Tinch v. United States
| Decision Date | 27 April 1971 |
| Docket Number | No. 18212.,18212. |
| Citation | 440 F.2d 312 |
| Parties | Omer G. TINCH, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert J. Konopa, Crumpacker, May, Levy & Searer, South Bend, Ind., for petitioner-appellant.
William C. Lee, U. S. Atty., John R. Wilks, Asst. U. S. Atty., Fort Wayne, Ind., for respondent-appellee.
Before SWYGERT, Chief Judge, KNOCH, Senior Circuit Judge and STEVENS, Circuit Judge.
Petitioner-appellant, Omer G. Tinch, has taken this appeal from denial (after an evidentiary hearing) of his motion, filed pursuant to Title 28 U.S.C. § 2255, to vacate or set aside his sentence on the ground that his plea of guilty to a violation of Title 18 U.S.C. § 2312 was involuntary.
On that plea, petitioner was sentenced August 8, 1969, to imprisonment for a period of three years.
In his motion, petitioner states that the U. S. Commissioner had advised him that he would not need the services of an attorney because he would receive probation in return for his co-operation in clearing up the case.
Petitioner also asserted that an FBI Agent had promised him he would recieve probation, and further that both his state parole officer and the federal probation officer promised him that a guilty plea to the Title 18 U.S.C. § 2312 charge would not be a violation of his then parole status.
Petitioner concluded, he relates, that the Court was informed of these promises and that he would receive probation. Hence he says he waived his right to counsel (although the District Court repeatedly suggested appointment of counsel) and waived trial.
We have carefully scrutinized the evidence adduced at the hearing on petitioner's motion, viewing that evidence as we must in the light favorable to sustaining the conviction, Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Spino, 7 Cir., 1965, 345 F.2d 372, cert. den. 382 U.S. 825, 86 S.Ct. 58, 15 L.Ed. 2d 70; we will not re-weigh the evidence and resolve anew credibility issues which were determined by the trier of the facts, United States v. Iacullo, 7 Cir., 1956, 226 F.2d 788, 795, cert. den. 350 U.S. 966, 76 S.Ct. 435, 100 L.Ed. 839.
The District Judge found that the clear weight of the evidence indicated no promise of probation was made to petitioner. We find no error in that determination.
However, petitioner contends that the District Court failed to apply the subjective test of whether, whatever the actual fact may have been, petitioner in good faith arrived at a reasonable belief that such a promise had been made on which he relied in his plea.
Petitioner stresses the fact that he acted without counsel. The District Court repeatedly suggested that counsel be appointed for petitioner. Petitioner repeatedly refused counsel. He refers to his lack of education, his limited experience with the law, the frequent discussions he and his wife had with the various officials respecting probation, and petitioner's own flight from the jurisdiction when he realized that he might not be given, probation, as all evidencing his state of mind.
However, the District Judge did find that the guilty plea was not in any way induced by promises of probation or other leniency. We see nothing in the colloquy at the time of sentencing to suggest that petitioner at that time had any such reasonable belief as he now describes. Even then, the Court reminded him that he had entered his plea without counsel and asked again whether he would now like to have counsel. Petitioner refused. He obviously hoped for probation and he asked for probation, but we see no error in the District Court's finding that he was not relying on any promises actually made or which he thought had been made.
The petitioner complains that the government failed to call the federal probation officer whose testimony at the evidentiary hearing might have cleared up some of the credibility issues. The District Judge, for example, indicated that he found the credibility of petitioner's state parole officer questionable.
Petitioner concedes that the burden was his to prove his case and not the government's to disprove it.
In oral argument counsel for petitioner stated that petitioner's own statements and those of his parole officer presented a prima facie case which it was incumbent on the government to rebut. It appears that the federal probation officer was equally available to be called as a witness by petitioner or the government. We see no prejudicial error in failing to call him.
The government contends that petitioner has untimely raised the issue of compliance with Criminal Rule 11 at the arraignment and sentencing, having failed to present it to the District Court.
Petitioner relied on Baker v. United States, 7 Cir., 1969, 407 F.2d 618, 620, in stating that he asserted his entire sentence was erroneous and thus laid the propriety and legality of the entire sentencing proceeding before the District Court.
Coyit Baker and his co-defendants were found guilty in a jury trial. After sentence, the government moved to vacate the sentence on the ground that...
To continue reading
Request your trial
-
State v. Johnson
...v. United States, 397 F.2d 16, 17 (6th Cir. 1968). (Emphasis added.) A post-McCarthy proceeding was considered in Tinch v. United States, 440 F.2d 312 (7th Cir. 1971), in which the accused was trying to have his plea of guilty set aside. After quoting Rule 11, the Court Our own reading of t......