United States v. DE JORDAN, Cr. No. 4515.
| Decision Date | 10 November 1949 |
| Docket Number | Cr. No. 4515. |
| Citation | 86 F. Supp. 770 |
| Parties | UNITED STATES v. DE JORDAN. |
| Court | U.S. District Court — District of Minnesota |
Clarence U. Landrum, United States Attorney, James J. Giblin, Assistant United States Attorney, St. Paul, Minnesota, for plaintiff.
William C. Meier, St. Paul, Minnesota, for defendant petitioner.
Petitioner, an Indian, without benefit of counsel pleaded guilty to the crime of murder in the second degree of one Josephine Smith Munnell. On this plea he was sentenced for life, beginning May 31, 1932.
Petitioner has moved for the vacation of the sentence imposed on him by the Court on the grounds that (1) the Court lacked jurisdiction, and (2) that petitioner was denied the benefit of counsel provided for by the Sixth Amendment to the Constitution of the United States.
The present motion is based upon Section 2255 of Title 28, U.S.C.A., Revised.1
The record made in two previous hearings on petitions for habeas corpus in the United States District Court for the District of Kansas, First Division, is before the Court in the present case. Briefly, the facts disclose that petitioner was indicted on May 20, 1932, for the killing of an Indian woman on March 16, 1932. The details disclose the killing to have been an unusually brutal one. For present purposes it will suffice to point out that petitioner testified to the effect that prior to a plea of guilty in this Court at Duluth, Minnesota, on May 31, 1932, George A. Heisey, Assistant United States Attorney for the District of Minnesota, visited him in the jail at Duluth; that Heisey asked him whether he had an attorney and petitioner replied, saying he had no funds; that Heisey then told him "it would be all right", that the charge against him having been committed on an Indian Reservation, petitioner, being an Indian, would be entitled to be defended by the United States District Attorney; that thereupon Heisey then said, "I am your attorney." Petitioner goes on to testify that he was then taken before the Honorable William A. Cant, where he pleaded guilty to a charge of second degree murder.
In addition to the foregoing, petitioner also testified that following his arrest and confinement in the County Jail at Cass Lake, Minnesota, he was tortured and beaten by the Sheriff and an assistant. He admits that he was visited by a physician following the foregoing claimed mistreatment, but that he did not disclose anything suggesting torture, nor show any evidence thereof to the physician. His explanation for his failure to disclose evidence of such torture was that he was "scared". Depositions could not be obtained from the Sheriff and his assistant for the reason that they were dead.
Mr. George A. Heisey, an able attorney of splendid reputation, was practicing his profession in Minneapolis when his deposition was taken. Petitioner's claim that he was denied the benefit of counsel is emphatically denied by Mr. Heisey.2
The depositions of other witnesses indicate that the Sheriff was a kindly man and the very opposite of what petitioner describes him to be. The Sheriff, his assistant and Judge Cant had died prior to the institution of the first habeas corpus proceeding by petitioner. Judge Cant was an unusually conscientious and cautious judge. There can be no doubt that the court, like Mr. Heisey, fully advised petitioner of his rights under the Constitution of the United States to be represented by counsel, and that the Court would appoint counsel for him if he was without funds.
The depositions of the stenographer in the Sheriff's office, of the doctor who had visited petitioner in the County Jail, and of the Agent of the Federal Bureau of Investigation who was advised by petitioner that he was guilty of the offense charged and desired to plead guilty as soon as possible, were taken and are in the file of this case. The testimony of the witnesses called by the government makes obvious that petitioner has not sustained the burden placed upon him.
At the hearing in the present matter, petitioner was ably represented by counsel appointed for him. At the request of counsel the hearing was continued from time to time to permit careful investigation and research. At oral argument petitioner's counsel cited: Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172; Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309.
The Court has reviewed these authorities, together with cases cited by petitioner in the motion he prepared "to vacate sentence and to set aside judgment." With the exception of the Carter and Von Moltke cases the authorities relied on by petitioner were all decided prior to the habeas corpus proceedings commenced by him in the Kansas court. The Court of Appeals for the Tenth Circuit denied relief to petitioner in each instance. See DeJordan v. Hudspeth, 10 Cir., 137 F.2d 943, certiorari denied. De Jordan v. Hunter, 320 U.S. 779, 64 S.Ct. 87, 88 L.Ed. 468; DeJordan v. Hunter, 10 Cir., 145 F.2d 287, certiorari denied 325 U.S. 853, 65 S.Ct. 1083, 89 L.Ed. 1974. The record now before this Court was before the Court in the last-cited cases. The claims now made by petitioner were made in the two habeas corpus proceedings commenced in the Kansas court. They were determined adversely to petitioner. While the first case was disposed of on a technicality, the second proceeding was decided on the merits. It appears that the present case is but a repetition of what was presented to the Court in 145 F.2d 287, in which ceritiorari was denied by the United States Supreme Court. Manifestly, the relief petitioner now seeks is similar to that sought by him in the last-cited case.
Under the circumstances, it seems clear that petitioner has failed to carry the burden of sustaining his contentions by a preponderance of the evidence. Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L. Ed. 830.
I am satisfied that the Court had jurisdiction, and that the petitioner was fully and fairly apprised of his rights to counsel.
The motion to vacate the judgment is denied, and it is so ordered. The United States Attorney may submit findings of fact and conclusions of law in accordance herewith.
Petitioner may have an exception.
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De Jordan v. United States
...830. "I am satisfied that the Court had jurisdiction, and that the petitioner was fully and fairly apprised of his rights to counsel." 86 F.Supp. 770, 774. Among the trial court's findings of fact are the "V. That though petitioner entered his said plea of guilty without the assistance of c......