United States v. Ray

• Decision Date: 05 May 1960
• Docket Number: Crim A. No. 19818.
• Parties: UNITED STATES of America v. Jack RAY.
• Court: U.S. District Court — District of Maryland

183 F. Supp. 769

UNITED STATES of America v. Jack RAY.

Crim A. No. 19818.

United States District Court D. Maryland, Criminal Division.

May 5, 1960.

Leon H. A. Pierson, U. S. Atty., John R. Hargrove, Asst. U. S. Atty., Baltimore, Md., for plaintiff.

John P. Zebelean, Jr., Baltimore, Md., Court appointed, for defendant.

CHESNUT, District Judge.

Jack Ray, the defendant in the above case, has filed a petition under title 28 U.S.C.A. § 2255 to vacate a sentence imposed upon him by this court nearly 18 years ago. The docket entries and papers in the case show that the Grand Jury indicted Jack Ray on August 4, 1942 for armed robbery of messengers of a bank insured by the Federal Deposit Insurance Corporation, in Hyattsville, Maryland, on September 25, 1941, in the amount of over $50,000; that on the same day the defendant was arraigned in open court, waived the appointment of counsel and entered a plea of guilty, and sentence was deferred at the time; and that on August 7, 1942 the defendant appeared for sentence and was sentenced to imprisonment for 18 years. It will also be noted that on August 4, 1942 when the defendant was arraigned his entry of the plea of guilty was noted on the back of the indictment in the handwriting of Mr. Charles W. Zimmermann who was then the Clerk of the Court and present in court at the time, and that the docket entries were made by Arthur J. Robertson, his deputy, by the express direction of Mr. Zimmermann.

The defendant's petition was not filed until January 18, 1960. In ordinary course the sentence would have been fully served before that time; but it appears that during the running of the sentence the defendant had twice been conditionally released on parole but in each case had been re-taken for breach of parole and that therefore the 18 year sentence will not have expired until some time in 1962 if the prisoner is allowed the deduction of so-called "good time", or 1964 if "good time" is not allowed.

In his petition for vacation of the sentence imposed August 7, 1942, he alleges that the court did not have jurisdiction in sentencing him because he was deprived of his constitutional rights in the matter of his arraignment, plea and sentence. In detailed specification of the latter, he alleges in substance that he had been arrested in North Carolina on July 25, 1942 by agents of the Federal Bureau of Investigation when he was in very bad condition due to his having, for a year or more previously, taken large doses of narcotics; that he was against his will taken by the Agents to Baltimore, Maryland, without first having been taken before a United States Commissioner in the District where arrested; that on his arrival in Baltimore he was kept "incommunicado" by the Agents, without taking him before the United States Commissioner, for several days; that during that time he was given little food or drink, was given morphine by a doctor before his appearance in court, that he was visited by the United States Attorney who, in co-operation with the federal Agents alternately threatened him and tried to persuade him to co-operate with them on the promise of leniency, and that he was forced to sign some papers which were not read or explained to him, and that finally, while still in a dazed narcotic condition, was taken into court, did not know of his right to have counsel, was not told of his right to counsel and did not waive counsel but was sentenced by the court to 18 years' imprisonment.

Section 2255 of title 28 provides with respect to such a petition that "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." It is, of course, at once apparent that if the facts alleged by the petitioner are true, his petition validly states cause for relief. For this reason the Court, after reading the petition, signed an order requiring the present United States Attorney to show cause why the relief should not be granted. Such cause was shortly thereafter filed; and upon consideration thereof a further order of court was made for the production of the defendant, still in custody, at the first practicable time, for a hearing in court on the petition.

The nature and general character of the averments of the petition are quite similar in many respects to other petitions in recent years filed in this court by defendants to vacate sentences previously imposed. For instance, see United States of America v. McGann (Earl Kill Smith) (also an armed robbery case) D.C.1958, 163 F.Supp. 417, affirmed, 4 Cir., 262 F.2d 590. In those cases the petitions were dismissed without a hearing because it did appear from the whole records and files in the cases that the petitions were without merit as the Court had before it a transcript of the proceedings in court which occurred at the time of the sentences. But the important difference between those cases and this present one is that the court procedure in this case was in 1942 before the Court Reporters' Act of 1944, 28 U.S.C.A. § 753, and there was no court reporter to report and transcribe the proceedings. The docket entries in this case clearly showed that the defendant had waived the appointment of counsel and while they are presumptively correct, the averments of the petition in effect challenged the accuracy of the docket entries and the other averments with regard to the court procedure as to lack of due process were dependent only on the factual memory of the officers of the court. Furthermore there was no available record of the court proceedings in the case to affirmatively and definitely show that the petitioner's present averments were directly contrary to the uniform and customary practice and procedure of the court at that time. Then the customary form of commitment did not, as the revised form now in use for many years past does, recite that where a defendant appeared without counsel "the Court advised the defendant of his right to counsel and asked him whether he desired to have counsel appointed by the Court, and the defendant thereupon stated that he waived the right to the assistance of counsel." Therefore, the case properly required a hearing in court at which the petitioner would be represented and the facts as to the whole procedure at the time of his sentence could be ascertained and determined after hearing the available witnesses, including those of the Federal Bureau of Investigation who had participated in the arrest and subsequent treatment of the defendant.

This hearing was held on Friday, April 29, 1960, the defendant having been brought here from Atlanta, Georgia, to testify on his own behalf, and competent counsel, as requested by him, having been appointed to represent him, Mr. John J. Zebelean, Jr.

At the hearing here the defendant as a witness repeated in substance most of the averments of his petition. On the other hand, the present Assistant United States Attorney, Mr. Hargrove, called as witnesses five of the seven or eight Federal Bureau of Investigation Agents who had participated in the arrest of the defendant in North Carolina or had been in contact with him in Baltimore, some of whom were also present and testified to the proceedings in court. These witnesses had been brought back by the Government from far distant places in the United States where they are presently stationed. The Chief of the Federal Bureau of Investigation Agents referred to by the defendant in Baltimore, Mr. Horace Dill, had died three years ago. Also called as witnesses at the trial were Bernard J. Flynn, United States Attorney in 1942, and his chief deputy, T. Barton Harrington who personally presented the case against the defendant in court. Still other witnesses were John F. Landis, then Chief Probation Officer of this court and Arthur J. Robertson, deputy clerk in office since 1927, with regard to the established customary practice and procedure of the court in such cases.

Shortly stated, the testimony of these witnesses showed as I find on the facts, the following:

1. The defendant was arrested in Kinston, North Carolina on July 25, 1942. He was then in bad physical condition as he said he had been a heavy user of narcotics for the past year, but mentally he was alert and intelligent in his conversation. He admitted his participation in the robbery and expressed willingness to return to Baltimore without the necessity of removal proceedings and without being immediately taken before a United States Commissioner. He indicated this was his preference because he apprehended possible personal difficulty with others involved less directly in the actual robbery¹ who had not theretofore been arrested. As the defendant when arrested was in bad physical condition and craved more narcotics, the F.B.I. Agents called in a local physician who gave the defendant a small narcotics dose. The defendant signed two papers in North Carolina, one that he agreed to voluntarily return to Baltimore with the Agents, and the other that he waived appearance before a United States Commissioner. These papers are exhibits in the present case. As a witness Ray admitted his signatures thereto but said that he did not understand them.

2. He was then taken by two of the Agents to Baltimore, Maryland, and kept, by his consent, in the offices of the F.B.I. and was attended by Dr. Miller, the Baltimore City Jail physician whose contemporaneous report as to his daily condition and treatment is filed in the case. Ray also signed a statement that he did not wish to be taken before the United States Commissioner here but preferred to remain in the custody of the F.B.I. Agents; and later, on August 1, 1942, he signed a statement giving in detail his activities with respect to the robbery. These papers are...