United States v. Holton

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: FINNEGAN, SWAIM and SCHNACKENBERG, Circuit
• Citation: United States v. Holton, 228 F.2d 827 (7th Cir. 1956)
• Decision Date: 07 February 1956
• Docket Number: No. 11521.,11521.
• Parties: UNITED STATES of America ex rel. Silvio Dario DURANTE, Petitioner-Appellant, v. Ralph H. HOLTON, District Director of Immigration and Naturalization Service, United States Department of Justice, Respondent-Appellee.

228 F.2d 827 (1956)

UNITED STATES of America ex rel. Silvio Dario DURANTE, Petitioner-Appellant, v. Ralph H. HOLTON, District Director of Immigration and Naturalization Service, United States Department of Justice, Respondent-Appellee.

No. 11521.

United States Court of Appeals Seventh Circuit.

January 11, 1956.

Rehearing Denied February 7, 1956.

Matthew Steinberg and Salvatore S. Oddo, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., Anna R. Lavin, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Asst. U. S. Attys., Chicago, Ill., of counsel, for appellee.

Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Upon the facts set forth in the amended petition for a writ of habeas corpus filed by Silvio Dario Durante,¹ and those facts set forth in the answer of Ralph H. Holton, District Director of United States Immigration and Naturalization Service,² to the extent that they were not denied by Durante's reply, the district court on April 14, 1955 dimissed the amended petition and remanded Durante to the custody of respondent. This appeal followed.

Relevant facts appear in the following statement.

Durante, a native and citizen of Canada, entered the United States on December 9, 1926. On July 1, 1952 a warrant for his arrest was issued by respondent's predecessor charging that he had been found in the United States in violation of the Immigration Act of February 5, 1917³ for the reason that he had been sentenced more than once to imprisonment for terms of one year or more because of convictions in this country of crimes involving moral turpitude, committed after entering this country, to wit: forgery, second degree, and burglary. Following a hearing a warrant of deportation to Canada was issued on December 4, 1953. He was taken into custody thereunder and the instant proceeding was filed in the district court. That court directed that Durante be given another hearing, whereupon a special inquiry officer concluded that Durante was deportable on the charges stated in the warrant of arrest and upon an additional charge under § 241(a) (4) of the act of June 27, 1952,⁴ on the ground that, since the date of entry, Durante had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. Durante's appeal to the board of immigration appeals was dismissed. Another warrant was issued on February 7, 1955, directing Durante's deportation to Canada on all of the aforesaid charges.

Upon a plea of guilty entered by Durante to two counts charging him with forgery, on a count charging him with assault with a deadly weapon and on a count charging him with a jail break, the district court of Sherman County, Kansas on September 14, 1946, sentenced him on each of said counts to an indeterminate term in the state penitentiary, all of said sentences to run concurrently. He was thereupon imprisoned and served said sentences.

The burglary conviction was entered on March 25, 1952 by the criminal court of Cook County, Illinois, on Durante's plea of guilty. He was then sentenced to the Illinois state penitentiary for a term of not less than one year and not more than two years, which sentence he served.

As a part of his answer respondent moved to strike paragraph five of the amended petition "on the ground that this proceeding may not be used to collaterally attack a conviction in a court of the State of Kansas." A part of said paragraph five, upon which Durante now relies, relates to his conviction in Kansas in 1946 and alleges that after being arrested there he "escaped from the county jail and went to Denver, Colorado, where he surrendered himself to the local police in connection with the said charges of forgery in the State of Kansas, and that before he waived extradition to the State of Kansas he had been promised probation if he returned; however, when he entered a plea of guilty to the crime of forgery, second degree, he was sentenced to the State Penitentiary." Respondent never obtained a ruling from the district court on his motion to strike and he never denied the truth of the above quoted allegations. Hence, we shall accept them as true for our present purpose.

Respondent's answer denied the following allegations, inter alia, of paragraph six of the amended petition, pertaining to his plea of guilty in the Illinois court: respondent "was not informed that under his plea of guilty he was liable to deportation nor was he informed that he had a right to seek the recommendation of the sentencing judge not to be deported."

Inasmuch as the district court heard no evidence, it is conceded by the government that these alleged facts must be taken as true in the case now before us.

1. Durante contends that his plea of guilty, which resulted in his conviction in Kansas, was induced by his being "affirmatively misinformed of the consequences of his plea", and that, although he was doubtless advised as to...