United States v. Hayes
| Decision Date | 08 November 1965 |
| Docket Number | Crim. No. 12987. |
| Citation | 293 F. Supp. 625 |
| Parties | UNITED STATES of America, Plaintiff, v. Russell L. HAYES, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Woodrow Seals, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff.
Russell L. Hayes, pro se.
This is a Petition under Section 2255, Title 28 U.S.C.A., to set aside a federal conviction on the alleged grounds that Petitioner was not represented by counsel whom he hired, that he did not waive representation by his allegedly hired counsel, and that he did not accept the counsel whom the trial court appointed to represent him.
The arraignment and trial of Petitioner were before Honorable Joe Ingraham, United States District Judge for the Southern District of Texas. With the filing of Petitioner's affidavit of prejudice, the cause was transferred to the docket of this Court.
Petitioner has now served a six year sentence for his conviction in March of 1957 for unlawfully preparing and submitting false income tax returns, in violation of Title 26 U.S.C.A. Section 7206 (1), and for making fraudulent claims against the United States, in violation of Title 18 U.S.C.A. Section 287.
A plenary evidentiary hearing was conducted by this Court on January 25, 1965. Hayes v. United States, 5 Cir., 323 F.2d 954 and 325 F.2d 1022. In addition, the record of the case is before the Court, including the trial statement of facts and the proceedings of January 18, 1957, at which his defense counsel was appointed by the trial court. Determination of the Petition was stayed pending filing of the transcript of the hearing and the presentation of final argument, which was heard on October 28, 1965.
Both the attorney whom Petitioner claims to have hired for subject federal prosecution and the attorney whom the trial court appointed to defend him deny categorically his allegations. The record of the trial court proceedings is silent as to any non-acceptance by him of the trial court's appointment of defense counsel. It is silent that his situation at the time was other than one of need for court-appointed counsel or that his disposition was other than one of desire for court-appointed counsel.
Attorney Carl Augustus Williams, Jr. of Houston, whom Petitioner claims to have hired to represent him at the federal hearing, testified at the evidentiary hearing (Transcript, hereafter Tr., pages 17 to 25) that he had been engaged to represent Petitioner on a motion for commitment for mental evaluation but not in subject federal prosecution. He flatly denied that he had been retained for the federal prosecution proper (Tr., p. 21), although it does appear that the reason was non-agreement over the fee. (Tr., p. 21). In response to the question whether he received notice of the arraignment from the Court Clerk, Williams answered:
"* * * I didn't receive anything in connection with the case." (Tr., p. 21).
He further denied that he appeared with Petitioner at the arraignment. (Tr., p. 22).
The docket sheet states that on January 18, 1957:
The docket sheet further shows that Williams had been listed as an attorney but his name was scratched out and that of Clyde Gordon, Jr. typed in as court-appointed counsel. On December 26, 1956, three weeks prior to the arraignment, the Court set aside its order of December 21, 1956, granting the government's motion for commitment of the Petitioner.
As reflected by the docket sheet, the trial proper began on February 21, 1957, a month and three days after the trial court appointed Clyde Gordon to represent Petitioner. Gordon testified that in the meanwhile, Petitioner came by his office "on one or more occasions" to discuss the case. (Tr., p. 27). Gordon asserted that Petitioner did not object to being represented by Gordon (Tr., p. 27) and continued to assist Gordon in handling his defense. (Tr., p. 27). Further, that neither during nor before the trial did Petitioner complain or object about the manner in which he was being represented or of the fact thereof. (Tr., p. 28). A complaint of this nature was not received until more than a year after the trial. Gordon was emphatic in his testimony that if there had been any question about another lawyer in the case he, Gordon, would have brought the matter to the attention of the Court.
The versions given by Williams and Gordon find support in the transcript of the arraignment proceedings of January 18, 1957:
Later, after the appointment of counsel, the Petitioner was arraigned and entered a plea of not guilty to all counts. (Tr., p. 6).
At no time during the arraignment did Petitioner indicate to the Court his non-acceptance of the court-appointed counsel, nor did he raise any objection or indicate any non-acceptance during the course of the trial. (S/F, pages 2394).
Petitioner, in response to the Court's inquiry on final hearing, offered no complaint as to the competency of the representation which he received from Gordon and none could be made. It comes with poor grace to complain now of his court-appointed counsel who was appointed at Petitioner's request and who served him well.
Petitioner's contentions are without support in law or in fact. The clear preponderance of the evidence is that Williams had never accepted employment for subject prosecution. Apart from many explicit instances in the record, this is the essence, import and necessary implication of Petitioner's own statement to the trial judge at the arraignment that he did not have an attorney because he could not afford to employ one but still desired the services of one. (Tr., pages 3-4).
A federal trial judge has inherent authority to meet a situation of this kind in a manner that is reasonable and fair to the accused. United States v. Bentvena, 2 Cir., 319 F.2d 916, 936, cert. den. (Ormento v. U. S., DiPietro v. U. S., Fernandez v. U. S., Panico v. U. S., Galante v. U. S., Loicano v. U. S., Mancino v. U. S., Sciremammano v. U. S., Mirra v. U. S.) 375 U.S. 940, 84 S.Ct. 345, 346, 353, 354, 355, 360, 11 L.Ed.2d 271, 272, rehearing denied 377 U.S. 913, 84 S.Ct. 1162, 12 L.Ed.2d 183; United States v. Dardi, 2 Cir., 330 F.2d 316, 335; Smith v. United States, 53 App. D.C. 53, 288 F. 259, 261.
The central and pivotal fact that is shown by the record and testimony in this case is that Williams was not and had never been hired to represent Petitioner in subject prosecution. As this is the fact established by the record, it was surely the reasonable appearance on which the trial judge had a right to rely and act. Petitioner's assertion and reliance on the principle of non-waiver of counsel of his choice, citing Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, is therefore inapposite.
More than a month passed between the Court's appointment of defense counsel and the conduct of the trial....
To continue reading
Request your trial
-
Hayes v. United States, Civ. A. No. H-77-186.
...of mootness since Hayes had been unconditionally released from custody and thus could not rely on 28 U.S.C. § 2255. United States v. Hayes, 293 F.Supp. 625 (S.D.Tex. 1965). The district court did, however, go forward on alternative grounds to reach the substantive issues of Hayes' motion, a......
-
Hayes v. United States, C. A. No. 68-H-563 Relative to Crim. No. 12987.
...District Judge. On November 8, 1965, this Court, in its written opinion in the Title 28, U.S. C.A. Section 2255 case of United States of America v. Hayes, 293 F.Supp. 625, denied relief to petitioner. Instant Section 2255 case arises out of the same prosecution and involves the same parties......
-
Hayes v. United States
...contention that the court had forced court-appointed counsel on him when he had already retained another attorney. Hayes v. United States, S.D.Tex.1965, 293 F. Supp. 625. As the court then pointed out in its comprehensive memorandum opinion, this allegation was unequivocally refuted by both......