United States ex rel. Condon v. Erickson, No. 71-1518.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtMATTHES, , and LAY and ROSS, Circuit
Citation459 F.2d 663
PartiesUNITED STATES of America ex rel. Tilden Louis CONDON, Plaintiff and Appellant, v. Don R. ERICKSON, Warden of the South Dakota State Penitentiary, Defendant and Appellee.
Decision Date13 April 1972
Docket NumberNo. 71-1518.

459 F.2d 663 (1972)

UNITED STATES of America ex rel. Tilden Louis CONDON, Plaintiff and Appellant,
v.
Don R. ERICKSON, Warden of the South Dakota State Penitentiary, Defendant and Appellee.

No. 71-1518.

United States Court of Appeals, Eighth Circuit.

Submitted February 18, 1972.

Decided April 13, 1972.


459 F.2d 664

John Simko, Sioux Falls, S. D., for appellant.

William J. Srstka, Jr., Asst. Atty. Gen., Pierre, S. D., for appellee; Gordon Mydland, Atty. Gen., Roger A. Schiager, Special Asst. Atty. Gen., Sioux Falls, S. D., on the brief.

Before MATTHES, Chief Judge, and LAY and ROSS, Circuit Judges.

ROSS, Circuit Judge.

This is an appeal from the denial of habeas corpus relief in an action brought under 28 U.S.C. § 2254 by Tilden Louis Condon against Don R. Erickson, Warden of the South Dakota State Penitentiary. We reverse and remand with directions to hold an evidentiary hearing.

On November 2, 1964, Condon was serving a tribal sentence for public intoxication in Eagle Butte, South Dakota. He was allowed to leave jail that afternoon to keep an appointment with a doctor but did not return to the jail until he was arrested by tribal police in a bar at about 7:30 p. m. That evening he was questioned by an officer from the Bureau of Indian Affairs concerning an alleged rape which took place that afternoon, and the following day, he signed written statements pertaining to that crime. Thereafter, he was identified by the victim as the perpetrator of the crime.

Condon was held in the tribal jail on the public intoxication charge until November 12, 1964, when he was arrested on federal charges of first degree rape. He was held in federal custody until April 16, 1965, at which time he was arrested on state charges of first degree rape. An attorney was appointed for him by the state court on the same day. A motion to dismiss was filed on April 20, 1965, on the ground that the alleged rape took place in "Indian country," thus depriving the state of jurisdiction; but this motion was denied on May 4, 1965, at which time Condon entered a plea of not guilty. The federal grand jury indictment was dismissed on May 25, 1965. On August 12, 1965, Condon withdrew his not guilty plea and pleaded guilty in the state court. He was sentenced to fifteen years.

Upon being denied post-conviction relief in the South Dakota courts, State ex rel. Condon v. Erickson, 182 N.W.2d 304 (S.D.1970), Condon petitioned unsuccessfully the United States District Court for the District of South Dakota.

459 F.2d 665
In his appeal to this Court, Condon claims that he was denied effective assistance of counsel from November 2, 1964, until April 16, 1965, and that even though a guilty plea was entered some time after appointment of counsel, the delay was inherently prejudicial because incriminating statements had been given by Condon to authorities during that period. Condon also claims that the state did not have jurisdiction to try him for an alleged crime occurring within an area which had been made an Indian Reservation and later opened for settlement under the homestead and townsite laws, and that the federal district court erred in refusing to consider the jurisdictional question on the ground that Condon had not exhausted his state remedies on this issue

I. EFFECTIVE ASSISTANCE OF COUNSEL

Condon was provided court-appointed counsel shortly after his arrest on the state charge, but he was not represented by counsel during the five months he was held on the identical federal charge. Condon does not complain that he was inadequately represented or ill-advised by counsel. Rather, he claims that the more than five months from the time of his arrest until appointment of counsel were critical, not only in preparation of his defense, but particularly because of the alleged self-incriminating statements given. Therefore, his argument follows, his guilty plea was motivated by anticipation that these statements would be used against him at trial. The question really presented, then, is whether the plea of guilty, entered by Condon on August 12, 1965, represented "a voluntary and intelligent choice among the alternative courses open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).

The fact that Condon did not have counsel for a period of five months after his arrest, during which time he allegedly gave incriminating statements, does not in and of itself entitle him to relief, where he was competently represented at the time of his plea. As the Supreme Court stated in McMann v. Richardson, 397 U.S. 759, 770-771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970),

"A defendant\'s plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have
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16 practice notes
  • Rice v. Wolff, No. 74-1682
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 19, 1975
    ...in futility. See Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); United States ex rel. Condon v. Erickson, 459 F.2d 663 (8th Cir. 1972). Cf. Evans v. Cunningham, 335 F.2d 491 (4th Cir. 1964). The intervening circumstance of the search warrant being held invalid, th......
  • Zemina v. Solem, Civ. No. 76-4090.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • September 22, 1977
    ...Cir. 1974) rev'd on other grounds, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). See also United States ex rel. Condon v. Erickson, 459 F.2d 663 (8th Cir. 1972). The deadlines of this particular appeals statute (S.D.C.L. section 23-52-16), however, have never been ruled upon by the S......
  • United States ex rel. Rainwater v. Morris, No. 75 C 1646.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • March 4, 1976
    ...F.2d 1266, 1268 (6th Cir.), cert. denied, 411 U.S. 985, 93 S.Ct. 2283, 36 L.Ed.2d 963 (1973); United States ex rel. Condon v. Erickson, 459 F.2d 663, 667 (8th Cir. 1972); Woodall v. Pettibone, 465 F.2d 49, 51 (4th Cir. 1972); Perry v. Blackledge, 453 F.2d 856, 857 (4th Cir. Further, it appe......
  • Eaton v. Wyrick, No. 75--1033
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 31, 1975
    ...U.S. at 250, 92 S.Ct. at 409; Brown v. Allen, supra, 344 U.S. at 449 n. 3, 73 S.Ct. at 403 n. 3; United States ex rel. Condon v. Erickson, 459 F.2d 663, 667 (8th Cir. 1972). Moreover, a petitioner should not be barred from federal relief because of the mere possibility of success in additio......
  • Request a trial to view additional results
16 cases
  • Rice v. Wolff, No. 74-1682
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 19, 1975
    ...in futility. See Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); United States ex rel. Condon v. Erickson, 459 F.2d 663 (8th Cir. 1972). Cf. Evans v. Cunningham, 335 F.2d 491 (4th Cir. 1964). The intervening circumstance of the search warrant being held invalid, th......
  • Zemina v. Solem, Civ. No. 76-4090.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • September 22, 1977
    ...Cir. 1974) rev'd on other grounds, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). See also United States ex rel. Condon v. Erickson, 459 F.2d 663 (8th Cir. 1972). The deadlines of this particular appeals statute (S.D.C.L. section 23-52-16), however, have never been ruled upon by the S......
  • United States ex rel. Rainwater v. Morris, No. 75 C 1646.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • March 4, 1976
    ...F.2d 1266, 1268 (6th Cir.), cert. denied, 411 U.S. 985, 93 S.Ct. 2283, 36 L.Ed.2d 963 (1973); United States ex rel. Condon v. Erickson, 459 F.2d 663, 667 (8th Cir. 1972); Woodall v. Pettibone, 465 F.2d 49, 51 (4th Cir. 1972); Perry v. Blackledge, 453 F.2d 856, 857 (4th Cir. Further, it appe......
  • Eaton v. Wyrick, No. 75--1033
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 31, 1975
    ...U.S. at 250, 92 S.Ct. at 409; Brown v. Allen, supra, 344 U.S. at 449 n. 3, 73 S.Ct. at 403 n. 3; United States ex rel. Condon v. Erickson, 459 F.2d 663, 667 (8th Cir. 1972). Moreover, a petitioner should not be barred from federal relief because of the mere possibility of success in additio......
  • Request a trial to view additional results

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