. 1676.
| Decision Date | 19 October 1962 |
| Docket Number | Civ. A. No. 1676. |
| Citation | 209 F. Supp. 691 |
| Parties | Ernest Hugh PERRY, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Western District of Arkansas |
Ernest Hugh Perry, plaintiff, per se.
None, for defendant.
On December 28, 1959, Ernest Hugh Perry appeared before the court in custody of the Marshal and was advised of the charges then pending against him and of his rights relative thereto. When asked if he desired the court to appoint counsel to represent him, he replied that he did, whereupon the court appointed Mr. J. Michael Shaw of Fort Smith, Arkansas, a competent and reputable member of the bar of the court to represent the defendant.
On December 30, 1959, the defendant and his attorney appeared in open court, and defendant was again fully advised of the nature of the charges and of his right to be prosecuted by indictment or to be prosecuted by information instead of indictment. Thereupon the defendant waived in writing prosecution by indictment and consented that the proceedings might be by information instead of indictment. An information was filed charging "That on or about October 13, 1959, in the Western District of Arkansas, Fort Smith Division, Ernest Hugh Perry, also known as Bob Perry and Ted Perry, did knowingly and with willful intent transport or cause to be transported in interstate commerce from Houston, Texas, to Fort Smith, Arkansas, a female person, namely Molly Margaret Marie Perry, for the purpose of prostitution, in violation of 18 U.S.C. 2421."
Upon the filing of the information, and being fully advised of the charges against him and the possible consequence of a plea of guilty or conviction, the defendant entered a plea of not guilty and the case was set for trial on January 13, 1960.
On January 12, 1960, the day prior to the trial date, the defendant and his attorney appeared in court, and the court was advised by the defendant and his attorney that he desired to withdraw a plea of not guilty and enter a plea of guilty, but the court refused to accept the plea of guilty because of the manner in which it was stated or entered by the defendant.
On the next day, January 13, 1960, the date that the case had been set for trial, the defendant, through his attorney, filed a petition to "quash the present panel of petit jurors so far as the trial of this defendant before them is concerned." The petition was filed for the reason that on January 12, 1960, when the defendant undertook to withdraw his prior plea of not guilty and enter a plea of guilty, the entire jury panel was seated in the court room, and because of that fact the court granted the petition of defendant and quashed the jury panel insofar as the trial of the defendant was concerned, and at the same time reset the case for trial on February 8, 1960, to a new panel of jurors.
On the same date, January 13, 1960, the defendant, through his attorney, filed a petition under Rule 17(b), Federal Rules of Criminal Procedure, requesting that a subpoena be issued for certain witnesses named in the petition, and that said witnesses be required to attend and testify on behalf of the defendant and that the cost of such subpoena and witness fees be paid by the Government. Upon investigation and consideration of the petition, the court on January 14, 1960, entered an order denying the same, and by letter of said date addressed to the attorney for the defendant stated in full its reasons for denying said petition, which letter is a part of the file in Criminal Action No. 5599, United States of America v. Ernest Hugh Perry.
The case proceeded to trial to a jury on February 8, 1960, and the jury returned a verdict finding the defendant guilty as charged in the information.
On February 12, 1960, the defendant was duly committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of two years.
On September 25, 1962, the Clerk of the Court received a document designated "Motion to Vacate Judgment and Hold the Sentence Imposed in the Above-Styled Case Void, Pursuant to Title 28, Section 2255, United States Code." Upon being advised of the receipt of said motion, the court on the same date entered an order directing that the motion be filed without prepayment of costs, and directed the Clerk to docket the motion as a civil action, which was done, and the matter is now before the court in Civil Action No. 1676, Ernest Hugh Perry v. United States of America.
This is the fourth motion filed by the defendant. The first was filed October 9, 1961, to modify the sentence that had been imposed on February 12, 1960. In that motion the plaintiff alleged:
He alleged the jurisdiction of the court to be based upon Rule 35, Federal Rules of Civil Procedure, and 28 U.S.C. § 2255, as well as upon 28 U.S.C. § 1651(a).
The court considered the motion, and on the same day, October 9, 1961, filed an opinion in the form of a letter addressed to the defendant in which the facts were reviewed, and in accordance with said letter opinion an order was entered denying the motion.
On November 18, 1961, the defendant forwarded to the Clerk another motion to set aside and vacate the sentence. Upon receipt of the motion the court ordered it filed without prepayment of costs. After considering the motion, the court on the same date addressed a letter to the defendant advising him of the action of the court and the reasons therefor. A copy of the letter was filed with the Clerk of the court, and in accordance therewith an order was entered overruling and denying the motion.
On November 28, 1961, the defendant filed his notice of appeal to the "United States Court of Appeals for the Fifth Circuit, New Orleans, La.," together with an affidavit in support of his application for leave to proceed without the payment of costs. On the date the notice of appeal and application to proceed without payment of costs were received, the court entered an order treating the notice of appeal as a notice of appeal to the United States Court of Appeals for the Eighth Circuit, and directed that the notice be filed without payment of costs, and further certified, pursuant to Section 1915 of Title 28 U.S.C., that in its opinion, "based upon the proceedings heretofore had and the reasons set forth in its letter opinion filed herein on November 18, 1961, said appeal is not taken in good faith." On December 8, 1961, the defendant filed his motion to require the Government to furnish all trial transcripts, minutes of all hearings, and all documents without prepayment of costs, and upon the filing of said motion, the court entered an order reiterating that it remained of the opinion as expressed in the order of November 28, 1961, that the appeal was not taken in good faith, but it ordered "that a transcript of all proceedings in this cause, except a transcript of the testimony, be furnished to the defendant without prepayment of costs," which was done. The appeal was considered by the United States Court of Appeals for the Eighth Circuit on January 8, 1962, and the order appealed from was affirmed. Perry v. United States, 8 Cir., 297 F.2d 100.
On July 30, 1962, the defendant wrote another letter to the Judge of this court protesting his innocence, which letter was delivered to the Clerk of the Court with instructions to file it without payment of costs. Whereupon the court proceeded to examine and consider the statements made in the letter, and on August 3, 1962, entered an order dismissing the petition (letter) for relief as being frivolous. On August 16, 1962, the defendant filed a notice of appeal. On the same date the court by order permitted the notice of appeal to be filed without payment of costs, but certified, pursuant to Section 1915 of Title 28 U.S.C., that in its opinion, "based upon the proceedings heretofore had and the reasons set forth in its letter opinions dated October 9, 1961, November 18, 1961, and August 3, 1962, said appeal is not taken in good faith." A certified copy of the notice of appeal and a certified copy of the relevant docket entries with copy of the order of August 16, 1962, were mailed to the Clerk of the Court of the United States Court of Appeals for the Eighth Circuit on August 16, 1962.
Before proceeding to further discuss the instant motion filed September 25, 1962, the court feels that it is justified in stating some facts pertaining to the prison record of the defendant and movant.
As heretofore stated, the defendant was sentenced to a term of two years on February 12, 1960. He was committed to the Federal Correctional Institution at Seagoville, Texas, on February 14, 1960. He escaped from the institution on August 24, 1960, and was not taken into custody as an escapee until February 23, 1961. Following his arrest as an escapee, he received a sentence of three years in the United States District Court for the Northern District of Texas, and on May 5, 1961, was committed under the latter sentence to the United States Penitentiary at Leavenworth, Kansas.
It will be noted that 182 days of the sentence imposed by this court were inoperative while he was an escapee. If he had not escaped from the Seagoville, Texas, institution, he would have been eligible for parole on October 28, 1961. If he had served his full sentence imposed by this court, his sentence would have expired on February 11, 1962.
Upon his commitment to Leavenworth, the sentence from the Federal Court in Dallas, Texas, and the sentence imposed by this court were aggregated, and at present his release date from the two sentences is May 27, 1964.
On the date of his escape he had served 6 months and 12 days of the two-year sentence. Had he been returned to prison on the date he was taken into custody, February 23, 1961, from his escape, he would have had 1...
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