United States v. Smith, 382
Decision Date | 24 July 1958 |
Docket Number | No. 382,Docket 24923.,382 |
Parties | UNITED STATES of America, Appellee, v. Earl Kill SMITH, Defendant-Appellant, |
Court | U.S. Court of Appeals — Second Circuit |
Earl Kill Smith, pro se.
Mark F. Hughes, Jr., Asst. U. S. Atty. for Southern District of New York, New York City (Paul W. Williams, U. S. Atty., for Southern District of New York), New York City, for appellee.
Before HINCKS, PICKETT and MOORE, Circuit Judges.
The appellant, under service of sentence in the federal penitentiary in Alcatraz, California, by motion filed July 9, 1957 in the United States District Court for the Southern District of New York, in which he had been convicted of bank robbery, sought a writ in the nature of a writ of error coram nobis to examine into grounds dehors the trial record upon which he contends his conviction should be vacated, citing as procedural authority for his motion United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248. The motion was dismissed on the record below without a hearing. By another panel of the court a motion for leave to appeal in forma pauperis was granted since the court doubted that the appeal should be classified as frivolous. But the court refused to assign counsel saying: "It appearing that the defendant pleaded guilty when represented by competent counsel, it would be an imposition on the Bar to assign another lawyer to attack the plea."1
In his motion the appellant alleged that after indictment for bank robbery, in April 1955 while awaiting trial on a plea of not guilty, he was interviewed by two F. B. I. agents in the Federal Courthouse who refused him contact with counsel and held him incommunicado. His motion further recited:
In opposition to the motion were filed affidavits of Assistant United States Attorneys, the F. B. I. agents who had interviewed the appellant, and a Supervisor of the Federal Detention Headquarters who flatly denied the appellant's assertions of threats or coercion.
The court records showed that prior to arraignment a member of the staff of the New York Legal Aid Society had been assigned to represent the appellant; that while so represented the appellant had on April 21, 1955 pleaded not guilty; and that subsequently, on May 2, 1955, a member of the Legal Aid staff informed the court of a change of plea and thereupon in open court with the appellant at the bar the following transpired.
Whereupon the indictment was read and the following transpired.
The Government's papers in opposition to the motion also included an affidavit by the appellant's counsel, an experienced member of the staff of the Legal Aid Society who was with him at the change of plea, saying that
On August 3, 1955 a sentence of twenty years was imposed to run concurrently with sentences of twenty-five years for another bank robbery and auto theft in Maryland which had been imposed by the United States District Court for the District of Maryland, also upon a plea of guilty, which was then in process of service.
It is by no means clear that the alleged "threats," even if made, could have frightened the appellant into a false plea of guilty. Within a few...
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