Vinson v. United States, 12803.

• Decision Date: 24 July 1956
• Docket Number: No. 12803.,12803.
• Citation: 235 F.2d 120
• Parties: Louis O. VINSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

235 F.2d 120 (1956)

Louis O. VINSON v. UNITED STATES.

No. 12803.

United States Court of Appeals Sixth Circuit.

July 24, 1956.

James E. Applegate, Cincinnati, Ohio, for appellant.

James E. Rambo, Dayton, Ohio, Hugh K. Martin, Columbus, Ohio, on the brief, for appellee.

Before McALLISTER and STEWART, Circuit Judges, and STARR, District Judge.

STARR, District Judge.

This is an appeal from an order of the district court denying appellant's motion to vacate judgment of conviction and sentence and for leave to withdraw his plea of guilty.

It appears that in May, 1953, appellant, represented by his own employed counsel, upon arraignment in district court waived grand-jury indictment and pleaded guilty under an information charging him with the interstate transportation of a motor vehicle, knowing the same to have been stolen, 18 U.S.C. § 2312; that he was sentenced to five years imprisonment, but that execution of sentence was suspended and he was placed on probation for a period of five years. It further appears that he violated the terms and conditions of his probation and that in June, 1955, the order suspending sentence and placing him on probation was revoked, the sentence of five years was reinstated, and he was removed to the United States penitentiary at Atlanta, Georgia.

On December 8, 1955, appellant filed a motion in pursuance of 28 U.S.C. § 2255, to vacate and set aside the judgment of conviction and sentence, and for leave to withdraw his plea of guilty. He based his motion on the claim that he was not guilty of the offense charged in the information, and that his plea of guilty was obtained by duress, misleading advice by his counsel and counsel for the government, and through fraudulent representations and promises. The district court set the motion for hearing on January 11, 1956, and the appellant was notified of the hearing by notice mailed to him at the penitentiary in Atlanta. In pursuance of the court's order, the appellant was removed from the penitentiary to Dayton, Ohio, and was present at the hearing. At the opening of the hearing the following occurred:

"The Court: Do you have counsel?

"The defendant: No, sir, I don\'t.

"The Court: I believe you made a request of the court to appoint counsel, which I haven\'t done, for the reason that it is discretionary on the part of the court. I do not consider it necessary. This is your motion. You filed a motion to vacate the judgment on a statement made by you. You will be sworn and take the stand and tell your story in your own way."

The appellant was sworn, took the stand, and, upon questioning by the court and the United States attorney, stated in substance that he was not guilty of the offense of which he had pleaded guilty in May, 1953; and that his plea was not freely and voluntarily given, but was induced by duress, misleading advice of counsel and by fraudulent representations and promises. The attorney who had represented appellant was permitted by the court to take the stand and testify regarding events and his conversations with appellant prior to and at the time of his arraignment and plea. The United States attorney who had prosecuted the appellant, and also other witnesses, testified regarding events and conversations with appellant prior to and at the time of his arraignment and plea. Following the hearing the district court filed findings of fact and conclusions of law and entered an order denying appellant's motion to vacate the judgment of conviction and sentence and for leave to withdraw his plea of guilty.

The district court granted appellant's motion for leave to appeal in forma pauperis and ordered that a transcript of the proceedings be furnished for the purpose of the record on appeal. On this appeal appellant by court-appointed counsel contends (1) that, having granted him a hearing on his motion to vacate judgment of conviction and sentence, the court, by denying his request for the appointment of counsel to represent and assist him at the hearing, deprived him of his constitutional rights; and (2) that...