Scott v. Johnston

• Decision Date: 01 April 1947
• Docket Number: No. 26344-S.,26344-S.
• Citation: 71 F. Supp. 117
• Court: U.S. District Court — Northern District of California
• Parties: SCOTT v. JOHNSTON, Warden.

71 F. Supp. 117

SCOTT v.JOHNSTON, Warden.

No. 26344-S.

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

April 1, 1947.

George V. Curtis, of San Francisco, Cal., for petitioner Scott.

Frank J. Hennessy, U.S. Atty., and Joseph Karesh, Asst. U. S. Atty., both of San Francisco, Cal., for respondent.

HARRIS, District Judge.

The petitioner, James Moore Scott, confined in Alcatraz Penitentiary, has filed a petition for writ of habeas corpus herein and, after the lapse of approximately nine years, attack is now made upon the judgment and sentence imposed by the United States District Court, Eastern District of Arkansas, Northern Division, for the violation of Title 18 U.S.C.A. § 320.The indictment, framed in two counts, charged Thedora Hutson and petitioner with the armed robbery of a post office, the assault of the Postmaster, and the theft of postal funds.

A rule to show cause issued based upon said petition and a return made thereto; traverse thereafter was filed by petitioner to the writ, an issue of fact having been created Hon. A. F. St. Sure issued the writ.Petitioner was produced before the Court, and counsel was appointed to represent him.After partial hearing of the matter by Judge St. Sure it was stipulated that this Court hear and finally determine the cause.

The several grounds urged are: (1)Petitioner was sentenced to a term of twenty-five years imprisonment for armed post office robbery without entry of a plea; (2)He was deprived of his Constitutional right of assistance of counsel, as contemplated by the Supreme Court of the United States in Johnston v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed 1461.

The pattern of petitioner's criminal career is reflected in his testimony: His first conviction occurred in 1927 for stealing a calf; he entered a plea of guilty and served two years in McAlester, Oklahoma.Thereafter, in 1930, he was convicted of burglary, after entering a plea of guilty, and served a seven year sentence in an Oklahoma Penitentiary.He was represented by counsel at the time of trial.During his term in the penitentiary he escaped, but after a period of eight months he was apprehended and finished his term.

In 1934he was convicted in Missouri for carrying concealed weapons.During the course of the trial, and while represented by counsel, he changed his plea to guilty.He served two years on this latter charge.

The next encounter with the law was his arrest at Newport, Arkansas, on the 4th day of July, 1937, which resulted in the judgment and sentence now under attack.

Petitioner's first contention that he was sentenced without the entry of a plea is not substantiated by the record, and the evidence which he offered is not worthy of belief.This Court, in weighing the testimony, has the right to consider the petitioner's ripe experience in criminal matters, together with his credibility as a witness.Alexander v. Johnston, 9 Cir., 137 F.2d 712, 713;O'Keith v. Johnston, 9 Cir., 129 F.2d 889, 891.

It is to be noted that the judgment, sentence and warrant of commitment (Respondent's Exhibit B) states in pertinent part:

"* * * and comes the defendant to the bar of the court in the custody of the Marshal and being advised concerning the nature of the indictment against him herein and being demanded how he will acquit himself thereof saith that he cannot deny but that he is guilty as charged and puts himself upon the mercy of the court."

Respondent relies on the written record that the petitioner entered a plea of guilty, as against the unsupported allegation of the petitioner, a convicted felon, that no plea whatsover was entered.In Bennett v. Hunter, 10 Cir., 155 F.2d 223, 225, it was said:

"In the absence of a showing of fraud, a judgment imports verity and its recitals may not be challenged in a collateral proceeding by parol testimony.Thomas v. Hunter, 10 Cir., 153 F.2d 834."

To the same effect, Cochran v. State of Kansas, 316 U.S. 255, 256, 62 S.Ct. 1068, 86 L.Ed 1453;Riddle v. Dyche, 262 U.S. 333, 43 S.Ct. 555, 556, 67 L.Ed 1009.

Apart from the foregoing recitals in the judgment, it appears from the testimony of Postal Inspector White, called by respondent, that petitioner upon his arrest, although declining to make a written statement, never denied active participation in the robbery.In effect, he admitted his guilt, and participation with Hutson, a youth of the age of twenty-one with no prior criminal record, who implicated petitioner as the prime actor in the perpetration of the felony, as it appears in a confession obtained by White.Although White could not recall all of the details surrounding the court proceedings, having participated in many cases during the intervening years, it is manifest that his recollection was sufficiently clear with respect to the entry of the plea of guilty by petitioner.Scott's testimony that both he and Hutson were sentenced by the trial court without entering a plea¹ is patently incredible, and in direct conflict with the testimony of Attorney Wiley Smith.²

The written record alluded to must, therefore, prevail as against the unsupported testimony of petitioner seeking to attack its verity, and accordingly this Court finds that Scott did, on the 13th day of December, 1937, enter a plea of guilty.³

The second ground urged by petitioner that he was deprived of assistance of counsel is equally without merit.The respondent offered, and there were received in evidence, affidavits sworn to by the Hon. Thomas C. Trimble, Jr., who presided at the time the petitioner appeared in court for trial, as well as an affidavit of Charles S. Harley, secretary and court reporter for the Judge.Both Judge Trimble andthe Court reporter, although admitting no personal recollection of the particular arraignment, plea and sentence of the petitioner Scott, alleged that it was the invariable custom of the Court to ask each defendant at the outset of a case if he had a lawyer.If he had not, the Court then asked him if he desired to have the Court appoint a lawyer for him.Furthermore, and as an additional safeguard for a defendant, the Court invariably appointed a lawyer to advise defendant, whether he requested such appointment or not, in all cases in which a defendant appeared doubtful as to his rights or his understanding of court procedure.On arraignment day it was, and is the custom of the Court to have lawyers available to assist in defending the impecunious and poorly educated defendant or to explain Constitutional rights to him.Thus it would appear from the assertions made in these affidavits that petitioner was given the opportunity of having counsel represent him.

The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case upon the particular facts and circumstances surrounding the case, including the background, experience and conduct of the accused, and on this hearing petitioner has the burden of sustaining his allegations by a preponderance of the evidence.

At the time of the instant judgment and sentence it appears that no provision was made for official court reporters, and that a formal transcript of the proceedings is not available.Under the circumstances the customary procedure invoked by the trial judge, and confirmed by the court reporter, must be given due consideration in weighing the evidence in the light of all of the surrounding circumstances in determining whether or not petitioner has discharged the burden of proof that he did not competently and intelligently waive his Constitutional right of assistance of counsel.⁴

In the well considered case of Dorsey v. Gill, App.D.C., 148 F.2d 857, 874, the Court used this appropriate language:

"The dangerous possibilities of a too-liberal use of the writ for review purposes are emphasized by the fact that — unlike most of the state courts — no provision is made for official court reporters in federal trial courts and few transcripts are...