Serviss v. Moseley, 553-69.

• Decision Date: 20 August 1970
• Docket Number: No. 553-69.,553-69.
• Citation: 430 F.2d 1287
• Parties: Charles M. SERVISS, Appellant, v. R. I. MOSELEY, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

430 F.2d 1287 (1970)

Charles M. SERVISS, Appellant, v. R. I. MOSELEY, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee.

No. 553-69.

United States Court of Appeals, Tenth Circuit.

August 20, 1970.

Maron L. Moses, Jr., Denver, Colo., for appellant.

Richard L. Meyer, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., with him on the brief), for appellee.

Before LEWIS, Chief Judge, JOHN R. BROWN, Chief Judge^*, and SETH, Circuit Judge.

PER CURIAM.

This is an appeal from a denial of appellant's petition for a writ of habeas corpus by the United States District Court for the District of Kansas after an evidentiary hearing.

In 1959 the appellant pled guilty to two counts of interstate transportation of forged securities and was sentenced to two concurrent ten year terms. On June 1, 1965, appellant received a mandatory release. One of the conditions of the mandatory release was that appellant report to his parole officer every thirty days. In January 1968 appellant made his report; the next report, which appellant failed to make, was due in February 1968. On January 29, 1968, the Missouri State authorities charged appellant with the crime of stealing by deceit. At about this same time appellant's parole officer was given information to the effect that appellant was unaccountably absent from home and employment. On the basis of this information and appellant's failure to report, the parole officer applied for a mandatory release violator's warrant on February 15, 1968, and it was granted.

Appellant, on February 15, 1968, was depressed by the fact that charges had been placed against him and by the possibility of his parole being revoked to the point that he took a quantity of pills in an attempt to commit suicide. He was hospitalized for a short time at a mental facility and released with the expectation by the hospital that he would be on outpatient status.

On February 16, 1968, the day he was released from the hospital, appellant called the parole officer and arrangements were made for him to surrender himself on the same day. Later that day the appellant did surrender himself and was taken into federal custody.

An issue of refusal to permit appellant to consult with an attorney was considered by the trial court at the hearing, and the court found that the appellant had requested permission on February 16, 1968, to consult with his attorney, who was representing him in a workmen's compensation case. The court also found that the appellant made similar requests on February 17 and 18, and that appellant's attorney had attempted to see him on the 20th, but was refused permission by the officers where appellant was being held. Appellant was seen by his attorney on the 21st.

The affidavit of appellant's attorney introduced at the hearing before the trial court states that he did not "counsel" with appellant until February 21, 1968; that he had attempted to see him on the 20th but was refused admittance, and "* * * that since it was necessary for this affiant to counsel with Charles M. Serviss regarding his Workmen's Compensation claim, a letter was mailed to Charles M. Serviss in the Jackson County jail * * * on February 20, 1968." The letter so sent was attached to the affidavit, and it refers only to the workmen's compensation claim then in process and some deed forms for his house. The letter closes with the following sentence:

"I am enclosing an envelope stamped for your immediate reply and although I will be coming up the confusion today makes me wonder about our jail. I was there at 9:30 and they said they had some disturbance sic and said come back in an hour or hour and half. Then at 11 they said I could not get in at all."

Appellant consulted with his attorney on the 21st...