Plater v. Warden, Maryland House of Correction, 7679.

Decision Date05 December 1958
Docket NumberNo. 7679.,7679.
Citation261 F.2d 445
PartiesBenjamin F. PLATER, Appellant, v. WARDEN, MARYLAND HOUSE OF CORRECTION, Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

H. B. Mutter, Baltimore, Md. (Walter E. Black, Jr., Baltimore, Md., on the brief), Court appointed counsel, for appellant.

James H. Norris, Jr., Sp. Asst. Atty. Gen. of Maryland (C. Ferdinand Sybert, Atty. Gen. of Maryland, on the brief), for appellee.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

HAYNSWORTH, Circuit Judge.

After denial of his petition for a writ of habeas corpus, this prisoner, confined in a state institution, undertook an appeal to this Court without a certificate of probable cause. In accordance with our usual practice, we have reviewed the record and have considered the written and oral arguments of his court-appointed counsel to determine whether or not a Judge of this Court should issue the necessary certificate, and have concluded that the appeal is without merit and that the appeal should be dismissed for want of the certificate. Presley v. Peppersack, 4 Cir., 227 F.2d 325; Parker v. Warden, Maryland Penitentiary, 4 Cir., 198 F.2d 72; Tyson v. Swenson, 4 Cir., 198 F.2d 308; Hanson v. Warden, Maryland Penitentiary, 4 Cir., 198 F.2d 470; Hobbs v. Swenson, 4 Cir., 199 F.2d 268; Harris v. Swenson, 4 Cir., 199 F.2d 269; Cumberland v. Warden, Maryland Penitentiary, 4 Cir., 227 F.2d 310.

The prisoner's principal contention is asserted insufficiency of his representation by court-appointed counsel in the trial court. This contention was fully considered and effectively answered by the Court of Appeals of Maryland, which said in the course of its opinion in Plater v. Warden, 211 Md. 629, 126 A.2d 574, 575:

"We find no error in Judge Gray\'s action. The record shows that at the time of his arraignment the petitioner indicated that he desired to employ Mr. Freedman, who had previously represented him, and that he had talked to Mr. Freedman, but had been unable to get his mother to pay him a fee. The court indicated that he would appoint counsel, if advised promptly of his inability to raise a fee. When subsequently informed that the petitioner had been unable to obtain funds, the court appointed Mr. Freedman. The docket entries show that the appearance of Mr. Freedman was duly entered for the petitioner, and that a jury trial was waived in the petitioner\'s presence. The record does not show that the petitioner objected to the appointment of Mr. Freedman as his counsel, or made any other objection to his representation during the trial.
"The petitioner now claims that Mr. Freedman was disqualified to represent him, because of the prior employment by his co-defendant of which he was well aware. But we find no showing in this case that the interests were antagonistic. Upon petitioner\'s own statement of facts, he admits that he and Lester went to the residence of one Johnson to buy liquor; that he had had a previous controversy with Johnson over a sum of money he claimed had been taken from him on the premises, which Johnson had refused to repay; that he fired at least one shot from a pistol that he said belonged to Lester, not with intent to rob, but `to discourage an attack on his person\'; and that he took a bag containing money, which he claimed that Johnson had dropped on the floor. The petitioner took the stand but Lester did not. The damaging testimony, aside from his own admissions, came from Johnson, the State\'s witness. The petitioner was found guilty and Lester was acquitted.
"We think there is no
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7 cases
  • Holly v. Smyth
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • June 3, 1960
    ...and that determination will here govern the issuance of a certificate of probable cause by a judge of this court. See Plater v. Warden, 4 Cir., 1958, 261 F.2d 445. Since the petition was dismissed without a hearing, as failing to state grounds for relief, we must, for purposes of this appea......
  • Harvey v. State of South Carolina, Civ.A.No. 70-90
    • United States
    • U.S. District Court — District of South Carolina
    • March 12, 1970
    ...158 F.Supp. 946; United States ex rel. v. De Frates v. Ragen (7th Cir. 1950) 181 F.2d 1001. See also Plater v. Warden, Md. House of Correction (4th Cir. 1958) 261 F.2d 445. ...
  • Jordan v. Steiner
    • United States
    • U.S. District Court — District of Maryland
    • May 24, 1960
    ...727, 3 L.Ed.2d 679; Newsom v. Smyth, 4 Cir., 261 F.2d 452, certiorari denied 359 U.S. 969, 79 S.Ct. 883, 3 L.Ed. 2d 837; Plater v. Warden, 4 Cir., 261 F.2d 445; Johnson v. Tucker, 4 Cir., 249 F.2d 650; Presley v. Peppersack, 4 Cir., 227 F.2d 325; Cumberland v. Warden, 4 Cir., 227 F.2d Leave......
  • United States v. Langston
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • June 12, 1961
    ...counsel in their behalf—before, during, or after sentence—until motions to vacate were filed by each. See: Plater v. Warden, Maryland House of Correction, 4 Cir., 1958, 261 F.2d 445; United States v. McClellan, No facts are alleged which would tend to sustain the charge that the co-defendan......
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