United States v. Culbert, 21201-4.

• Decision Date: 20 March 1963
• Docket Number: No. 21201-4.,21201-4.
• Citation: 215 F. Supp. 333
• Parties: UNITED STATES of America, Plaintiff, v. William S. CULBERT, Defendant.
• Court: U.S. District Court — Western District of Missouri

215 F. Supp. 333

UNITED STATES of America, Plaintiff, v. William S. CULBERT, Defendant.

No. 21201-4.

United States District Court W. D. Missouri, W. D.

March 20, 1963.

F. Russell Millin, U. S. Atty., by Clifford M. Spottsville, Asst. U. S. Atty., Kansas City, Mo., for plaintiff.

William S. Culbert, pro se.

BECKER, District Judge.

On January 5, 1962, in the United States District Court for the Western District of Missouri, William S. Culbert, the movant herein, appearing in person and by his Court-appointed counsel, Stanford M. Katz, waived indictment and entered a plea of not guilty to a three-count information charging in Count I that on December 7, 1961, he did acquire and otherwise obtain a quantity of marihuana without having paid the transfer tax thereon, in violation of Title 26 U.S. C.A. § 4744(a); in Count II that on December 8, 1961, he did transfer a quantity of marihuana not pursuant to a written order of the person to whom said marihuana was transferred, in violation of Title 26 U.S.C.A. § 4742(a); and in Count III that on December 8, 1961, he did acquire and otherwise obtain a quantity of marihuana without having paid the transfer tax thereon, in violation of Title 26 U.S.C.A. § 4744(a).

On January 30 and 31, 1962, defendant was tried before a jury and found guilty on all three counts.

On February 9, 1962, this Court sentenced defendant to two years on each of Counts I and III and to six years on Count II, and ordered the sentences on all counts to run concurrently.

On July 3, 1962, defendant filed a motion pursuant to Rule 35 of the Federal Rules of Criminal Procedure to reduce sentence and for correction of illegal sentence and a petition for a writ of habeas corpus ad testificandum. The motion and petition were overruled October 22, 1962. United States v. Culbert (W.D. Mo.), Criminal No. 21201-6.

Defendant subsequently filed a motion pursuant to Title 28 U.S.C.A. § 1915, "for Leave to be Granted a Transcript Copy of the Minute and records filed * * *" in United States v. Culbert (W.D.Mo.), Criminal No. 21201-4. This motion was overruled by this Court's order of December 18, 1962, because viewed as a motion pursuant to Title 28 U.S.C.A. § 1915, defendant's motion failed to disclose any pending suit, action, proceeding or appeal as contemplated by that section and was not accompanied by the requisite affidavit, and because viewed as a motion pursuant to Title 28 U.S.C.A. § 2250, the motion was not related to any petition for writ of habeas corpus filed in this Court by or on behalf of the defendant (and because in any event, this Court did not have jurisdiction to entertain such a petition since the defendant was incarcerated outside the territorial jurisdiction of this Court). On December 27, 1962, one week after the issuance of this Court's order overruling the last mentioned motion, the Clerk of this Court received and filed a "Response to Respondent Brief of Opposition for Certified Copies of Records and Transcript in Forma Pauperis."

In this "Response" the defendant asserts that his trial counsel was ineffective in

(a) "waiving unstitutional sic right of indictment,"

(b) "Failure to motion to have Insubstantial Evidence Suppressed * * * Evidence which was Hearsay and uncorroborated," and

(c) "not advising Petitioner of his right for an appeal and therefore disqualified him because of the `in time clause' in filing notice of appeal."

Defendant further stated that "there are reversible errors and prejudicial errors that happen during the course of the trial which the Records & Transcript will verify and wherefore Petitioner prays that said transcript & Record will be afforded Petitioner without prepayment or cose sic."

This last communication from the defendant will be treated as (1) a motion to vacate sentence pursuant to Title 28 U.S.C.A. § 2255, and (2) a renewal of the previously denied motion pursuant to Title 28 U.S.C.A. § 1915.

Considered as a motion pursuant to section 2255, the motion claims that the defendant was denied effective representation by counsel as guaranteed by the Sixth Amendment to the United States Constitution.

These attacks upon the competency of counsel are not received with much sympathy by the courts. Gallarelli v. United States (C.A.1) 260 F.2d 259; Dario Sanchez v. United States (C.A.1) 256 F.2d 73; Walker v. United States (C.A.7) 218 F.2d 80; Ford v. United States (C.A.6) 234 F.2d 835, l. c. 837; United States ex rel. Swaggerty v. Knoch (C.A.7) 245 F.2d 229; United States v. Miller (C.A.2) 254 F.2d 523. Nevertheless each case must be decided on its individual merits, and the Court must carefully protect the right granted by the Sixth Amendment to an accused in a criminal proceeding to have the assistance of counsel for his defense as "This is one of the safeguards * * * deemed necessary to insure fundamental human rights of life and liberty." Johnson v. Zerbst, 304 U.S. 458, l. c. 462, 58 S.Ct. 1019, l. c. 1022, 82 L.Ed. 1461, l. c. 1465.

First we will consider the complaint that counsel waived indictment. A transcript of the arraignment proceedings, filed herein, shows that the defendant voluntarily waived indictment personally and with a full understanding of his rights. Counsel's announcement of the waiver of indictment was not acted upon by the Court. The defendant was personally examined by the Court,...