United States v. Sullivan, Crim. No. 10215.

• Decision Date: 11 January 1968
• Docket Number: Crim. No. 10215.
• Citation: 278 F. Supp. 626
• Parties: UNITED STATES of America, Plaintiff, v. Roger H. SULLIVAN, Defendant.
• Court: U.S. District Court — District of Hawaii

278 F. Supp. 626

UNITED STATES of America, Plaintiff, v. Roger H. SULLIVAN, Defendant.

Crim. No. 10215.

United States District Court. D. Hawaii.

January 11, 1968.

Yoshimi Hayashi, U. S. Atty., District of Hawaii, Honolulu, Hawaii, for plaintiff.

No appearance for defendant.

MEMORANDUM OF DECISION AND ORDER

PENCE, Chief Judge.

This is a motion under 28 U.S.C. § 1651 (a) to vacate a judgment of conviction and expunge the sentence served by the petitioner eighteen years after his entry of a plea of guilty.

On March 25, 1949 the United States Attorney for the District of Hawaii (then a Territory), by way of Information, after he had properly waived presentment to a grand jury, charged the petitioner, Roger H. Sullivan, with falsely making, altering, forging and counterfeiting check No. 5915 drawn upon the Treasurer of the United States in the sum of $56.00 in violation of section 495 of Title 18, United States Code. On the same day Sullivan was also arraigned, and upon pleading guilty, was sentenced by U. S. District Judge Metzger to one year and one day in prison. Sullivan served and completed that sentence in 1949 and 1950.

Seventeen years after release from prison, on August 7, 1967, Sullivan filed this motion seeking a Writ of Coram Nobis to vacate the judgment of conviction entered March 25, 1949, and to expunge the sentence served by him subsequent thereto. Sullivan's motion papers alleged that at the time he entered a plea of guilty, his "constitutional right to the aid of counsel was unconstitutionally abridged"; that he "had and has a good defense to the charge * * *"; and that he "has not brought an appeal before because he was unaware of his right to do so until the filing of this appeal."

On August 14, 1967 the United States Attorney was ordered to show cause why the court should not grant the motion.

In its reply, the United States contended that the judgment and commitment order¹ of Judge Metzger "is prima facie proof that petitioner was advised of his constitutional right to assistance of counsel" on the day the plea was tendered.

The narrow ambit of that reply of the United States Attorney per se indicated that a thorough examination of the record in this case was necessary to determine whether Sullivan had been in fact properly advised of his right to assistance of counsel and whether he had made a competent and intelligent waiver of that right.

The court has carefully examined a complete transcript of the March 25, 1949 proceedings along with all of the other documents appearing on file. At the 1949 hearing, at which Sullivan entered his plea of guilty, with reference to Sullivan's right to counsel and his waiver thereof, the following colloquy was recorded:

"THE COURT: Now, Sullivan, you have appeared here without counsel. Have you had any legal advice on the matter?

"THE DEFENDANT: The Coast Guard legal officer is over here, sir, the U. S. Coast Guard officer is present.

"THE COURT: Well, do you know to your own satisfaction whether or not you are ready to answer to the charge and what your answer would be?

"THE DEFENDANT: I am ready to answer to the charge, sir.

"THE COURT: All right. What is your plea, are you guilty or not guilty as charged?

"THE DEFENDANT: Guilty.

"THE COURT: Let a plea of guilty be entered. * * *" (Tr. pp. 4-5)

The inference most favorable to the Government to be drawn from the above record is that the defendant had had or was in a position to avail himself of legal counsel provided by the "Coast Guard legal officer." This was the not unreasonable conclusion apparently drawn by Judge Metzger when he discontinued his interrogation of the defendant regarding his right to counsel and forthwith accepted Sullivan's plea of guilt.

The United States Attorney has confirmed that the "Coast Guard Legal Officer" present in court on the day on which the plea was entered was Lieutenant (j. g.) now Commander Manson E. Meekins, then the Legal-Intelligence Officer for the 14th Coast Guard District (Hawaii). By affidavit now filed in this court by the United States Attorney, Commander Meekins states that he was not an attorney-at-law at the time of Sullivan's plea, nor had he ever been an attorney, nor had he then had but slight legal training. Furthermore, it now appears that on March 22, 1949 the same Lt. Meekins interrogated Sullivan regarding his alleged connection with a number of offenses, including the offense to which he, Sullivan, plead guilty on March 25. Official transcripts of the interrogations and statements made by Sullivan on the above dates now have been filed in the record by the Government.

From the above, the court finds that Meekins was not acting in the role of Sullivan's lawyer at the time of the hearing at which a plea of guilty was entered. It is also definite that Lt. Meekins could not and did not purport to serve as Sullivan's retained or appointed attorney-at-law prior to the time of plea; rather, it appears that Lt. Meekins was at all times an agent of the Coast Guard with the duty to investigate and interrogate coastguardsmen suspected of crime.² The transcripts of the interrogations held prior to March 25, on March 17 and 22, indicate that Sullivan was informed of his rights, including the right to have counsel before questioning began.

Apart from being present in the spectator section of the courtroom, Lt. Meekins did not participate in Sullivan's court proceedings. According to Meekins' sworn statement he was "in the court room as a spectator for the purpose of ascertaining immediate status and disposition of the case so as to be able to inform his superiors of the outcome for administrative purposes."

The record further discloses that at the time of the entry of his plea defendant was an 18 year-old indigent youth. Prior to his enlistment in the Coast Guard, he had lived in foster homes and correctional schools for several years; he had had little, if any, formal education. He admitted running away from the correctional institutions on several occasions, and stated that he had "hung around with gangs."

The court finds the above facts to be true. The law, of course, to be applied to the above facts is the law existing on March 25, 1949. The recent Supreme Court opinions regarding right to assistance of counsel in federal criminal cases were not available for Judge Metzger's guidance and they are not applicable here.

Petitioner's choice of remedy, coram nobis, is proper, for under 28 U.S.C. § 1651(a) coram nobis lies to correct errors of the most fundamental character where the defendant has completed his sentence or is otherwise not in custody and where circumstances compel such action to achieve justice. United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 98 L.Ed. 248 (1954); United States v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129 (1914); cf. 28 U.S.C. § 2255. In 1949 the entry of a plea of guilty in a federal court without aid of counsel or a competent and intelligent waiver of counsel was, as it is today, a denial of a fundamental constitutional guaranty, providing the basis for the issuance of a writ of coram nobis. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);³ Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941); United States v. Morgan, supra, Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948). See also Deckard v. United States, 381 F.2d 77, 78 (8 Cir. 1967); Heiden v. United States, 353 F.2d 53 (9 Cir. 1965).

The United States contends, quite correctly, that a presumption of regularity attends the judgment of the court when a collateral attack is made upon it and that the petitioner has a "heavy burden of proof" to rebut that presumption. On the other hand, the cases above cited show that there is also a strong presumption against waiver of the constitutional right to counsel. In determining whether a meaningful waiver was here made by Sullivan, all presumptions, however, are circumscribed by the facts and circumstances now in the record. Von Moltke v. Gillies, supra; Heiden v. United States, supra; Day v. United States, 357 F.2d 907, (7 Cir. 1966).

The record unequivocally shows that Judge Metzger did but conduct a most cursory examination into the circumstances under which Sullivan was tendering his plea. The transcript of the hearing at which the plea of guilty was entered is controlling over the conclusory statement in the formal Judgment and Order of Commitment prepared by the Clerk which announced in summary fashion that the accused waived his right to counsel.

As indicated above, the petitioner was on March 25, 1949 an 18 year old indigent youth. He had had limited education and no legal training. Most of his life had been spent in foster homes or correctional institutions. Under these circumstances the trial judge was charged with a responsibility which he could not summarily discharge. His failure to make a thorough inquiry bearing upon and establishing the defendant's capacity to make an intelligent and competent waiver, as required by the Sixth Amendment, stands as a jurisdictional bar to an otherwise valid conviction and sentence depriving defendant of his liberty. Johnson v. Zerbst, supra. See also Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). When Judge Metzger inquired of the defendant whether he "had any legal advice on the matter", the defendant's nonresponsive answer should have put the judge on notice that a more thorough and searching inquiry was necessary to determine whether Sullivan had had competent legal advice preceding the hearing and whether Sullivan desired to waive his right to counsel at the time of his plea.

In Heiden v. United States, supra, the Ninth Circuit, sitting en banc, confronted a situation similar to the one in this case. The appellant, having waived counsel and pleaded guilty, was convicted and sentenced to a term of 20 years imprisonment. He sought to set aside his...