Scherk v. United States

• Decision Date: 28 May 1965
• Docket Number: No. 42523.,42523.
• Citation: 242 F. Supp. 445
• Parties: Peter S. SCHERK, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Northern District of California

242 F. Supp. 445

Peter S. SCHERK,¹ Petitioner, v. UNITED STATES of America, Respondent.

No. 42523.

United States District Court N. D. California, S. D.

May 28, 1965.

OLIVER J. CARTER, District Judge.

This is Scherk's third petition for relief under 28 U.S.C. § 2255 from a ten year prison sentence after his plea of guilty to a charge of armed bank robbery (18 U.S.C. § 2113(a) (d). The first motion was filed on October 19, 1959, in which petitioner sought to have the Court vacate and set aside his sentence for armed bank robbery upon the ground that he was mentally incompetent to enter a plea of guilty, and that he was under duress at the time of making said plea. The motion was dismissed without hearing upon the ground that the records and the files in the case conclusively showed that the petitioner was entitled to no relief. The Memorandum and Order of the Court is reported under the title United States v. Scherk, 177 F. Supp. 793 (D.C.N.D.Cal., S.D., 1959). Reference is made thereto for a more detailed statement of the record on arraignment, plea and judgment in the criminal proceedings. On May 13, 1960, petitioner filed his second motion for relief under 28 U.S.C. § 2255, on the ground of an unlawful arrest and search made without probable cause. Again the action was dismissed without hearing because the Court found in its unreported Memorandum and Order that, since the defendant was represented by counsel of his own choosing and the record showed that he had voluntarily entered a plea of guilty to the charge of armed bank robbery, he had waived his claims of violation of constitutional rights for illegal arrest and illegal search and seizure.

With this backdrop he now petitions this Court to vacate and set aside that sentence by a motion under 28 U.S.C. § 2255. As grounds for this motion he alleges that he did not have adequate assistance of counsel at the time of his plea. More specifically Scherk claims that his attorney failed to make an independent investigation of the facts, was unskilled in the practice of criminal law, especially federal criminal law, and advised Scherk to plead guilty solely on the basis of the recommendation of the United States Attorney. In repetition of claims made in his prior petitions, he further claims that he was illegally arrested by San Francisco police and handed over to federal authorities on a "silver platter;" and that there was undue delay between the time of his arrest and his appearance before a United States Commissioner.

As to the alleged undue delay between the petitioner's arrest and his arraignment before the United States Commissioner, the record shows that Scherk was arrested on Saturday, January 18, 1958 at 5:30 o'clock a. m., and that he was brought before the Commissioner on Monday, January 20, 1958. At the time of his arrest the office of the United States Commissioner closed at 5:00 o'clock p. m. on Friday and did not reopen until the following Monday, so that Scherk was brought before the Commissioner within a reasonable time under the circumstances, and therefore there was no undue delay.

Both the illegal arrest and the alleged illegal detention are matters of the arrest procedures. Irregularities in the arrest procedures are not subject to attack by a motion under § 2255 after a voluntary guilty plea. The proper manner in which to question these procedures is either by a motion before sentence, or on appeal. Warren v. United States, 311 F.2d 673 (Cir. 8, 1963); United States v. Koptic, 300 F.2d 19 (Cir. 7, 1962). Moreover in the present case no evidence at all was introduced by the prosecution. The sentence depended solely upon the plea of guilty entered by Scherk. Such a plea, if voluntarily and knowingly made, waives all non-jurisdictional defenses including illegal arrest and detention. Anderson v. United States, 338 F.2d 618 (Cir. 9, 1964); Harris v. United States, 338 F. 2d 75 (Cir. 9, 1964); Hoffman v. United States, 327 F.2d 489 (Cir. 9, 1964); Thomas v. United States, 290 F.2d 696, 697 (Cir. 9, 1961); Eberhart v. United States, 262 F.2d 421 (Cir. 9, 1958).

The claim of inadequate assistance of counsel presents a more serious problem. The courts do not lightly set aside a conviction or sentence on the grounds of inadequate assistance of counsel. Generally sentence will not be vacated on such grounds unless there is a clear showing that the attorney's conduct was so incompetent as to make the proceeding a farce. Black v. United States, 269 F.2d 38 (Cir. 9, 1958). In order to justify a hearing on such grounds the petition must set out a course of action on the part of counsel which would preclude a fair hearing, and make the resultant proceedings a mockery of justice. Edwards v. United States, 103 U.S.App.D.C. 152, 256 F.2d 707 (1958). Dodd v. United States, 321 F.2d 240 (Cir. 9, 1963) lists certain allegations which will not entitle a petitioner to a hearing in this District.

"Many of the grounds often asserted to sustain lack of effective assistance of counsel do not justify a hearing or entitle petitioner to relief. Of such character are contentions as to the `competence of counsel' (citation omitted); the `quality of a defense' (citation omitted); or `matters of counsel's judgment' (citations omitted); `general statements expressing dissatisfaction with trial results' (citation omitted), or `a matter of trial tactics or strategy' (citations omitted)." 321 F.2d at 243.

Despite the stringent requirements of Black v. United States, supra, it is still possible to allege sufficient specific claims of inadequate assistance to require a hearing, but the allegations of the petition must be viewed in the light of the type of proceeding which resulted in petitioner's sentence. What is a serious defect in a jury trial is not necessarily so where petitioner has pleaded guilty. Thus in Smith v. United States, 259 F.2d 125 (Cir. 9 1958) petitioner, convicted after trial in district court, claimed that his court appointed counsel was unfamiliar with federal criminal procedure and practice, inexperienced with criminal proceedings in general, and failed to make an adequate investigation of the facts and possible defenses. The district court dismissed the petition without a hearing. On appeal it was held that these allegations required a hearing.

Similarly in Brubaker v. Dickson, 310 F.2d 30 (Cir. 9 1962) in a petition for habeas corpus relief from sentence imposed by a state court after jury trial, petitioner alleged inadequate assistance of counsel in that his attorney failed to investigate, prepare and discover defenses. The court held that these allegations clearly stated facts which, if true, would amount to inadequate assistance. Also, since the claims were dehors the record, a hearing was required.

But both Smith and Brubaker involved actual trials and not pleas of guilty. In a trial accused, usually a layman, is almost totally dependent upon trial counsel to adequately present his version of the facts and whatever defenses he might have to the trier of fact. A plea of guilty however does not involve such extensive reliance on counsel. As stated in Edwards v. United States, 103 U.S.App.D.C. 152, 256 F.2d 707 (1958):

"* * * here there are not baffling complexities which require a lawyer for illumination; if voluntarily and understandingly made, even a layman should expect a plea of guilty to be treated as an honest confession of guilt and a waiver of all defenses known and unknown. And such is the law. A plea of guilty may not be withdrawn after sentence except to correct a `manifest injustice,' and we find it difficult to imagine how `manifest injustice' could be shown except by proof that the plea was not voluntarily or understandingly made, or a showing that defendant was ignorant of his right to counsel. Certainly ineffective assistance of counsel, as opposed to ignorance of the right to counsel, is immaterial in an attempt to impeach a plea of guilty, except perhaps to the extent that it bears on the issues of voluntariness and understanding." 256 F.2d at 709, 710 (Emphasis added).

The record in the Edwards case bears a strong resemblance to that in Scherk's case. There, as here, petitioner in his § 2255 petition claimed illegal arrest, illegal detention and inadequate assistance of counsel. There the petitioner alleged he had only one short conference with counsel twenty minutes before trial. There, as here, a plea of guilty was entered. There Judge Holtzoff dismissed the petition without a hearing. United States v. Edwards, 152 F.Supp. 179 (D.C. 1957)

"To permit unsupported statements of a layman, sometimes an ignorant layman, that his lawyer did not do a good job, to warrant a hearing to determine the efficiency of representation of counsel, would place every lawyer at the mercy of a disappointed client. * * *

"A single conference is, however, frequently enough. Lawyers, both those who are assigned by the court and those who have been retained, frequently advise their clients to plead guilty, if upon a scrutiny of the case they reach the conclusion that there is no defense. They do so in the hope of placing their clients in a better position to receive leniency, since the fact that the defendant pleads guilty is a consideration that the court frequently takes into account in the imposition of sentence. In this instance, there is no allegation that the defendant was innocent, or that he had any defense. It cannot be said that counsel's advice was unwise. A fortiori it cannot be successfully stated that the representation of counsel was so ineffective as to become a mockery and a farce." 152 F.Supp. 186 (Emphasis added).

In Scherk's case also there is no allegation of innocence, or of any defense. Here, too, then it would seem that counsel's advice was not unwise.

In this petition Scherk, having pleaded guilty, cannot now impeach that plea by claiming inadequate assistance of counsel unless he can show that it somehow affected...