United States v. Zavada

Decision Date22 June 1961
Docket NumberNo. 14415.,14415.
Citation291 F.2d 189
PartiesUNITED STATES of America, Plaintiff-Appellee, v. George ZAVADA, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Russell E. Ake, U. S. Atty., Cleveland, Ohio, for plaintiff-appellee.

George Zavada, in pro. per.

Before CECIL, WEICK and O'SULLIVAN, Circuit Judges.

WEICK, Circuit Judge.

This is an appeal from an order of the District Court denying a second motion filed by appellant under Title 28 U.S.C. § 2255 to vacate his sentence.

On March 21, 1938 Zavada pleaded guilty in the District Court before Honorable S. H. West, since deceased, to two indictments charging robbery of a post office and jeopardizing the life of the custodian by use of a dangerous weapon. Former Sections 317, 320, 551 of Title 18 U.S.C.1 He was given a mandatory sentence of 25 years on each indictment, the sentences to run concurrently. Subsequently he was paroled but later returned to the penitentiary for violation of the conditions thereof.

On November 13, 1956 Zavada filed his first motion in the District Court to vacate sentence. The grounds of this motion to vacate were: (1) that he did not intelligently and competently waive the assistance of counsel; (2) that his plea of guilty was obtained by threats, coercion and promises made by the attorney for the Government, and (3) that he was uninformed as to the charges against him.

This motion was denied without a hearing. The Supreme Court in Zavada v. United States, 1958, 355 U.S. 392, 78 S. Ct. 383, 2 L.Ed.2d 356, held that he was entitled to a hearing on the factual issues raised by his motion. The District Judge then granted a hearing. Zavada was brought from Alcatraz to Cleveland on a writ of habeas corpus ad testificandum to attend the hearing. Counsel was assigned to represent him. The District Judge heard the evidence offered by both parties. He adopted findings of fact and conclusions of law. He found as a fact that Zavada did intelligently and competently waive the assistance of counsel; that the indictments against Zavada were read to him in open court and were fully understood by him and that his answers to questions propounded by the court were voluntarily and understandably given; that his plea of guilty was wholly voluntary and not obtained by duress, coercion or promises. The Judge found that Zavada's claims were unworthy of belief and were false in all particulars. The Judge concluded as a matter of law that Zavada had no ground for the vacation of his sentence and denied his motion to vacate.

No appeal was prosecuted by Zavada from this order and it became final. It constituted an adjudication of all questions raised by said motion.

In his second motion to vacate, which was filed on October 6, 1960, Zavada alleged that he was arrested at his home by detectives of the Cleveland Police Department who forcibly entered, searched and removed him at gun point, taking a .32 caliber Belgian automatic pistol belonging to his father; that the case was then transferred by the city police to the Post Office Department; that a confession was obtained from him while he was in state custody and prior to his hearing before the United States Commissioner; that he had no choice but to plead guilty in view of the illegal search and seizure of the pistol and the evidence obtained against him while he was in state custody; that his rights under the Fourth and Fifth Amendments to the Constitution of the United States were violated.

The District Judge denied the second motion to vacate, without a hearing, on the ground that the motion, files and record of the case conclusively show that Zavada was entitled to no relief. He also denied a petition for rehearing. Zavada had based his second motion to vacate on Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 and Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688, decided June 27, 1960. In both of these cases, however, timely objection had been made in the District Court to the use of the alleged illegally obtained evidence.

In the present case, the alleged illegally obtained evidence was not used against Zavada for he pleaded guilty to the offenses charged in the indictments. Elkins and Rios are inapplicable.

One who pleads guilty is not in a position to successfully move for vacation of judgment on claims of an alleged illegal search and seizure...

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22 cases
  • Harris, In re
    • United States
    • California Supreme Court
    • 22 November 1961
    ...adhered to the rule that the question of unconstitutionally seized evidence may not be raised on collateral attack. (United States v. Zavada, 6 Cir., 291 F.2d 189, 191; Jones v. Attorney General of the United States, 8 Cir., 278 F.2d 699, 701; Alexander v. United States, 5 Cir., 290 F.2d 25......
  • State of Louisiana v. Walker, 669.
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • 31 October 1963
    ...1252, 92 L.Ed. 1690; Sullivan v. United States, (10 Cir.) 315 F.2d 304; Adkins v. United States, (8 Cir.) 298 F.2d 842; United States v. Zavada, (6 Cir.) 291 F.2d 189; United States v. Salzano, D.C., 138 F.Supp. 72, affirmed (2 Cir.) 241 F.2d 849; Winston v. United States, (2 Cir.) 224 F.2d......
  • Simmons v. United States
    • United States
    • U.S. District Court — Northern District of New York
    • 22 February 1973
    ...v. United States, 296 F.2d 220 (6th Cir. 1961), cert. denied, 369 U.S. 876, 82 S.Ct. 1147, 8 L.Ed.2d 279 (1962); United States v. Zavada, 291 F.2d 189, 191 (6th Cir. 1961); Swepston v. United States, 289 F.2d 166, 169 (8th Cir. 1961), cert. denied, 369 U.S. 812, 82 S.Ct. 689, 7 L.Ed. 2d 612......
  • Alden v. State of Montana
    • United States
    • U.S. District Court — District of Montana
    • 26 October 1964
    ...to successfully move for a writ of habeas corpus on claims of alleged illegal arrest, search and seizure. Cf. United States v. Zavada, 291 F.2d 189 (6th Cir., 1961); United States v. Salzano, 241 F.2d 849 (2d Cir., 1957)." United States ex rel. Hazen v. Maroney, 217 F.Supp. 328 (D.C.1963). ......
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