Wharton v. United States, FS 72-C-50.
Decision Date | 02 October 1972 |
Docket Number | No. FS 72-C-50.,FS 72-C-50. |
Citation | 348 F. Supp. 1026 |
Parties | Oscar Floyd WHARTON, Plaintiff, v. UNITED STATES of America, Defendant. |
Court | U.S. District Court — Western District of Arkansas |
Oscar Floyd Wharton, pro se.
On a date prior to July 3, 1972 the Petitioner, Oscar Floyd Wharton, mailed to the Judge of this Court a file of handwritten papers which he entitled "PETITION FOR HABEAS CORPUS 28 U.S. C.A. 2241-2255."
Upon examination of the papers it appeared that Petitioner was and is a prisoner in a Kansas State Penitentiary, pursuant to a sentence of a Kansas State Court, and the allegations of his self-prepared pleading did not allege facts constituting a deprivation of a civil or constitutional right.
By letter dated July 3, 1972 this Court denied Petitioner the right to file such petition in the District Court for the Western District of Arkansas.
The matter was apparently sent to the Court of Appeals for 8th Circuit because on July 28, 1972 that Court entered the following order:
ORDER
The Petitioner's sheaf of papers was actually filed by the Clerk of this Court on July 31, 1972. Examination of the file reveals that Petitioner contends that he was convicted in the United States District Court for the Western District of Arkansas (Fort Smith) in 1962 and served his sentence; but that subsequently he has been convicted in a Kansas State Court and the conviction in the United States Court was used by the Kansas Court to impose a more severe sentence. He alleges that the United States conviction was invalid because it did not meet due process and equal protection. Then he alleges that prior to his United States trial at Fort Smith in 1962 he was convicted of a felony in Texas and that in the Texas conviction he "never had an attorney nor was he offered an attorney," and that the United States District Court at Fort Smith was informed about the Texas conviction and the Texas conviction was invalid which made the United States District Court conviction invalid which made the Kansas conviction and sentence invalid.
On August 3, 1972 the United States by its District Attorney filed answer to the Petitioner's motion, the prayer of which is that the petition be dismissed.
On August 8, 1972 this Court caused the proceedings in this Court in Texarkana No. 4536 and Fort Smith 5844 dated November 27, 1962 to be transcribed and a copy thereof to be forwarded to Oscar Floyd Wharton.
On August 10, 1972, Oscar Floyd Wharton filed an instrument styled "TRAVERSE OF RESPONDENTS ALLEGATIONS" consisting of five handwritten pages and verified by Mr. Wharton.
In paragraph II of the traverse is the verified statement by Mr. Wharton that his waiver of counsel in the instant Court has nothing to do with the issues at bar.
On August 15, 1972 this Court received from Mr. Wharton a letter by certified mail in which Mr. Wharton stated:
By letter dated September 8, 1972 the Directors of Legal Service for Prisoners at Topeka, Kansas informed this Court that Oscar Wharton, an inmate at the Kansas State Penitentiary, contacted him to assist Mr. Wharton in this case and that it is the policy of the Legal Service group to request the Court to appoint an attorney if the Court is of the opinion that the case has merit.
On September 18, 1972 this Court wrote the following letter to the Director:
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
POST OFFICE BOX 1623
FORT SMITH, ARKANSAS 72901
PAUL X WILLIAMS JUDGE
Mr. Pete Farabi, Director Legal Service for Prisoners, Inc 5600 West Sixth - Box 829 Topeka, Kansas 66601 Dear Sir RE: Oscar Wharton v U. S. A No. FS-72-C-50
This will acknowledge your letter of September 8, 1972 in which you request that this court appoint counsel to assist Mr. Wharton in the presentation of his law suit.
As you know this matter was certified to our Court by the 8th Circuit Court of Appeals to be heard as a Writ of Error Coram Nobis. We have been unable to find any authority to appoint counsel for Mr. Wharton in this application for which the United States can pay an attorney's fee.
In spite of the fact, we have contacted several attorneys locally and solicited their aid in presenting Mr. Wharton's theory to the Court and to date we have found no lawyer any where in our district who subscribes to his theory or believes there is merit in his contention.
Consequently, if your office can in good conscience represent Mr. Wharton, we will be pleased to hear from you.
Yours truly Paul X Williams cc: Mr. Oscar Wharton Box 2 Lansing, Kansas 66043
As the Court understands its provisions, no fee can be allowed under 18 U.S.C. § 3006 to any attorney for representing an indigent on a coram nobis application.
28 U.S.C. § 1915(d) provides that: "The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious."
Petitioner states that the available counsel in Kansas have told him that they find no merit in his contention.
This Court has not personally asked every attorney in Western Arkansas about his views on Petitioner's application, but has made more than a casual inquiry among local attorneys and finds none who believes he can in good conscience urge the position advanced by Mr. Wharton. This Court has enjoyed a good relationship with the attorneys who practice before it in Western Arkansas and feels that any one of them would gladly serve in this case without hope of fee if he could in good conscience urge the theory relied on by Mr. Wharton.
Consequently there is no counsel of record for the Petitioner.
The Court is reluctant to proceed in this case, when no attorney has appeared for the Petitioner, but it appears that the transcription of the proceedings of November 27, 1962 comprises all of the evidence necessary and there is merely a matter of law presented to the Court and that is whether or not the petitioner is entitled to have the conviction in the United States District Court in 1962 set aside as being in violation of some right of the Petitioner which he can raise under the theory of "Writ of Error Coram Nobis."
There can be no question of the right of Petitioner to pursue the course of procedure he has followed for although Federal Rules of Civil Procedure 60(b) provides that Writs of Coram Nobis are abolished, the United States Supreme Court has held that under the great writ statute (28 U.S.C. § 1651) coram nobis is still available. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954)
50 F.R.D. 153 et seq. contains the subject matter of a treatise by Judge Elmo B. Hunter of Kansas City, Missouri on "Post Conviction Remedies". At page 166 appears the following:
In case of Rodgers v. United States (5th Circuit) 451 F.2d 562 in speaking of coram nobis the court said:
"Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice."
The 8th Circuit has dealt with coram nobis in the case of McFadden v. United States (1971) 439 F.2d 285 in which case Judge Gibson used the following language:
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