Smith v. United States, Civ. A. No. 1137-N.

• Citation: 137 F. Supp. 222
• Decision Date: 10 January 1956
• Docket Number: Civ. A. No. 1137-N.
• Parties: Johnny Ray SMITH v. UNITED STATES of America.
• Court: U.S. District Court — Middle District of Alabama

137 F. Supp. 222

Johnny Ray SMITH v. UNITED STATES of America.

Civ. A. No. 1137-N.

United States District Court M. D. Alabama, N. D.

January 10, 1956.

Hartwell Davis, Robert Varner, and Ralph Daughtry, Montgomery, Ala., for the Government.

William B. Moore, Jr., Montgomery, Ala., for movant Smith.

JOHNSON, District Judge.

The above-styled cause was heard by the Court on the issues as reflected by the pleadings and the proof, beginning December 19, 1955, the evidence consisting of the oral testimony of several witnesses, the exhibits presented, both by the movant and the Government, depositions, and various stipulations of the parties which were dictated into the record. This cause arose from the filing of a motion in the United States District Court for the Middle District of Alabama by Johnny Ray Smith under Section 2255, Title 28 of the United States Code; said motion contains many allegations designed to secure a hearing under said section in order to obtain relief from a sentence of thirty years, which was imposed by this Court on the 21st day of November, 1949, this sentence being imposed upon a plea of guilty entered by Johnny Ray Smith in open court to a charge of violating Section 1201(a) of Title 18 of the United States Code. Prosecution was by information filed by the United States Attorney and will hereinafter be fully set out. This motion was filed and this Court declined to entertain the motion. An appeal was taken and the Court of Appeals for this Circuit reversed the action of the District Court and remanded the cause for this hearing, which was held as directed.¹

On September 7, 1955, the Honorable William B. Moore, Jr., was appointed as attorney to represent movant in this cause. This appointment was accepted and movant was fairly and conscientiously represented. On November 15, 1955, this Court ordered movant brought from Alcatraz to Montgomery, Alabama, for the purpose of consulting with his attorney and assisting in the preparation for the hearing; said hearing on this motion was set to be heard December 5, 1955. At the request of movant, the matter was continued until December 19, 1955. The processes of the Court were accorded movant whenever requested, and many witnesses were subpoenaed by movant at the expense of the Government.

Over the objection of the Government, the Court permitted an amendment to the motion, said amendment having been filed and made a part of the record in this cause on December 9, 1955. The pertinent portions of the motion and the amendment thereto are:

"One — Petitioner had been seriously injured before and at the immediate time of his apprehension. Suffering from serious bodily injuries, weak from a heavy loss of blood, sick with influenza, feverish to the point of deliriousness, and being in physical pain, and under mental stress, your petitioner was not in fit or proper physical or mental condition to face or stand judicial proceedings liable to cost forfeit of his life. The facts shown that your petitioner was apprehended four (4) days after the offense with which he was charged had been committed. Petitioner was taken into Court sixty eight (68) hours after his arrest. Petitioner was denied medical treatment for his obvious illness, and injuries, and, on request was flatly refused the undoubted right granted him by the Constitution to contact with an attorney of law, or have any visits from family or friends, petitioner was held in solitary confinment without clothing, was allowed only one thin blanket to keep warm in the unheated cell, petitioner was brusquely informed that his sole and hole chance to ever again see the light of day, was to tell the Court that he the petitioner didn't want any lawyer, wanted to plead guilty to the charge. Further, your petitioner was flatly informed that the judge would ask him if he had been coerced, or threatened to do any of the above, and that his best out was to answer in the negative.

"The minutes of the proceedings had shown the foregoing, however, a search for truth by this court would destroy the technical usefullness of the minutes, as they are based on fear, violence and coercive practices.

"In the case at bar, your petitioner had been browbeaten and frightened into entering a plea of guilty to a crime that he did not commit. Your petitioner was told that he would receive the death penalty unless he entered a plea of guilty, that the only possible way he could avoid the death penalty, that the only out for him, was to enter a plea of guilty. Your petitioner a poorly educated farm boy did not have any knowledge of law and did not know that the death penalty could not be imposed in his case was put in mortal fear of his life before he agreed to enter a plea of guilty.

"Your petitioner was told that the Court could not impose the death penalty unless your petitioner went to trial, and was found guilty by a jury.

"Your petitioner believing that his life was in danger of being forfeited, agreed to follow instructions and enter a plea of guilty, waive indictment and counsel.

* * * * *

"Your petitioner was told that his two co-defendants would receive light sentences that would not exceed four years each or untill they were of twenty one years age and that your petitioner would receive a similar sentence.

"Your petitioner, while in a groggy and befuddled mental condition, weak from his illness and injuries, was taken unfair advantage of, was deprived of his constitutional rights through trickery and fraud. A search for truth by this Court would confirm your petitioners allegations. Your petitioner did not intelligently waive Constitutional rights to counsel, but to the contrary, your petitioner was tricked into waiving his every constitutional right.

"Two — The supersonic speed and rapidity of the proceedings had, clearly shown a desire on the part of the arresting officers and the prosecutor to make away with petitioner before his recovery from the pain and shock of his injuries and illness would require a careful handling of the case. As it was, the Court in belief that justice was being done, went through the cold formalities of the law, and in so doing, may have provided a legal record, but said record is a fraudulent one when persued to the facts now shown therein, but as herein averred.

"Three — Prior to petitioner's plea of guilty in open court, an agent of the Federal Bureau of Investigation, entered the trial Judge's private chambers, and thereupon told the trial judge that your petitioner had committed a number of crimes which had never been tested in a court of law, and that petitioner had admitted committing said crimes, had made an oral statement to that effect, said agent in question was John W. Lill, the Investigative agent in the case at bar.

"The crimes, agent Lill, told the Court that petitioner had committed was the (1) attempted murder of an officer of the law, to wit one Bill Gilbert, a deputy sheriff at Panama City, Florida. (2) Burglary, of a Mr. Lemmon's home near Blontstown, Florida. (3) Stealing and transporting stolen fire-arms across a state line. (4) Stealing and transporting an automobile across a state line."

* * * * *

"Your petitioner was overreached, taken advantaged of by these inchambers and secret accusations by agent John W. Lill. Your petitioner did not have knowledge of these false and prejudicial accusations at the time he entered his plea in open Court nor was your petitioner granted the right to defend himself against their highly prejudicial effect upon the Court.

"Agent John W. Lill's sole purpose for appearing against your petitioner in a private inchambers session, was to prejudice the Court against your petitioner with false testimony.

"The submitting of the false, untested crimes to the trial Judge behind closed doors, was sanctioned by Assistant United States Attorney Hartwell Davis.

"Agent John W. Lill, and Assistant United States Attorney Hartwell Davis, conspired together to the prejudice of your uncounseled petitioner."

* * * * *

"He was charged with a capital felony punishable by death.

"Rule 7a, Federal Rules Criminal Proceedure 18 U.S.C.A., `An offense which may be punishable by death shall be prosecuted by indictment'.

"Your Petitioner could not waive the right to be indicted.

"Your Petitioner has never been indicted in this case."

The issues, simply stated, were as follows:

(1) Was the sentence imposed upon movant by this Court on November 21, 1949, lacking in due process within the meaning of the Fifth Amendment because of the agent of the Federal Bureau of Investigation giving "false" information as it related to the previous criminal record of the movant, which information was communicated to the Court prior to the time the plea of guilty was entered to the criminal charge. In order to determine this question, it was necessary to determine (a) what, if anything, did the agent of the Federal Bureau of Investigation tell the sentencing Court, and (b) the truth or falsity of that information.

(2) Whether movant's physical or mental condition, or both, at the time he appeared for sentencing before the Court was such that he was able to make an intelligent waiver as to counsel, as to venue, and as to indictment.

(3) Whether or not the defendant was charged with a capital offense, and, if so, can he now question the fact that the case was presented by information rather than by indictment.

It is necessary in order to fully understand what transpired in open court prior to and at the time movant was sentenced on November 21, 1949, to refer to that portion of the record.²

Briefly stated, the evidence presented in support of and in opposition to this motion by stipulation, deposition, the record, and oral testimony shows that Johnny Ray Smith broke out of jail in the State of Florida on or about the 12th day of November, 1949, and, in breaking out, fell to the ground, injured his head and back; that he and his two companions, who were codefendants...