United States v. Sturm, 10017.

• Decision Date: 05 June 1950
• Docket Number: No. 10017.,10017.
• Citation: 180 F.2d 413
• Parties: UNITED STATES v. STURM.
• Court: U.S. Court of Appeals — Seventh Circuit

180 F.2d 413 (1950)

UNITED STATES v. STURM.

No. 10017.

United States Court of Appeals Seventh Circuit.

March 7, 1950.

Writ of Certiorari Denied June 5, 1950.

Robert E. Bard, Chicago, Ill., Julius Sturm, for appellant.

Otto Kerner, Jr., U. S. Atty., Joseph E. Tobin, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and FINNEGAN and LINDLEY, Circuit Judges.

Writ of Certiorari Denied June 5, 1950. See 70 S.Ct. 1008.

LINDLEY, Circuit Judge.

Defendant appeals from an order of the District Court entered August 22, 1949, denying defendant's motion to vacate three sentences imposed upon him by that court on June 11, 1947. Apparently his motion was based upon Section 2255, Title 28 United States Code Annotated, which is, in part, as follows: "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." Since the trial court denied the motion without granting a hearing thereon or making findings of fact and conclusions of law with respect thereto, its order was proper only if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief * *." That, then, is the sole question before us on this appeal. In its resolution, we must, of course, accept as true and correct the averments of fact contained in the motion, insofar as they are not inconsistent with the record, and, on that basis, proceed to determine if they entitle defendant to the hearing denied him.

An examination of its contents discloses that defendant's motion, although replete with legal conclusions, wholly fails to aver the facts upon which those conclusions are, of necessity, founded. Just as a petition for a writ of habeas corpus or an application for a writ of error coram nobis must set forth the facts as distinguished from mere conclusions, upon which the right to the writ is predicated, Quagon v. Biddle, 8 Cir., 5 F.2d 608; Marslin v. Schmucker, 4 Cir., 89 F.2d 765; Osborne v. Johnston, 9 Cir., 120 F.2d 947; People v. Long, 346 Ill. 646, 650, 178 N.E. 918; People v. Hunt, 292 Ill.App. 632, 10 N.E.2d 828; People v. Pangos, 293 Ill.App. 636, 13 N.E. 2d 211, so, it would seem clear, must such a motion as that authorized by Section 2255, which is no more than a "procedure in the nature of the ancient writ of error coram nobis", Revisers' Notes, Title 28 United States Code Annotated, present the facts upon which the movant relies. This being true, it follows that the trial court might quite properly have regarded the legal insufficiency of the pleading as requiring imperatively its denial of the motion.

Even if we should incorporate into the pleading the facts averred in defendant's brief and regard them as having been properly averred, still, the lower court's denial of the motion was proper. The facts, as related by defendant, are that the police, after apprehending, on the morning of May 6, 1947, two men who had attempted to cash a worthless check drawn on an Arkansas bank, were informed by them that defendant was the third member of their criminal undertakings and that he was to meet them later that day at the Clayton Hotel in Waukegan. The police promptly called in the FBI, and two of its special agents, after further questioning defendant's accomplices, proceeded to Waukegan to arrest defendant. About 6 o'clock that evening, the agents, accompanied by two police officers, went to the Clayton Hotel, and, entering defendant's room, arrested him. Thorough search of his person and the room in which he was arrested resulted in the seizure of certain checkwriting equipment and a number of falsely made checks, purportedly certified by an Arkansas bank.

Defendant further avers that, after his arrest, he was transported from Waukegan to the Chicago office of the FBI and there subjected to several hours of questioning, in the course of which threats were made by the agents who conducted the interrogation, and that finally, he signed a confession. On the next afternoon, he was arraigned before a United States Commissioner on a complaint charging that he and his co-defendants had engaged in a conspiracy to violate the National Stolen Property Act, Title 18 U.S.C.A. § 415, in violation of Section 88, Title 18 U.S.C.A., and that, in furtherance thereof, they had met at the Clover Bar in Chicago and "in divers other places." A hearing on the complaint was set for May 14. Shortly thereafter, defendant procured the services of an attorney who represented him throughout the subsequent proceedings.

On May 14, 1947, defendant, waiving examination on the complaint, was ordered held for trial. On May 15, appearing before the court with counsel, he executed a waiver of indictment, a waiver of trial in the Eastern District of Arkansas, and a consent to have his case disposed of by the court below upon a plea of guilty, as provided for in Rule 20 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. Accordingly, two informations were filed in the District Court in Arkansas, certified copies of which were filed in the trial court on June 9, 1947, both charging defendant with violating Section 415 now § 2314, Title 18, U.S.C.A. In addition, an information charging defendant and others with violation of Section 88 now § 371, Title 18, U.S.C.A., was filed in the trial court. On June 11, defendant, represented by counsel, having been arraigned, entered pleas of guilty to all three informations, whereupon he was sentenced to five years each on two of the informations and two years on the third, the sentences to run concurrently.

Defendant's basic contention is that the alleged violation of certain rights guaranteed him by the Constitution vitiated his plea of guilty and rendered void both the judgment and sentences. More particularly, he urges that his arrest, under the circumstances obtaining in this case, was illegal and the guaranty against unreasonable searches and seizures violated; that his detention, prior...