Shelton v. United States

• Decision Date: 03 April 1957
• Docket Number: No. 16354.,16354.
• Parties: J. Paul SHELTON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

242 F.2d 101 (1957)

J. Paul SHELTON, Appellant, v. UNITED STATES of America, Appellee.

No. 16354.

United States Court of Appeals Fifth Circuit.

February 27, 1957.

Petition for Rehearing Granted April 3, 1957.

J. Paul Shelton, in pro. per.

James W. Dorsey, U. S. Atty., Charles D. Read, Jr., Asst. U. S. Atty., Atlanta, Ga., for appellee.

Before RIVES, TUTTLE and BROWN, Circuit Judges.

Petition for Rehearing en Banc Granted April 3, 1957.

RIVES, Circuit Judge.

The appellant moved the court under 28 U.S.C.A. § 2255 to vacate a one year prison sentence imposed for violation of the Dyer Act, 18 U.S.C.A. § 2311 et seq., covering interstate transportation of a stolen motor vehicle. The motion was based on the ground that, without the assistance of counsel, the movant had entered a plea of guilty which was not in fact voluntary but was induced by various promises.¹ It alleged that the movant was not guilty of the offense charged, that he had gone through one trial on the charge before the same court which had resulted in a mistrial, and had consistently maintained his innocence.

An amendment to the motion alleged that the Government counsel had made additional promises,² that the movant would not have pleaded guilty had it not been for the aforementioned promises and inducements, charged in detail the respects in which it was claimed that Government counsel had not fulfilled his promises, and set forth an additional ground for relief.³

Upon the hearing on the motion, the movant testified at length in support of his averments. His testimony in part was that he had always maintained his innocence of the charge; he referred the court to the previous trial resulting in a mistrial, and testified,

"Your Honor wouldn\'t recall personally at this late date all that happened but in as much as part of my motion here is based on the fact I really am innocent of the charge, I would like to state this on the question of my guilt or innocence. The Government\'s charge was —

"Mr. Read: Your Honor, I would like to object to, and do object to any testimony along that line of his guilt or innocence. I believe from the law that is not an issue that can be brought in on the motion under 2255.

"The Court: No, Mr. Shelton, we can\'t retry the case, you appealed this case, did you not, to the Fifth Circuit Court? A. No, sir.

"The Court: You didn\'t? A. I will content myself with just saying that I wasn\'t guilty then.

"The Court: All right."

He further testified that the Assistant United States Attorney came to see him at the Federal Penitentiary while he was serving his previous sentence, and that they had the following conversation:

"I believe Mr. Breland was present part of the time, and Mr. Carter was present part of the time, the officials of the Penitentiary, and the conversation went something like this: `Now, hell, Shelton, you know we have got you on this, the first jury was going to convict you if we had not had a mistrial, so why don\'t you plead guilty and get this thing over,\' and I reaffirmed my innocence of the charge, and I expressed a firm belief I would be acquitted, either by Your Honor without a jury, or with a jury. I believe I somewhat taunted him for having refused to go to trial before Your Honor without a jury. I asked him what he was afraid of, did he think he could flimflam a jury better than he could Your Honor. That was said in a jocular vein, of course and he said, `Well, a jury will convict you, and if they don\'t convict you, you still will have to go down to Florida and be tried down there.\' Well, the thought that went through my head then, I had a terrible vision of spending months down in the Miami jail, and I had gotten fed up with these county jails, and the Penitentiary, relatively speaking, is a paradise compared to the county jail. Well, I could not recall every word that was spoken, but the substance of the conversation between Mr. Tysinger and myself was this: Mr. Tysinger stated if I could, would, come down here and plead guilty, he would guarantee a sentence of one year — he said not a year and a day, a year. And he further stated that he would get the Miami indictment disposed of, and it would not be necessary for me to go to Miami, and he pointed out to me, even though I would be acquitted here, and even though I would be acquitted in Miami, I still would have to spend several months in jail awaiting trial, fighting the case. So I asked, well I deliberated on his proposition, and eventually I told him after we discussed the matter there for perhaps half an hour or so, I told him, I said, very well, if you can guarantee a sentence of one year, and if you will guarantee the dismissal of the Miami charge, I will plead guilty. And he said he would come back down here, and he would get in touch with the various persons necessary, and if he was able to do what he thought he could do, he would have me brought down as soon as possible and I could enter a plea of guilty. And I told him, very well, but I at no time admitted to him I was guilty, but on the contrary, I at all times stated I was innocent of this charge, and if I went to trial I expected to be acquitted of this charge, but as a matter of expediency I would take him up on the proposition, to avoid going down to Miami, spending many, many months."

The movant was cross-examined at length as to whether the promises which had been made to him by Government counsel had actually been fulfilled, and insisted that some of such promises had not been carried out.

He further testified that with good time allowance he was due to be released in a little more than three months, and, if his motion were granted and he were re-tried on the charge, he would be subject to a maximum penalty of five years if convicted, but that he wanted to take that chance.

The Government then introduced as a witness, on the hearing of the motion, the former Assistant United States Attorney who had handled the case against the movant. He testified that he went to see the movant in the penitentiary and that the following occurred:

"* * * he stated he wanted to get all settled up, all straightened up with his law cases, and he wanted to dispose of them by withdrawing his petition for certiorari in the Supreme Court of the United States, one of them, and by dismissing the indictment, nol prossing the indictment, lifting the detainer in Miami, Southern District of Florida, I asked him what he proposed to do, and he said he would take, he would like to get a sentence of five years, including the four year sentence in New Orleans, or a year and a day in addition to it, and the main part of the conversation was about withdrawing his petition for certiorari to the Supreme Court of the United States, and the nol prossing of the Miami indictment, and lifting that detainer. Now, I told him I couldn\'t do anything but recommend to the court about these, but if he, this is after he had the mistrial here in this court, and the — we had spent thousands of dollars of United States money, and I was trying to prosecute on that mistrial. In order to expedite justice and save the Government money, I told him I would recommend a year and a day, or five years, to end forever the litigating action on the part of the petitioner, and that was understood, and I come back and I did recommend to His Honor, whereupon I proceeded immediately to call the Attorney General of the United States, criminal division, called Mr. Gilmartin, U. S. Attorney in Miami, and I talked to the Assistant U. S. Attorney on several occasions, each one of them, and there wasn\'t nothing intended to be promised him, just recommendations, but everybody agreed, and he was brought in here, and entered a plea of guilty, and His Honor sentenced him to a year and a day to follow the four year sentence in New Orleans."

He further testified at some length as to the carrying out of the various understandings with the movant. The former Assistant United States Attorney was cross-examined by movant at length as to the various promises and their fulfillment.⁴

The Government then introduced as a witness Mr. Samuel L. Carter, Record Clerk at the United States Penitentiary for the past fifteen years, who testified that the Assistant United States Attorney asked him to be present at his conversation with the movant preceding movant's plea of guilty. He then testified:

"Q. All right, sir. Now, in that interview, Mr. Carter, will you tell us as briefly as possible, what the substance of the conversation was between Mr. Tysinger, and the movant, with relation to the disposition of this case on the matters that were brought up? A. Yes, sir. As well as I can, I will. Mr. Shelton had a sentence at that time of four years. He had been committed to Atlanta. He had a pending case in this court, and he had a pending case in the Southern District of Florida. And there were possibly cases at St. Louis, and I believe El Paso, Texas. And he stated that he was a little worried about the case in Florida. He didn\'t seem to be worried too much about the other cases, and that he wanted to dispose of it. And of course the case here in Georgia was a (sic) in the Northern District of Georgia was the first case to be disposed of. And I don\'t know how the agreement was arrived at, it seemed to me like it was mutually acceptable. Judge Tysinger, rather Mr. Tysinger, said he would use his good offices and recommendations that the Court give him one year, if he would plead guilty to this case on the Northern District of Georgia, that he would endeavor to get all the pending indictments, and the pending cases disposed of. And that in return Shelton would plead guilty up here in the, in this court, to the offense, and he would drop all his litigation. He had an appeal pending at that time, among other things, and he was going to drop all his pending litigation, and he would go ahead and serve the five years which would be the then total, and that

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