Zahn v. Hudspeth
| Decision Date | 23 March 1939 |
| Docket Number | No. 1811.,1811. |
| Citation | 102 F.2d 759 |
| Parties | ZAHN v. HUDSPETH, Warden. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Bernard Peterson, of Wichita, Kan., for appellant.
Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.
Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.
This is an appeal from an order denying a petition for a writ of habeas corpus. On October 15, 1937, while petitioner was serving a term in the federal penitentiary at Leavenworth, Kansas, an indictment was returned against him in the United States Court for the Northern District of Oklahoma, charging a violation of the National Motor Vehicle Theft Act, 18 U.S.C.A. § 408. In February, 1938, he wrote the United States attorney making inquiry as to the nature of the indictment and the probable time of trial. On being advised that the charge was the unlawful transportation of a stolen automobile in interstate commerce and that he doubtless would be tried after the termination of the term then being served, he wrote again requesting that the case be set for trial at the forthcoming term of court and that an order for his removal be issued as soon as possible. He was found guilty, and sentenced to serve a term of five years in the penitentiary; and he is being detained by commitment duly issued under such sentence.
The validity of the judgment and sentence is attacked. The principle ground of attack is that petitioner was denied the assistance of counsel at the trial. It is alleged in the petition that he was taken from the penitentiary to the federal-city jail in Tulsa, Oklahoma, five days in advance of the trial; that he sought to communicate with the judge and the United States attorney for the purpose of requesting the appointment of counsel to represent him at the trial, but that the authorities at the jail denied and prevented him from establishing the contact and making the request; that the trial started immediately upon his arrival in court; that the indictment was read, and he entered a plea of not guilty; that thereupon the court inquired whether he had counsel, to which he replied that he had just been removed from the penitentiary to the jail, that he had no funds with which to employ counsel, that no attorney in Tulsa had knowledge of the case, and that in the circumstances he would have to represent himself; and that he did so.
Ordinarily the only questions open to review in a proceeding in habeas corpus to obtain release from confinement after conviction for a penal offense are whether the court which imposed the sentence had jurisdiction of the offense and of the person of the defendant, and whether the sentence pronounced was one authorized by law. Belt v. Zerbst, 10 Cir., 82 F.2d 18; Norton v. Zerbst, 10 Cir., 83 F.2d 677; Weeks v. Zerbst, 10 Cir., 85 F.2d 996.
The Sixth Amendment to the Constitution of the United States, expressly guarantees one charged with a crime the right to have counsel in his defense, and it is now settled law that the invalidity of a judgment and sentence for the wrongful refusal of the benefit of counsel may be raised on habeas corpus. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L. Ed. 1461. But a defendant may waive the right, provided it is waived intelligently, understandingly, and in a competent manner; and the duty rests upon the trial court to determine whether it is waived in that manner. Johnson v. Zerbst, supra.
At the hearing in this proceeding, a certified copy of the judgment in the criminal case and certain affidavits were introduced in evidence without objection. The assistant jailer in Tulsa stated in his affidavit that he and other jailers had specific instructions to contact federal authorities when requested by a federal prisoner; that it was the practice of jailers, in the event a prisoner made such a request and the jailer on duty was unable to accommodate him during his period of duty, to leave a note for the jailer on the next duty to arrange for the contact; that so far as he knew the instructions were never violated; that he did not deny petitioner the right to communicate with federal authorities and that petitioner did not complain to him of anything while confined in the jail. A deputy United States marshal stated in his affidavit that he conveyed petitioner from the jail to the court on the morning of the trial; and that petitioner did not complain to him of being unable to contact federal authorities. The marshal stated in his affidavit that he did not discuss the case with petitioner; that petitioner did not complain to him of inability to contact federal authorities; and that the records failed to indicate that he attempted to make contact and was denied the privilege of doing so. The judgment expressly recites in clear language that petitioner — defendant there — appeared in person; that he was asked whether he desired counsel assigned by the court; and that he replied in the negative. But that is not all. The judge who presided at the trial, the United States attorney, and the assistant United States attorney stated in their respective affidavits that at the time the plea of not guilty was entered, the court inquired whether petitioner had counsel; that he replied he did not; that the court then asked whether he desired counsel, to which he replied in the negative and stated that he desired to represent himself; that despite his statement, the court appointed an attorney of several years experience to represent him; that the attorney sat at the counsel table beside petitioner, participated in the...
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