Stidham v. Swope, 28654H.

• Decision Date: 28 February 1949
• Docket Number: No. 28654H.,28654H.
• Court: U.S. District Court — Central District of California
• Parties: STIDHAM v. SWOPE, Warden.

82 F. Supp. 931

STIDHAM v. SWOPE, Warden.

No. 28654H.

United States District Court D. California.

February 28, 1949.

James William Stidham, in pro. per.

DENMAN, Chief Judge.

Stidham has presented to me his verified petition for a writ of habeas corpus. The petition alleges that he was persuaded to waive counsel and to plead guilty to an indictment by the federal grand jury of the Western District of Missouri, charging him with transporting a stolen automobile from Birmingham, Alabama, to Kansas City, Missouri, knowing it to be stolen. It alleges that he so was persuaded upon representation by the counsel for the government that he would receive a very lenient sentence, not to exceed 18 months' imprisonment; that the district court on July 1, 1947, sentenced him to four years' imprisonment; that he then and there, before the judgment sentencing him was entered, immediately moved for the appointment of counsel and that instead of appointing one the court thereupon set aside the four year sentence and imposed one for five years, stating: "Let the record show that the sentence heretofore pronounced will be set aside and the defendant is sentenced to five years in the custody of the Attorney General."

The allegations further are that later, on the same day, July 1, 1947, the petitioner prepared a notice of appeal which he mailed to the prosecuting attorney for filing; that the prosecuting attorney, though having advised him to waive counsel, failed to file the notice of appeal but kept it until after the time for appeal had expired and on July 17th advised petitioner he had no right of appeal.

It is clear that the allegations of the petition show a denial by the court of the right of representation by counsel at the very moment before the amending of the sentence from four to five years was rendered, when counsel was most needed. Wilfong v. Johnston, 9 Cir., 156 F.2d 507, 510, in which we cited the following language from Batson v. United States, 10 Cir., 137 F.2d 288, 289: "We believe that an accused should have the opportunity to be heard by counsel on the sentence to be imposed, and that a court should not impose sentence in the absence of counsel without expressly ascertaining that a defendant does not desire his presence. Many considerations influence the length of a sentence which is to be imposed, and a defendant should have the opportunity to have his attorney present any mitigating circumstances to the court for its consideration in determining the weight of the sentence."

Here, in addition, the allegation is that the prosecuting attorney, having persuaded petitioner to waive counsel and knowing he had none, failed to file petitioner's notice of appeal upon which appeal he could have urged as error the failure to appoint counsel before the five year sentence was rendered. Such deprivation of an appeal by the prosecuting officer also clearly warrants the issuance of the writ. Von Moltke v. Gillies, 332 U.S. 708, 725, 68 S.Ct. 316.

Petitioner now seeks to file an amended petition purporting to set forth that he has complied with the provisions of 28 U. S.C.A. § 2255, 28 U.S.C.A. § 2255. This section provides a complicated and time consuming condition precedent to the filing of a petition for a writ of habeas corpus. It requires a motion to the sentencing court upon which are to be litigated the issues which may be later presented to the judge or court by the petition for the writ. Either party may appeal from the decision on the motion.

This procedure by motion does not purport to be a substitute for the writ, since the party is not required to be produced before the sentencing court, and he can be transported and appear there as party and as witness only by the exercise of the judicial discretion of that court.

The last sentence of section 2255 provides that the court or judge receiving a petition for the writ need not require the performance of such a condition precedent to its entertainment if "it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention."

Here the petitioner is in Alcatraz Penitentiary upwards of 1,500 miles from the sentencing court. If petitioner be taken there, it will be with two guards from whom time consuming arrangements must be made. When they are provided there must be railroad reservations. It well could be two weeks before petitioner is in jail in Missouri. There must be found an attorney who must study the law and facts and prepare petitioner's motion, then a hearing with the petitioner and other witnesses...