Reed v. United States
Decision Date | 16 December 1965 |
Docket Number | No. 22448.,22448. |
Citation | 354 F.2d 227 |
Parties | David Lincoln REED, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
David Lincoln Reed, in pro. per.
Stan McMurry, Asst. U. S. Atty., Dallas, Tex., Melvin M. Diggs, U. S. Atty., for appellee.
Before JONES, Senior Judge,* GEWIN and BELL, Circuit Judges.
Appellant contends that he did not voluntarily enter a plea of guilty with understanding of the nature of the charge against him. See Rule 11, F.R. Crim.P. The plea was entered on September 26, 1963 on an information charging him with transporting a stolen automobile in interstate commerce knowing the same to have been stolen, in violation of Title 18 U.S.C.A. § 2312. He also contends that he was denied the advice and assistance of counsel when he entered the plea.
His petition under 28 U.S.C.A. § 2255 was dismissed by the District Court without a hearing on the ground that it affirmatively appeared from the files and records of the case that appellant entered the plea voluntarily and with full understanding of the nature and consequences of the charges against him, and that he waived counsel when he entered the plea. The District Court was correct with respect to the contention that the plea was not entered voluntarily and with understanding of the nature of the charge. The same is not true however, as to waiver of counsel.
Rule 44, F.R.Crim.P., provides that "if the defendant appears in court without counsel, the court shall advise him of his right to counsel * * *". All that affirmatively appears from the files and records before us is that appellant was brought before the court by the United States Attorney who informed the court that appellant had indicated a desire to waive indictment, and enter a plea upon an information. Appellant then waived indictment both orally and in writing, and the information was read to him in open court. Thereupon the following transpired:
It is clear, absent additional proof, that no offer of counsel was made to appellant to advise with him prior to the entry of his plea. It is also clear that no offer of counsel for such purpose was made to him after the plea. The only offer made was of counsel for trial in the event he pleaded not guilty. This falls short of what is required under the Sixth Amendment to the Constitution and also of what is required under Rule 44.1 See Mills v. United States, 5 Cir., 1950, 185 F.2d 137. And it is settled that this right may be collaterally claimed in a § 2255 proceeding. Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; and see Sunal v. Large, 1947, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982, 1983, Fn. 8.
One of the most precious applications of the Sixth Amendment may well be in affording counsel to advise a defendant concerning whether he should enter a plea of guilty....
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