Widmer v. Johnston

• Decision Date: 13 August 1943
• Docket Number: No. 10296.,10296.
• Citation: 136 F.2d 416
• Parties: WIDMER v. JOHNSTON.
• Court: U.S. Court of Appeals — Ninth Circuit

136 F.2d 416 (1943)

WIDMER v. JOHNSTON.

No. 10296.

Circuit Court of Appeals, Ninth Circuit.

June 11, 1943.

Rehearing Denied August 13, 1943.

James Widmer, pro per.

Frank J. Hennessy, U. S. Atty., and R. B. McMillan and A. J. Zirpoli, Asst. U. S. Attys., all of San Francisco, Cal., for appellee.

Before GARRECHT, HANEY, and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

On September 23, 1937, three indictments were returned against the appellant, James Widmer, by a federal grand jury in the Northern District of Ohio, Eastern Division, charging three separate bank robberies. One of these indictments, No. 16063, was in three counts and charged violations of Section 588b(a), Section 588b (b), and Section 588c of Title 12 U.S.C.A. The second and third indictments, Nos. 16064 and 16066, respectively, were each drawn in one count and charged separate transgressions of Section 588b(a), Title 12 U.S.C.A. At the time of the arraignment appellant appeared without an attorney, and after the charges were read to him in open court, he pleaded guilty to all three indictments; but before the imposition of sentence, the United States Attorney advised the court that he had come into possession of information indicating that appellant had not committed the offense charged in No. 16066, whereupon the plea of guilty to that charge was withdrawn. On October 26, 1937, in case No. 16063, counts one and two, and case No. 16064, appellant was given prison sentences totaling sixty-five years. Sentence on the third count of No. 16063 was deferred and still remains unimposed.

Appellant is now serving under the above-mentioned sentences a term of imprisonment at the United States Penitentiary at Alcatraz, California, from which institution he seeks release upon a petition for a writ of habeas corpus filed in the court below. In the petition he alleges in substance, (1) that he was deprived of his constitutional right to assistance of counsel and (2) that his pleas of guilty were not free and voluntary but induced by the promise of the United States Attorney that if appellant so pleaded, he could "guarantee that Judge Jones will not give him more than twenty-five years" and by the threat that if appellant went on trial, the United States Attorney "would be compelled to demand the death penalty for the kidnapping."¹

Request having been made by appellant, the district court appointed an outstanding attorney as counsel to represent him on this petition. A writ of habeas corpus was issued, to which appellee James A. Johnston, Warden, Alcatraz Penitentiary, made return. Thereafter, appellant was granted a hearing at the conclusion of which the court below discharged the writ and denied the petition. Application to appeal to this court in forma pauperis was granted. Counsel appointed by the court below having requested to be and having been relieved from further duties, appellant is appearing here in propria persona.

As findings of fact the lower court determined that "at the time of appellant's appearance before the United States District Court for the Northern District of Ohio, Eastern Division, and prior to his plea to the * * * indictments, he was asked by the trial court if he desired counsel to represent him, and he stated to the court that he did not desire counsel to be assigned to him"; that "prior to his pleas to the * * * indictments, the charges * * * were read in open court, and the appellant was asked whether he understood the nature of the charges against him, and he replied that he did"; that he "freely and voluntarily entered pleas of guilty to the charges of the respective counts of the indictments theretofore read to him"; that "his pleas of guilty * * * were not entered as a result of any threats made against him, or any promises made to him by any persons whomsoever"; and that at no time did the United States Attorney have a conversation with appellant in which he promised that if appellant would plead guilty, he would not "get over twenty-five years", or in which he threatened to demand the death penalty if appellant stood trial. As "conclusions of law" the court held that appellant "has not sustained the burden of proving that he was denied the right of assistance of counsel for his defense" or "that he had not voluntarily entered pleas of guilty"; and further that appellant, "by his acts and conduct, intelligently, competently and intentionally waived his right of assistance of counsel".

If appellant's right under the Sixth Amendment to assistance of counsel was violated or if his plea of guilty was coerced or induced by deception upon the part of the Government officials, then it was the duty of the district court to order his release upon a writ of habeas corpus. Walker v. Johnston, 1941, 312 U.S. 275, 286, 61 S.Ct. 574, 85 L.Ed. 830; Smith v. O'Grady, 1941, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859; Waley v. Johnston, 1942, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Johnson v. Zerbst, 1938, 304 U.S. 458, 467-469, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461. "It must be remembered, however, that a judgment cannot be lightly set aside by collateral attack, even on habeas corpus. When collaterally attacked, the judgment of the court carries with it a presumption of regularity" and the prisoner is under the burden of proving by a preponderance of evidence the facts which he alleges entitle him to a discharge. Johnson v. Zerbst, supra, and Walker v. Johnston, supra.

At a preliminary hearing before the United States Commissioner appellant was represented by an attorney. Thereafter, he negotiated with other attorneys. As a reason for not engaging one, he states that he could not afford to pay the fee asked. He alleges here that he did not know, and that the trial judge did not inform him, that if he so desired, counsel would be appointed to represent him at no cost to him. For this reason, he contends that he was deprived of the right to assistance of counsel.

In Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 465, 86 L.Ed. 680, the supreme court stated that "The trial court should protect...